Understanding Estate Planning: Wills and Probate with Nicole Cleland (Part 2)

Retirement Planning - Redefined

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23d ago 17:41

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This episode, we welcome back estate planning expert Nicole Cleland to discuss important topics such as how property passes after death, the rights of spouses and blended families, challenges minors face when inheriting, and the benefits of avoiding probate. Whether you’re single, married, or navigating a complex family dynamic, this episode offers valuable insights to help you protect your legacy and plan effectively for the future.

Learn more about Nicole and Legacy Protection Lawyers

Contact info: www.legacyprotectionlawyers.com
Phone 727-471-5868

Helpful Information:

PFG Website: https://www.pfgprivatewealth.com/

Contact: 813-286-7776

Email: [email protected]

Disclaimer: PFG Private Wealth Management, LLC is an SEC Registered Investment Advisor. Information presented is for educational purposes only and does not intend to make an offer or solicitation for the sale or purchase of any specific securities, investments, or investment strategies. The topics and information discussed during this podcast are not intended to provide tax or legal advice. Investments involve risk, and unless otherwise stated, are not guaranteed. Be sure to first consult with a qualified financial advisor and/or tax professional before implementing any strategy discussed on this podcast. Past performance is not indicative of future performance. Insurance products and services are offered and sold through individually licensed and appointed insurance agents.

Marc:

Time once again for another edition of Retirement Planning Redefined with John and Nick from PFG Private Wealth. And once again, we're going to continue our conversation with Nicole Cleland on estate planning. So really happy to have her back on this chat with us. And if you've got questions, need some help when it comes to the legal side of things, reach out to them at legacyprotectionlawyers.com. That's legacyprotectionlawyers.com. And of course, if you've got some questions on the financial side, reach out to John and Nick at pfgprivatewealth.com, pfgprivatewealth.com.

Nicole, welcome back in. Thanks for being here again.

Nicole Cleland:

Thanks for having me again.

Marc:

Lovely to talk with you. And John, my friend, thanks for being here as we continue this chat with Nicole. We covered a lot of stuff and I want to kind of circle back to a few pieces. We were talking about property, how it passes on death. Who should inherit your assets? I think that's kind of maybe a big question for people in general.

Nicole Cleland:

So this is what we call testamentary intent, meaning you can leave your assets to whomever you want. There is no restriction or requirement on who takes from your estate. However, most states, Florida included, has a law that says if you are married, you cannot disinherit your spouse. And sort of the philosophy behind that is if you had, back in the old days, husbands were the breadwinners, wife stayed homemaker. And if husband wanted to leave assets to someone else, his children, a mistress, something like that, the law would not allow you to disinherit that spouse. And that's sole control.

So the law presumes that spouses are meant to be taken care of and you cannot leave your spouse less than a certain percent. In Florida, that percent is 30%. So although you can disinherit the rotten children, you can't disinherit the spouse.

Marc:

Okay. I like that.

John:

So I'd also say this becomes very important when you have blended families. I'll say that.

Nicole Cleland:

Absolutely.

John:

Working with clients where it's second marriage, kids. This becomes a very important topic that I think most people I'll say that haven't gone through an estate plan or just haven't made that decision yet to go through it, have no idea this even exists. And also I've even talked to some pretty savvy attorneys that I've talked to and I mention it, like, "What are you talking about?" And they look it up and they're like, "I had no idea."

Nicole Cleland:

Yeah, it's one of those things that a lot of people don't realize because again, circling back to that testamentary intent, you should be able to leave your assets to whomever you want, but the law's not going to say that for a spouse. And you're right on the money there, John, with the blended family situation.

And I usually try to even say it's not always that later-in-life marriage couple. So if you've got a husband and wife that get married later in life, they both have children from prior relationships, we usually find that they honor that testamentary intent, meaning, all right, husband, whenever you pass, you can leave your money to your children and then I'm going to leave my money to my children. We don't need to leave anything for each other. We're getting married later in life. We've built our wealth so we don't need to support each other.

But what ends up happening is if my husband passed away and I'm still alive, I might be older and a little bit more vulnerable. And usually I find that it's the kids of the surviving spouse that end up saying, "No, mom, you're entitled to that elective share. You're entitled to that 30%. You need to pursue it." And it's usually the children of that surviving spouse in that blended marriage that end up trying to push for things that that married couple really had no intent to do.

Marc:

Is it easier or more complicated for folks on a... I guess if you've never had children and just you're single or whatever, do people feel like, "Well, I don't need any of this stuff because it's just me"? But you still have to leave your stuff somewhere, right?

Nicole Cleland:

Right. No, and I think it's where whether you're single, whether you're married, like I mentioned on our last podcast, I made a comment that everyone has an estate plan, you just may not know what it is.

Marc:

Right.

