Time to Update Your Estate Plan
Monday, October 4th, 2010
Alright, well let’s go ahead and get started. Welcome everybody to another of Coffee Talk call. Today’s topic is “Year-end Estate Tax Planning.” Do you need to make any moves? Do you need to update your of legal documents in light of, really, the upcoming tax law changes that are going to go into effect at the beginning of the year . And the new tax law is the old tax law. The Bush-Reagan tax cuts that were imposed 10 years ago expire this year. So, assuming nothing happens in Congress, we go back to the old tax law. So that’s really the perspective we’re going to take with today’s call is we can only deal with known facts and the facts are right now, there is no new tax law. So we’re going to, for today’s conversation, assume there’s no new tax law passed this year, which puts the old tax law back into effect beginning January 1, 2011. So good just to give your refresher, starting this year there is no estate tax. So for estate tax planning purposes were not to be surprised, quite frankly, if towards the end of the year we see some families get involved in maybe some end-of-life, quality-of-life issues. Maybe start to take things into their own hands if there’s a family member that has really just horrible health and failing health and quality of life is nonexistent. Maybe if there’s ways to speed up the process, so to speak, that make sure things happen this year instead of next year, not going to surprise me if we see a couple new stories later in the year about people families doing just that simply because people that pass away this year there is no estate tax. There is no inheritance tax. So we’ve all probably heard of George Steinbrenner, the owner of the Yankees, a billion-dollar plus is a state and his family’s going to have no estate tax. They may have some other tax issues but no estate taxes. But next year! Next year we go back to the old tax law, and just as a refresher, the old tax law is $1 million estate tax exemption. So we go from zero estate taxes this year. Next year, $1 million estate tax exemption per person. So for a married couple, if you’ve done proper estate planning, we can actually multiply those exemptions times two for a $2 million estate. Anything above that is subject to estate taxes and the estate tax rates can go as high as 55% and usually when we get involved with estate tax planning, it’s kind of a trade-off. You can either do effective estate tax planning, but it the sacrifice, if you will, of income tax, or vice versa, so the bottom line is we always just look if we’re going to have to pay some tax, what’s the lower tax rate? And in general terms, the lower tax rate is going to be the income tax rate as opposed to the federal estate tax rate. Now there’s some talk, my guess would be, that were not going to see any new tax laws put into place, certainly until after the November election. And then your guess is as good as mine as to whether or not they’re actually able to put anything through for this year before the end of the year. So for planning purposes, it’s prudent we think to plan as if nothing happens this year and we go back to this $1 million estate tax exemption. So one of the things, couple of things you want to keep in mind, and this trips a number of folks is, even with the today’s new economy the stock markets down from its all-time high, real estate values are down from their all-time highs. So we always hear well I don’t have as much as I used to. It’s not worth as much. Be that as it may, you still need to get out a calculator and add up your stuff, a net worth statement or a network summary if you will and determine whether or not you’re over that $1 million mark. And the bottom line is, if you’re over the $1 million mark in terms of asset or net worth then you need to review your current estate documents to determine whether or not, you need to make any tax changes or document changes going into the New Year.
Couple of things when it comes to value, a lot of people forget about retirement plans. You have to include your retirement plan 401(k) IRA, that’s part of your estate or your net worth. Sometimes we see folks forget about that. The other thing you have to include his life insurance, and not the cash value. The cash value goes on your net worth report sometimes, but for estate tax planning purposes of the death benefit on your life insurance. And it doesn’t matter what kind life insurance you have. So for instance, I’ve got a $2 million term life policy on myself. But no cash value. But automatically should something happen to me, I’ve got a $2 million estate plus whatever other assets that I may own. So that’s assuming that I own the policy so a tax strategy would be if you’re over million dollars of assets, including your life insurance, one easy way is to transfer ownership of your life insurance, either to another individual or 2 a special type of trust and that’ll get the insurance benefit out the calculation to determine whether or not you have a taxable estate. We see that far too often. People think they don’t have a taxable estate. They forgot about their life insurance benefits and those get added back into the estate and they end up having to pay some of those life insurance benefits back to the IRS in the form of the estate tax. So please don’t let that happen to you if that’s your situation.
Another simple planning strategy that I just want to make you aware of. Let’s say you’re over that $1 million mark. One easy step to fix the solution or fix that problem might be to use what is called a QPRT qualified personal residence trust, and that’s just a special type of trust that you put your primary residence into so your home would be owned by the special trust. It freezes the value at today’s value. So any future appreciation, increased value of your home, would occur inside the trust outside of your taxable estate. And now might just be a wonderful planning opportunity for this type of trust looking at what’s happened to real estate values. So if you had a home at the peak of the real estate market worth $600,000. Now, it’s worth $300,000. You transfer the home into the trust. It’s got a value of $300,000. If the real estate market recovers and by the time you pass on the home is now worth, let’s say, $700,000, that $400,000, and increased value occurs outside of your taxable estate. All the other aspects of home ownership remained unchanged. So there might be a quick and easy way to minimize future estate tax issues.
The other thing I’ll just caution you we see a number of folks set up revocable trust in part for estate planning purposes, but then they failed to properly re-title ownership of their holdings. The real estate, the investment accounts, updating beneficiary elections on insurance, IRAs, 401(k) s. All of that is a piece of the overall estate planning process. And then of course regardless of where your finances may stand today, everybody must have basic estate planning documents, and by basic estate planning documents I’m talking about a will, a living will, a durable power of attorney, and a health care power of attorney. The will is obvious if minor children are still involved the will is very important. You want to make sure that you name guardians for minor children. You also in a will can put in provisions for a trust a testamentary trust that would own assets that would benefit your minor children. Because minors can’t own assets. Once in a while we still see that happen where mom and dad put the kids on like a beneficiary designation and the kids are still minors. Well eventually, we can go through conservatorship, guardianship, legal proceedings in and get that money eventually to the kids. But that’s a costly lengthy process easily avoided just by making sure that there’s a trust, either now or at death, to take care of minor children and the assets that they may inherit.
