Food for Thought Archive

The Conversation by Phil Runyon

6/10/2016

The Conversation

I hope your good weather activities are off to a fast start – and that all your hiking and biking are making estate planning less urgent, shall we say. On the upside, longevity authorities now predict that the first person to live to 150 has already been born. Still, as far as I know, mortality is holding constant at 100%.

Perhaps because of that last statistic, I often get asked whether I find it discouraging that despite all my best planning efforts, I end up losing most of my clients eventually. In the spirit of the campaign season, I usually dodge those questions by asking whether people have made the same inquiries of their physicians.

But let’s not dodge it here. Most of us have come to the realization that we’re not going to make medical history on the order of Methuselah; we just want our brief sojourn here to end the way we hope. That is, please let us die at home, in our own beds, with all our faculties intact, after a vigorous life and a nano period of decline, and with all our loved ones gathered around. Yet, the truth is that 80% of us will die in a medical institution of some sort, and at the end, 50% of us will be incapable of making decisions on our own behalf.

So what do we do to fight back? Well, we could all make sure we have a good, current health care directive, so that if we’re “out of it” near the end, our best interests are in the hands of people we trust to do the sorts of things we’d do for ourselves if we could. But you know that, and most of you have already taken that important step. (You’re in the minority, though, because nationally the percentage is just 25%.)

The problem is, even that’s not really enough. You need to have “The Conversation”, to use the term coined by Dr. Sanders Burstein of Dartmouth-Hitchcock Nashua (and probably others). In other words, you need to get a lot more specific about what you want than the basic choices given you in the canned documents the statute prescribes. Even our versions, which expand considerably on those selections, still aren’t enough.

You need to talk – a lot – with the person(s) who will be in charge if that unhoped-for time comes. Sure, it’s a conversation no one wants to have, which is why it happens so infrequently – like when you need to have that birds-and-bees talk with your teenager. So have it before the time comes, when you can still make dark, nursing home humor about it, even while being completely serious. And someone should be taking notes, including quotes, if possible. If you just can’t bring yourself to broach the issues, though, or if no one will sit down and listen (which is sometimes the case with family members in denial), then put it in writing for them and attach it to the official document. If we’re holding your directive in our safe, we’ll be happy to supplement it with your specific guidelines.

What am I really getting at, you say? Here’s my very brief stab at it: “I love to read history, follow my favorite teams, get together with my friends and family, and take walks on nice days, and I’ve always thought it important to feed myself and make private use of the bathroom. If it gets to where I can’t do the majority of those things, and I can’t decide about what to do myself, then I don’t want any efforts made to keep me going by medical procedures or drugs. I want nature just to take its course, and if it looks like that’s happening, I don’t want anyone to interfere with that process, except to keep me as comfy as possible. You may be reluctant not to do all you can to help me hang on, but that’s not what I want. Life here will already be over for me, so let me get on to wherever else I may be going. I sincerely appreciate all you’ll be doing for me, and I hope being clear about my wishes will put everyone's mind at ease.”

Not bad for a start; I actually feel better already.

Posted 06/10/2016 - Misc.

Peering Over the Horizon by Phil Runyon

3/2/2016

Peering Over the Horizon

My wife and I were just in Cuba and spent much of the trip admiring those beautiful '50's cars of our youth. However, with no seat belts in them and exhausts still belching the byproducts of leaded gasoline, it's a good thing the island has national health care.

The one thing we didn't see any evidence of was a nursing home, probably because the youngsters just take care of their elders at home - like Americans once did. Some still do, of course, but with families all out working to make ends meet and with the explosion of senior care facilities, it's often easier for everyone to choose one of those alternatives. And if you need more care than the family can provide, you may have to start paying for care anyhow - usually at alarming rates.

Consequently, people keep asking how they can arrange their affairs so they can get the care they need, but not spend up everything they've worked a lifetime to accumulate. The knee-jerk solution is often to give it all away to the kids, so the parents look like they don't have anything and can qualify for Medicaid. I've talked about the shortcomings of that course before, so I won't repeat the disadvantages here.

