There are no more excuses for procrastination and delay. The estate and gift tax law finally is set. The temporary or expiring provisions and transition periods are gone. People no longer can say they don’t want to incur the cost of an estate plan that might have to be rewritten in a few months because the tax law changes.
Here are the basics of the estate tax law that’s part of the fiscal cliff deal. The lifetime exemptions of $5 million for an individual and $10 million for a married couple are set, as is the $5 million generation-skipping tax exemption. The annual gift tax exclusion remains. All are indexed for inflation. The top tax rate rises to 40 percent. None of the past proposals to curb or eliminate tax reduction strategies were enacted.
It’s time to revise or begin what I like to call your inheritance planning or legacy planning. The process is fairly straightforward when you understand the steps in advance and do some thinking and planning before meeting with an estate planner.
Remember, as I’ve said many times in Retirement Watch, inheritance planning is not primarily about avoiding taxes or probate. Estate planning is deciding whom you want to own the wealth after you do, when they should receive the wealth and whether there should be any restrictions or controls. Then, you establish the most efficient way of meeting your goals. Only after establishing how the assets should be distributed does the focus move to considering ways to reduce taxes, avoid probate and other goals. I prefer calling the process inheritance planning or legacy planning, because that keeps the true purpose of the process front and center.
To begin the inheritance planning process, take these steps:
List all your assets and liabilities. An effective inheritance plan can’t be prepared without this information. And a professional, no matter how skilled, can’t do anything without this starting point. Frequently overlooked assets include pension plans, life insurance policies, trusts of which you are a beneficiary, inheritances that are likely to be received and old assets and accounts that haven’t been considered recently.
Heirs will inherit only net assets, so a list of all debts needs to be compiled, including whether the debts are secured by certain property.
Decide the desired future distribution. You aren’t making final, fixed-in-stone decisions at this point. You might change aspects after discussions with the estate planner, but you need an initial plan.
The traditional goal is for most of the estate to be inherited first by the spouse if he or she still is alive, then whatever is left goes to the children, usually in equal shares. Smaller amounts or specific items might be designated for special friends, other relatives and charities.
Of course, no one has to follow the traditional route. An owner might want to favor one child over others or want the bulk of the estate to go directly to the children instead of his or her spouse. Many people decide to give a significant portion of their estates to charity. The only major legal limit is that a spouse can’t be completely disinherited in most States (unless there is a valid prenuptial or postnuptial agreement). Children can be completely disinherited if the intention is made clear in the will. In addition, an inheritance cannot violate law or public policy.
Special assets require special consideration. Small businesses, real estate, collections and other non-standard assets need to be owned and managed by someone who knows what he or she is doing. Otherwise, it might be best for the assets to be sold and the proceeds distributed to heirs. You might even want to sell during your lifetime.
As part of this step, secondary goals also should be considered. For example, should a spouse inherit everything but only in a way that prevents the property from being subsequently inherited by a second spouse or family instead of by the couple’s children? Should property be left to children and grandchildren but with strings attached so that they don’t waste the property or lose their incentive to achieve and be productive? There are ways of accomplishing both main and secondary goals, as long as the goals are clear.
Determine how much property should be given now and how much should be given later. There are several considerations at work here. Heirs might be better off receiving some of the wealth now instead of inheriting at some unknown future date. Also, some estate owners prefer to see how at least some of their legacy is used by and benefits heirs. When an estate might be subject to taxes, it’s easier to reduce taxes and other costs if the owner is willing and able to part with some wealth now.
Work with one or more estate planning professionals to develop an estate plan that achieves the goals and also takes into account estate taxes, probate and other concerns. A typical middle-class couple might need to work only with an estate planning attorney. Wealthier individuals and those with businesses or other complicated assets might need to add an accountant, life insurance agent, business appraiser, trustee and other professionals to their team.
Be sure you understand the plan and fully implement it. Many people have great estate plans designed by skilled professionals, but then they fail to implement the plans. They don’t set up the trusts recommended, or they fail to transfer legal title of assets to the trusts. Maybe life insurance is not purchased as planned, annual gifts to children are not made or business succession plans aren’t pursued. The result is a lot of time and money spent on estate planning but no effective estate plan in place.
Let heirs know in general what is decided and how things are set up. Their financial planning is more effective when they have a general idea of what might or might not be coming their way.
An estate owner also should draft a letter of instructions that lists basic information such as where copies of the will are kept, who the financial advisers are and a summary of assets and liabilities. This document should be updated at least annually and be accompanied by recent tax returns and an outline of your estate plan, at a minimum. Or you can use my booklet, To My Heirs: A Book of Final Wishes and Instructions. This package should be available to the executor of the estate and any other key people.
An inheritance plan involves people more than law, life insurance, trusts and other tools. The focus should be on how to provide for people both now and in the future and also on how you want to be remembered.