Ask Liz Weston

Get smart with your money

Estate planning

Q&A: What to do if you don’t trust your trustee?

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Dear Liz: I own several properties. I have a living trust that names my two minor children as beneficiaries. I’ve told my attorney that I want to transfer the properties to my children using the county form. This will give my children who are under 10 years of age ownership as tenants in common with the right of survivorship. I believe this avoids any tax consequences. I will still keep my living trust and make some adjustments per this change. My attorney states I will lose the step-up in tax basis if I do this. As I see it, this may not be a concern as my primary goal is to give my children these properties in the event of my passing. I do not trust anyone whom I name as trustee to my living trust. I do not care about the step-in-basis as doing it this way avoids delays, assures ownership and avoids possible fraud. The trustee could sell the properties and spend the money. Keep in mind my children are minors as of this date. Sure, they could file a lawsuit, but you need money to file an action and once the money is long gone, good luck in getting it back. This way it gives immediate ownership to my children, and I avoid these problems that may occur.

Answer: If you really don’t know anyone you can trust to look after your children’s interests, then you’ve got quite a dilemma.

Your children are too young to legally own real estate in their own names, so some kind of guardian or trustee would need to be involved in managing the property, notes Jennifer Sawday, an estate planning attorney in Long Beach. Plus, you have no idea now whether your kids will be able to responsibly handle such an inheritance once they’re legally allowed to take over at 18 or 21 (depending on the age of majority in your state). Few people that age are ready for such a big responsibility. If a child develops an addiction or spendthrift tendencies, they could quickly waste their inheritance.

Plus, transferring property can have huge tax consequences, including the loss of step-up in tax basis that your attorney mentioned as well as property tax reassessments. (In California, such transfers avoid reassessment only when a primary residence is transferred and the child continues to live in the home. Commercial property, rental property and vacation homes get reassessed upon transfer.)

If you have no friends or relatives who are ethical, honest and trustworthy, then you’ll need to consider hiring a professional fiduciary or trustee. Your attorney can discuss your options.

Q&A: Why living trusts are a good option, most of the time

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Dear Liz: My goal is to avoid probate and allow simplified access for my heir, who is also my executor. I have no family. I have chosen payable-on-death and transfer-on-death accounts instead of putting all financial assets in my trust, against the wishes of the attorney who drew up the trust for my condo. I am 79, with about a million in financial assets, with no debt or mortgage, and I am self-insured for long-term healthcare. Is the decision to use these accounts appropriate for me?

Answer: Please take the advice you paid for. The trust you have is probably a living trust, a flexible estate-planning device that avoids probate. Living trusts generally allow a smoother, more organized settlement of the estate than other probate-avoidance options.

The person who settles your estate is called your successor trustee and will perform much the same duties as an executor. But typically your successor trustee also can handle financial and other matters should you become incapacitated.

As covered in previous columns, payable-on-death and transfer-on-death accounts can be appropriate solutions for people with few assets who can’t afford to pay for a living trust. For more complex estates like yours, however, a living trust is the more appropriate option.

Q&A: Sharing an inherited house with your siblings? It can get complicated

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Dear Liz: My husband’s parents, who are 88 and 93, respectively, have decided to leave their house, worth $800,000, equally, to their three children, who are all in their sixties. The children get along well and all decisions will be made as a group. None of the adult children can afford to buy out the other two, and the three adults and their families cannot all live in the house at once. Everyone would like to keep the home, which is paid for, in the family. What solutions exist for this situation? Where do we begin, and what questions do we need to ask, thinking into the next generation?

Answer: Owning real estate with other people can be difficult, even when the individuals get along. Perhaps your generation can pull it off, but there’s no guarantee the next one will.

Let’s say the time has come to replace the roof. How will the group decide how much to spend, and will everyone be equally willing to split that considerable cost? How might the dynamics change if one family is living in the home, but the others are expected to pay for repairs and maintenance? What happens if one inheritor later wants to sell, and the others still can’t buy out that share?

