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President-elect Donald Trump has proposed eliminating estate taxes. If there is a repeal, or when there is a repeal, will estate planners be out of a job? Of course not—estate planning is not only about tax. It includes how the estate is divided, whether the estate is big or small.
Estate planning mistakes by the ultra-rich, when they had plenty of money to pay for the best advice, make a dramatic starting point for a discussion about transferring family assets to the next generation.
No will. Prince died April 21, 2016, without a will, even though his estate is valued at as much as $500,000,000. At a probate hearing, 12 attorneys represented the various heirs. Why would a very wealthy and very successful musician, who allegedly kept his music in a vault to protect it, fail to safeguard that music through estate planning? Prince’s estate planning (even if there were no estate taxes) should have been about directing how his music was distributed and who had the decision-making powers over his artistic creations.
An old will. Bobbi Kristina Brown, the daughter of Whitney Houston and Bobbi Brown, died July 26, 2015. Although Bobbi Kristina wasn’t a celebrity of her parents’ fame, she had fame of her own as the sole beneficiary of her mother’s estate. And, thus, Bobbi Kristina’s passing is a time to be reminded of a few lessons in family estate planning. When Whitney Houston died in 2012, her daughter, then 19, inherited her estate valued at $20 million. The money was left in trust to be paid out to Bobbi Kristina at ages 21, 25, and 30, a common payout scheme. So, what was wrong? The will was 19 years old when Whitney died. Perhaps if it had been reviewed regularly, the trust terms would have been changed as Bobbi Kristina grew up and her medical and relationship problems started to appear.
Six Questions to Ask Your Client Today about His or Her Estate Planning
1. Is there a change in your family’s situation?
Certainly, the family situation changed for the wealthy Houston-Brown family. People with small estates can also be caught up in the changing family dynamic. For example, the son predeceased his mother. The mother’s current will left her estate to her surviving children. Because her daughter-in-law was beloved (and maybe because there were cute grandkids), mother changed the will to include her daughter-in-law for the deceased son’s share.
After the Supreme Court’s decision in Obergefell, same-sex couples are marrying. A marriage, whether between same-sex or opposite-sex couples, requires the updating of wills and a review of all beneficiary designations. A divorce, separation, or estrangement requires the same updating and review.
2. Is there a change in the size of your estate?
James Gandolfini, also known as Tony Soprano, died in 2013 at age 51. He left a $70 million estate with 20% left to his wife and the remainder to his children. Perhaps as his estate grew to grand amounts, along with his TV fame, he should have considered annual exclusion gifting, lifetime long-term trust planning, or a marital trust arrangement. Planning could have saved the Gandolfini heirs estate taxes, but even in a future without estate tax, clients with valuable stock options, or with rapidly appreciating real estate, may need updated planning to direct their wealth in a different or better way.
3. Is newly-acquired property properly titled?
A client had a lovely trust but failed to fund it. His estate planning was valueless because he didn’t follow through with the attorney’s instructions. You might also recognize a client who pulled property out of his trust so that he could refinance or trade the property, and then failed to return it to the trust.
If a client acquires property in another state, the client should be advised to talk to his or her estate attorney regarding the use of pass-through entities to hold title. Pass-through interests are often considered personal property with situs in the domicile of the owner. This may help with other-state probate and other-state inheritance tax.
4. Are beneficiary designations current?
IRA and pension plan beneficiary designations need regular review, along with the designations on bank accounts, stock accounts, and life insurance policies.
A client was divorced 20 years earlier. Her ex-husband died and she was the beneficiary of his $100,000 life insurance policy. She was certain he meant to leave money to her rather than his new wife. Hum. . . doubtful.
5. Is there a business succession plan?
Business succession planning is not just about the transfer of assets, but also about the transfer of management. Who’s going to manage the business?
A client loved and nurtured his business for 20 years. He was CEO and his new spouse of just a few years was CFO of the successful and growing business. When he passed away, his will left the business, his separate property, to his estranged children from a prior marriage. The business lost its CEO and then its CFO. The business barely sold for its debts. The client forgot an essential tenant of succession planning. Planning is important even if you are busy or feeling immortal.
Disability can be as damaging to business succession as death. Donald Sterling was banned for life from the National Basketball Association (NBA) for his racist comments. The NBA threatened to auction off Mr. Sterling’s team, the Los Angeles Clippers. At first, Mr. Sterling authorized his estranged wife, Shelly Sterling, to find a buyer for the team. Later, he refused to sell to the buyer arranged by Mrs. Sterling, moved to revoke his family trust and remove Mrs. Sterling as his co-trustee. Mrs. Sterling exercised her right under the trust to remove Mr. Sterling as co-trustee by securing a diagnosis of mental incapacity from two neurologists. The probate and district courts agreed that Mrs. Sterling had followed the terms of the trust when she removed Mr. Sterling and allowed her, as sole trustee of the family trust, to sell the Clippers. Perhaps Mr. Sterling should have considered a separate financial durable power of attorney for the business and reviewed his trust and will when he and his wife separated.
6. Are estate documents reviewed annually?
A client’s original trust distributed money to her children at ages 21, 25, and 30. At a review with her estate adviser, she changed the payout ages to 25, 30, and 35. And later to 30, 35, and 40. She said that the longer she knew the children, the older they needed to be to handle her money.
In her annual review, the client left money to one of her sons in a trust to be paid out 1/10 a year beginning at age 60. She didn’t like the son’s spouse, fearing divorce, or his ability to save for retirement. The other sons received their share at the closing of the estate. Only the “badly married” spendthrift son had to wait.
Other reminders. Gifting still has a place in estate planning even if there are no federal estate taxes. Gifting of assets may mean income shifts with the gift to a lower bracket family member. A qualified transfer from an IRA to a charity may mean less income in respect of a decedent (IRD) passing to the beneficiaries when the account owner dies. Sixteen states plus DC have estate taxes and seven states have inheritance taxes. For example, New Jersey has a $675,000 exemption and an estate tax rate that climbs to 16%. Even if your state does not have estate or inheritance tax, the decedent’s property located in another state may be subject to it. Although there may be no federal estate taxes under Mr. Trump’s tax proposal, gifting may reduce state inheritance taxes.
Tax planning note. See the Kiplinger’s article on the Ten States with The Scariest Death Taxes.