Q&A: This trust avoids probate (but not death and taxes)

Dear Liz: Reading your articles I understand that having a revocable living trust makes transferring wealth quicker and easier. What about taxes? If you use a will to bequeath your house, for example, the beneficiaries get a stepped-up cost basis. What are the taxes with a revocable living trust? Do you pay taxes on assets going into the trust and again going out to the beneficiaries? What are the tax advantages and disadvantages of a trust?

Answer: Many kinds of trusts have tax implications, but revocable living trusts typically don’t. Your assets get the same tax treatment as if you held them outright.

Some people mistakenly believe that revocable living trusts can help them avoid or eliminate estate taxes. The purpose of a living trust is primarily to avoid probate, the court process that otherwise follows death. In some states, including California, probate can be lengthy and expensive, which often makes a living trust worth the cost and effort to set up.

Living trusts also offer more privacy because they don’t have to be made public, unlike a will, which becomes a public record at your death. Living trusts also make it easier for your appointed person to take over for you in case you become incapacitated.

Q&A: More solutions for avoiding probate

Dear Liz: I’m wondering why, in your answer about whether to use a will or a living trust, you didn’t mention that probate can be avoided by using beneficiaries for assets such as mutual funds and brokerage accounts and now, in many states, homes. This seems quite relevant to the question and the gist of your answer.

Answer: Space limitations, and reader attention spans, prohibit exhaustive answers to many personal finance questions. Nowhere is that more true than in estate planning, which can get complicated quickly.

It’s hard to avoid probate entirely without a living trust. So-called transfer on death designations can indeed work for small estates, providing that the rest of the estate — the “tangible personal property” such as furniture and jewelry — is small enough to qualify for simplified probate proceedings. (In California, that limit is $150,000.)

Even with small estates, though, transfer on death designations aren’t necessarily the right solution for everyone. Beneficiary designations are easy to forget, for one thing, which can mean accounts going to the wrong people after life changes. In other words, your ex-wife or your mother may wind up with an account that should have gone to your spouse. People who choose to use transfer on death designations instead of a living trust need to remain vigilant about keeping those designations up to date.

They also need to explore other potential ramifications, especially if they’re taking a do-it-yourself approach. For example, if a beneficiary dies first, or simultaneously, the asset may wind up having to go through probate.

Also, as this column discussed a few months ago, real estate transfers in certain circumstances can cause the property to be reassessed, leading to much higher tax bills for heirs. That’s something an attorney would be able to explain to a client while preparing a will or living trust, but it’s something a DIYer might miss.

Q&A: When a living trust can save money

Dear Liz: Here’s another advantage to a living trust. If the person owns real estate in more than one jurisdiction and just uses a will, there will be a probate in the resident jurisdiction and ancillary probates the other location or locations, with the attendant time, costs and delays — all of which could be avoided with a living trust. All properties would have to be transferred into the trust, of course, and it’s always wise to have a pour-over will to make sure that anything inadvertently left out of the trust is included and protected from probate.

Answer: Good points. Living trusts are more expensive to set up than wills but can save money in the long run in such situations.

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Q&A: How to pursue money owed to heirs

Dear Liz: My stepmother passed away in December 2006, and her executor, who was her financial planner, distributed the estate according to her trust. A while after this, I discovered that she had a life insurance policy that hadn’t been addressed. The executor pursued this and found that $80,000 was due to the three primary heirs. However, he kept saying things were “in process.” At least a couple of years later, he said he had the check but didn’t know how to proceed because the estate was settled and also the insurance company had been taken over by another company. I finally saw the actual check (in April 2016) that he had. He claims he’s pursuing this but keeps going silent on us for extended periods of time. What can we do?

Answer: One possibility is that he showed you a phony check after pocketing the money. The other possibility is that he’s stunningly incompetent. It’s not clear which option is more disturbing.

Any estate planning attorney, or financial planner who has taken an estate-planning class, could tell him that life insurance proceeds typically pass outside the probate process, which means the estate wouldn’t necessarily have to be reopened. (Even if the estate did need to be reopened, every state has procedures for doing so.)