But let's really look at the current state of affairs. True, a pretty nice nursing home can cost in excess of $100,000 per year. Yet the odds of needing one are in our favor. Even as long as we're living today, only about 40% of us will need a nursing home at all, and the chances of needing more than 3 years of care are only 25%. If my math skills haven't failed me, that means there's only a 1 in 10 chance of needing to pay more than 3 years of expenses.

So what does this mean? For one thing, it means we'd be crazy to give everything away - or make other inconvenient arrangements - just to avoid a 10% chance that our funds would be depleted by nursing home bills. Does it mean, though, that we'd be better off hedging our bets by paying the premiums for long-term care insurance? Maybe, but that involves a further calculus. Do we have a family history of Alzheimer's or some other debilitating condition that might afflict us, as well? Can we get LTC coverage at reasonable rates we can afford? The latter will depend on our ages now, our current health, and how much coverage we want to spring for. If we don't have any lurking family skeletons, though, maybe our risk of needing a nursing home will be even lower than 1 in 10, and perhaps our best insurance will be eating right and exercising. And some of us may even have old-fashioned families who say they want us to enrich their lives with tales of mail with stamps and phones on cords.

One way we might have our cake and eat it would be to forgo the insurance, but to pretend we're paying for it by contributing what we can afford to a rainy-day investment account. If we're still young enough to make IRA or 401K contributions, then ramping those up would be the way to go. If we never need the nursing care, we've buttressed our retirement savings or our grandkids' college funds, but if we do have to pay a nursing home, at least we'll have saved something extra toward those costs.

Clearly, if we knew what was over the horizon, we'd know exactly what to do. We certainly wouldn't bother with any insurance until just before we needed it. On the other hand, I guess we wouldn't waste time and money writing all those wills and trusts either - that would only improve on things for one of us!

Posted 3/2/2016 - Asset Protection

Another Planning Resolution by Phil Runyon

1/25/2016

Another Planning Resolution

In addition to resolving to being nicer people this year, let's also resolve to keep our planning documents in good order - and let's start with our trusts.

Many of us have trusts that say to use the assets for our children's or grandchildren's "health, maintenance, support and education" (HMSE) until they hit certain ages, and then to distribute what's left to them outright. Maybe the children (or a particular child) have already reached those ages but still need some oversight to use the assets responsibly. That might call for pushing the distributions out a little farther, or at least dividing them into two or more installments so poor choices at one age won't completely drain the tank. But consider . . . .

The HMSE standard for distributions can itself be problematic these days, in the event a child is faced with divorce. More and more courts (most recently in Massachusetts) are holding that trusts based on that standard can be valued and considered in property settlements with the child's soon-to-be-ex-spouse. The better plan in this judicial climate is to make distributions to or for the children completely discretionary by the trustee - so there's no quantifiable expectation of distributions at all. And to eliminate all specific ages for final distributions - so there's no way to compute (and award the ex-spouse) the present value of what may eventually be distributed. Needless to say, it's also important that the child not be his/her own trustee, or the court will see right through that arrangement - so consider using either an independent trustee or multiple trustees who would have to act by majority or unanimous consent. Of course, if you figure your kids just have to sink or swim at some point, then fine as long as you understand the issues.

While we're on trusteeship, consider this issue, as well. Many banks and brokerage firms have gotten extremely skittish and aren't willing to allow an agent to act for a trustee through the trustee's power of attorney - no matter what it says. That can cause real problems if you've gone to the trouble of titling all your assets in your trust's name (say, to avoid probate), but you're still the sole trustee. If you want a child or another agent to be able to act for or with you, you may need to appoint that agent as a co-trustee of the trust, or even to resign so the successor trustee can carry on for you.

This emphasizes how important the role of successor trusteeship can be, and why it's critical to make sure the ones you've designated are still right for the job. Maybe they've had health or financial setbacks of their own, or perhaps a new job has taken them several time zones away. Maybe if they're your contemporaries, you just need a new generation of trustees who can carry on as long as the trust is likely to be needed.

