Per Stirpes vs. Per Capita in Estate Planning

Three generations of one familyWhen creating an estate plan, one of the most basic documents you may wish to include is a will. If you have a more complicated estate, you might also need to have a trust in place. Both a will and a trust can specify how you want assets distributed among your beneficiaries. When making those decisions, it’s important to distinguish between per stirpes and per capita distributions. These are two terms you’re likely to come across when shaping your estate plan. Here’s a closer look at what per stirpes vs. per capita means.

Per Stirpes, Explained

If you’ve never heard the term per stirpes before, it’s a Latin phrase that translates to “by branch” or “by class.” When this term is applied to estate planning, it refers to the equal distribution of assets among the different branches of a family and their surviving descendants.

A per stirpes designation allows the descendants of a beneficiary to keep inherited assets within that branch of their family, even if the original beneficiary passes away. Those assets would be equally divided between the survivors.

Here’s an example of how per stirpes distributions work for estate planning. Say that you draft a will in which you designate your adult son and daughter as beneficiaries. You opt to leave your estate to them, per stirpes.

If you pass away before both of your children, then they could each claim a half share of your estate under the terms of your will. Now, assume that each of your children has two children of their own and your son passes away before you do. In that scenario, your daughter would still inherit a half share of the estate. But your son’s children would split his half of your estate, inheriting a quarter share each.

Per stirpes distributions essentially create a trickle-down effect, in which assets can be passed on to future generations if a primary beneficiary passes away. A general rule of thumb is that the flow of assets down occurs through direct descendants, rather than spouses. So, if your son were married, his children would be eligible to inherit his share of your estate, not his wife.

Per Capita, Explained

Older couple signs a will

Per capita is also a Latin term which means “by head.” When you use a per capita distribution method for estate planning, any assets you have would pass equally to the beneficiaries are still living at the time you pass away. If you’re writing a will or trust as part of your estate plan, that could include the specific beneficiaries you name as well as their descendants.

So again, say that you have a son and a daughter who each have two children. These are the only beneficiaries you plan to include in your will. Under a per capita distribution, instead of your son and daughter receiving a half share of your estate, they and your four grandchildren would each receive a one-sixth share of your assets. Those share portions would adjust accordingly if one of your children or grandchildren were to pass away before you.

Per Stirpes vs. Per Capita: Which Is Better?

Whether it makes sense to use a per stirpes or per capita distribution in your estate plan can depend largely on how you want your assets to be distributed after you’re gone. It helps to consider the pros and cons of each option.

Per Stirpes Pros:

  • Allows you to keep asset distributions within the same branch of the family
  • Eliminates the need to amend or update wills and trusts when a child is born to one of your beneficiaries or a beneficiary passes away
  • Can help to minimize the potential for infighting among beneficiaries since asset distribution takes a linear approach

Per Stirpes Cons:

  • It’s possible an unwanted person could take control of your assets (i.e., the spouse of one of your children if he or she is managing assets on behalf of a minor child)

Per Capita Pros:

  • You can specify exactly who you want to name as beneficiaries and receive part of your estate
  • Assets are distributed equally among beneficiaries, based on the value of your estate at the time you pass away
  • You can use this designation to pass on assets outside of a will, such as a 401(k) or IRA

Per Capita Cons:

  • Per capita distributions could trigger generation-skipping tax for grandchildren or other descendants who inherit part of your estate

Deciding whether it makes more sense to go with per stirpes vs. per capita distributions can ultimately depend on your personal preferences. Per stirpes distribution is typically used in family settings when you want to ensure that individual branches of the family will benefit from your estate. On the other hand, per capita distribution gives you control over which individuals or group of individuals are included as beneficiaries.

Review Beneficiary Designations Periodically

Multi-generational family

If you have a will and/or a trust, you may have named your beneficiaries. But it’s possible that you may want to change those designations at some point. If you named your son and his wife in your will, for example, but they’ve since gotten divorced you may want to update the will with a codicil to exclude his ex-wife. It’s also helpful to check the beneficiary designations on retirement accounts, investment accounts and life insurance policies after a major life change.

For example, if you get divorced then you may not want your spouse to be the beneficiary of your retirement accounts. Or if they pass away before you, you may want to update your beneficiary designations to your children or grandchildren.

The Bottom Line

Per stirpes and per capita distribution rules can help you decide what happens to your assets after you pass away. But they both work very differently. Understanding the implications of each one for your beneficiaries, including how they may be affected from a tax perspective, can help you decide which course to take.

Tips for Estate Planning

  • Consider talking to a financial advisor about how to get started with estate planning and what per stirpes vs. per capita distributions might mean for your heirs. If you don’t have a financial advisor yet, finding one doesn’t have to be complicated. SmartAsset’s financial advisor matching tool can help you connect, within minutes, with a professional advisor in your local area. If you’re ready, get started now.
  • While it’s always a good idea to consult with a financial advisor about estate planning, you can take a do-it-yourself approach to writing a will by doing it online. Here’s what you need to know about digital DIY will writing.

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Fiduciary Bonds: Definition, Types, Costs

Couple considers a fiduciary bond

A fiduciary bond, otherwise known as a probate bond, is a protective court bond that ensures a fiduciary will honor the expectations placed on them according to the law. The fiduciary bond upholds the interests and protection of the estate or trust owner. To understand who needs a fiduciary bond, how it works and the costs involved, here’s what you need to know.

