I must confess something before we get to far into this post. Despite my best efforts to act like a grumbly octogenarian whenever it’s not too socially uncouth—I am a millennial.
What is a Millennial?
Millennials, defined by the Pew Research Center, as those individuals born between 1981 and 1996, are commonly looked down upon by the Baby Boomers (1946-1964) and Generation X (1965-1980).
Often mistaken for hipsters, which is as much an overemphasized subculture of the millennial era as the beatniks were of the early Baby Boomer years, millennials often get a bad rap. Not all of us live with our parents, despite widespread, crippling student debt, and not all of us are vegans who have handlebar moustaches and swear that vinyl is the only true way to appreciate jazz while holding a dog-eared copy of Catcher in the Rye.
But I digress.
Millennials are mainstream. Each year, more than one million millennial women will give birth. We are, despite common stereotypes of living on mom’s couch, the largest generation in the U.S. labor force – exceeding even Generation X workers (who still have a couple of good years left in them). Despite starting families and accumulating wealth, a staggering 78% of Americans under the age of 36 don’t have a will or trust in place.
Why Estate Planning is Right for Millennials
I do not pretend to speak for all millennials, after all, I am one of the 22% of us who has an estate plan. However, here are some of the reasons why estate planning was important for this millennial, many of which are relatively universal.
Estate Planning Considerations
This one is a no brainer for me. I have two kids, ages six and two. If anything happened to my wife or me, we would want to make sure that our kids are taken care of. Two secondary questions arise out of this basic desire for my kids to be taken care of: (1) Who will take care of my kids; and (2) How will my kids be taken care of?
The “Who” – Naming a Guardian
For most young millennial parents, the worry is not so much about leaving assets to young children, but instead we worry about who will step up to the plate and raise the children as we would have chosen them to be raised. This is when your choice of a guardian becomes critical. Under Chapter 744 of the Florida Statutes, a guardian must be appointed when a minor’s parents die or become incapacitated. Stated another way, the court will appoint a guardian for your children if you do not choose one. This can lead to substantial family rift and potentially to someone being named guardian that you wouldn’t have wanted raising your children. In Florida, although technically the courts have discretion to name another guardian, other than the one that you designated in your will, the discretion is very narrow and it is highly unlikely (absent egregious circumstances) that your choice will not be honored.
It is important to note that the guardian you choose to raise your children does not need to be the same person or persons you choose to be in charge of the financial decisions for your children. If your sister is kind, generous, but couldn’t balance a checkbook to save her life, it may be in your children’s best interest to name both a financial guardian (or trustee) and a personal guardian. If your sister not only has what it takes to be a great mother, but also has a Master’s degree in economics, there is nothing that would prohibit her from being both personal and financial guardian of your children.
Guardianship is a complex consideration, and we are just scratching the surface in this post. Stay tuned for additional posts regarding naming guardians, preneed guardians, contesting guardianship, and other salient topics.
The “What” – Providing for Your Children After Death
Although this is more of a financial planning consideration than a legal one, it is important to many young parents who have not yet set aside enough assets to provide for the future care of their children. In most cases, for young parents, term life insurance is incredibly affordable. Providing even a couple years’ worth of replacement earnings goes a long way towards providing for your children’s future and lessening the burden on the children’s guardian.
If the young millennial parent has the good fortune of having accumulated even modest assets before their death, the use of a will or trust to set up long-term management for your children’s property is critical. In Florida (under Chapter 710 of the Florida Statutes), until a child is eighteen, they cannot inherit property in their own name. Thus, although a will is effective to transfer property to minors, who will actually inherit the property themselves when they turn eighteen, this will require that the court open a guardianship proceeding.
If, on the other hand, you choose a trust, the trustee will manage your assets until such time as you believe your children can manage the assets themselves (if ever). If you’ve accumulated a substantial amount of assets, think about what you would’ve done with the million dollars on your eighteenth birthday. If the answer involves anything exotic, a trust with an ascertainable standard for distributions (such as health, education, support, and maintenance) until the child has time to mature, may well be the better route to take.
