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Should you omit your children’s names in your trust if you don’t want to leave anything to them?

 

如果不想留財產給子女，應否在信託剔除子女的名字

More Reasons Why You Need a Will

“Truly, nearly every legal question depends on a host of facts and circumstances that make it impossible to guarantee a particular outcome … except in the case of my favorite question: ‘Do I need a will?’”

It doesn’t take very long for any newly-minted attorneys in the trusts and estates practice area to see what happens when there is no will, says the Daily Memphian in a to-the-point article titled “Five reasons you need a will (and one reason you don’t).” The stress on families, unnecessary expenses and assets going to the wrong people, can easily be prevented with an estate plan and a will. However, in case you still aren’t convinced, here are the top five reasons:

You have a family. For those who are married with children, the laws of intestacy take over, if you don’t have a will. Assets are divided between the surviving spouse and the children in most states (check with a local estate planning attorney for your state’s laws). In theory, that sounds fine. But there are three situations where not having a will can make a mess of things:

• Minors and developmentally delayed heirs. Minors and individuals with special needs may not legally contract or represent themselves in court. Therefore, they cannot agree to the disposition of assets. When a minor or individual with special needs inherits assets directly, the court must appoint a neutral person, often an attorney, to oversee that person’s best interests. It may also require the appointment of a guardian, so the court can monitor the use of the assets in the child’s best interest, until they are of age.
• Bad relationships between surviving spouse and children. Under intestate law, the spouse inheriting reduces the amount the children inherit. If the spouse is a second wife, this can make a bad situation worse. A will can plan out the distribution of assets to care for the spouse and ensure that the children receive the assets, as determined by their parent.
• Extramarital children. Children who are not born to legally wed parents have the right to inherit, regardless of whether their parents were married. What if an unknown offspring shows up and demands his share? This does happen.

You hate your next-of-kin. Not every family is as happy as their Facebook photos. If you don’t want your lawful next of kin inheriting your assets, you need a will. Remember that as time passes and people enter and exit the family, through birth, death, marriage and divorce, the person who is your next-of-kin will likely change over time.

Do you want to give specific gifts? Under the intestacy laws, your relatives (next-of-kin) inherit your property in percentages that are based on their degree of relationship to you and the number of other relatives at that same degree. Outside of designating a beneficiary or joint owner of an assets, having a will that is properly prepared under the laws of your state, is the only way to ensure that you can determine who gets what.

You know how you want things to work after you die. If you want to have any control over what happens to your assets, how you want your funeral to be paid for, what you want to happen to personal property, etc., a will may be the best way to do this. The person named to be your executor is legally responsible to carrying out your wishes, unless it’s impossible, impractical or illegal for them to do so.

You have a living trust. If you took the trouble to have a living trust, then you should also have a will. You need, specifically, a “pour-over” will. This ensures that any assets not titled in the name of the trust at the time of your death, are transferred into the trust. Otherwise, your non-trust assets are subject to intestacy law.

The ONLY reason you may not need a will? If every single asset you own has either joint ownership or beneficiary designations. That’s very unusual, in part because it takes a lot of detail to make sure that every asset is titled correctly. You can leave real property to another person through a joint ownership deed, which establishes that person as the co-owner of the property. Accounts can be left to a person of choice, by naming a person as beneficiary.

Joint ownership and beneficiary designations do supersede the intestacy laws. However, what happens if a beneficiary dies before you do and you neglect to change the name on the asset? There are also gift and tax implications.

A will can be as complex or as simple as you want. Speak with an experienced estate planning attorney, who can make sure that your will and any other documents are prepared to achieve your wishes for your estate, protect your family, and don’t leave anything to chance.

Reference: Daily Memphian (March 8, 2019) “Five reasons you need a will (and one reason you don’t)”

Still Wondering Why You Need to Review an Estate Plan? 還在想為什麼你需要審查您的資產產計劃？ (中英對照）

“An estate plan is the guide to how you want your personal and financial affairs to be handled, in the event of your incapacity or death. As life changes, your guide changes with it.”

One of the most common mistakes in estate planning is thinking of the estate plan, as being completed and never needing to be reviewed. That is similar to taking your car for an oil change and then simply never returning for another oil change. The years go by, your life changes and you need an estate plan review.

The question posed by the New Hampshire Union Leader in the article “It’s important to periodically review your estate plan” is not if you need to have your estate plan reviewed, but when.

Most people get their original wills and other documents from their estate planning attorney, put them into their safe deposit box or a fire-safe file drawer and forget about them. There are no laws governing when these documents should be reviewed, so whether or when to review the estate is completely up to the individual. That often leads to unintended consequences that can cause the wrong person to inherit, fracture the family and leave heirs with a large tax liability.

