Ask Liz Weston

Get smart with your money

Estate planning

Q&A: When an executor doesn’t heed the will

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Dear Liz: My dad’s will clearly divided his estate equally between his two sons. By the time Dad died, my brother had two kids. After the funeral, my sister-in-law sat me down and told me that everything will be divided into three parts. I would get one-third and they get two-thirds, because they had the kids. This was not a request; it was, “That’s the way it’s going to be and there’s nothing you can do about it.” My brother, who was the executor, was nowhere to be seen — a pattern when dealing with money issues. This was many years ago. I was a student at the time. I went along with it but wonder to this day about the fairness of the situation.

Answer: Wonder no more. If the situation was as you describe and your brother ignored your father’s will, then he wasn’t just unfair to you. He violated the law.

Executors are supposed to follow the will’s directions to the best of their ability. If they don’t, they can be held personally responsible. But each state has statutes of limitation that give you only a certain amount of time to file a civil lawsuit in these situations. You may have a bit more time if you were a minor when all this happened, but you’d want to consult an attorney to discuss your options.

You wouldn’t be the first person done out of an inheritance by a self-dealing sibling, unfortunately. This should be a reminder to parents not to reflexively choose the oldest child, or indeed any child, to fill this role without thinking about the child’s character.

Q&A: Planning philanthropy

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Dear Liz: You recently explained to a reader why it was better to make one donation of $1,000 rather than 10 donations of $100. I understand why you gave the response you did and you made some good points, especially about the importance of researching charities before you give. You also mentioned the costs each organization would incur in processing the smaller donations. As a longtime nonprofit executive, I think the social capital enjoyed by those organizations outweighs the costs. It often is helpful to the organization to be able to count that donor among their ranks to demonstrate that they have widespread support, for example, or to include that donor in future efforts to serve the community. My experience is that it’s not always just about the dollars and cents.

Answer: Thanks for adding your perspective. It’s understandable that a charity would prefer a small donation to no donation. The charity still gets some money, even after processing fees, and the opportunity to add another donor to their mailing lists.

Savvy givers, however, want as much of their money to benefit their favorite causes as possible. Giving larger donations to fewer charities is a good way to do that, since that approach minimizes processing costs as well as the volume of appeals for more donations. Also, adequately researching and monitoring 10 different charities is a tall order for most busy people. Winnowing the choices can help ensure we’re rewarding the best-run charities, rather than those that spend the bulk of their donations on fundraising and overhead.

Q&A: Living trust viewing restrictions

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Dear Liz: How in the world do I find out the details of my parents’ trust? My father recently died and my mother, who is 89, is not familiar with the details. My older sister is not responsive when I ask questions. She and I are the only children. My husband recently became disabled and it would be a comfort to know if we had any money coming from my parents. Can you give me any advice?

Answer: Presumably you’re asking about a living trust, which is designed to avoid probate, the court process that otherwise follows death. Unlike wills, living trusts don’t have to be filed with the courts so you can’t go down to the county courthouse to look up the details.

Living trusts are revocable trusts, which means they can be changed. People other than the trust creators don’t typically have a right to see the trust until it becomes irrevocable.

In the past, part of a living trust often became irrevocable when one spouse died. Today, it’s more common for trusts to remain revocable until the surviving spouse dies.

To some extent, state law determines who gets to see a copy of the trust once it’s irrevocable. Typically beneficiaries have a right to see the trust, and in some states (including California) so do “heirs at law” — people who aren’t beneficiaries but who would have inherited under state law if there had been no trust or will.

Q&A: Here’s a primer on all those estate planning documents

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Dear Liz: Our dad’s kidneys are failing. Our mother passed away awhile ago, so it’s just me and my sister. He has a will, and my sister is on his bank account, but how do we handle the house transfer? Do we need a living will? We don’t want it to go into probate. We are splitting everything equally.

Answer: Losing a parent is stressful, so it’s good that you have your father’s estate-planning document to guide you. If it was properly drawn, it will name an executor who will handle the details of settling his bills, paying his creditors and transferring his remaining assets to his heirs.

