Q&A: How long should you keep paperwork about an estate?

Dear Liz: My mother-in-law died 11 years ago and had money everywhere. Thus, I have five drawers full of paperwork. With the exception of the IRS documents, I would love to throw everything out (shredded, of course). How long do I need the paperwork?

Answer: Two of the biggest risks to a settled estate are an IRS audit and challenges from unhappy heirs or creditors.

State laws limiting such challenges differ quite a bit, so you might want to talk to the attorney who helped you handle the estate to make sure you’re out of the woods. If there’s any doubt, you can always scan documents before you shred them so that you have an electronic record.

If it has been more than seven years since the estate and final income tax returns were filed, an audit is highly unlikely. It’s not a bad idea to hang onto tax returns indefinitely, though. Again, supporting documentation can be shredded, although you may want to scan a copy first if you’re nervous about discarding anything.

All this assumes that the estate was properly settled — that your mother-in-law’s property was inventoried, creditors paid and distributions made according to her will if there was one or state law if there wasn’t. If the proper steps weren’t taken to legally close the estate, you’ll want to talk to an attorney immediately about how to set things right.

How to structure an inheritance for a spendthrift heir

Dear Liz: My financially illiterate, almost 50-year-old son will be living off his inheritance when I die. A good part of his life was spent drifting, so I have no idea if he will receive Social Security or how much. How do I structure his inheritance so that he won’t fritter it all away in a short time and then expect his dependable sibling to shoulder his burden?

Answer: A spendthrift trust can keep your son from frittering away his inheritance. These trusts limit the beneficiaries’ access to the principal — the amount you put into the trust. This limitation prevents creditors from accessing the principal as well, and he won’t be able to borrow against the trust, either.

That’s the good news. The bad news is that you have to find someone to be the trustee, and that probably shouldn’t be his sibling. Putting one sibling in charge of another’s money is a good way to ensure lifelong enmity. Look instead for a professional trustee at a bank or trust company to fill this role.

A spendthrift trust is not a do-it-yourself project. Hire a good estate-planning attorney with experience in this area. You’ll need to make a lot of decisions, such as how payments will be determined, how often they’ll be made, whether the trustee will have the power to deny payments or to give your son access to the principal if his circumstances change.

Q&A: Another tool to avoid probate

Dear Liz: You recently cautioned a reader whose mother wanted to add her to a home deed to avoid probate. Please tell readers that they now may be able to avoid probate for a residence by using a transfer on death deed, similar to what’s available for bank accounts and cars. California recently enacted this option and at least 25 other states also offer this tool.

Answer: Thank you for pointing out the availability of this option, which can make it easier and less expensive to transfer a home to one’s heirs. It still would be smart to consult an estate-planning attorney, since probate isn’t the only end-of-life issue to address.

To recap, adding a child’s name to a home deed can avoid probate, the court process that otherwise follows death. But the addition is considered a gift for tax purposes and could cause the loss of a valuable tax break known as a step-up in basis.

In many states, probate is relatively quick and not that expensive, so trying to avoid it may be counterproductive. In other states, notably California, probate is expensive and protracted, which makes probate avoidance something to consider.

Q&A: Social Security death benefits for a divorced spouse

Dear Liz: I have heard conflicting information about Social Security death benefits for a divorced spouse. We divorced after 18 years and I have not remarried. What percent of his benefit is available to me?

My own Social Security is low as it started as a disability payment and then converted to regular Social Security when I turned 65.

To the best of my knowledge, my former spouse was getting the maximum Social Security benefit. He was a very high wage earner. Can you provide a simple-to-understand answer? I have received conflicting information from numerous sources including three separate people at the Social Security Administration.

Answer: It’s concerning that you would get varying answers from Social Security representatives, since the answer is simple given the facts you describe.

You should be entitled to a survivor’s benefit that equals 100% of what your ex was getting when he died, said economist Laurence Kotlikoff, a Social Security expert who co-wrote “Get What’s Yours: The Secrets to Maxing Out Your Social Security.”

Your marriage lasted the required 10 years, and you would be starting survivor benefits after your own full retirement age, so the amount would not be reduced to reflect an early start.

The fact that you’re unmarried is irrelevant in this case. Survivors’ benefits are available even to those who remarry, as long as the subsequent marriage happens after the recipient reached age 60.

That’s different from spousal benefits for the divorced, which aren’t available after remarriage at any age unless the subsequent marriage ends.

It’s possible that some or all of the people you queried didn’t understand your question or thought you were asking about spousal rather than survivor benefits. Another possibility is that they just don’t know the rules.