A better idea: review the estate plan on a regular basis. For some people with complicated lives and assets, that means once a year. For others, every three or four years works. Some reviews are triggered by changes in life, including:

• Marriage or divorce
• Death
• Large changes in the size of the estate
• A significant increase in debt
• The death of an executor, guardian or trustee
• Birth or adoption of children or grandchildren
• Change in career, good or bad
• Retirement
• Health crisis
• Changes in tax laws
• Changes in relationships to beneficiaries and heirs
• Moving to another state or purchasing property in another state
• Receiving a sizable inheritance

What should you be thinking about, as you review your estate plan? Here are some suggestions:

Have there been any changes to your relationships with family members?

Are any family members facing challenges or does anyone have special needs?

Are there children from a previous marriage and what do their lives look like?

Are the people you named for various roles—power of attorney, executor, guardian and trustees—still the people you want making decisions and acting on your behalf?

Does your estate plan include a durable power of attorney for healthcare, a valid living will, or if you want this, a DNR (Do Not Resuscitate) order?

Has your estate plan addressed the possible need for Medicaid?

Do you know who your beneficiary designations are for your accounts and are your beneficiary designations still correct? Your beneficiaries will receive assets outside of the will and nothing you put in the will can change the distribution of those assets.

Have you aligned your assets with your estate plan? Do certain accounts pass directly to a spouse or an heir? Have you funded any trusts?

Finally, have changes in the tax laws changed your estate plan? Your estate planning attorney should look at your state, as well as federal tax liability.

Just as you can’t plant a garden once and expect it to grow and bloom forever, your estate plan needs to be reviewed, so that it can protect your interests as your life and your family’s life changes over time.

Reference: New Hampshire Union Leader (Jan. 12, 2019) “It’s important to periodically review your estate plan”

“資產計劃是您在喪失工作能力或去世時如何處理個人和財務事務的指南。隨著生活的變化，你的指引隨之改變。“

資產規劃中最常見的錯誤之一是認為資產計劃已經完成並不需要再審查。這就好像於您將汽車換油然後就不再換油了。隨著歲月流逝，你的生活起了變化，你是需要審查您的資產計劃。

New Hampshire Union Leader在“It’s important to periodically review your estate plan”一文中提出問題是您要何時去審查您的資產計劃。

大多數人從他們的資產規劃律師取得他們的遺囑和其他文件的原檔，將文件放入他們的保險箱或防火文件抽屜中接著便忘記了。沒有法律規定應何時審查這些文件，因此是否或何時審查完全取決於個人。這通常會引致意想不到的後果，導致錯誤的人繼承，破壞家庭並給繼承人帶來巨額稅務。

更好的意見是：定期審查資產計劃。對於一些生活和資產複雜的人來說，應每年審查一次。對於其他人，每三到四年審查一次。有些是因為生活起了變化而需要審查，包括：

• 婚姻或離婚
• 死亡
• 資產發生巨大變化
• 債務大幅增加
• 遺囑執行人，監護人或受託人去世
• 子女或孫兒的出生或收養
• 職業變化，無論好壞
• 退休
• 健康危機
• 稅法的變化
• 與受益人和繼承人的關係發生變化
• 搬到另一個州或在另一個州購買房產
• 繼承了可觀的遺產

在審查您的資產計劃時，您應該考慮什麼？以下是一些建議：

您與家人的關係是否有任何變化？

有沒有家人陷於困境之中或是有沒有人有特殊需求？

以前的婚姻中是否有子女，他們的生活如何？

您為各種角色命名的人 - 律師，遺囑執行人，監護人和受託人 - 仍然是您想要為您做出決定並代表您行事的人嗎？

您的資產計劃中是否包括醫療授權書，有效的遺囑，或者如果您需要，還包括DNR（不要急救指令）？

您的資產計劃中是否有提到醫療補助 (白卡) 的需求？

您知道您銀行帳戶的指定受益人是誰以及您的指定受益人是否仍然正確？您的受益人繼承這些遺囑之外的資產，而您遺囑中的內容並不會推翻這些資產的分配。

您是否將您的資產與資產計劃保持一致？某些帳戶是否直接傳給配偶或繼承人？你有把您的資產注入您的信託中嗎？

最後，稅法的變化是否改變了您的資產計劃？您的資產規劃律師應該查看您所在的州以及聯邦稅務。

正如你不能一下子建立了一個花園並期望它永遠成長和開花一樣，你的資產計劃需要進行審查，這樣可以保障你的利益，因為你的生活和家庭情況會隨著時間而變化。

參考：New Hampshire Union Leader (Jan. 12, 2019) “It’s important to periodically review your estate plan”

Estate Planning Review for 2019 2019年資產規劃審查 (中英對照)

“While clients often focus on the market, goals and portfolio performance, it never hurts to make sure estate planning items are correct, particularly heading into the new year.”

