Estate plans are vital. And everyone should have one. Just be sure you’re covering your bases. My experience says even highly competent estate planning attorney will fail to ask important questions. So you need to ask some of these questions yourself . . . and be prepared to direct your attorney in ways he or she might not normally think to go or, perhaps, never has gone before!
It is my understanding that, traditionally, estate planning focused on where you want your financial resources to go, what you want them to do, who you want to control them, etc., when you die.
Nowadays, it also includes plans for how you want your financial affairs to be handled during any period of time in which you are no longer competent to make decisions. And it includes answers to questions like what you want family members and medical personnel to do when you are physically still alive, but cognitively unaware . . . and there is no reason, humanly speaking, to expect you to recover.
What I discovered is that, when it comes to your financial assets, estate planners—attorneys, CPAs, investment advisors, life insurance salespeople, and others—are happy to help you think through how you may want to divide your assets among family members.
If you own a business, they will help you plan how to pass it on in a tax-efficient manner.
If someone in your family has special needs, they will seek to ensure that that person’s needs will be taken care of.
They will definitely help you think through end-of-life care concerns.
But after that, what do you need?
Our estate planning attorney, we were assured, was “one of the best” in our state, a member of the state bar association’s committee that helps define best practices for estate planning attorneys.
And what he included in his plan seemed very reasonable to Sarita and me. We saw no reason to question any of his proposed solutions to the problems he was seeking to help us avoid (many of which we had never considered).
And so, when he was done, we were very happy with the Pour-Over Wills, the Revocable Living Trusts, the Living Wills, Powers of Attorney (both Durable General and Durable Medical), and Advanced Medical Directive documents. We were thrilled with his Generation Skipping Tax strategies and the Irrevocable Life Insurance Trust he created.
Everything made sense to us and the plan prepared us for far more than what we would have been prepared for without it.
SIDE NOTE: I urge every adult to get at least a basic estate plan in place. If you don’t create your own, I can assure you, the state in which you live has a wonderful plan for your assets, and it will happily direct them to those causes and purposes that it has pre-established for you in the likely event you have failed to make your own plans. (Fifty-three percent of all Americans, I am told, die intestate—i.e., without a will.) Please, don’t you be one of them!
We were thrilled with our plan for almost ten years. That is, until we hired a “legacy planner” who promised to bring us a step further than we had come to date.
Biggest discovery: Maybe there’s something more to this matter of estate planning than leaving everything to members of your family at death.
Some questions I wished our attorney had asked us (and didn’t):
- What are your passions outside of your family? What are your charitable interests? Might you want to leave anything to them?
Our estate planning advisors never discussed these matters with us. At least not beyond possibly suggesting that, by giving certain kinds of gifts today, we might reduce our tax liabilities. But if we are thinking beyond ourselves with the kind of bigger purpose goals I mentioned in my last post, I think it would be well worth your time to think through these questions.
Besides raising questions about charitable goals, it was our legacy planners who got us thinking about the actual size of the inheritances we might be giving . . . and to whom and when we might want to give them.
Our attorney and CPA, focused solely on reducing taxes and maximizing flow-through, never questioned how large our estate might be . . . nor how, if our estate grew, our sense of need to maximize flow-through might change.
They didn’t suggest we do some calculations to find these things out.
But our legacy planners asked these questions. And helped us do some of the math to help find answers to the questions:
- “If we assume an inflation rate of __%, and a growth in revenue inside your company of __%: what kind of legacy will you have in 40 years (which is about how long you should live, based on current actuarial assumptions)?”
The numbers were rather scary, to tell the truth!
Follow-up question:
- “If your estate is worth that much—or something close to that—do you believe it will be helpful to your kids for them to inherit that money?”
Most especially:
- “Do you think such an inheritance will make sense for your heirs when—if you live as long as the actuaries say you are likely to live—your kids will likely be in their 60s and early 70s . . . and your grandkids will likely be in their 40s and 50s?”
