How to Get The Most Out of the Increasing Estate Tax Exemption
Estate taxes must be paid when you die if the net value of your estate (assets less debts) is more than the amount exempt from taxes at that time.
In 2001 President Bush signed a tax bill that increases the estate tax “exemption” from $675,000 in 2001 to $3.5 million in 2009. Congress went so far this time as to “repeal” the estate tax in 2010, but unless it takes further action, the estate tax is automatically scheduled to return in 2011 with the exemption back at $1 million.
Year
Exemption
2001
$675,000
2002 – 2003
$1 million
2004 – 2005
$1.5 million
2006 – 2008
$2 million
2009
$3.5 million
2010
n/a (repealed)
2011
$1 million
Federal estate taxes still carry a wallop. In 2009, the tax rate is 45% on every dollar over $3.5 million. Estate taxes must be paid in cash, usually within nine months after you die. But with careful planning, they can be substantially reduced or even eliminated, especially now. Here’s what you can do to get the most out of the increasing estate tax exemption.
1. Married? You can “double” your exemption. By setting up an A-B living trust, both spouses can use their estate tax exemptions and in 2009 protect up to $7 million from estate taxes. But unless you plan ahead, you can waste one spouse’s exemption. The cost to your family: $1,575,000!
2. Check the wording. If you already have an A-B living trust, make sure the language to use your exemptions is flexible and does not state a specific dollar amount (e.g., $1 million or $2 million). Instead, it should apply a formula or use language such as “the amount that is exempt from estate taxes at the time of the grantor’s death.”
3. Shift assets. If you and your spouse have separate trusts, you may need to move assets from one trust to the other as the exemption increases.
4. Switch to a trust. If a will is your only estate plan, consider changing to a living trust now. It will probably cost more initially, but it can avoid probate, prevent court control of assets at incapacity, and will give you more control over the distribution of your estate after you die.
5. Review your plan annually with a qualified attorney. Your estate plan is a snapshot of you, your assets, your family, your goals and the tax laws in effect at the time it was prepared. Any time one of these changes, you need to review your plan. As frequently as the laws are changing these days, it would be smart to do this every year. A qualified attorney can quickly review your plan and see if any changes need to be made.
Understanding Living Trusts: Doesn’t joint ownership avoid probate?
Not really. Using joint ownership usually just postpones probate. With most jointly owned assets, when one owner dies, full ownership does transfer to the surviving owner without probate. But if that owner dies without adding a new joint owner, or if both owners die at the same time, the asset must be probated before it can go to the heirs.
Watch out for other problems. When you add a co-owner, you lose control. Your chances of being named in a lawsuit and of losing the asset to a creditor are increased. There could be gift and/or income tax problems. And since a will does not control most jointly owned assets, you could disinherit your family.
With some assets, especially real estate, all owners must sign to sell or refinance. So if a co-owner becomes incapacitated, you could find yourself with a new “co-owner” — the court–even if the incapacitated owner is your spouse.
Antelope Valley Estate Planning Law Firm Thompson Von Tungeln Advises California Residents to Review Their Power of Attorney Options
Antelope Valley estate planning law firm Thompson Von Tungeln advises California residents to review the different power of attorney options available to them. The power of attorney options include the General Power of Attorney, the Durable Power of Attorney, the Non-Durable Power of Attorney, and an Advanced Health Care Directive. Each has its uses, and a combination of them is essential to good estate planning.
Lancaster, California (PRWEB) January 5, 2010 — Antelope Valley estate planning law firm Thompson Von Tungeln recommends that California residents review the different power of attorney options available to them as part of their estate planning process.
“There are a number of different types of power of attorney vehicles available for use in estate plans,” said Kevin Von Tungeln, partner at Thompson Von Tungeln. “Each type has its uses, and can provide protection in the event of incapacitation. You should consult with your estate planning attorney to determine, which, if any, are necessary for your estate plan.”
A General Power of Attorney designates a person to handle the business, financial and legal affairs of another person, either for a specific function or for overall day-to-day needs. This basic estate planning document is necessary in the event you become incapacitated or unable to make decisions for yourself. A Durable Power of Attorney comes in two forms for estate planning purposes. It can be effective immediately or upon disability. Estate planning attorneys utilize the Durable Power of Attorney to designate someone to make financial, housing and other care decisions for someone who can no longer make them for his or her self.