Your estate plan has a big impact on your finances and should be considered as important as your investment portfolio, says Wealth Management in the recent article “Eight Simple Estate Planning Review Items for 2019.”

Here are the eight items that need your attention:

Beneficiary designations. When was the last time you checked these? Beneficiary designations are usually looked at when an account is opened, and often that’s the last time people see them. Look at beneficiary designations for tangible assets, like homes, cars or collectibles. Check legal documents, including bank accounts and insurance policies.

Digital asset designations. This is a relatively new area, but very important. Even if you don’t own any cryptocurrency, chances are good you have assets like photos, reward points, websites and more. Each social media platform has a different policy for how accounts are treated on the death of the owner. You’ll need an inventory and may want to use an online service for managing your digital assets after you die.

Trust funding. This is where many estate plans fall apart. Funding trusts often requires changing titles on bank accounts, homes and other assets into the name of the trust. Major purchases, like a boat or second home, also need to have their titling corrected, so they correspond to trusts.

Documents for adult children. When your children turn 18, they are legally adults and you do not have the legal right to get information or make decisions on their behalf. If you don’t have HIPAA releases, Power of Attorney, and other documents, you may find yourself unable to help in an emergency.

Keep up with life changes. Review your estate plan with an eye to changes in your life: births, deaths, marriages, divorces, big purchases, etc. If you haven’t met with your estate planning attorney or had a phone conversation in a few years, make an appointment now for a review.

Secure photos and memories. How many times have we watched dramatic images of fires, floods, and earthquakes in 2018? Videos, photos, family heirlooms, and artifacts and other irreplaceable items should be stored in some digital format, or in the cloud. If the family includes artists, take photos of paintings or sculptures so at least you have an image of the item should it be destroyed.

Discuss wishes with loved ones. One of the biggest challenges after someone passes, is knowing what they wanted to be done with personal possessions. If you have every Beatles album, unopened, what do you want to happen to your collection? Make inventories and then tell your family what you’d like to have happen with your possessions. You can create a “Legacy Letter” and put it down on paper. It’s not legally binding, but it will give your family some direction.

Prepare for incapacity. This is not everyone’s favorite task, but necessary. If you were conscious but not able to speak, what information would your family need? Work with your estate planning attorney to create the necessary legal documents, including medical directives, and tell your family members where they are located. Some families keep certain documents (like a Do Not Resuscitate or lists of medications) on the refrigerator, so that Emergency Responders can gain access to important medical information quickly in an emergency.

Yes, it’s a good-sized list of to-dos’, and you won’t get it all done in January. However, start in January 2019, so you and your loved ones enjoy the protection you need.

Reference: Wealth Management (Dec. 12, 2018) “Eight Simple Estate Planning Review Items for 2019”

“雖然客戶往往關注市場，目標和投資組合表現，但確保資產規劃內容是正確的總沒有害，特別是進入新一年。”

Wealth Management在最近的文章“Eight Simple Estate Planning Review Items for 2019.”

中表示，您的資產計劃對您的財務狀況有很大的影響，應被視為與您的投資組合同樣重要。

以下是需要注意的八個項目：

指定受益人。你最後一次檢查指定受益人是什麼時候？這通常是在你開立帳戶時查看，而這亦通常是最後一次。查看有形資產的指定受益人，如房屋，汽車或收藏品。檢查法律文件，包括銀行賬戶和保險單。

數碼資產的指定。這是一個相對較新的領域，但非常重要。即使您沒有任何加密貨幣，也有可能擁有照片，獎勵積分，網站等資產。每個社交媒體平台都有不同的政策，用於擁有去世後如何處理帳戶。您需要一個庫存，並希望在您去世後別人可使用於網絡上來管理您的數碼資產。

注資信託。這是許多資產計劃敗筆的地方。資金信託通常要求將銀行賬戶，房屋和其他資產的持有人更改為信託的名稱。大眾購買，如船或第二個家，也需要更改業權以跟信託對應。

給成年子女的文件。當您的子女年滿18歲時，他們在法律上已是成年人，您沒有合法權利取得信息或代他們做出決定。如果您沒有HIPAA，授權委託書和其他文件，您可能會發現自己無法在緊急情況下提供幫助。

跟上生活的變化。檢查您的資產計劃，關注您生活上的變化：出生，死亡，婚姻，離婚，大量買賣等。如果您已幾年沒有與您的資產規劃律師見面或進行電話會談，請現在預約並審查。

保護照片和記憶。我們在剛過去的2018年看到多少 火災，洪水和地震這些戲劇性的圖像？視頻，照片，家傳之寶，工藝和其他不可替代的物品應以某種數碼形式或云端存儲。如果這個家庭包括藝術家，可以拍下圖畫或雕塑的照片，這樣萬一被摧毀至少你有一個圖像。

