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Frequently Asked Questions About Estate Planning©
By David C. Dale and Timothy K. Babcock

What Is Estate Planning?
What Is A Will?
Who Can Make A Will?
What Does A Will Do?
What Should Be In A Will?
What If There Is No Will?
What Is Probate?
What About Death Taxes?
What Does An Estate Plan Look Like?
What Is A Trust?              
Where Should A Will Be Kept?
How Often Should A Will Be Updated?
What Other Estate Planning Documents Do I Need?

What Is Estate Planning?

    Estate planning consists of the arrangements (plans) each of us makes, either intentionally or by doing nothing, in anticipation of our incapacity or death, for handling our estate (property) in the event of our incapacity and for disposing of our estate at our death.  Estate planning frequently includes making a power of attorney, making a will, and/or creating a trust.  Estate planning also includes a review of the manner in which we own our property (whether in our individual name or in joint ownership with someone else) and the beneficiary designations that we make to dispose of certain property (such as life insurance, IRAs, and retirement plan benefits).  A well-coordinated estate plan will address such issues as minimization of income and death taxes, the possibility of our temporary or permanent incapacity prior to our death, the disposition of our property at our death, and the management of property, where appropriate, for members of our family who may not be able to manage well for themselves.  Estate planning also includes the consideration of provisions for church and charity.

What Is A Will?

    A will is a legal instrument made for the primary purpose of transferring the ownership of property at death.  Other reasons for making a will include the naming of a guardian for minor children and the naming of an individual, bank, or trust company (frequently referred to as the “personal representative,” “executor,” or “executrix”) to supervise the estate settlement process.  An individual who leaves a will is considered to have died “testate,” whereas, one who dies without a will is considered to have died “intestate.”

Who Can Make A Will?

    In Indiana, an individual must be of sound mind and at least 18 years of age (or a member of the Armed Forces of the United States) in order to make a valid will.  In Indiana, to be valid, a will must be in writing and must be witnessed by two disinterested individuals in the exact manner specified by law.  Indiana does not recognize unwitnessed wills.

What Does A Will Do?

    The function of a will is to transfer the ownership of specified property to the recipient(s) named in the will by the maker.  In order to be controlled by the maker’s will, the property must be owned by the maker in his or her own name at the time of death.  Such property is sometimes referred to as probate property.  A will cannot serve to transfer property owned by the maker as to which he or she is permitted to and has named a beneficiary.  For example, if the maker owns a policy of insurance on his or her life or is a participant in a retirement benefit plan (401(k) or IRA), the maker probably will have signed a beneficiary designation form.  That designation form, instead of the maker’s will, will control the disposition of the life insurance, 401(k), or IRA benefit payable by reason of the maker’s death.

    The transfer of property, such as bank accounts, automobiles, and real estate, owned jointly by the maker with his or her spouse or another individual, with the right of survivorship, also is not controlled by the maker’s will, so long as the spouse or other joint owner survives the maker.  Rather, the jointly owned property will pass automatically at the first death to the surviving joint owner.  Thus, with married couples, a will is not needed at the first death if all of the couple’s property is owned by them jointly or is controlled by beneficiary designation.  However, it is best for both of the spouses to have a will, just in case the first of them to die happens to own property in his or her own name at the time of death that is not controlled by beneficiary designation.  Also, which spouse will survive always is a matter of speculation and, in any event, the surviving spouse may not have the time, ability, opportunity, or motivation to make a will following the first death.

What Should Be In A Will?

    A will should state clearly that the instrument is the maker’s will and that it is his or her intent to revoke all prior wills.  It also should identify the maker and the members of his or her immediate family.

    Under current Indiana law, if the maker and his or her spouse are both deceased, and the maker’s family includes one or more minor children, the minor children of the couple are entitled to share in a $25,000 survivor’s allowance which is paid before any other gifts are paid.  This can prove to be especially problematic where a couple may have one or more children over the age of 18 and one or more under the age of 18.  If the will is silent, the minor child or minor children would receive an additional $25,000.  As most couples want their children to be treated equally, specific reference that the survivor’s allowance is not to apply insures the maker’s wishes are carried out.