That’s not unusual, Kotlikoff said. Social Security regulations are complex, and not all of its employees are experienced. Kotlikoff said he often hears from people who have been told things that are “outright wrong, partially wrong, incomplete or confused.”

Educating yourself with Kotlikoff’s book and the Social Security’s own site may be a better solution than relying on its employees for answers.

Q&A: Creating a will

Dear Liz: I’m a 58-year-old man. I want to make a will just in case something happens to me. I have about $500,000 in stock and cash. I have a life partner and her son. I would like to split my assets between her and my sister. Any suggestions on how to go about this?

Answer: Just in case you turn out not to be immortal, having a will is a very good idea. Otherwise, your assets would be distributed according to state law, which means your lady friend probably would get nothing.

You also may want to consider probate, the court process that typically follows death. While probate is fairly simple in most states, in others — including California — it can be expensive and slow, making a living trust a worthwhile option.

You can prepare a will or living trust using do-it-yourself online legal sites and software such as Quicken WillMaker. If your relatives are likely to contest your will or your situation is otherwise complicated, you should consult with an estate planning attorney for help.

You could provide additional protections and advantages to your partner by getting married. As your wife, she could receive spousal and survivor benefits from Social Security based on your work record. You both would have visitation rights if the other were hospitalized and be empowered to make financial and health decisions if the other were incapacitated.

Marriage can have many other legal, financial and tax benefits as well. If you opt to remain unmarried, please talk to an attorney about available ways you can protect each other’s rights.

Q&A: Keeping investments in one brokerage

Dear Liz: I recently retired at 56 and am receiving a pension. My wife is set to retire next year at 56 and will also receive a pension. I chose to leave my 401(k) in my employer’s plan but am planning to consolidate it with my wife’s 457 and four 403(b) accounts once she retires. We also have a portfolio of stock and bond mutual funds. I’d like to consolidate everything at one brokerage firm to simplify record keeping, but what’s the level of risk of having all our investments with one company? We have about $3 million in assets total.

Answer: You can’t combine your retirement accounts with your wife’s, but you certainly can move everything to a single brokerage firm to reduce fees and make it easier to coordinate your investment strategy.

Whether you should is another matter. The chances of a well-established brokerage firm going bankrupt or suffering massive fraud are slim, but it does happen: Lehman Bros. and Bernard L. Madoff Investment Securities are two examples from the 2008 economic meltdown.

Investors have some protection against bankruptcy and fraud when their accounts are covered by the Securities Investor Protection Corp. Protected accounts are insured for up to $500,000 in securities and cash, with a $250,000 limit on the cash.

SIPC uses a concept called “separate capacity” to determine coverage when investors have multiple accounts. You can learn more about coverage limits on its website.
You can expand your total protection by using different types of accounts. Accounts held in your name alone are covered up to $500,000, and you can get another $500,000 in coverage for joint accounts. Your individual retirement accounts and Roth IRAs are also treated separately, and each type of account gets another $500,000 of coverage. (You don’t get $500,000 on each IRA if you have multiple accounts, though. SIPC combines all your traditional IRAs and treats them as one.)
Let’s say you and your wife have individual brokerage accounts as well as a joint account. Then we’ll suppose you each have IRAs as well as Roth IRAs, for a total of seven eligible accounts. That could give you a total of $3.5 million of SIPC coverage.

Of course, the amounts in your accounts may not line up so neatly with the coverage limits. You might not have any Roth IRAs, for example, but have more than $500,000 in that 401(k) you were hoping to roll over to an IRA, or your wife may have more than $500,000 in her retirement accounts (which, if rolled over into one or more IRAs, would be treated as one account). If you leave your 401(k) with your employer, on the other hand, you would be covered under federal employee benefit laws that require defined contribution accounts to be held in trust, separate from the company’s own funds, which would protect your account regardless of its size.

There’s a chance you could be made whole even if your accounts exceed SIPC limits. That was the case with Lehman, where individual retail customers got all their money back. With Madoff, everyone with claims under $925,000 is expected to be made whole, while the remaining claimants have gotten about half their money back in addition to the $500,000 advance SIPC paid out.

But you’ll have to assess your risk tolerance. If you have none, then use more than one brokerage firm.

Q&A: Taking a mortgage for the tax deduction

Dear Liz: My wife and I are both 66 and in good health. Currently we have about $1.2 million in IRAs. We’re receiving about $80,000 a year from a pension and $110,000 in salary. We have been aggressive about reducing any lingering debt. So we think we are in good shape for me to retire within the next year or so. If we decide to stay in our home rather than move, we will need to make some significant repairs and improvements. We were thinking of taking out a $200,000 mortgage to pay off our last remaining debt ($50,000 on a home equity line of credit) and fund the renovations. This would give us a better tax deduction and not incur the high taxes we would pay by making an IRA withdrawal. Our grown children have expressed no interest in the home after we die, so it probably would be put up for sale at that time. Does this seem like a reasonable approach if we choose to go that route? Anything we haven’t considered?

