Reviewing the Estate Planning Basics

Now, only the very wealthy have to worry about estate planning.

That’s what many people believe after the latest estate tax law, and that belief could cause a lot of problems for them and their heirs.

Estate planning is more than tax reduction. Estate planning ensures that your wealth is transferred to those you want in the way you want, with minimal cost and delay. Lack of a solid estate plan has destroyed the wealth and harmony of many families — even when taxes weren’t a factor. The devastation is more traumatic on those who weren’t significantly wealthy to start.

Much wealth is lost, substantially diminished, or goes to the wrong people because of estate planning neglect or mistakes. I want your fortune, no matter what its size, to be one that survives and thrives.

Fortunately, after the latest tax law estate planning focuses more on issues other than taxes. Let’s look at the many important nontax aspects of estate planning.

You need a will. It doesn’t matter how rich or poor you are, which state you live in, or whether you have a living trust. When you don’t have a will that divides your property, state law does it for you. The result often is surprising.

In my state of Virginia, when there’s no will the surviving spouse gets only one third of the estate. The rest goes to the children and stepchildren. In neighboring Maryland, the surviving spouse gets half the estate. Did you note the reference to stepchildren? In some states the stepchildren receive the same share as your children, even if that’s not what you intended and discussed with your spouse. It often also doesn’t matter what ages the children are or how much money each has. In states with laws such as these, when there are children and no will, the share received by a surviving spouse might not be enough to support his or her lifestyle.

When the children are minors, the surviving spouse might not be appointed to handle the money for the children. If he or she is, there could be a requirement to keep records and regularly report to the court how the money was invested and spent. When the children are 18 or older, they usually receive full legal control of their shares of the estate and can do whatever they want.

You don’t want the court and state law to decide how your assets are distributed. If you do nothing else, you should have a simple will that leaves all your property to your spouse or whoever else you want to inherit it. You also should name the guardian of any minor children in case you and your spouse both pass away.

You need a will, even if you have a living trust or most property is held in joint title. It is unlikely that all your assets will be covered by a living trust or other arrangement, and when there isn’t a will property not covered is disposed of according to state law.

The will also can have several provisions that protect your heirs and wealth.

Estate liquidity is remarkably overlooked in estate planning. It is not enough to reduce taxes and probate. You must be sure the estate will have enough cash or liquid assets to pay expenses and debts. These include paying for management and upkeep of property while the estate is processed. You don’t want the estate to sell assets to pay basic expenses.

Another key clause is the tax apportionment clause. This clause states whether the death and income taxes related to a particular asset will be paid by the individual inheriting that asset or by the residuary estate (the estate left over after specific bequests). Even if your estate doesn’t face federal estate taxes, there could be state and local taxes. If you don’t decide how they are paid, in most states, they will be paid out of the residuary estate. That means less for whoever gets the residuary estate, and that usually is your spouse and children.

The same philosophy applies to the payment of debts clause. Will each heir in effect pay a share of the estate debts, or will debts be paid by the residuary estate? Or will you buy enough life insurance to cover the debt?

There’s still more to an estate plan.

You should decide how much, if any, of your estate should avoid probate. Traditionally, probate is a long, expensive process that involves lawyer’s fees, court costs, valuing assets, publishing notices for creditors, and accounting to the court. Some states have streamlined the process in recent decades so it’s not as difficult and expensive. But others still have the traditional system with its drawbacks. In future, we’ll discuss probate, and how to avoid it if you choose, in some detail.

A full estate plan has some protective documents or powers of attorney.

The first is the financial power of attorney. This empowers someone, or a group of people, to manage your assets and pay bills when you can’t. Again, without this document a court has to be asked to appoint a guardian or custodian to manage your finances. It might not be the person you intended, and the process will cost some money.

The second document is the medical or health care power of attorney. Most estate planners these days recommend that there be several documents. There is a living will, which states your general wishes about using medical treatment or equipment to extend life. You also can have a do not resuscitate order that describes when CPR or similar measures shouldn’t be used. A powerful document is the medical power of attorney. Like the financial power of attorney, this appoints one or more people to make medical decisions when you aren’t able to.

Business owners probably want the business to continue. At a minimum, they should plan to preserve its value for the benefit of the next generation, even if it is run by others.

Few business owners engage in viable succession planning, which is a reason why few businesses survive much past the first generation. A proper succession plan begins at least five years before you think a transfer might occur. You need to put in place financial and other systems so the business is attractive and understandable to potential buyers. If you want your children or current employees to run the business, you need to let them know and prepare them. This could mean giving them more responsibility even when you aren’t ready to step aside.

Review all your beneficiary designations. These determine who receives the assets. Your will has no effect on these assets. Assets with beneficiary designations include IRAs, 401(k)s, life insurance, annuities, and some employer benefits.

Often the most valuable and important element of an estate plan is a two-part package. One part is a letter of instructions to the executor. This explains in some detail and plain English how you want the estate to be handled. It can provide advice and details that aren’t appropriate for a will. The other part of the package contains copies of key documents. These include recent tax returns, income statement, balance sheet, and a list of all your financial accounts and property. These days you also should list all your online accounts, including e-mail, with the usernames, passwords, and any other access information.

You can put such a package together with my booklet, To My Heirs: A Book of Final Wishes and Instructions, available through the Bob’s Library tab on the web site at

Above all, you need to do something and get an estate plan started. You don’t have to resolve all the issues right away. Have a basic will drafted so at least your assets are divided by the state. You can do the estate plan in installments. Put together a simple, basic plan now. Then, work toward the ideal plan as you learn more about the tools available, refine your goals, and resolve disagreements.