    Typically, the maker then will list any desired specific bequests of cash or other property (such as to an individual or a church or other charitable organization).  Generally, with respect to household goods, furnishings, motor vehicles, tools, sporting goods, personal effects, and like items, it is best to dispose of them in the aggregate or by broad categories, rather than to incorporate long lists of specific items.  Frequently, when long lists of specific items are incorporated into a will, some of the items either cannot be found following the maker’s death or cannot be identified from the descriptions used in the will – or the named beneficiaries do not want the items specified for them.

   After any desired specific gifts have been listed, a will should then indicate what is to be done with the balance of the maker’s probate estate (frequently referred to as his or her residuary estate).  In doing this, the maker should indicate a preferred plan of disposition and a contingent plan, just in case it is not possible to carry out the preferred plan.  Family members and others do not always die in the order expected by the maker.  This is an especially important consideration for couples who have young children, and in other situations where a common disaster affecting all of the members of the immediate family is possible.

   Indiana law has been revised to give legal effect to a memorandum or list prepared by the maker after a will is signed if the intent to make a memorandum or list is mentioned in the will and the memorandum or list describes the items and beneficiaries with reasonable certainty and is signed by the maker.  This list is limited to items of tangible personal property and cannot be used to dispose of anything other than items of tangible personal property.  No such memorandum or list will be legally effective to make cash / monetary gifts, gifts of other items of intangible personal property (such as certificates of deposit, brokerage accounts, stocks, and bonds), or gifts or real estate.  Because the possibility of unintended results form lack of coordination between the provisions of any such memorandum or list and other provisions of the maker’s will is relatively high, we strongly advise you against the preparation of any such memorandum or list in the absence of competent legal advice.

   A will also should specify how any death taxes and other expenses are to be paid – that is, whether they are to be paid generally out of the residuary estate before it is divided and distributed in the manner specified, or whether each (or certain) beneficiaries are to pay their own taxes and expenses out of the property received by them.  Finally, a will should name the individual(s) and/or bank or trust company that the maker wants to act as the guardian of the maker’s minor children, if any, and, whether the same or different, as the personal representative of the maker’s estate.

What If There Is No Will?

    If an individual (frequently called a “decedent”) who is domiciled in Indiana at the time of his or her death does not leave a will, his or her property will be disposed of under the terms of the will substitute made by the Indiana legislature for all such individuals who fail to make a valid will.  However, in many cases, the will substitute made by the legislature is not what the decedent would have wanted.  To illustrate, in the case of a married individual with children, the law provides that if that individual dies without a will his or her surviving spouse will receive only one-half of his or her net probate estate, in addition to a $25,000 survivor’s allowance.  The other half will pass to the decedent’s children, equally, regardless of their ages.  Most married couples, whose only children are the ones from their marriage to each other, would prefer that all of their probate property pass to their spouse at the first death, and then to the children of their marriage at the second death.  In order to assure this result, each spouse needs to have and maintain a will that indicates that preference.

    The will substitute made by the legislature also is contrary to what most childless married couples would want.  The law currently provides that at the death of the first spouse, in addition to the $25,000 survivor’s allowance, the surviving spouse is entitled to only three-fourths of the deceased spouse’s net probate estate, if a parent of the deceased spouse is then living.  The other one-fourth goes to the deceased spouse’s parent(s).

    The will substitute made by the legislature may be difficult to administer in the case of a second marriage.  With a second marriage where the couple has no children of that marriage, at the death of the first spouse, after the $25,000 survivor’s allowance, the surviving spouse is entitled to one-half of the deceased spouse’s personal property (including household goods, furniture, etc., and bank accounts, stocks, bonds, etc), the same as with a first marriage, but only an amount equal to 25% of the fair market value of the real estate owned by the deceased spouse.  The decedent’s real estate may be difficult to value and the surviving spouse’s entitlement to 25% of its fair market value may result in a forced sale of some or all of the decedent’s real estate.  It should be noted, however, that the will substitute made by the legislature typically is of limited application in a second marriage context if the couple had a prenuptial agreement.  It also should be noted, with second marriages where both of the spouses have children from a prior marriage, that placing title to property in joint ownership frequently is unwise, as there is a great likelihood that all of the joint property will end up in the hands of the surviving spouse’s family (to the exclusion of the family of the first of the spouses to die).

