If you’re like most people, adding your child to your bank account seems like the easiest thing to do, rather than relying on legal documents like a power of attorney. There are at least three reasons why this estate planning “shortcut” is a bad idea.
Your child may have to pay gift taxes if they do the “right thing” for their siblings
When you add your child to a bank account, they become a co-owner of the account, which means they become the sole owner of the account at your death. Any money they give to their siblings or anyone else will be considered a gift, and will fall under gift tax rules, not under any inheritance rules. Currently, the gift tax exclusion amount is $14,000.
You disinherit your other children
As one person found out when her sister decided to keep her father’s $100,000 bank account, there was nothing she could do. Plus, the estate expenses were paid from other assets of the estate, and nothing from the bank account – that money now belongs to her sister.
You expose yourself to your child’s financial woes
The worst thing that could potentially happen to your bank account is to have your child’s own financial woes spill over and effect your account. Because your child’s name is on the account, collectors, creditors, and litigants are all going to be looking at your bank account. As a co-owner, your child can take money out for any reason, and you won’t have any recourse against them. If your grandchildren are applying for college loans, your account could get in the way.
Adding a child to your bank account is one of many choices people make that have unexpected outcomes. Consulting with a financial planner and an estate planning attorney can help you avoid these pitfalls.
An estate plan gives you lots of opportunities to define when and how your beneficiaries can use their inheritance. Inheritance is a nice word for everything you’ve worked hard for all these years. Maybe you want to specify that your children can only invest in tax free bonds, and can never use your money for a vacation ever, or maybe you don’t. Either way, your estate plan can provide some pretty amazing legal protection for your beneficiaries without controlling their lives.
The “Old Way” of Trust Planning
Traditionally, trusts survived just long enough to avoid probate for Mom and Dad’s estate, and divide everything between the children. At the end, the children now own everything directly, which sounds great. Unfortunately, this exposes your hard earned money to your children’s creditors, lawsuits, and potentially, even divorcing spouses.
The “New” Better Way
Instead of giving your children their inheritance outright, each beneficiary may instead receive their inheritance inside a special trust created by your own personal Living Trust. This trust gives your child the benefits of ownership without the legal liability of ownership. It’s like giving your children their inheritance inside an LLC without the expense and complication of the corporate overhead.
How it Works
Let’s say Doctor Lenny inherits a home and some cash from his parents who had an “old” trust. On his way to work the car in front of him stops suddenly causing Lenny to crash into the back end of a bright red Italian sports car. Months later, and several attorneys later, Doctor Lenny hands over what is left of his assets to settle the lawsuit – his own assets and his inheritance, gone.
If we rewind and give Doctor Lenny his inheritance in a “new” trust, his parent’s home and cash are now held in his own separate trust. Same car crash, same lawsuit, and Doctor Lenny is handing over what is left of his assets – except the inheritance. His parent’s house and cash are left untouched.
Who it's For
If you would like your beneficiaries to think of their inheritance as capital to be wisely managed and invested, this type of trust is for you.
Please note: any trust strategy alone does not guarantee “bulletproof” asset protection. But it does offer dramatically increased protection over holding assets outright. Before proceeding with any estate planning, you should consult with a qualified attorney.
Besides Top Ramen, there are two essential legal documents your high school graduate needs to have in place.
Two Key Legal Documents
It may be hard to believe your child heading off to college really is an adult, but they’ve officially crossed that threshold into adulthood. It’s an exciting time. And it’s a very legally vulnerable time because now your child does not have a default backup for important medical and financial decisions the way you and your spouse do. Even between spouses though, I think every adult should have these two key legal documents.
Your child’s medical information is legally protected, and it may be difficult or even illegal for medical providers to share information with you in case something happens to your child. When congress passed The Health Insurance Portability and Accountability Act in 1996 (HIPAA) one of their goals was to protect patient privacy. Because the penalties for violating the rule can be steep, doctors and hospital administrators are very cautious when releasing medical information. As a parent that can present a very frustrating and frightening situation in a hospital emergency room. Your child may not be in a position to give consent, and you don’t have time to go get a court order (an “emergency” action by the court could still take a week or more for a “temporary” order) not to mention the cost of filing fees and attorney assistance. To avoid all of that, your child (now adult) should prepare an Advance Health Care Directive to appoint the person they want to represent them if they are unable to speak for themselves.
