Ask Liz Weston

Get smart with your money

Estate planning

Q&A: How to make sure your money-distribution wishes are followed after you die

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Dear Liz: My first husband died when my oldest child was 1. I remarried and had another child (they’re 5 and 3 now). My husband and I prepared a trust in which I have him and my sister as beneficiaries of my assets. But my husband regrets that he is not the only beneficiary.

My argument is that if I pass away and he remarries, I want my oldest son (not his biological son, nor has my husband adopted him yet) to get what I saved for him, and that my sister will make sure this happens. What would you recommend? Should I have him as the only beneficiary?

Answer: No. But your sister probably shouldn’t be a beneficiary either, given your aims.

Any parent who wants to get money to a child should do so with a properly drafted trust, rather than trusting someone else — even another parent — to “do the right thing” by the child. All too often, they don’t. A new spouse, a change in financial circumstances, ill will or basic selfishness can tempt people to justify raiding funds intended for others.

A better way to benefit your children is to set up trusts to receive the money. You can name your husband as the trustee for the younger child and name your sister as the trustee for the elder. Trustees have the legal responsibility to act as fiduciaries, which means they have to put the beneficiaries’ interests first.

You can either create these trusts with your will or they can be part of your living trust if you live in a state with high probate costs, such as California. The advantage of probate is that the court can provide some oversight of the trustee, but that typically involves some additional costs. Your estate-planning attorney can offer guidance about which approach may be best for you.

Q&A: Fiduciaries can help with estate trusts

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Dear Liz: I enjoyed your recent column about spendthrift trusts. You’re right that when parents assign the job of trustee to one sibling for the benefit of another sibling, it creates a hazardous situation that often results in a court battle. The appointed professional trustee should be a neutral party. You recommended a bank or trust company to fill the bill.

However, there is a third and often better option: a licensed professional fiduciary. There are about 600 in California. We are independent fiduciaries licensed by the state to manage clients’ assets in trusts and estates.

Professional fiduciaries will take the smaller trusts and estates, since banks and trust companies usually require a minimum of $1 million to $2 million under management before accepting a trust or remainder estate. Banks and trust companies also typically charge fees based on the amount of money under management, whereas California Licensed Professional Fiduciaries normally charge on a time-incurred basis.

Fiduciaries also give the beneficiary an annual accounting. A case I have now came to me when the sibling trustee failed to account for money spent for nine years.

Answer: Thanks for highlighting this option. Licensed professional fiduciaries aren’t available everywhere, but certified public accountants also can serve this function. The attorney who drafts the trust may have recommendations.

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

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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

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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

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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

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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.