Attorney Shannon Wynn: Check your beneficiaries lately?

 Wynn at Law LLC always encourages estate planning clients to check who they’ve elected as beneficiaries of their accounts and policies. Not all assets are distributed by or through a will. Some accounts, such as retirement funds and life insurance policies, let owners name beneficiaries for that particular asset.

Here are a couple of examples where missing or ‘wrong’ beneficiary listings can be a hang up for your decedents.

No named beneficiary. These days with paperless documents, most insurance agents can’t click OK on your policy if the beneficiary field is left blank. Older policies – not the case. You may have left it blank because you were in a rush, didn’t see it, or thought you would fill it in later. Now is later. Without a named beneficiary, an account will need to go to probate court, where a judge will decide who gets the money.

Former spouse named as beneficiary. Face it, surviving a deceased spouse or divorcing a living one involves tons of legal paperwork and decisions. One many people forget during this life change is to go back and designate another beneficiary. Ex-spouse doesn’t mean ex-beneficiary… a view that was recently upheld by the Supreme Court. Named beneficiaries get the proceeds, no matter how estranged the relationship. Imagine the family chaos following your passing if the ex got the money you wished for your current spouse or your children.

It’s a good idea to review three things: Old pensions in which you are vested, 401(k) plans still sitting at former employers, and every life insurance policy still in force with your name on it. By the way, that includes annuities, which are life insurance contracts. Wynn at Law LLC likes to have clients review beneficiary information after every life change such as retirement, the births of children or grandchildren, marriage or divorce. You want your money to go where you want it to go.

*The content and material in this original post is for informational purposes only and does not constitute legal advice.  

Photo by Robert Churchill., used with permission.

Attorney Shannon Wynn: Remember the safe deposit box

Estate planning clients often give much thought to avoiding probate (see related article). Wynn at Law LLC helps jog your memory to make certain you haven't 'forgotten' an asset that would trigger probate. A common one forgotten, as an example, is the safe deposit box. Yes, banks still have them in the vault. In fact, it's a common storage place for the Last Will and Testament. Why not? It's safer than a home safe, and someone always has a key. But what else is in there?

Wisconsin allows an ‘interested party’ to access the safe deposit box to retrieve the Will. On the death of a sole owner of a safe deposit box, a safe deposit box company (bank) allows 'limited' access to the box by the spouse or next of kin of the deceased lessee, a court clerk, or other interested person for the only purpose of looking for a Will. The assets also in the box are not to be touched. While that interested party is in the box, he or she is supervised to make sure that doesn't happen. If the Will itself doesn't name anyone to the receive the safe deposit box assets, probate may be necessary.

A strategy to consider is naming an adult child or family member or friend as a joint owner of the safe deposit box, with a key. This alleviates the problem of having a sole owner of a box pass away. Then the Will can be retrieved and so can the assets without going through probate. (Note: There could be tax considerations when the joint owner takes possession, it only avoids probate because the joint owner of the box is considered joint owner of the asset.)

By the way, if there is a sole owner, whomever is the 'interested party' is may have to furnish proof of death as it deems necessary (e.g., the death certificate of the owner). That could delay things as well. With a joint owner who is a keyholder, they have access anytime. This could be a time-saver in the case of a loved one's passing. Just remember, that joint owner will also have access to the safe deposit box contents while the loved one is living, too.

 

*The content and material in this original post is for informational purposes only and does not constitute legal advice.  

Photo by Arman Zhenikeyev, used with permission.

Attorney Shannon Wynn: Transfer on Death Deeds eliminate probate

When any of Wynn at Law LLC's clients own real property in Wisconsin, we look at a Transfer on Death Deed (commonly called a TOD Deed or a TODD) to see if it is a suitable fit for their estate plan. It can sometimes wipe out the need to go to probate court, which is a time and cost saver.

As our earlier article pointed out, if you have $50,000 or more in probate assets, probate court comes into play when distributing assets. Probate assets are all assets NOT automatically transferred to another person when the owner passes. Life insurance proceeds, for example, skip probate because a beneficiary is identified. So, if assets can avoid probate, why not place a TODD on an asset like a vacation home to transfer it directly to beneficiaries, such as the kids?

