Estate Planning

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ESTATE PLANNING

The property and property rights a person owns are considered his or her estate. Estate planning can be defined as thinking about and developing a plan for the acquisition, conservation, use, and ultimately the disposition of one's estate. However, estate planning is even broader, in the sense that it involves people as well as property. Some of the most powerful motivations for estate planning arise out of concern for family members and other people who are important in a person's life.

Everyone, in fact, has an estate planwhether or not it results from planning. People make decisions and take actions throughout their lives that affect what assets they will acquire, how much they will acquire, how many of those assets they will retain at the end of their lives, and how those remaining assets will transfer to their heirs upon their death. Estate planning seeks to bring order to what might otherwise be a haphazard process of managing one's estate.

Purpose of estate planning

Although many American households do not develop an estate plan, there are several practical reasons for making one. After a person dies, he or she usually wants his or her possessions to go to certain individuals and/or charities. People who are supporting someone, such as a spouse or children, want that financial support to continue. A parent of a minor child needs to indicate who the guardian will be for that child. People who own small businesses may hope to see the business continued by the next generation, and those with sufficient wealth to incur estate taxes want to minimize these taxes as much as possible.

The estate planning process

The first step in the estate planning process typically involves gathering data about the properties owned, how they are owned, and their value. Then the objectives of the estate owner need to be clarified, conflicts between competing objectives recognized, and priorities established. The various available techniques for accomplishing these specific objectives need to be considered, as oftentimes there will be more than one alternative technique available and the techniques that are most likely to accomplish the estate owner's objectives should be selected. Once a plan of action is selected, it needs to be implemented, and after implementation, it should be reviewed periodically and revised, if necessary. Whenever there is a major change in a family or a change in ownership of property, it is important to review the estate plan.

Property transfers and estate planning. Anyone who owns property may transfer it during their lifetime by either sale or gift. A gift is a transfer in exchange for nothing in return or for less than the full value of the gifted property. Any person can also declare their intent to give property to individuals or organizations upon their death by making a will. A will identifies who will receive the assets in an estate. It may also be used to accomplish other estate planning objectives, such as naming a guardian for minor children. A will must conform to legal formalities established by the law of the state in which it will be administered. Wills should be reviewed regularly and updated periodically.

Will substitutes. Certain types of property interests transfer at death by operation of law, by contractual arrangement, or by trust. A will is powerless to affect the transfer of these assets, and these forms of transfer take precedence over transfers by will. As a group, all property interests that have their own built-in transfer mechanism at death are called will substitutes. Examples of will substitutes are property owned in joint tenancy with the right of survivorship; individual retirement accounts (IRAs) that transfer property, by contractual agreement, to a named beneficiary other than the decedent's estate, and revocable living trusts. Federal law protects a surviving spouse's interests in a deceased spouse's qualified retirement benefits, except for IRAs, even when the surviving spouse is not the named beneficiary. Assets that are will substitutes bypass the formal estate administration processes established by state laws. As a result, will substitutes can be used to accomplish objectives such as reducing estate administration costs, increasing privacy, and making a quicker and easier transfer to intended heirs.

Intestacy. Property that is not transferred at death by either a will substitute or a valid will transfers according to state intestacy laws. A person is said to die intestate when they die without leaving a valid will. State intestacy laws set forth a plan for how assets transfer to heirs that are not transferred by will or will substitute. Typically, intestacy laws provide for distribution of a portion of estate assets, first to a surviving spouse, then to surviving children, and grandchildren, then to parents, then to other blood relatives, and finally to the state if there are no surviving blood relatives.

Probate. The property and intestacy laws of the state in which a decedent is domiciled or, if it is real estate, in the state in which the property is located control the estate administration process. A domicile is a person's permanent residence. Probate refers specifically to the process whereby a will is admitted to court (to prove the authenticity of the will) or a deceased person is determined to have died without a will. Probate is usually handled in the local county court system. The term probate is also widely used to refer to the entire estate administration process. The probate court appoints someone to handle the affairs of the deceased; to inventory the assets of the deceased person; to have the value of those assets appraised; to pay the debts of the decedent; to file any income, gift, or estate tax returns due from the estate; to pay any taxes owed by the estate; to distribute the remaining property according to the terms of the will or as state intestacy law dictates; and to file a final accounting with the probate court.

Community property. Nine U.S. states are community property states. The nine states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Spouses who acquire property while residing in a community property state are deemed to own the property in equal shares, regardless of who paid for the property or whose names are on the document of title. Spouses who move either in or out of a community property state may need to consider the implications for estate planning, as community property retains it character even when spouses move out of a community property state.