    A will is, therefore, a practical necessity if an individual’s wishes are not the same as those expressed by the will substitute made by the legislature.  A married individual, for one reason or another, depending upon whether it is the individual’s first or a subsequent marriage, may wish to leave all of his or her net probate estate to his or her spouse (instead of partly to his or her children).  An individual with children may wish to benefit one child over another.  A childless unmarried individual may wish to leave property directly to nephews and nieces (for example), rather than to parents or siblings (as the legislature’s will substitute provides).  An individual also may wish to leave property to a church or other charitable organization.  In all of those cases (and many others), for wishes that are not that uncommon, a will is needed.

What Is Probate?

    In its simplest form, probate is the system or process by which the title to property owned by an individual at the time of his or her death is transferred to the beneficiaries of his or her probate estate.  The probate system empowers the personal representative to transfer the ownership of that property from the decedent to the next owner.  Without the probate system, banks and other institutions (for example) would not know who they could recognize safely as the new owner of the decedent’s property (accounts, certificates of deposit, etc.).

    The probate system was simplified greatly in Indiana with the advent of unsupervised administrations.  Prior to unsupervised administrations, personal representatives were required to seek court approval for virtually all actions that they desired to take on behalf of an estate.  The result was a more complicated, longer, and more costly settlement of a decedent’s affairs.  With an unsupervised administration, the court’s involvement is essentially limited to the formal appointing of the personal representative.  The balance of the settlement process is then left largely to the personal representative.  This, of course, does not mean that the personal representative may proceed without scrutiny.  At the end of the settlement process, the personal representative must provide all of the affected beneficiaries with a written accounting of his or her actions during the course of the administration.  Further, anyone who believes that the personal representative acted improperly in any regard is afforded a period of three months, following conclusion of the administration, in which to file with the court an objection to the personal representative’s accounting and discharge.  If no objection is filed, the personal representative is discharged automatically from all further responsibilities and liabilities.

    An unsupervised estate administration can be requested by an individual in his or her will.  If not so requested, an unsupervised administration is still possible, if all of the beneficiaries sign a consent to an unsupervised administration.  As a practical matter, this can prove to be difficult in estates with more than a few beneficiaries.

    Under current Indiana law, the probate process lasts for a minimum of three months.  This allows creditors and others an opportunity to file claims against the decedent’s estate.  (This also establishes a deadline for the filing of claims.)  If an Indiana inheritance tax return is required, the probate process will typically last six to nine months, as most personal representatives will not want to close the estate until written approval of the inheritance tax return has been received from the Indiana Department of Revenue.  If a federal estate tax return is required, the probate process typically endures for more than one year – and, sometimes, two to three years – before written approval of the return has been received from the Internal Revenue Service.  Keep in mind, however, that most of this time is spent waiting for approval of the death tax returns.  Attorney fees and other expenses usually will not increase during the waiting period.  In many cases, it also is possible to make a substantial partial distribution of the estate while waiting for approval of the death tax returns.

What About Death Taxes?

    When it comes to death taxes in Indiana, there typically are only two taxes to be considered – federal estate tax and Indiana inheritance tax – and most estates are not subject to federal estate tax.  Federal estate tax is a tax on the value of the property (estate) owned by the decedent at the time of his or her death.  At the time of this publication, estates of up to $2 million are usually exempt from federal estate tax. However, current federal law provides for substantial future increases in the exemption – and even for total repeal of the federal estate tax if death occurs in 2010.  It should be noted, however, that most experts believe that the 2010 repeal will itself be repealed.   Under present federal law, after a taxable estate reaches $2 million, the excess is taxed at rates starting at 46%.  However, property passing to a surviving spouse or to a church or other charitable organization generally is deductible in determining the amount of the taxable estate.  If an estate is otherwise likely to be taxed, there are several things that can be done, particularly for married couples while both are living, to reduce and frequently eliminate the federal estate tax – but proper planning, while both spouses are living, is essential.