Finally, if your trust is more than 10 years old and hasn't had a recent physical, it's time for one. In addition to what I've already said, maybe the people or organizations you named as partial or contingent beneficiaries are no longer the apples of your eye; or perhaps the joint trust you have with your spouse says the surviving spouse can't make any revisions after you're gone, and now that seems like a good safety valve to include. And these are just the low-hanging fruit.

Posted 01/25/2016 EP

A Holiday Parable by Phil Runyon

12/22/2015

A Holiday Parable

Here's a story that might be useful to you or a family member or a close friend.

Many years ago I had a "senior" client who had become estranged from his daughters. They were upset because he'd married another woman several years after their mother died, and although their father's second wife was a fine person who did her best to embrace the family, the daughters would have none of it. They wouldn't speak to the new wife or even visit their father because "she" would be there. Finally, even the lines of written communication were severed.

The father was distraught by his daughters' reaction, which he viewed as extremely selfish. I heard his lament many times: Couldn't they see he wasn't replacing their mother, yet they were denying him the last smidgen of happiness he might have? Eventually, the situation also angered him, and he executed a new will that left the daughters out completely. I wrote the will the way he wanted it, but it always nagged at me that the outcome seemed more like a family tragedy than good planning.

A couple of years went by with no thaw in relations. Finally, I just called the father one day and asked whether I could contact the daughters and make a pitch for reconciliation. He said he would really appreciate that because he, too, had been feeling badly about where things stood. I called each of the daughters, and it was as if the floodgates had opened. They also felt terrible, as it turned out; they just didn't know where to start to repair the damage they'd done.

The story has a happy ending. The father eventually died, yes, but he and his daughters - and the new wife - made up in time.

The trouble is, this scenario repeats itself too often. Family members drift or break apart for any number of reasons. Sometimes they can't even remember exactly why. Then, as more time goes on, the ice thickens, and no one knows how to break through. Everyone worries that their overtures will be rebuffed, so no one picks up the phone and just says, "I'm sorry, let's fix things." Saying "I'm sorry" is critical, whether it's really your fault or not - and frankly, who cares at that point.

Anytime is the right time to make that call - but right now is the best time of all. No one held it against Scrooge that he did a 180 and became the lovable uncle. Bygones were forgotten, and no one looked back. In fact, being the one to break the ice not only feels really good, but it puts you squarely on the high ground, and may even short-list you for the Nobel Peace Prize - you could do worse than that.

Posted 12/22/2015 Misc.

Those Unavoidable Topics by Phil Runyon

12/1/2015

Those Unavoidable Topics

Remember several months ago when I explained how you might maximize your Social Security benefits with a technique called "file and suspend". It looked too good to be true then, and now Congress has said it is, starting in April of next year. So you do still have time to put it in place if you qualify, and if you're already reaping the benefits, they'll last up to 4 more years. To learn the ins and outs, though, I suggest you read my message on that topic and then contact your local Social Security office (I gave you the numbers) to see what your remaining options may be.

To some of you Gen X and Millennial folks, it may seem like all I talk about are senior and elder law issues. But remember, most of you still have parents, maybe even grandparents, and you need to know what to do when they need your help. Lately, I've seen a number of you really scrambling when you lost one of those senior partners and then had no idea what to do about it. That may be more their fault than yours, but you might have helped them create a better road map for you. So what to do? You can work with them on getting a form completed like the one I've attached here, or if you want to go more extensive and commercial, you can head to Amazon for The LastingMatters Organizer. Then you can start a lively discussion about all the important decisions that need to be made. By the way, at least 82% of people surveyed say writing down things for their families is important, but only 28% actually do it.

