Informal Estate Planning

With few exceptions, almost everyone we meet with to discuss estate planning has one overriding goal if they should pass away unexpectedly – to make sure their children will be cared for. Oftentimes, we hear how people have taken their own “informal” measures to accomplish this goal. Unfortunately, such informal” measures can have unwanted and unexpected consequences.

One example is when a parent with young children names a sibling or other relative as the beneficiary of a life insurance policy, with the expectation that he or she will use the money to take care of the children. The reason for doing this is valid – children are not able to manage their own finances, particularly the large sums of money that are usually paid out under life insurance policies. However, although the intent is good, there are all kinds of reasons not to do this type of planning. Here are just a few examples:

1. There is no assurance that the life insurance beneficiary (the relative) will use the money for the child’s benefit in the manner that the parents envisioned. In fact, there is nothing to prevent the sibling from keeping the money all for himself or herself – he or she has no legal obligation to spend it on the child. If the relative wants to go blow it all at the gambling boat, there’s nothing to stop him.

2. The funds are subject to the debts and liabilities of the relative. If he or she has significant debts or gets sued for some reason, then the life insurance money could all be lost.

3. Since the funds are legally the property of the relative, the income that is generated from the funds (assuming they are invested) is taxable income to the relative, and could potentially push the relative into a higher tax bracket.

4. Even if the relative fully intends to spend the money on the children, he/she would have complete discretion as to how and when the money is spent, and this may not be what the parents would want. What’s to prevent the relative from buying the child a Ferrari when he turns 16, rather than spending it on college?

5. What if the relative has his own children? He may think it unfair that he be expected to spend the money on your children, but not his children. And of course, there’s nothing to stop him from spending it on his own family.

6. What if the relative gets a divorce? The insurance funds might be deemed marital property and end up in the hands of the ex-husband or ex-wife.

What’s A Better Solution?

As you can see, this kind of “informal” planning can lead to all kinds of unintended problems. Fortunately, there is a fairly simple way to accomplish your goal of making sure that the insurance funds are held for your kids benefit without all of the problems listed above – CREATE A TRUST AND MAKE IT THE BENEFICIARY OF YOUR LIFE INSURANCE.

You can create a trust for the benefit of your kids, which contains specific instructions as to how the trust funds will be managed and spent. You have practically unlimited say in how you want the money spent. Upon your death, your life insurance proceeds will be paid to the trust, and the trustee (whomever you designate to manage the trust) will have a fiduciary duty to the beneficiaries (your children) and will be legally obligated to follow the terms of the trust. Furthermore, if properly drafted, then as long as those funds are held in the trust, they will be protected from your children’s creditors.

If You Die Without a Will

By Chris Watkins

Many people put off preparing a Will, or think they have no need for one, because they think they are not wealthy enough, or that their assets will ultimately end up in the right hands if they do nothing.  The problem with this thinking is that such people are giving up the right to control what happens to their estate.  As explained below in more detail, this can lead to unintended consequences.

When a person dies without having a Last Will and Testament, it is known as dying “intestate.”  Every state has its own intestacy laws.  Missouri’s intestacy laws are found in Chapter 474 of the Missouri Revised Statutes.  What happens to the estate of a person who has died (this person is referred to as the “decedent”) depends upon whether there is a surviving spouse and/or children.  The basic rule is as follows (it gets more complicated if, for example, the decedent had a child who died before the decedent, but left grandchildren):
The surviving spouse gets:

• If there is a surviving spouse, but no surviving descendants (children, grandchildren, great-grandchildren, etc.), then the spouse receives the entire estate.
• If there are surviving descendants of the decedent, and they are also descendants of the surviving spouse, then the spouse receives the first $20,000 of the estate, plus one-half of the rest of the estate.
• If there are surviving descendants of the decedent who are not the surviving spouse’s descendants (for example, children from a prior marriage), then the surviving spouse receives one-half of the estate.

Whatever does not get distributed to the surviving spouse (or the entire estate if there is no surviving spouse) is distributed as follows:

• To the decedent’s children (or their descendants), in equal parts.
• If there are no surviving children (or other descendants), then the estate is divided equally among the decedent’s mother, father, brothers, and sisters.
• If none of the above people survive the decedent, then the estate is divided equally among the decedent’s grandparents, uncles and aunts (or their descendants).
• If none of the above people survive the decedent, then the estate goes to the decedent’s great-grandparents, and so on (obviously it is very rare to get this far).
• Ultimately, if there is no one alive to inherit the estate, then it will go to the State.

Missouri’s intestacy laws may work fine for some people.  But in a great many cases, the default rules are not what people would want.  The problem most often encountered involves families with minor children.  In the vast majority of cases, if a married couple has children, the desire is that if one of the spouses dies, then the other spouse would inherit the entire estate, and would then have those funds and other assets to take care of the children, as well as take care of him or herself.  However, if there is no Will providing for this, then the Probate Court would be forced to distribute half of the estate to the children.  If the children were minors, then a conservator would have to be appointed to receive the funds.  This is rarely ideal.  Furthermore, when the children reach age 18, then the funds would have to be distributed directly to the children.  It is very rare for young adults to have the maturity or ability to handle large sums of money.

Another issue has to do with who would be appointed take care of the children in the event that both parents died. The Probate Court is responsible for appointing this person (known as a “Guardian”), and must follow the wishes of the child’s parents as set forth in their Will, unless the Court finds that the person(s) designated to serve as Guardian(s) are unfit to do so.  In other words, if you do not have a Will designating who you would want to take care of your children, then the Probate Court will choose for you, and it may not be who you would want.

Summary:
In conclusion, do not assume you don’t need a Will just because you are not wealthy.  As explained above, failing to have a Will can result in unexpected and undesirable consequences to your surviving family members.

If you would like a complimentary consultation on the benefits and importance of attorney representation in the creation of a Will or Trust and of Jones & Watkins LLC to serve as Legal Counsel for your Will or Trust call (573) 234-1130 or email us through our Contact Form.