5 holes in your will

May 1, 2006

Last will and testament. Sounds majestic, doesn't it? Andreassuring: Once you've had your will prepared, signed andwitnessed, you'll probably feel you've done right by your heirs.But many doctors fail to realize how much of an estate may not fallunder the provisions of a will. Let's see where five of the biggestholes are, and how you might fill them.

Beneficiaries

Life insurance is typically among a physician's major assets, and those policies are controlled by beneficiary forms. Suppose you name your spouse as sole beneficiary, and he or she passes away before you do. The insurance payout could end up being part of your estate, not protected from any claims against it. Ideally, you should put the policy into a trust, for tax savings. But at the very least, you should simply list your children as secondary beneficiaries, which will protect the funds from creditors.

Remember, too, to review all beneficiary forms when planning your estate. There may be more assets affected than you think.

Marital agreements, divorce settlements and prenuptial agreements often affect estates significantly and unexpectedly: When there's a conflict between such an agreement and a will, the former takes precedence. So if your agreement says you'll leave a certain piece of real estate to a spouse, it doesn't matter what you say in your will later.

"If you promise a percentage of assets, you'll be less locked in," Norristown, Pa., attorney David J. Schiller says, "because you could decrease the size of your estate by the gifts you make to others during your lifetime."

Marital, divorce agreements

In particular, doctors should watch out for the impact that marital agreements may have on pension plans. By law, a surviving spouse generally has rights under all retirement plans, even if he or she isn't specified as the beneficiary. If a doctor's fiancée waives claim to a retirement plan in a prenuptial agreement, there is still a trap. Since only a spouse can waive such rights, the fiancée should sign the plan's waiver form after the wedding, or else the prenuptial waiver may fail.

The law can also favor ex-spouses. Suppose you name your spouse as beneficiary of a pension plan but forget to change it when you divorce. Later, in the divorce papers, the two of you mutually give up "any right, title, or interest in and to any earnings ... pension plans, profit-sharing plans ... or property" of the other. A federal appeals court ruled several years ago that because a similar agreement didn't specifically mention the plan in question, the ex-spouse was still entitled to it.

Marital and divorce agreements are often made under great stress, and courts can be unpredictable. So have an estate-planning lawyer review any such agreements - ideally, before you sign them.

Irrevocable trusts

You may not have actually transferred assets you thought you did. Picture this: After the usual delay of several months, your spouse and children receive their inheritances - but a few months later, a letter from the executor arrives. It says, in effect, "We've just learned there was more estate tax due than we realized. Please send back your inheritance until we straighten this out."

Even if you set up irrevocable trusts for your beneficiaries, if you leave even one string attached (so-called incidents of ownership), the IRS can use it to yank the asset right back into your taxable estate.