estate planning basics & advanced directives€¦ · • estate planning has a number of steps...

87
Estate Planning Basics & Advanced Directives https://learn.extension.org/events/2149 This material is based upon work supported by the National Institute of Food and Agriculture, U.S. Department of Agriculture, and the Office of Family Readiness Policy, U.S. Department of Defense under Award Numbers 2010-48869-20685, 2012-48755-20306, and 2014-48770-22587.

Upload: others

Post on 20-Jul-2020

0 views

Category:

Documents


0 download

TRANSCRIPT

Page 1: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Estate Planning Basics & Advanced Directives

https://learn.extension.org/events/2149

This material is based upon work supported by the National Institute of Food and Agriculture, U.S. Department of Agriculture, and the Office of Family Readiness Policy, U.S. Department of Defense under Award Numbers 2010-48869-20685, 2012-48755-20306, and 2014-48770-22587.

Page 2: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Research and evidenced-based professional development

through engaged online communities

www.extension.org/militaryfamilies

Sign up for webinar email notifications at www.extension.org/62831

Page 3: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Find us on Twitter by following @MFLNPF

Join our community on Facebook: MFLN Personal Finance

Page 4: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Available resources

https://learn.extension.org/events/2149 Find slides and additional resources under ‘event materials’

Page 5: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Presenters Dr. Barbara O’Neill •  Financial resource management specialist for Rutgers

Cooperative Extension, •  Has been a professor, financial educator, and author for 35

years. •  Is a certified financial planner (CFP®), chartered retirement

planning counselor (CRPC®), accredited financial counselor (AFC), certified housing counselor (CHC), and certified financial educator (CFEd).

Mary Benzinger •  Has served as the Senior Attorney for the U.S. Army at the

Pentagon Army and Air Force Legal Assistance Office since 2009.

•  She has been a Member of the Virginia State Bar since 1987.

•  Before coming to the Army, she was in private practice in Northern Virginia for 19 years with her primary practice being Family Law.

Page 6: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Estate Planning Basics and Advance Directives

https://learn.extension.org/events/2149

Barbara O’Neill, Ph.D., CFP® Rutgers Cooperative Extension

This material is based upon work supported by the National Institute of Food and Agriculture, U.S. Department of Agriculture, and the Office of Family Readiness Policy, U.S. Department of Defense under Award Numbers 2010-48869-20685, 2012-48755-20306, and 2014-48770-22587.

Page 7: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Key Points •  Estate planning is a process of specifying the

distribution of assets upon death •  Many people avoid estate planning but it's an

important thing to do for many reasons •  Estate planning has a number of steps and none of

them are overly complicated or difficult •  Specific issues exist for military families with regard

to estate planning •  There are lots of ways to learn more, and get

support and assistance with estate planning •  Military families have special estate planning

considerations

Page 8: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Estate Planning Is Related to Many Other Financial

Planning Decisions Source: Madura, J. Personal Finance (2004), Pearson Education

Page 9: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

So What Exactly is Estate Planning?

•  Estate planning is the process of determining the distribution of your assets upon your death

•  Estate planning also covers the management of your personal affairs in the event of incapacity

Page 10: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

In Other Words… •  You give what you have

•  To whom you want

•  When you want

•  The way that you want

•  At the lowest possible cost (e.g., taxes and administrative costs) to yourself and loved ones

•  And have instructions left to make medical and financial decisions if you are unable to do so

Page 11: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Question What are common estate planning

“issues” you have observed?

Page 12: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Estate Planning Phases 1.  Accumulation: Build estate through earnings,

savings, investments, insurance, gifts, etc.

2.  Distribution: Ensure that your estate is distributed as you wish after your death –  Make sure important documents are accessible,

understandable, and legally proper

Nobody knows how long their accumulation phase will last and when their distribution phase will begin!

Page 13: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

When Should You Plan Your Estate?