The second document is called a Durable Power of Attorney, and it gives the appointed agent the ability to handle all financial matters. While most college age children don’t have a lot to manage, the Power of Attorney can be a good safeguard against a potentially devastating impact of an event that leaves them incapacitated. Imagine a car accident has left your child incapacitated – can you step in and handle all the important legal and financial matters that will ensue?
It can save you thousands by avoiding the need to obtain a conservatorship of the estate. You may think, well, my child just has a small bank account, what is the big deal? The big deal is everything that is not in a bank account: handling insurance claims, lawsuits, lawyers, lenders, and the IRS. Your bank paperwork won’t help with any of those people – you’ll need a conservatorship or a power of attorney to act on your child’s behalf.
So, in between all the notebooks and highlighters, slip two important legal documents. Welcome to the adult world, kid.
Most people I work with haven’t revealed a lot about their estate to their children. And usually, there is no good reason to let your children know all the details about your financial matters. But take a moment and step back – if something were to happen to you, how would your child, your successor trustee, your executor, know where to start?
If you have a trust in place, the first place to look is the trust property exhibit. But that may not address life insurance policies, retirement benefits, and potentially assets acquired since the trust was created.
You may intend that your children get “everything” when you’re gone, but unless there is a map to guide your children to where “everything” is, they may spend many frustrating hours searching through your house and paperwork to try and figure out what is there.
How big of a problem is this? In 2015, the Legislative Analyst’s Office estimated that California took in $400 million in income off of unclaimed assets. They estimated that unclaimed property had become the fifth largest source of income for the state.
Your children could lose a valuable life insurance policy because they had no idea it was there and didn’t get the premiums paid while you were incapacitated.
A bank account may just sit because there is nothing at home to indicate you have an account there.
To avoid these problems create, and more importantly, maintain, a list of where things are. Opening a new bank account? Add it to the list. Closing an account? Update the list. Company changing names? Update the list. Oh, and make sure your children know where the list is.
If you think you might have unclaimed property, search the state's Unclaimed Asset Database.
My dad always said that wisdom is learning from other people’s mistakes – it’s cheaper than learning from your own mistakes. Here is a classic example to learn from: the estate of Estelle Elsa Manwell, from El Dorado County. Ms. Manwell was well to do – according to court documents she owned real estate in Contra Costa and El Dorado County worth $1,238,848. Ms. Manwell must have known that she did not have much time to live because she signed a handwritten will just days before she passed away. This handwritten, or “holographic” will left her estate to her 5 living children, but stated, “I do not want any of my property sold outside of my family for a minimum of 20 years.” The will also neglected to nominate an executor or mention whether the executor would be required to carry a bond. Ms. Manwell's will left a few problems for her children.
Because by statute the executor is paid the same as the attorney (though some may choose to waive this fee) the position can have an enviable financial bonus for an heir. For an estate of $1 million, the executor can collect $23,000. The court records indicate that the children of Ms. Manwell fought over who would be executor. This fight could have been avoided by simply naming the executor in the will. Now the family relationships will have to recover from what was said and done in a public (and expensive) forum.
The attorney’s fees and executor fees could have all been avoided by creating a trust, allowing the assets to pass to the heirs without going through probate. That amounts to nearly $50,000 in expenses, not to mention the months, and potentially years it will take for the court to process this hand-crafted document.
Tying beneficiaries hands
Sometimes restraining the beneficiaries is for their own good, and serves as a way of protecting them from creditors or their own foolish choices. But in this case, the children (likely all in their 40’s or older) will be forced to stay on title together on assets with which they can do nothing until 20 years later, minimum. These five children, who have just finished fighting over who will be the executor, will have to manage multiple properties in several counties – together. I have a feeling only the lawyers will appreciate this arrangement. Managing real estate can be time-consuming and costly. Managing with multiple owners with their own unique perspective, and potentially antagonistic attitudes towards each other is a recipe for waste. Sometimes a client has a sentimental attachment towards particular items, like a home wrapped with memories of family events, holidays, and birthdays. I try to remind clients that their children have their own fond memories, but also have their own lives to lead. Tying their hands and preventing them from making necessary decisions could ultimately hurt their children in the long run. Better to create a structure that will make it easy for the children to carry out your wishes, but gives them necessary options.
Haste makes waste
In summary, by leaving these planning decisions to the very last minute, Ms. Manwell left behind a situation that will cost her children financially and emotionally over a long period of time. All of these things could have been avoided by careful advanced planning.