Cona Elder Law


Prince Needed a Will, but Maybe You Don’t

May 6, 2016

Paul Sullivan

THAT the singer Prince died without even a basic will to govern what would happen to his estate, potentially worth hundreds of millions of dollars, was surely poor financial planning. But for most Americans, a will is either more than they need or far, far less.

A will is one of the documents that financial advisers or estate lawyers usually advise clients to have. But a will’s role in getting assets to the right people at the right time and at the right tax rate is not what many people assume.

Some advisers say many Americans may not even need a will. And some people may benefit from a will but may opt not to draw one up for legitimate reasons.

When someone dies without a will — known legally as dying intestate — there are laws in each state that govern how the assets are distributed and to whom. In New York, for example, a married man with two children who dies without a will would have his assets split this way: His wife would receive $50,000 plus half of the estate, and the two children would receive equal shares of the other half of the estate, said Jennifer B. Cona, managing partner at the law firm Cona Elder Law.

“The court’s job is to make sure all family members are protected,” Ms. Cona said. “If there is no spouse and no children, then parents and then siblings of the decedent split the estate.”

But, she added, “Most people don’t want their assets distributed this way. Most spouses want all their assets to go to their spouse while she is still alive.”

Going through what is called the probate process can also take considerable time and the costs can be taken from the assets in the estate. In California, for example, the process takes at least nine months but can stretch out for years, with court costs of thousands of dollars, said Kelly Cruz, director of strategic planning at Aspiriant, a wealth adviser in Los Angeles.

There is also the issue of privacy. “Going through a probate process like Prince’s estate opens everything up to the public,” Ms. Cruz said.

So it would seem that the best response would be to draw up a will and avoid all that. But there’s a catch: Wills govern only certain types of assets. Most people who are not wealthy have more of their money in assets that pass to heirs through beneficiary designation forms, not wills.

These include retirement accounts, 401(k) plans and life insurance. Other assets like bank accounts or homes can be jointly owned or have provisions to transfer ownership to an heir after the person’s death. In these cases, the beneficiary forms overrule the will.

“The average American who would die intestate can deal with the majority of his assets with beneficiary designation forms,” said James A. Cox III, managing partner at the Harris Financial Group in Richmond, Va. “But a higher percentage of people who don’t have a will have probably improperly filled out their beneficiary designation forms. That’s a far greater problem than not having a will.”

People starting out in a career, for example, may name a parent as the beneficiary on a retirement plan. But decades could go by and the parent could die while still the named beneficiary. In that case, Mr. Cox said, the hassle is minor: The parent’s estate files a form to disclaim the assets and they go to the beneficiaries in the standard line of succession.

But a former spouse is a different story. “I’ve yet to have any of them disclaim,” Mr. Cox said. “They got half on the way out and the remainder at death.”

Likewise, bank and brokerage accounts can be transferred to heirs by filling out transfer on death forms. Jeffrey Carbone, managing partner at Cornerstone Financial Partners in Huntersville, N.C., said the cost of going through the probate process in that state is $4 per $1,000. But he was able to save a client about $80,000 on a brokerage account by having her fill out a transfer on death form naming her five children equally.

“Sometimes there are easy fixes to estate issues,” he said.

In states that have adopted the simpler, uniform probate code, which is about a third of them, Kevin Flatley, a lawyer at the Keating Law Office in Reading, Mass., said he advises clients to forgo the expensive and time-consuming process of creating an elaborate estate plan.

Instead, he said, he urges them to focus on making sure their assets are properly titled to go directly to the heirs. “I’m encouraging people more often not to worry about creating trusts just to avoid probate,” he said. “In states that have adopted the uniform probate code, probate is a very simple process.”

New York is not one of those states, but Minnesota, where Prince died, is. Mr. Flatley’s advice, though, is predicated on the person designating assets that are easy to value — Prince’s royalty income is not — and having heirs who all get along.

But planners who work with wealthy clients who have more complicated assets shudder at such advice.

For one, the cost of an estate plan is not exorbitant. Darren M. Wallace, a partner at the law firm Day Pitney, estimated that a basic one for a married couple — two wills, two revocable trusts and a set of documents if someone is incapacitated — at around $5,000. (A simple will may cost $500 to $1,000, Ms. Cona said.)

“The real cost of not doing proper planning can come in a variety of ways,” Mr. Wallace said. “Taxes and asset protection are the two key reasons to do proper trust planning. The other reason is keeping assets from passing to minor children.”

Any good plan will also include what is called an advanced directive. This includes a power of attorney, which allows an appointed person to handle financial affairs should you become incapacitated, and a health care proxy, to allow someone to communicate with doctors about your health.

“These are decisions with end-of-life care,” Ms. Cona said. “You should make them while you can.”

While it is ultimately an individual’s responsibility to have everything in order, a comprehensive adviser also makes sure estate documents, forms and plans are set.

“We ask, ‘Who is in your life, and what would you do if you couldn’t use these assets anymore?’” said Mark Doman, chief executive of the Doman Group.

Mr. Cox said he would consider it a breach of his fiduciary duty if he did not talk to clients about how assets pass. “It’s offensive sometimes to tell someone it’s selfish not to prepare a will,” he said. But, he added, “You don’t want to dance around the edges.”

Yet some people simply don’t want an estate plan and make that choice consciously. Mr. Cox said he had one client who did not write a will because he did not want to upset his girlfriend of 20 years. He put her as the beneficiary for various financial accounts and their home but, without a will, land that had come from his family reverted to his brother.

“It was easier for him to die intestate than to tell her that he didn’t want her to have the property,” Mr. Cox said.

As for Prince, it’s hard to know why he never wrote even a will, if not a full estate plan, given his wealth. But dying without a plan made him an outlier even among performing artists. Joan Jeffri, the director and founder of the Research Center for Arts and Culture at the Actors Fund, said in surveys of older performing artists, 92 percent had at least a will.

“Estate planning helps artists shape their own legacy,” Ms. Jeffri said. “If you’re putting down your wishes, you’re helping to shape that legacy.”

That could be said for anyone.

About the Author Cona Elder Law

Cona Elder Law is a full service law firm based in Melville, LI. Our firm concentrates in the areas of elder law, estate planning, estate administration and litigation, special needs planning and health care facility representation. We are proud to have been recognized for our innovative strategies, creative techniques and unparalleled negotiating skills unendingly driven toward our paramount objective - satisfying the needs of our clients.

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