    The other tax, Indiana inheritance tax, is a tax calculated separately on the value of the property that each individual inherits, rather than being calculated on the value of the entire estate.  Further, the tax rates are based on the closeness of the beneficiary’s relationship to the decedent, with those of more remote relationship being taxed at significantly higher rates.  As with the federal estate tax, property passing to a spouse or charity usually passes tax-free.  A parent, child, stepchild, or grandchild presently enjoys a $100,000 exemption and pays tax on the excess of his or her inheritance at very low rates.  Those of more remote or no relation to the decedent are granted almost no exemption and pay tax on the excess at much higher rates.  In most cases, the Indiana inheritance tax is so relatively insignificant as to not warrant specific tax reduction planning.

    It is important to note, for both federal estate tax and Indiana inheritance tax purposes, that the taxable estate includes much more than probate property.  It also includes property held in trust, property owned jointly with the right of survivorship, annuities, and retirement plan (401(k) and IRA) benefits.  For federal estate tax purposes (but generally not for Indiana inheritance tax purposes), the taxable estate also includes life insurance proceeds and gifts made during lifetime in excess of the available exclusion (presently $12,000 per donee per year).  Thus, a decedent could have little or no probate estate, but his or her beneficiaries nevertheless could have a substantial federal estate tax and/or Indiana inheritance tax liability.

    Under present federal law, in most (but not all) cases, the effective federal estate tax exemptions and minimum tax rates are as follows:

    For the majority of individuals, an estate plan will take the form of a basic will that leaves everything to the individual’s spouse, if surviving; otherwise, to his or her children (with, perhaps, a bequest of some measure to church or charity).  In some cases, for a variety of reasons, one or more trusts may be added to the estate plan, either within the will or separate from the will.  Frequently, two factors dictate whether additional matters are addressed in an estate plan.  The first of these is the size of the individual’s estate.  If the size of the estate might exceed the exemption that may be available at the time of death for federal estate tax purposes, it may be desirable to augment the estate plan to incorporate provisions that will (under the laws in effect at the time the plan is formulated) reduce or eliminate what otherwise may be a substantial federal estate tax liability.

    The second of those factors is peace of mind.  Even when death taxes may not be a great concern, the ability of children or other beneficiaries to handle an inheritance may be a significant concern.  For example, an individual may be concerned that if his or her children receive an inheritance at too young an age it may rob them of ambition or they may not have the maturity to handle their inheritance responsibly.  Those concerns may be addressed through inclusion of a trust in the estate plan.  Under Indiana law, in the absence of contrary provisions, all property inherited directly by a minor is turned over to the child at 18 years of age.

What Is A Trust?

    Perhaps the most popular estate planning device today is the “revocable living trust.”  Such trusts are so popular that they are even being sold door to door as substitutes for wills.  However, such trusts are not new at all, rarely are an effective complete substitute for a will, and have been available estate planning tools for hundreds of years.  Their current popularity is due to actual and perceived abuses and deficiencies in the probate system in some areas of the country – and the representation of many trust promoters that having a revocable living trust will somehow make the trust customer’s estate immune from those abuses and deficiencies.  However, as frequently is the case, as one problem is addressed another problem arises – and we now are seeing frequent abuses by some promoters of revocable living trusts.

   In its most basic form, a trust is a legal device (declaration of trust or trust agreement) created in writing by an owner of property (frequently called the “settlor”) by which the owner transfers the ownership of some or all of his or her property to himself, herself, or another individual or corporation (called a “trustee”) who holds the title to and manages that property for the settlor in accordance with the provisions of the trust instrument.  A revocable living trust will accomplish probate avoidance, with respect to property that is owned by the trust at the time of the settlor’s death, because that property was not owned by the settlor at the time of his or her death; rather, that property was owned by the settlor’s trust, which did not die.  Consequently, there is no need for a process (probate) to handle the transfer of title to that property from the settlor to the next owner.

