You know you can’t take it with you, so you really ought to start planning on what you’re going to do to leave it all behind. There are 12 costly misconceptions that people have about wills.
“I want to control my property while alive, take care of my loved ones and myself if I become disabled, and, upon my death, give what I have to whom I want, the way I want, and when I want. And if I can, I want to save every last tax dollar, professional fee, and court cost possible.” That’s how one group of lawyers defines the estate planning process.
Misconception #1 – Probate costs are small
Let me tell you how I came up with this list of misconceptions. Over the years, I’ve accumulated things that people think are going to happen upon their death. And I’ve put them into categories and they turn out to be 12 costly misconceptions that people have. There are actually a few more than that, but I’ve narrowed it down to the top 12.
Misconception #1 is that probate costs are small. That seems to be a common belief. Well, there are not small. Let me tell you that they average between 10 and 15 percent, sometimes as high as 20 percent, of an estate. That means that on an average $200,000.00 estate, the fee is going to be about $20,000.00. To most of us, that is not a small cost. So, misconception #1, probate costs are small – they really aren’t.
Misconception #2 – Your will and your assets remain private
Misconception #2 – your will and your assets remain private. That’s a belief that most people have – nobody’s going to be interested in my estate or find out about it. A will is a unique legal document that has absolutely no effect until you’re dead. And so to carry out the terms of your will it has to be presented to the court and the court supervises the distribution of your estate under the terms of your will. Now, it’s a court process. That means it’s open to the public. Anybody has access to the court records. And so you can have people looking at your court records that you would never have invited to in the first place. It could be just a nosey neighbor or a newspaper reporter, which is what happened to Natalie Wood’s estate. The Wall Street Journal sent a reporter after her death to look at her probate records. Now they found that she had an estate worth about six million dollars, and that included 29 fur coats and various other things. Her estate became public because there was an article printed in the Wall Street Journal. So her estate was more public than most of ours will be, but that’s what happens in the probate of an estate. It is public record. Now, you will be interested to know that in the newspaper the last several months there have been ads promoting looking at probate records as a way of finding real estate that might be up for sale at a lesser cost. So people can buy it at “fire sale” type rates. That’s all public record and now it’s being promoted as a way for other people to make money off your estate when you’re looking to sell your parents’ goods so you can just have a cash inheritance. Probate records are not private.
We’re going to take a glimpse at some of the estates of some of these famous people, just so you can get an idea. It’s kind of fun to see what happened. There’s the slide about Marilyn Monroe. Now this doesn’t tell the whole story because when she died in 1962, she was actually deeply in debt, but over the next 18 years her estate gained some royalties and other payments, and so it accumulated about a million and a half more dollars. The estate was settled and, as you can see there that at the end, the net estate – the amount that was finally able to be distributed to her heirs — amounted to about $370,000.00. So out of that one and half million dollars that her estate accumulated, most of it was eaten up in taxes, court costs and lawyers’ fees.
Robert F. Kennedy
The Kennedy Family is full of tragedies. Of course, we know about the assassination of President John F. Kennedy, but do you remember his younger brother, Robert Kennedy, was also assassinated while he was running for president? Robert F. Kennedy was a lawyer and he had been the U.S. Attorney General. So, you’d think he would know about planning his estate. But when we look at the settlement of his estate it appears he had a gross estate of about 1.6 million dollars — a pretty good sum in those days. And that the costs in settling his estate amounted to just over a million dollars. So the total shrinkage in his estate was 63%. Now this is from someone who should have known about planning for his estate. He was a senator, a U.S. attorney, a learned gentleman with a wealthy background, and yet the shrinkage of his estate was huge.
It’s always fun to talk about the rock star, Elvis Presley. While he was alive, he accumulated an estate over 10 million dollars in value. Of course, he didn’t expect to die when he did. But he left an estate full of debts and costs of settlement, and didn’t really plan for passing his estate onto his heirs. Now they’ve made a lot of his estate, but I think if Elvis were to come back now, he would say “Don’t be cruel.” They took a lot of his money in settling his estate. The total costs of his estate were over 7 million dollars. Imagine if he had planned a little bit and left more to his family what Graceland would amount to now, and his other assets. They’re huge, as it is, but they were cut way down at his death. The shrinkage was about 73%.