- “Might you want to be thinking of inheritance now—while you’re still alive (“Be ‘giving while you’re living’ so you’re ‘knowing where it’s going’ ”)?
- “Might you actually do your children and grandchildren a better service by letting them inherit something today, while you are still alive, and they are starting out . . . while they are in their 20s and 30s?”
The legacy planner actually spoke with our attorney and CPA before he spoke with us about these matters. He asked them if they had any idea what kind of numbers we might be working with when Sarita and I would be in our mid-80s or 90s.
Both men, highly respected members of the estate planning community of professionals, said they had never calculated those kinds of things for any of their clients. . . .
Further questions the legacy planners asked us along the lines of “giving while we’re living“: Would such gifts actually increase our joy in giving to the causes we believe in: because we would, indeed, be “knowing where it’s going” . . . and, thus, have greater control over how our gifts are being used?
As already suggested, our attorney never asked any of these questions . . . nor any questions even remotely related to such ideas.
As a result, not only did our estate plan not reflect what it should have—something that, happily, we were able to correct before we died—but it incorporated at least one item that, once we understood the implications, we didn’t want . . . but we couldn’t eliminate.
Specifically: upon our attorney’s advice and with the encouragement of our CPA, we agreed to have the attorney create an irrevocable life insurance trust. The trust pushed a certain quantity of funds toward our children and grandchildren.
But once we reevaluated our circumstances and our desires in light of the additional questions our legacy planners asked, and once our legacy planners created a new plan that incorporated these additional interests and concerns, we discovered that the life insurance trust actually detracted from our long-term goals.
The problem: the trust was (and is) irrevocable. We can’t “take it back.” The beneficiaries of the trust can’t be changed. And the trust itself must go on.
Now, like a bad tattoo, we have been able to “cover over” a fairly substantial portion of the mistake. We had to buy the insurance back out of the trust (at substantial cost) and put it somewhere else where it would do more good. Meanwhile, however, the trust continues to exist and our children and grandchildren will receive the funds we had to put into the trust to buy the insurance out of it.
In sum: If we had left the “plan” that our attorney put together as it was, it would have fulfilled his assumed goals for us. With the assumptions he made, he would, indeed, have maximized cash flow-through to family members. Moreover, the structure would have ensured that the impact of estate taxes on our family would be minimal. However, when we saw the numbers, we agreed with our legacy planners that, our estate plan didn’t reflect our lifetime desires.
Beyond that, however: our legacy planners didn’t merely ensure our estate taxes would be paid (by insurance) upon our death; they were able to set up a plan by which no one in our family should need to pay any taxes. Instead, our charitable interests will receive massive cash inflows even while our family members will be able to inherit full ownership and control of the family business.
Summary
- Prior to going to an estate planning attorney, or acquiring basic documents like what you can find online (see, for example, Nolo’s WillMaker Plus from Quicken or LegalZoom’s Estate Plan Bundle), gather your basic estate information and think through where you will want your various assets to go.Many charities offer wonderful information gathering tools. And they will be sure to suggest charitable as well as family recipients of your largesse!
I just did a search online using estate plan information gathering charitable and found a nice document from an attorney in Indiana as well as numerous other similar forms.
- Ask yourself questions like those I quoted above from our legacy planners. While your final bequests will be made at death, think through whether and to what extent you may want some or all of your children’s inheritances to be distributed prior to death—so that some or all of the inheritances you give at your death will go to entities or causes other than your children.
- Remember that you need to review your estate planning documents on a regular basis, And they can—and probably should—be revised every few years. However, certain decisions you make and certain structures you create are, indeed, irrevocable. They cannot be unmade or undone. You may be able to “cover” them over a bit, but such covering can be costly and will likely never be quite as good as what might have been if you had never made the mistake in the first place. “Go slow” with these more advanced techniques.
My opinions for what they’re worth. Please recognize that I am not an attorney and I am speaking solely from my own experience—which may or may not be valid in your circumstances.
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