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Wills and Estates Blog

Estate as Beneficiary of Life Insurance, IRA or 401k: Bad Idea

Tuesday, September 20, 2016

The last place you want your life insurance, retirement account, or pay-on-death (POD) account to go upon your death is to your Estate. Thus, do not name your “Estate” as the beneficiary on the designation form provided by your insurer, broker, or financial institution. However, even if you don’t make this mistake on the designation form, the Estate can still end up being the beneficiary. For instance, if you fail to designate any beneficiaries, the funds are paid to the Estate. Also if the beneficiary you designated has already died, the funds are paid to the Estate. This is why naming contingent beneficiaries is so important. There are three main reasons to keep these funds out of the Estate.

1. Availability of Funds

One of the major advantages to life insurance, IRAs, and POD accounts is that the funds are usually made available to the beneficiaries quickly. Typically all a beneficiary needs to do is complete a simple form and provide a death certificate and checks are issued directly to the beneficiary. This can be particularly advantageous when these funds are needed to support loved ones immediately after your death.

If the Estate ends up being the beneficiary, the checks are made payable to the Estate. This means that someone will need to open up an Estate in order to do anything at all with the checks. The process of opening the Estate, administering it, and ultimately distributing the assets will take much much longer. The funds could be tied up for months or years during this process.

2. Creditors

Funds payable to beneficiaries from life insurance, IRAs, and POD accounts are the property of the beneficiaries. Thus even if the decedent had $100,000 in medical bills owed at the time of his death, the $100,000 insurance policy payable to his wife goes directly to his wife. The decedent’s creditors have no claim against the $100,000.

However, funds payable to the Estate are the property of the Estate. As such, if the medical providers filed valid claims against the Estate, the funds must first be used to pay creditors claims before any distributions to heirs. Thus in the above scenario, the life insurance proceeds would be used to pay the outstanding medical bills with nothing left over for the surviving spouse.

3. Stretch IRAs

If a person (not an Estate) is a beneficiary of an IRA they may be able to elect to keep the money in the inherited IRA and continue to let it grow tax deferred. This is sometimes called a stretch IRA (also known as legacy IRA, extended IRA, etc). Each year, the beneficiary will have to take out a “required minimum distribution,” but will be able to leave the rest growing in the IRA. For younger beneficiaries, this can be the start of a retirement plan. For older beneficiaries this can be an excellent way to supplement their own retirement plan.

If the IRA is payable to the Estate, taxes must be paid and the funds must be removed from the IRA. The Estate then will use the funds, along with any other Estate assets, to pay administration expenses, creditors claims, and eventually the remainder, if any, is paid to the heirs.

Avoid Naming Your Minor Children as Beneficiaries

Tuesday, September 20, 2016

Beneficiary designations can be an effective tool to avoid probate, if used appropriately. (See Beneficiaries Instead of Probate: Use Caution). Assets can go quickly and directly to loved ones after your death. However, there are certain types of beneficiaries that should be avoided. First and foremost - no minor beneficiaries!

I recently represented a widowed mother of three minor children. Her husband had named as beneficiaries on his life insurance policy his wife (50%) and his three minor children (50%). After his death, my client contacted the insurance company and provided the death certificate and requested payout of the insurance proceeds. However, because half of the proceeds were going to minor children – the insurance company required that a guardianship of the property of the minors be established prior to the issuance of the checks. Additionally, the insurance company even refused to pay the 50% due to the wife until the guardianships for the minors had been established. This created a nearly 6-month delay in her receipt of the life insurance proceeds!

Minors cannot legally own property. They are legally incompetent. Therefore, if a minor is receiving assets as a beneficiary – a guardianship of the property must be created. Establishing a guardianship is time consuming and costly. In Maryland, it usually takes about six months to set up a guardianship. You can expect to pay anywhere from $2,500 to $5,000 in initial attorney’s fees and this amount does not include the yearly accountings required by the court.