Limited interests in property. For added flexibility in estate planning, ownership of assets may be carved up into limited interests. One example is a life estate, where a life tenant receives use of the property and any income from the property for life, but other individuals, called remainder persons, own a future interest in the property.

Prevalence of wills

About 70 percent of Americans die without a will. Those who make a will tend to have certain characteristics in common. According to information from an experimental module of the 1994 Asset and Health Dynamics Among the Oldest Old (AHEAD), higher education and greater wealth increase the probability of having a will. In addition, those who consulted a financial advisor, participated in 100 hours or more of volunteer work in the previous year, or donated more than $500 to religious or charitable organizations in the previous year are more likely to have a will. White households are more likely to have a will than African-American, Hispanic, and other racial groups.

A will is not an estate plan. A will is only one component of a complete estate plan. More sophisticated estate plans usually rely on a combination of estate planning techniques, including a will and trusts, in order to achieve desired objectives. Wills must be carefully coordinated with other estate planning techniques, as there are some things a will cannot do. A will cannot transfer property that is transferred by trusts, title, or contract (will substitutes), so the will must be carefully coordinated with these. A will cannot meet the needs of a person who is incapacitated, but not yet deceased. According to the Mayo Clinic and the Harvard Medical School, a sixty-five-year-old person has at least one chance in four of needing an average of two and one-half years of long-term care. As a result, estate planning often involves the use of advance directives written legal documents that declare an individual's wishes concerning how certain physical and financial matters will be handled, if and when the person loses the capacity to make decisions.

Examples of advance directives are the durable health care power of attorney, the living will, the durable power of attorney (for financial matters), and revocable living trusts. Durable powers of attorney are called durable because they continue in effect after the onset of incapacity. Conformity to the legal formalities set forth in applicable state law is particularly important relative to advance directives. Finally, a comprehensive estate plan will find a way to communicate important information that doesn't belong in a will and should be shared with appropriate individuals, such as one's personal representative, before death. A letter of last instructions is one way that an individual can communicate his or her feelings about important matters such as funeral instructions and organ donation. The wishes of surviving family members in regard to these matters may be decisive unless the decedent clearly expressed his or her wishes in writing.

Trusts

Trusts are an extremely flexible and useful tool for estate planning. A trust is a contract between the donor or grantor and the manager of the trust's assets, called the trustee. The trustee holds legal title to the trust property. The trustee has a legal duty to manage the trust property for the benefit of the trust's beneficiaries. The five common elements of all trusts are a grantor, a trustee, a beneficiary, the trust property, and the terms of the trust agreement. Trusts that take effect during the grantor's lifetime are living trusts, while those that take effect upon the grantor's death are testamentary trusts. Testamentary trusts are established by a decedent's will. Trusts may be either revocable or irrevocable. Property transfers to an irrevocable trust are completed gifts; that is, they are no longer owned by the grantor. Property transfers to a revocable trust are not completed gifts, and the grantor retains the power to retrieve the trust property.

There are many different types and uses of trusts. Particular types of trusts are selected based on their usefulness for accomplishing particular estate planning objectives. For example, one use of a qualified terminable interest property trust (Q-TIP) is to provide income to a surviving spouse from a second or subsequent marriage, while ensuring that the trust property is ultimately distributed to children from previous marriages. Some objectives can only be accomplished through the use of a particular type of trust. For example, a qualified domestic trust must be used to obtain the benefits of the estate tax marital deduction for a nonresident alien spouse of a U.S. citizen. Trusts are particularly useful in dealing with a whole range of situations where the intended beneficiary either is not legally competent to own property, such as a minor, or may become incapable of managing his or her own property.

Federal estate and gift taxes

The federal estate and gift taxes are transfer taxes on the value of property transferred by lifetime gift (gift tax) or from a decedent's estate (estate tax). Every individual has an applicable credit amount against federal estate and gift tax liability. The applicable credit amount is $345,800 in 2002. This is equivalent to a taxable estate of $1,000,000, which is called the applicable exclusion amount. In 2002, the effective marginal estate and gift tax rates range from 37 to 55 percent on taxable estates that exceed the applicable credit amount, which makes minimizing transfer taxes an important objective.

