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Pitfalls Of Estate Planning By Deed

Estate plans are not just for the rich. Most people have something of value that they want to pass along to loved ones or a favorite charity: the family home or lake cabin, a car, family heirlooms like jewelry or art, or money in the bank.

Creating an estate plan allows you to do that with the fewest tax liabilities for your beneficiaries and it reduces the chance of estate litigation among your heirs. Not only can properly prepared estate planning documents help maximize the value of your estate, but the process of working with an estate planning attorney gives you an opportunity to talk through important decisions.

Ascent Law Firm lawyer can help you avoid the most common estate planning mistakes, including:

  1. Not Having an Estate Plan

Whether you have estate planning documents in place, or not, those closest to you will be left to manage your final affairs. A surviving spouse and minor children will be dealing with shock and grief. Business partners may be scrambling. From their perspective, the most serious and most common estate planning mistake is not having an estate plan at all. In the turmoil that follows the death of a loved one, having a legally valid will or trust in place provides those you care about with clear guidance for handling your affairs. At a time when so much may feel uncertain, knowing there is an estate plan can bring peace of mind.

  1. Forgetting to Update Your Estate Plan Regularly

Many families write a will and designate a guardian when their first child is born. Then life changes: more children are born, parents buy a home, someone starts a business, grandparents die, and there may be a divorce. Does that original will still work as you intended?

  • Your living will gives your spouse authority to make end-of-life medical decisions for you. Now you are divorced. Do you want your now ex-spouse to make your health care decisions?
  • Do you need to change your beneficiary designations because you’ve added children or step-children to your family? Do you want to name contingent beneficiaries in case some heirs are no longer living or cannot be found when your will is executed?

It’s wise to periodically review and update your will, trust, living will, and life insurance policies to reflect current circumstances and new life events.

  1. Not Planning for Disability

When surveyed, most workers believe their risk for disability prior to retirement is only 1-2%. Unfortunately, that’s a far cry from reality. According to the Society of Actuaries, one in seven workers will be disabled for five years or more sometime before they reach retirement age. Most Americans are not prepared for an unexpected disability and its impacts, but this is an issue for which a comprehensive estate plan can help. Talk with an estate planning lawyer about a revocable trust (also called a living trust).

Give a trusted person durable power of attorney to make decisions on your behalf if you are unable to do so for yourself. A durable power of attorney provides lasting authority to make decisions. You also have the option of assigning temporary power of attorney for the time of your incapacity.

  1. Not Pre-planning for Nursing Home Care

For some people, retirement plans should include nursing home planning. Many people who need nursing home care will end up using Medicare funding, but they can only do so once they have spent down their financial resources. This can create financial hardship for the spouse remaining at home. Pre-planning for nursing home care can guide financial decision-making over a number of years. Pre-planning can protect the spouse at home while ensuring the medically needy spouse qualifies for Medicare funds. A special needs trust is one useful tool for this purpose.

  1. Putting Your Child’s Name on the Deed to Your Home

Sometimes people put an adult child’s name on the deed to their home in order to protect their home from creditors. Or they may think this is the safest way to transfer property. Unfortunately, this kind of “do-it-yourself” solution can backfire. By putting your child’s name on the deed you are essentially giving them title to your home. In a worst-case situation, they can record the deed with the proper municipal authority and can then kick you out of your home. They can sell the home. They can keep the profit and not share it with you or other beneficiaries. You lose control of your asset. In the best-case scenario, which is still not good, by putting their name on the deed and titling the home in their name you have given them a taxable gift. That is unnecessary. There may be other estate planning documents that can pass along a family home or its value tax-free. Get legal advice on the best way to protect and transfer real estate in order to minimize tax consequences.

  1. Choosing the Wrong Person To Handle Your Estate

It can be hard to know who will make the best executor for your estate, the best trustee of a trust fund, or the best guardian for minor children. While a surviving spouse may seem like the obvious choice, they may be too overwhelmed to manage a complex probate process. They may not have the best understanding of finances, investments, or tax laws to manage a trust or large estate.

There are times when a spouse or child will not make a good fiduciary because they disagree with decisions you have made about beneficiaries and bequests. You may be concerned that as your executor, they will not fulfill the terms of your will.

They may be a spendthrift who can’t be trusted to act responsibly as a trustee or a guardian. You do not have to name a family member for these critical roles. Talk with your estate planning attorney about your concerns and he or she will help you brainstorm options.

  1. Not Transferring Your Life Insurance Policies to a Life Insurance Trust

Tax planning is an important part of estate planning and a life insurance trust can be a key vehicle to reduce the impact of estate taxes. Everything owned by the decedent at the time of death is included in their estate for estate tax purposes. If a life insurance policy is owned by an irrevocable life insurance trust, its proceeds are not taxed as part of the estate. Furthermore, it can spare your spouse and beneficiaries undue hardship waiting for a pay-out of the insurance proceeds.

