Why You Need a Will

GIBSON&PERKINS, PC

Why You Need a Will

Why do you need a Will?

Perhaps more to the point -

Why do you need Estate Planning?

Estate planning is not only for the very rich -

It is for any one whose has a family; and

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Anyone who concerned about to whom and how their property –

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no matter what its value – will be distributed when they die

In order to fully understand why you may need an estate plan, you must first understand what estate planning really is‌

A concise definition of Estate Planning is the process of addressing the following concerns: 1. Taking care of your family; 2. Insuring the proper disposition of your assets; 3. Reducing the cost of dying; and

4. Addressing “living probate�.

Taking Care of Your Family One objective of estate planning is to ensure that your family is adequately provided for in the event of the death of one or both spouses.

The loss of one or more working parents will without adequate planning create a financial crisis for most families - even the death of a non-working parent can place significant additional financial burdens on the family.

Taking Care of Your Family This a concern is best answered and addressed by your financial planner and is normally beyond the scope of the attorney’s normal area of expertise But it is something you should address‌ Sometimes the answer is simply having adequate life insurance

The Proper Disposition of Your Assets • Fundamentally, an estate plan should fulfill your wishes as to how you want to dispose of your property at death. • This includes not only how property is distributed under the Last Will, but also the disposition of property not controlled by the Will, such as life insurance, IRAs, qualified retirement plans, and annuities.

The Proper Disposition of Your Assets • Just as important as to who is to inherit your property is the question of the way in which they are to inherit that property. • Some people are not equipped to receive money or property outright because they are minors or because of physical or mental disability or simply because of their inability to handle money, so for them, receiving the property in trust rather than outright may be appropriate.

The Cost of Dying • An estate plan should also be designed to reduce the cost of dying such as death taxes (i.e., the federal estate tax and the Pennsylvania Inheritance Tax) and probate costs, to the lowest possible level.

Living Probate • And finally, the estate plan should deal with the question of what happens if you are unable to handle your affairs during your lifetime because of a mental or physical disability. • This is sometimes referred to as "Living Probate".

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The Disposition of Your Assets

Probate v. Non-Probate It should be pointed out that a Will does not always determine the disposition of all or even most of the assets of an estate.

A Will only controls the disposition of what are termed “probate assets.�

Probate v. Non-Probate “Probate assets” can be generally defined as the property that an individual owns solely in their own name alone… …a bank account or investment titled in your name alone, for example

Probate v. Non-Probate Assets which are disposed of through the designation of a beneficiary such as: • IRAs, 401ks, • Qualified Retirement plans • Annuities • Life Insurance …are not probate assets and are not controlled by your Will

Probate v. Non-Probate These assets are termed “non-probate property.”

Non-probate property also includes Joint Property … … for example property you own jointly with the right of survivorship

What’s Your Plan?

If your estate planning is done properly then it should address the disposition of both your probate and non-probate property in a manner consistent with your wishes

What’s Your Plan?

Because estate planning is essentially about the disposition of your property upon your death, ‌you must first decide how you wish your property to be divided among your heirs.

What’s Your Plan?

For a married couple, the plan is often: > Upon the death of the first of the married couple to die the entire estate passes to the surviving spouse, and > Upon the death of the survivor in equal shares to the children.

What’s Your Plan?

This may be your plan, but you should also consider the following questions: 1. Is there any reason to treat children in a manner other than equally?

2. Is there anyone you wish to benefit from your estate beside your immediate family?

3. What happens if one of the designated heirs does not survive you?

4. Are there any of your heirs who have special needs or have other issues which would prevent them from inheriting property outright?

5. What happens if no one survives?

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Taking Care of Minor Children

Taking Care of Minor Children Having children adds a new and extremely important dimension to estate planning.

Your estate plan must adequately provide for minor children (those under 18) both in terms of: â—Ś Who is responsible for their care and â—Ś The manner in which property should be left to them.

Choosing a Guardian to care for your minor children and their property is one of the most important estate planning decisions you will make.

Guardian of the Person

If both you and your spouse should die, your children will have to be placed with a new family.

