Estate Plan Review Checklist
The start of the year is a great time for reflection. It’s an opportunity to assess the past year and focus on important decisions about the future - including the compelling reasons for formulating a considered, organized estate plan, or re-evaluating an existing plan. The New Year is a traditional time for resolutions and an estate planning “tune up” is a great one for the list!
In broad terms, the goals and objectives of estate planning involve maximizing the benefits of wealth. This includes thoughtful consideration of how you wish to provide for your family, other individuals, or your community (charitable causes important to you) now or following your death. Above all, a well-executed plan should provide certainty and peace of mind.
- Ensuring adequate post-retirement income,
- Ensuring resources for surviving dependents,
- Funding for anticipated needs such as children’s or grandchildren’s education,
- Providing for individuals with special needs or circumstances,
- Planning for the transfer or disposition of a closely held business interest,
- Protecting assets and legacies from potential creditors,
- Managing income taxes or wealth transfer taxes,
- providing for a favorite charity,
- Achieving “equity of inheritance” among beneficiaries and heirs, or
- Ensuring adequate liquidity to protect the plan.
A well-designed plan should be aligned with identified priorities and concerns. It is important to have a conversation with your family about your plan. If married, or domestic partners, determine whether your objectives and concerns are mutual, and whether your approach to planning is integrated or independent. Given the evolving tax and regulatory environment, as well as changes that can occur in personal or financial circumstances, a good plan should also foster and preserve flexibility.
Consider your current and anticipated sources of income including pension or other retirement benefits, gifts and inheritances as well as future income and capital needs, such as retirement income or survivor needs, and anticipated expenses such as education funding, emergency funds, or financial support provided to a parent, adult children, or other family members.
Important questions include:
- How much income you will require in post-retirement years?
- How much income will your spouse or family require in event of your death?
- Have you considered the future costs of nursing home care or other forms of long-term care?
Clarify your wishes regarding particular assets. If you have low basis highly appreciated assets, or assets with significant appreciation potential, consider the potential income tax, capital gains tax, or transfer tax implications upon transfer or disposition. Evaluate planning strategies to help mitigate or defer taxes including opportunities to reduce your taxable estate, current or future income taxes, or estate settlement costs. If you have a taxable estate, consider ways to leverage your remaining gift and estate tax exclusions. Things to consider:
- Do you know the current value of your real estate, art, antiques, heirlooms, etc., and do they require a professional appraisal?
- Do you have a formal plan for the transfer or sale of a closely held business interest (either during your lifetime or following your death)?
- Will your business be retained by your family, or sold to a third party (e.g., key employees, competitor, etc.)?
- Do you have a "buy-sell" agreement, and are the purchase obligations funded?
The planning documents prepared by your attorney are only part of your estate plan. Assets with contractual beneficiary designations often comprise a significant value of an estate, and increasingly, beneficiaries can be named on a wide range of financial products including bank and brokerage accounts, retirement plans and IRAs, accounts with a payable on death (POD) or transfer on death (TOD) designation, life insurance and annuities. A complete estate plan review should examine asset titling and beneficiary designations to ensure they are properly aligned with the rest of the estate plan and reflect your current wishes.
Identify problematic issues such as inconsistencies with your current circumstances or objectives, conflicts with other planning documents, or potential tax problems.
- Have you named primary as well as contingent beneficiaries for accounts requiring a contractual beneficiary designation?
- Do you wish to exclude the value of your life insurance death benefit from your taxable estate, and have you considered third party ownership of the policy?
- Do you wish to retain access to policy cash values?
Have a conversation with your family about your plan and give thought to the following considerations:
- To what extent do you wish to provide for your spouse or partner, and what type of assistance do you wish to provide in managing their inheritance?
- To what extent do you wish to provide for your children, grandchildren, or other individuals - and at what ages, under what circumstances, and in what manner should they receive their inheritance?
- Do you have any special concerns relating to your spouse, children or other heirs?
Additional considerations include:
- Are there specific items you wish to gift or bequeath to certain individuals?
- Do you wish to treat all heirs in equal manner with regard to their inheritance?
