{"id":4257,"date":"2014-01-02T07:55:10","date_gmt":"2014-01-02T15:55:10","guid":{"rendered":"http:\/\/canary.kcprod.info/blog\/?p=4257"},"modified":"2022-01-11T17:12:41","modified_gmt":"2022-01-12T01:12:41","slug":"estate-plan","status":"publish","type":"post","link":"https:\/\/canary.kcprod.info/blog\/estate-plan\/","title":{"rendered":"How a Simple Estate Plan Pays for Itself"},"content":{"rendered":"<p>More\u00a0than 50% of U.S. adults do not have even the most basic estate planning document; a Will. <a title=\"\" href=\"#_ftn1\">[1]<\/a>\u00a0 For adults without spouses, children or any significant assets, the lack of an estate plan may not significantly impact their surviving family, but for everyone else the costs of <i>not <\/i>having a simple estate plan are almost certainly greater than the cost of obtaining one.\u00a0 In this post I\u2019ll briefly explain what constitutes a \u201csimple estate plan,\u201d how much you can expect to spend on such a plan, and what fees, expenses, taxes (and headaches) you can avoid by having one.<\/p>\n<p>Although ancillary documents may be appropriate given the specific circumstances, a \u201csimple estate plan\u201d is generally understood to constitute the following documents:<\/p>\n<ol>\n<li>A revocable living trust;<\/li>\n<li>A last Will and testament;<\/li>\n<li>A general durable power of attorney;<\/li>\n<li>A durable power of attorney for health care;<\/li>\n<li>A medical directive.<\/li>\n<\/ol>\n<p>Although such an estate plan will set you back approximately $2,000 (either for an individual or a married couple), here is a high-level summary of what such a plan will accomplish:<\/p>\n<ul>\n<li>Avoid statutory probate fees and public scrutiny of your assets.<\/li>\n<li>Minimize any federal estate tax due.<\/li>\n<li>Choose legal guardians (and backup guardians) for your minor children.<\/li>\n<li>Choose who will make financial and health care decisions for you in the event you are incapacitated.<\/li>\n<li>Specifically enumerate your wishes with respect to end-of-life health care decisions.<\/li>\n<li>Express your desires regarding funeral arrangements.<\/li>\n<li>And, perhaps most obviously, determine who will inherit your assets and how much control they will have over those assets.<\/li>\n<\/ul>\n<p>To understand how a simple estate plan accomplishes the objectives listed above, let\u2019s imagine a married couple. John and Jane own community property with a <i>net<\/i> value of $2.0 million, including a San Jose, California home worth $900,000 subject to a $500,000 mortgage, and have one minor child.\u00a0 The primary element of John and Jane\u2019s estate plan will be their revocable living trust, which is best conceptualized as a legal container, into which John and Jane will deposit their largest assets, including their checking and brokerage accounts and their San Jose home.\u00a0 Their personal property, such as cars, computers and furniture, and other \u201cnon-probate\u201d assets<a title=\"\" href=\"#_ftn2\">[2]<\/a>, such as retirement accounts with beneficiary designations and life insurance policies, will not be transferred into the trust.\u00a0 Although the trust is now the legal owner of John and Jane\u2019s primary assets, the trust agreement will provide that while both John and Jane are alive they have complete power to sell, gift or otherwise dispose of the trust\u2019s assets, to add or remove assets from the trust, to change any provision of the trust, and to revoke the trust in its entirety.<\/p>\n<div class=\"pullquote-right\">\n<p class=\"pullquote\">More\u00a0than 50% of U.S. adults do not have even the most basic estate planning document; a Will.<\/p>\n<\/div>\n<p>The tax authorities (i.e. the IRS and the California Franchise Tax Board) will treat all the assets held by the trust as being owned directly by John and Jane.\u00a0 The trust is, for all practical purposes, a legal fiction, with the important distinction that upon either John or Jane\u2019s death, the assets held by the trust will be disposed of <i>in accordance with the terms of the trust agreement<\/i>.\u00a0 In this way, the trust serves as a Will substitute for both John and Jane.