Estate Planning For Families In Their 30s, 40s, and 50s

Download a PDF version of this article here.

Now is a great time to consider drafting or revising one’s estate planning documents. People in their 30’s, 40’s, and 50’s are often not aware of the need to start the process early.

Typically, people in this stage of life own a home, own life insurance policies and retirement accounts, and have minor children. All of these factors require careful estate planning.

The first document that is required is the will, which divides property upon death. Dying intestate means passing away without a valid will. In such a case, the state will divide the probate assets by giving one half to the surviving spouse and one half to the minor children. Many people do not agree with this arrangement, so it is advisable to write a will. Non-probate assets (i.e., life insurance) or assets jointly owned will pass by way of contract to the beneficiary or joint owner.

In addition, the will appoints guardian(s) for minor children if both parents should pass away. Choosing a guardian ahead of time allows one to pick a suitable person to care for one’s children and will remove this decision from the court.

Next, a beneficiary is the person who receives the proceeds of life insurance or a retirement account. Typically, the primary beneficiary is the spouse, and the secondary beneficiaries are the children. In many cases, children are selected as beneficiaries outright even though they are minors. This is problematic given that a life insurance or financial services company cannot issue a check to a mi- nor child. Even if a child is 18 or older, many parents do not trust their young adult children with large sums of money. A testamentary trust is a great solution to this problem. The trustee(s) of the testamentary trust will manage the proceeds of the life insurance and retirement accounts until the children are older (age 25 or more). The trust can also define at what age the principal and income will be distributed. Pooled trusts place all of the money in one place for the children, and individual trusts allow children to have their own pot of money. Special Needs Trusts (SNTs) are also important to set up if one has special needs children, to keep them eligible for public benefits.

Many times, couples under-insure or do not carry life insurance for the home- maker spouse, who may also be working part time. This is a big mistake given that if the homemaker spouse should pass away, then the surviving spouse will incur additional expenses related to taking care of the house and the children. Estate tax planning is necessary for people who own assets close to $5 mil- lion in Maryland as estates valued at over $5 million are subject to state estate tax. Everything is counted as assets from jewelry to cars to bank accounts. Life insurance policies are also counted as assets, and therefore one can reach the tax threshold quickly. In addition, estate tax laws and thresholds can change, and it is advisable to set up flexible strategies such as disclaimer trusts and ILITs (Irrevocable Life Insurance Trusts) to deal with these situations.

Medical and Financial Powers of Attorney (POA)

These two documents are executed for situations when individuals are alive but are incapacitated and are unable to make decisions. The Medical POA appoints an agent to make healthcare decisions. (Orthodox clients typically appoint a rabbi in the POA to ascertain Jewish law.) If people do not execute a Medical POA, the medical facility may consult someone without the patient’s agreement to make decisions about their care.

The Financial POAs are two documents (statutory and supplemental) that allow one’s agent to manage their financial affairs upon temporary or permanent incapacity. The agent can open mail, apply for government benefits, file taxes, and sell real estate, etc. Without these documents, a person’s family will have to commence guardianship proceedings in court to manage their family member’s property, which can be costly or unnecessary.

Halachic Will

In addition to the documents mentioned above, a halachic will addendum is written for Orthodox clients. This document creates an incentive for the halachic heir(s) to follow the secular will and allows the surviving spouse to inherit everything (even for wife) or for property to be evenly divided amongst the male and female heirs. This document is approved by the Beis Din of Baltimore and does not need to be redone as assets change; therefore, it serves as an advantage to other methods used.

In conclusion, it is wise to start the estate planning process as early as possible and to revisit it every couple of years as one’s situation changes.

Michael R. Goldstein, Esq. advises clients on wills, estate planning, and non-profit entity matters in Pikesville, MD. He has a background in insurance and financial planning. He is actively involved in his synagogue and serves on the boards of Jewish Community Services (advisory) and the University of Baltimore School of Law (alumni). Please contact us for a free initial consultation.