We are all tired of hearing about the "fiscal cliff" and Congress's inability to come to agreement on the issue of taxes. How does one plan one's estate in the midst of such uncertainty? While estate taxes are, and should be, an integral consideration in the development of an estate plan, there are still important components of an estate plan which can be assembled regardless of the tax laws. It is essential that people don't put all of their planning on hold, waiting for some clarity on taxes. It is certainly better to have a partial plan, rather than none at all.
So what can be done now, in the wake of the uncertainty? Simple basics. For example, your will (or living trust) should be reviewed to see if it needs to be updated. You should make sure you have an adequate health care proxy/living will and power of attorney in place, in the event you should become disabled. Do you need a living trust, or is having a will adequate for you? Consider how your assets are structured. Do you have designated beneficiaries on your accounts? If so, are these beneficiary designations current? Have you considered the consequences of having designated beneficiaries in the first place? Often, clients have beneficiary designations without considering what monies will be available at death in order to pay taxes, funeral and other expenses. If there are no funds in the estate, it will be up to individual beneficiaries to contribute monies, something you might not want to rely on. Additionally, the designated beneficiary designations may result, inadevertently, in some beneficiaries receiving more than others. Remember that IRAs, 401ks and other retirement accounts should have individual beneficiaries listed, in order to avoid adverse income tax consequences.
For those who have children and no will in place, now would certainly be the time to get started on developing an estate plan. At a minimum, guardians should be appointed for minors, so that a court does not have to step in to name someone to raise your child. Also, you will likely want to make provision for monies to be held in trust for the minors, until they attain stipulated ages, in order to avoid having a child inherit monies when he/she is too young. Since minors can not legally own money on their own behalf, one should make sure not to list a minor as a beneficiary on one's accounts; otherwise, legally proceedings will need to be commenced upon your death in order for someone to be able to control these funds for the minor. It would certainly be a better idea to prepare a will, nominating a person of your own choice for this role.
In summary, while we are waiting for their to be some certainty with the tax laws, we should devote our time and energy to making sure that we have some form of a comprehensive estate plan in place.
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IRS Circular 230 disclosure: We inform you that any tax advice contained in this communication is not intended or written to be used, and may not be used by you or or anyone else for the purpose of avoiding penalties imposed under the Internal Revenue Code.