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2021 Estate Planning Outline

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2021 Estate Planning Outline Fundamentals of Estate Planning February 2021 Professor Anne-Marie Rhodes The purpose of today's lecture is to provide a basic framework for the estate planning process. The focus will be on people and property issues, basic documents, and the impact of taxes on the transfer of property, using the law of Illinois as the template. Our discussion cannot and will not be exhaustive as there is limited time available to us. Similarly the attached outline is offered only as a starting point; it is purposefully brought down to basics in order to emphasize the fundamentals. A particular client situation and documents, of course, will differ somewhat from our discussion. Attached to this outline is a glossary of some common terms used in estate planning. 1 Estate Planning: traditionally, the planning for the use and disposition of one's property both during lifetime as well as at death, involving the transfer of property to or for the benefit of chosen beneficiaries. Four Main Components: 1. People Decedent or Donor Beneficiaries 2. Property Probate Non-probate 3. Time Lifetime At death 4. Analysis of Transfer Tax Impact Estate Tax Gift Tax Generation-Skipping Tax 2 D E C E D E N T Testate - or - Intestate (dies with a valid complete will) (dies without a valid complete will) Executor is named by decedent to Administrator is appointed by court oversee probate process. to oversee probate process Property would be disposed of as provided in will. Under Illinois law property would be disposed of as follows: (a) If spouse and descendants: ½ to spouse ½ to descendants per stirpes (b) If no spouse but at least one descendant: all to descendants per stirpes (c) If spouse but no descendant: all to spouse (d) No spouse and no descendants: then all to parents, brothers, and sisters in equal shares (except (i) if one parent deceased, then surviving parent receives double portion, and (ii) descendants of deceased brother/sister receive share deceased brother/sister would have received) (e) If none of (a) - (d) applies: ½ to maternal grandparents (or their descendants per stirpes) and ½ to paternal grandparents (or their descendants per stirpes) 3 P R O P E R T Y Probate - or - Non-Probate (property owned solely by decedent (property in which decedent had an that does not automatically pass to interest but which automatically another at decedent’s death). Only passes to another at decedent’s probate property is subject to court's death) administration. Examples of Non-Probate Property: home owned as joint tenants or tenants by the entirety Life insurance with a designated beneficiary IRA and retirement plans with a designated beneficiary bank account "POD" property held in trust 4 Limitations on Power to Dispose of Property at Death Formal Limitations: Writing, signed, witnesses "Rule against Perpetuity" or Qualified Perpetual Trust Spousal Protection: Surviving spouse in Illinois has right to renounce a will and take 1/3 (or ½, if no living descendant of decedent) of decedent spouse's probate estate Surviving spouse has rights to certain qualified retirement plans Real property owned in community property states owned half by each spouse Private Arrangements: Prenuptial agreements may vary spouses' rights in each other's property Buy-sell agreements may limit power to transfer stock Societal Limitations: Federal Transfer (estate, gift, generation-skipping) Taxes State and Local Taxes 5 Will: a writing signed by the testator and witnessed by two or more credible persons. Outline of a "Simple" Will ARTICLE FIRST: Testator directs executor to pay taxes and expenses ARTICLE SECOND: Testator identifies her marital status and closest family members. ARTICLE THIRD: Testator gives personal and household effects to whomever testator chooses. ARTICLE FOURTH: Testator gives residue (or balance) of estate to whomever testator chooses. ARTICLE FIFTH: Testator names the executor and gives various powers to the executor. Signature 6 Outline of Will with Contingent Trust for Children ARTICLE FIRST: Testator directs executor to pay taxes and expenses and to coordinate with trustee. ARTICLE SECOND: Testator identifies testator's marital status and closest family members. ARTICLE THIRD: Testator gives personal and household effects to whomever testator chooses. ARTICLE FOURTH: Testator gives residue (or balance) of estate to testator's spouse outright and free of trust, if the spouse survives testator, otherwise to testator's brother John Doe as trustee. This property shall be held in trust upon the following terms: Option 1 (Single Fund): As of testator's death, trustee holds all the trust property as a single fund, using so much or all of income and principal of the trust for the children's