Do Your Family a Favor Before You Enter the Great Beyond

by Philip E. Goss Jr., Esq.

The COVID-19 pandemic was a stark reminder of a simple fact: We all will die. No one has ever made it out the other side. Although we cannot control when or how we die, we can plan for it, to some degree, from a legal perspective. To ensure you’ve made all possible preparations before you leave this rock, keep the following rules in mind.

Rule 1: Make your body-disposal desires crystal clear.

Interestingly, it was more than a decade after the wedding when my wife and I had the “burial versus cremation” discussion. If nothing else, a cancer diagnosis certainly fosters a real-world prospective. As a 19-year cancer survivor, my dear wife and I went on to discuss this issue to death. (Sorry for the gallows humor.)

My advice to you is to articulate your wishes for what will become of your body well in advance. Typically, this is accomplished through instructions stipulated in your last will and testament. Be as precise as necessary and leave no room for misunderstanding.

Another method is funeral preplanning, wherein your desires are premade and prepaid. The fewer steps a bereaving family must undertake, the better.

Rule 2: Don’t make your life insurance payable to your estate.

When you die, assets owned solely by you must be processed through a court procedure referred to as “probate.” If you are married when you die, jointly held assets (likely everything you own) will pass to your spouse, and no probate is required. If you are single, a probate proceeding likely will be required, notwithstanding whether you have a will (testate) or not (intestate).

Probate is both time-consuming and expensive. The requirement of probate is almost wholly based on the value of your estate. Therefore, minimizing the value of your estate is vital. Many people, for whatever reason, make their life-insurance policy payable to their estate as opposed to a specific person. This is a mistake for several reasons.

First, death benefits paid to your estate go toward the gross amount of the estate and, if large enough, could require the probate estate to pay tax on that death benefit, therefore lessening what’s distributed to your heirs.

Second, if your estate is well-funded, there’s a greater chance that probate will be required.

Third, life-insurance benefits paid to a beneficiary are generally tax-free and immediately paid, outside the probate process.

Finally, any amount paid to the estate funds the estate, and the claims of creditors will be paid before distribution to the heirs.

If you have a life-insurance policy, make it payable to your beneficiaries or a specific trust. This way, neither the IRS nor your creditors can lay claim against the life-insurance proceeds for your personal debts. Obviously, this must be done with the assistance of a tax professional.

Rule 3: Decide who will receive your personal items and take the steps to make your wishes known.

A problem I often encounter is that in cases in which personal property is not liquidated to pay creditors, the heirs (typically children) argue over specific items. This can become ugly if you don’t take proactive steps to prevent it. I’ve seen family bonds shattered over items worth nothing but their sentimental value.

One option is to make a list of items and who is to receive each one, then make sure the list is either part of or attached to your will. Even simpler is to attach to each item a small piece of masking tape bearing the intended recipient’s name. By doing this, your intentions always will be up-to-date, and you won’t need to amend your list or will if you change your mind.

Note that nothing prevents you from distributing your personal possessions before you die. Valuable items in which ownership is proved by a certificate of title (boats, cars, etc.) or a deed (real estate) should have the title amended prior to your passing by adding the person to whom it will be distributed. By doing this, the property passes to the intended beneficiary by right of survivorship and, if titled correctly (again, seek competent legal advice), likely will be passed immediately and outside the probate process.

Finally, remember that the items you pass to others are your possessions. What you decide to do with them is nobody’s business but yours. Do whatever you want — but don’t fail to act. I can tell you from experience that many families have been fractured because of disputes over items of no monetary value and the lack of proper planning.

To contact attorney Philip E. Goss Jr., send an email [email protected].