Answer: Considering the tax implications of financial moves is smart, but you shouldn’t make decisions solely on that basis. You especially shouldn’t take on mortgage debt just for the tax deduction. The tax benefit is limited to your bracket, so for every dollar in mortgage interest you pay you would get at best a federal tax benefit worth 39.6 cents. State income tax deductions might boost that amount, but you’d still be paying out more than you get back in tax benefits. You also would be locking yourself into debt payments at a time in life when most people prefer the flexibility of being debt-free.

If you’re comfortable having a mortgage in retirement, though, you might want to consider a reverse mortgage. Although once considered expensive loans of last resort for people who were running out of money in retirement, changes in the federal reverse mortgage program caused financial planners to reassess the no-payment loans as a potential wealth management tool. The idea is that homeowners could tap the reverse mortgage for funds, especially in bad markets, instead of depleting their retirement accounts.
Reverse mortgages are complex, though. The upfront and ongoing costs can be significant. Because you don’t make payments on the money you borrow, your debt grows over time and reduces the amount your heirs might get once the home is sold. You’d be smart to find a savvy, fee-only financial advisor to assess your situation and walk you through your options.

Q&A: Battling over mother’s estate

Dear Liz: Our mom did a wonderful job of preparing her estate, but she made a mistake in that she started giving away her real estate holdings to her two children a few months before her untimely death. She died before she had the chance to equalize these transactions. As her son and executor, I equalized the real estate after her death. My sister is now protesting this because she said “legally” what was given away before death is not part of the estate, but I say that our mom would have wanted this equalized because she was very firm in her belief that her assets be divided equally. What’s your experience?

Answer: You just provided an excellent example of why it can be problematic to have an executor who has a personal stake in how an estate is settled.

You wouldn’t be the first executor to decide that what Mom really wanted was for you to reap a larger benefit than your sibling, despite the explicit terms of a will or trust. Even if the estate documents gave you some discretion, you should have consulted an estate-planning attorney before deciding to help yourself to a bigger portion of your mother’s assets.

This is more than an ethical issue. Executors have a legal responsibility known as a fiduciary duty to the estate and all its beneficiaries. Basically, that means acting with the utmost integrity and putting the interests of the estate and beneficiaries ahead of your own.

Your sister may be able to file a lawsuit against you or ask a court to remove you as executor. You shouldn’t let it come to that. Talk to an attorney now about the best way to resolve this situation amicably.

Q&A: Social Security disability insurance and survivor benefits

Dear Liz: My first wife died six years ago at age 60. I was 52 and we had been married 27 years. My wife was on Social Security disability for 15 years before her death. My only dealing with Social Security after her death was to cancel her payments. I received no benefits of any kind. I am now remarried. Were there any Social Security benefits that I failed to request? Is there any effect on my future retirement?

Answer: You may have been eligible for a one-time payment of $255, but that’s likely all.

We’ll assume your wife was receiving Social Security Disability Insurance payments, which are disability checks paid to workers who have enough work credits in the Social Security system. SSDI is different from Supplemental Security Income, or SSI, a need-based federal program for low-income individuals who are disabled, blind or over the age of 65. Survivor benefits aren’t available under SSI, but they are under SSDI.

The rules for SSDI survivor benefits are similar to those under regular Social Security. Survivor benefits typically are available starting at age 60. Survivors who are disabled can begin receiving the benefits starting at 50, and survivors at any age can qualify if they’re caring for the deceased person’s child who is under 16. When you remarry before age 60, you can’t claim survivor benefits based on your first wife’s Social Security record unless the subsequent marriage ends in death or divorce.

Q&A: Paying a deceased person’s debts

Dear Liz: When I read the letter from the woman about her mother’s debts, it brought back my situation with my brother and mom. My brother was trustee to my mother’s living will and told her she had no money. At 90, she became worried and wanted to cut back on the care she needed. My brother had the same attitude as the woman who wrote you that her mother’s property was not an asset for her to use but something to be hoarded for the heirs.

Answer: That’s not the situation the daughter described. She was asking whether she and her sister were responsible for her mother’s debts. They are not. The mother’s estate would be responsible, and her estate would include her home. If the estate’s assets aren’t sufficient to pay all the bills, however, the creditors wouldn’t be able to come after the daughters. Still, some collection agencies have been known to contact survivors, telling them they have a “moral obligation” to pay the dead person’s debts.