In my client’s case, guardianships for the minor children was clearly not what the deceased husband would have wanted. Not only were the children’s life insurance proceeds reduced by attorney’s fees, but now my client, the mother, is required to provide yearly accountings to the court with regards to her children’s life insurance proceeds.

The necessity for a guardianship could have been avoided with proper estate planning advice. In this scenario, I would have advised the husband to name his wife as 100% beneficiary of the life insurance proceeds. The wife could then have managed the entire amount of the proceeds for the benefit of the family without any sort of court intervention. The husband may have wanted to name the children as contingent beneficiaries in the event his wife had predeceased him or died under the same circumstances. If that were the case, I would have recommended naming a trustee or custodian for the minors in the beneficiary designation.

Most states have adopted the Uniform Transfers to Minors Act (UTMA). This act allows you to transfer money to someone you designate as the custodian for a minor. The custodian holds the property until the minor reaches age 18 or 21. Prior to reaching adulthood, the custodian can use the property for the benefit of the minor.

The UTMA has one major disadvantage in that it ends at either 18 or 21. Many people believe that a 21 year old is not responsible enough to have unfettered access to what may be a substantial some of money. The alternative to the UTMA is to create a trust for the benefit of the children. The trust would name a “trustee” instead of a “custodian.” The advantage of a trust is that the terms of the trust are completely customizable – where the statute is not. So for instance if you want half of the money to be given to the children at age 25 and the other half at 30, you can draft the trust to do just that. The disadvantage to the trust is the legal fees associated in drafting the trust document.

Beneficiaries Instead of Probate: Use Caution

Tuesday, September 20, 2016

The term “probate” refers to the court process whereby a decedent’s assets are gathered together and, after the payment of the decedent’s debts, distributed to the decedent’s heirs. One way to avoid probate is through the use of beneficiary designations. The only assets that pass through probate are assets the decedent owned in his or her sole name without any beneficiary designations. Any asset that contains a beneficiary designation passes directly to the beneficiary without any court intervention. Life insurance is a classic example of an asset that passes directly to the beneficiary. Retirement plans (e.g. IRAs, 401ks) also usually pass to a designated beneficiary. Other examples are “pay on death” designations on bank accounts or investment accounts.

The beneficiary designations must be considered as a part of your <em>entire</em> estate plan. When drafting your Will you should be cognizant of the probate assets (i.e., assets which will actually be governed by the Will) and also the beneficiary designated assets that pass directly to the beneficiaries. For example, in your desire to treat your children equally, you draft your Will to split up the assets in equal shares between your children. Your desire for “equality” can be destroyed if you also have a large IRA that passes directly via beneficiary designation to only one of your children. Thus, it is imperative that when drafting a Will the beneficiary designations are considered.

It is also important to note that even though the assets pass directly to the beneficiary, these assets are still a part of the your taxable estate. The beneficiary designated assets will be counted, along with the probate assets, to calculate the total taxable estate. Often these beneficiary designated assets, such as life insurance, can be enough to cause the imposition of estate taxes. In Maryland, a $500,000 life insurance policy can turn an estate with a $600,000 house into a taxable estate.

In addition to the unexpected tax liability, the beneficiary designated assets can cause some unfair distributions. For example, let us say that your first child is the beneficiary of a life insurance policy which is about half of your total estate. Knowing this, you draft your Will and give your house, the bulk of your probate estate, to your second child. While this may seem like a fair distribution, it is fraught with problems.

First, what if at some later point you cancel your life insurance and don’t execute a new Will? Your first child has been disinherited. Second, what if the housing market takes a turn and the house, which is the primary part of the probate estate, is worth practically nothing at your death. Your second child is then effectively disinherited. Finally, most standard Wills indicate that the estate should pay all the inheritance and estate taxes prior to the distribution of the estate assets. In this scenario, your second child, inheriting under the Will, ends up paying all of the estate taxes and your first child, receiving the life insurance, will have no tax liability.

Stay tuned for Part Two – Beneficiaries to Avoid!