The answer in some cases is that if you need to protect assets – for or from your children – you might not want to transfer them on your death. For the minor kids, you might want to transfer the asset to a trustee for their benefit until they're older. In the case of adult children who may have creditor problems or a looming divorce, you might again want a trustee instead of transferring the property to them directly. Otherwise, a TODD making assets 'unprobatable' is an alternative for every Wynn at Law LLC client because the property doesn't need to be owned free-and-clear. You can have a mortgage, a second mortgage, even a line of credit against the property and still use the TODD to pass it on… and skip probate.

Let's say you had a car and some bank assets totaling $49,995 and a $89,000 getaway cabin up north. All in, the assets would require probate, but if a TODD was placed on the cabin, the cabin passes to your heirs (they still get the debt if it was mortgaged, by the way) and the rest of the estate would avoid probate because it's under the $50,000 limit.

Your accountant, or your beneficiary’s, will point out that there may be tax benefits to this strategy as well, because the transfer isn't considered a 'gift' subject to gift tax. The TODD may also reduce or eliminate capital gains taxes if and when the property is sold by the beneficiary.

Even if you have the Transfer on Death Deed, you can still choose to sell a property while you're living: It's yours! The TODD designation does not give the beneficiary 'ownership' of the property while you're alive… if the document is drafted properly. Call an attorney.

 

*The content and material in this original post is for informational purposes only and does not constitute legal advice.  

Photo by Ekaterina Kondratova, used with permission.

Attorney Shannon Wynn: What exactly is ‘probate'?

Wynn at Law LLC provides estate planning services – wills are one example. ‘Probate’ is a commonly used term in estate planning, especially these days when many clients have an estate worth more than $50,000. First, a bit on probate… then why $50,000 is an important number.

Probate is a court process whereby a will is legally ‘proven’ as the true last testament of the deceased. Essentially, the document is reviewed and validated. It came to be a more common process in the 16^th century when greedy relatives (or non-relatives) began making phony claims on a dead person’s property. It comes from the same Latin roots as ‘probation.’ In probation, a person has to prove he can live within the law… in probate, a document has to be proven to be authentic and created within the law. Probation and probate have nothing else in common other than the root word, meaning proof.

The ruling of a probate court is the first step in resolving all claims and distributing the deceased person's property in a will. The court officially designates an executor to carry out the will’s instructions. Usually, the executor is named already when the person made out the will. If a will is contested, it happens in probate court.

What else happens in probate?

·         Creditors must be notified and legal notices published.

·         Homes/property/other possessions may have to be sold off to pay those debts, or otherwise make distributions evenly to the beneficiaries.

·         If there is a lawsuit over the death, or the deceased was party to pending lawsuits, those are noted and settled (if possible).

·         Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds. Working with an estate planner can minimize these.

Some assets, like life insurance, are not counted because they are transferred directly to the beneficiaries and avoid probate. Death benefits are not included in an estate. Living Trusts – usually created to hold large assets – also are excluded from probate. Joint tenants (e.g. husband and wife) are allowed the joint property in a ‘right of survivorship’ if one dies, and this, too, avoids probate. Bank or investment accounts designated Transfer on Death (TOD) avoid probate as well. Real Estate can also be re-titled to avoid to probate, through tools such as a Transfer on Death Deed (TODD).

Here’s where the $50,000 comes into play. For estates in Wisconsin, after all those subtractions, the small estate threshold is $50,000. If the estate is valued below that and there is a will, probate is avoided. If there is no will, or if the estate is more than $50,000, probate is required. Most probate proceedings in Wisconsin aren’t very onerous. They are informal, with no squabbles between beneficiaries and few creditors. This is little more than an application to the court, followed by a summary judgment. A more formal proceeding requires the court to help distribute assets.

Wynn at Law LLC works with clients to secure their assets in a will or trusts to hold up in probate, or avoid it all together.

*The content and material in this original post is for informational purposes only and does not constitute legal advice.  

Photo by Marzky Ragma Jr., used with permission.