    Trusts take two forms – living trusts and testamentary trusts.  A living trust is a trust established during lifetime.  Typically, the settlor acts as his or her own trustee until such time as he or she is unable to, or no longer desires to, act as trustee.  The settlor transfers the ownership of some or all of his or her property to the trust, which is how probate is avoided over that property.  Living trusts are the type of trust that is advocated by most trust promoters.  A testamentary trust is a trust that is established by the provisions of a will and becomes effective at the maker’s death.  In essence, such a trust is a beneficiary like any other beneficiary named in the will.  By its very nature, a testamentary trust will not avoid probate, but nevertheless may be very appropriate and useful in a variety of circumstances.

    For total probate avoidance through the use of a revocable living trust, the key is in making certain that the settlor owns nothing in his or her own name at the time of death that is not disposed of by contract (the trust instrument, joint tenancy, or beneficiary designation).  This includes property that the settlor owns at the time he or she establishes the trust, as well as property that he or she acquires after the trust is established.  For many individuals, it is not very practical to transfer the ownership of all of their property to a trust and to continue to do so with respect to all property acquired over the remainder of their lives.  Many individuals who attempt to avoid probate through the use of a revocable living trust fail to accomplish that objective – meaning, that at the time of death, for one reason or another, some of their property remains in their own name and is not owned by their trust or disposed of by contract – hence, the need to resort to the probate system to administer that property (in addition to the need to administer the trust).

    It is commonly contended by revocable living trust promoters that the probate system carries with it a great deal of expense that is eliminated automatically by having a revocable living trust.  The fact is, however, that there often are expenses associated with such a trust that are of the same or greater magnitude than typical probate expenses.  Additionally, if the services of a professional trustee (i.e., a bank or trust company) are utilized, there will be trustee fees to pay.  Although the use of a willing family member as the trustee can reduce or eliminate the fee that would be charged by a professional trustee, the job of trustee is one that carries with it all sorts of significant responsibilities and potential liabilities, which accounts for the size of the fees that professional trustees usually charge.  Even in cases where settlement expenses are reduced (by having a properly funded trust), the cost of establishing the trust likely was significantly greater than the cost of a typical will.  An additional consideration with the estate planning and settlement processes is that the expenses associated with probate can be lowered significantly with an unsupervised administration and a carefully selected lawyer to assist with the planning and settlement processes.  Look for a lawyer whose fee is determined on a time and effort basis, rather than one who charges a flat percentage of the value of the estate.

    Another frequently listed reason for the use of a revocable living trust is the elimination of taxes.  While it is true that taxes can be reduced and sometimes eliminated by incorporating trusts into an estate plan, the simple fact that property is in a revocable living trust at death will not reduce or eliminate taxes.  For both income tax and death tax purposes, property in a revocable living trust is taxed the same as probate property.

    All of this is not to say that revocable living trusts are a bad thing, as trusts are the most flexible and useful tool in the lawyer’s workshop.  Unfortunately, many individuals do not realize that qualified estate planning lawyers recommend and prepare trust agreements for their clients just as often as wills.  Revocable living trusts offer a degree of privacy and are helpful in the context of property management for those who need help in managing their property.  In appropriate situations, trusts (whether of the revocable living or testamentary variety) are extremely useful for death tax reduction purposes.  Trusts, however, are not appropriate for everyone.  Many a revocable living trust customer is finding the required ongoing recordkeeping to be very confusing and frustrating, particularly when serving as his or her own trustee.  If contemplating a revocable living trust, speak with a valued advisor like a family lawyer or accountant, rather than a stranger of unknown competence and reputation who will receive very private information, but who is not under the same obligation as is a lawyer or accountant to keep it private – and who is not likely to be available or capable of helping in the event that problems arise later on.  Above all, use common sense.  In many cases, a qualified family lawyer will help establish and fund a revocable living trust, if that is what is wanted and appropriate, for a lesser fee than the typical trust promoter will charge – and the family lawyer usually will be readily accessible if problems arise.

Where Should A Will Be Kept?