Misconception #3 – A will can be probated in just a few weeks
Misconception #3 – a will can be probated in just a few weeks. No, not so. By law, probate must take at least 3 to 6 months to give creditors the time to file claims against the estate. So the estate can’t be closed any sooner than that. I gave a seminar once to a public group and told about an estate that was in probate for 59 years, and there were 3 generations of attorneys who lived off that estate. Now I thought that was unusual, but after that comment a gentleman came up to me and introduced himself as a Philadelphia lawyer. And he said he was involved in an estate back in Pennsylvania that had been open for more than 75 years. So you see that can happen. It can be a very long estate. The average time for an estate, though, is between one and two years. Even Howard Hughes’ estate…a billionaire…his estate was settled in 11 years. Interesting enough, there were 29 wills presented to the courts in both Texas and Nevada, and not one of them was found to be a valid will. So his estate took 11 years to settle.
Misconception #4 – A will helps you avoid taxes
Misconception #4 – a will helps you avoid taxes. No, a will doesn’t do anything one way or another about taxes. It has no effect on your tax. Most of us won’t worry about our estate taxes anyway because the Federal government has passed an estate tax exemption and currently (in the year 2106) that’s $5.45 million dollars. If you happen to have an estate that is worth more than $5.45 million dollars, you should do some planning — especially if you’re married, because with the use of a revocable living trust, you can keep that estate tax exemption for both you and your spouse. Which means you can protect up to $10.9 million dollars from any estate taxes. And greatly reduce it on any amount over that. But a will by itself doesn’t do anything to save on taxes.
Misconception #5 – A will or a testamentary trust avoids probate
Misconception #5 – a will or a testamentary trust avoids probate. No, we’ve already learned a will is a unique legal document that has no effect until your death, so it has to go through a probate process to carry out your wishes. A testamentary trust is simply a portion of a will in which you leave assets to your heirs that will not inherit that amount until some future time or event. That’s called a testamentary trust. Because that is a part of a will, it also is subject to the probate process. Now I can hear some of you saying to yourselves “it sounds like it’s too much trouble to have a will, so I’m just not going to prepare one at all. Then I won’t have to worry about all these things.” Well, let me advise you that if you don’t prepare your own will, there is a will that’s been prepared for you. It’s what we call intestate laws because the legislature of your state has gotten together and passed a series of laws that determine how your estate will be settled if you leave your estate without preparing a will. You probably don’t want your legislature to be the ones that draw up your will, so that’s a reason to do your own estate planning.
Misconception #6 – Owning property in joint tenancy is the safest way to avoid probate
Misconception #6 – owning property in joint tenancy is the safest way to avoid probate. Many people have this idea that they can eliminate probate simply by owning their assets in joint tenancy. Well, that works sometimes, but you have to be careful to make sure that the asset is held in joint tenancy with right of survivorship. Those are the magic words that have to be on the document, on the deed, on the bank account. Without the words with right of survivorship the property does not automatically go to the other joint tenant without probate. So this is a misconception. Too many times people have come to me and said, “Steve, I have this deed. Real estate is being held by me and by my deceased wife as joint tenancy, but the title company won’t let me keep it in my name or sell it without going through probate. They say it needs to have some additional language.” I have to agree with them. The magic clause with right of survivorship is missing. That means it will require probate.
Joint tenancy simply postpones probate.
Even if that magic phrase is on the deed — it’s held as joint tenants with right of survivorship — this simply means it postpones the probate until the second death. Sure, it will avoid the probate on the first death. With right of survivorship means the property automatically belongs to the survivor. But at the death of the second person, this property is still subject to probate. So it does not avoid it altogether.
Never hold property in joint tenancy with anyone other than your spouse.
I recommend that you never hold any kind of property in joint tenancy with anyone other than your spouse. Now you hate to use that word “never.” It seems that there is always an exception. But I haven’t found the exception to this one, yet, because joint tenancy also means joint liability. Now with your spouse, that’s not so bad. You usually have joint liability anyway, but with anyone other than a spouse, do you want to be held accountable for their liabilities? Let me illustrate this one with a story.
