In the estate planning arena, income tax deferral planning (IRAs), planning to ensure availability of government benefits (Medicaid), and structuring affairs to ensure assets stay in the family bloodline (bloodline trusts) are the new big areas of concern - eclipsing, in most cases, any concern regarding federal estate taxes.
Nowadays, most people do not have estates approaching $5 million, so often the areas we can and do address are those stated above.
Retirement accounts are creatures of the law. As such, they are subject to many rules such as when you must begin taking out distributions and how much you must take (and therefore pay tax on).
When one passes, the beneficiary designation on file with the administrator or custodian controls. Beneficiaries have settlement options that they should consider before making any decisions.
It is advisable to seek professional guidance on your settlement options and which choice is best. We usually try to structure these assets so as to preserve income tax deferral as much as the law permits.
Government benefits are a lifeline to those in need. Planning in advance so as to qualify for needs-based programs is critical to success in this arena and can be the difference between someone who gets care and someone who does not.
Making sure your agent can do this kind of planning is also critical. If the person who needs it is disabled, nothing can be done absent express specific authority to the contrary.
Keeping your assets in the family is easy if you plan ahead. The law recognizes "future interests" so you can direct that a child inherit your property for his or her use and then, when that child passes, it goes to his or her children, not the in-laws.
This is something most people want to do. Fortunately, it is relatively easy to do with a bit of planning. We can make sure the in-law will not get it in a divorce or at death, and we can shelter it from estate taxes in the child's estate and remove it from exposure to creditors' claims.
Some advance planning in the above areas is usually sufficient to substantially protect the estate. So long as intentions are clear, T's are crossed and I's are dotted, then all of the problems that can and do emerge in terms of family conflict can usually be avoided.
Good estate plans will address all of the issues raised above. While estate planning is about who gets what, it is also about how they get it and what that means.
In this day and age, estate plans need to be flexible. They need to guard against exposure to estate taxes and take inflation into account. They also need to account for the possibility that fortune could turn against them, necessitating the need or want to obtain government benefits.
Mark F. Winn, J.D., Master of Laws (LL.M.) in estate planning, is a local asset protection, estate planning and elder law attorney. www.mwinnesq.com