Nicole Cleland:

So a lot of people where let's say you have a young person who's working out in Silicon Valley, they graduated from an Ivy League school, they're making a ton of money out there, and they were raised by their mom but have no relationship with their father. In that instance, if that single individual passes away, not married, no children, their money's not going to go to the mom that raised them single-handedly. It's going to go 50/50. And I see that. I see those instances where you have money going to estranged family members, family members you had no relationship with because you just did not know what the law was going to presume you wanted.

Marc:

Yeah, that makes a lot of sense. And it gets really interesting because it's more complex than I think people realize, but yet it's also something simple to handle. You just need to get it done. And that's where making sure that you're checking off beneficiaries and all those things come into play as well.

John:

And I'll jump in here. Just I'd say that the biggest thing I think doing estate plan, and I'll say guilty where I didn't officially do one until my daughter, my first daughter was two, it was just kind of peace of mind that it was done. Because it was always kind of lingering there like, "Hey, you got to get this done." And finally when I did it was just like, "Hey, I'm good." And then we make updates to it. But it was a relief to get it done and know that my wishes would be taken care of if something happened to me and Jenny.

Nicole Cleland:

And I think that type of planning is very important for younger couples that do have children. You can name who you would want to have what I call custodial care for your child, who your children would live with if something happened to you and your spouse. But that also doesn't mean that has to be the same person that's managing the money. So you might have one person that decides whether your child goes to public or private school, whether they go to church or not, but then you can have someone else be the one to manage the checkbook, so to speak.

But the other thing that's wrecking havoc on our world a little bit is ancestry.com, believe it or not. We're having children that no one knew existed come to the forefront. So that's where planning could be even more important is you might have biological children that you did not know about.

John:

So I got to ask, I know this isn't a topic we were going to discuss, but how often is that happening and do those surprise kids, let's call it, have any rights?

Nicole Cleland:

Great question. So I've had it come up once, and it was in the context of what we call an intestate estate. So there are two different types of probates in the sense of who are your beneficiaries, meaning an intestate estate is a probate administration where the decedent had no will. So the law declares who your beneficiaries are, who your heirs are. A testate estate is a probate administration where you have a will. And so your will that you've created dictates the beneficiaries under your estate administration.

Most wills, at least I will say most good wills define who your children are. So for example, if I was creating a will for someone, I would say, "Okay, your children are A, B, and C. and for purposes of this document we're limiting your descendants or your children to those three kids."

Now, with an intestate estate, the one that I'm speaking of that we had happen is the family sort of was suspicious of this individual being a descendant. And after a paternity test, it was deemed true. But that didn't come to fruition until after the person had passed and the parent of this minor wanted to stake a claim in the estate. And they were successful because they were a biological child, even though there was no relationship at all, the child did not know the other family members. But they were an equal child to all the other children, even though they're technically half sibling. But it was a direct child of the decedent.

Marc:

Wow. Yeah, it gets a little sticky there. So we tend to think about that with celebrities or something like that. But I guess, yeah, it can happen anywhere.

Nicole Cleland:

Yeah, it really can. And it's not fun to manage because now as the attorney, I'm having to really make sure my clients understand, my executors or my personal representatives, I have to ask them, "Are you sure these are the only children of the decedent?"

Marc:

I'm sure you get, "What kind of question is that?"

Nicole Cleland:

Correct. Yeah, it's not a fun one, but it's something that I have to say, really make sure we've got the right heirs here.

Marc:

Yeah, that certainly, it was a great question by John. I didn't even think about that, kind of kids coming out of nowhere. And maybe this is one reason, Nicole, why people want to avoid probate amongst other reasons, right? Because if you're going to a trust or something like that, you have more privacy, correct? Where probate is out in the open.

Nicole Cleland:

That's correct. So trust administrations are typically private, meaning we don't file the trust anywhere. We don't have any sort of public record of the administration process. But probate is the opposite. We have to deposit your will with the court. The probate administration is all public record. So whenever you have a probate proceeding, we talked in our last session about how long it can take. I'm saying now the average is about 12 to 18 months. And a lot of that is, I think directly dependent on your fiduciary, your personal representative that you have serving in that role. Some of it is the court, but a lot of it is that person that you have named.

But a lot of people tend to shy away from probate administrations, not because it's necessarily public and not so much because of the delay, but the cost. The cost for probate proceedings here in Florida are statutory, which means there is a Florida statute dictating the schedule on what is deemed a reasonable fee for not just your personal representative but the lawyer.

And in Florida, 3% of the probate estate is deemed reasonable. So if you've got a million dollar investment account that needs to go through probate, and it could just be the one account, what would be presumed a reasonable fee under Florida law would be 3%, 3% for the lawyer and 3% for your personal representative. So just right there, you've got 6% coming from that million dollar account, $60,000 for a probate administration. So the cost can add up fairly quickly, especially the bigger and the more complex the size of the estate.

