Make an Estate Plan Review Part of Your New Year’s Resolutions

End of year is a time for reflection. It’s an opportunity to assess the past year and focus on important decisions about the future – including the compelling reasons for formulating a considered, organized estate plan or re-evaluating an existing plan. The New Year is a traditional time for resolutions – and should include an estate planning “tune up”!

In broad terms, the goals and objectives of estate planning involve maximizing the benefits of wealth. This includes thoughtful consideration of how you wish to provide for your family, other individuals, or your community (charitable causes important to you) – now or following your death. Above all, a well-executed plan should provide certainty and peace of mind.

Here is a checklist of significant items to review with your professional advisors, which may help you determine how to plan appropriately in light of your particular circumstances and desires.

1. Identify (or re-evaluate) your principal goals and objectives.

Today’s estate planning reinforces the importance of a plan that reflects core objectives and priorities. This may include: ensuring adequate post retirement income, resources for surviving dependents, funding for anticipated needs such as children’s or grandchildren’s education, providing for individuals with special needs or circumstances, planning for the transfer or disposition of a closely held business interest, protecting assets and legacies from potential creditors, managing income taxes or wealth transfer taxes, providing for a favorite charity, achieving “equity of inheritance” among beneficiaries and heirs, or ensuring adequate liquidity to protect the plan. A well-designed plan should be aligned with identified priorities and concerns.

Include a conversation with your family about your plan. If married, or you have a domestic partner, determine whether your objectives and concerns are mutual and whether your approach to planning is integrated or independent. Given the evolving tax and regulatory environment, as well as changes that can occur in personal or financial circumstances, a good plan should also foster and preserve flexibility.

2. Estimate your income needs, including retirement and survivor resources.

Consider your current and anticipated sources of income, including pension or other retirement benefits, gifts and inheritances – as well as future income and capital needs, such retirement income or survivor needs, and anticipated expenses such as education funding, emergency funds, or financial support provided to a parent, adult children, or other family members.

Important questions include: How much income you will require in post-retirement years? How much income will your spouse or family require in the event of your death? Have you considered the future costs of nursing home care or other forms of long-term care?

3. Identify which assets should be retained, transferred, or liquidated.

Clarify your wishes regarding particular assets. If you have low basis highly appreciated assets, or assets with significant appreciation potential, consider the potential income tax, capital gains tax, or transfer tax implications upon transfer or disposition. Evaluate planning strategies to help mitigate or defer taxes – including opportunities to reduce your taxable estate, current or future income taxes, or estate settlement costs. If you have a taxable estate, consider ways to leverage your remaining gift and estate tax exclusions.

Do you know the current value of your real estate, art, antiques, heirlooms, etc., and do they require a professional appraisal? Do you have a formal plan for the transfer or sale of a closely held business interest (either during your lifetime or following your death)? Will your business be retained by your family, or sold to a third party (e.g., key employees, competitor, etc.)? Do you have a “buy-sell” agreement, and are the purchase obligations funded?

4. Review how assets and beneficiary designations are titled, and whether modifications are necessary.

The planning documents prepared by your attorney are only part of your estate plan. Assets with contractual beneficiary designations often comprise a significant value of an estate, and increasingly, beneficiaries can be named on a wide range of financial products – including life insurance and annuities, brokerage accounts, retirement plans and IRAs, or accounts with a payable on death (POD) or transfer on death (TOD) designation. A complete estate plan review should examine asset titling and beneficiary designations to ensure they are properly aligned with the rest of the estate plan, and reflect your current wishes.

Identify problematic issues such as: inconsistencies with your current circumstances or objectives, conflicts with other planning documents, or potential tax problems. Have you named primary as well as contingent beneficiaries for accounts requiring a contractual beneficiary designation? Do you wish to exclude the value of your life insurance death benefit from your taxable estate, and have you considered third party ownership of the policy? Do you wish to retain access to policy cash values?

5. Decide which assets to pass to others (lifetime or following death), considering individuals’ current circumstances, as well as their anticipated future needs.

Include a conversation with your family about your plan, and give thought to the following considerations: To what extent do you wish to provide for your spouse or partner, and what type of assistance do you wish to provide in managing their inheritance? Think about how to pass assets to children, grandchildren, or other individuals – and at what ages, under what circumstances, and in what manner should they receive their inheritance? Do you have any special concerns relating to your spouse, children or other heirs?

Additional considerations include: Are there specific personal items you wish to gift or bequeath to certain individuals? Do you wish to treat all heirs in equal manner with regard to their inheritance? Have you considered the pros and cons of transferring some assets during lifetime? Do you have family members with special needs or circumstances?