If the executor happens to be you or your sister, you’ll be able to hire an attorney to help you and pay for it out of the estate’s assets. Having an attorney can help make the process much smoother and help avoid potentially costly mistakes.

You asked about a living will, but that’s a document designed to communicate someone’s wishes regarding end-of-life medical care. Living trusts are the documents that can avoid probate, the court process that otherwise follows death.

In many states, including California, probate also can be avoided with a “transfer on death” deed. If your father is still able to make decisions, you might want to hire the attorney now to advise you about which document makes the most sense.

Q&A: Keeping a bequest from doing harm

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Dear Liz: I am leaving a good friend a bequest in my will. He receives government benefits, including disability, Supplemental Security Income and Medi-Cal (California’s version of Medicaid). I am beginning to be concerned that if he inherits the money, it could mess him up more than help him. Is there a way to leave someone like my friend a bequest without jeopardizing the various benefits they now receive?

Answer: You’ll want an attorney experienced in “special needs trusts” to help you put language into your estate plan that can help shelter this money and protect your friend’s benefits.

Your concern is well founded because a direct inheritance could cause him to lose income and health coverage. SSI and Medi-Cal are both “means tested” programs that require people to have less than $2,000 in assets. All too often, well-meaning friends and relatives leave direct bequests that have the unintended consequence of separating the recipients from vital services they need to survive.

Q&A: Mom’s 94; one son handles her money, another wants more access to it

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Dear Liz: I have two younger brothers, and the youngest was chosen as the executor of our widowed mother’s estate. The problem is that he doesn’t understand financials. Mom is 94. Her entire estate is invested in blue-chip stocks. The portfolio was carefully planned by our uncle and closely tracks the Dow Jones industrial average. With her present holdings, she has enough to live indefinitely in her nursing home.

Her portfolio is up 40% in the last two years, but my brother is worried that the stock market is going to crash. She could give me up to $15,000 a year, but he’s telling her $500 a month for each brother is good. I’m a retired electrical engineer and have managed contracts for the military worth many millions of dollars. Can I challenge my brother’s ability to manage our mother’s finances?

Answer: Sure, if you want to open up an all-out family war at this stage of your life. A better approach might be a collaborative one, in which the three brothers seek outside, expert advice to handle Mom’s affairs.

You might have been terrific at managing military contracts, but that doesn’t give you the background in taxes, estate planning and investment management that’s required in this situation. You may be overestimating how much her portfolio has grown — the Dow is up about 25% in the last two years, not 40% — while underestimating both the risk of a downturn and the effect of larger withdrawals.

Your brother, meanwhile, is understandably concerned about a portfolio that’s 100% invested in stocks. That would be a lot of risk, even if your mom had decades to ride out any downturn (which, obviously, she doesn’t). Remember that the stock market lost roughly half its value a decade ago and lost about 90% during the Great Depression.

If your mom’s portfolio could take such a hit and still produce enough for her to live on, then larger distributions might make sense. Maximizing the annual gift tax exclusion, which allows her to give away $15,000 a person without filing gift tax returns, may be desirable if her estate is worth more than $11 million and could be subject to estate taxes. If she’s not wealthy, though, distributing $45,000 each year to three of you could increase her risk of running out of money.

A fee-only financial planner could analyze that risk and recommend a prudent course of action. The planner also could help arrange the necessary documents that would allow your brother to manage your mom’s financial affairs. Right now, it’s not clear whether those are in place.

Your brother is not yet the executor, because your mother is still alive and executors are in charge of distributing an estate after someone dies. If she wants him to make decisions for her should she become incapacitated, she should give him her power of attorney or name him as the successor trustee of her living trust. Otherwise, he probably would need to go to court to be named conservator.

It may rankle that your mom put him in charge of her estate, rather than you. If he’s trustworthy, though, you should put aside the idea of challenging him for control, especially if your main motivation is to get your inheritance early. Instead, offer to assist him in finding the professional advice he needs to help your mother and work together to make sure her remaining years are as free of family drama as possible.