<\/p>\n<p>Although a \u201clegal fiction\u201d during our couple\u2019s joint lifetime, the primary objectives of the revocable trust are realized when each spouse dies and the dispositive provisions of the trust come into play.\u00a0 Those objectives include: 1) avoiding probate and its associated costs; and 2) minimizing any estate tax that might otherwise be due.<\/p>\n<h2>The Revocable Trust \u2013 Avoiding the Costs of Probate<\/h2>\n<p>Upon the first spouse\u2019s death the assets held by the revocable trust are transferred in accordance with the terms of the trust, <i>without being subject to probate<\/i>.\u00a0 Probate is a legal process whereby the decedent\u2019s Will is filed with the probate court and the court supervises the marshalling of the decedent\u2019s assets, the determination of the decedent\u2019s testamentary intent (i.e. his or her wishes regarding the distribution of his or her assets at death), the administration of the process of paying creditors and taxes and the distribution of the remaining assets to the appropriate beneficiaries.\u00a0 Probate is a process best avoided because it is time consuming (each step in the process must be reviewed and approved by a judge) and expensive.<\/p>\n<p>In California, the probate code establishes fees to be paid to the executor of the decedent\u2019s estate and his or her attorney, which fees are based on the gross<b> <\/b>value of the decedent\u2019s\u00a0estate <i>without reduction for liabilities<\/i>. In other words the value of the decedent\u2019s mortgage is added to the net value of their real property when calculating probate fees. The executor and his or her attorney (assuming they are not the same person) will <i>each<\/i> be paid an amount equal to 4% of the first $100,000 in gross estate value, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9.0 million, etc.<a title=\"\" href=\"#_ftn3\">[3]<\/a>\u00a0 If John and Jane did not have a revocable trust, then upon John\u2019s death the gross value of his estate would be $1.25 million (50% of John and Jane\u2019s $2 million in community property assets plus their $500,000 mortgage) and the statutory probate fees paid to the executor and his or her attorney would equal $51,000.\u00a0 The same fee would be due upon Jane\u2019s death.\u00a0 But if John and Jane transfer their primary assets into a revocable trust where they will not be subject to probate, they can avoid these fees entirely.<a title=\"\" href=\"#_ftn4\">[4]<\/a> \u00a0Even if John and Jane set up their trust at age 30 and each die at age 80 it is still worth paying the $2,000 create a revocable trust today\u00a0based on the time value of money.\u00a0 $51,000 paid in probate fees 50 years from now is the equivalent of $2,769 today if you assume you could have invested your money at 6% compounded for 50 years ($51,000\/ (1.06^50)).<\/p>\n<p>Additionally, because a decedent\u2019s Will is generally a public record, by avoiding probate John and Jane also avoid public scrutiny of their assets and testamentary wishes.<\/p>\n<h2>The Revocable Trust &#8211; Minimizing the Estate Tax<\/h2>\n<p>Although an explanation of the\u00a0mechanics of the federal estate and gift tax (and the lesser known generation-skipping tax) would require a small book, the key facts are as follows: 1) upon your death, your estate will be subject to the federal estate\u00a0tax, subject to certain exceptions; 2) each person has what is referred to as a \u201cunified credit\u201d against the estate tax; 3) the unified credit for a person dying in 2014 exempts the first $5.34 million of his or her estate from the estate tax; and 4) any amounts over the amount exempted by the\u00a0unified credit are taxed at 40%.\u00a0 California, like many other states, does not currently impose a state estate tax.\u00a0Although the unified credit amount is presently the largest it has been in the past decade, and consequently the vast majority of estates will not be subject to the federal\u00a0estate tax at all, there are a number of ways to maximize the benefit of each spouse\u2019s unified credit, and such strategies can be built into a revocable trust in a flexible way so that, upon death, regardless of the size of the unified credit or the federal\u00a0estate tax rate that is then in effect, the trust will dispose of the assets in the most tax advantaged manner.