6. Identify liquidity sources needed to satisfy remaining debts, taxes, or other liabilities.

An estate plan review is also an opportunity to evaluate current liquidity needs or shortfalls. Assess whether there is sufficient liquidity to support your plan. Consider how remaining debts, final expenses, state and federal taxes, or other estate settlement costs will be paid following your death, and which assets your estate will use to satisfy these liabilities. Would it be necessary for your heirs to liquidate assets (you wish to preserve) to pay taxes or other liabilities?

Consider the many ways permanent life insurance (including the living benefits) can enhance your estate plan. In addition to providing an income tax free source of liquidity to cover remaining taxes or expenses, it can support and play a complementary role with other aspects of your plan, including: retirement income funding, survivor income funding, helping to “equalize” inheritances among beneficiaries and heirs, or providing a family or charitable legacy. Evaluate your existing life insurance, including the intended purposes of the coverage, policy ownership and beneficiary designations.

7. Consider the use of trusts to provide flexibility, protection and control.

An individual has unrestricted access and control over their inheritance upon reaching the age of majority (age 18 or 21 in most jurisdictions). Under certain circumstances, and depending upon the value of money or property at stake, an outright gift or bequest may be impractical or unwise. A trust can put more control in place to stagger the distribution of assets over time, so the beneficiary can’t spend it unwisely or all at once. A trust can provide protection against spendthrift behavior, potential future creditors (including divorce), poor financial judgment, or the influence of others. An outright inheritance for a disabled beneficiary could also compromise his or her eligibility for government benefits, and may require a special needs or supplemental needs trust to preserve the legacy.

Do you have concerns about children’s or other individuals’ ability to responsibly manage a significant gift or inheritance? Do you wish to encourage, or provide incentives for, certain behaviors or values (or discourage others)? Do you wish to limit or postpone access to funds? A properly designed trust can address these concerns, and can also be drafted to adapt to beneficiaries’ evolving circumstances or needs.

8. Assess your level of charitable intent or inclination.

If you have a history of charitable giving, or want to explore including charity in your planning, this should be an important consideration in reviewing your estate plan. Important questions include the following: Does your current plan include any charities (e.g., gifts, bequests, beneficiary designations)? What is your involvement in your community? Are there particular charitable causes that are important to you and your family, or specific organizations you wish to benefit? Do you wish to encourage philanthropic involvement and values in your family? How important is it to ensure your family’s inheritance is not reduced as a result of your charitable gift or bequest?

In addition, there are significant tax advantages and incentives for benefiting charity – both during your lifetime and following your death. Evaluate the relative advantages of various charitable giving options, and be sure to explore the tax and financial benefits of these strategies with your tax advisor.

9. Review Will, living trust, and other important planning documents.

Evaluate existing estate planning documents with your legal advisors – including your Will, intervivos and testamentary trusts, living Will, and powers of attorney for health care and property management decisions. Particular attention should be given to significant changes in your circumstances, or key events – e.g., marriage, divorce, birth or death of a loved one, retirement, receipt of an inheritance, newly acquired assets, and changes in personal or business relationships. These are occurrences that should always trigger communication with your attorney, and other key advisors.

Include a review of pertinent financial information, including personal financial statements, deeds or titles to real estate and other property, brokerage account statements, recent income tax returns, and gift tax returns. Have planning documents been updated for the latest federal or state law changes, including tax legislation?

10. Review your choice of fiduciaries.

Consider choice of appropriate fiduciaries who will be charged with administering your assets and carrying out your wishes – including executors and personal representatives, trustees, guardians for minor children, and holders of powers for property management and health care decisions. Also be sure to name their successors in the event of their death, resignation, or inability to serve.

Are the appropriate parties currently named as your personal representatives, executors, trustees, or guardians – taking into account their financial, physical or emotional resources (or limitations)? Should an individual be named for a position a corporate or institutional fiduciary should serve (or vice versa)?

Also be sure all of your important documents, instructions, and other pertinent information is organized and accessible to family members and personal representatives.

Estate planning involves the accumulation, protection and effective management of assets – and ensures the efficient transfer and conservation of assets to intended recipients in the intended manner.

Enlist the efforts of your professional advisors to work as a team to produce a plan that accomplishes your ultimate objectives. Make sure your estate planning attorney, financial professional and tax advisors communicate with each other, and coordinate the implementation of (or revisions to) your plan. Remember to review your plan with your family and your advisors on a regular basis, and ensure your plan incorporates the desired flexibility to accommodate future changes.

This post is for informational purposes only and should not be considered as specific financial, legal or tax advice. Depending on your individual circumstances, the strategies discussed in this presentation may not be appropriate for your situation. The information in this material is not intended as tax or legal advice. Always consult your legal or tax professionals for specific information regarding your individual situation.
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