Today Mental

Incapacity Catastrophic

Illness Death

Your Planning Opportunity

Revocable Living Trust

Will Living Will

Powers of Attorney

Irrevocable Trust

Source: Goldberg Law Center, PC

Page 14: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Benefits of Estate Planning •  Provides control over asset distribution process

•  Provides peace of mind

•  Reduces income taxes

•  Reduces estate administration cost and delays

•  Reduces/avoids estate taxes

•  Reduces/avoids gift taxes

•  Provides incapacity planning

Page 15: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

The Perfect Estate Plan •  Documents that are properly drafted

•  Documents that are regularly updated

•  Assets that are properly titled

•  No conflicts between titles to assets and a will

•  Communication of wishes among family

•  Regularly reviewed beneficiary designations: http://njaes.rutgers.edu/money/pdfs/beneficiary-designations.pdf

Page 16: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

What Is Included in an Estate? Assets Included in definition of “Estate”

• Real property

• Life insurance policies (face value)

• Checking, savings, CDs, other liquid accounts

• Business Interests – Sole Proprietor/Corporation/ LLC/ Partnership

• Stocks, bonds, mutual funds, annuities

• Retirement and pension plans

• Personal property

Page 17: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Why People Avoid Getting an Estate Plan?

•  Cost (real or perceived)

•  Thinking that your estate is too small to support the expense of planning

•  Fear of dying (“jinx factor”)

• Uncertainty about people to name in legal documents

• Uncertainty about finding legal advisors

• Other?

Page 18: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Estate Planning Process

Gross Estate

Your Will

Non-probate transfers

Jointly owned property Life Insurance IRAs 401(k)s, 403(b)s, TSP Annuities Assets with named beneficiaries Planned distributions

Property titled in your name

Probate Process

Adapted From: Goldberg Law Center, PC

Page 19: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Probate Process •  Legal process by which a will is proved valid or invalid and the

estate of a decedent is administered

•  Involves paying a deceased person’s debts and retitling that person’s individually owned assets to the names of heirs listed in a will

•  Executor files forms in probate court, provides a copy of the will, prepares a list of assets and liabilities of deceased, pays debts and sells necessary assets

•  Typically opens a bank account for this purpose

Resource: http://definitions.uslegal.com/p/probate/

Page 20: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Ways to Avoid Probate •  Own property jointly with survivorship rights

•  Beneficiary designations (insurance policies, IRA, 401(k), etc.)

•  Use a revocable or irrevocable trust

•  Make lifetime gifts

Note: It is often difficult to totally avoid probate: automobile and pro-rated refund payments often need to be probated

Page 21: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

How to Distribute Assets to Heirs

•  Outright – No protection

•  In Trust – Creditor protection

– Estate tax protection

– Self protection (e.g., spendthrift heirs)

– Predator protection

Page 22: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Common Estate Planning Tools During Your Lifetime

•  Power of Attorney

•  Gifting

•  Revocable Living Trust

•  Guardianship (encompasses all personal affairs of protected person including support and health care)

•  Conservatorship (limited to the management of property and financial affairs of protected person)

Page 23: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Common Estate Planning Tools After Your Death

•  Will

•  State Intestacy Laws

•  Joint Tenancy

•  Beneficiary Designations

•  Revocable Living Trust

Page 24: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Preparing a Will •  Specifies how your estate should be distributed upon

your death

•  If can also identify a preferred guardian for surviving minor children

•  Have an attorney draft your will to avoid difficulties

•  A standard simple will generally cost between $300 to $500

Page 25: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Will Formats •  Holographic Will

–  Will that you write, date and sign, entirely in your handwriting

–  May not be recognized in some states

•  Formal Will –  Usually prepared with an attorney’s assistance

–  Must date, sign, and have proper witnesses

•  Statutory Will –  A type of formal will on a preprinted form

–  Available online or from a stationery store

–  May include “boilerplate” provisions not in the best interest of heirs

Page 26: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Question Why don’t many people have wills?

Page 27: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Key Designees in a Will Executor: Person willing and able to execute provisions of

someone’s will (can be family member, friend, lawyer, etc.) Tasks may include: •  Preparing an inventory of assets

•  Collecting any money due and paying off debts

•  File all income and estate tax returns •  Decisions about investing or selling assets to pay debts or provide income

•  Distribute the estate and make financial accounting to beneficiaries

Guardian: Person who assumes responsibility for providing personal care to the minor children of a deceased person and/or managing the estate for them

Page 28: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

•  Reasons to Review a Will: – You move to a new state with different laws – You have sold property mentioned in the will – Size and composition of your estate has changed – You have married, divorced or remarried – Potential heirs are born or have died

•  Adding a Codicil – Document that explains, adds, or deletes provisions

in an existing will –  Appropriate for minor revisions

Altering or Rewriting a Will

Page 29: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Requirements for Preparing a Will

•  Attain legal age of majority: Age 18 in most states •  Mentally competent •  Not under undue influence of others •  Must be signed and dated; video will supplement?