\u00a0 Although this description is a bit hand-wavy, the complex interplay of the federal\u00a0estate, gift and generation-skipping taxes, and the formulas that are built into revocable trusts to account for them, defy brief explanation.\u00a0 With that said, given that the first dollar subject to the federal\u00a0estate tax is currently taxed at the rate of 40%, the estate tax savings generated by a properly drafted trust can be substantial for estates with values in excess of $5.34 million (for a single individual) or $10.68 million (for a married couple).<\/p>\n<h2>The Revocable Trust \u2013 Leaving Your Assets in Trust for Children<\/h2>\n<p>Another valuable feature of John and Jane\u2019s revocable trust is that it can be drafted to provide that any assets left to specified individuals (e.g. John and Jane\u2019s child and any future children) will be automatically held in separate trusts, created at the time of John or Jane\u2019s death, such that the beneficiaries will not immediately have control over such assets when they reach age 18.\u00a0 These so-called \u201cfamily trusts\u201d are administered by a person of John and Jane\u2019s choosing (the \u201ctrustee\u201d), and the revocable trust may provide that only upon reaching specified ages (or upon the occurrence of specified events) will the beneficiaries be entitled to withdraw specified portions of the assets held in their separate family trust.\u00a0 Through this mechanism, John and Jane can ensure that the assets they leave to their children will be held and protected by a trusted third party until such time as John and Jane anticipate that their children will be responsible enough to control these assets outright.<\/p>\n<h2>The Will \u2013 Disposing of Personal Property, Choosing Guardians and Pouring-Over<\/h2>\n<p>Although John and Jane\u2019s revocable trust will direct the disposition of their home and checking and brokerage accounts, their Wills accomplish four important objectives.\u00a0 First, a Will directs the disposition of any personal property that is held outside of the revocable trust, for example jewelry, automobiles, furniture, and pets (yes, the law views pets as personal property).\u00a0 Second, a Will is the only instrument in which one can legally appoint a guardian for minor children.\u00a0 Many married couples strongly prefer that their minor children be placed with specific aunts, uncles or friends, but if both spouses die and such persons are not appointed in either spouse\u2019s Will, then a judge will make the appointment based on the judge\u2019s determination of what is in the best interests of the minor child.\u00a0 Third, a Will contains language that \u201cpours-over\u201d into the revocable trust any assets that were accidently not transferred into the trust during life, thereby ensuring that such assets are disposed of in accordance with the terms of the trust.\u00a0 Finally, a Will may state your wishes regarding burial, cremation or other funeral arrangements.<\/p>\n<h2>Durable Powers of Attorney and Medical Directives<\/h2>\n<p>A general durable power of attorney grants a specified person (the \u201cattorney-in-fact\u201d) the power to make financial decisions for, and control the assets of, the person who grants them the power (the \u201cgrantor\u201d).\u00a0 Because this power is so broad, most spouses designate each other as their attorney-in-fact, and many single individuals do not elect to prepare a general durable power of attorney at all.\u00a0 Although granting a general durable power of attorney requires great trust in the recipient, having done so may be extremely valuable in the event the grantor becomes incapacitated.<\/p>\n<p>A durable power of attorney for health care is similar to a general durable power of attorney, except that the power granted to the attorney-in-fact only allows them to make health care decisions for the grantor.\u00a0 Further, the power is not effective while the grantor is still capable of giving informed consent (as determined by the relevant medical professional).