An Advanced Healthcare Directive is an estate planning document that allows you to designate someone to make medical decisions on your behalf. Your estate planning attorney can help you include your wishes on life-saving measures, end-of-life care, organ donation and choice of a physician into your directive. Another, less commonly used vehicle is the Non-Durable Power of Attorney.
“The time to review these with your estate planning attorney is when you are healthy and in the process of creating your estate plan,” said Von Tungeln. “Directives that are signed when a person is seriously ill are prone to being challenged in court if one of your loved ones believes you were not of sound mind and body when you signed the Power of Attorney form. Your estate planning attorney can review your options on which of these Power of Attorney forms to include in your estate plan.”
Antelope Valley Estate Planning Law Firm Advises California Residents to Monitor Changes to the Federal Estate Tax
Antelope Valley estate planning law firm Thompson Von Tungeln advises California residents to closely monitor the many estate tax proposals before the Congress. The changes may add some clarity to the current confusion, but they may also significantly affect current estate plans.
Lancaster, Calif. (PRWEB) January 12, 2010 — Antelope Valley estate planning law firm Thompson Von Tungeln is advising California residents to monitor the proposed changes to the federal estate tax that are before the Congress.
“The federal estate tax system is in a bit of flux right now,” said Kevin Von Tungeln, partner at Thompson Von Tungeln. “The current law is due to expire in 2010, and allow the federal estate tax rate to revert to the 55 percent level that it was prior to 2001. The top rate has been declining since 2001 and is scheduled to drop to zero percent in 2010. The potential for changes after 2009 is creating anxiety for anyone creating their estate plan.”
One proposal that is gaining some traction comes from the Obama administration. President Obama’s 2010 budget proposal calls for keeping the estate tax at 45 percent on estates valued at $3.5 million or higher from 2011 for the foreseeable future.
“If the administration proposal becomes law, it will give Americans some certainty in their estate planning,” said Von Tungeln. “The uncertainty of what would happen in 2011 and beyond caused many estate planning attorneys to create estate plans that had vehicles in them that were tied to the changes in the rates from the 2001 law. Some certified estate planning specialists have been including language in their estate plans to guard against changes in the estate tax law not knowing what types of changes may be enacted.”
Some alternative proposals include indexing estate tax to inflation, which would effectively reduce government revenue. It is unclear which proposals, if any, will be enacted into law. Given the present fiscal situation in Washington, it is possible that Congress may revisit the issue as they search for additional revenue sources. Checking with your estate planning attorney every year or two to review your estate plan is a wise planning strategy.
About Kevin Von Tungeln
With more than 18 years’ legal experience, Kevin L. Von Tungeln serves Thompson Von Tungeln in the areas of estate planning, probate, trusts, wills, trust administration, conservatorships, guardianships and elder law. He is certified by the State Bar of California Board of Legal Specialists as a Board Certified Specialist in Estate Planning. Get to know more about Kevin’s approach to estate planning by viewing his informational videos at: http://www.youtube.com/user/EstateLawyers. Kevin can also be found at LinkedIn by going to: (www.linkedin.com/in/kevinvontungeln)
About Thompson Von Tungeln
Antelope Valley estate planning law firm Thompson Von Tungeln (TVT) offers sophisticated estate planning and administration for the affluent, discriminating client. As Board Certified Specialists in Estate Planning, Trusts and Probate as certified by the State Bar of California Board of Legal Specialization, partners Mark E. Thompson and Kevin L. Von Tungeln are expertly equipped to serve these clients with the creative, effective and custom solutions they demand. For more information, contact TVT at 661-945-5868 or visit their website at www.EstatePlanningSpecialists.com.
Who are the people involved with a living trust?
The grantor (also called settlor, trustor, creator or trustmaker) is the person whose trust it is. Married couples who set up one trust together are co-grantors of their trust. Only the grantor(s) can make changes to his or her trust.
