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Estate Planning During COVID-19 Pandemic

Get Basic Planning Documents in Place ASAP

The threat posed by the Coronavirus pandemic and market rout to the health and financial well-being of every single one of us has brought the importance of estate planning to the forefront.  It is critical, during these difficult times, to make sure that the appropriate plan is in place in the event that we become sick, incapacitated or worse.  Without an effective estate plan, individuals place themselves, their assets and their families at risk and, instead, invite unnecessary heartache, family strife and financial distress at the time of their incapacity or death.  

There are a number of essential documents that every adult needs to have in place to protect them, their assets and their loved ones in the event of their incapacity or death.  This needs to be done even for children of eighteen years of age or older, as they are legally treated as adults.  That means that a parent’s legal right to make important decisions about his or her child’s health and finances is no longer automatic.  Accordingly, it is imperative to establish one’s legal ability to make these decisions before the unexpected requires it and it is too late. 

Below is a brief description of each of the essential documents which, together, provide a basic foundation for any estate plan.  If you already have an estate plan, you should review your documents to ensure that they continue to meet your objectives and comply with the changes in your assets, estate tax laws and life circumstances that have inevitably occurred since you signed them.  

Last Will and Testament / Revocable Trust.  One of the most effective ways to direct the distribution of your assets upon your death is to create a Will or revocable trust.  A properly drafted Will or revocable trust accomplishes the following:

•  instructs how your assets are to be distributed upon your death;

• designates an Executor or Trustee who is responsible for taking inventory of your assets; preserving your estate; paying creditors, administrative expenses and death taxes; and disposing of the remainder of your property among your beneficiaries;

•  appoints Guardians for your minor children;

•  in the case of a revocable trust, avoids probate upon your death; and

•  establishes trusts for asset protection and estate tax planning purposes.

Power of Attorney.  A power of attorney allows you to appoint an individual to handle financial decisions for you, including paying your bills and taxes and managing your investments and business.  A power of attorney is particularly important, as it may allow you to avoid the costly and complicated Guardianship procedure which is otherwise required when an individual becomes incapacitated for any reason, including accident, disease or age.  In addition, it can prevent any difficulties involved with the management of your financial affairs while a Guardianship proceeding is pending and before a Guardian has been appointed by the court.

Health Care Proxy.  The health care proxy is used to appoint an individual to make medical decisions for you, in the event of your incapacity or incompetence.  

Living Will.  A living will is used to express your wishes regarding your healthcare, and may be used to evidence your intention to have artificial life support terminated in the event that you are unconscious and there is no reasonable hope for your recovery. 

Consider Advanced Planning Opportunities, as this is the Perfect Opportunity for Gifting

For individuals of significant wealth, once your primary estate planning documents are in place, you can take advantage of the downturn in the stock market as an opportunity to leverage your lifetime federal estate tax exemption to make gifts to loved ones and reduce your taxable estate.  Because the stock market has suppressed the value of assets across most asset classes, making gifts at this time offers a low tax “cost” and an increased likelihood of appreciation of gifted assets in the hands of the donee. 

Gifts can take many different forms; you can choose to use all or a portion of your lifetime exemption or the annual exclusion.  For 2020, the lifetime federal gift and estate tax exemption has been increased to $11.58 million.  This increased exemption amount is still scheduled to sunset on December 31, 2025 and return to $5 million (adjusted for inflation), assuming that it is not sooner reduced in the event that a Democratic president takes office next year.  The gift tax annual exclusion is currently at $15,000. 

Suppressed asset values, extremely low interest rates and an increased estate and gift tax exemption currently combine to create an ideal environment and limited window for gifting.  Clients are urged to consider taking advantage of this unique confluence of factors to make gifts to loved ones which provide asset protection and estate tax planning benefits.  Several techniques that we find particularly attractive in these uncertain times include grantor retained annuity trusts (GRATs), spousal lifetime access trusts (SLATs), intrafamily loans and sales to defective grantor trusts.  Consult an experienced trusts and estates attorney to further explore these options.

In the meantime, please stay healthy! 


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