\u00a0 However, in the event the grantor becomes legally incapacitated, the attorney-in-fact then has the power to access the grantor\u2019s medical information, to consent or refuse to consent to medical procedures to be performed on the grantor, including life-saving medical procedures, and to make any other medical decisions as are specified in the durable power of attorney for health care.\u00a0 In the event you are incapacitated by a serious injury or illness, it is hard to understate the value of having given the right person (as opposed to a grieving or estranged relative, who may otherwise be granted such power by law) the power to end or prolong your life.<\/p>\n<p>A medical directive is a document which supplements the durable power of attorney for health care by specifically enumerating the grantor\u2019s desires regarding what types of medical treatments he or she would like authorized in various scenarios.\u00a0 For example, your medical directive may state that in the event you are in a persistent vegetative state, you do not wish to have CPR performed on you.\u00a0 Medical directives, although not legally binding on the grantor\u2019s attorney-in-fact for health care, provide the attorney-in-fact with specific guidance upon which they can rely when making difficult decisions about the grantor\u2019s heath care.<\/p>\n<h2>Conclusion<\/h2>\n<p>For the vast majority of Californians (as well as people who live in most other states), single or married, the cost of probate alone will usually exceed the cost of a simple estate plan, making the cost-benefit analysis quite simple.\u00a0 But when you also consider the value of choosing who will receive your assets and family heirlooms when you die, who will have the legal authority to manage your assets if you become incapacitated, to \u201cpull the plug\u201d when the conditions you state are met, and to raise your children if both you and your spouse die, I think you will agree that a simple estate plan pays for itself may times over.<\/p>\n<hr align=\"left\" size=\"1\" width=\"33%\" \/>\n<p><span style=\"font-family: arial, helvetica, sans-serif;font-size: 10px;line-height: 12px\"><strong>Disclosure:<\/strong><\/span><\/p>\n<p><span style=\"font-family: arial, helvetica, sans-serif;font-size: 10px;line-height: 12px\"><i>This article is for informational purposes only and is not intended to constitute legal advice, does not create an attorney-client relationship, is not an endorsement of Wealthfront or its affiliates, and is not intended to be advertising or a solicitation of any type.\u00a0 Each individual\u2019s situation is different and readers are advised to seek legal advice from a licensed attorney in the relevant jurisdiction.\u00a0 The author expressly disclaims any and all liability with respect to actions or omissions taken based on this article.<\/i><\/span><\/p>\n<div><\/div>\n<hr align=\"left\" size=\"1\" width=\"33%\" \/>\n<div>\n<p><a title=\"\" href=\"#_ftnref1\">[1]<\/a><a href=\"http:\/\/www.forbes.com\/2010\/03\/01\/estate-tax-living-will-schiavo-personal-finance-no-estate-plans.html\" target=\"_blank\" rel=\"noopener\">Americans Lack Basic Estate Plans<\/a>, Forbes, 3 March 2010.<\/p>\n<\/div>\n<div>\n<p><a title=\"\" href=\"#_ftnref2\">[2]<\/a> A \u201cnon-probate\u201d asset is any asset, ownership of which (or the benefits of which) are transferred automatically upon the original owner\u2019s death without being subject to probate, a legal proceeding that will be discussed later in this post.<\/p>\n<\/div>\n<div>\n<p><a title=\"\" href=\"#_ftnref3\">[3]<\/a> California Probate Code Sections 10800 and 10810.<\/p>\n<\/div>\n<div>\n<p><a title=\"\" href=\"#_ftnref4\">[4]<\/a> California Probate Code Section 13100 provides that if the gross value of a decedent\u2019s estate does not exceed $150,000, the tangible personal property of the decedent may be transferred by the decedent\u2019s successors by affidavit outside of probate.\u00a0 Through this mechanism, the tangible personal property of a \u201csmall estate\u201d (including an estate like John and Jane where only personal property having a value of less than $150,000 is held outside of their revocable trust) may be disposed of without incurring the statutory probate fees that would otherwise be paid to the estate\u2019s executor and his or her attorney.