You have money? You need an estate plan.
You have children? You need an estate plan.
You have a body? You need an estate plan.
Many of our clients don’t have estate planning documents when they come to us. If a client has no estate plan—or an outdated one—we recommend they work with an estate planning attorney to create one. Then, after the attorney has drafted a set of documents and implementation advice for our clients, we review it all.
And sometimes (not often; turns out estate planning attorneys are generally pretty good at their jobs! how nice) we find either mistakes or “sub-optimal” bits.
This blog post is not advice on “what your estate plan should say.” That’s better written by an estate planning attorney. This blog post describes those mistakes and sub-optimal bits that we come across most often. I hope you can use our experience to help avoid making the same mistakes in your own estate plan.
The mistakes we see clients (unwittingly) make
I am not an estate planning attorney.
More importantly, our clients are not estate planning attorneys. Which means that they generally don’t know how to read, understand, or interpret a lot of the documentation that is written for them. (Certain lawyer clients notwithstanding…) They might understand the words, but not the implications for them or their family.
The estate planning attorney is, obviously, the expert on the law. But not usually on the client.
So, between the client, the attorney (the expert on the law), and me (the expert on the rest of the client’s life and finances), I think we ultimately do a pretty good job of getting the clients an estate plan that serves them and their family and their values really well.
Here are the mistakes we’ve helped clients correct over the years:
A plan exists…but it’s not yours.
You might think that if you don’t have estate planning documents or you haven’t set your beneficiaries on your life insurance policy or 401(k), you don’t have an estate plan.
Wrong.
You have a plan. But it’s the state’s plan for you. Not one of your own design. There are all sorts of state-level and federal-level laws that will dictate what happens to you and your stuff and your children in the event of your death or incapacity.
If you don’t draft estate planning documents and designate beneficiaries and fund your trust, etc. etc. etc., you are tacitly saying, “Okay, state, you make all the decisions on my behalf!”
You don’t have all the necessary documents.
This is kind of a subset of the above mistake. You have parts of your plan, but not all the parts.
In practice, we’ve never found this to be a problem with clients who engage an attorney directly to work with. We’ve found this only when clients use their workplace legal benefits or some other service here an attorney isn’t personally guiding the conversation.
We have one client who “got their estate planning documents done” via their workplace benefits…and it contained only a will. No powers of attorney. No living will. No healthcare proxy.
Do you have all the appropriate documents for your situation? The standard suite of documents is, well, pretty standard:
- Will. If you are a parent, you absolutely need a will…to name the person who will take care of your child if you die. (Everyone else needs a will, too. It’s just that having a kid is the thing that finally persuades people to do the work.)
- General durable power of attorney (for financial decisions)
- Healthcare power of attorney (for healthcare decisions)
- Living will/advance medical directive. What healthcare decisions should be made if you’re unable to make them?
- HIPAA release. Who should have access to your healthcare information?
- Maybe a trust
All sorts of beneficiary “gotchas.”
Designating a beneficiary on an IRA, a 401(k), a life insurance policy, or a variety of other accounts is about the easiest way to make sure a certain person gets your money when you die. (On taxable accounts, it’s usually set up as a “Transfer on Death” designation, as opposed to a “beneficiary” per se.)
While they’re usually very easy to set up, there are a ton of ways that your beneficiary designations can go wrong.
If you don’t know how to correctly designate your beneficiaries, ask your attorney.
You don’t have a beneficiary set up on every account and policy.
The “easiest” way to go wrong when it comes to designating beneficiaries is simply that you haven’t designated a beneficiary for each account. And, if we’re going to gild the lily a bit, each account should also likely have a secondary or contingent beneficiary, just in case the first one dies before you do.
You’re married, but someone or something other than your spouse is the beneficiary, especially on retirement accounts.
Let’s say you have set beneficiaries on all your accounts. If you’re legally married, but your spouse isn’t listed as a beneficiary, that’s going to catch our eye.
Spouses get better treatment than anyone or anything else on many accounts: IRAs, 401(k)s, 403(b)s, and HSAs in particular. Life insurance benefits and taxable accounts can more reasonably be designated to go somewhere else, especially if you also have a trust (which could be the proper beneficiary).
If you check your beneficiaries and your spouse isn’t the beneficiary, just confirm with your attorney that this is in fact the right way to go, both in terms of “how do I minimize taxes?” and also “who do I want to end up with all my money?”
Your IRA/401(k) leaves some money to a charity and some money to a human.
The tax treatment of the money in your IRA/401(k) differs depending on who inherits it when you die: your spouse gets different rules than your child would, and both of those sets of rules differ from the rules governing a charitable beneficiary.
If you have both a human and charity as a beneficiary on an IRA, then the rules assigned to the charity might negatively impact how your human heir inherits the money, too.
