Some time ago I saw a promotional letter by another law firm that discussed some difficult estate planning issues. The letter contained a list of questions intended to demonstrate why your estate plan may not work. Let’s take a closer look at those questions and see if they really point to catastrophic deficiencies in most estate plans.
“What if your surviving spouse gets remarried?” Sure, this is a legitimate concern for some people. But what the other firm didn’t say when they asked this question is that dealing with this concern, as is the case with most of the questions they raise, involves some hard choices. There is no quick fix.
“What about lawsuits and creditors’ claims?” I presume they are referring to lawsuits and creditors claims that arise after you have passed away, because unless they know something I don’t, a standard living trust cannot shield your assets from your creditors. The only way to do that is to undertake much more involved, much more expensive planning that will require that you relinquish control of your assets or move them offshore.
As for lawsuits and creditors’ claims that arise after you have passed away, there is a way to at least partially protect the interests of your beneficiaries. It’s called a spendthrift trust. Again, however, there are hard choices to be made. Using a spendthrift trust will place serious limitations on what your beneficiaries can do with the assets you are leaving to them. Is that what you want, or not?
How about nursing home expenses?” My advice on dealing with this concern is the same as my advice on how to deal with any insurable risk: buy as much insurance as you can reasonably afford, in this case long term care insurance.
“What if your kids get divorced or get sued?” The “get sued” part is a repeat of the “lawsuits and creditors’ claims” question above. The other firm believes that giving your assets outright to your children “is a huge mistake.” They believe it so much that they put those words in bold letters. Is it really a “huge mistake?” It may be, if your children have a history of poor financial or marital decisions. Again, however, the “fix,” i.e., a spendthrift trust, isn’t an easy choice. It will limit the ability of your children to use the assets you are leaving to them.
As for the “get divorced” part, sure, you can make sure that your untrustworthy child-in-law can’t get their grubby paws on your money, at least not until your child gets a distribution from their spendthrift trust. After that, you can’t control what happens.
I feel compelled to insert a personal note here. The entire discussion of these issues in the other firm’s letter is indicative of what I see as an unfortunate trend toward treating your children like children, no matter what their age. Yes, in some cases it is, unfortunately, probably necessary to try to protect your children from the consequences of their own poor choices. And yes, it is prudent (and customary) to include in a living trust a provision to prevent the possibility that an 18-year-old will get handed a check for a million dollars. I think there is great harm, however, in the trend toward assuming that your adult children are irresponsible, cannot be trusted, and must not be put in a position of making their own choices (or at least must be protected from the consequences of those choices as much as possible).
“What about a child or grandchild with special needs?” This is an obviously legitimate concern which any thorough estate planner will ask about and provide for if appropriate. Even here there may be difficult choices, however, since one way to deal with the beneficiary who has special needs is to limit what they receive from you, so as to not disqualify them from continuing to receive public benefits. In a number of cases I have had parents decide that they would rather have their entire estate get spent on a son or daughter’s care than place limits on what the son or daughter can receive.
So, while I think it is helpful to make people aware of these issues, I also think it does you, my clients and readers, a disservice to suggest that there are easy, right or wrong answers. If the questions I discussed above apply to your situation, there will be competing considerations that must be balanced to come up with the solution that best meets your needs and desires. Many law firms (including this one) have careful, competent estate planning attorneys who can help you find the best solution for you.
CONTINUING LAST MONTH’S THEME ABOUT IMPORTANT BUT SOMEWHAT OVERLOOKED HISTORIC MILESTONES…
Did you know that 100 years ago, on October 7, 1913, Henry Ford put into service the first moving assembly line for making automobiles? Perhaps that isn’t as big of a milestone as the signing of the United States Constitution, but it’s still pretty big.
How is that relevant to this newsletter, you ask? Well, think about this: the introduction of the moving assembly line dramatically reduced the cost of the Model T Ford, placing the automobile within reach of the non-wealthy for the first time. When a large segment of the population became able to take advantage of the mobility afforded by the automobile, patterns of land use were changed forever. Real estate law, and particularly land use law, would be far different today if the automobile had remained available only to a privileged few.
I was alerted to this milestone by an article in the October 5 Wall Street Journal titled “Honk if You Love the Mass-Produced Automobile.” The article cited a few statistics that I found fascinating:
- “Department of Energy data show that in 1970 cars used twice as much energy per passenger mile as did mass transit. Today, they are practically tied, and in a few years driving will use less energy and emit less pollution than public transit.”
- Not only did the moving assembly line immediately reduce the worker hours necessary to assemble a Model T from 12 ½ to 6, but within a year after the moving assembly line was introduced, the time necessary to assemble a Model T was all the way down to a little over 1 ½ hours.
- “[I]n 1912, fewer than one out of 4,000 Americans visited Yellowstone Park; last year, it was more than one out of 100.”
The author of the article closed with a personal observation that I agree with: we both look forward to being able to use a driverless car. My family thinks I’m crazy, but I believe that innovation is going to be here sooner rather than later, and I can’t wait.
QUOTE OF THE MONTH
Coming together is a beginning; keeping together is progress; working together is success.
≡ Henry Ford, U.S. Industrialist (July 30, 1863 – April 7, 1947