The trustee manages the assets that are in the trust. Many people choose to be their own trustee and continue to manage their affairs for as long as they are able. Married couples are often co-trustees, so that when one dies or becomes incapacitated, the surviving spouse can continue to handle their finances with no other actions or steps required, including court interference.
A successor trustee is named to step in and manage the trust when the trustee is no longer able to continue (usually due to incapacity or death). Typically, several are named in succession in case one or more cannot act. Sometimes two or more adult children are named to act together. Sometimes a corporate trustee (bank or trust company) is named. Sometimes it is a combination of the two.
The beneficiaries are the persons or organizations who will receive the trust assets after the grantor dies.
Gifting… An Easy and Satisfying Way to Reduce Estate Taxes
If you have a sizeable estate, you may want to consider giving some of your assets now to the people or organizations who will receive them after you die.
Why? First, it can be very satisfying to see the results of your gifts – something you can’t do if you hold onto everything until you die. Second, gifting is an excellent way to reduce estate taxes because you are reducing the size of your taxable estate. (Just make sure you don’t give away any assets you may need later.) And third, well, we’ll wait and explain the third reason at the end.
One of the easiest ways to do this is through annual tax-free gifts. Each year, you can give up to $13,000 to as many people as you wish. If you are married, you and your spouse together can give $26,000 per recipient per year. (This amount is now tied to inflation and may increase every few years.)
So if, for example, you have two children and five grandchildren, you could give each of them $13,000 and reduce your estate by $91,000 each year – $182,000 if your spouse joins you.
You can also give an unlimited amount for tuition and medical expenses if you make the gifts directly to the educational organization or health care provider. Charitable gifts are also unlimited.
Gifts do not have to be in cash. In fact, appreciating assets are usually the best to give, because any future appreciation will also then be out of your estate. For example, if you want to give your son some land worth $52,000, you can give him a $13,000 “interest” in the property each year for four years.
As long as the gift is within these limits, you don’t have to report it to Uncle Sam. Just the same, it’s a good idea to get appraisals (especially for real estate) and document these gifts in case the IRS later tries to challenge the values. It’s also a good idea to do this under the watchful eye of your attorney or tax advisor.
What if you want to give someone more than $13,000? You can, it just starts using up your $1 million federal gift tax exemption. If your gift exceeds the annual tax-free limit, you’ll need to let Uncle Sam know by filing an informational gift tax return (Form 709) for the year in which the gift is made. After you have used up your exemption, you’ll have to pay a gift tax on any gifts over $13,000 (or whatever the annual tax-free amount is at that time). The gift tax rate is equal to the highest estate tax rate in effect at the time the gift is made; in 2009, it is 45%.
Which brings us back to reason number three. Even though the gift and estate tax rates are the same, it costs you less to make the gift and pay the tax while you are living than it does to wait until after you die and have your estate pay the estate tax. That’s because the amount you pay in gift tax is no longer in your taxable estate.
Why use a life insurance trust?
With a trust, the insurance proceeds will not be included in your estate, so you avoid estate taxes. You can keep the proceeds in the trust for years, making periodic distributions to your children and grandchildren. And any proceeds that remain in the trust are protected from irresponsible spending and creditors (even spouses).
Life insurance can be an inexpensive way to replace the asset for your children (every dollar you spend in premium buys several dollars of insurance). Insurance proceeds are available immediately, even if you and your spouse both die tomorrow. And, in addition to avoiding estate taxes, the proceeds will be free from probate and income taxes.
The Special Needs Trust: Planning for a Disabled Dependent
If you have a child, sibling, parent, spouse, or other loved one who is physically, mentally or developmentally disabled — whether from birth, illness, injury or drug abuse — he or she may be entitled to valuable government benefits (SSI and/or Medicaid) now or in the future. Unfortunately, most of these benefits are available only to those with very limited means.
As a result, you may find yourself faced with a difficult choice. If you leave a substantial inheritance to this person, he will be disqualified from receiving government benefits which may be crucial for his care. On the other hand, you may not want to have to disinherit him in order to preserve these benefits.
Fortunately, a special needs trust will keep you from having to make this wrenching decision.