This can be an extremely disruptive process for the children, even if the new family are grandparents or other relatives.

Guardian of the Person

If your Will does not appoint a Guardian for your children, the Court will appoint choose the Guardian for you‌ ‌probably your closet living relative and maybe the last person you would choose.

This can be avoided if you appoint the Guardian that you want in your Will of guardianship.

Guardians There are actually two kinds of guardians for minors : â—Ś Guardians of the Property â—Ś Guardians of the Person

Guardian of the Property

The Guardian of the Property manages the money or assets held of a minor child.

We will discuss that type of Guardian shortly.

Guardian of the Person ◦ A Guardian of the Person, however, is the person who becomes a substitute parent for a child should that child's actual parents die or otherwise unable to take care of them.

◦ The Guardian once appointed serves as the child’s parent in your place until your children each reach age 18.

Guardian of the Person

A Guardian of the Person, however, is the person who becomes a substitute parent for a child should that child's actual parents die or otherwise unable to take care of them.

The Guardian once appointed serves as the child’s parent in your place until your children each reach age 18.

Choosing a Guardian

Here are some things you should consider in choosing the guardian for your children: ✓ Matching Attributes ✓ Multiple Guardians ✓ Shared Values ✓ Financial Stability ✓ Longevity

When selecting a guardian, be aware of the two types of Guardianship, and choose people with the skills or attributes that best suit those roles.

In other words, your accountant brother-in-law may be a terrific choice as guardian of the children's estate, ‌ ‌but his workaholic nature may make him a poor choice for guardian of the person.

Just as you can choose different people to be guardians of the estate and person, you can also choose more than one of each type if you have multiple children.

For instance, if you have a large family and know that the burden of raising multiple children or managing their assets would be too much to ask of one person, you can assign certain guardians to certain children.

Choose someone you know well and who shares your goals, values, and parenting style, whether you are selecting a guardian of the person or estate.

Make sure that your estate passes to the children in a way which ensures those assets are protected and used in a way which will maintain your children them until they are selfsufficient.

As discussed, it is our recommendation that your estate plan include a minor’s trust.

Choose someone young enough to see their responsibilities through to your child's adulthood, and in good enough health to withstand the challenges of childrearing.

Don't be influenced by others' wishes as to whom you should select to be your child's guardian.

Unless the person you've selected opposes your choice, this decision belongs to the parents alone.

The Way the Minor Inherits

Another important question is the way a minor inherits property – whether probate or nonprobate property

The Way the Minor Inherits ‒ In Pennsylvania, a child under 18 cannot inherit property valued in excess of $25,000, without a formal guardian of the property being appointed by the court.

Guardianship of the Property Outright transfer of property to minors is prohibited by Pennsylvania law.

If the amount of the transfer is under $25,000, the parent of the child must hold the property.

If the amount of the property is over $25,000, a guardian of the property must be appointed.

The Way the Minor Inherits Note: The guardian of the property may or may not be the same person who is appointed guardian of the person …

They are two separate jobs with two separate different sets of responsibility … …one is appointed to take care of the minor’s person and one to take care of the minor’s property.

There are several alternatives to having the court appoint a guardian of the property.

Alternatives

Guardian of the Property - First, you may appoint a guardian of the minor’s property – that is you may also appoint a guardian of the property left to a Minor under your Will.

Custodianship - Alternatively, you may appoint a Custodian over property left to a Minor as provided under the Uniform Gifts to Minors Act, and Trust -Finally you may could place the property in trust. The following paragraphs will discuss these alternatives.

Guardianship of the Property There are a number of reasons why a guardianship is not recommended: First, a sole surviving parent cannot be the person with sole responsibility for management of the funds.

Second, expenditure of the funds requires court approval, and finally the guardianship ends at age 18.

Custodianship

One alternative is a Custodianship under the Uniform Transfers to Minors Act. Generally, a custodian under the UTMA will enjoy greater freedom of action than someone who is appointed to a Guardianship.

However, the Custodianship terminates at age 21, giving additional time during which, the property may be controlled.

A Trust is the recommended alternative over both the Guardianship and the Custodianship for several reasons.

