What Does a Will Do and Not Do?

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Posted on: May 4, 2022 | by: Graber & Johnson Law Group, LLC
Everyone needs a will. However, some people need more than that. To save on taxes and make for a smooth transition, they could really use a revocable trust, a family limited partnership or a gift trust.

Estate plans are like life—over time, it changes, people are added and subtracted and your wishes and goals change. Regardless of your income, amount of assets or family circumstances, everyone wants to minimize taxes and facilitate a smooth transfer of property at death. Consider a recent aptly named article titled “Does Your Estate Plan Call for More Than Just a Will?” from Kiplinger to learn about what an estate plan can do, versus what a will by itself may accomplish.

Revocable trusts bypass probate, letting the property held in trust pass directly to beneficiaries. There is no public record of the trust and its instructions, and your wishes will remain private. Only the trustee knows what is in the trust and how it is distributed. By comparison, when a will is processed through probate, it becomes part of the public record and anyone who asks to see it can, including creditors, estranged family members, scammers and salespeople.

Trusts are a valuable tool for incapacity planning, as well as for private and swift distribution of assets after death. Let’s say a person has become incapacitated and is no longer able to manage his own affairs. Assets in the trust are controlled by the trustee, or the successor trustee, if the person who created the trust was the primary trustee. Trusts are recognized by all states, but a power of attorney (POA) may not as easily cross state lines. Banks and other financial institutions may refuse to accept an out-of-state POA, but, for the most part, they will not push back against a trust.

Family limited partnerships lessen the burden of estate taxes for heirs. Right now, the federal estate tax exemption is $12.06 million. However, this is scheduled to be cut by half by 2025, unless Congress takes action earlier, which is possible. By setting up a FLP and allocating assets among partners, usually family members, you can prepare for the change to the estate tax exemption and lower the value of your estate at the same time.

Tax benefits are not the only reasons to create an FLP. A Family Limited Partnership can protect assets against seizure by creditors, including plaintiffs in lawsuits. If structured correctly, they can also protect against divorcing spouses, allowing succession plans to continue minus worries about the impact of a divorce.

Gifting trusts are used to avoid Generation Skipping Transfer Taxes, known as GST taxes. The GST tax is currently calculated at a flat rate of 40% on transfers above the lifetime GST tax exemption amount, currently $12.06 million per individual. It’s the highest estate and gift tax rate. The GST becomes effective when grandparents directly transfer money or property to grandchildren or younger descendants, without first leaving it to their children. Your estate planning attorney will know how to create a trust to avoid this tax so you can transfer assets to your children for their children, without incurring a GST or estate tax.

Reference: Kiplinger (April 4, 2022) “Does Your Estate Plan Call for More Than Just a Will?”

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