•  2 or 3 witnesses who are not beneficiaries (in most states)

•  Preparation by an attorney highly recommended Resources: http://www.lectlaw.com/filesh/qfl06.htm

http://nationalparalegal.edu/willsTrustsEstates_Public/ExecutionValidityComponentsOfWills/StatutoryRequirementsForWill.asp

Page 30: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Sample Will Language

Exhibit 20.1: A Sample Will Source: Madura, J. Personal Finance (2004), Pearson Education

Page 31: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Sample Will Language

Exhibit 20.1: A Sample Will Source: Madura, J. Personal Finance (2004), Pearson Education

Page 32: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Wills Can Fall Short of Estate Planning Goals

•  Won’t provide for disability or incapacity

•  Won’t necessarily transfer what you have: –  to whom you want

–  the way you want

– when you want

•  Won’t avoid the probate process

Adapted From: Goldberg Law Center, PC

Page 33: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Advanced Estate Planning Tools

•  Gifting programs

•  Charitable trusts (lead trust, remainder trust)

•  Other irrevocable trusts

•  Special needs trusts

•  Life insurance trusts

•  Trusts for minor children Adapted From: Goldberg Law Center, PC

Page 34: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Will vs. Revocable Living Trust

Probate

My Property

Heirs

Property in My Living

Trust

(No Probate)

Heirs

Adapted From: Daniela Lungu, Attorney at Law

Page 35: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Trusts Legal document that transfers assets to manage for designated beneficiaries; fee usually based on AUM

•  Grantor (Trustor): Person who creates a trust

•  Trustee: Person (e.g., family member, friend, lawyer) or financial institution (e.g., commercial bank) named in a trust to manage trust assets for beneficiaries

•  Beneficiary: Person(s) who receive the benefits of a trust (e.g., income and assets)

Page 36: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Types of Trusts Living Trust (a.k.a., “Inter vivos trust”)

A trust to which someone assigns the management of their assets to a trustee while they are living

•  Revocable Living Trust: A living trust that can be dissolved

•  Irrevocable Living Trust: A living trust that cannot be changed, although it can provide income to the grantor

Testamentary Trust •  Established by your will; takes effect after death

http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_5.authcheckdam.pdf

Page 37: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Pros and Cons of Trusts •  Benefits of Trusts:

–  Avoids probate: transfers assets quickly and provides privacy –  Frees grantor from managing assets

–  Provides income for survivors

•  Revocable Trust –  Grantor retains the right to end the trust or change its terms during

lifetime

–  Does not provide shelter assets from federal or state estate taxes

•  Irrevocable Trust –  Grantor cannot change the terms once instituted –  Used to reduce estate taxes

Page 38: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

What If You Do Nothing? •  At Incapacity (e.g., brain dead on life support) –  Guardianship/Conservatorship –  Court controls assets

•  At Death –  Court proceeding to determine who will be guardian for minor children –  Assets distributed according to state law – intestacy

Failure to do advanced planning for larger estates: –  Family money goes to taxes and legal expenses instead of to heirs –  Kids blow inheritance –  Control issues and fighting among family members left behind

Adapted From: Daniela Lungu, Attorney at Law

Page 39: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Intestacy: What Happens? •  You die without a will •  The state distributes your assets according to a pre-

determined formula (“My State Will”) –  Typically splits property between surviving spouse, children –  http://www.mystatewill.com/statutes/statute_links.htm

•  May mean the state will decide on a guardian for your children – Very complicated if a “blended” family

•  Generally takes longer to settle an estate and costs more (e.g., bonding an appointed administrator)

http://www.nolo.com/legal-encyclopedia/how-estate-settled-if-theres-32442.html

Page 40: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Celebrity Estate Planning Horror Stories

•  Jerry Garcia of the Grateful Dead band •  Elvis •  Anna Nicole Smith •  Chief Justice Warren Burger •  Casey Kasem •  Tom Clancy http://wfplaw.com/law-news/estate-planning/celebrity-estate-planning-horror-

stories.html

http://www.clearcounsel.com/estate-planning-horror-stories/

http://trialandheirs.com/blog/celebrities/top-10-celebrity-stories-spark-holiday-estate-planning-conversations

