New Jersey lawyer webmaster article synopsis: Popular estate planning mistakes.
Steven W. Tarta, Esq.
45 North Broad Street
Ridgewood, NJ 07450
Voice Mail: 201-444-6950
Often people do not believe they are worth enough to be subject to Federal Estate Taxation. If your estate is larger than $1,000,000, the estate tax begins at 41 percent! It is common to hear a person undervalue real estate, especially in this portion of the country (Bergen and Passaic counties in New Jersey rank as the 6th most expensive residential areas in the United States, with 20 percent appreciation per year). Also, life insurance, IRA's and the value of your business must be considered.
Not Balancing Ownership of Assets
Too often people own most of their assets jointly. At the death of the first spouse, all assets pass directly to their surviving spouse. If all assets are held jointly, one Unified Credit may be lost-that's a $345,00 loss and mistake!
Choosing The Wrong Executor or Trustee
Frequently a person wants to choose a friend or family member. The jobs of Executor and Trustee are very critical; numerous fiduciary obligations must be performed, and performed correctly. Is your chosen fiduciary competent and willing? More importantly, the person appointed to a fiduciary position should be asked??
Wrong Beneficiary and Distribution Elections of Retirement Plans
A retirement plan is subject to estate taxation (when the unified credit is met), then the remaining funds are subject to Income Taxation; this could represent a 50 percent Estate Tax exposure in addition to a 38.6 percent Income Tax. Please review the website "Article" published May 14, 2001 addressing IRA Income Distribution Rules.
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Owning Life Insurance
Many times people purchase life insurance "dedicated" to pay estate taxation. While this may represent a wise method of "paying the bill", too often people fail to realize that the same life insurance will be subject to estate taxation. If the life insurance proceeds become an asset of the estate, the same life insurance intended to "pay the bill" just increased the bill. Also, having the life insurance policy owned by the other spouse, results in keeping the policy proceeds out of one estate while assuring that the proceeds ARE INCLUDED in the surviving spouse 's estate and therefore subject to Estate Taxation. The best method of assuring that the proceeds are not included in the estate of either spouse is the use of a "third party"-a Life Insurance Trust. An Irrevocable Life Insurance Trust can provide for the "other spouse", pay estate tax bills, and provide for beneficiaries without any Estate Taxation.
Lack of Estate Planning Documentation
Not addressing the subject of Death or Disability, or perhaps procrastination, results in not having the necessary documentation, this is exactly what the IRS wants, 70 percent of the people in this country die without a will!! Too often the estate planner prepares the Trust but it is never funded. The estate plan should include, but not necessarily be limited to, the following documentation: Will, Trusts, Durable Power of Attorney, Health Care Proxy. As an estate becomes more complex, or if the desire is to aggressively remove assets from Federal Estate Taxation exposure, additional documentation may be required, possibly the use of a Qualified Personal Residence Trust (see newsletters addressing this subject under the "Article" button) would be appropriate.
Lack of Liquidity
Whether federal or not, every estate will have some expenses to honor. Providing liquidity for the estate can be accomplished in many ways; a frequently used method of generating liquidity is the life insurance policy, sometimes the "second to die" policy is appropriate. Unfortunately, the estate plan that does not address this issue results in liquidation "sale" of perhaps the wrong assets within the nine month "window" to settle the estate and file the Estate Tax Return.
Loss of Tax Credits and Gifting
Too many people do not realize that an UNLIMITED amount of gifts can be made every year up to $11,000 per recipient. This gifting ability is in addition to the utilization of the "unified credit" or "exemption amount" that permits the transfer of $1,000,000 without estate tax or gift tax consequence during the calendar years 2002 and 2003. The "exemption amount" or "unified credit" can be used either during life or at death. Remember however that taxable gifts made within three years of death will be "returned" to your estate and taxed accordingly.
Need for a Master Plan, and Keeping it Current
Stale documents are dangerous! Unfortunately, stale documents cost too much in tax dollars. It is wise to have your estate plan reviewed every two years, as well as every time the estate tax laws change- REMEMBER OUR PRESENT LAW CHANGED JANUARY 1st OF THIS YEAR!! Also, it is wise to review your estate plan as changes occur in your health as well as family life; a change of intention means a possible change of documentation. When "changes" occur which are not addressed in estate planning, the wrong person "inherits" the wrong property, and this can lead to very expensive litigation.
Dated : June 3, 2002