One of the "things" people should be clear about - that is, if they have any wishes at all - is the disposition of their actual selves. And unlike many post-mortem issues, like parceling out the family photos, this is one that needs to be attended to pretty quickly. There's lots of law on this subject, but let's just hit some high points. You can specify in writing who gets final custody of yourself, but it's probably not best to do it in your will, as that may not get dragged out for a week or two. Instead, one of those documents I mentioned in the last paragraph would be a much better place. If you don't say anything at all, the decisions default to your heirs in order of relationship - your spouse first, then your children, next your parents, then your siblings. If you're going with a funeral home, they know the drill, and while they get paid almost as much as lawyers, having someone else who can just take charge at a moment like that can be worth it (and I'm not being paid to say so). Even if you're not buying into the full array of services, however, the pros can handle "removal" and either arrange for burial or cremation. And if you're choosing the latter, you've also got the option of going straight to the Cremation Society of New Hampshire. One final point here: there's no law requiring embalming, no matter which option you pick, and there's no requirement that you be buried or cremated in any particular receptacle.

OK, let's assume all the final bodily arrangements have been made; then there's where you'll spend eternity (whatever you think that means). Clearly, a little guidance from you on that topic would be helpful, too. I mean, are you envisioning the family mausoleum at Mount Auburn, or under the venerable oak in the backyard that you climbed as a child? The former is easy, but the latter is also a possibility in New Hampshire; that is, unless your town has an ordinance against private burial sites. Better check it out, if that's what you have in mind. Even if that's allowed, though, you're required to notify the local cemetery trustees, and here's an important factor: if there's a burial site on your property - and that includes both bodily remains and urns of ashes - you're required to state that location in the deed when you transfer the property. Better mull that over before you make a final decision, as it could seriously impact the property's marketability, even way down the road. For more on all this, including increasingly popular "green" burials, you might check out nhfuneral.org.

Posted 12/01/2015 - Misc.

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Protecting Your Most Precious Assets by Phil Runyon

10/23/2015

Protecting Your Most Precious Assets

t's always important to get your affairs in order - just in case things happen unexpectedly - but there's one organizing job you really can't put off: your own kids!

The first thing to decide on would be who the kids would actually live with - and they'll need someone to provide a home base at least until they're legal adults at 18. That should be spelled out in a will, or you'll be leaving it to the rest of the family to sort it out for themselves, with results that could be totally different than you'd have wanted, not to mention perhaps contrary to the kids' best interests.

I mean, you certainly love your bachelor brother in Manhattan, or your sister in Nebraska who's already got a brood to keep her busy, but are they ready, willing and able to alter their lifestyles to do their best for your gang? And is either of those locales where you'd want the kids to grow up, no matter how well they might be cared for there? Or let's say you pick your thoughtful and caring parents, whom the kids love but who may not be able to hang in there as long as the kids might need them. An alternate choice would certainly be wise under those circumstances. Keep in mind, too, that your picks don't have to be family members at all, if you've got friends close by whom the kids think of as aunts and uncles and whose children are your own kids' best buds. But you've got to name those folks in your wills for sure, because most courts aren't going to choose friends over family otherwise.

Alright, let's assume you're over that first hurdle of who it's going to be, and you've gotten their OK to stand in for you should the need arise - you need to do that, too, of course. Now you might want to provide them with your parenting plan, preferably in writing, without sounding like you're a know-it-all or don't really trust the folks you're counting on. I've seen this done both well and very badly, but the best statements usually make your points by describing a typical day or week in the life of your present family. So, for instance, do the kids have chores and help out a lot; are they pretty conscientious about their homework or do you need to make sure the dog hasn't eat it; how do you feel about technology and all those social media distractions; and do you monitor the kids' every coming and going or generally trust them to make the right choices? You get the picture, and you'll want your stand-ins to get it, too, even if they decide to alter the rules as they see fit. After all, you do trust them, right, or you'd make another choice? Then, like everything else in life that morphs over time, you can adjust your thoughts in a new version as the kids get older, prove their good judgment and responsibility - we all hope - and make the honor roll or spend their afternoons in makeup study hall. Don't fret, I'm sure your exceptional parenting will shine through.

Posted 10/23/2015 Estate Planning

Sometimes More Information is Better by Phil Runyon

8/27/2015

Sometimes More Information is Better

Here are a few words on a subject that can be totally unenjoyable, even divisive, in many families, at a time when they really need to pull together. I'm talking about how to divide up the lifetime of family mementos, treasured artifacts, valuable antiques, special rings, watches and silverware, and the other personal belongings left behind by one of our departed loved ones. It can go easily and smoothly, or it can read like a Gothic novel, with ugly scars that re-open periodically for generations. My family is still grumbling about who got a piano 40 years ago.

