04. Estate Planning
The topic of estate planning can be vast, complex, and sometimes stressful, but it’s important to think about your wishes and the future needs of yourself and your family.
For most clients, a basic estate plan is comprised of a Will or Trust, or no plan at all. Anything more complex is usually designed to address estate taxes, or some other specific issue or circumstance the client is concerned about.
Most of us are generally familiar with the term “Last Will and Testament” from television or movies. A Will is a written document that identifies the client, their immediate family members, whom they want in charge to administer their estate, and how they want their property distributed. The document is executed by the client, signed by witnesses, and notarized.
The Will does not become binding until the death of the client, meaning the client can revoke the original Will, make a new Will, or add a Codicil (a supplementary document). Upon the death of the client, the named administrator files the document and asks the probate court to enter it into probate. At the end of the legal process, the court orders the property distributed as provided in the Will.
A Trust may at first glance appear very similar to a Will in that it identifies the client, and their immediate family, it contains provisions for a successor trustee to administer the estate, and provides instructions for distribution provisions for the client’s property. However, what makes the Trust different is the re-titling of the client’s property from their individual name to the name of their Trust. This process, called trust funding, re-titles from a living person to an entity that survives death, which allows the Trustee to distribute the property without the need for probate.
While an individual may not have a plan, meaning a Will or a Trust, there are state statutes that provide for the distribution of property from the estate of a person having neither a Will nor Trust. In such instances, the person is considered to have died intestate (without a will). In most states, the intestate distribution is for a portion to be distributed to the surviving spouse, and a portion to children, or the next living heir(s).
The administration of an intestate estate still requires the estate to be probated.
For an individual passing away in 2022, the federal estate tax exemption is $11,580,000.00. In short, if your estate is worth less than this amount, no estate tax is owed. If it is greater than this amount, then all amounts greater are subject to estate taxes.
Note: There is no requirement that a federal estate tax return be filed unless the estate amounts to $11,580,000.00.