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Estate plan needed to divide spouses' property and reduce taxes

A couple who married late in life want to know how to split up their assets after death when one spouse has children and the other doesn't.

August 12, 2012|Liz Weston | Money Talk

Dear Liz: We married late in life and each of us brought separate property to the marriage. One spouse has four children and the other none. We have a marital trust that allows for the spouse upon death to receive the entire estate. Upon the death of both spouses, how would you draft a provision that would allow the remainder of one spouse's separate property to be allocated to her children and the other spouse's separate property to be donated to a charitable foundation?

Answer: Instead of allowing each other to inherit everything outright, you might want to consider a bypass trust. These trusts allow the surviving spouse to benefit from the assets during his or her lifetime. Upon the surviving spouse's death, the assets are bequeathed to the ultimate beneficiaries. The survivor can't alter the trust to change or prevent that.

Bypass trusts can create family tension, however. If the mother in your example were the first to die, her children would have to wait for "their money" until her spouse died. In the case of much younger or unusually healthy spouses, that can be a long wait, with the kids worrying that the surviving spouse will spend most or all of the money in the meantime.

If that could be an issue in your case, you might consider buying life insurance on the mother, Los Angeles estate planning attorney Burton Mitchell said.

"Some people fund for the children with life insurance on that parent's life, so that the children don't have to wait for the second death," Mitchell said, "and to minimize tension with the children with the surviving spouse."

You also should consider having a meeting with the children once you've decided how to handle this, Mitchell said.

"It is often better for them to understand what is happening and let them ask questions to their parent, before they discover the facts after the funeral," he said. "At that point, someone is already dead and the survivor's answers are suspect."

If your estate is greater than estate tax exemption limits — currently $5.12 million, but scheduled to drop to $1 million in 2013 — you may want to take additional steps to reduce the future tax bite. One option is known as a qualified terminable interest property or QTIP trust. Your estate planning attorney can provide you with details. And yes, you should have an attorney, particularly if you have a large estate or someone may contest the will.

"Anyone can download documents off the Internet or go to a forms service or mill, but to do it right and to minimize problems later, you have to understand each individual's situation and craft a plan that works best for them," Burton said. "It's like snowflakes — estate plans may look similar, but no two should be identical."

When to start Social Security benefits

Dear Liz: You've been answering several questions about when to start Social Security benefits. Most people who talk about the break-even point seem to fixate on when you'll end up with the most money, but they're only considering Social Security money. It's worth pointing out that if one continues to work until full retirement those wages, for most of us, will add up to much more than the reduced Social Security payments for those first four or five years. So unless a person really hates his or her job, or poor health makes the person no longer able to do that job, working until age 66 or 67 will give a person the highest total.

Answer: That's a good point, and it's not just the wages you earn that are important. It's the fact that you can delay tapping your retirement savings, so that those can continue to grow tax deferred. The effect of delaying retirement even a few years is so powerful that people who have saved substantially over their working lives can actually stop saving in their 60s — and use the extra cash for fun stuff like travel — without increasing their risk of running out of money, according to research by mutual fund company T. Rowe Price. The company has dubbed this approach "practice retirement," and you can read more about it at http://www.troweprice.com/practice.

Clarification

Dear readers: In last week's column, I called the money withheld from Social Security benefits because of work earnings a "penalty." Although it is that, I should have been clear that benefits withheld because of the so-called earnings test aren't permanently lost. The retiree's benefit will be increased at full retirement age to account for benefits withheld because of earlier earnings.

Questions may be sent to 3940 Laurel Canyon, No. 238, Studio City, CA 91604 or by using the "Contact" form at asklizweston.com. Distributed by No More Red Inc.

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