Estate
planning is the structuring of your estate to provide for:
-
Organized and proper distribution of wealth at the time
of your passing to family, friends and charities whose
causes you wish to support
-
Lifetime management of your assets in case of your
incapacity or disability
-
Designation of those who are empowered to make the
determination of your ability to properly manage your
financial matters
-
Naming of persons and/or
entities to be entrusted with making investment decisions or paying
bills if you are unable to do so
-
Avoidance of probate
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Minimization of estate taxes and administration expenses
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Appointment of guardians for minor children
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Distribution or retention of property for spouses,
descendants or charities, including the timing of any
distributions based on:
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Age vesting (e.g. one-third at ages 25, 30 and 35)
-
Time vesting (e.g. half at death of spouse and half 5 years
later)
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Outright distribution with no restrictions
-
Specific incentives (heir will receive $1 for every dollar
they earn; won't receive money until they graduate)
-
Creditor protection to protect the children's
inheritance from failed marriages and lawsuits
-
Protection of the spouse and children from losing their
inheritance if the spouse remarries or gets sued
-
Special trusts for disabled children
-
Creation of an entity for your parents' support to ensure
they will have financial support even if you die
Every
estate plan is different and when done properly, provides
the guidelines for administration of your estate so that you
can, in effect, dictate from the grave and ensure that your
every wish is carried out exactly the way you want, when you
want and by those you want to handle each aspect of your
estate plan.
Types of
Estate Plans
A
properly designed estate plan should include either a Will
or a Trust tailored to meet all of your estate planning
goals. When a Trust is used, a special type of Will is also
prepared as a “safety net” to ensure that all assets are
transferred to the Trust for proper administration after
your passing. Power of Attorney for Property or financial
matters, as well as a Power of Attorney for Healthcare,
should also be prepared so that you can specify who can make
decisions for you if you are unable. A Living Will, which is
also a type of healthcare directive commonly referred to as
the “pull plug” document, should also be included in every
plan.
Will
Based Plan.
Will based plans are typically used by those with very few
assets or no descendants. A typical Will client would be a
young couple renting an apartment with no children. As their
assets or family grow, the simple Will based plan will be
insufficient and a Trust should be incorporated to provide a
vehicle to hold the inheritance until the children reach
some predetermined ages to avoid them receiving the entire
estate at the age of majority, which is usually eighteen. A
Will speaks once, which means it operates only at death and
provides no lifetime management of your assets, requires
probate and court supervision to pass the assets to the
heirs, and typically results in significant administration
expenses in the form of executor or personal representative
fees, legal fees, accounting fees and court costs.
Trust
Based Plans.
An estate plan based on the use of revocable trusts is used
for those with assets in excess of the mandatory probate
limit, which is typically anything more than $50,000 to
$100,000, depending on state law. Since only Wills are
required to be supervised by a probate court, the use of a
trust permits you to select a trustee to handle all future
administration in the event of your incapacity or death.
Frequently, disability trustees and death trustees are named
so that both short term and long term trustees can be named.
A trust can be designed to meet all of your specific needs
and family goals. Trust based estate plans are used for
virtually all of our clients and range from highly complex
asset protection trusts to trusts designed to minimize
estate taxes to probate avoidance trusts to contingent
children's trusts used only if a person dies leaving minor
children.
Most
Estate Plans Include:
A-B
Trusts.
This type of trust is designed to provide for the
distribution to family members at the death of the surviving
spouse, with a “wipe out” clause to cover the possibility
that no member of the immediate family may survive. This
type of revocable trust can also be used to avoid probate,
minimize estate taxes, control the timing of distributions,
hold inheritances for future generations (dynasty trusts),
protect the beneficiaries' inheritances from failed
marriages and lawsuits, and provide for lifetime management
of your assets in the event of your disability. Alternate
tax provisions are included to provide rules should you pass
away in a year when the estate tax has been abolished
(current legislation abolishes the estate tax for one year
in 2010); a different set of rules if you die in a year when
the estate tax is applicable (anytime before or after 2010);
and guidelines for minimizing income taxes on appreciated
assets when step-up in basis rules are no longer in effect
(currently after 2010). Planning for tax-deferred retirement
accounts, life insurance, annuities and any state
inheritance taxes also needs to be undertaken to ensure that
all taxes are minimized.
Dynasty
Trusts.
Multi-generational planning is frequently used by those with
significant assets to take advantage of the generation
skipping transfer tax exemption and create a “dynasty“ trust
to hold assets after your passing for your children with the
amount remaining after your children's death to be held for
the benefit of their descendants, avoiding estate taxation
at your children's death. While the amount that can pass to
a dynasty trust is limited to $1,000,000 per spouse, this
amount is indexed for inflation and currently a total of
$2,200,000 can be held in a multi-generational trust. With
money doubling every seven to ten years, this amount can
quickly grow to $30 or $40 million in one's lifetime (e.g.