與親人討論意願。在一個人去世後所面臨的最大挑戰之一就是知道他們想要用個人財產來做些什麼。如果您有未拆開的披頭四專輯，您希望在您的收藏怎樣？製作庫存，然後告訴你的家人你的財產該怎樣處理。您可以建立一份“遺書”並將其寫在紙上。它沒有法律約束力，但它會給你家人一些方向。

為喪失能力作出準備。這不是每個人喜歡的任務，但是必要的。如果您有意識但無法說話，您的家人需要哪些信息？與您的資產規劃律師合作，建立必要的法律文件，包括醫療授權書，並告訴您的家人他們所在的位置。有些家庭保留某些文件（如“不要急救”或“藥物清單”），以便緊急救援人員能夠在緊急情況下得知重要的醫療信息。

是的，這是一個很好的待辦事項清單，你不會在一月份完成所有工作。但是，從2019年1月開始，您和您的親人該得到您需要的保障。

參考: Wealth Management (Dec. 12, 2018) “Eight Simple Estate Planning Review Items for 2019”

Make Estate Planning Simpler with a Checklist

“While advanced estate plans can be very in-depth, there is a way to simplify one's estate planning process.”

Ask an average person to define estate planning, and chances are good they’ll start describing long meetings with a lot of paperwork and complicated forms. However, that doesn’t have to be the case, says this article from InsuranceNewsNet.com, “A simple way to simplify estate planning.” It focuses on the use of beneficiary designations on a number of accounts that can make an estate plan a much simpler experience in many situations.

Beneficiary designations are primarily used on the following types of accounts:

• Employer-sponsored retirement plans, like 401(k)s
• IRAs
• Life insurance policies
• Annuities
• Transfer on death investment accounts
• Pay-on-death bank accounts
• Stock options
• Executive deferred compensation plans

Making sure to keep track of the person who has been named the beneficiary and keeping that information up to date is extremely important. It’s not always done correctly. The consequences of having the wrong person named on the asset can be infuriating and, unfortunately, permanent.

The importance of the beneficiary designation means you’ll want to:

• Remember who you have named a beneficiary of what account. People usually name their spouse as a primary and a child as a contingent. If you only have a primary, consider a charity that has meaning to you as the contingent beneficiary.
• Update your beneficiary designations, as life events occur. That includes births, deaths, marriages, divorces, etc.
• Read the instructions on the beneficiary designation. Not all forms are alike.
• Don’t name your estate as a beneficiary.
• Understand the tax implications of naming the beneficiaries. Not every asset has the same tax treatment.

Speak with your estate planning attorney to ensure that your beneficiary designations align with your estate plan. Remember that beneficiary designations supersede any provisions in your will. You should also talk with your beneficiaries—you may learn that they don’t want to inherit your asset (i.e., a person who is considering a divorce may not want the additional complication of a large inheritance).

Reference: InsuranceNewsNet.com (Nov. 2, 2018) “A simple way to simplify estate planning”

Why You Shouldn’t Put Off Estate Planning

“Our inherent nature to delay the inevitable, can lead the ones we care about into financial chaos. To avoid the chaos, careful preparation is needed when it comes to estate planning.”

Estate planning protects families, especially those with young children. It can eliminate stress, expense and unpleasant consequences that can last for generations. This is the message in an article titled “In the Works: Don’t Wait: Considerations in Estate Planning” from Guidon.

The two most common ways to transfer wealth and property are through a will and beneficiary designations. The use of a will requires probate, which is the process of having the court review the will and “prove” it the last statement made by the deceased. It can be expensive and time-consuming.  As a result, many people work with their estate planning attorneys to maximize the assets that have beneficiary and contingent beneficiary designations.

The beneficiary designations can include people, organizations, charities or trusts, or a mix of all of them.

Most of our wealth in this country is transferred through a will.  However, it can only transfer property subject to probate. Some examples are real estate, also known as real property, personal property and accounts with no beneficiary designation or surviving joint owner. Accounts that are typically transferred by beneficiary designation, include life insurance policies, annuities, pensions, IRAs and 401(k)s.

Keeping beneficiary designations up to date with changes in your life is very important. Births, deaths, divorces and marriages are all trigger events that require a look at your estate plan and your beneficiary designations.

Here’s something to keep in mind: beneficiaries are not notified when changes in their status are made. If you take someone who was a beneficiary off an insurance policy, they are not going to get a phone call or an email from the insurance company. People are often worried about the repercussions of changing beneficiary designations or even their wills. Unless you tell people there has been a change, they will not know until you pass.

Speak with an estate planning attorney about your estate plan and how much of your estate distribution is handled by your will and how much by beneficiary designations. There may be new available options  as the result of the new tax law that also require a review.

Reference: Guidon (July 19, 2018) “In the Works: Don’t Wait: Considerations in Estate Planning”