Without question, the best way for that process to go is to have the one who's no longer with us make the decisions about the critical items. This can be done by means of specific bequests in a will or by binding directions to the trustee of a trust, or it can consist of informal written guidelines to the executor or trustee about how the decedent hopes the distribution process will go. It's often helpful, too, for those decisions to be accompanied by words of explanation about why a particular designation was made. That can not only be very meaningful to the recipient, but also help dispel recriminations about whether the old guy really knew what he was doing at that point.

Even if there are only a few significant pieces to deal with, there are often many more that will have to be allocated among the family recipients. The recently departed can also help with that process, too, by documented conversations held beforehand, if there's time, or by indicating how the division of the remaining items should go. Some parents and grandparents come right out and ask their offspring to choose what they hope to receive, even putting colored dots or names on the backs or bottoms of the antique lamps and tables. Then they leave a written request that their executor or trustee honor those selections, if possible, or come up with a fair way to parcel out the treasures that everyone may want.

Sometimes it's helpful for decedents to leave instructions about how they want the decision-making process to be structured - that can take the pressure off the harried executor or trustee. Maybe they want the family members to draw lots about who goes first in making choices; or maybe they want it to go down the line from oldest to youngest. I heard someone suggest that the person who goes first in the first round (1,2,3,4,5) should go last in the second round, (2,3,4,5,1), and so on.

No matter how the selection process is conducted, though, it's very helpful for a decedent to let the executor or trustee know whether the value of items is to be factored in, or whether that's not an element to be considered. If values are important, then the allocation process needs to take that into account, with disparities in value perhaps to be made up in the division of other estate or trust assets. If values aren't significant, then family members should know that at the outset, as that may have a great deal to do with how they make their choices, or how the fiduciary allocates items among them. One thing is clear on this score: If no preference is indicated, the executor or trustee will be required to use the items' values (usually determined by a qualified appraisal) as the determining factor and to make sure each beneficiary receives items totaling approximately equal value.

For all these reasons, I think you can see how the choice of an executor or trustee can be critical. If it's going to be a family member - and particularly if the fiduciary is also one of the beneficiaries - and even more so if there are items of significant value coupled with beneficiaries who may have volatility issues, shall we say - then that person needs not only to have the wisdom of Solomon, but also to be someone the rest of the family trusts for fairness, reasonableness and diplomacy worthy of Middle East peace negotiations. If no one in the family fills that bill, then it may be possible to turn to a close family friend - with full disclosure about the perils that lie ahead - or just to designate a professional adviser whose business it is to be paid for assuming the substantial risks involved.

The bottom line is that you can't be too deliberate or clear about your wishes in these situations. It's one thing for family members to be disappointed that they didn't receive what they'd hoped for, but if they have your reasons to fall back on, that may help considerably. It may also help for you to tell them it's not the monetary value that counts to you - because you hope none of your treasures will be sold anyhow - but that what's important is for everyone to receive the small or large thingy that's the most meaningful to them - or to you. I got my grandfather's roll-top desk, and I think about him every time I sit down there. He died 50 years ago, so I'd say that legacy has worked out pretty well for both of us.

Posted 08/27/2015 Estate Planning

Be Charitable with IRAs by Phil Runyon

7/24/2015

Be Charitable with IRAs

I want to talk about IRAs and charities in the same breath here, and I want to acknowledge my good friends at the New Hampshire Charitable Foundation for their helpful ideas on this unlikely pairing. I'll start with the caveat that in order for this to have interest for you, you need to have an IRA and to be somewhat charitably inclined.