“I would think that the executor could merely endorse the check over to the three heirs,” Los Angeles estate planning attorney Burton Mitchell said. “Or he could open an estate bank account, deposit the check, write a check to the beneficiaries and then close the account.”

At this point, of course, the check may too stale to cash, but that’s not an insurmountable problem either. The current insurer would be able to reissue the check if the assets haven’t been turned over to the state or “escheated.” If the money was escheated, the executor can file a claim with the state to get it back.

Blaming his inaction on the insurance company takeover is absurd. All he needed to do was to call the new insurer, which has all the records of the old one.

The heirs have a number of options. They can petition the probate court to order the executor to distribute the life insurance proceeds. They can hire an attorney to help them do so or to contact the executor to demand he act, or both. They also can file a complaint with the company that employs him (assuming he’s not self-employed), with the regulator that oversees him and with the entity that issued his credentials, assuming he has any.

What they shouldn’t do is wait any longer. The executor’s inaction has already cost them years of lost potential investment returns.

Q&A: Stepmom alters terms of dad’s will

Dear Liz: My father recently passed away and his will named my stepmom’s daughter as executor along with my brother. My stepmother just informed my brother that she removed him from that role, telling him it’s easier to just leave her daughter as the executor as she lives much closer. Is this legal to remove him after my father’s death? The rest of his five children have not been able to see that will.

Answer: Your stepmother doesn’t get to alter the terms of your dad’s will after his death. As mentioned in a previous column, a probate case should be opened in the county where your dad died and the will is among the paperwork that should be included in that case. It would become public record at that point so you would all be able to read it.

Your stepmother’s unwillingness to play by the rules indicates that you may need some legal help to make sure your dad’s wishes are carried out. The five of you should consult a probate attorney.

Q&A: How to handle money disputes after a death in the family

Dear Liz: My son recently died. His girlfriend, who lived with him, said he told he would take care of her for the rest of her life. There’s nothing in writing that says this. She has his debit card and is using it. I am not sure, but I thought if a family member dies, the money in the person’s bank accounts belonged to the next of kin. There is a large amount of money missing, but I don’t know if my son used it to pay other debts. How do I clear this up?

Answer: If her name is not on the bank account, then most likely she doesn’t have the right to help herself to the money. Your son’s assets are supposed to be used to pay his final expenses and his creditors. Anything left over would go to the beneficiaries of his will or, if he didn’t have a will, to his next of kin according to state law.

It’s time to call an attorney familiar with probate in your state to walk you through the next steps. As angry as you might be with the girlfriend, consider staying on good terms if you possibly can, since you probably will need access to his home and his records to settle the estate.

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.

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Q&A: Transferring property from a deceased relative

Dear Liz: My mother passed away unexpectedly in late 2008. She had a mortgage, and the house was under her name only. She didn’t leave a will. My family is still paying the loan, and the company does not know my mother passed away. We don’t have a lot of money and we need advice on how to get the house under my sister’s name (she has good credit). We need to get the loan modified since the monthly payment is almost $1,000 and only about $70 goes toward the principal.

Answer: Your mother may not have created a will, but your state has laws that determine what was supposed to happen after her death. Lying to the mortgage lender is not one of the legal options.

Federal law allows mortgages to be transferred to heirs. (Without a will, those heirs usually would include a surviving spouse and the dead person’s children.) Transfers because of death typically are exempt from the due-on-sale or acceleration clauses that otherwise would allow the lender to demand full payment.

To get the mortgage transferred, however, you usually need to have started the probate process.

At this point, you should consult a mortgage broker about the likelihood of getting a refinance or a loan modification. If the home is deeply underwater, it may not be possible or worth the effort. If foreclosure is likely, it would be better not to transfer the mortgage as the heirs’ credit would suffer significant damage.
If your plan is feasible, however, then you’ll need to consult a probate attorney. You may not have a lot of money, but you need to pool what you have to hire someone who can dig you out of this mess.