The living will is kind of a misnomer. That’s really the document that you would use to convey to healthcare providers and your family a whether or not you want life support withdrawn if you’re going to be in a vegetative state and irrecoverable vegetative state. So you just want to terminate life-support and stop racking up exorbitant healthcare costs when your quality-of-life is looking like it’s not going to improve. The health care power of attorney, as the name implies, most of the healthcare providers want their own special document. It’s separate from a durable power of attorney, which is the document that gives somebody, typically a spouse or a family member, the ability to act on your behalf if you’re incapacitated. You’re in a coma or Alzheimer’s. So you haven’t passed away. Your will doesn’t kick in place. You still need to file tax returns, move money around, sign checks, pay bills; the durable power of attorney accomplishes that. So I don’t care how much money you have, everybody needs to have those basic estate documents in place.
If you have assets usually in excess of $60-$75,000, then you’re a candidate for a revocable trust. A revocable trust primary reason is to avoid the time delay and expense of probate. It’s not so much as an estate tax savings vehicle, which a lot of people mistake it to be; the primary purpose for revocable trust again is to provide for the ongoing management of your assets and to avoid the time delay and expense of probate. So, $75,000 or more of the assets makes you a candidate to at least considerable a revocable trust. The other reason to update estate documents would be, of course, if you had we call it a life event. Has anything changed in your life that would require the changing or updating of your documents? Have beneficiaries passed away? Have beneficiaries that there were minors when you set your documents up maybe restricting access to money they are now grown adults and able to make responsible financial decisions and handle money. So maybe removing restrictions or certain beneficiaries makes sense. Alternatively, sometimes we see grown children go down a path in life with the drugs, alcohol addictions, creditor issues where the last thing you want to do is give them immediate unrestricted access to funds. So those are all reasons to revisit your estate documents, and of course if you have beneficiaries that have predeceased you that would be another reason to make changes. If you’ve got a trust, you’ve named successor trustees in the event you’re unable to serve as your own trustee. You want to just periodically revisit who you chose and named as trustee. Are those people still around? Do they still have the ability and the willingness to serve as trustee if asked to do so? So all things to consider when it comes to estate planning really on an ongoing basis. But definitely going in to next year the bottom line is, if you’re over $1 million of assets, including your life insurance, you want to make sure that everything is properly structured and allocated to at least minimize if not totally avoid estate taxes. That tax rate’s going to be higher in most cases compared to an ordinary income tax rate.
Okay with that lets, Tony, open the lines if anybody has any questions or comments.
Yeah, can I ask a question?
Please, go right ahead.
Yeah, you had mentioned bringing assets into trust after you have the trust of drawn up. If you bring an insurance policy with some cash value, do you change… is it appropriate to change the beneficiaries of the life insurance policy to the trust itself or to the trustees of the trust? And why would you choose one vs. the other?
So if you’ve got an existing insurance policy, you’re going to bring it into a trust. So the owner of the policy will be the trust.
Correct.
So you want make an ownership change from whoever the policy owner is to the trust,
That’s right.
The beneficiary of the insurance policy, usually that it is the trust, and then the trust document would name the individual family members as beneficiaries.
So there’s no tax disadvantage to doing after all. When an insurance policy pays off the trust now owes some taxes or does it not on a life…
For a life insurance policy, no. That when the trust receives life insurance proceeds, that’s not a taxable event. Life insurance money goes income tax-free to the trust. The trust then owns the insurance proceeds. So let’s say it’s a $1 million life insurance policy. The benefits are paid to the trust. The trust now has a million dollars. That money gets invested, if the money stays invested at the trust, earns interest dividend, capital gains. That becomes a taxable event for the trust unless the trust distributes the income and the capital gains to trust beneficiaries.
Okay so it would be better to make the trust the beneficiaries instead of the trustee of the trust.
Yes.
Okay
Yes. And then you got trustees. Sometimes the trustees are the beneficiaries other times the trustees are different from the beneficiaries.
Okay, thanks.
My pleasure. The other thing to bear in mind with the life insurance if you change ownership to a special type of trust different than a revocable trust the life insurance has to have been owned by the trust for three years. If someone passes away during the first three years after they changed ownership over to the trust, the insurance benefit is still considered part of that individual’s estate. So just something to be aware of somebody that’s in a reasonably decent health, has a long life expectancy probably not going to be an issue as far as the insurance money getting pulled back into the estate, unless of course there’s an accident.
So this is the case, for example, for an irrevocable trust as opposed to a revocable trust?
Correct. Typically when we’re using life insurance you want to use an irrevocable trust and that’s one of the reasons why the benefits, the insurance money, stays outside of the taxable estate.
Okay, thank you.
You’re welcome! Any other questions or comments? Alright, I want to thank everybody for joining us on today’s edition of Coffee Talk. We’ll be back with you next week same time, Tuesday at 9 AM. If you’ve got questions or issues that you’d like to see us address on an upcoming call, just call the office or send us an e-mail and now that information is, for a phone call, is 800-393-1017. That’s a direct line into the office. Just let us know what you’re question or topic is and we’re happy to address that. The number, again, is 800-393-1017. If you prefer e-mail, we have just a general e-mail account. That address is info@fmcretire.com. You can leave a question or a topic and we’ll be happy to address in future call. With that, I’m going to wish everybody a great week and we’ll talk to you next week.
Bye now.
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