If you're still with me, it probably won't come as a surprise that many people's largest financial asset these days may be their IRA. They've been having a portion of their paychecks tossed in there for years and it's built up tax-free to quite a nice nest egg. If they name their spouse or children as the beneficiaries, though, all that deferred income tax will start coming home to roost, and while the blow may be softened by a payout over a number of years, those taxes are going to get paid eventually. That is, unless at least some of the account is payable to your favorite charitable organization(s), in which case the tax liability on that portion disappears and the tax-exempt charity gets 100% of your generosity.

So. here's a strategy that could work for you: you might designate one or more charitable beneficiaries of at least a percentage of your IRA, and then use other assets for helping out the familial objects of your affection. For example, if you have non-IRA securities, or the family homestead, or valuable personal property, those assets would all be revalued at death to reflect their current worth (it's called a "stepped-up" basis), and your beneficiaries then could liquidate them without payment of ordinary income or capital gains tax.

If an outright distribution of hard-earned IRA funds to charity is going down hard, then you might consider using some of the IRA to fund a testamentary gift annuity. That's where the funds go to the charity at your death - again tax-free - but the charity pays your spouse or children a regular income from the funds for the rest of the beneficiary's life. Only when the designated beneficiary is gone will the remaining funds actually belong to the organization. In fact, this may be the real win-winner of alternatives, because not only are all those pent-up income taxes avoided on the charitable portion of the IRA, but your family continues to benefit from them at a pretty favorable rate of return.

Finally, I want to shift gears slightly and correct a misconception that's been floating out there for sometime about so-called donor-advised funds at the NHCF. That's where you set up an account with them, fund it with the assets you're willing to devote to charitable contributions, and then decide, usually on an annual basis, how to make distributions to the organizations you want to benefit. For years it's been the common understanding that those DAF accounts were essentially perpetual. That doesn't have to be the case, though, and if your favorite non-profit has a pressing need for all your funds, you can retain the right to have the whole account paid out immediately. That just gives you one more flexible option, while still achieving a current income tax deduction when the DAF is created.

I don't plan to go on here about how important being charitable is, although we here in New Hampshire seem to be more frugal, shall we say, than our friends living nearly anywhere else. Just think about all the schools we went to that got us where we are, all the service organizations that have helped us out over the years, and all the non-profits - more like no-profits - that have made life here so enjoyable. It wouldn't hurt to recognize them just a little in the end - and paying it forward is a valuable example for our families, as well.

Posted 07/24/2015 - estate planning

Social Security Untangled by Phil Runyon

6/19/2015

Social Security Untangled

Having just experienced the indignity of yet another birthday, and being well within the Boomer demographic - maybe not the Greatest Generation, but certainly the most numerous - I am reminded that many of us are wrestling with (or soon will be) how to maximize the payback for all those Social Security payroll deductions we've grumbled about during our working years.

First of all, for all of you who may have envisioned something like a Christmas club account (only a Boomer would remember those) with your name on it somewhere deep within the Treasury Department, that's not how it works. Or at the very least, if there ever was such an account, all your deposits have been withdrawn to pay the Greatest Generation its well-deserved benefits - and now it's the Gen X, Gen Y and Millennials who are carrying most of the funding burden.

If you're already 62, you've likely experienced all the bewildering choices about when to start calling in your Social Security IOUs - and unless there was a pressing need for the funds at that age, I hope you were able to hold your fire. The reason is that your benefits could continue to increase pretty dramatically right up to 70. Even if you could wait until "full retirement age" at 66 (that's what it is for most of us), your monthly check could be 25% greater than at 62; and if you could hold out until 70, your checks would grow a whopping 8% a year after 66. There aren't many other investments these days able to show that kind of guaranteed rate of return. Even if you started early, though, you may be able to salvage the situation by repaying those benefits and kick-starting the accrual process.