What Is a Fiduciary Bond?

Fiduciary bonds are legal instruments that act as insurance to protect heirs, beneficiaries or other creditors when a fiduciary commits acts of fraud, embezzlement or other forms of dishonesty. To prevent damage, as a result, the court may require anyone with a fiduciary responsibility to another party to get a fiduciary bond.

Generally speaking, a fiduciary is an individual responsible for safeguarding the interest of another party. Fiduciaries may include trustees, guardians, financial professionals or another party with control over someone’s assets or property. Typically, a fiduciary will take control of someone’s assets when they are no longer able to manage them independently.

For example, a will may name a fiduciary to maintain the decedent’s assets. However, in the absence of a will, the spouse or children may take control, followed by relatives.

A fiduciary bond can range in price and ultimately depends on the value of the estate, as well as a few other factors. It may only be required to pay a portion to fund the bond, rather than the entire amount. For instance, if the fiduciary bond is $100,000, you may only need to pay about $400 to $600, depending on whether you receive approval.

Example of a Fiduciary Bond

Let’s say that John Smith is an elderly man who can no longer manage his property and assets. He didn’t appoint anyone to manage his finances, so the court appoints his daughter, Sally, to manage them in his place. To protect these assets, she may need to secure a fiduciary bond to guarantee she will meet her role’s duties and responsibilities.

The bond will help ensure that Sally won’t sell her father’s estate or embezzle money from him. If someone thinks Sally is not fulfilling the role of a fiduciary, they can make a claim against her. The company that issued the bond will then step in and fulfill the claim.

The company would likely reimburse John Smith for any money lost and then pursue Sally for the reimbursement of funds. If Sally no longer wants to be the estate’s fiduciary, she must find a suitable replacement and get approval from the court to resign. Until she does so, she is accountable for the duties and responsibilities of the fiduciary.

Who Needs a Fiduciary Bond?

A fiduciary bond isn’t always required. If it is mandatory, the fiduciary will receive a notification from the court.

In some cases, beneficiaries or creditors may request a fiduciary bond if they have concerns about the integrity of the fiduciary.

Usually, when banks, trusts or other corporate fiduciaries are in the mix, the courts don’t require a fiduciary bond. This is because there is less of a risk that a corporate fiduciary will compromise the payout.

Fiduciary Bond Types, Costs

Some of the common types of fiduciary bonds include:

  • Personal Representative Bond – This bond reassures the parties invested and connected to an estate that the fiduciary will manage the estate affairs in a responsible and ethical manner. The latter will also comply with local, state and federal laws and duties.
  • Executor Bond – This bond reassures the beneficiaries of an estate that even if the fiduciary doesn’t fulfill their duties, the bond will protect them and they will also receive compensation.
  • Guardianship Bond – This bond protects an individual who is receiving day-to-day care from a guardian. If the guardian fails to perform his or her obligations, someone can make a claim against the person.
  • Trustee Bond – It’s the trustee’s duty and responsibility to handle the trust’s property and assets. This bond ensures that the trustee fulfills his duties appropriately.
  • Administrator Bond – This bond ensures that the administrator of an estate distributes the estate assets according to local, state and federal laws.
  • Conservatorship Bond – A conservator handles the monetary matters of someone who needs to be cared for by a guardian. This type of bond ensures that the conservator upholds the duties and responsibilities of the role.

A fiduciary bond can range in price and ultimately depends on the value of the estate, as well as a few other factors. It may only be required to pay a portion to fund the bond, rather than the entire amount. For instance, if the fiduciary bond is $100,000, you may only need to pay about $400 to $600, depending on whether you receive approval.

Duties and Obligations of a Fiduciary

Financial advisor talks to clientsThere are many different types of fiduciaries; therefore, their duties and obligations vary. For example, an executor’s duties include taking control of a decedent’s property, collecting debts and arranging appraisals of assets. On the other hand, a trustee may have duties such as directing audits, challenging improper claims and determining claimants. In comparison, guardians and conservators may have the extra responsibility to care for an incapacitated individual or minor.

When fulfilling the role of a fiduciary, the individual must have a high level of loyalty since it’s one of the highest standards of care by either equity or law.

It’s important to note that anyone who gives financial advice or handles funds is also a fiduciary. However, if they work for a company, the company is required to obtain a fidelity bond, which differs from a fiduciary bond.

The Takeaway

Two men shake hands

A fiduciary bond protects individuals who have their estate or trust managed and handled by a fiduciary. While the court may not always require a fiduciary bond, there are some instances where it may make sense to protect an individual’s assets. A fiduciary bond is a crucial protection to aid those who may not have other forms of recourse. Bonded fiduciaries are often members of a person’s immediate family.

Estate Planning Tips

  • Consider talking to a financial advisor experienced in estate planning. Finding one doesn’t have to be hard. SmartAsset’s advisor matching tool can set you up with three personalized financial advisor options in just minutes. If you’re ready, get started now.
  • If you have a sizable estate, estate taxes on either the state or federal level could be hefty. However, you can easily plan ahead for taxes to maximize your loved ones’ inheritances. For example, you can gift portions of your estate in advance to heirs or even set up a trust.

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