Issue (1): Safe(ty) Deposit Boxes Whether you call them Safe or Safety, Bank Deposit boxes are one of the most common items not properly planned for in the case of incapacitation or other unexpected unavailability (including death). Here are some of the most important things to remember when planning for your Safe Deposit Box:
(1) The Bank WILL NOT LET someone into your box without them either being a signee on your box, appointed as Trustee of your Trust which owns the Box, appointed as the Executor of your Estate if you have passed, or the holder of a Power of Attorney which specifically grants Safe Deposit box access (as long as you are still alive).
(2) If you are going to keep ANYTHING important in your box, MAKE sure that SOMEONE ELSE HAS ACCESS TO IT!! I can't tell you the number of times that I have witnessed, or heard about, a client's family needing a Power of Attorney or a Will which just so happened to be stored in a Safe Deposit Box...to which ONLY the incapacitated person has access.
(3) As such, always make sure to do one of the following: (a) Name a trusted individual on the safe deposit box along with you (know that the person named will have equal access to the box at all times) or (b) Execute a Durable Power of Attorney that specifically gives the power to access your Box to your Agent (either all the time or solely in the case of incapacity)--then just make sure that you don't keep that Power of Attorney locked in that box!
(4) (Sometimes) Bank Boxes allow for a Payable/Transfer on Death designation...that is also a great option in order to enable faster access in case you have valuable papers or other artifacts stored inside that are needed upon your passing. Issue (1): Bonus Tip: Safe(ty) Deposit Boxes (Bonus): If you have a Trust in place--Put the Trustee of your Trust as a signature holder of the box. (Ex. John Doe, Trustee or his successors in Trust, of the XYZ Living Trust, dated 1/1/1234) That way, the current Trustee will ALWAYS be able to access your box in case of your incapacitation/unavailability. Issue (2): Guns and Minors/Felons Don't Mix (Standalone Gun Trusts and other Planning Techniques) Always remember, YOU CANNOT LEAVE FIREARMS TO FELONS or MINORS UNDER THE AGE OF 18 (or 21 in applicable circumstances). I see it all the time where X wants to leave his guns to his grandson Y (who is 16). If you don't plan for scenarios like this you can put your Executor in a tight spot in having to choose between the unsavory choice of a lengthy administration of a Probate Estate vs. the potential violation of Federal laws involving providing firearms to minors or felons. (2): Guns and Minors/Felons Don't Mix (Standalone Gun Trusts and other Planning Techniques) Cont How to Plan for Firearms and Minors:
1) Create a Standalone Gun Trust:
These Gun Trusts have LOTS of different uses...from planning for minors to eventually inherit firearms, planning for any non-licensed individual to eventually receive Class III Weapons, Accessories or Ammunition and planning for other unique scenarios that may apply in your case. These Trusts are very simple documents and are created solely to hold title to your weapons, to tell who would be in charge if you are incapacitated or gone, and to spell out who your beneficiaries are. (2): Guns and Minors/Felons Don't Mix (Standalone Gun Trusts and other Planning Techniques) Cont'd 2 In these documents you name a Successor Trustee after yourself (usually a Federal Firearms Licensed [FFL] Dealer or similar entity) who checks all the requisite boxes for your particular scenario (i.e., over 18/21, if you have a Silencer or Automatic Rifle you would need to have a Successor Trustee who also has a Class III Firearms License so that they are also allowed to possess control of those items, etc.). The document then proceeds to specify individuals who are the named beneficiaries of the Trust. These may be your minor grandchildren or others legally unable to own a gun, or it could simply be an individual who has always loved your Class III Silencer/Machine Gun/Etc. but doesn't have the proper license to own it themselves. Your Trustee holds legal title to the weapons but can allow your Beneficiaries to come and utilize the weapons (in a legal manner) any time they want. The document can then specify that upon the satisfaction of the condition preventing individual ownership (no longer under 18/21, attained Class III License, or WHATEVER OTHER LEGAL TERMS YOU'D LIKE TO PUT IN PLACE HERE--Got Good grades/Mature/No Gambling/etc., that your named beneficiary(ies) may take individual ownership of the firearm and your Trustee shall be dismissed. Alternatively it also provides where things go if your beneficiary's can't receive the guns. (2): Guns and Minors/Felons Don't Mix (Standalone Gun Trusts and other Planning Techniques) Cont'd 3 (2) Proper Language in Estate Planning Documents:
Have your Estate Planning Document (Will or Trust) specifically drafted so that your Executor/Trustee has the discretion to avoid making any distributions in violation of any laws, and stating they have discretion in choosing how to proceed should any guns be proposed as a distribution to a minor by either keeping the gun as an asset of the Estate until the minor has attained the age of majority and then giving it to them [FYI, the Court will not like this one] or two, by treating the minor as if they had predeceased the donor and then by finding the next person who, by bloodline, by name or in your Executor/Trustees discretion, would have been your most likely second pick for the weapon. This will keep the person in charge of your firearms from being caught in a sticky situation as well as keeping them from unintentionally breaking the law. Issue (3): BOTH Spouses Names on an Asset Does NOT Automatically Mean You Have Right of Survivorship This is an INCREDIBLY COMMON MYTH...with myth meaning FALSE. This means we must learn the phrase, "Tenants in Common". These three words are rarely uttered outside of legal circles (which is why so much misinformation exists) but they describe the default manner (in most states) of holding JOINT ownership with others as to various types of property... whether it be a deed governing Real Property, an Account at a Bank, etc. When something is owned as "Tenants in Common," this means that two or more individuals are "NAMED owners" of the account, and EACH person has a claim to an undivided one-third, one-half, one-fourth, whatever fraction applies here, etc. of whatever assets are jointly owned in this manner. Let me repeat that: Each owner has a claim to an "undivided fraction equal to one part of the total number of owners on the account" -- NOWHERE in that phrase does it say that you have a right of survivorship to ANYONE ELSE'S OWNERSHIP SHARES. (3): BOTH Spouses Names on an Account/Deed/etc Does NOT Automatically Mean You Have ROS...Cont'd Why this is is Important to Understand:
While there are certainly Tax and other related reasons that can cause Tenants in Common (TIC )to be a favorable form of Ownership, TIC will almost ALWAYS cause an asset to have to go through the Probate Process upon death. If you want something to be held as Right of Survivorship (ROS), you usually have to affirmatively tell people when acquiring the property/opening the account, or you will have to change ownership down the road. (3): BOTH Spouses Names on an Account/Deed/etc Does NOT Automatically Mean You Have ROS...Cont'd 2 Deeds/Title to Real Property:
Just because BOTH your names are ON THE DEED, this does NOT mean you have Right of Surviorship. If you want to know for sure if you are (go see a licensed attorney)--however, if you aren't going to do that, specifically look for the phrase "Joint Tenants with Right(s) of Survivorship" (ex. John and Bob, as Joint Tenants with Rights of Survivorship and NOT as Tenants in Common). The Deed may not always be quite that clear but if you are in GA or SC your instrument WILL say Right of Survivorship somewhere on it if you are to inherit the land by operation of law (automatically upon the other owner's death) and without having to go through the Probate process. (3): BOTH Spouses Names on an Account/Deed/etc Does NOT Automatically Mean You Have ROS...Cont'd 3 Bank, Stock or Other Joint Accounts:
A good rule of thumb (NOT ALWAYS APPLICABLE...but usually) is to look for the words OR vs. AND. (Ex., John Doe AND Carlos Doe vs. Janet Doe OR Blake Doe). The word OR generally indicates that an account is held RIGHT OF SURVIVORSHIP where as the word AND usually indicates that an Account is held Tenants in Common. This is NOT A RULE and some places set their accounts up differently. However, this is a handy trick to be able to have a general idea if your cash/stock/bond/etc. account is currently held Tenants in Common with your spouse (and would need PROBATE) vs. Right of Survivorship (which AVOIDS PROBATE). (3): BOTH Spouses Names on an Account/Deed/etc Does NOT Automatically Mean You Have ROS...Cont'd 4 If you are married, dating, partnered, or in any type of business or other relationship which has resulted in you jointly owning property or accounts with another individual (or company/corporation/etc.), it is always worth being aware of how your assets are presently held, and then weighing the Pros and Cons of other forms of Potential Ownership and how they affect your Planning Goals. While Tenants in Common and Joint Tenants with Rights of Survivorship are two of the most common methods of Joint Ownership, these are not the only methods available. (3): BOTH Spouses Names on an Account/Deed/etc Does NOT Automatically Mean You Have ROS...Cont'd 5 Due to the variety of available methods and the different Pros and Cons offered by each, I will conclude this section with the following warning: Please Consult with a Competent Estate Planning Attorney and/or Licensed CPA before changing ownership on Assets. Do NOT blindly think that JTROS is ALWAYS the best way to title accounts and property. While JTROS avoids Probate, there are certain TAX ADVANTAGES to using OTHER METHODS, especially when dealing with assets that may appreciate greatly after acquisition (or already have appreciated greatly) since you acquired them (i.e., house, stocks, etc.). Conclusion So in addition to the hundreds of other important considerations during your Estate Planning process, remember to pay attention and consider these three (3) often overlooked subjects to avoid confusion and misunderstanding of your situation while making your Estate/Trust Administration as easy as possible for your loved ones when you are gone. Please remember that you should always consult an Attorney before making Estate Planning decisions, and also remember that all of the information provided here is only GENERALLY applicable to STANDARD SITUATIONS and that there may be CERTAIN EXEMPTIONS/EXCEPTIONS WHICH APPLY to your specific facts. With that said, thank you for reading my guide and I hope that this has been useful to you. If you found it to be helpful, please mark it as helpful below!