Page 41: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Taxes and Estate Planning •  Estate Taxes (Federal and Some States)

–  Tax on value of property at death –  Based on fair market value of estate assets (minus estate liabilities) –  $5,430,000 federal estate tax exclusion in 2015 –  Maximum federal estate tax rate: 40% (taxable estates > $1 million)

•  Estate and Trust Income Taxes –  Estates and certain trusts must file tax returns

•  Inheritance Taxes –  Tax on property left by a person in their will –  Imposed by states: http://www.forbes.com/sites/ashleaebeling/2014/09/11/where-not-to-die-in-2015/

–  Tax rate generally based on heirs’ relationship to the deceased •  Gift Taxes

–  Tax on gifts given by one person to another in a single year –  Imposed by Federal government and two states (MN and CT) –  $14,000 annual federal gift tax exclusion in 2015; inflation indexed

Page 42: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

More About Estate Taxes •  It is important for affluent households to calculate the

value of their estate periodically to plan appropriately if net worth exceeds the estate tax exclusion –  Federal estate tax affects only about 0.12% of estates

•  May want to consider state estate taxes in retirement housing decisions

•  Portability of federal estate tax exemption between married couples is permanent (for now)

http://wills.about.com/od/2015-Estate-Tax-Rules/fl/Overview-of-2015-Estate-Tax-Gift-Tax-amp-Generation-Skipping-Transfer-Tax-Laws.htm

http://blogs.wsj.com/totalreturn/2014/10/30/estate-tax-exemption-for-2015-announced-by-irs/

Page 43: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Question What 2 states are the worst for

estate taxes?

Page 44: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Timing Is Everything! Scenario #1

$20,000 Original Basis $180,000 Current Value $160,000 Appreciation If you gift house DURING your lifetime, the recipient is obligated to pay capital gains tax on the full appreciated value

Scenario #2

Source: David Ennis, Esq.

$20,000 Original Basis $180,000 Current Value $160,000 Appreciation If you gift house through a will or trust, the recipient is ONLY obligated to pay capital gains tax on any appreciated value that occurs AFTER your death (theoretically $0)

Page 45: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Advance Directives Broad Definition Instructions about a person’s wishes, goals, and values regarding what will be done in case he or she become incapable of making decisions

Three Common Documents: • Living Will: Specifies desired medical treatment

• Health Care Proxy (Durable Power of Attorney for Health Care): Designates person to make health care decisions

• Durable Power of Attorney: Designates person to make financial transactions (e.g., pay bills, make deposits, sign checks)

Page 46: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

More About Advance Directives

•  Power of Attorney authorizes someone to legally act on someone’s until the creator revokes it or dies

•  Estate planning and advance directive documents need to be kept in safe, convenient places (copy with your attorney)

–  Original: Safe deposit box (with photocopies at home), desk drawer or file cabinet at home (fire resistant), wrapped in plastic in freezer?

–  Back-Up Copies: Cloud storage, scanned files on flash drive, family

•  Key individuals need to know where documents are kept! http://www.silvesterlaw.com/index.php?

option=com_content&view=article&id=59:where-should-i-keep-my-estate-planning-documents&catid=14:trust-housekeeping&Itemid=14

http://wills.about.com/od/preparingtodraftaplan/a/storedocuments.htm

Page 47: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Living Wills •  Allows you to specify whether or not to be kept on

artificial life support •  “Do Not Resuscitate” (DNR) orders; feeding tubes

•  Guide choices for doctors and caregivers when someone is seriously injured or near end of life

•  Avoids unnecessary suffering by patient •  Relieves caregivers of decision-making burdens •  Reduces disagreement among family members •  Not just for older adults!

http://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/living-wills/art-20046303

Page 48: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Letter of Last Instruction •  Not legally binding

•  Provides heirs with valuable information

•  Could include:

– Funeral/memorial service preferences

– Names of people to be notified of your death

– Location of bank accounts, safe deposit box, etc.