Domestic Partnerships: How to Avoid Costly Inheritance Taxes on the Family Home

Tuesday, September 20, 2016

In this modern era, families come in all shapes in sizes. It has become fairly common for same sex couples to buy a home and raise children. Then there are opposite sex couples who share their lives, including buying a house together, but forego the formalities of marriage. In 2009 the Maryland legislature enacted legislation providing some measure of protection to these more nontraditional families. Specifically, the legislature created “domestic partnerships” and imbued them with one of the legal advantages of marriage.

At death Maryland imposes an inheritance tax of 10% on all assets that pass to people who are unrelated to the decedent or who are further removed in relationship than a brother or sister. Importantly, there is no inheritance tax imposed on assets passing to a spouse. Thus when the family house, often times the most valuable asset in the estate, passes to the surviving spouse, it is subject to no inheritance tax.

People who are neither married or closely related, but who jointly own their own house have a problem. When the first dies, the second becomes the legal owner of the property but is now subject to a 10% inheritance tax on the amount inherited. Thus, for a house worth $300,000 the survivor owes the state of Maryland $15,000 (10% of the half inherited by the surviving spouse).

The 2009 legislation creates a class of people called “domestic partners.” Domestic partners are exempt from inheritance tax on a jointly owned primary residence. Second houses (or any other types of assets, for that matter) don’t get the exemption, only the primary residence. In addition, if only one of the domestic partners names is on the deed to the house, the exemption does not apply.

So how do people become “domestic partners?” They must be at least 18 years old and not related to one another. Their sex does not matter, they can be same sex or opposite sex couples. They must sign an affidavit indicating their agreement to be in a relationship of mutual interdependence. Attached to the affidavit must be two documents as proof of the interdependence. The types of documents that satisfy the statute are:


  • joint lease, mortgage or loan,
  • designation of one of the individuals as the primary beneficiary on the other’s life insurance or retirement plan,
  • designation of one of the individuals as the primary beneficiary of the will of the other,
  • health care or financial power of attorney granted by one of the individuals to the other,
  • joint ownership or lease of a motor vehicle,
  • joint checking account, investment or credit card,
  • joint renter’s or homeowner’s insurance,
  • coverage on a health insurance policy,
  • joint responsibility for child care, such as a guardianship or school document, and
  • relationship or cohabitation agreement.


The surviving domestic partner must present the affidavit and accompanying documents to the Register of Wills to be exempt from inheritance tax on the primary residence. Thus the affidavit and documents should be kept in a safe place - theoretically along with the Will and other important legal papers.

Should I get an Advance Directive, a Living Will or a Health Care Power of Attorney?

Tuesday, September 20, 2016

The answer is the first one or the second one and the third one. The problem with answering the question is first and foremost one of terminology. For starters, each state calls these legal documents by different names. For instance, Maryland has an Advance Directive, Virginia has an Advance Medical Directive and the District of Columbia has a Power of Attorney for Health Care and Declaration of Living Will. In addition, as a legal community we have simply not standardized our terms. What one lawyer calls a Health Care Power of Attorney, another calls an Advance Directive. In this blog I will attempt to clear up the confusion. (At least for Maryland residents).

Before talking about each of these different documents, we need to understand what we are trying to do with them. In general, the purpose is to give someone the legal power to make medical decisions for you when you cannot. For instance, if you have just been in a serious accident and are unconscious we need someone to give the “okay” to the doctor to perform surgery. In addition to giving someone this authority, it would also be nice if these documents provide some guidance to the person as to how to make the decisions.

Health Care Power of Attorney

Recall that you can execute a Durable Power of Attorney to give legal power to someone to handle your economic affairs. (See What is a Durable Power of Attorney Anyway?). Thus, some refer to a document that gives power over medical decisions a Health Care Power of Attorney. This document appoints an agent to make medical decisions. This person will be able to receive medical information and make decisions about treatment options for you. In other words, the doctors can tell your agent what your condition is and ask your agent for permission to provide treatment.

