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.

Thursday’s need-to-know money news

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Tuesday’s need-to-know money news

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Wednesday’s need-to-know money news

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At death, wills matter–promises don’t

Dear Liz: If your in-laws promised you and their son their house, and have for over 20 years, and the whole family is aware that was the plan — your mother-in-law even had a will and a deed made up — do you think the executor of the estate has the right to do away with the will and take matters into her own hands? Do you think the daughter-in-law and the son have a right to stick up for what the parents wanted?

Answer: There’s a big difference between drafting documents and executing them.

Presumably the deed wasn’t executed, or used to legally transfer the house into your names. Otherwise this dispute wouldn’t be happening. Is the same true of the will? In other words, did your mother-in-law sign it in the presence of disinterested witnesses (people who don’t inherit)?

If the will was properly executed, then in most states it must be filed with the probate court. The executor is supposed to follow the will’s dictates to the extent possible. (If your mother-in-law left more debts than assets, for example, there might not be enough left over to distribute according to a will.)

What seems likely is that your husband’s mother failed to follow through on her promise. If that’s the case, and there is no will, then the executor is obliged to follow state law to determine who gets what.

The results may not be what you hope. The home may need to be sold to pay creditors or to allow an equitable distribution of assets among all the legal heirs.

This assumes the executor is living up to her fiduciary duty. If she truly is taking matters into her own hands, however — deciding how the estate will be distributed without reference to a will or state law — then you and your husband should hire an attorney to file a lawsuit in probate court to get her removed and replaced with someone more responsible.

What you need to know about estate planning

Last will and testamentExclusive to Ask Liz Weston, this post comes courtesy of Ally Bank.

Whether you’ve worked for years or you’re just starting out, it makes sense to create a plan for distributing your assets after you’re gone. That’s where estate planning comes in. Estate planning may involve everything from creating a will to establishing trusts to designating guardians for dependents.

Below are a few common questions about estate planning addressed by several experts in the field.

What is estate planning?

Estate planning is the process of arranging for the disposal of your estate—your assets—during your life. In an interview with Ally Bank, Erin Baehr, president of Baehr Financial in Stroudsburg, Pennsylvania, stated, “all it really means is to organize the distribution of the things you own and the legacy you want to leave, large or small.”

Most estate plans are set up with the help of an attorney with experience in estate law. The core document in estate planning is the will, which describes which assets go to whom. Other aspects of an estate plan may include naming an executor of the estate, setting up durable power of attorney, and designating guardians for dependents. An estate plan usually will involve a trust.

In a recent interview with Ally Bank, Bruce D. Steiner, an attorney at the New York City firm Kleinberg, Kaplan, Wolf & Cohen and editorial advisory board member at Trusts & Estates, explained, “For most people, the focus is on what their will says. And in their will, if they’re sufficiently wealthy, and they give things away during their lifetimes, they almost always do it in some sort of a trust.”

Why establish a trust?

You want to ensure your beneficiaries receive what you intend to give with as few legal hurdles and unnecessary taxes as possible. A trust is a legal document that protects and controls your assets. Diane Morais, Ally Bank Deposits and Line of Business Integration Executive, explains, “As the economy stabilizes and Americans aim to grow their personal investments, Ally Bank suggests that savers protect the assets they have worked so hard to attain. Trusts can protect their legacies.”

Morais also noted in a recent article in The Huffington Post that many people are looking for bank products that work well with trusts: “With many Americans now able to save for the first time in years, many are evaluating bank accounts that are ideally suited for trusts . . . to firm up their own savings while simultaneously easing the burden on their beneficiaries.” Many banks, including Ally Bank, have deposit products ideally suited for trusts.

Who is estate planning for?

Anyone can benefit from planning for the future. Steiner explains that estate planning is for “Anybody who has assets and would like them to go in a way that might be different than the way they would go by default. That’s really most people.” And according to Baer, “Everyone should have an estate plan, if for no other reason than to make things easier on the people left behind.”

When should you start thinking about estate planning?

The answer is unique to you and your situation. As you age and accumulate assets, you may be more inclined to start thinking about how to protect what you’ve worked for.  Steiner suggested that a person’s family situation usually plays into his or her decision to get started with an estate plan. He notes, “It might be when [you] have a spouse, but for most people, I think it’s certainly when they have a child, since you have to decide, if you’re not around, who’s going to take care of that child? And if you leave money to a child, and the child can’t manage money, you have to decide who’s going to be the trustee for the child’s money.”

How should you prepare to meet with an estate planner?

As part of the estate-plan process, you will want to draw up a list of your assets, making it as complete as possible. You should include life insurance policies and retirement benefits. You also want to think about your wishes regarding family members, dependents, executors, trustees, guardians, and beneficiaries.

What are recent changes in estate planning law?

The American Taxpayer Relief Act of 2012 was approved earlier this year. Explains Steiner, “It permanently fixed the federal estate tax exempt amount at $5.25 million, as indexed for inflation. It made portability permanent, which means if I have a spouse and I don’t use my entire exempt amount, my spouse can inherit my unused exempt amount.”

Want to learn more about estate planning? Check out these posts:

Who owes taxes after death?

Missed deadline could limit inherited IRA benefits

Tax bills for inherited IRAs

Inherited IRA may have more options than you’re told

Elderly mom isn’t the only one overdue for estate planning

In case you missed it: car leases, celebrity estate disasters and how to choose your first credit card

Chevy VoltHere’s a column I never thought I’d write: “Sometimes, leasing a car is the right option.”

