"It's no disgrace to be poor, but it's damned inconvenient," my father used to say whenever I asked for something we couldn't afford. I never felt poor while growing up, but I recall some inconveniences. Yet, you don't need a family fortune to have a sense of security against inconveniences, an uncertain future, missed opportunities or unforeseen disasters. If you have saved and invested wisely, then you have achieved this sense of security for yourself. And if you plan carefully and lovingly, you can continue this same sense of security for the next generation and after.
When people begin to plan for the transfer of their wealth after death, they almost always say, "Oh, just give it to the kids. They'll know what to do with it." After all, we have raised our children right, to save their money, take care of their own children, and plan for their own futures. But people want to make a good impression on their lawyers, and only reluctantly mention family problems or situations that they thought they could do little about. Often this belief represents a lack of awareness of what we can accomplish together. But once we begin to talk about health problems, shaky marriages and poor financial judgment, or to anticipate the development of budding talent, then clients frequently refine their estate planning goals. And clients discover the many options and the flexibility available to them with long-range planning.
Immediate transfer of family wealth to adult children upon the death of the second parent can create problems as well as solve them. Adult children can use the sudden gush of money to get out of debt, buy a house, begin to travel, or indulge other long dreamed of projects. But married children often face spousal pressure to transform the inheritance into marital property, or to help other relatives in a pinch. On the other hand, inherited property kept separately can unbalance the marriage of a couple that began their life together with only their college degrees and their wedding presents. Therefore, I always ask clients if their children have happy and stable marriages, because I have seen these inherited assets converted to married assets, and then come up in the negotiations of a divorce. Keeping the money in trust for the benefit of your children puts it beyond reach of a divorce court.
Divorce presents only one problem of turning family money into marital property. Premature death of an adult child, before your grandchildren have completed their education, may upset your dreams if the surviving spouse succeeds to your money through joint ownership. Remarriage of the widow or widower of your child may introduce new and unwelcome pressures for the consumption of your family money, which you had intended to benefit your grandchildren. Talking to your children about this possibility may sound like meddling, and most clients prefer not to mention it. But you can insure "bloodline protection" through long term trust planning.
Keeping the money in the bloodline applies not only to your children's generation, but also to your own. No one wants to talk about a spouse's remarriage after the first death because it seems to imply a lack of trust, so the subject comes up only if the estate-planning attorney mentions it while formulating goals. Remarriage protection (sometimes called "bimbo" or "gigolo" protection) has advantages to the surviving spouse, as well as assuring the first-to-die that the original plan will remain intact. When a widow or widower remarries after a long first marriage, the pressure to please the new spouse can lead to the dissipation of the savings from the first union. Some couples deal with this by a pre-nuptial agreement, but that depends upon future full disclosure and negotiation, and does nothing for present peace of mind. The estate planning solution involves limitations on spending the principal of the trusts created for the surviving spouse and children, during any period of remarriage. Then the survivor can tell the new spouse, "Honey, I'd just love to buy a yacht and cruise the Caribbean with you, but I can't get into the trust fund except for income. Sorry." Giving the survivor the power to say "no" offends no one and achieves an important objective.
Trust planning can reach positive as well as defensive goals. Once you have enough savings and investments set aside to provide for your own needs, you can plan for the education of your grandchildren, pay for or contribute to wedding expenses, or give the down payment for a first home. A child or a grandchild may ask for help to start a new career, or take advantage of an attractive business opportunity, and you have the resources to make it happen. And if a member of your family suffers a crippling disability, extended unemployment or business disaster, you will do what you can to smooth out the economic stress. Leaving your money in trust after your death and the death of your spouse, with carefully drawn instructions to the Trustee to spend the fund only for specific purposes, will assure that your loved ones will continue to have the same long-term family security which you have provided during your lifetime.
Trust-based planning not only achieves our estate planning definition, but has an important taxation bonus. At the death of the first spouse your Successor Trustee will use your federal estate tax coupon to pay the I.R.S., and the remainder will pass tax-deferred to the second spouse. At the second death, the second spouse's estate will pay whatever tax comes due. After that, if the assets stay together in trust (subject to detailed instructions to the Trustee for spending it for health, education, maintenance and support), then the government considers that you still control the money, and your beneficiaries do not own it. Thus, the I.R.S. cannot collect federal estate tax again, because the trust fund will not become a part of your children's taxable estate, or of any grandchildren who outlive you. Congress has used the tax code to reward you for providing for your loved ones, and preserving and growing your family wealth.
You can keep your hard earned savings intact (even if less than a fortune), to achieve as many loving goals as you can think of. Beyond any economic goals, long-range trust planning enhances a unifying family identity, derived from you as parents who value education, and have the prudence to express your love and generosity through careful estate planning. But it takes a willingness to begin the process with your estate-planning attorney, to think through the strengths and weaknesses of your family, and to make the choices that only you can make.
Reprinted with permission from "The St. Louis Lawyer, Richard Boardman, JD