– Disposition of personal effects (untitled property)

Resource: Who Gets Grandma’s Yellow Pie Plate? http://www.extension.umn.edu/family/personal-finance/who-gets-grandmas-yellow-pie-plate/

Page 49: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Digital Assets •  Personal information that is stored electronically on

either a computer or online “cloud” server account •  Often provide access to financial assets •  Generally require a username and/or password or

PIN to access and can be difficult or impossible to retrieve if someone is incapacitated or passes away

Resources: http://www.extension.org/pages/72624/dou-you-know-your-digital-

assets#.VZ_4Wk3bKM8 (eXtension article)

http://njaes.rutgers.edu/money/pdfs/Digital-Assets-Worksheet.pdf (Digital Assets Inventory worksheet)

Page 50: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Estate Planning Resources •  Prepare Your Estate Plan (eXtension): http://www.extension.org/pages/15749/prepare-your-estate-

plan#.VZ_7k03bKM9

http://www.extension.org/pages/15800/prepare-your-estate-plan:-print-this-lesson#.VZ_8iE3bKM8

•  Money Talk: A Financial Guide for Women, Session

V, Planning for Future Life Events (Rutgers Cooperative Extension): http://njaes.rutgers.edu/money/pdfs/session-v.pdf

Page 51: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Estate Planning Resources •  Getting Ready for Estate Planning (Purdue

University): https://ag.purdue.edu/programs/areyouprepared/readyestate/Pages/default.aspx

•  Estate Planning (North Carolina State University Extension): http://forestry.ces.ncsu.edu/estate-planning/

•  Annual Limits Relating to Financial Planning (College for Financial Planning): http://www.cffpinfo.com/annual-limits/

Page 52: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Question What are some other good estate

planning resources?

Page 53: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Estate Planning Basics and Military

Issues

Page 54: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Disclaimer •  The opinions expressed are those of the

presenter and are not those of the Department of the Army or the Department of Defense.

•  This presentation is not intended to be a

substitute for legal or tax advice. Rather, it is designed to create an awareness of the need for estate planning and to help individuals become better acquainted with estate planning terminology and documents. –  State laws vary - be sure to check your state

laws

Page 55: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

•  Servicemember and spouse residence and domicile

•  Review probate v. non-probate asset identification

•  Estate Planning for children and blended families

•  Other Military Issues •  Extra Stuff

Briefing Topics

Page 56: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Servicemember and Spouse Residency

Page 57: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

•  Interchangeable under SCRA •  Denotes a permanent home, a place where

intend to return •  SCRA protects SM from taxation by state in

which serving under orders unless that state is also the SM’s domicile

•  Domicile and residence must be established •  NOT necessarily “home of record” – that’s where

SM lived when came on active duty.

“Domicile” and “Residence”

Page 58: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

•  Amended Servicemembers Civil Relief Act effective 2009: –  Spouse can keep established residence or domicile

for purposes of personal, income, or property taxes. (retroactivity for income tax only)

–  Has to be same residence as SM spouse –  Spouse cannot just “pick” a state of residence –  Spouse still has to comply with tax laws in residence

state –  States may probably challenge claims of residence

Military Spouse Residency Relief Act (MSRRA)

Page 59: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Probate v. Non-probate Asset Review

Page 60: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Probate v. Non-probate Assets – the “Orphan” Property Test -

Probate: “orphan” property Solely titled Just “joint” “Tenants in Common”

Non-probate: “Joint with Right of Survivorship” “Tenants by the Entirety” Pay on Death/ Transfer on Death (P.O.D./T.O.D.) (usually) Beneficiary Designations Intervivos Trust Property

60  

Page 61: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Probate Avoidance: States with “Transfer on Death” Statutes

•  Cars & Real Property: AZ, AR, IL, IN, KS, MO, NE, NV, OH, VA

•  Real property only – AK, CO, DC, HI, MN, MT, NM, ND, OK, OR, SD, TX (1 Sep 15), WA, WV, WI, WY

•  Cars only : CA, CT, DE, VT

61  

Page 62: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

How Living Trusts Avoid Probate Example

•  I own a house in my own name alone. If I die, my house is an “orphan” and must go through the probate process to be given to my brother who is the sole heir under my Will. I don’t want probate.

•  So, I establish “The Mary Benzinger Living Trust.” In that document, it states my house is to be transferred to my brother upon my death.

•  I will record a deed in land records selling my house from me, Mary Benzinger, to the “The Mary Benzinger Living Trust”

•  Then, at my death, my house is no longer an “orphan” because the trust own it. At my death the trust is followed and the trustee transfers the house to my brother outside of probate.