Living Will

The Living Will indicates your personal preferences as to what type of medical treatment you want in an end-of-life situation. Do you want to be on a ventilator? Do you want pain medication even if it would shorten your remaining life? This document does not provide any information as to who can make these decisions. In my opinion, the Living Will is of seminal importance because it eases the burden on your loved ones who have to make these tough decisions. Additionally, a Living Will should eliminate disputes over what treatment should (or should not) be provided. Everyone wants to avoid the legal battle that surrounded the Terry Schiavo case.

Advance Directive

In Maryland, an Advance Directive is simply a document that contains both a Health Care Power of Attorney and a Living Will. The first part of the Advance Directive names the person (or agent) to make health care decisions for you. Treatment preferences in end-of-life situations are contained in the second part. Thus, at least in Maryland, a properly drafted Advance Directive should accomplish all of your needs.

Safekeeping Your Last Will & Testament: 5 Recommendations

Tuesday, September 20, 2016

The result in most circumstances is that if your loved ones can only find a copy of your Will, you will likely die intestate. The laws of Maryland will decide what happens to your property, not you. (See The 5 Most Important Reasons to Have a Will). The time, effort and money spent with an estate planning attorney will have been wasted. To avoid this scenario, keep the following recommendations in mind regarding your new Will:

1. Don’t Write On It

As time goes by you may be tempted to alter your Will. Let’s say your daughter gets married and changes her name. You may be tempted to take a pen and cross out her maiden name and write in her new name. Resist all such temptations! First, a valid Will must be executed with certain requirements. In Maryland two witnesses are required. If you handwrite a change on your Will you probably didn’t have it witnessed and therefore the changes are not part of a valid Will. Second, any writing on a Will could invalidate the entire Will.

If changes need to be made consult with your attorney. A codicil (or amendment) to the Will can be prepared or a whole new Will can be drafted.

2. Invest in a Safe

The Will should not reside in the junk drawer. The original Will should not be anyplace where it could be destroyed by fire or natural disaster. Remember - only the original matters. It needs to be kept in pristine condition. You don’t want the Will to burn in the same fire that ends your life. If you use a safe, please remember that your personal representative will need to be able to open it. The personal representative either needs to have a key, know the combination, or know the location of the key/combination.

3. Rent a Safe Deposit Box

Instead of purchasing a safe, you could rent a safe deposit box at a local bank. This should protect your Will and other important documents from natural disasters. It is important that you make provisions for your personal representative’s access to the safe deposit box after your death.

4. Visit Your Local Register of Wills

In Maryland, your local Register of Wills (typically located at the Circuit Court in your county) will hold your original Will for you. The Register charges a nominal fee of $5.00. Simply put the Will in a sealed envelope and write on the outside:

  • Your name
  • Your address
  • Your social security number
  • Date of the Will
  • Name of the Personal Representative

The disadvantage of depositing your Will with the Register is that your Will does not travel with you. If you deposited your Will with the Register of Wills in Montgomery County, Maryland and then moved to Florida it would be imperative that your personal representative be aware of the location of the Will.

5. Advise Loved Ones

Of course it is absolutely imperative that your personal representative (and potentially successor personal representatives) know the whereabouts of your Will. Remember, the first thing that a personal representative must do, before being appointed, is to file the original Will with the Register of Wills. If the original Will cannot be located this could cause significant delay in distributing your assets and, at worst, could frustrate your entire estate plan and allow the state to determine who gets your property.

3 Issues to Consider When Drafting your Power of Attorney

Thursday, September 15, 2016

So you are now convinced that you need a Power of Attorney (POA) in place to help your family and loved ones take care of you in your time of need. Or maybe you and your aging parent have decided that a POA needs to be executed in anticipation of deteriorating health. Below are three items to consider prior to meeting with an attorney.

