As I have discussed before, the 2015 federal estate tax exclusion is $5,430,000 per person, up from $5,340,000 per person last year and California does not currently have an estate tax (shocking). However, the taxable federal estate includes not only the net value of the property of the decedent, but also includes any lifetime taxable gifts made since 1977. Most of us will never need to worry about reaching that $5,000,000 plus estate bar, but politicians have been known to change their minds, and that number could very well come back down from the historically high level it is at today. For that reason, it is important to consider the types of gifts that are excluded from lifetime taxable gifts.
The most well known exclusion is any gift to a qualified charity. A gift to a qualified charity is not taxable either while a person is living or as part of their estate if the gift is made at death through a will or a trust. Along similar public policy lines, there are also unlimited gift exclusions for any medical or educational costs paid directly by a donor.
Another exclusion is the annual gift exclusion. In 2015, any person can give any other person $14,000 without the gift being taxable. This is the same as 2014. There is also a onetime aggregate gift exclusion amount that is equal to the estate tax exclusion of $5,430,000 in 2015. The annual exclusion also happens to be excluded from the onetime exclusion. The tax code once again amazes with its simplicity.
By using an irrevocable trust, a person can also take advantage of these gift exclusions while still retaining control over the assets until a certain point in the future. By making gifts, we can not only support causes or people whom we believe in, we can also lessen the chances of having to pay estate taxes one day. Please call my office for complimentary information about a variety of estate planning strategies.
Best wishes for a lovely holiday season, and a happy new year!
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Often my clients ask me about California estate tax and any effect it may have on estate planning. Surprisingly, California does not have its own estate tax. This is counter intuitive as California is generally a high tax state and many other states have a state level estate tax.
You may be familiar with using a durable power of attorney for incapacity planning as part of your estate plan. But what if you have a family member who has an estate plan in place but who is already starting to lose capacity due to dementia, Alzheimer’s, or simply old age? With some basic steps, you can smoothly transfer management of financial, personal, and healthcare decisions without going through the painful process of declaring someone incapacitated.
Transitioning management of a Trust
Generally, a person will serve as trustee of their trust until they pass away, or are declared incompetent by two separate doctors. Only at that time will the successor trustee take control and start managing the trust property. However, management can be more easily transferred by amending the trust and making the first successor trustee a co-trustee. This way, the original trust creator can still help manage the property alongside the co-trustee and eventually leave the co-trustee to do most of the management. Another benefit to this is that the original trust creator never needs to be declared incompetent and will remain a co-trustee until their death. This simplifies tax preparation as well because a separate tax return must be filed when the creator of the trust is no longer a trustee or co-trustee.
The issues involved in estate planning are both complicated and emotionally charged for any family. Things become even more difficult when a husband or wife has children from a previous relationship. The decisions become more important because of the possibility that the children from a previous relationship may not end up with anything if the surviving spouse spends all of the assets or changes the estate plan. If the children are strictly provided for there is also a possibility that the surviving spouse may not have enough money to support themselves.
This is a very common issue and can be dealt with in a couple of ways. With proper legal planning and communication, many of the potential problems can be mitigated. I will discuss the three most common ways of dealing with estate planning for a blended family. We will assume the family is using a revocable trust for probate avoidance.
Regardless of how well drafted our estate planning documents are, there are inevitably life changes that require changes to our estate plan. The type of change and the document which it affects determines how we make these alterations. Below I will discuss the method for making changes to the following estate plan documents.
Life changes which alter how you wish to distribute your assets or whom you want to be in charge of that distribution are changes that involve the living trust. A living trust is changed by doing an amendment to the trust. An amendment is a separate document that will be attached to the trust and describes the changes that will be made. The downside to a simple amendment is that when you are gone people will see the original trust as well as the change. So if you are making a change that may hurt feelings of a loved one (such as removing one child as successor trustee in favor of another) you can always do a restatement which is basically a complete new version of the trust with the new terms. With a restatement there is no evidence of what the original terms of the trust were.