John:

Yeah. And I'll add to that just kind of personal experience. You don't know what you don't know. And I'll tell you that even though I'm somewhat in the industry, not an attorney, there's a lot of questions that I'm having for helping my wife be the executor of her father's estate. And it's like, "Hey, what about this?" So we're emailing the probate attorney quite a bit of just, "Hey, what about this scenario? What about this?" And there's a lot of nuances that I think the average person just is not aware of.

Nicole Cleland:

Absolutely. I think for most administrations, we always joke here in the estate planning world in the administration side is there's no easy probate. There's something new in every single probate administration that you have just because the family dynamic could be different, the type of asset that could be different. You could have what I would deem a very easy probate where the only thing we have to transfer title to is maybe the house. But let's say the house isn't selling. Let's say the mortgage is worth more than the house, or there's a special assessment on the condo or one of the beneficiaries doesn't want to consent to the sale. Something, anything can just come up at any time with a probate administration that can turn what I would deem an easy probate into a very, very complicated one.

And like John said, you don't know what you don't know, and sometimes you can't envision or foresee what's going to happen at the end of the probate proceeding. But surprises do often come along. And that's where I think sometimes experience can really matter in terms of the type of attorney that you pick because they're going to have experience dealing with this type of issue, this type of condo that's being sold or this type of family dynamic that's occurring or something like that.

John:

Nicole, how about something that comes up a lot with I would say Nick and I is minors. Minors that potentially could or have inherited money that maybe they were listed on a beneficiary account and the person didn't know the rules in Florida with minors inheriting money. How does that work?

Nicole Cleland:

Yeah, that is just not great planning, frankly. I think a lot of people who maybe don't have a lot of wealth or have young children, they name their minor children as a default, and it becomes really sticky very quickly. And even in the best of scenarios where let's say you've named your minor as the beneficiary on an account, and let's say we have to do a guardianship for that child because minors can't manage over a certain dollar amount, or let's say you even have a custodial account, even if all of those get teed up perfectly, at the end of the day when those minors inherit the money, they're 18 years old or 21 years old, or even 25 years old. And I don't know about you, but I don't see a lot of financially savvy or financially prudent 18-year-olds or 21-year-olds.

So it ends up being where even in best of scenarios, without proper planning for young kids, it's really hard for someone in their early twenties to inherit any type of money, not just a significant amount.

John:

Yeah, I'd say one thing we come across when we're doing initial consults, we'll do reviews of beneficiaries and we'll see minors as contingents. And that's where, going back to who needs an estate plan or why, I think people really need to take a look at that with kids.

Nicole Cleland:

They really do. Because that's the one where, again, even if we're able to do the guardianship for that minor or a custodial account or something, it just doesn't work well when you have a young person inheriting.

I've had a minor, no, actually take that back, they were an adult, inherit a life insurance policy, and I think they were 21, what the law presumes financially mature enough to inherit money. And this 21-year-old spent over half a million dollars in life insurance in a year.

Marc:

Wow.

Nicole Cleland:

And they had nothing to show for it at the end of that year, nothing. It was you almost felt guilty asking them what did you even spend that money on? Because they're just so young. And it wasn't necessarily their fault in the sense that that was not the planning that should have been put in place for that person.

Marc:

Yeah, their sneaker collection was amazing.

Nicole Cleland:

Yeah, I couldn't even say that. There was no collection to speak of.

Marc:

Oh, geez.

Nicole Cleland:

I have no idea where the money went.

Marc:

Really? Oh, no. Well, that's terrible. That's the importance, right? That's the importance of, and that's a great way to wrap up this episode, Nicole, the importance of planning for the individual, for the situation, just it's paramount. Right?

So get onto the calendar, have a conversation. If you need some help, reach out to Nicole and the team at legacyprotectionlawyers.com, that's legacyprotectionlawyers.com, or call them at 727-471-5868. That's 727-471-5868 to have a conversation about your situation. And of course, as always, don't forget to subscribe to the podcast, Retirement Planning Redefined with John and Nick. You can find that on Apple or Spotify. And of course, if you need to make it easy, just go to their website and get some time with them as well, pfgprivatewealth.com. That is pfgprivateweath.com.

Nicole, what does it look like if people want to reach out to you and the firm?

Nicole Cleland:

We would love for clients to reach out and ask to meet with one of our attorneys to get a little bit more of a specific recommendation as to their family and their situation. Everyone is different. There's no cookie-cutter approach to planning, and it's important that people talk to an attorney or a professional that can be a little bit more custom approach to their type of plan. So they can give us a call and we can offer a complimentary consultation to kind of go over that in more detail with them.

Marc:

All right, there you go. So thanks so much for listening to the podcast. We appreciate it. Again, reach out to them at legacyprotectionlawyers.com. That's legacyprotectionlawyers.com. And thanks for tuning in to Retirement Planning Redefined with John and Nick.

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