1. Avoid Joint Powers

By executing a POA you are granting some other person or persons the power to handle your economic affairs. This includes everything from accessing your bank account to selling your house. The person or people you designate are your agents. My clients often tell me that they would like two people to serve as their agents. It seems that parents have a difficult time deciding between their son and daughter – they want to avoid hurt feelings. In reality, being the agent under someone’s POA is extremely hard and thankless work; the child not named should be pleased, not upset. Regardless of the emotional ramifications, joint agents should be avoided. The primary problem with joint agents is that they may not agree on what to do on your behalf. The POA is a document to make it easier for someone to take care of you. If the agents cannot agree, you may have actually made it more difficult for anyone to assist you in your time of need. Only one person should be given the ultimate decision making authority. This does not mean that you should not designate successor (back up) agents in case your primary agent is unavailable or unwilling to accept the responsibility. But at any one time, only one agent should have the power to act on your behalf.

2. Capacity to Execute

You must have the "legal capacity" to execute a POA. Traditionally a Will begins with something like "I being of sound mind...." This statement is merely a recitation of the principle that in order to execute a Will, POA, or Advance Directive, you must understand the nature of the document and what it is that you are doing by signing it. In the case of an aging parent, the parent must have the capacity to execute the document. If the aging parent does not understand the nature of the POA or the ramifications of giving someone else power to act on their behalf, then the parent cannot legally sign a POA. As an attorney, if there is any question as to the capacity of the person retaining me to draft a POA, I will require a medical evaluation to confirm capacity.

3. Effectiveness

When does your agent have the power you have given them? Does the agent have this power as soon as you sign the document? POAs are generally drafted one of two ways. Either the power is immediate or the power is triggered by your incapacity. If the power is triggered by incapacity, the POA will include provisions to determine capacity. For example, the POA may indicate that only if two doctors certify that you are incapacitated and unable to manage your affairs that the power comes into existence.

An immediate grant of power makes the POA easier to use for your agent. Your agent can use the power without getting additional certifications from doctors in order to use it. If your agent is someone you completely trust (as it should be) then the immediate grant of power is recommended.

A conditional power only upon incapacity can be more difficult to use. First, your agent has to actually obtain the doctor's certifications. Second, there may be issues involved in interpreting the doctor’s certifications. For instance, a bank officer may not think the doctor described your condition in a way that indicates that you are incapacitated or that the date on the certification was too long ago to still be valid. This requirement for doctor's certifications of incapacity creates an additional hurdle your agent must overcome in order to assist you in your time of need.

Maryland's New Power of Attorney Act

Thursday, September 15, 2016

On October 1, 2010, a new power of attorney act went into effect in the State of Maryland. Efforts had been made for a number of years to get legislation passed that would govern the use of power of attorneys. The new Act should assist the general public by making power of attorneys easier to create, interpret, and use.

Witness Requirement

Before October 1, 2010, only the principal had to execute (sign) a power of attorney and the signature had to be notarized. The new law makes the formality required for a power of attorney even greater than that required for a Will. Now two witnesses are required in addition to the principal's signature being notarized. (A Will requires two signatures but does not require notarization).

Effectiveness of Copies

The new law provides that copies of a power of attorney should be treated with the same legal significance as an original. Thus, the days of banks and insurance companies requiring an original power of attorney are hopefully over.

Standardized Forms

For the first time ever, the Maryland statute provides two power of attorney forms in the statute itself. The first is called a Personal Financial Power of Attorney, the other a Limited Power of Attorney. These are provided as examples of valid power of attorneys – their specific use is not required.

Easier to Use

The new Act requires that persons (e.g. banks, insurance companies, brokerage houses) accept properly executed power of attorneys. This is true for all power of attorneys – regardless of when they were executed. The law also indicates that if a power of attorney is "substantially in the same form" as one of the statutory forms, any person that refuses to honor the power of attorney will be liable for the agent's attorney fees in seeking court intervention.


The new Act, by providing suggested forms and enforcement authority, should make the use of power of attorneys in Maryland easier. Unfortunately, the “teeth” in the Act only apply to a power of attorney that is in “substantially the same form” as the statutory form. We believe that the statutory forms accomplish about 90% of what a good power of attorney should. There are notable absences from the statutory forms. For example, the statutory forms to not provide for the power to engage in Medicaid planning or to take care of the principal’s pets. As a result, we are providing our clients a power of attorney package that actually includes two different forms. The first is a <em>statutory</em> form – to take advantage of the enhanced statutory enforcement language. The second is a <em>supplemental</em> power of attorney that is a more exhaustive and thorough description of the powers being given to the agent. This <em>supplemental</em> form includes language that gives the agent the power to act in areas that are not addressed in the statutory form.