$2.2 million doubles to $4.4 in seven years; to $8.8 in
fourteen years; $17.6 in twenty-one years; to $35.2 million
in twenty-eight years and to $70.4 million in thirty-five
years, which can be a single generation).
Irrevocable Life Insurance Trusts (ILIT).
Insurance trusts are frequently part of the base plan if the
estate is taxable. ILITs are designed so that life insurance
that would have been taxable in your estate is instead owned
by a trust (and not by you), which results in estate tax
savings of approximately one-half of the insurance death
benefits. In other words, a two million dollar life
insurance policy would normally generate about $1,000,000 in
estate taxes, but when this policy is held by an ILIT, the
estate taxes are reduced to $0 and a million dollars in
estate tax savings is realized.
Asset
Protection Trusts.
Most affluent families realize that if something goes wrong
in their business or personal lives and a lawsuit is filed,
that they could be financially devastated. The preservation
of accumulated wealth is more important to them and their
families during their lifetime than is their concern of the
possibility of estate taxes after their death. After all, if
you have an automobile accident and get sued for more than
your existing insurance, all of your accumulated wealth is
at risk. If you lose this wealth, you may not have enough
working years left or be able to find the same business
opportunities to replace that lost wealth. Asset protection
trusts are of interest to virtually all professionals and
business owners and retirees, including doctors, attorneys,
accountants, contractors, automobile dealers, investment
advisors, owners of manufacturing companies or
transportation equipment, those with second homes, boats,
planes, snowmobiles, fast cars or any other assets which may
give rise to a claim. A properly drafted asset protection
trust is tax neutral and will permit you to obtain the exact
same income, estate and gift tax benefits that you could
obtain with a standard estate planning trust — but with the
added bonus of having your wealth protected from lawsuits
during your lifetime.
Power of
Attorney for Healthcare.
The appointment of a hierarchy of agents to make medical
decisions for you in the event of your disability is
essential to every estate plan. The risk of having either
the legal community or the medical community make any type
of medical decisions is not acceptable. You need to specify
exactly who can make these decisions so that the family can
“trump” both the medical and legal communities and be
assured of having the control to make the decisions in the
event the need arises.
HIPAA.
The Health Insurance Portability and Accountability Act of
1996 was signed into law on August 21, 1996. This federal
law included some very important new protections for
millions of working Americans with preexisting medical
conditions or who might suffer discrimination in health
coverage. Unfortunately this legislation has also been
interpreted to prevent a spouse, parent or child from being
able to access the protected medical information of their
family members and every properly planned estate should have
a written authorization pursuant to HIPAA authorizing
certain people to be able to access protected medical
records for purposes of medical decisions, to obtain copies
of records or test results for second opinions or for
billing records for insurance submittal and payment
tracking. This is a very important area and if your estate
plan does not currently include this authorization it should
be updated as soon as possible.
Living
Will.
The living will is a second form of healthcare directive
that is used in the relatively rare instance where someone
is in an irreversible coma, a vegetative state or is
terminally ill. This can also be a "do not resuscitate"
order or used to permit the agent to take action to avoid
certain types of treatment that may only unnecessarily
prolong the inevitable and let someone die with dignity. It
is quite important that this document be carefully and
properly prepared, as when and if needed, you will have
conferred a great deal of responsibility upon your agent.
Power of
Attorney for Financial Matters.
This type of power of attorney is intended to permit your
agent (typically a spouse, child, parent or close friend) to
handle financial matters in the event of your disability.
This can include filing and signing income tax returns,
funding of your trust, management of any business interests,
collection of your mail, paying your bills, caring for your
pets, as well as handling investment matters.
Advanced
Planning for Larger Estates.
When dealing with estates that are expected to generate
estate taxes (currently estates in excess of $2,000,000),
additional strategies will be required to reduce or
eliminate estate taxation. Some of these techniques will
involve structuring of the estate to obtain discounts for
estate tax purposes, transferring wealth during your
lifetime to avoid the estate tax on assets which you own at
the time of your demise, and gifts that are leveraged on a
tax-favorable basis due to the time value of money. These
types of solutions are entirely dependent on each family,
the type of assets and the amount of control over the assets
that one desires. Some of the more common techniques involve
the use of Qualified Personal Residence Trusts; Grantor
Retained Annuity Trusts, Charitable Remainder Trusts,
Charitable Lead Trusts, Family Foundations, Family Limited
Partnerships, Family Limited Liability Companies, Donor
Advised Funds, as well as other tax-favorable solutions.