Archive for November, 2010
In a few short weeks many more estates will be taxable. Here’s a summary of what the “sunset” of current tax law provides and what you need to know about how these changes will affect you and your family.
In 2001 Congress restructured the estate tax laws and passed a “temporary” ten year plan with a new estate tax structure.
In this ten year plan, the exemption for each person increased each year or two over the decade – until next year when EGTRRA sunsets and the tax rate goes back to what it was before EGTRRA
These annual changes to the exemption remind me of that well-known adage from Ben Franklin – “nothing is certain but death and taxes”. This has never been more true than now.
Here’s a recap of estate tax law for the past ten years. In 2001, the Economic Growth and Tax Relief Reconciliation Act (EGTRRA) imposed gift, estate and generation skipping taxes depending on the size of the gift or the size of your estate at death.
In 2009, the estate tax and generation skipping tax (GST) exemptions were both $3.5 million, the lifetime gift exemption was $1 million and the annual gift exclusion was $13,000.
On January 1, 2010, the estate and GST taxes were repealed. The gift tax rules remained unchanged except the gift tax rate dropped to 35%. But beginning in January – less than 5 weeks away- this same law (EGTRAA) provides that next year we go back to the past. For 2011, the estate tax exemption will only be $1 million. That means that many more estates will be paying estate taxes with a top rate of 55% of amounts over $1 million.
In the past ten years, tax experts and commentators almost without exception assumed that Congress would pass a new tax law to replace EGTRAA when it expired and that it would do what was originally intended – come up with a replacement for the law that reverts back to the $1 million exemption.
Now commentators have reversed those predictions and most think it is very unlikely that a lame duck Congress will pass a new tax bill before 2011. It is also clear that if and when a new bill is passed, we can count on more changes after that. This means, more than ever, you will need to have your estate plans reviewed regularly.
For some couples who formerly were in no danger of paying federal estate tax, taking advantage of a basic plan that gives each spouse $1 million exempt for taxes ( and therefore doubles their exemptions for the family) is adequate protection.
For other people, additional tax planning will be needed to “redirect” taxes to your favorite charity or family members.
Blended families face challenges and complexities in finding a way to leave assets to their spouses, stepchildren, children from previous marriages, ex-spouses, and other various people who become “family” when two existing families are combined.
A particularly painful, often overlooked, problem for blended families is: if you remarry, where are you buried after you pass away? Will your children reunite you with your first spouse? Or will your second spouse bury you in a new plot where he or she will join you in the future? Whichever the answer, there is a high probability there will be a fight about it!
Even the Kennedys Have This Problem.
Jacqueline Kennedy Onassis is buried next to John F. Kennedy, not Aristotle Onassis. Writer Jack Kerouac remains buried by his third wife, but only after his daughter from his second marriage lost her fight to disinherit him. Seem a little extreme? Some funeral directors claim fights such as this occur at least once a week. Over 40% of marriages today have a spouse who has been previously married.
In a recent situation, a son was fighting with his father’s new spouse about whether to bury his dad next to his deceased mother, or in a plot where his new stepmother would one day rest beside him. In Michigan, where this case occurred, the law lets the current spouse make the burial decisions, so the stepmother won. However, the funeral director informed the son that once his step mom passes away, he becomes his father’s next of kin and can legally disinter him and move the body.
The son promptly told his stepmother that she could bury his dad wherever she likes, but he will move the body as soon as she dies. Realizing her loss of control, the stepmom agreed to let her husband be buried next to his first wife, and refused to attend the funeral. This example shows how complicated blended family issues can become.
The Law Preempts?
Even people who write down burial instructions can get foiled by the law. The surviving spouse is allowed to make the burial decision in 60% of states. Some states have passed laws to allow written burial instructions by the decedent to prevail. Illinois and Kansas let you designate someone to make your funeral arrangements for you. This was partially in response to situations where gay lifetime partners had no legal ability to influence funeral arrangements.
To complicate matters, religious beliefs can also direct burial arrangements. For example, the Jewish custom is that if a deceased person does not leave any instructions, they should be buried with the person with whom they had children.
To some, being buried in a military cemetery carries great prestige and honor. The family of a veteran is allowed to be buried in the cemetery; however, if the veteran remarries, the first spouse may lose that right even if his or her children are buried there.
A Growing Issue
As the number of blended families continues to grow, this issue will become more and more common and will continue to tear families apart. Some current suggestions from funeral directors are:
Cremation, which enables the deceased’s remains to be divided between spouses and children;
Have the new spouse purchase a burial plot in the same vicinity as the deceased and his/her previous spouse;
Leave written instructions (though not always legally binding, the families will often adhere to them).
Dealing with these often overlooked issues in a thoughtful and caring way will enable blended families to think them through before they result in hurtful confrontations.
While her notoriety was scandal for the tabloids, the starlet’s estate planning battles and mistakes can be used as a teaching tool with clients.
Anna Nicole Smith, former exotic dancer turned fashion model, Playboy Playmate and reality TV start died of a drug overdose in 2007. Though Smith is gone, she hasn’t faded from the headlines. News agency Reuters recently reported that her estate continues a longstanding fight with the estate of her late oil baron husband.
Will Neglects to Mention Wife
In 1994, Smith married Texas billionaire J. Howard Marshall. She was 26, and he was 89. He died 14 months later, leaving an estate worth $1.6 billion. Marshall’s will left nearly all his money to his son Pierce Marshall and nothing to Smith. She challenged the will, claiming he promised her more than $300 million.
This month the Supreme Court said it would decide whether Smith’s estate deserves part of Marshall’s estate. The court is expected to hear arguments early next year, with a decision likely by June.
Everyone’s Dead but the Lawyers
This marks the second time the high courts has agreed to consider the case. The earlier ruling in 2006 only addressed whether federal courts can decide Smith’s claims, not the merits of her arguments.In March, a U.S. Appeals Court in California ruled against Smith’s estate. It was a victory for the estate of the late Pierce Marshall, who died in 2006.
The current issue for the Supreme Court in the latest appeal involves whether the appeals court improperly limited the power of federal bankruptcy judges in considering such claims.
And Baby Makes Beneficiary?
Smith’s will, drawn up in April 2001, named her son Daniel as the sole beneficiary of her estate, specifically excluded other children, and named her lawyer, Howard K. Stern as the executor. Daniel had died before Danielynn was born so she ended up being the default sole heir. The now 4-year old child stands to benefit if the Supreme Court rules in Smith’s favor on the claim against Marshall’s fortune.
Remarriage is commonplace these days, even for older seniors. From the legal battle over the oil tycoon’s estate to the lack of planning for her newborn daughter, this real-life soap opera is full of lessons for non-celebrities as well.