Most people are way better off financially if they buy cars slightly used and own them for at least 10 years. Even if you want to buy new, you’ll save a fortune (at least $250,000, by my calculations) by not trading your car in every few years. In most cases, leasing just encourages you to overspend on your wheels and ties you to never-ending car payments. Not good.

But there are situations where leasing actually makes sense, and those are outlined in the column.

Plenty of famous people have left seriously messed-up situations when they died. Lawsuits over the estates of Marilyn Monroe and Jimi Hendrix continued decades after they died. A court recently overturned a settlement in the James Brown estate, a situation complicated by the question of whether he was actually married when he died. Jerry Garcia’s estate plan appointed his third wife as a fiduciary for the second wife and the second wife’s children, legally requiring Wife #3 to put Wife #2’s interests ahead of her own…even though Wife #3 was also a beneficiary. Yikes.

I chose five other more recent but equally spectacular cases of celebrity estate disasters in “5 celebrities who messed up their wills.”

Back in June I wrote about “Why young people hate credit cards.” The good news, that people in their 20s and 30s have less credit card debt, is offset by the bad news, which is that credit cards, responsibly used, help build your credit scores and qualify you for better rates on mortgages, auto loans, insurance and more. If you’ve decided you do want some plastic after all, check out Doughroller’s “5 steps to choosing your first credit card.” Just remember that there’s no reason to carry debt to improve your scores, and that you should pay off your balances in full every month.

Don’t expect surviving spouse to “do the right thing”

Dear Liz: My parents were married for 50 years. When my mother died, my father didn’t inherit a large monetary fortune, but he did get a houseful of family treasures (photos, knickknacks, mementos, documents) that had been cherished and saved for me and my children (I was an only child). Immediately after my mom died, my father found a lady friend and cut off all ties with me and his past. I tried but could not get through.

I know it would not have been my grandparents’ or my mother’s wishes that 150 years of family memories be lost, but unfortunately that is how it turned out. Please encourage aging parents to plan ahead for many potential outcomes so that their wishes and the wishes of past and future generations are honored. I shudder to think of what has happened to my great-grandmother’s journal that I read aloud as a child.

Answer: The German fairy tale about Hansel and Gretel resonates with many people in your situation. If you remember, in that tale a poor woodcutter acquiesces to his second wife’s demand that he abandon his children to die in the woods.

Of course, that tale ends happily. The children kill the evil witch who imprisons them. They steal her jewels and return to share the wealth with their once-again-widowed father. (Children can be remarkably forgiving.)

It’s sad that you’ve lost access to the heirlooms, but it’s much sadder that you’ve lost access to your father. If he’s still alive, though, so is the possibility of rapprochement. If you keep in touch, he may eventually thaw. If not, you’ll at least know you did all you could.

Your mother may not have been able to imagine your father cutting you off the way he has. But expecting a surviving spouse to “do the right thing” in distributing heirlooms may be expecting too much. Dementia could rob the survivor of good judgment, or he could be influenced by a subsequent relationship, as your father was.

So your point is well taken. Anyone who has heirlooms to pass along should make sure to do so — either in a will or, better yet, while still alive to enjoy the next generation’s appreciation.

Anyone who’s lost access to an heirloom should remember that while precious, it’s still a thing — and a thing that could have been lost in many other ways, from a house fire to negligence. Focusing on the loss won’t bring the thing back or restore a troubled relationship. It will just make you unhappy, and life’s too short for that.

Stepdaughter wants “everything”: what does she deserve?

Dear Liz: Your column from the person who wanted “heirlooms” from her stepfather is applicable to my situation. My husband’s daughter wants literally everything in my house, even though he and I commingled our assets 23 years ago and have been married more than 10 years. How do I access public records to see if her mother did have a will?

Answer: It’s interesting that your husband can’t clear up this mystery. Presumably he would know whether his late wife had a will and what it said.

You can check with probate court of the county where she died to determine if a will was filed. If she had a living trust, that would be private and probably not filed with the court, but your husband should know what it said.

If she had no will or living trust, then your husband was supposed to follow state law in dividing up her possessions. In community property states, without a will or trust he typically would inherit stuff acquired during their marriage, plus a share of any separately held assets — possessions she brought to the marriage, said Burton Mitchell, an estate planning attorney with Jeffer Mangels Butler & Mitchell in Los Angeles. In other states, your husband might inherit half of her assets, with the other half divided among her children, Burton said.

State laws vary widely and there are all kinds of exceptions to the general rules, so you may need a lawyer’s help in sorting out what belongs to whom.

In any case, you’d be smart to hire an estate-planning attorney at this point. Your stepdaughter may not be able to pursue a legal case after all this time, but she could cause trouble when you or your husband dies. Any time a relative creates a real fuss about an estate division, it’s good to get a qualified attorney’s advice as you craft your own wills or living trusts that spell out who gets what.

As you make your plans, try to be guided by kindness and compassion. Your stepdaughter may not have a legal right to lay claim to every item in your home, but letting her have items of strong sentimental value may be the right thing to do. Just think how you would feel if your father’s second wife gave your mother’s special jewelry or your grandmother’s treasured antiques to your step-siblings. Lifelong rifts and family feuds have started over less.

Then again, all parties need to remember that stuff is just stuff. What’s a precious heirloom to one generation may wind up in the next generation’s garage sale. Resolving to put relationships first, instead of possessions, can really help all sides avoid painful battles.