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"<p>More\u00a0than 50% of U.S. adults do not have even the most basic estate planning document; a Will. [1]\u00a0 For adults without spouses, children or any significant assets, the lack of an estate plan may not significantly impact their surviving family, but for everyone else the costs of not having a simple estate plan are almost [&hellip;]<\/p>\n","protected":false},"author":80,"featured_media":7234,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"inline_featured_image":false,"footnotes":""},"categories":[1278],"tags":[1749],"coauthors":[1748],"class_list":["post-4257","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-planning","tag-estate-planning"],"acf":[],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v24.3 - https:\/\/yoast.com\/wordpress\/plugins\/seo\/ -->\n<title>How a Simple Estate Plan Pays for Itself | Wealthfront<\/title>\n<meta name=\"description\" content=\"Several elements make up a basic estate plan, and an estate plan is a must for everyone that wants to leave loved ones unburdened and well off\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/canary.kcprod.info/blog\/estate-plan\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"How a Simple Estate Plan Pays for Itself | Wealthfront\" \/>\n<meta property=\"og:description\" content=\"Several elements make up a basic estate plan, and an estate plan is a must for everyone that wants to leave loved ones unburdened and well off\" \/>\n<meta property=\"og:url\" content=\"https:\/\/canary.kcprod.info/blog\/estate-plan\/\" \/>\n<meta property=\"og:site_name\" content=\"Wealthfront Blog\" \/>\n<meta property=\"article:published_time\" content=\"2014-01-02T15:55:10+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2022-01-12T01:12:41+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/canary.kcprod.info/blog\/wp-content\/uploads\/2017\/01\/family01.png\" \/>\n\t<meta property=\"og:image:width\" content=\"1472\" \/>\n\t<meta property=\"og:image:height\" content=\"530\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/png\" \/>\n<meta name=\"author\" content=\"Abe Zuckerman\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@Wealthfront\" \/>\n<meta name=\"twitter:site\" content=\"@Wealthfront\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Abe Zuckerman\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"12 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\/\/canary.kcprod.info/blog\/estate-plan\/\",\"url\":\"https:\/\/canary.kcprod.info/blog\/estate-plan\/\",\"name\":\"How a Simple Estate Plan Pays for Itself | Wealthfront\",\"isPartOf\":{\"@id\":\"https:\/\/canary.kcprod.info/blog\/#website\"},\"primaryImageOfPage\":{\"@id\":\"https:\/\/canary.kcprod.info/blog\/estate-plan\/#primaryimage\"},\"image\":{\"@id\":\"https:\/\/canary.kcprod.info/blog\/estate-plan\/#primaryimage\"},\"thumbnailUrl\":\"https:\/\/canary.kcprod.info/blog\/wp-content\/uploads\/2017\/01\/family01.png\",\"datePublished\":\"2014-01-02T15:55:10+00:00\",\"dateModified\":\"2022-01-12T01:12:41+00:00\",\"author\":{\"@id\":\"https:\/\/canary.kcprod.info/blog\/#\/schema\/person\/6f85478ff2ab8470b2f961054aa120d4\"},\"description\":\"Several elements make up a basic estate plan, and an estate plan is a must for everyone that wants to leave loved ones unburdened and well off\",\"breadcrumb\":{\"@id\":\"https:\/\/canary.kcprod.info/blog\/estate-plan\/#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/canary.kcprod.info/blog\/estate-plan\/\"]}]},{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/canary.kcprod.info/blog\/estate-plan\/#primaryimage\",\"url\":\"https:\/\/canary.kcprod.info/blog\/wp-content\/uploads\/2017\/01\/family01.png\",\"contentUrl\":\"https:\/\/canary.kcprod.info/blog\/wp-content\/uploads\/2017\/01\/family01.png\",\"width\":1472,\"height\":530},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/canary.kcprod.info/blog\/estate-plan\/#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/canary.kcprod.info/blog\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"How a Simple Estate Plan Pays for Itself\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/canary.kcprod.info/blog\/#website\",\"url\":\"https:\/\/canary.kcprod.info/blog\/\",\"name\":\"Wealthfront Blog\",\"description\":\"Personal Finance &amp; 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