    Obviously, a will is an important instrument and should be kept in a secure location.  A desk drawer is not a good place, as it could end up in the wrong hands or get lost among other papers.  A personal safe also is not a good idea, as the maker of the will may be the only one who knows the combination.  Perhaps the worst place to keep a will is in an individually held safe deposit box.  While this may seem to defy logic, because the will is secure, the reason is relatively simple.  At the death of the depositor, the safe deposit box and its contents belong to the depositor’s estate and the only person who can access the box is the depositor’s named personal representative, following appointment by a court – but without the will to present to the court, it may not be possible to get the personal representative appointed.  Banks are becoming less and less willing to bend the rules in these situations and allow access to a safe deposit box without the prior appointment of a personal representative.

    The best place to keep a will is with the lawyer who prepared it, if he or she has the capability for secure and fireproof storage.  The maker can then simply let his or her loved ones know who has the will and never worry about it again.  Note, too, that leaving a will with the lawyer eliminates the ability of a disgruntled would-be beneficiary to find and destroy the will.

How Often Should A Will Be Updated?

    Once a properly prepared will is in place, the maker will have a flexible document that can withstand certain changes like the death of a spouse or child.  However, as circumstances and wishes change, as inevitably they will, the maker should update his or her will.  Generally, it is a good idea to review a will every three to five years.  For example, after having made a will, the maker may decide over a period of time to change the beneficiaries of his or her estate, or the manner in which the beneficiaries share in the estate.  A will also should be reviewed as milestones such as marriage, remarriage, or the birth of a child are reached – or as the maker’s financial position changes or the tax laws change.  As death tax exemptions increase, it often is possible to greatly simplify what formerly may have been a rather complex estate plan.  These considerations apply equally to trusts.  Whether incorporated in a will or a trust instrument (or both), estate plans need to be kept up to date.  Many individuals have died with a will and/or a trust whose provisions were totally out of date with their wishes.  Unfortunately, the provisions of the decedent’s will and/or trust instrument will control the disposition of his or her property, even if not in accord with his or her known wishes at the time of death.

What Other Estate Planning Documents Do I Need?

    General (Business) Power of Attorney. Everyone over the age of 50 years should strongly consider giving someone else written authorization to act for him or her, either now or in the event that he or she becomes incompetent.  A properly prepared and executed general (business) power of attorney empowers an individual designated by the maker (called the attorney-in-fact) to act for the maker with respect to the acquisition, management, and disposition of his or her property.  In light of today’s medical advances, each of us is statistically likely to face a period of incompetency prior to death.  A power of attorney should be durable – meaning that it will remain valid, notwithstanding the lapse of time or the incompetency of the maker.  General powers of attorney (and health care powers of attorney) are prepared by qualified estate planning lawyers with the same frequency as are wills and trust instruments.

    If eligibility for Medicaid benefits may someday be a concern, it is essential for the power of attorney to specifically authorize the attorney-in-fact to make gifts, without limit, to the maker’s spouse, children (including the attorney-in-fact), and their spouses.  Sometimes, a properly prepared power of attorney is more useful and necessary than a will.

    Health Care Power of Attorney (Appointment of Health Care Representative). Separate from a general power of attorney, a health care power of attorney designates an individual specified by the maker (called the health care representative) to make health care decisions for the maker in the event that he or she is unable to make those decisions.  This instrument is especially useful for second marriages, where there are several children, for single individuals without children, and where a parent would like to avoid potential conflict among his or her children.  A health care power of attorney should be distinguished from a living will which, though more commonly recognized, accomplishes far less.  A living will is only effective after a physician certifies in writing that death is likely to occur within a short period of time.  Physicians do not like to do this.  A living will may provide some psychological benefit (i.e., we are doing what Dad wanted), but has little legal benefit, as it does not authorize anyone to make health care decisions for the maker.  Family members will likely receive far greater benefit from a health care power of attorney and careful choice of a health care representative who is authorized to make life and death decisions for the maker.  Keep in mind that, contrary to an attorney-in-fact under a general power of attorney, a health care representative cannot make health care decisions for the maker unless and until the maker’s attending physician has certified that the maker is not capable of making his or her own health care decisions.

DALE & HUFFMAN Lawyers

1127 North Main Street

Post Office Box 277

Bluffton, Indiana 46714

www.dale-huffman.com