National Estate Planning Awareness Week runs from October 19-25, 2020. First celebrated in 2008, this week highlights the importance of estate planning and its vital role in your overall financial health. By some estimates, up to 50% of Americans have not prepared any estate planning documents, which include documents effective both during life and after death.  The uncertainty of this year only highlights the importance of creating or updating your estate planning documents.

Many people assume that estate planning documents are necessary only for individuals or families with a high net worth; however, everyone can benefit from having an estate plan. The most significant benefit is that estate planning documents, which can include a Will, Revocable Trust, and/or various types of Irrevocable Trusts, allow you to choose the beneficiaries of your estate, the amounts they receive, and how they receive those amounts. Without an estate plan, the intestacy laws of your state will determine to whom and how your estate will pass.  It is entirely possible that intestacy laws may not distribute your estate how you would expect it would pass, or how you would want it to be distributed. An estate plan can also take into account various concerns involving the distribution of an estate, such as beneficiaries who may need time to develop prudent money management skills; those with special needs to ensure continued eligibility for various public benefits; or beneficiaries with significant wealth on their own or liability concerns who want to keep assets out of their own estates. Intestacy laws do not account for these scenarios.

Developing or updating an estate plan also ensures that your estate has accounted for the various taxes that may be assessed as a result of your death, or any changes in the law. In the last year alone a major new law with respect to the distribution of inherited qualified plans, the SECURE Act, took effect; and there may be accelerated changes with respect to the Federal Estate Tax on the horizon. Creating an estate plan or revisiting your older documents allows for your estate to be up to date with the current legal landscape.

Estate planning documents also include Powers of Attorney for both financial and medical decisions, as well as Advance Medical Directives (“Living Wills”) for end-of-life decisions. These documents are effective during your lifetime, and allow another individual (or individuals) to make decisions on your behalf if you are unable to do so. Financial and healthcare Powers of Attorney and an Advance Medical Directive clarify who may make these important decisions, as well as your wishes, before a true “need” arises.

    Just as you regularly review your budget and meet with a financial adviser to discuss short- and long-term objectives, meeting with an attorney to update (or create!) your estate plan is an important step to ensure your personal and financial wellbeing.

Shortly after Aretha Franklin died at the age of 76 after a battle with pancreatic cancer, documents filed in the Probate Court of Oakland County, Michigan by her family revealed that the legendary singer, who was estimated to be worth $80 million, did not execute a Last Will and Testament. Aretha Franklin now joins a growing list of celebrities, including Prince, Amy Winehouse, Kurt Cobain, Bob Marley, Jimi Hendrix, and Tupac Shakur, who all died without executing a Will or other estate planning documents. For many of these celebrities, their estates were, or are currently, subject to lengthy and protracted probate proceedings that played out for the media.

There are significant benefits to developing an estate plan, which can include a Will, Revocable Trust, and/or Irrevocable Trusts, even if you are not a celebrity.

First, and perhaps most importantly, developing an estate plan allows you to choose the beneficiaries of your estate, the amounts they receive, and how they receive those amounts. Individuals, like Aretha Franklin, who die without an estate plan will have their assets distributed according to their state’s intestacy laws or, for assets that contain beneficiary designations (such as IRAs, 401ks, and life insurance), according to the terms of the account provider. It is extremely difficult, if not impossible, for the personal representative of an estate to argue after an individual passes away that the intestacy rules should not apply when there is no Will or estate plan.

Second, creating an estate plan gives you flexibility to decide how your beneficiaries will receive assets. An estate plan could involve the creation of trusts, which allow the beneficiary to have the use of funds without having direct access to them. Trusts can be a useful tool for minor or young beneficiaries who may need time to develop prudent money management skills; for beneficiaries with special needs who cannot own significant assets outright without jeopardizing necessary public benefits; or for beneficiaries with significant wealth on their own or liability concerns who want to keep assets out of their own estates.

Third, an estate plan can, depending on the circumstances, allow you to reduce taxes that your estate may be subject to at your death. There are numerous estate planning techniques, many of which involve the use of trusts, that can be developed and implemented to reduce estate, inheritance, and/or generation-skipping taxes that may be assessed against an estate. These tax-planning options are extremely limited for intestate estates.

Fourth, the development of an estate plan may allow certain aspects of the estate administration to be completed in a more private manner than available for intestate estates. Probate records are public documents, so many of the details of an estate administration are available to the public. While a Will must be filed as part of a probate record, many trusts that could be created under an estate plan are not included in the probate record, and therefore do not become public. While public interest in the administration of your estate may be less than the interest in Aretha Franklin’s or Prince’s estates, the ability to shield some aspects of an estate from the public can be beneficial.

So, in the words of the late, great Queen of Soul...."You better think......"

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