62  

Page 63: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Planning for Children

Page 64: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Poor Planning and Minor Children

•  Assets left to minor by name: –  Court appoints guardian of property and person –  Strictly controls finances –  Child inherits all at legal age!!

•  Special needs?? •  Bad idea to designate caregiver adult as

beneficiary –  Money belongs to caregiver… NOT to your child

•  Solution: –  Trust for minors in Will –  Designate the Trustee as beneficiary

Page 65: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Testamentary Trusts

- Established at Grantor’s death in the Will - For minor children, special needs... - You control when and how $$ get distributed

Separate trusts for each beneficiary Single trust for all beneficiaries Distribution of income at what age Distribution of the trust principal at what age.

Page 66: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

•  You have three children ages 15, 13 and 11. If you die, you want there to be a single pot for all the kids and the trust to last until the youngest turns 21.

•  You have two children ages 25 and 13. You don’t want the oldest to wait until the youngest turns 21 for his distribution so you’ll create a testamentary trust for only the youngest child.

•  You have a 25 year old daughter with a substance problem. You can create a testamentary trust for the life of the child (or an age of your choosing) with Trustee’s discretion on distribution if substance abuse is an issue.

Examples

Page 67: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

•  The “Residuary Trust” –  For married couples with children from their

relationship: Everything to my spouse and if my spouse does not survive me then in trust for the children.

–  For single parent: Everything in trust for the children.

•  Typical will structure: –  Devise of real property –  Devise of personal property –  Specific bequests –  Residuary estate (everything else not covered above)

Single Family Unit Plan

Page 68: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

•  Most states have statutory Uniform Gift to Minors Act or Uniform Transfer to Minors Act not both.

•  Good for small amounts •  Can be accomplished by beneficiary

designation: “to John Jones as custodian for Mary Smith under the Virginia Uniform Trust for Minors Act (21)”

•  Becomes child’s money at 18 or 21

UGMA/UTMA

Page 69: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

“Blended” Family Issues

Page 70: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

The “Blended” Family

For “blended” families, the first-to-die’s children may be left out in the cold

– Surviving step-parent has no obligation to support spouse’s biological children

– Survivor may change will, remarry, squander estate

–  “Elective” share forecloses disinheriting spouse completely

70  

Page 71: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

For blended families, the first-to-die’s children may be left out in the cold

Example: John has two children from his first marriage. He marries Betty. His will says everything to Betty and, if Betty doesn’t survive, then to his children. When he dies Betty gets everything.

Betty can: -change her will and exclude John’s children -remarry and leave everything to new husband -squander estate “Elective” share forecloses disinheriting spouse completely

Blended Family Issues

Page 72: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Blended Family Plan

•  The “Preresiduary Trust” - for children from prior relationship – Takes effect on your death (does not

require death of the spouse) •  The “Residuary Trust” – for children of

current relationship – Requires both parents to be deceased

72  

Page 73: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Other Military Issues

Page 74: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

DD-93 - Record Of Emergency Data

•  Lists emergency contact information •  Names the $100,000 death gratuity

beneficiary – Can name more than one –  If none named, statutory distribution applies – Can now name testamentary trust for minors

•  Names beneficiary for unpaid pay •  Names person authorized to direct

disposition of remains

Page 75: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Agent for Disposition of Remains

•  For SMs: DD-93 –  (1) Surviving spouse of the decedent.

(2) Blood relatives of the decedent. (3) Adoptive relatives of the decedent. (4) If none, a person standing in loco

parentis to the decedent. •  For Civilians: Many states have statutes

permitting you to make a binding written designation of agent.

•  Conflict b/w DD93 and state laws?? 75  

Page 76: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Servicemembers Group Life Insurance

•  Up to $400,000 life insurance policy •  Up to $100,000 life insurance for spouse

(FGLI) •  On SGLV 8286 - Can name beneficiaries

including testamentary trust (N.B. testamentary trust not created by designation alone, must be created in the Will)

Page 77: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Death Benefits for Military •  DD-93 $100,000 death gratuity •  If in govt housing and Line of Duty death, may remain in

housing for 365 days •  Dependency and Indemnity Compensation (DIC) (line of duty or

service connected) for spouses and children paid by the VA •  Survivor benefit - The initial annuity paid to a surviving spouse

is equal to 55 percent of the retired pay to which the member would have been entitled based upon years of active service if retired on the date of death (if the member was retirement-eligible).

