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Subject:  Re: Estate Planning Date:  9/16/2021  7:11 PM
Author:  2gifts Number:  104231 of 105964

Anything in your will goes through probate, but the idea is to transfer as much as possible outside of the will.

I'm not sure why everyone is so terrified of probate, though I realize this may not be your opinion and you are just responding to others in the thread. I will say that if everything passes outside of probate, then there's nothing left in the estate to pay for things like estate taxes, final expenses, or remaining debts, and that can cause all sorts of headaches.

DH's aunt tried some DIY estate planning and left the bulk of her estate, which was well in excess of $750k, to one grand-niece via a TOD account. The rest of her estate consisted of her car, the condo, another house jointly owned with a sister in a Medicaid-funded nursing home, and about $11 in her checking account. No, that is not a typo. Oh, there was a life insurance policy with her executor as the beneficiary. So here's how it shook out - the grand-niece was the daughter of the executor, so although the executor could have clawed back some of the money in that TOD account to pay the estate taxes (there were Federal and MA state taxes owed), the executor did not do that because it was their daughter. Instead, the condo was sold to pay all the owed taxes, final expenses (which the deceased aunt had intended to be paid by that insurance policy, but it went to the executor who was not an heir and not obligated in any way to use that money for the estate), and the fees charged by the executor. The end result was that FIL was left homeless (he was supposed to be able to live in that condo) and inherited just enough money to boot him off his Section 8 housing. The other house eventually went to pay back Medicaid when the aunt in the nursing home finally died a few years later.

The grand-niece quickly went through all that money with not much left to show for it. Oh yeah, there were about 10 other grand-nieces and grand-nephews including that grand-niece's brother who got nothing.

So I'm not a big fan of doing all sorts of gyrations to avoid probate and have everything pass directly to the heirs because my experience has been that it has quite a lot of unintended, and mostly bad, consequences.

DH and I have promised the kids that they won't have those issues, and have had pretty much everything in a trust since they were 3. We also have the estate plan set up to preserve each of our lifetime exemptions to help minimize the estate taxes the kids may need to pay. But we also did all of this with an estate planning attorney, and have updated the trusts over the years as tax laws and our needs have changed.
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