The following article appeared in Morningstar.
Keeping tabs on the estate-planning rules during the past few years has been a little like watching Olympic-level table tennis: The action moves quickly, and it’s difficult to keep up.
The amount of assets that could pass estate-tax-free drifted upward for most of the 2000s, and the estate tax went away altogether in a single year, 2010. Extremely generous exclusion amounts, which allow estates of more than $5 million to escape the estate tax, have prevailed for 2011 and 2012. But the tax is set to return with a vengeance in 2013. Barring Congressional action, estates of $1 million will be subject to the estate tax starting next year, and the top estate tax rate will be 55%.
Contemplating your own mortality or incapacitation, as estate planning requires you to do, is off-putting under the best of circumstances. And the constant flux in the tax code no doubt makes estate planning even easier to put on the back burner. After all, setting up an estate plan can be costly, and many people, especially younger folks, probably worry that they’ll fork over a lot of money only to have to revise the plan when the laws change again.
But even if the amount of assets subject to the estate tax increases above the $1 million level that’s planned for 2013, I’d still take the threat of higher estate taxes as a wake-up call. The exclusion limit has been extraordinarily benign for the past three years, affecting only very wealthy families, but it might not remain that way. When you consider that real estate holdings are included in one’s total estate value, it’s not hard to see how reducing the exclusion amount to $1 million or less could touch a lot more families. Even if the exclusion amount remains very high, the core estate-planning to-dos are actually pretty evergreen and don’t have anything to do with the tax regime. They could, however, have an extraordinary impact on whether your wishes are carried out before and after you die.
Here are the key estate-planning to-dos.
Task 1: Update Your Beneficiary Designations
Even if you’ve never set foot in an attorney’s office, you’ve laid the groundwork for an estate plan if you’ve filled out beneficiary designation forms for your financial accounts. Those designations, in fact, trump other estate-planning documents when it comes to distributing your assets, so it’s worthwhile to periodically review them to make sure they’re up-to-date with your current situation–if you’ve gotten married or divorced, or example. (How would your spouse feel if you inadvertently left your 401(k) account to your brother?) And if you have drafted estate-planning documents such as a will, your attorney should be able to help you review your beneficiary designations to ensure that they sync up with those documents.
Task 2: Designate Legal Guardians
Here’s another step that’s important regardless of asset level: Parents of young children should designate legal guardians who will look after their children if the parents should die or otherwise be unable to care for their minor children. Spouses often put off this step because they disagree about guardianship, but it helps if you can focus the discussion on actual child-rearing abilities and willingness to do the job. Don’t get hung up on hurting anyone’s feelings or bypassing friends or family members who might expect to be your guardians but aren’t the best choice. (Naming someone a guardian because you’re a guardian for their children isn’t a good reason.) Most important, your guardian should be willing and able to take care of your children if the need arises, so an essential step is to discuss the responsibilities with the potential guardian and make sure he or she is on board. You also want your children’s guardian to share you and your spouse’s values and views on parenting; financial wherewithal should be a consideration, as well. It’s also worth noting that it’s possible to name two guardians–one to take care of your child’s needs on a day-to-day basis and another to supervise the child’s financial assets. But that’s usually not practical for obvious reasons.
Task 3: Create a Living Will and Last Will and Testament
A living will is another document that’s important no matter what your asset level is; it tells your health-care providers and your loved ones how you would like to be cared for if you should become terminally ill and unable to express your wishes yourself. Called a “medical directive” in some states, this document details your views toward life-support equipment. Not to be confused with a living will, a last will and testament details how you’d like your assets and possessions distributed after your death.
Task 4: Draft Powers of Attorney
Estate planning doesn’t just relate to death and dying: A basic estate plan should also address what would happen to your affairs if you are still living but incapacitated. A power of attorney is a document that specifies who will handle your affairs if you are unable to do so. You’ll need to draft two separate documents: one that names your power of attorney for health-care decisions and another for financial matters (often called a durable power of attorney). The person you entrust with your power of attorney for health care will, ideally, live in close geographic proximity to you and will also understand your general wishes about your own health care. The person who you name on your durable power of attorney form should be detail-oriented and comfortable with financial matters, and he or she should also have a general understanding about your attitudes toward and goals for your money.
Task 5: Name an Executor
Your executor will gather all of your assets after you’re gone and make sure they are distributed in accordance with your will. Ideally, your executor will be someone who’s comfortable with numbers and good with details, and will also be able to find the time to work on your estate. It’s common to name family members as executors, but in more complicated situations it might be preferable to use a professional, such as a bank trust officer, to serve as your executor. It’s a good idea to tell your executor that you’ve named him or her, and also provide details on how to obtain access to important documents, such as your will and a master directory detailing all of your accounts.