|Part of the common law series|
|Other common law areas|
Estate planning is the process of anticipating and arranging for the disposal of an estate during a person's life. Estate planning typically attempts to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses. However, the ultimate goal of estate plan is determined by the specific goals of the client and may be as simple or complex as the client's needs dictate. Guardians are often designated for minor children and beneficiaries in incapacity.
Countries whose legal systems evolved from the British common law system, like the United States, typically use the probate system for distributing property at death. Probate is a process where 1) the decedent's purported will, if any, is entered in court, 2) after hearing evidence from the representative of the estate, the court decides if the will is valid, 3) a personal representative is appointed by the court as a fiduciary to close out the estate, 4) known and unknown creditors are notified (through direct notice or publication in the media) to file any claims against the estate, 5) claims are paid out (if funds remain) in the order or priority governed by state statute, 6) remaining funds are distributed to beneficiaries named in the will, or heirs if there is no will, and 7) the probate judge closes out the estate.
Estate planning involves the will, trusts, beneficiary designations, powers of appointment, property ownership (joint tenancy with rights of survivorship, tenancy in common, tenancy by the entirety), gift, and powers of attorney, specifically the durable financial power of attorney and the durable medical power of attorney. After widespread litigation and media coverage surrounding the Terri Schiavo case, estate planning attorneys now often advise clients to also create a living will. Specific final arrangements, such as whether to be buried or cremated, are also often part of the documents. More sophisticated estate plans may even cover deferring or decreasing estate taxes or winding up a business.
Income, gift, and estate tax planning plays a significant role in choosing the structure and vehicles used to create an estate plan. In the United States, assets left to a spouse or any qualified charity are not subject to estate tax. Assets left to anyone else—even the decedent's children— are taxed if that part of the estate values more than $5,430,000 in 2015.
One of the more common ways to avoid such estate taxes is to distribute an estate in incremental gifts during the person's lifetime. Individuals may give away as much as $14,000 per year (2015) without incurring gift tax. Other tax free alternatives include paying a grandchild’s college tuition or medical insurance premiums free of gift tax—but only if the payments are made directly to the educational institution or medical provider. Other tax advantaged alternatives to leaving property, outside of a will, include qualified or non-qualified retirement plans (e.g. 401(k) plans and IRAs) certain “trustee” bank accounts, transfer on death (or TOD) financial accounts, and life insurance proceeds.
Because the United States tax code does not tax life insurance proceeds as income, a life insurance trust could be used to pay estate taxes. However, if the decedent holds any incidents of ownership like the ability to remove or change beneficiary, the proceeds will remain in his estate. For this reason, the trust vehicle is used to own the life insurance policy and it must be irrevocable to avoid inclusion in the estate.
Due to the time and expenses associated with the traditional probate process, modern estate planners frequently counsel clients to enact probate avoidance strategies. Some common probate-avoidance strategies include: 1) Revocable Living Trusts, 2) joint ownership of assets and naming death beneficiaries 3) making lifetime gifts, and 4) purchasing life insurance.
Trust provisions for beneficiaries
Trusts may be used to set up certain provisions for how minor children or developmentally disabled children will be distributed funds. For example, a spendthrift trust may be used to prevent wasteful spending by a spendthrift child, or a special needs trust may be used for developmentally disabled children.
Mediation serves as an alternative to a full-scale litigation to settle disputes. At a mediation, family members and beneficiaries discuss plans on transfer of assets. Because of the potential conflicts associated with blended families, step siblings, and multiple marriages, creating an estate plan through mediation allows people to confront the issues head-on and design a plan that will minimize the chance of future family conflict and meet their financial goals.
Designation of an IRA beneficiary
In the United States, without a beneficiary statement, the default provision in the custodian-agreement will apply, which may be the estate of the owner resulting in higher taxes and extra fees.
- A specific, identifiable individual must be designated as beneficiary.
- Contingent beneficiary
- If the primary beneficiary predeceases the IRA owner, the contingent beneficiary becomes the designated beneficiary. If a contingent beneficiary is not named, the default provision in the custodian-agreement applies.
- At the IRA owner's death, the primary beneficiary may select his or her own beneficiaries. There is no obligation to retain the contingent beneficiary designated by the IRA owner.
- Multiple accounts
- An IRA owner can split an IRA into several IRA's each with different beneficiaries, assets and value.
- "What is "Pauper Planning?"". Pauper Planning Techniques. Curnalia Law, LLC. Retrieved July 13, 2014.
- Veasey, Westray B.; Craig G. Dalton Jr.; Poyner Spruill LLP (May 24, 2013). "Why You Need an Estate Plan Post 2013 Tax Act". The National Law Review. Retrieved 26 May 2013.
- Society of Certified Senior Advisors (2009). "Working with Seniors Health, Financial and Social Issues".
- William P. Streng, J.D., Estate Planning, Estates, Gifts and Trusts Portfolios, Vol. 800 (2nd ed. 2012), Bloomberg BNA.