A special needs trust must be very specific in stating that its purpose is to supplement government benefits, to provide only benefits or luxuries above and beyond the benefits the beneficiary (disabled person) receives from any local, state, federal or private agencies.
It is critical that the trust not duplicate any government-provided services and that the beneficiary not have any resemblance of ownership of the trust assets. Otherwise, the government could attempt to seize the trust assets for repayment of services already provided or determine that the beneficiary does not qualify for future benefits.
To accomplish this, you will need to give the trustee complete control over the distribution of the assets and any income they generate; the beneficiary cannot be able to demand any principal or interest from the trust.
Give careful consideration to your choice for trustee. Of course, you (and your spouse) will continue to provide for this person while you are alive and able. But someone will need to assume this responsibility after your death or incapacity.
The most obvious choice is another family member who also cares deeply about this person. But be aware of a possible conflict of interest, especially if she will inherit the trust assets after your disabled dependent has died; she may care more about preserving trust assets than providing for your beneficiary.
Consider using (or adding) a corporate trustee; that’s a bank or trust company that specializes in managing trusts. They can be impartial, and they will be around for as long as your beneficiary lives.
Finally, be sure to work closely with an attorney who has considerable experience with these trusts.
How Can I Prevent My Children from Fighting Over My Belongings After I Die?
You probably own some items of real or sentimental value (jewlery, antiques, art, heirlooms, furniture, clothing, etc.) that you want a certain child, grandchild, special friend, relative, or organization to have after you die.
Or maybe you just want to provide for some orderly way for your belongings to be divided among your heirs after you’re gone. We’ve all heard stories about the heirs fighting over Grandma’s piano or china. The damage is often so deep that sisters don’t speak to each other for the rest of their lives!
Here are some suggestions that can help you prevent this from happening in your family.
Make A Special Gifts List: If you have a living trust, you can make a list of these special gifts and whom you want to have them. Date the list, have it notarized (or witnessed; your attorney can tell you which is appropriate in your state) and keep it with your trust document. If you change your mind, just make a new list and have it notarized. To prevent disagreements about your intentions, be very specific. If your list is long, make a separate list for each person. If your estate is sizeable or if a gift is of substantial value, have your attorney review your list to resolve potential tax issues.
If you have a will, your special bequests will be listed on a codicil prepared by your attorney. If you want to make a change, your attorney will need to prepare a new codicil. (There’s one often overlooked advantage of having a living trust.)
Ask What They Want: Ask your children and others if there is something of yours they would like to have. There may be an item that has special meaning to someone that you aren’t even aware of. Wouldn’t it be nice to know that?
Make gifts now, especially if it is something that you no longer need, or if you are concerned there might be a problem later on.
Hold a family “sale” now, while you can provide information and referee. Gather your kids some weekend or holiday and have them take turns selecting items they want. If one item proves popular, let them bid against each other or make trades. Then write up a list for each person. What doesn’t “sell” to family members can be sold in an estate sale after you die and the proceeds divvied up. (If your family is reluctant to do this, tell them you’ll leave instructions for everything to be sold after you die.)
Write a description, especially if it has sentimental value or is a family heirloom. How else will they know this turkey platter belonged to your favorite Aunt Jessie and that one was picked up at a garage sale?! If the item is large enough, label it.
Qualified Personal Residence Trust
A qualified personal residence trust lets you continue to live in your home but transfer it to your children now so you will save estate taxes when you die.
When you set up a qualified personal residence trust, you transfer your home or vacation home to an irrevocable trust. For a specified period of time (often 10 to 15 years), you retain the right to use and live in the residence. After that time, the residence transfers to your beneficiaries (usually your children).
In effect, you are giving your home to your children today. But because your children will not receive it until sometime in the future, the value of this gift is discounted (reduced). This uses less of your federal gift and estate tax exemptions than if you had kept the home (and any future appreciation) in your estate.
If you die before the term of the trust is over, there is no penalty. Your home will just be included in your taxable estate, which is what would happen anyway without the trust. If you live longer than the duration of the trust and want to keep living there, you will have to pay rent (at fair market value).
And, of course, the house will not receive a stepped-up basis when you die. So you will want to see whether it’s better for your beneficiaries to save the capital gains taxes or to save the estate taxes.