Durable Powers of Attorney and Living Wills
God forbid anything happens to you or your spouse, but this section is all about preparation in the event that anything does render you incapacitated or worse. In a living will, you set out your wishes for end-of-life care including whether you want to be resuscitated through extraordinary measures or life support in the event that you fall into a coma. A durable power of attorney is given to a trusted person and provides them the authority to carry out your legal and medical wishes. Durable powers of attorney come in two forms: healthcare powers of attorney (also known as healthcare surrogates) and financial powers of attorney. It is important to have both in place. Without a medical power of attorney in place, your end-of-life wishes may be delayed, or worse disregarded. Without a financial power of attorney in place, your spouse or children may not be able to get immediate access to checking accounts to pay the mortgage or other bills, for example, without court order.
One final step to take is to name beneficiaries for your retirement accounts, your life insurance policies, etc. By naming a beneficiary, the funds in the account will go directly to the individual or trust that you and designate. Beneficiary designations should be considered carefully with your estate planning attorney to make sure that they dovetail with your estate plan.
Other Uniquely Millennial Considerations
Leave it to a millennial to create a virtual system whereby you can reconnect from your couch whilst wearing tattered pajamas with your third cousin, twice removed, who you met once at Aunt Belle’s funeral in 1996. As one article put it, “when it comes to using online services, millennials are veritable pioneers.” Think of us as the Lewis & Clark of the digital era. The internet is our Manifest Destiny. In this way, millennials own the internet. Except when they die.
There is no uniform state (or federal) law that requires a social media platform like Facebook or Twitter to unlock your profile, feed, or account when you die (even if you only post memes of grumpy cats). Facebook, among others, now permits you to designate a digital “executor,” or someone who can access your accounts if, for example, you have an allergic reaction to the kombucha that your “friend” brewed themselves. With so much time, effort, property, and money tied up in the digital realm, as a part of his or her estate plan, every millennial should take inventory of their digital property. Although the hipster will not need to leave a code to unlock his vintage typewriter that he uses to write his screenplays, chances are that you own a computer, and at the very least you want your best friend to be able to wipe it clean of any pictures of you from that week in college you spent in Prague.
Cloud accounts have become ubiquitous, especially with regard to personal pictures and videos. Likewise, smartphones are as much photo albums as they are communication devices. Many millennials will have some sort of intellectual property, whether copyrights (screenplays), trademarks, and even proprietary code that he or she has written. Millennials are bloggers, and some are very successful and generate revenue from them. We also like to sell our things on eBay and Etsy (to name but two). Accounts like PayPal and other digital tender services where you may have a balance in your favor will pass under your estate plan like any other bank account would.
Bottom line, as millennials have begun to live a proportionally large part of their lives on the internet, transfer of control of such assets post-death (should that time ever come for a millennial) must be planned for accordingly.
We are not suggesting that you leave $12 million to a Maltese name Trouble (a-la Leona Helmsley), but ensuring that your pet is taking care of can be accomplished through appropriate provisions in your will or trust.
Mixed and Non-Traditional Families
Unfortunately, the divorce rate for millennials has not gone down, this despite many millennials waiting longer to get married. This produces two considerations. First, estate planning should be updated any time there is a substantial life change such as a divorce. Second, for unmarried partners, durable powers of attorney, healthcare surrogates, beneficiary designations on joint accounts, etc., will help to provide the same type of legal and financial access to an unmarried partner as to a spouse in the event of your incapacity or death.
Providing for Charities
Millennials want to save the world. You need look no further than crowdfunding or charitable Facebook campaigns on someone’s birthday to see that millennials are extremely socially conscious. For millennials who have yet to start families, estate planning may serve to provide for the charities and causes they support during their lives.
Protect Small Business/Startup
Many millennials are successful entrepreneurs. Estate planning and business succession planning go hand in hand. It is important for the millennial entrepreneur to consider what will happen to the business they created in the event of their untimely death by, for example, crashing their vintage Schwinn into their favorite vintage clothing store.
Where We Come Into the Fold
Our estate planning, tax planning, charitable planning, and business planning attorneys assist numerous individuals in all of the areas that we wrote about in this article on a daily basis. We even have a few millennial attorneys in these areas if you feel more comfortable talking to one of your kind. If you have any questions regarding any of the information or considerations that we’ve addressed in this article, please do not hesitate to contact us (you can do it digitally, I promise), and we will be more than happy to discuss these topics and more. We might even be willing to meet you at the local coffee shop where we’ll sip the fuel of young lawyers (strong black coffee) while you politely steep your decaf earl grey.