health, support, education, and best interest, as the trustee deems advisable. Trust ends when there is no child under the age of 21 (or whatever age testator has chosen), and trustee distributes the trust property to testator's then living descendants per stirpes -or- Option 2 (Separate Shares): As of testator's death, trustee divides the trust estate in equal shares to create one share for each living child (and a share for descendants of any deceased child). Trustee will either be required to pay child the income from child's share or have discretion to use income for child's benefit. Trustee will typically have discretion to use principal of the child's share for the child's benefit. When the child reaches the age of 30 (or whatever age testator has chosen), the trust ends and child gets the property. -or- Option 3 (Hybrid): A combination of options 1 and 2. It starts as a single fund, but then separates into separate shares when there is no child under the age of 21 (or whatever age is chosen). ARTICLE FIFTH: Testator provides rules of trust operations and gives trustee various administrative and managerial powers. ARTICLE SIXTH: Testator nominates guardian for minor children or for disabled adult children. ARTICLE SEVENTH: Testator names the executor and grants executor same powers given trustee. Signature 7 Impact of Estate, Gift and Generation-Skipping Taxes Three Transfer Taxes*: (1) Estate Tax* is imposed on the transfer of property at death. Generally, all property owned by or subject to control of the decedent (probate as well as non- probate) is subject to tax. In general, for 2021, the first $11,700,000 is free of estate tax (to extent the similar gift tax-free amount is not used during lifetime). Each year, the estate tax-free amount is likely to change because it is indexed for inflation. Amounts passing to a spouse or a charity are tax-free. The maximum federal estate tax rate is 40%. Illinois will also impose a tax on estates in excess of $4,000,000 but some of the Illinois tax may be a deduction on the federal estate tax return. (2) Gift Tax* is imposed on the transfer of property by gift during lifetime. There is a $15,000 per donee annual exclusion from the gift tax (that is, I can give up to $15,000 to each of my five siblings each and every year without a tax, but a gift of $75,000 to one of them would be treated differently). Gifts to a spouse and charity are also tax-free, as are paying tuition and medical expenses for anyone. For 2021, the tax-free amount is $11,700,000 for lifetime gift transfers. The gift tax rates are the same as for the estate tax. (3) Generation - Skipping Tax* is imposed on certain transfers of property that cross two or more generations. There is an exemption equal to the estate tax-free amount. The GST tax is imposed as a flat tax rate equal to the maximum estate tax rate. * The tax-free amounts are always subject to change. For 2021, some believe that with a change in administrations and significant federal outlays, there may be a greater likelihood of a downward change in the tax-free amounts. 8 Outline of Will with $11,700,000 By-Pass Trust ARTICLE FIRST: Testator directs executor to pay taxes and expenses and to coordinate with trustee. ARTICLE SECOND: Testator identifies testator's marital status and closest family members. ARTICLE THIRD: Testator gives personal and household effects to whomever testator chooses. ARTICLE FOURTH: Testator gives residue (or balance) of estate to testator's spouse as trustee. This property shall be held in trust upon the following terms: A. If spouse survives, divide estate into two parts: the $11,700,000 tax-free amount and the excess, if any. The $11,700,000 shall be held in trust (often called “Family Trust”) as follows: (i) During spouse’s lifetime, all income of the Family Trust shall be paid to spouse and as much of the principal as is necessary for spouse’s health and support. (ii) At spouse’s death, the Family Trust will either continue in trust (see p. 7 for options for children) or will terminate and be distributed to beneficiaries free of tax. B. If spouse survives, the amount, if any, over $11,700,000 is either given outright to spouse or held in a Marital Trust. The terms are often similar to the Family Trust, but the Marital Trust is subject to estate tax at the death of the surviving spouse. C. If spouse doesn’t survive, testator will either distribute directly to beneficiaries or create trusts for their benefit. ARTICLE FIFTH: Testator provides rules of trust operations and gives trustee various administrative and managerial powers. ARTICLE SIXTH: Testator nominates guardian for minor children or for disabled adult children. ARTICLE SEVENTH: Testator names the executor and grants executor same powers given trustee. 9 Pour Over Will and Declaration of Trust With G.S.T.
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