What’s the state of your estate? Robert Fishbein, a vice president and corporate counsel in Prudential Financial's Tax Department, says now's a good time to find out.
Changes in federal estate tax law have significantly increased the amount at which federal estate tax is triggered, says Fishbein. The individual exemption is $5.49 million (2017 amount, indexed for inflation) so a couple can accumulate almost $11 million dollars of assets without federal estate tax depleting the value.
The $5.49 million will increase over time. As a result, most individuals no longer need an estate plan to minimize federal estate tax.
That said, Fishbein adds, there are compelling reasons for having an estate plan, and three core documents you’ll need to create one: a power of attorney, a living will or health care proxy, and a will. In this article, Fishbein describes these core documents and how you can use them.
Power of attorney
A power of attorney is the document designating someone to make financial decisions for you, whether you’re out of the country for a long period, have a physical injury preventing you from conducting business in person, or are mentally incapacitated.
A power of attorney can be “springing” — going into effect upon your incapacity — or “durable,” meaning it goes into effect immediately. The challenge with a springing power of attorney is it can be subject to disagreement and dispute between the holder of the power and another family member. One solution is to require the incapacity be certified by a physician, although even those findings can be disputed.
With the durable power of attorney, there’s no basis for contesting whether the holder of the power can act. The risk is the holder has the immediate right and ability to access and take action with respect to the financial assets subject to the power. One possible strategy? Limit the power to specific assets. This won’t help if the grantor if the power is totally incapacitated and the holder may need access to all of the grantor’s assets.
A durable power of attorney is arguably less problematic, provided you are comfortable with the person you’re choosing. The holder of the power has a legal obligation, as a fiduciary of the grantor, to act in the best interests of the grantor and not in his or her interests.
It makes sense to have a power of attorney so you know your financial affairs will be attended to. The alternative could be a costly judicial process and court appointment of someone to manage your assets while you are living and unable to do so yourself.
Living will and health care proxy
A “living will” ensures your health care wishes are acted upon if you are unable to make such decisions. It lets you describe the types of treatment you do or don’t want under specific circumstances. For example, if you have a terminal illness, you may not want extraordinary measures taken to save your life. The challenge is it’s almost impossible to anticipate all possible scenarios to indicate what health care treatment you’ll want.
An alternative to a pure living will is a “living will and health care proxy,” wherein you designate an individual to make health care choices for you. The living will portion describes in general terms your health care philosophy, and the health care proxy allows you to name an individual to make health care choices for you consistent with that philosophy. The choice of such an individual is important, and you should make sure you are comfortable he or she understands and will act consistent with your wishes.
You should have a living will drawn up as part of your basic estate planning. Again, the alternative is a costly legal process for someone — maybe not of your choice — to get appointed as your proxy to make health care decisions on your behalf.
A “last will and testament” serves several important purposes, including determining how your assets are distributed, who’ll care for your minor children and who’ll invest and distribute property held in trust for your children, grandchildren or other beneficiaries. The basic function of a last will and testament is to ensure your assets are distributed as you’d want. Absent a will, your assets will be distributed in accordance with applicable state law.
You’ll also designate the legal guardian, and possible successors, for any minor children who survive you and your spouse. This is one of the most important and difficult decisions for parents — so difficult that it sometimes can hold up the entire estate plan. But agreement by the parents is important and avoids the possibility of someone else being court-appointed who may or may not share your child-rearing views.
With the increase of the federal estate tax exemption and an individual’s ability to use the exemption of a deceased spouse, trusts for federal estate tax planning have been made largely irrelevant for most individuals. However, if you have minor children who could take property if both you and your spouse die, or grandchildren who could take property if a child of yours dies and leaves children, you’ll probably need trusts to hold property for those beneficiaries. Such trusts will enable you to determine who’ll invest the trust property, how it’ll be used for the child’s benefit and at what age the beneficiary will receive the remaining property.
Think you don’t have a large enough estate to warrant setting up trusts for your beneficiaries? Consider even the most basic estate when you own a house, have retirement assets and maybe additional investments or property. Given the total value of these assets, you’d probably want to hold them in trust for minor heirs. If there’s life insurance, a trust for younger beneficiaries will almost certainly make sense.
Although federal estate tax is no longer a significant consideration for most individuals, you may want to consider the cost of state estate tax. The state exemption is sometimes less than the federal exemption, and state estate tax can take a meaningful bite out of what you expect to leave to your beneficiaries.
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