Articles Posted in Estate Planning

This July 4th, the U.S. will celebrate its 241st Independence Day! On July 2, 1776, the Continental Congress voted in favor of independence. Two days later on July 4, its delegates adopted the Declaration of Independence, drafted by Thomas Jefferson, and declared the 13 American colonies independent states and no longer a part of the British Empire. Check out the infographic for some fun facts to help mark the holiday!

How will you be celebrating this Fourth of July?

 

Independence-Day

The internet has turned the paper trail of one’s life into virtual confetti of online accounts. Sure, it’s not hard to find someone’s Facebook, LinkedIn and Twitter accounts. You might even be able to guess a password or two. But you won’t guess them all, and even if you could you might be breaking the law; in many places, accounts can’t be legally accessed by anyone other than the holder.

All that gray area creates the potential for Twitter, Facebook, email and other accounts to sit stranded online in a state of suspended animation. At best, they’ll be creepy reminders every time they prompt friends and family to wish a happy birthday to the departed. At worst, they’ll keep important assets, like bank balances, locked away.

There are currently federal and state laws that may make it a criminal offense for anyone other than the account owner to access an account. This is true even if the owner gives another person permission to do so.  By the end of 2017, it is expected that almost every state will have enacted some form of the Revised Uniform Fiduciary Access to Digital Assets Act. RUFADAA will allow for users to request a digital assetsservice provider to give a fiduciary access either by opting in on an online tool furnished by the service provider or through one’s estate planning documents.

The biggest challenge facing your estate may be finding digital assets after a death. If your family or named fiduciary isn’t aware that you have a Dropbox account, no one may ever look for it.

We recently partnered with Directive Communication Systems which provides personal representatives with a powerful solution for managing personal accounts. When the time comes, DCS works with accounts to implement an estate’s final wishes which may include deletion, transference, memorialization or other instruction. Even a financial institution can be contacted to initiate next steps for the attorney. With DCS, you can be assured that accounts will be managed securely and estate administration will be handled smoothly saving both time and anxiety.  Continue reading

Not all of a deceased person’s property has to go through probate. If the property had a properly designated beneficiary, such as an insurance policy, an IRA or a 401(k), those do not go through probate.
Additionally, because of Wisconsin’s marital property law, everything owned jointly by a married couple easily transfers over to the surviving spouse. However, if real estate is only in the deceased spouse’s name there may need to be a probate. Continue reading

We recently had some discussions with a Madison family that was trying to make the most of their father’s IRA and had questions about naming the beneficiary of an IRA. The family wanted to make sure that after the father died, the IRA would benefit one of the children, and then after that child died, the family wanted the IRA to be shared among the other children.

retirement trustThe family kept asking: “Should we name the child as the beneficiary, or should we name a trust (for the benefit of the child) as the beneficiary.

One of the children was married to an accountant. His suggestion (whether it has merit or not is debatable) was, “Don’t name a trust as the beneficiary of an IRA because I hate trusts.”

One of the children stated, “Dad wants it left to a trust for the benefit of a child so that Dad has the assurance that when the child dies, the remaining IRA would go to the child’s siblings.”

What should they do?

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An affidavit of transfer is an alternative option to probate only when people have less than $50,000 in probateable assets, in other words, anything that would pass through the probate court. Typically that would include any real estate, bank accounts or other personal property which was held in the deceased person’s name. However, again the total of all assets would have to be under $50,000.

Another option for estates over $50,000 to avoid probate requires planning before the person passes away.

Another option to avoid probate is by creating a revocable trust and then transferring all of the assets into that trust. Upon doing so, if a person then dies, there would be no need for a court case. This is the best way for most people to plan their estates.

What Types Of Trusts Are Useful In Protecting Retirement Plans?

There are a number of schools of thought here. In our practice, we feel a revocable living trust is not a good vehicle to handle retirement plans. Often these are not drafted with the appropriate language to comply with the IRS service regulations to be what’s called a “see-through trust”. A Retirement Plan Trust is specifically drafted to comply with the service regulations and meet all the criteria so that if this trust is designated as the beneficiary, you will be able to preserve the tax deferral for those named beneficiaries to get the stretch advantages.

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No, it does not. It transfers by beneficiary designation. Much like life insurance that goes to the individual named in the policy, the retirement plan goes to the individual named on the beneficiary designation in the plan document. If you don’t have a beneficiary designated or the individual that you designated is deceased, the account value can wind up in your probate estate; and if this happens, the only choice is that all the taxes are due right away, and there is significant inflexibility. But in general, it will avoid probate.
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We’ve talked to many Wisconsin families about things that they had done in an effort to protect their money from all being sucked up by the nursing home costs which can exceed $100,000 annually. Lots of mistakes are being made by people who don’t truly understand the intricacies of the Wisconsin Long Term Care Medicaid law and regulations. While you won’t get all the answers in this post, you’ll learn what some of the common mistakes are. So… here are options that just don’t work. Continue reading

Retirement plans, including IRAs, 401Ks, 403Bs, and 457As, are not controlled by common estate planning documents such as wills and revocable living trusts. They transfer to heirs by a beneficiary designation. So whoever is named as the beneficiary when you initially signed that plans document, is the person that will receive the value in the account when you pass away.
This lack of control sometimes can be problematic, especially when an individual retirement saver has designated a beneficiary and has forgotten to keep those designations up to date. The plan documents will control where the money goes and your last will and testament will have no effect because beneficiary designations avoid probate. Your retirement plans will also not be controlled by a revocable living trust because the plans are not trust property; they are individual property.

Is The Title of A Retirement Plan Going To Be Transferred To A Trust Upon Someone’s Death?retirement

No, what happens is that beneficiary is contacted by the custodian. For example, you have an IRA in a brokerage account. You pass away, and hopefully, you have designated beneficiary’s, for example, your spouse as the primary beneficiary. The broker or your financial advisor calls up your spouse and says, “You are the designated beneficiary of this retirement account there is $100,000 in it and you have a few options for distribution. What would you like to do? Would you like to pay the income tax obligation now, cash it out and do whatever you wish with the money, or do you wish to inherit this IRA and stretch out the tax obligation over your lifetime keep it as your own retirement fund?” Now there are different rules as to whether spouses inherit or if children inherit, but that’s effectively what happens when a custodian handles the transfer to the designated beneficiary.

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A lot of people do not understand the landscape of how retirement plans pass to beneficiaries. They do not necessarily understand the particularities and technicalities of how one inherits and their choices presented by fund custodians. IRAs have only been around since the mid-1970’s and we are only beginning to see multiple generations inheriting them. The lifetime distribution option (stretch IRA) is an even more recent addition to the mix so the idea of not just simply cashing it out is relatively new. Whenever you have these options and choices, people just aren’t savvy enough. Continue reading