Consumer and bankruptcy attorney John Ventura begins his newest book talking about how we spend most of our waking hours either working to earn money or thinking about what we’ll do with it: spend it, save it or invest it.
And then there are those folks who dream about it as well.
But Ventura also notes that few people give more than a passing thought to what happens to our money and our property after we die. Estate planning isn’t high on most people’s lists, perhaps because they don’t believe they have that much to leave to their heirs. Or, perhaps because it’s not really an “upper” to spend time thinking about death and what happens after.
In fact, Ventura cites a Harris Interactive 2007 survey that found more than half of all adult Americans don’t even have a will, a basic estate planning document used to transfer assets after death.
The point he makes is simple: If you don’t plan your estate, a judge will make the decision for you. The likelihood that the judge will make the same decision you would about who should get your house, your retirement account assets and your other worldly possessions is remote.
If you don’t own any real estate, and you don’t have that much in the way of cash and investments, your estate planning can be fairly simple: If you remember to name beneficiaries on your IRAs, 401(k)s, and any insurance policies you own, then most of your estate planning will take care of itself.
But if you do own real estate, and have assets that exceed the lifetime credit exemption (the amount you can pass down to your heirs estate tax free, which for 2008 and 2009 is $3.5 million), some estate planning is in order.
Ventura divides the book into four different parts: The hows and whys of estate planning, estate planning tools, estate planning for your family, and what to do when you can no longer make decisions for yourself. The book is laid out in a way that is easy to understand and help you build on your knowledge from chapter to chapter.
For most people, Chapter 5 “Your Will, Your Executor, and the Probate Process,” will be the key to unlocking the mysteries behind the probate process, which many homeowners fear.
Ventura walks the reader through the probate process, which begins with the locating the deceased person’s will. The executor will represent the probate estate in probate court, and act as the point person when the estate’s assets are ready to be distributors.
After the will is found, Ventura writes, the executor will have to complete and file a special petition form with the probate court asking it to formally accept the deceased’s will. The executor will have to create a written inventory of all the estate in the estate and determine the current value for each asset. Creditors will have to be notified of the death and of their right to file a claim against the probate estate, so any debts that are owed can be paid.
The executor will have to fill out and file a federal and state tax return, pay any estate taxes the estate owes, try to collect any money owed to the estate, manage any investment property in the probate estate, pay the estate’s financial obligations, defend the will against contests, transfer the appropriate assets to the testamentary trust (if one was included in the will), prepare a final written report for the probate court, distribute your assets according to the terms of the will, and close the estate.
If there aren’t enough assets in the estate to pay the debts that are owed, the executor will have to participate in an abatement process, governed by state law, in which the available assets will be used to pay various creditors of the estate.
While the book isn’t state specific, Ventura does provide general answers to many of the questions homeowners and real estate investors have about real estate, such as, “What happens to my estate if I own property in two different states when I die?”
According to Ventura, the probate process typically takes place in the state in which you’re legally residing at the time of death, even if you wrote your will when you were living in another state. However, if you own real estate in several different states, those assets may be probated in those states. The executor of your estate will have to deal with two different probate courts, or hire a local probate attorney to help out.
The book also provides good information about living trusts, as well as basic information about various types of trusts that might be helpful to property owners in a variety of situations, including a special needs trust, spendthrift trusts, qualified terminable interest property (QTIP) trusts, irrevocable life insurance trusts, A/B trusts (also known as marital trusts or second-to-die trusts), charitable trusts, educational trusts, generation-skipping trusts, and grantor retained trusts. These trusts are discussed in more detail in the book.
While the book could be more comprehensive in its discussion about how these trusts could be implemented, and the costs of setting them up, it provides a starting point for those who don’t know how to take their first estate-planning step.
Aug. 14, 2008.
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