Estate and gift taxes are cumulative. All taxable lifetime gifts made after 1976 are included in the computation of a decedent's federal estate tax liability. Despite this fact, taxable lifetime gifts have one important advantage over testamentary transfers. Taxable lifetime gifts can freeze the value of appreciating properties as of the date of the gift, so that all future appreciation is removed from the donor's estate. Nevertheless, taxpayers generally shouldn't make lifetime taxable gifts that exceed the applicable exclusion amount. One potential disadvantage of lifetime gifts is that the recipient of a gift must take the donor's income tax basis in the gifted property. The effect is to transfer any income tax gain on the property to the recipient. Unlike gifted property, most inherited property receives an income tax basis equal to the fair market value of the property on the date of the decedent's death.

Some gifts are not subject to a gift tax. The most important type is a present interest gift, which falls under the annual gift tax exclusion amount of $10,000 per recipient (an amount that is indexed annually for inflation). There is no limit to the number of recipients, so large amounts of money or other valuable property interests can be given to friends or family while using the annual exclusion amount to shield the gifts from being taxed. The gift must convey a present interest in the property; that is, it must be available for the immediate use, possession, or enjoyment of the recipient. The annual exclusion can be used in combination with an irrevocable living trust to permanently remove large amounts of potentially taxable value from an estate. Gifts to qualified charitable organizations are tax deductible for either gift or estate tax purposes. Lifetime gifts can also reduce income taxes.

The federal gross estate includes the fair market value of everything actually owned at the date of death, as well as all property interests deemed to have been owned at the date of death. A life insurance policy given away within three years of death is an example of a property interest that is deemed to have been owned by a decedent on the date of death.

The federal taxable estate is computed by first subtracting, from the gross estate, certain allowable deductions such as funeral expenses, administration expenses, debts, taxes, and losses. The value of property left to a surviving spouse or to charity is then deducted, and then the cumulative total of post-1976 lifetime taxable gifts are added. A tentative federal estate tax is computed on this amount, which is called the federal tax base. Any tentative estate tax payable is further reduced by gift taxes payable on post-1976 lifetime taxable gifts and applicable credits, which include the applicable credit amount explained earlier.

Because federal law allows an unlimited marital deduction for property passing to a surviving spouse who is a U.S. citizen, the estate tax on the estate of the first spouse to die can be eliminated completely by leaving the whole estate to the surviving spouse. This simple approach may not work in the long run, however, because it wastes the first decedent spouse's applicable credit amount. The combined tax bill for both estates may be much larger than it would have been if less of the first spouse's estate had passed to the survivor. Estate plans for married couples with a combined estate valued in excess of one spouse's applicable exclusion amount should use a bypass trust or other technique to avoid overqualifying for the marital deduction. A bypass trust, for example, will provide the surviving spouse with the annual income from the trust property and a limited right to invade the corpus, but does not qualify for the marital deduction.

Generation-skipping transfers that do not exceed the generation-skipping transfer tax exemption amount of $1,000,000 per transferor can save money for large taxable estates. These transfers skip over a generation (e.g., from grandparent to grandchild), and thus reduce the incidence of transfer taxation over time. Taxable estates also may benefit from valuation planning. One form of valuation planning involves establishing an entity such as a family limited partnership (FLP), spreading the ownership of the FLP among various family members and restricting the transferability of the interests. With proper planning and implementation, the market value of FLP interests will be subject to considerable discounts.

The Economic Growth and Tax Relief Reconciliation Act of 2001 phases in several changes in federal estate and gift taxation from 2002 through 2010. The changes include increases in applicable credit amounts and reductions in tax rates. The act repeals the estate tax in 2010, but not the gift tax. The most important feature of this new law is that it isn't permanent, which means additional changes in federal estate and gift taxation should be expected.

State estate and inheritance taxes

Two kinds of state death taxes may be required: estate and inheritance. Estate taxes are levied by only a handful of states, with tax rates that vary from 1 percent to 32 percent. The decedent's estate must pay these taxes. About half of the states use a pickup tax, which applies only to the estates that pay federal taxes. The tax is designed to obtain, for the state, some of the money that otherwise would go to the federal government. The revenue comes from the federal government's share of the estate taxes, not from the estate of the deceased. In at least sixteen states, heirs must pay state inheritance taxes based on the value of the assets they receive. Inheritance tax rates typically are lowest (and exemptions highest) for the closest kin, and highest (and exemptions lowest) for more distantly related kin and unrelated beneficiaries. Oftentimes, property left to a surviving spouse is completely exempt from tax. Only ten states have a gift tax on lifetime gifts, although state estate and inheritance taxes may apply to gifts made in anticipation of death.

Sharon A. DeVaney W. Alan Miller

See also Advance Directives for Health Care; Assets and Wealth; Bequests and Inheritances; Medicaid; Taxation.

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