A few years ago I was visited by a lady who wanted to have me prepare 2 new deeds for her. Her husband had recently died. They owned their home in joint tenancy with right of survivorship. It worked so well upon the death of the husband — the house became her own house without any probate; she just recorded a death certificate – that she wanted to do that same thing so that upon her death her house would transfer to her son. So I said, “okay, well tell me a little bit first about your son.” She said, “well, he’s a middle-aged man. He’s married to this lady that’s…” Well, I better not say what she said about the lady. “But he’s working in a job right now, but he’s got an idea that he’s going to start a restaurant. So he’s about ready to get out into a new business.” So I said, “Okay, let’s take a look at what might happen. Not what will happen, but let’s just see what could happen if we put your home in joint tenancy with your son. Now he starts his restaurant business. He signs a lease – a long-term lease because he’s sure his business will be successful. He buys pots and pans, walk-in refrigerators, ovens, table cloths, all the things you have to do to start a restaurant business. And to that, of course, he has to go into debt. He started the restaurant and it turns out this was in the wrong location, and so the business failed. Now his creditors still want to get paid. So they come to him for payment. Well, he has nothing left, but they see that he owns some property in joint tenancy with you. Do you know that you are now responsible for his debts and liabilities? So you could end up losing your home. I know you also want to have his home put in joint tenancy with you, because you also helped him with that home. So you could end up losing both homes over the failure of the business.
Business is successful but the manager forgets to pay the taxes.
I’m going to refer to this lady as “Mrs. Green.” That’s not her real name, but we’ll just call her that. So I said, “Mrs. Green, let’s assume your son is successful in the restaurant business, so none of that happens. So we won’t worry about losing the house over a business failure. In fact, your son is so successful, that he decides that he needs a business manager. He hires someone to pay the bills, take care of the employees and do all of those kinds of things. And it turns out that this business manager neglects to play the federal employment taxes. I don’t know if you realize this, but when the government finds out there’s some tax due, they want to get paid. And so they find that the restaurant business is behind in taxes, and now there’s a levy placed upon the business. And it turns out the business manager hasn’t kept a reserve in the business to pay any taxes, and so there’s no money. Well, the government now files a lien. That lien could attach to both your home and your son’s home. Again, you could end up losing your home over non-payment of taxes. Is that what you want to have happen?”
“Now, Mrs. Green, I know that’s not going to happen to your son. He’s going to take care that all the taxes are paid and the business is successful. So let’s assume none of those things happen in the business. But then later on, your son is doing so well. He feels good about himself and he takes an extra drink before he goes home. On his way home, he’s in an auto accident. The accident is considered to be his fault, because his blood alcohol level was over the legal limits. He didn’t notice that his auto insurance had just expired. And now the person who was injured in that accident wants to be paid and there’s no insurance to pay. That person files a lawsuit, gets a judgment. That judgment can be executed against your home and your son’s home. You could lose your property over that auto accident.”
“Now Mrs. Green, I know your son doesn’t drink. He’ll be sure his auto accident insurance is paid up. So let’s not worry about any auto accident. Everything goes along quite well in the business. He’s not in an accident; he doesn’t drink; but now that wife of his that you told me about files a divorce. Well, in a divorce proceeding she claims that not only does her husband own a house, he’s also a title owner on his mother’s house. So she wants a portion of both those houses in the divorce settlement. If she has a good lawyer, she’s liable to prevail on that and she could take your house in the divorce proceedings. Is that what you want?”
You decide to sell your house and move to a retirement community.
“Okay, now your son is successful in his business. He doesn’t have an auto accident. And let’s say he gets along well with his wife. So there really is no divorce. Everything is going along quite well, but your house is getting to be a little too much work for you. You’ve got to paint; you’ve got to update the carpeting; and all of those kinds of things. You decide rather than doing all of that, you would just rather move into a retirement community and have those things taken care of for you. So you put your home up for sale. There’s a buyer who wants to buy the house. You go to the title company to sign all the sales documents, and the title officer says, ‘Now, Mrs. Green, I see here that there’s another name on the deed.’ You say, ‘Yes, that’s my son.’ He says, ‘Well, we’ll need his signature to complete this transaction.’ So you go to your son and tell him he has to come down to the title company with you next time to sign the deed. When you appear at the title company with your son, all of a sudden he says, ‘Well, Mom, I really don’t want you to sell the house. I don’t think you should move. We like having you nearby. You’re able to take care of our kids when we need a babysitter. And if you’re worried about the maintenance, I’ll mow the yard. I’ll even paint the house. I’ll do whatever you need to do, I just don’t want to sign the deed.’ You know, you can’t sell your house now without your son’s approval? Would you like to wait for that?”
