To Save and Protect

Answers to the 10 most commonly asked questions about taxes and estate planning

3. How can I find a reputable estate planning attorney?
The first step is to simply ask those you know, including “family, friends, people you work with, your financial adviser, your accountant, or another attorney you’ve worked with,” says estate planning attorney Garber. You can even contact your local courts. Make sure that estate planning is indeed the attorney’s specialty. “You have attorneys out there who will write a will and won’t know the rules because estate planning isn’t their specialty,” Garber warns.

You can also take your search online. Visit the American College of Trust and Estate Counsel (www.actec.org), which provides referrals for attorneys in all 50 states broken down by city; and WealthCouncil L.L.C. (www.wealthcounsel.com), an organization that facilitates estate planning. An attorney doesn’t need a specific degree to do estate planning, though some states offer board certification. These board certified attorneys can have documents tested, and they know what works and what doesn’t. “There are a lot of resources and forms for attorneys who do not specialize in estate planning that tell them how to put a will together,” says Garber. These forms aren’t usually available to the general public.

Garber insists that estate planning doesn’t have to be complicated, as long as you work with a lawyer you trust. “If you’re not comfortable, you’re going to hold something back,” Garber warns. In that case, the attorney simply can’t help you. Know that when the estate planning is done, it’s not over. It helps to periodically review the will or power of attorney and update it. Because once you’re gone, it’s going to be too late.

4. Am I responsible for my ­husband’s bills when he dies?

Quite simply, it depends on the level of responsibility you decide to accept. “If you accept responsibility for the estate as the executor, then you have the responsibility,” Whitman says. After your spouse dies, it’s important to gather important documents such as insurance policies, tax returns, and bank statements, among other financial documents, in order to take care of any commitments. If you are the executor, you need to pay off any debt your spouse owes before his beneficiaries can receive any assets. You are also responsible for any debt that you acquired jointly (e.g., credit cards, mortgage payments, etc.). Although you need to accept responsibility once your spouse is deceased, there are a few precautions you can take while he is living, in order to ease the financial burden later.

Above all, Whitman advises against co-signing for any reason. “Be sensible and don’t sign something for a parent or spouse if it’s not your debt.” If you sign on as a guarantor and your spouse passes away, you are responsible for paying their debt. Whitman also says that if you are married but estranged from your husband, be sure that you don’t have any joint assets. Consult a matrimonial attorney for advisement about which assets can and can’t be divided. Whitman says having something in writing is important even if the divorce is mutual.

5. How can I disinherit my children or spouse?
Disinheriting someone in your will means that you are specifically stating that a particular person won’t receive any of your assets. If you are concerned about your will being contested, you can clarify the reasons for your decision.

If you’d prefer to leave your assets to people other than your children, spell it out. “You’re not obligated to leave your children anything,” says Douglass. She explains further that some parents would prefer to give the money to charity or to their grandchildren. So if, for example, your will already includes your children but you now prefer to leave your assets to a new grandchild, you can simply have it updated.

Disinheriting a spouse is more complex because of elective share statutes; most states require the affected spouse to sign a waiver at the time the will is signed stating that he or she is consenting to the disinheritance. If such a waiver hasn’t been signed, then the surviving spouse can file a petition to receive the elective share. “There are sound reasons why someone might not include his or her spouse in a will,” Douglass says. “Many want to give money to their children for tax reasons.” Or, as blended families become increasingly common, some spouses may opt to keep the peace by passing assets to their children rather than to one another.

If you want to provide for your spouse but not give him or her control over your assets, consider putting money into a living trust, says Whitman. The trust allots money for their provision and well being, such as payments for nursing home care, but nothing else. Whitman says this is a wise choice if your spouse is not the parent of your children.

Whitman encourages women to see the division of their estate as a personal decision. “If your children are a disappointment, you don’t have to give them anything. An inheritance is a gift, not an entitlement, and you should give your gift to whomever you want.”

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