Estate planning. We hear about it; we’re told we need to do it. But what, exactly, is it? With all the talk about the phase-out of the estate tax, is it still necessary?
As an estate planning attorney, I have heard from many of my clients that their primary objective in planning their estates is the elimination, or at least the reduction, in their estate tax liability. Yet when we sit down to talk, we spend very little time on tax avoidance, and a lot of time on the transfer of their assets to their intended beneficiaries in a manner acceptable to them, albeit at the lowest possible cost in terms of taxes and administration expenses. Issues dealing with guardianships for minor children, spendthrift trusts for older children, protection of assets from creditors, and passing on family values take up most of our time.
So what should you think about in planning your estate? First, what is your overall plan for the disposition of your assets, including those items that have a high sentimental value and little monetary value, as well as those that are purely financial in nature. Who are the intended recipients of those things you have spent your entire life acquiring? Are the beneficiaries mature enough to handle an inheritance? Do any of them require trust protection; in other words, is your 19-year old son capable of handling an inheritance in the magnitude of several hundred thousand dollars or beyond? If not, what restrictions should be placed on his use of those assets, and who will oversee their investment and distribution? If you have minor children, who should have custody of those children if both their parents have died? These are just a few of the issues that must be addressed during the estate planning process.
Estate planning also deals with the handling of financial and health care matters prior to death. Primarily, if you become incapable of managing your finances or of making health care decisions, who can do that for you, and how far do their powers extend? Would you like to have control over those decisions, or leave them to a judge, by default? And, of course, there is the question of cost, both monetary and otherwise: a guardianship proceeding and the annual accountings that may be required each year thereafter is often burdensome and expensive.
There is one overriding rule of thumb in this area of law: planning makes the difference.