Revocable Living Trust – Pre-nuptial agreement
By this time, Mrs. Green said, ” I don’t care what else you’re going to tell me. I don’t want my son’s name on that deed, no matter what. But I still would like to avoid probate. Is there something else you can recommend?” I said, “Yes, you could set up a simple revocable living trust. You’ll put your house and the house your son’s living in into this one revocable living trust. You’ll be the owner of that trust, and all of the property. Then upon your death, the trust will say that this home and the other home will be distributed to your son. Both of them will be transferred without going through probate. But in the meantime you won’t have to worry about any of his liabilities.” She said, “That sounds wonderful. Can’t we set that up for me right away?” And we did. Now that’s not the end of this story. A year or two after that, Mrs. Green came back to see me. She said, “I have a question to ask of you. I’ve recently been married. I didn’t want to ask my husband to sign one of those, you know…agreements to get a divorce. What’s it called? A pre-nuptial agreement? So we didn’t do that. What effect does my marriage have on my property?” I said, “Mrs. Green, your trust was set up while you were single. All of the property that went into your trust is your sole and separate property. It remains your sole and separate property even after your marriage. And so unless you’ve commingled it, your husband has no claim on any of that property.” She was so relived. She didn’t really need to get one of those agreements to get a divorce. The trust did that for her, as well.
Misconception #7 -Your permanent home and your vacation home can be handled through the same probate
Costly misconception #7 – your permanent home and your vacation home can be handled in the same probate. Yes, they can if they are in the same state. Otherwise, there must be a probate in each state. If you own a home or property in more than one state, you’ll need to open a second probate in each additional state, which, of course, means additional costs and fees. This can double the probate expense.
Misconception #8 – A will prevents quarrels over assets
Misconception #8 – a will prevents quarrels over assets. Wrong. Wills are the subject of more lawsuits than any other type of legal document. Today it is common for unhappy friends or relatives to contest a will, resulting in higher attorneys’ fees and added delays in settling the estate. This is one more reason the average probate can take more than two years. Just for example, when Liberace died several years ago with an estate worth several million dollars, his will left a portion of his estate to a sister-in-law, a housekeeper and some other friends. Not mentioned in his will were the four children of Liberace’s brother, Rudy. These four adult children appeared in a Las Vegas probate court to contest the will. After listening to testimony, the judge in the case decided not to honor the claims of these four and allowed the distribution to go forward as outlined in the will. But all of this was at much cost and delay to the estate.
Misconception #9 – Family members can sell property in the estate to raise money
Misconception #9 – family members can sell property in the estate to raise money. No. The assets in the estate are effectively frozen until the plan for distribution is approved and the probate ended. Permission to play beneficiaries out of the estate should be done only when authorized by the court. If the personal representative distributes property without the court’s permission, the court could hold him personally liable to repay the money if the estate doesn’t have enough money to pay all the creditors’ claims.
Misconception #10 – A will from one state is not legal in another state
Misconception #10 – a will from one state is not legal in another state. This is not true. If the will in one state is legal in the state where it was prepared, it is also legal in any other state. This is due to the full faith and credit clause of our United States Constitution. Each state must grant full faith and credit to the laws of every other state. However, it may be more difficult and costly to administer an out of state will in your new state of residence. The courts in your state of residence may require the personal representative to prove the legality of the will in the foreign state, in the event there is a probate. That’s why you should always review — if not replace — your will in the event that you move to another state.
Misconception #11 – The cost of planning your estate is only the cost of drawing up your wills
Misconception #11 – the cost of planning your estate is only the cost of drawing up your will. No, the cost of any estate plan is both the cost of drawing up of the documents and the cost of carrying out the plan. If your will cost you $500.00 in attorney’s fees and then the probate of your estate upon your death is $10,000.00, then the total cost of your estate plan is $10,500.00. This is much more than simply the cost of the original will. The will is not only one of the most likely to be contested of all legal documents, it’s also one of the most expensive.
Misconception #12 – You must name your attorney as your Personal Representative
And costly misconception #12 – you must name your attorney as the personal representative of your will. Not so. You may name anyone of your choosing to be your personal representative or executor, but many attorneys would like you to name them as your personal representative in your will. You see, when you name your attorney as your personal representative, you give him permission to be paid twice. Once, when he acts as your personal representative, and then again when he acts as the attorney for your personal representative to probate and settle your estate.
I hope you have enjoyed learning about the 12 Costly Misconceptions About Wills. Now I invite you to give us a call at (480) 725-8111 and let us help you plan your estate.