- Have you considered the pros and cons of transferring some assets during lifetime?
- Do you have family members with special needs or circumstances?
An estate plan review is also an opportunity to evaluate current liquidity needs (or shortfalls). Assess whether there is sufficient liquidity to support your plan. Consider how remaining debts, final expenses, state and federal taxes, or other estate settlement costs will be paid following your death, and which assets your estate will use to satisfy these liabilities. Would it be necessary for your heirs to liquidate assets (you wish to preserve) to pay taxes or other liabilities?
In addition to providing an income tax-free source of liquidity to cover remaining taxes or expenses, life insurance (including the living benefits) may support other planning objectives, including: retirement income funding, survivor income funding, helping to “equalize” inheritances among beneficiaries and heirs, or providing a family or charitable legacy. Evaluate your existing life insurance including the intended purposes of the coverage, policy ownership and beneficiary designations.
An individual has unrestricted access and control over their inheritance upon reaching the age of majority (age 18 or 21 in most jurisdictions). Under certain circumstances and depending upon the value of money or property at stake, an outright gift or bequest may be impractical or unwise. A trust (created either during your lifetime or under your Will) can put more controls in place to stagger the distribution of assets over time, so the beneficiary can’t spend it unwisely or all at once. A trust can provide protection against spendthrift behavior, potential future creditors (including divorce), poor financial judgment, or the influence of others. An outright inheritance for a disabled beneficiary could also compromise his or her eligibility for government benefits and may require a special needs or supplemental needs trust to preserve the legacy.
Key things to consider:
- Do you have concerns about children's or other individuals’ ability to responsibly manage a significant gift or inheritance?
- Do you wish to encourage, or provide incentives for, certain behaviors or values (or discourage others)?
- Do you wish to limit or postpone access to funds?
A properly designed trust can address these and other concerns, and can also be drafted to adapt to beneficiaries' evolving circumstances or needs.
If you have a history of charitable giving, or want to explore including charity in your planning, this should be an important consideration in reviewing your estate plan. Important questions include the following:
- Does your current plan include any charities (e.g., gifts, bequests, beneficiary designations)?
- What is your involvement in your community?
- Are there particular charitable causes that are important to you and your family, or specific organizations you wish to benefit?
- Do you wish to encourage philanthropic involvement and values in your family?
- How important is it to ensure your family's inheritance is not reduced as a result of your charitable gift or bequest?
In addition, there are significant tax advantages and incentives for benefiting charity both during your lifetime and following your death. Evaluate the relative advantages of various charitable giving options and be sure to explore the tax and financial benefits of these strategies with your tax advisor.
Review existing estate planning documents with your legal advisor including your Will, intervivos and testamentary trusts, living Will, and powers of attorney for health care and property management decisions. Particular attention should be given to significant changes in your circumstances, or key events, e.g., marriage, divorce, birth or death of a loved one, retirement, receipt of an inheritance, newly acquired assets, and changes in personal or business relationships. These are occurrences that should always trigger communication with your attorney, and other key advisors.
Include a review of pertinent financial information, including personal financial statements, deeds or titles to real estate and other property, brokerage account statements, recent income tax returns, and gift tax returns. Ensure planning documents been updated for the latest federal or state law changes, including tax legislation.
Consider choice of appropriate fiduciaries who will be charged with administering your assets and carrying out your wishes including executors and personal representatives, trustees, guardians for minor children, and holders of powers for property management and health care decisions. Also, be sure to name their successors in the event of their death, resignation, or inability to serve. Consider the following:
- Are the appropriate parties currently named as your personal representatives, taking into account their financial, physical or emotional resources (or limitations)?
- Should an individual be named for a position a corporate or institutional fiduciary should serve (or vice versa)?
Finally, be sure your all of your important documents, instructions, and other pertinent information are organized and accessible to family members and personal representatives.
This article is for general information purposes only and is not intended to provide legal, tax, accounting or financial advice. The information in this article, and any opinions expressed therein, do not constitute a recommendation or an offer to buy or sell any security or financial instrument. Viewers should consult with their financial, tax and/or legal professionals before making any financial decisions.