The solution? It’s probably better to have two IRAs, one leaving money to the charity, and the other leaving money to your favorite humans. This way, the human gets the most tax-favorable distribution rules when they inherit your money.
Your minor children are designated as beneficiaries.
If your child is younger than 18 years old, designating them as a beneficiary can cause problems. They have to be adults to directly receive that money.
This isn’t necessarily a catastrophe. But you do want to consult first with your attorney to ensure that you want that money going as directly as possible to your child. (Maybe it’s better going into a trust managed on behalf of your child, for example?)
Then, assuming this is indeed the plan, you should consult with the custodian where you hold your account or policy (like Schwab or Transamerica) to ask how the beneficiary needs to be written so that someone you trust can serve as custodian of that money on behalf of your child until they’re 18.
Your Beneficiaries No Longer Make Sense.
Have you gotten divorced? Have you had a child? Have you drafted a trust? Have you gotten married? Have your children become adults?
All of these are reasons why your existing beneficiaries might no longer make sense. You will likely pick up on this yourself if you simply take the time to look at your beneficiaries.
Your will leaves money to a charity.
Why is this a problem? Well, maybe it’s not.
But if you have money in a traditional, pre-tax IRA/401(k) as well as money that passes through a will, it’s likely that leaving money to the charity from your IRA/401(k)—and leaving your other assets to human beneficiaries—is much more tax efficient.
Charities won’t have to pay taxes on the money in your pre-tax IRA/401(k). Human beneficiaries will. And taxable assets get a “step up” in basis upon your death, usually resulting in vastly lower tax bill for your human heir than they’d have to pay if they inherited the same amount of money through a pre-tax IRA/401(k).
You accidentally disinherit future children.
If your will, trust, or any beneficiary designations name your existing child by name and have no mention of the possibility for future children, then you risk disinheriting children you might have in the future.
Most documents I’ve ever seen say something like “My current child, Kim, and any future issue.” But sometimes documents simply say “My child, Kim.” Full stop. Be aware!
You name a contradictory hodgepodge of people for different roles in your estate plan.
Your estate plan might end up naming a lot of people for different roles: an executor for your will, an agent for your healthcare power of attorney, for your general durable power of attorney, a guardian for your kid, a trustee of your trust, etc. And all of these people should also have backups.
It can get confusing. So, make a list of all the different people and make sure they make sense together. Do you want the same person with general durable power of attorney and healthcare power of attorney and guardian for your kid? Or do you want to separate some of those powers?
Double check the names you’ve listed against your actual desires. Sometimes we just get confused and end up mistakenly listing the wrong person in the wrong place.
You will lose access to your child’s healthcare information when they turn 18.
One thing that many parents don’t think about is that, when their kids turn 18, the kids are no longer minors, and the parent no longer has a default legal right to their medical info. If you want to make sure you can get information about your child’s health while they’re, say, off at college, make sure you have a HIPAA release for your child.
You have a trust, but you haven’t “funded” it yet.
Many of our clients have revocable living trusts as part of their estate plan. The trust, basically, describes a set of rules that dictate how everything “inside” the trust will get handled. Trusts can be great in that they organize all your assets under a single set of rules, and they keep your estate information private upon your death. (Information about anything that passes through your will is publicly available.)
The catch is: You have to put stuff inside the trust in order for those rules to be useful. If there’s nothing inside the trust, the rules don’t apply to anything.
This is called “funding” your trust.
Your attorney most likely will give you a list of instructions for how to do that. We see these most commonly:
- If you own a home, you can assign the deed for your house to your trust (from your name). Your attorney can help you do that.
- If you own taxable investment accounts, you should be able to “retitle” the account so that it is owned by your trust, no longer by you. (Retirement accounts like IRAs and 401(k)s are owned individually by you. They don’t and cannot get retitled to the trust.)
- Some accounts that are owned by you can’t be retitled. The institutions that host the accounts don’t allow it. We see this most often with bank accounts. Check with your attorney if this is okay, but the most common workaround is to simply designate the trust as a “Transfer Upon Death” or traditional beneficiary for the account. The trust won’t own it during your life, but as soon as you die, the money gets shoved into your trust and the rules apply.
You let your kids have unfettered access to all your money too young.
Many of our clients have minor children (many are just wee babies!). These same clients currently have or will likely have a lot of money over the ensuing years (especially if we consider life insurance death benefits).
Our clients’ wills or their trusts talk about what will happen to that money when they die. Usually, our clients want that money going to their kids. Very natural.
What we expect to see in the estate planning documents is language like this: After your death, the money will be kept in a trust. While the money is in the trust, the trustee of that trust will distribute money from the trust to pay normal expenses for the child. At the age of 25, the child can get access to one-third of the entire amount of the trust. At the age of 30, the child can get access to half of the entire amount of the trust at the age. And at the age of 35, the child can get access to all the money that remains in the trust.
