Estate Planning for Spouses: The Basics

This week Forbes published an article that outlines the basics of how to fund an estate plan for spouses. The story is a helpful reiteration of many of the basic issues that are common for all New York couples thinking about their future and trying to create security no matter what the future holds.

Helpfully, the story explains how estate planning is not the creation of a stack of legal documents that are signed and then stored until needed. Instead, the process is far more comprehensive and involves examination of all of one’s assets, wishes, legacy interests, elder care goals, and more.

As a general matter, on the estate planning side, one of the main goals is avoiding probate at all costs. That means that something like a last will and testament is inefficient. Instead, for most New York couples it is best to create a series of revocable living trusts which are far superior, allowing property to be protected and passed to others without the need for court intervention. After the trust is created spouses transfer property directly into the trust.

What goes into the trust?

Virtually everything. This includes real property (like a house), bank accounts, mutual fund accounts, stocks and bonds, and even business interests.

But it is not necessarily as simple as moving everything you own into a trust. For example, the article discusses how couples may not want to move rental property into the trusts directly. Instead for liability purposes it is usually best for rental properties or other investment real property assets to first be conveyed to a limited liability business entity. The interest in that entity should then be transferred to the individual couple’s trust.

Other items may not be transferred to a trust, like life insurance policies and retirement plan accounts. That is because these items already pass automatically outside of probate. Yet, it is critical that beneficiary designations are properly identified and updated down the road if necessary. Contingency beneficiaries should also be named as an extra precaution in case the primary beneficiary is unable to take the assets.

Depending on the specifics of these assets, there may be some added complexity. For example, figuring out how to divide and transfer business assets may be tricky. In addition, when transfers involving a business different tax implications need to be consider, including those related to valuation discounts.

For help on any number of elder law estate planning issues in New York, please contact our attorneys today.