No matter what your line of work, estate planning has facets that apply to everyone, and it comes down to documenting wishes and avoiding probate and unnecessary taxes.
Too many people put it off, but in general the sooner you do it the better, advises Cale Beck, an estate planning attorney in Escondido, Calif.
“I always congratulate my clients when they come in young,” Beck said. “It’s always the right time to do it, but it’s most important when you have beneficiaries who are minors or with special needs.”
Adult children can figure things out even if it’s expensive through probate, but young children will need protections in place. He cautioned that a lot of times it’s written so that the estate goes into children’s hands when they reach age 18, but not many teens can manage big property at that age, so having a trust agreement can help, by specifying the property is to be held for them until the age of 25 or 30 by a trustee or executor.
Many of Beck’s clients have orchards or groves, and in California if anyone has property in excess of $50,000 in their name, probate will apply.
Probate refers to the default process to administer an estate after someone’s death, when a will or other documents are presented in court and an executor is appointed to manage it. It also provides a forum for creditors to present claims for money owed to them. Distribution of assets will happen only after all proper notices have been issued, and all outstanding bills have been paid.
Probate is expensive — a $ 1 million estate can amount to attorney fees of about $23,000, an equal amount for executor costs, plus court costs of a few thousand dollars, which can add up to upwards of $50,000. It’s also lengthy, and can take an average of 18 months, during which time the property is tied up. If there are disputes, it can take much longer.
Prudent estate planning can help most families work around all this, avoid it completely and ensure transition of wealth and property in a smooth manner.
Living trusts help
The best way to get around it is to establish a trust. A living will designates instructions for one’s healthcare, but a living trust refers to one’s property and assets, and the handling of it.
Farmers can designate themselves as the beneficiaries during their lifetime, and appoint who it will pass to afterwards, and it can be amended or revoked at any time should things change, so the terms of the trust are not set in stone.
“We take the title of the farm and transfer it to the trust with him as trustee,” Beck said. “By doing a trust, we make it easier because it avoids probate, since nothing is in his name, and we can transition the property to the beneficiaries he designates without having to go to court.”
Living trusts will also help in case of incapacity or a disease such as Alzheimer’s, to avoid conservatorship (guardianship of an adult who loses capacity), and set up powers of attorney to make decisions. It can also help reduce capital gains taxes since the property transfers before their death.
Choosing an attorney
There are many types of attorneys, from paper mills that just churn out documents, to attorneys like Beck who specialize in estate planning. Drafting a will is not very difficult, but the challenge comes with special needs each property owner has, from multiple children, to restrictions on land use, to beneficiaries with special needs.
At the very basic level, estate planning is a will, but a will is subject to probate, so the better option is to transfer your assets to a trust, and give it whatever life span you deem appropriate. For minor children, the trust will continue through their lifetime or until they reach a specified age.
“If you have many kids but only two work with you on the farm, how do we divide an estate that is land rich and cash poor? That’s when we get into creative drafting of documents, focusing on how to do this properly while keeping the peace within the family,” Beck explained.
Attorneys will typically charge a flat fee, depending on whether it’s a married couple, single person, and how complicated their estate is, and the number of documents to be recorded, so these flat rates can vary from state to state, and area to area.