Do You Need an Estate Plan?

I’m often asked this question: "With the federal estate tax exemption amounts being so high, do I really need an estate plan?" The answer I give is "Absolutely yes!"

You might need an estate plan for reasons you have not fully considered. Let’s take a look:

  • Avoid taxes. The main reason a lot of people have an estate plan is a desire to save on taxes. In 2021, individuals may pass $11.7 million during their lifetime or at death without incurring any federal estate tax, commonly referred to as a death tax. If you happen to be married, your spouse has the same exemption amount, and both exemption amounts are portable. Portability means that if a spouse dies without using his or her full exemption, the remainder is available to be added to the surviving spouse’s exemption. It is important to file a form 706 estate tax return at the time of the first spouse’s death in order to elect portability and pass on that spouse’s unused estate tax exemption amount. While many people won’t have a federal estate tax problem, this exemption amount is subject to change under recently proposed tax law and, even if not, is scheduled to revert to an approximate $6 million exemption per person in 2026. However, simply covering estate taxes alone doesn’t give you a good reason to neglect preparing an estate plan.
  • Choose who inherits your assets. This is a key reason! You decide and direct by a legal document how the assets of your estate will pass and to whom. If you aren’t concerned about that and don’t have a will prepared, don’t worry. North Carolina has one written for you. I sincerely doubt, though, that you’d like how it dictates where, to whom and in what quantities your assets would pass. You want to direct how your estate passes and who your beneficiaries will be. Lastly, please consider that your specific instructions will help prevent family members from fighting over assets, which leads to discord and alienation.
  • Protect your family if you have young children. Having a plan in place is important to help in the unlikely tragedy of your dying young with young children. Your plan will dictate not only how they are provided for financially but, more importantly, who will be guardians in raising them. It is also extremely important to consult with the potential guardian of your children and get their blessing before naming them in your document.
  • Protect your adult children from themselves. None of us like to admit this possibility, yet it happens. Perhaps your child or their spouse spends money wastefully. Maybe they have a gambling problem or have become addicted to alcohol or other drugs. It could simply be that they are not capable as money managers. No matter what the issue, you can design an estate plan that helps ensure that funds are professionally managed and distributed. Your estate plan can help keep them financially solvent and protected.
  • Establish protections for yourself. You can arrange for representatives to be empowered to act on your behalf if you become incapacitated or incompetent. When you create a durable power of attorney and health care power of attorney, you select the individual(s) to represent you in those roles, should that become necessary. This way, you’ve already selected who will help you when you are no longer able to make legal or health care decisions on your own.
  • Avoid probate. For some, privacy is an important issue. Different types of trusts can be used to protect privacy by avoiding probate. Since a will becomes a public document during probate, anyone can see your plan of asset distribution. Alternatively, a trust is a private instrument and can shield asset distribution from the public eye. This is particularly helpful when a small, privately held company is in effect and its resulting ownership and organizational structure are outlined in the estate plan.

Great! Now you have established an estate plan, or maybe you already had one in place. There is another important point to remember: Keep your estate plan documents up to date. Due to potential and scheduled tax law changes and estate law changes, this is vital in order to keep your plan current and fulfilling of your wishes.

An example of this was when a properly executed North Carolina will drafted in 1997 was recently submitted to the clerk of court for probate. The will, however, was not self-proving, meaning all the signatures had not been notarized. Therefore, at least two of the three witnesses would be required to personally verify their signatures to the clerk of court.

Unfortunately, two of the three witnesses had died. In order to meet this requirement, an individual had to be found who could either attest to the deceased witnesses’ signatures in an appearance before the clerk of court or sign a notarized affidavit to that effect. Needless to say, this caused undue hardship and extra time. This could have easily been avoided with a review of the will and a revised update allowing the will to be self-proving.

Estate planning will always require time and effort. It is vital for the well-being of your family and for your own peace of mind. Please contact your advisor to see how we can assist in this important process. Also, read my other article on how to talk to your children about your estate plan.

Roger A. James, Jr., JD, CTFA
Partner, Director of Trust

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