Dear Liz: My mother and her second husband have been married for over 25 years. They are both in their 60s. I am her only child. Mother has created a will in which I am the sole beneficiary. She owns three properties, two of which are here in California and one is abroad. Do I have any reason to be concerned that my mother’s wishes would be challenged by her second husband or my father, who also lives in California, whom she divorced over 33 years ago?
Answer: Anyone can challenge an estate plan. That doesn’t mean they will be successful. A long-divorced spouse, for example, probably wouldn’t have much standing to dispute a will.
A current spouse, however, could overturn the bequests if the properties were purchased during the marriage because California is a community property state.
That means assets acquired during marriage are generally considered jointly owned. Even if the properties were acquired before the marriage, the current spouse could successfully challenge the will if he contributed to a property — by helping to pay the mortgage, for example.
The chances of a successful challenge are greater if your mother is trying to do her own estate planning, rather than seeking expert advice. The fact that she’s created a will, rather than a living trust — which avoids probate and which is typically advisable in California — is concerning. In addition, bequeathing property abroad can be complicated, to say the least.
Your mother would be smart to consult an experienced estate planning attorney who can assess her situation and offer recommendations on the best way to structure her estate plan. You can help her find someone by asking friends and financial professionals for recommendations. If she’s balking at the cost, offer to pay the bill if you can. You’ll probably avoid future hassles and costs, so it should be a sound investment.
College expenses and 529 plans
Dear Liz: You’ve been writing about what to do with leftover money in 529 college savings plans. Our grandchild went to a great state university with low tuition. To manage this ahead of time, we have carefully withdrawn some “excess” funds every year. This must be payable to the beneficiary student. The tax on non-qualified distributions applies only to earnings, not contributions, and will be negligible while the student is in college and has no or very low income. We paid for our CPA to prepare the tax filings. We have used this to pay for “non-eligible” living, travel and other expenses. I also recommend that parents start a college savings account in addition to a 529, because the strict definition of eligible costs leaves out a lot of expenses.
Answer: Previous columns have mentioned that withdrawals from 529 plans can be tax free when used to pay qualified expenses, which include tuition, fees, books and certain living costs, such as on-campus room and board or off-campus living expenditures up to the college’s “cost of attendance” limits, which are listed on its site.
Other common expenses, such as transportation and health insurance, typically aren’t considered qualified. Withdrawals that aren’t qualified will incur not just taxes on the earnings portion of the withdrawal but also penalties. The federal penalty is 10%, said Mark Luscombe, principal analyst for Wolters Kluwer Tax & Accounting.
Your approach could be a good way to use up excess 529 funds, as long as you’re reasonably sure your grandchild won’t need the money for graduate school and you’re not interested in other options, such as naming another family member as beneficiary or rolling up to $35,000, subject to annual contribution limits, into a Roth IRA for your grandchild. (The Roth rollover option is new this year and applies only to accounts that are at least 15 years old. In 2024, up to $7,000 can be transferred for someone under 50, assuming they have at least that much earned income.)
As you noted, it’s important to ensure the non-qualified withdrawals are paid to the student if the idea is to minimize the tax bite. Otherwise the taxes would be calculated based on the account owner’s tax rate.
“If the grandparents kept the excess earnings, it would be taxed to the grandparents plus a 10% penalty, so it would almost always be the case that it would be better to have the excess funds paid to and taxed to the beneficiary,” Luscombe said.
Qualified charitable distributions
Dear Liz: This is the year I turned 73, and I’m planning how to take my required minimum distribution from my IRA and 403(b) accounts. I know from a Google search that I can redirect this distribution to charities without being taxed, up to a certain amount. However, the financial services company holding my 403(b) money tells me they can’t do that and won’t engage. They say take the money, pay the taxes, then donate it and take the tax write-off. Why would they make this difficult?
Answer: Because they’re correct. You can’t make a qualified charitable distribution from a workplace retirement plan. That option is available only for IRAs.
Liz Weston, Certified Financial Planner, is a personal finance columnist for the Los Angeles Times and NerdWallet. Questions may be sent to her at 3940 Laurel Canyon, No. 238, Studio City, CA 91604, or by using the “Contact” form at asklizweston.com.