  1. Not Making Gifts To Reduce Your Estate Tax

A common estate planning mistake is failing to take advantage of yearly gifting to reduce the potential impact of estate taxes at the time of your death. According to the IRS, gifts up to $15,000 a year (per spouse) may be excluded from estate tax. That can provide a significant benefit to a beneficiary. Larger gifts can also be made during one’s lifetime. Tax changes that went into effect under the Trump administration more than doubled the value of assets that can be gifted before a gift tax or federal estate tax is applied. Once that limit has been reached ($12.06 million in 2022), any additional gifts before or after death are taxed. This Trump tax reform is temporary and will expire in 2026.

  1. Procrastinating

You don’t need to wait until you have an “estate” to begin thinking about the goals that estate planning tools can accomplish. For example, even a college student may want a living will to tell their family how to make medical decisions for them, and a medical power of attorney to give someone authority to make decisions. A business owner planning a trip overseas may want to give temporary power of attorney to allow someone to make decisions for them while they are away. A young couple with children, even if they don’t yet own a home or have significant assets, will at least want to name a guardian.

  1. Not Meeting With an Experienced Estate Planning Professional

If you have more complex assets or specific bequests, or you suspect there may be conflicts among your beneficiaries, it pays to meet with an estate planning lawyer. An experienced attorney can provide you with tax-planning strategies, insights into state laws, and proposed changes in federal tax laws. They can ensure your estate planning documents are strong enough to stand up to legal challenges when do-it-yourself forms may not be sufficient.


Why Estate Planning Is Important


Estate planning isn’t just for the ultra-wealthy anybody with financial assets can benefit from ensuring their finances are properly taken care of after their death. There’s more to an estate plan than simply a will.  All of the following documents help ensure your assets are transferred seamlessly to your heirs upon your death. An important consideration is including provisions that allow your family members to access or control your assets if you become unable to while still alive.

To get you started on thinking about what you might need to include in your estate plan, here are five documents you should familiarize yourself with.


  1. Last Will and Testament

This legal document is the foundation for a successful estate plan. After you embark on your estate planning journey, your attorney will recommend either a will-based estate plan or a trust-based estate plan. With a will-based estate plan, your last will and testament dictates the following:

  • Who will serve as the executor or personal representative of your estate? This person will be the one to settle your affairs after your death and ensure that the tenants of your will are being accurately followed and attended to.
  • What power your executor or personal representative will have and what they will be responsible for.
  • Who your beneficiaries will be and what each beneficiary will inherit. Your last will and testament also defines how and when your assets or property will be transferred to your desired beneficiaries.
  • Who will be the guardian of children who are minors?
  1. Living Trust

Also known as a revocable living trust, this is a legal document created during your lifetime that allows for the transfer of assets into a trust for your beneficiaries without needing to go through probate court proceedings. There is no threshold asset size before one can create a living trust. However, it is utilized more frequently by individuals and families with large, complex estates and multiple beneficiaries. You will transfer property into the living trust but still be able to control and manage the assets while you’re alive. Upon your death, the trustee’s duty is to transfer assets to your beneficiaries according to your wishes. One of the advantages of a revocable living trust is it avoids the cumbersome and time-consuming process of probate.

  1. Durable Power of Attorney (POA)

This legal document gives someone else, called your agent, the power to act on your behalf. You can name a primary agent, and then a backup agent if the primary is unable to serve. Spouses are often named as agents for each other. However, you are not limited to naming a spouse or family member as your agent. Being “durable” means that the agency continues even if you are incapacitated and unable to handle matters on your own. To contrast, a general POA would cease to be effective upon becoming incapacitated. The Durable Power of Attorney can be effective immediately or “springing.” With a springing clause, the POA does not become effective until a medical doctor signs off that you are unable to manage your own affairs. You can give your agent limited authority for specific transactions, or broad authority. For example, the power could be to perform specific real estate transactions, or broad powers encompassing virtually all your financial affairs. You can revoke a durable POA at any time, but the POA ceases to be valid upon death.

  1. Healthcare Power of Attorney (POA)

Similar to the Durable POA, you name another person to be your agent. You can name a primary agent, and then a backup agent if the primary is unable to serve. Whereas the Durable POA is focused on financial matters, this legal document is specifically related to healthcare decisions. Spouses are often named agents for each other, but you can name someone other than a spouse or family member. Whoever you select, make sure they are someone you have faith will be calm during a crisis, are capable of communicating with medical doctors and nurses, will stand up for you when you are unable to speak for yourself, and finally will honor your wishes even if they are not exactly what they would personally want. 

  1. Living Will

Also known as an advanced healthcare directive, a living will is a legal document providing instructions for end-of-life care. A living will is sometimes confused with last will and testament, but each document serves different purposes. A living will spells out how life-sustaining medical treatment decisions should be made if you’re incapacitated and communicate them yourself. For example, if you were in a coma due to an auto accident and the doctors said there’s no chance you’ll ever recover, would you want to be kept alive by machines and feeding tubes? This is a decision you should make ahead of time, instead of leaving it up to your grieving family members.


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