An "Empty" Estate Plan is Worthless

An "Empty" Estate Plan is Worthless

By Alan Orlowsky

When it comes to estate planning, you will often hear the phrase “title = result.” The phrase means that the ultimate results of an estate plan will depend on how each asset in the estate is titled. If something is titled incorrectly, it will remain outside the control of the estate plan, and will likely not be handled according to the expectations of the person who designed the plan.

For example, if you own an insurance policy or a retirement plan with a designated beneficiary, that is considered a contract. In that instance, the contract instructions will control the distribution, regardless of the instructions found in your will or trust.

By the same token, if you title a piece of real estate, a bank account, or any other item in joint tenancy with another person, the estate plan’s instructions (whether will or trust) are irrelevant. The property will pass from one joint tenant to the other immediately upon death by operation of law.

 Some people think that their Last Will and Testament will handle everything they own, but a will actually only controls things titled in an individual name. Trust instructions will only apply to assets that are titled in the name of the trust and its trustees. If you intend to pass a business to your kids through a family partnership, the partnership must own the shares of stock or the LLC units. In every situation, how an asset is titled will determine how it is handled after death. 

Although estate planning documents may be signed, the estate planning process is not complete until asset titles are changed so that they can be controlled by those documents. The act of retitling assets is called “funding.” So when the estate planning attorney speaks of “funding your trust,” for example, he or she is talking about changing the title to assets which may currently be owned individually or in joint tenancy, or may be controlled by contract, into the name of the trust. 

One of the biggest mistakes made in the estate planning process is to spend a lot of time and money to create great documents, but then fail to complete the funding process. A good funding strategy is to make a comprehensive list of all assets and how they are currently titled. Next, the attorney can advise how things should be titled to fit with the estate planning documents that have been created. Then the attorney or a financial advisor can help to shepherd the asset through the ownership change paperwork.

If some asset is overlooked, or if you pass away before a recently-acquired asset can be properly funded, most plans will include a safety net called a “pour over will.” This is a special will that has one primary function – to take mistitled assets and “pour them over” into the trust or other planning entity where they belong. But you should never depend on the pour over will to handle funding. It should only be used as a last resort because, like any other will, the pour over will is required to go through the probate process…one of many things you were trying to avoid when you established your estate plan. Of course, as mentioned above, even a pour over will won’t help with assets that are controlled by contract or are owned in joint tenancy at the time of death.

Funding is not necessarily fun, but it’s also not terribly complicated. It is primarily a matter of contacting financial institutions and providing the proper paperwork to get the account and other asset titles changed. The process can be tedious and time-consuming, and although follow-up is most often required with the involved institutions, it is not difficult. Professional advisors should have processes and procedures to help you accomplish this important task, but it’s up to you to avoid procrastination and to persevere until the funding is complete!

If you have any questions about same gender estate planning and how we can help please contact the Law Office of Orlowsky & Wilson by calling 847-325-5559 or visit our website www.orlowskywilson.com for more information.