By Melissa Montgomery-Fitzsimmons
I wish I could have gotten in Philip Seymour Hoffman’s ear to give him some honest estate-planning advice before the magnificently talented actor died from a drug overdose earlier this year.
The recent headlines are about his unwillingness to make “trust-fund kids” of his three children, but as an estate-planning attorney and wealth planning professional, I believe he made some easily avoidable mistakes that could prove damaging in their impact on his family — and all for no clear gain.
As his will lumbers through surrogate’s court probate proceedings in Manhattan, supporting filings have outlined the actor’s wishes: That his kids receive no part of his estimated $35 million estate, and that the kids’ mother, Hoffman’s longtime life partner, costume designer Mimi O’Donnell — whom Hoffman never married — should receive his estate more or less in its entirety.
When a person of substantial means dies, they’ve essentially got three main choices they can make for their money. They can leave it to their family. They can be philanthropic and leave it to one or more nonprofits. Or they can leave it to the United States federal government — the IRS — in the form of estate taxes.
Hoffman’s lack of planning has maximized the IRS’s take with no benefit to his family or to charities. Here’s what I would have advised:
I hear what you’re saying about not wanting to create “trust-fund kids.” I know the idea of wealth without work can create some unappealing traits if care and guidance isn’t provided to the kids, and I understand why you’d want to avoid setting your kids up to fail.
But you’re about to do something that is … there’s no delicate way to say this … foolish. You’re going to do badly by your kids, badly by your partner, Mimi, and badly by the communities you’re part of and care about. You’re going to throw your hard-won dollars down the dark hole we call the IRS, and I don’t think that’s your real intention.
First, your estate is going to be tax-eviscerated by your straight bequest to Mimi. It might not be right, given how long you two have been together, but the reality is there’s only an estate-tax deduction for legally married couples. If you two are married, Mimi gets 100% of your estate with no current tax obligation if you die. But because you’re not, she’s going to get hammered, hard, for about 40% of everything you’re worth over $5.4 million. That’s about $12 million that’s going to go straight to the IRS.
I know you’re a passionate guy — you care deeply about certain charities and causes you’ve supported in the past, especially ones that fight hunger, provide disaster relief, and take care of the needs of aging actors and actresses. Wouldn’t you rather see your money go to those kinds of badly needed initiatives than to the government?
Second, let’s examine the “no trusts, ever” thing. That’s just painting with an overly broad brush that coats over all the things you can do for your kids with trust structures without ever even mildly risking their becoming what you think of as “trust-fund kids.”
Do you want to pay for your kids’ education? Of course you do. You can fund that through a trust. Even if Mimi were to get married after you pass away and her spouse had other ideas about what to do with all that money rather than educating your kids, nothing could derail the trusts you set up for their education.
Same thing for health-care matters. Suppose one of the kids turns up with leukemia or is in a very serious car accident. And suppose Mimi makes bad investments, or that she herself passes away. Now who’s making sure the funds for your kids are there when they need them? Not to buy fast cars and expensive clothes, but to pay for things you’d pay for in a heartbeat if you were there with them.
If you do proper estate planning ahead of time, you can be pretty sure that what you want to have happen in the event you die WILL happen when you die. You can choose how much goes in each bucket — to Mimi, to the kids, to charities you care about, and even to the IRS if you think that’s important, too. You can make those calls and set the rules in a way that will reinforce what you would have done if you were still alive.
You don’t even have to give the kids any money — but wouldn’t you rather see that $12 million that your estate would pay directly to the IRS instead placed in a trust designed to pay for emergency health care for them, and then have it flow on to one of the actors’ charities you’ve always backed rather than into the IRS’s bank account?
You can set up trust rules that promote the life lessons of hard work and appreciation for the less fortunate that you care about. You can create something that is a learning tool, not a wellspring of dependency.
Further, the right trust structure can keep your estate out of probate court, where nosy reporters and sensationalistic websites have a field day reporting every detail of your will.
And one last thing: The only will you have in effect refers solely to your son Cooper, who’s now 10. You’ve got two daughters now who are 5 and 7 years old. That means you haven’t given this disciplined thought in at least seven or eight years. That’s almost back to the time you played Truman Capote and won your Oscar.
That’s a long time to go without planning. You owe it to your kids and to Mimi to get on this, to think it through, to update it. And to not dismiss all the structural planning that will help get done what you really want to get done. And to support the causes and nonprofits you think are important — not what some congressman or senator thinks is important.
Well, that’s what I would have told him. Sometimes great artists like Hoffman aren’t the most facile with planning for their family’s financial future. It’s clear he really needed help — and it’s not clear whether he got it.
Maybe he was given this straight talk and still decided to go his own way. But it’s too bad, if in the end he didn’t have people around him who were willing to speak frankly and clearly to him.