There are so many other wrinkles and potential goodies in the system that it's hard to cover more than a couple here. Take this one: If your spouse's own benefit is meager because of a poor earnings record over the years, he or she may be able to claim 50% of your benefit instead. Or this one: Even if you remarry after the death of a spouse, you may still be able to claim a benefit based on the former spouse's earnings record. Now let's say you're single due to divorce: If you were married for at least 10 years, you may still qualify for a benefit based on the former spouse's record, and if the ex dies first, you may be able to claim a survivor's benefit that's the same as what the decedent was receiving - and the same goes even if you've remarried after age 60. You may also be able to put a couple of these options together for yourself: If you're still working and don't want to claim your own benefit now, your spouse may be able to take his or her benefit, so you can claim a spousal benefit - and keep accruing benefits on your own record of earnings. OK, let's flip it: If you're still working past full retirement age (again, that's probably 66), you can apply for your own benefits, but then immediately suspend them, and your spouse can claim a benefit on your record - even so, you can continue to accrue benefits on your own earnings until 70.

And these are just the low-hanging fruit, albeit with many restrictions and limitations necessarily glossed over here. The best way to really understand and evaluate your options is to make an appointment with the Social Security office nearest you and to go in for a thorough consult. You can do a lot online these days, but there's no substitute for a face-to-face conversation on issues as complicated as these. You can reach the Keene office at 877-405-3651; the Manchester office at 866-814-5408; the Nashua office at 877-444-0134; and the Concord office at 888-397-9798.

Posted 06/19/2015 Misc.

Asset Beneficiaries are Important by Phil Runyon

5/22/2015

Asset Beneficiaries are important

As we all know (some more traumatically than others), the divorce bug has attacked nearly every family at some point. And when it hits, the parties are often so unsettled that making sure all their bases are covered can be a real challenge. One thing that's often overlooked is a party's will. If it's a New Hampshire will, the parties are covered by a statute that automatically revokes any bequest to the former spouse. If the parties have put all their assets into a joint revocable trust, however - maybe to avoid probate or to provide for young children - there's no automatic revocation, and the parties really need to assign those assets to new separate trusts to avoid the surviving [former] spouse from continuing to benefit.

Even if they're clear-headed enough to think of all that, though, they're not finished. They also need to review their bank and investment accounts, insurance policies, annuities and the like that are jointly-owned or have designated beneficiaries. The proceeds of those assets are unaffected by the divorce decree, and unless the ownership and/or beneficiary arrangements are carefully changed directly with the bank, insurance company or other institution, the former spouse is going to get a windfall upon the first party's death - maybe at the expense of the parties' children or the deceased party's eventual new spouse.

While we're talking beneficiaries, permit me to mention one other potential snag that has nothing to do with divorces. Many people who've hand-crafted a trust to protect their young children or grandchildren still have them named as the beneficiaries of the kinds of assets mentioned in the last paragraph. Or maybe it's even the grown kids who are named as the beneficiaries, but then one of them predeceases the account or policyholder (that's you), and your young grandchildren step into their parents' shoes. In either of those scenarios, if the asset ends up passing to young children or grandchildren, they're going to receive the big payoff at age 18 - the legal age of majority (for all purposes but drinking!) - no matter how carefully your trust provides for its assets to be held until the kids are 21 or 25 or whatever age you think is more appropriate. That unfortunate result can be remedied easily, just by making the trust itself the beneficiary, so the assets collect in there and then are parcelled out to your off-shoots as your carefully-constructed trust provides.

Finally, let me answer a good question that many people pose while signing their new trusts: "If I'm creating a trust to hold my assets, why do I still need a will?" It's because not everyone follows through to get all their assets re-titled into the name of the trust - or made payable to the trust - so there still needs to be a vehicle for making sure those stray assets end up where they're supposed to be. And that can make a significant difference in the outcome, because if there's no will at all, and if a large asset isn't in trust name or payable to the trust - say, because it's payable to the decedent's "estate" - that asset may end up going to a relative who's entirely different than the trust beneficiaries. We're actually wrestling with that very scenario right now, as a recent NH resident/decedent set up a trust in another state with numerous charitable beneficiaries carefully provided for, but then forgot to back up the trust with a will when she arrived here. Now the considerable non-trust assets are heading off to the family members who inherit when there's no will - and who may be perfectly nice folks, of course, but who weren't the intended recipients. A simple will passing everything to the trust would have avoided that nightmarish outcome.

Post 05/22/2015 Estate Planning

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Runyon Law Office, PLLC