TRANSFERRING PROPERTY WITH AND WITHOUT A WILL
While a will is usually the most important part of an estate plan, it is not the only part. It is common to distribute property in several ways not controlled by a formal will. Pensions, gifts, joint ownership, and trusts are but a few of the ways you can transfer property at or before death quickly and inexpensively.
Your lawyer can help you decide which of these various methods is right for your circumstances Ė but remember, you are always well advised to have a formal will to take care of any property not conveyed by these methods, as well as to name a guardian for your minor children.
A good estate plan must coordinate these will alternatives with your will. Using them may give your beneficiaries money more efficiently than a will can. Letís look briefly at these other ways you can transfer property.
Beyond the Gold Watch. Many of us are entitled to retirement benefits from an employer. Typically, a retirement plan will pay benefits to beneficiaries if you die before reaching retirement age. After retirement, you can usually pick an option that will continue payments to a beneficiary after your death. In both cases, the money passes directly, by beneficiary designation, and not through your will. That means you avoid the possible delays and expenses of probate.
In most cases, the law requires that some portion of these retirement benefits be paid to your spouse. These may be rejected only with your spouseís properly witnessed, signed consent.
Joint Tenancy. Joint tenancy is a legal term that means, effectually, "co-ownership." If you and your spouse buy a house or car in both your names, each of you is considered a joint tenant and has co-ownership. When one of you dies, the other joint tenant immediately owns it all, regardless of what either of you says in your will.
Joint tenancy can be a useful way to transfer property at death. Particularly in old age, people often place bank accounts or stocks in joint tenancy with their spouses, one or more children or friends. When one of the co-owners dies, joint ownership in many states gives the other ones instant access to the account to help pay bills. The transfer avoids probate.
Should you put property in joint tenancy as part of your estate planning? Most estate planners urge caution. There may be tax consequences for large estates. For estates of all sizes there is the considerable pitfall of losing complete control over the property, exposing it to claims of your co-ownerís creditors, and possibly losing some or all the property if you have a falling out with your co-owner. Joint tenancy doesnít help if all the joint tenants die at once, so each needs a will. Nor does it provide where property goes if the younger joint tenant dies first, so you still need a will. And it can cause big problems if one of the co-owners becomes incompetent.
Trusts. Most of the advantages of joint tenancy can be achieved using a simple revocable living trust, which can also manage your property. Your successor trustee can take over if you become incapacitated. You can specify that the trust remain active for a period of time after your death, and your successor trustee can distribute funds over the years. Ask your lawyer about the many benefits of living trusts.
Gifts. You can, of course, give property to beneficiaries before you die. Gifts can help you avoid high death taxes. Or, in some states, they might help you to make a small estate smaller and thus to avoid full-fledged probate.
You have to watch out for a few things, however. Gifts beyond a certain size will reduce your credit against federal estate taxes. Current law permits you to give up to $10,000 per person per year ($20,000 if a couple makes the gift) without reducing the credit. You can make gifts to any number of people, they donít have to be related to you. You can also make gifts to trusts and to charities.
The Bottom Line. This article hasnít covered all the ways of transferring property at or before death, but it should give you some alternatives to discuss with your lawyer. You should also keep records of all these items and your other assets in a single place, and, to avoid confusion, mention their existence in your will. This makes estate planning easier for you and locating your assets easier for your family after you die.