BLOG

BENEFICIARY DESIGNATION LAND MINES IN ESTATE PLANNING

28June
2015

It is a common practice to use beneficiary designations, or what is referred to as “pay on death” or “transfer on death” designations to transfer assets in the event of death. Some significant assets, including life insurance policies, IRAs, retirement plans and even bank accounts, allow a beneficiary to be named. It’s free, it’s easy, and, when the owner dies, these assets are designed to be paid directly to the individual(s) named as beneficiary, outside of probate.

The use of beneficiary designations may have good reason, and under many circumstances could be adequate. But it ignores the typical scenarios that could set off a landmine. For one thing, beneficiary designations are, as they say, for after death. This ignores any planning of what to do if the account owner is incapacitated, often requiring an expensive legal proceeding for what may be a temporary period of time.

It also ignores what could happen if there is a failure with the beneficiary designation. For example:

*    If your beneficiary is incapacitated when you die, the court will probably have to take control of the funds. That’s because most life insurance companies and other financial institutions will not knowingly pay to an incompetent person; they may insist on court supervision.

*    If you name a minor as a beneficiary, you are probably setting up a court guardianship for the child. Life insurance companies and other financial institutions will not knowingly pay these funds directly to a minor, nor will they pay to another person for the child, not even to a parent. They do not want the potential liability and will usually require proof of a court-supervised guardianship.

*    If you name “my estate” as beneficiary, the court will have to determine who that is. The funds will have to go through probate so they can be distributed along with your other assets.

*    If your beneficiary dies before you (or you both die at the same time) and you have not named a secondary beneficiary, the proceeds will have to go through probate so they can be distributed with the rest of your assets.

Even if the funds are paid to the named beneficiary, things may not work out as you intended. For example:

*    Some people just cannot handle large sums of money. They may spend irresponsibly, be influenced by a spouse or friend, make bad investment choices, or lose the money to an ex-spouse or creditor. If the beneficiary receives a tax-deferred account, he/she may decide to “cash out” and negate your careful planning for continued long-term tax-deferred growth.

*    If you name someone as a beneficiary with the “understanding” that the funds will be used to care for another or will be “held” until a later time, you have no guarantee that will happen. The money may just be too tempting.

*    If the person you name as beneficiary is receiving government benefits (for example, a child or parent who requires special care), you could be jeopardizing their ability to continue to receive these benefits.

*    If your estate is larger, your choice of beneficiary could limit your tax planning options, causing serious tax consequences for your family.

Beneficiary designations can be quite useful, but they need to be considered as part of an overall estate plan. Naming a trust as beneficiary will generally prevent the problems described above, and by bringing all of your assets together under one plan make it more likely that each beneficiary will receive the specific amount that you want them to have, which can be more difficult to accomplish with multiple designations.

 

Posted in division of property, estate planning, litigation, trusts, wills |