Current Shamrock Missive

From the Publisher's Desk
July 2016

"Freedom is the right to tell people what they do not want to hear."
- George Orwell

The High Costs of Dying

It is universally recognized that everyone dies someday. Therefore, every individual is permitted to plan for an orderly transfer of his or her assets to a spouse, child(ren), and/or other loved ones. In addition, depending upon your success during life, upon death very substantial estate and inheritance taxes may be levied upon your estate. It is within the context of valid estate planning that ancillary lawsuit and asset protection is available. No court will ever deny a person the right to provide for their estate or to take advantage of the estate tax allowances available through trusts and other similar devices.

Estate Tax Fundamentals

Every dollar left in an estate is subject to a unified estate and gift tax. However, to eliminate the burden of taxation from "small" estates, Congress has given every individual two loopholes: first, any individual may give any other person $10,000 per year estate/gift tax free and second, each person is given a lifetime estate/gift tax credit that is the rough equivalent of a $600,000 estate. In addition, a surviving spouse may inherit any amount from his/her spouse without paying tax until the death of the surviving spouse. To reduce the taxes ultimately attributable to one's estate, two techniques are usually used. Special types of trusts (the A-B and A- b/C trusts) are created that permit half of the estate to bypass the surviving spouse, thus creating a total exemption of about $1,200,000 from estate/gift taxes.

For larger estates, the most effective technique is to give, over time, a large portion of the value of the estate to its intended heirs. A major objection to this technique is that it gives up control of the assets before the testator has given up the ghost. However, using this technique, a married couple can each give $10,000 per person per year, and using conduits such as other relatives, this amount may be multiplied and the process accelerated.

Avoiding Probate

While you can't avoid dying, you can avoid the high costs of probate. There has never been a will written that avoids probate. Probate costs include attorney and accountancy fees. To avoid probate, many improperly use joint tenancy with the unwanted results described above. To properly avoid these costs you may utilize a fully funded revocable trust, also known as a "living trust." The costs of probate for an estate that exceeds the lifetime estate/gift tax credit may easily exceed $10,000. Moreover, probate means delays in transferring control of the assets and publicity regarding the details of the decedent's affairs. Using a living trust, you avoid these problems because you have pre-positioned your assets to permit a seamless transfer of control upon your death. While the Last Will and Testament will be probated it will essentially show no assets passing under its terms. For the twin reasons described above, costs and control, the use of the living trust is not only permissible but encouraged by the law and the courts.

For married couples, forming two funded revocable living trusts is a good way to protect assets if one spouse is more vulnerable to claims than the other. Statutes in several states now provide that each spouse is entitled to hold his or her own property. For federal income tax purposes, the trust creators are treated as the trust property owners and no separate tax return for the trust need be filed.

Need any advice? Email us and place "Trust" in your subject heading. Our leprechaun will reply right back to you with the info needed to protect you and your loved ones.

See you next missive.

PT Shamrock

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