If you already have a power of attorney, there is no need to get a new one. So long as your power of attorney was executed properly under the then-existing law, it is still valid. If you would like to take advantage of the new statute, our current power of attorney documents should be easier to use and enforce under the new law.

5 Important Facts About the New Estate Tax

Thursday, September 15, 2016

In December 2010 Congress enacted the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010. This law created an entirely new estate tax regime. To understand the extent of the change, it is important to remember where we were prior to the new law.

In 2009, the maximum federal estate tax was 45 percent and the maximum amount that one person could give away without estate tax (exclusion amount) was $3.5 million. Estate planners believed that a new law would have been enacted before the end of 2009 because the then current federal estate tax law was due to expire by the end of the year. Congress did not act and, thus, in 2010 there was no estate tax. This meant that no matter how much money there was in the estate, there was no tax in 2010. No doubt this was good news for George Steinbrenner’s heirs!

So why did Congress finally enact a new law in 2010 - when they couldn’t seem to manage it in 2009? As opposed to the absence of an estate tax in 2010, the prior estate tax law was written in a way that would bring back more excessive estate taxes in 2011. If Congress failed to act in 2010, the maximum federal estate tax would be 55% (an increase from 45% in 2009) and the exclusion amount reduced to $1 million per person (from $3.5 million in 2009) beginning in 2011.

1. Change In Exclusion Amount

In 2011 the new exclusion amount ( the amount any one person can give away without estate tax) is now $5 million. This is a significant increase from both the 2009 level ($3.5 million) and the level we would have been at in 2011 had congress not acted ($1 million.)

2. Change in Tax Rate

The new maximum estate tax rate on the amount in excess of the exclusion is 35% in 2011. This rate is significantly reduced from 2009 (45%) and what it would have been without a new law (55%).

3. Portability of Spousal Exclusion

For the first time in the history of estate taxes, an unused spousal exclusion can be used at the second spouse’s death. Under estate tax law (both old and new), the exclusion amount does not apply to spouses. Thus, the first spouse to die can give all their property, no matter the amount, to his or her spouse without estate tax. This created a problem. The spouse that died first lost the ability to give away the exclusion amount because he or she had given away all of their property to their spouse.

This problem is better understood by example. Under 2009 law ($3.5 million exclusion), husband dies and gives $7 million to his wife. There is no estate tax because of the unlimited spousal exclusion. When wife dies, under 2009 law, she could give away $3.5 million tax free. Her estate will be subject to estate tax on the remaining $3.5 million (assuming she had not spent the $7 million of course). Under the new law, wife has the ability to use her husband’s unused spousal exclusion of $3.5 million when she dies. In this scenario, there would be no estate tax due.

Currently, estate planners use trusts to prevent the loss of the first-to-die spouse’s exclusion amount. These trusts are often referred to as bypass or credit shelter trusts. Should these portability provisions survive the test of time, the use of these trusts as tools to prevent the loss of the exclusion may decline.

4. Sunset Provision

Unfortunately, the new estate tax law (just like the prior version) has a sunset provision. If Congress does not enact a new estate tax law within two years, we return to a much more severe estate tax. Thus, in 2013, the maximum tax rate would be 55% and the exclusion amount would be $1 million. Importantly, the spousal exclusion portability provisions will also expire. Consequently, only if <em>both</em> spouses die in the next two years will they be able to take advantage of the new portability provisions.

5. Don’t Forget your State

Regardless of Congress’s actions (or inactions), both Maryland and the District of Columbia have their own state estate taxes. The exclusion amount in both jurisdictions is only $1 million. In our local area estate tax planning may still be needed regardless of the new federal estate tax provisions.

Problems with Joint Ownership

Tuesday, September 13, 2016


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