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Wills and Estates

Myths of Estate Planning

Today, I want to address some myths about estate planning, probate, and end of life issues. Some have been mentioned before but here are my Great Eight (in reverse order):


My Power of Attorney Has Me Covered A power of attorney is cheap, and it has its uses, but transferring assets at death is not one of them. A POA terminates on your death, so it’s a useless as a tool for handling your estate.

My Spouse or One of My Kids Can Handle My Affairs Often, a spouse or child can serve competently as a Personal Representative or Trustee. Not always, though, and even if a spouse or child has the skill-set to handle matters, family conflicts or time constraints can create problems. In these situations a Licensed Fiduciary can be an excellent alternative.

Without a Will or Trust, the Government Takes My Money Intestacy occurs when you die without a proper will or trust. In that event a set of rules apply about who gets what. Basically, your spouse takes; if you’re unmarried, your kids get everything; if you have no kids, everything goes to your parents; dead parents, and everything goes to your siblings, etc. The government takes nothing, except in the rare instance where no heirs can be located. Having a will or trust provides you with the ability to make decisions, but intestacy follows a path that “keeps it in the family.”

Probate Costs a Fortune Very expensive probate cases happen, most often when devisees—the people who take under a will—fight with one another. (Attorneys sell smarts and time, and when people fight, time gets spent. Lots of it.) Without a fight, probate cases can often be handled for a few thousand dollars, sometimes for about as much as an attorney or document preparer will charge you for a fancy trust. (By the way, trust battles occur too!)

With a Probate Everybody Knows My Business Probate files are accessible. However, estate inventories need not be filed with the court, accountings can be filed under seal, and many other documents qualify for “sealed” status. (Opening a “sealed” document requires something akin to an Act of Congress.) So, privacy should not be a big concern.

Without a Trust, There Will Be a Probate In many cases, even with people who die with substantial assets and a will, good planning can avoid the need for a probate. Tools like pay-on-death bank and brokerage accounts, beneficiary deeds for real property, and gifting of personal property before death can avoid the need for a probate and the expense which is often associated with a trust.

The Government Taxes All of Us at Death The federal lifetime exemption for estate and gift taxes—for people who die in 2016—is $5,450,000 per person, ($10.9m for a married couple.) If you have or will have sums approaching those numbers—and they do adjust for inflation, and Congress won’t likely lower the exemption—federal estate and gift taxes may matter; otherwise, you’re in the 99%+ category, as far less than one percent of all estates pay any federal estate tax. (Here’s a link to information about state estate and inheritance taxes.)

Estate Planning Is All About Taxes Many things matter as you plan for not being around. A child with special needs. What to do with a successful (or not so successful) business? Supporting organizations that make a difference? Honoring people who have made your life better? Taxes almost never matter and, generally, planning with estate taxes in mind limits options and costs money.

Some final thoughts. First, I draft plenty of trusts, and they are appropriate in many cases. Unfortunately, in too many instances an expensive trust document gets sold—often by a non-attorney who markets against “those attorneys”—in an inappropriate setting. And, in many of these cases, assets never get transferred to the trust, making it a truly worthless document.

Second, if you have estate planning documents and they have not been reviewed in several years, you’re overdue for a review. Generally, the more you have, the more need there is for a review, and you should be seeing a professional whenever something significant happens in your life. My rule of thumb in normal circumstances? Every five years.

Finally, people don’t like to deal with the notion that they will die. Imagine! Use Write-A-Will Month, March, as a motivator to “get it done.”


Contributing Attorney Writer: Mark Rubin is an attorney at the Law Office of Mark Rubin where he practices in many areas including estate planning and probate.




This website has been prepared for general information purposes only. The information on this website is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. Also, the law may vary from state-to-state or county-to-county, so that some information in this website may not be correct for your situation. Finally, the information contained on this website is not guaranteed to be up to date. Therefore, the information contained in this website cannot replace the advice of competent legal counsel licensed in your jurisdiction.