•  The annuity is reduced by the amount of the monthly DIC payment awarded and paid to the surviving spouse by the Department of VA. When the surviving spouse reaches age 62, the annuity is reduced to 35 percent.

Page 78: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Extra Stuff

Page 79: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Estate Plan “Grab and Go” Book Make a small notebook with estate planning

information in it: -Copy of the Will and where original can be located -Copy of Advanced Medical Directive/Healthcare POA -Power of Attorney -Copies of beneficiary designations (banks, investments, insurance)

-List of Financial institutions you deal with -Internet access info (for example “See thumb drive in fire safe” , etc.) -Copy of funeral contracts -Letter of instruction -List of people/institutions you’d like contacted

79  

Page 80: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Health Care “Grab and Go” Book

Make a small notebook with emergency information in it: -Advanced Medical Directive -Power of Attorney/(in loco parentis for kids) -Medications and doses -Copies front and back of insurance cards and photo ID Cards -List of allergies -List of doctors, pharmacies (with fax numbers) -List of emergency contacts -Dates of important medical events/procedures -Extra blank pages for notes, etc.

80  

Page 81: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Resources

•  Video of my 2 hour Estate Planning Briefing:

https://www.dvidshub.net/video/407856/judge-advocate-generals-office-estate-planning-brief

Page 82: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Key Take-Aways •  Estate planning is not just for the wealthy: Even simple estates

need plans; no magic number

•  Incapacity can strike at any time: Failing to plan means court will appoint a guardian

•  Health Care PoA and Durable PoA designate an agent to act on your behalf

•  Wills must be property signed and witnessed

•  Intestacy cases distribute assets according to state law

•  Executor is personally responsible to pay debts and distribute property

•  Understand military rules for domicile and residence

Page 83: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Key Take-Away Applications •  Prepare or review your estate plan; look for gaps •  Have documents in place to address potential incapacity •  Review your PoA designees and discuss your wishes with

them (never “surprise” people with key roles after you die!) •  Review your will periodically and revise when needed •  Don’t die intestate! •  Prepare a letter of last instructions and digital assets inventory •  Think carefully about choosing to be an executor or

performing executor duties •  Know how to identify probate v. non-probate assets •  Take necessary steps to “non-probate” if possible •  Explore family dynamics and plan around them ( blended

families, special needs, etc.) •  Have a storage plan for your estate and health care

documents

Page 84: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Contact Information: Barbara O’Neill [email protected] Twitter: @moneytalk1

Mary M. Benzinger [email protected]

This material is based upon work supported by the National Institute of Food and Agriculture, U.S. Department of Agriculture, and the Office of Family Readiness Policy, U.S. Department of Defense under Award Numbers 2010-48869-20685, 2012-48755-20306, and 2014-48770-22587.

Page 85: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Evaluation and Continuing Education Credits

The Personal Finance Concentration Area offers 1.5 credit hour(s) from AFCPE for AFC-credentialed participants and 1.5 general CEUs from FinCert. for today’s webinar. To receive CEUs, please complete the evaluation and post-test found at: https://vte.co1.qualtrics.com/jfe/form/SV_agaoCS6ZJDQJTnL Must pass post-test with an 80% or higher to receive certificate.

Page 86: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Personal Finance & Family Transitions Upcoming Event Military Family Financial Transitions: Changes in Income, Benefits & Money Management

•  Tuesday, October 13, 2015 •  11 a.m. ET •  https://learn.extension.org/events/2163 •  For more information on MFLN- Personal Finance go to:

http://blogs.extension.org/militaryfamilies/personal-finance/

Page 87: Estate Planning Basics & Advanced Directives€¦ · • Estate planning has a number of steps and none of them are overly complicated or difficult • Specific issues exist for military

Find all upcoming and recorded webinars covering:

http://www.extension.org/62581

Personal Finance Military Caregiving

Family Development

Family Transitions Network Literacy

Nutrition & Wellness Community Capacity Building

This material is based upon work supported by the National Institute of Food and Agriculture, U.S. Department of Agriculture, and the Office of Family Readiness Policy, U.S. Department of Defense under Award Numbers 2010-48869-20685, 2012-48755-20306, and 2014-48770-22587.