Keeping the family home can feel like an important legacy to offer to your children, but not if ownership creates strife that imperils family relationships. An experienced estate planning attorney can meet with you as a group and discuss the scenarios and legal documents you may need going forward.

Q&A: Choosing the right health care agent

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Dear Liz: There is a lot of dysfunction and drama in my family so in my will, I’ve named a friend to be my executor. But I don’t think she’s the best person for my advance healthcare directive. She’s too nice and I think she would cave under pressure from my family. Can I choose someone else?

Answer: Absolutely, and often that’s the best choice.

Your executor is the person who will settle your estate after you die. You should pick someone you know to be trustworthy and diligent. The executor (or successor trustee, if you have a living trust) doesn’t need to be a financial expert, since they can use estate funds to pay for legal and tax help.

The person who makes healthcare decisions for you may need another set of skills. They may face considerable pressure from others, including family, friends or the medical establishment, so you’ll want someone who not only understands your wishes for end-of-life care but who will fight to carry them out.

Your advance care directive or living will is the document where you articulate your wishes for the care you do and don’t want at the end of your life. You’ll also need to create a medical power of attorney, which is where you name the person you want to speak for you if you become incapacitated. Even a detailed advance care directive can’t cover every circumstance, and the power of attorney will help ensure that your chosen person can advocate for you no matter what happens.

You’ll need one more document, which is a financial power of attorney. This names someone who can pay your bills and otherwise handle your finances if you become incapacitated. You can name your executor, the person you named for healthcare decisions or some other person to serve this role. Check with your financial institutions, since they may have their own documents they’ll want you to use.

If possible, you should name at least one backup for each position, since people may not be able to serve when the time comes. Also, your wishes or circumstances could change over time, so all these documents should be reviewed at least annually and updated as necessary.

Q&A: Financial institutions reject powers of attorney

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Dear Liz: I read your column about the parent who unexpectedly had to take over for their incapacitated son. You suggested every adult have a power of attorney and healthcare proxy. Excellent advice! However, as I discovered in dealing with my father’s illness and estate, these general documents are not always recognized by the very institutions they were designed for. His bank, mortgage company and health insurance company would only recognize their versions of these documents.

Fortunately, while he was still able to, I was able to procure each of these documents with his signatures on them but it was very stressful at a difficult time for all of us. I would suggest you amend your advice to people to check to see if their banks and so on also require their specific forms.

Answer: Financial institutions are supposed to accept properly drafted powers of attorney, but some of them insist on their own forms, agrees Burton Mitchell, an estate planning attorney in Los Angeles.

“Sometimes one can get around these rules by appealing to higher ups in the organization, but it is unnecessarily difficult, time-consuming and complicated,” Mitchell says.

Checking with your financial institutions now could avoid hassles later.

Q&A: When money disappears from a mother’s estate

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Dear Liz: My mother recently passed and my sister is handling all the legalities. At one point, my sister mentioned our mother had a sizable savings account plus two retirement accounts valued at $400,000, and that I would receive something. Now she is simply saying, “I don’t know where the money has gone.” She handled all my mother’s finances for years before her death. How is this possible? I can’t hire an attorney, nor do I want to alienate my sister or seem greedy. What should I do?

Answer: If your sister handled your mother’s finances for years and she’s settling the estate, then she almost certainly knows where the money went. Why she won’t tell you is the mystery.

Your mother’s money may have been eaten up by long-term care expenses, which can be breathtakingly expensive. That’s especially true if there was a long gap between your sister’s disclosure about the accounts and your mother’s death.

If that were the case, though, your sister could just say so.

There are many other possibilities. Your mother could have been scammed, or gambled away the money, or been the victim of financial elder abuse. Abusers are often people the elders know, including relatives and caregivers.

Perhaps your sister didn’t help herself during your mother’s lifetime, but arranged to be the beneficiary of all the accounts, either with or without your mother’s consent.

You don’t have many options if you aren’t willing or able to consult an attorney, but you wouldn’t be greedy to ask for some clarity from your sister.