(This isn’t how the trust document actually words it. It is a legal document after all. But that’s the meaning.)
Why do it this way? While the child is young, and obviously unable to manage their own money, the trustee manages everything on the child’s behalf. The child doesn’t get their first exposure to Big Money until age 25, by which age they’ve hopefully learned a bit about prudent money management. But if not, they can only “squander” one-third of the inheritance. They learn a little something through that process, and five years later, they get another lump sum of money. Hopefully by then they’re a little wiser. Rinse and repeat by age 35.
We’ve seen estate plans that (unwittingly!) give the child full, unfettered access to 100% of the money as soon as they turn 18. Yikes! I don’t know about you, but I’m fairly sure me coming into $4M at the age of 18 would not have been a good idea. And I don’t intend to leave money like that to my children if I die while they’re still relatively young.
So, think about how you’d want your child to inherit your money. All at once? In stages? At what age(s)? Make that clear to your attorney.
Prioritize doing your estate planning with a good human attorney over doing it cheaply.
Many of the mistakes, omissions, and oversights I mention above have come from clients who did their estate planning via a low-cost, tech-first, low-touch, online solution. It turns out, estate planning is complicated! Not necessarily because we’re using complicated solutions, but because the law changes over time and your values and emotions and lives are complicated.
So, for my clients (and for myself), I lean heavily in the direction of engaging an actual human attorney 1-on-1 to do your estate planning work with you. Maybe for particularly simple situations, the high-tech/low-touch tools make sense? But it seems penny wise, pound foolish to me. You’re not paying for an estate plan every year. Hopefully you can afford to do it thoroughly, because you only have to update it every few years.
Here are some thoughts from estate planning attorney, Alan D. Khalfin, Managing Partner at Vaksman Khalfin, PC, with whom I’ve had many illuminating conversations over the years.
While DIY estate planning might save a few bucks upfront, it often ends up costing families more in the long run due to administrative and tax issues. This is because DIY plans are not tailored to specific asset, tax, and family dynamics, nor do they contemplate the numerous contingencies that may arise. Each client’s situation is unique, with specific nuances that need to be addressed, even if not overly complex.
In my trust administration and probate practice, I’ve seen firsthand the dangers of DIY estate planning materialize. Significant issues and unnecessary complexities often arise from inadequately prepared documents, many of which require court involvement to resolve. This can be costly and time-consuming, far exceeding the initial savings from using an online platform. Working with an attorney from the beginning can help prevent these pitfalls and ensure a smoother process during a difficult time.
It’s simply impossible for online services to provide the counseling required for tailored estate planning that works as intended. Counseling is essential during all phases of the engagement, including design, drafting, execution, and funding. And as life and assets evolve after the estate plan is in place, it’s important to address questions and changes with an experienced firm that has a relationship with you and knows your situation. While some online services offer “attorney advice” for an additional fee, it’s typically from a different attorney each time who doesn’t know your situation or the estate plan already in place. And given the compensation these services offer their attorneys, the chances of getting quality advice are slim.
Another practical consideration: if things go awry and a mistake was made by an attorney, the heirs can pursue that attorney’s legal malpractice insurance to make them whole. This is not possible with an online service, which is not a law firm and does not carry legal malpractice insurance. And of course, with an online service, the heirs have nobody to turn for assistance when incapacity and death occur.
Frankly, the only situations where I can condone DIY estate planning are: 1) if the client simply can’t afford the fees an attorney charges and would otherwise have no estate plan; 2) a temporary will, POA, and healthcare directive needed immediately for health or travel reasons, with the intent of doing a full estate plan with an attorney when able; and 3) POA and healthcare directive for young adults with no assets who aren’t ready for a full estate plan.
Revisit your estate planning when…
When should you go back to your attorney and ask them to review or replace your estate plan? Simply put, when something big changes in your life:
- You get married (or divorced)
- You have a child (or your child turns 18)
- Your wealth grows by a lot (especially if it’s “overnight,” by way of inheritance or IPO)
The simple passage of time is a good reason to revisit your plan. Maybe nothing needs to change. But 10 years can create a lot of change, cumulatively, which you’re not particularly aware of. Kind of like someone losing weight, a few pounds a month. Nothing looks different day to day…but if you see that person for the first time after a couple years, whoa!
Not to mention that changes in the law can render estate plans or certain provisions in estate planning documents wrong or useless.
Do you want to work with a financial planner who will connect you with an estate planning attorney and help ensure that your estate plan serves your finances, your life, and your family? Reach out and schedule a free consultation or send us an email.
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