The estate planning process begins with a client consultation during which the attorney gains information and clarity about the family dynamic and financial resources of the clients, after which their intentions for the inheritances for each of the heirs are explored. Then, counsel will offer recommendations for the structure of the estate plan and specific provisions of the legal instruments to be prepared. Upon client approval, the documents are drafted, reviewed, finalized and executed, giving peace of mind to all concerned.
ESSENTIAL ESTATE PLANNING
Every adult person should have a current estate plan, consisting of the basic legal instruments which provide directions for the family in case of an unexpected incapacity or, of course, upon death. In the proper legal framework, a client will name executors, attorneys-in-fact for financial matters and health care decisions, select guardians and trustees for minor children, and designate the beneficiaries to receive assets after death, perhaps in trust for certain beneficiaries. In the basic estate plan, that framework is built with a Last Will and Testament, a Power of Attorney, and an Advance Medical Directive.
ESTATE PLANNING WITH REVOCABLE TRUSTS
Revocable “living” trusts have become very popular as the preferred estate planning vehicle, primarily due to the advantages of probate avoidance and preservation of privacy for the post-mortem estate. They also provide a superior structure for management of one’s assets in the event of incapacity, as compared to the customary power of attorney or court-supervised conservatorship. In addition to the Trust, the foregoing essential legal instruments (Will, Power of Attorney and Advance Medical Directive) are prepared as supporting documents, as well as a Certification of Trust and such Assignments (of personal property) and Deeds (for real property) as are appropriate for the complete funding of the trust.
ESTATE PLANNING WITH RETIREMENT ACCOUNTS
The rules governing the taxation of qualified retirement accounts passing to designated beneficiaries are decidedly complex and subject to frequent change by acts of Congress and select executive branch agencies. Accordingly, careful evaluation of each retirement plan account should be conducted with experienced tax counsel before recommendations are made for changes to the designation of beneficiaries. Given the substantial value of retirement accounts as an asset of the typical client, they constitute a key element of the estate plan. If the protection of a trust is desired for certain heirs, then special tax-compliant IRA trusts and customized beneficiary designation instruments are necessary to avoid disastrous income tax consequences.
ESTATE PLANNING FOR BLENDED FAMILIES
“Blended families” are those in which multiple family groups can be identified as heirs to the husband and/or the wife, typically as a result of a second or later marriage. While many facets of blended family life are similar to the traditional nuclear family, the potential for legal and emotional complications is significantly greater where inheritances can be dictated by which spouse is the second to die. In other words, the children of the first spouse to die may be disinherited unless there is an estate plan in place to provide for them. The consequences of neglecting to address these inevitable inequities can be a legacy of bitterness and costly disputes among the heirs, who are no longer blended. Fortunately, experienced counsel will have effective estate planning solutions to these sources of conflict within the blended family.
ESTATE PLANNING FOR BUSINESS OWNERS
The three leading causes of the failure of inherited family-owned businesses result when the deceased owner failed to: (i) establish an adequate estate plan, (ii) arrange for orderly transition of control of the enterprise to the next generation, and (iii) provide the necessary funds for the purchase of business interests (and the payment of estate tax liability where it applies). Once the business owner makes the commitment to implement a succession plan, the strategies and solutions presented by counsel might include lifetime gifts of stock or membership interests, buy-sell agreements, new special-purpose entities, or special trust arrangements which would be coordinated with the traditional estate planning documents to set the stage for a successful business succession.