First a Trust maybe designed specifically to meet the needs of the individuals involved both in terms of how the funds are expended and how they are invested during the trust term.

Secondly, a Trust can continue until whatever age the testator feels appropriate even far into adulthood.

Trust

What is a Trust?

A Trust is simply a way of holding property for the benefit of someone The Trustee is the person who holds and manages the trust property for the benefit of the Trust Beneficiary

The Duty of the Trustee The Trustee is required always to act in a way which protects the Trust Beneficiary’s interest in the Trust

This is sometimes termed the “fiduciary duty”

Why Set Up a Trust?

Why would anyone want to set up and fund a trust?

The primary reason is that you're free to set terms for who gets what and when and under what circumstances.

Moreover, the trustee can manage the assets held by the trust for your beneficiaries under the terms you provide in the trust.

The Minor’s Trust A typical Minor’s Trust is established under the terms of your Will The Trust might provide that the trust property be held for the benefit of the minor until specific age, such as 25 With the Trust property available for to provide for their “health, education, support and maintenance” before that age.

Who Should be the Trustee?

The best choice for the Trustee of a Minor’s Trust is generally a family member The person you select doesn’t have to be a lawyer or financial adviser

They should be someone who is responsible and would make the same financial decisions you would make for your children

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Reducing the Cost of Dying

There are three principles costs which may impact your estate when you die: – The Federal Estate Tax – The Pennsylvania Inheritance Tax – Probate Expenses

The Cost of Dying

Death Taxes – The Federal Estate Tax The Federal Estate Tax is a tax based on the value of your entire estate – probate and non-probate – at the time of death The tax rate is 40% but only the excess of the estate over $11,400,000 - $22,800,000 if your married As a result the federal estate tax only impacts a small number of estates, however for those that are subject - good estate planning can often significantly reduce the impact of the Federal Estate Tax

The Pennsylvania inheritance tax is a tax upon the privilege of inheriting property.

Generally, all property owned by a decedent at death, which passes by will, intestacy or by operation of law, is subject to the inheritance tax.

Death Taxes – The Pennsylvania Inheritance Tax

Valuation is based on the fair market value as of the decedent’s date of death.

Death Taxes – The Pennsylvania Inheritance Tax The rate of tax depends on the relationship of the decedent to the person receiving a taxable transfer from the estate: – Property passing to a surviving spouse, and charities is not subject to the Inheritance Tax – Property passing to children and grandchildren is taxed at a rate of 4.5%, to siblings 12%, and all others 15%

Probate fees and the cost of administering your estate include – Funeral expenses – Attorneys and Executors fees – Debts of the decedent Often these expenses can be significantly reduced by having a well-organized estate plan

Probate Fees

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Living Probate

Living Probate Finally, the estate plan should address happens if you are unable to handle your own financial affairs due to mental or physical disability.

The estate plan should also address what might happen if you are not able to participate in decisions regarding your physical well-being.

Living Probate This process is sometimes called “Living Probate�.

The law provides that in either of the above circumstances, absent planning by the client, a legal guardian must be appointed.

Living Probate The guardian is chosen not by you but by an Orphan’s Court judge.

The guardianship proceeding can be expensive and potentially embarrassing to those involved.

It is easy to avoid Living Probate.

All you have to do is adopt : ✓ A Durable Power of Attorney and ✓ A Medical Power of Attorney.

How to Avoid Living Probate

How to Avoid Living Probate

A Durable Power of Attorney is a document appointing individuals you select to handle your financial affairs if you cannot handle them for yourself because of mental or physical disability.

A Medical Power of Attorney appoints the individuals that the you choose to handle your medical decisions if are unable to make for yourself.

How to Avoid Living Probate If you execute a properly drafted Durable Power of Attorney and Medical Power of Attorney, Living Probate is avoided and … …the people that you select will be in charge of your affairs

Living Will A Living Will is an invaluable part of an Estate Plan.

The Living Will directs that a person be allowed to die a natural death if they are incompetent and either in a terminable condition or state of permanent unconsciousness.

Those who have lived through this situation with a relative or friend often appreciate the value of having a legally enforceable Living Will.