Under current federal law most Americans do not have a federal estate tax problem. Under the 2010 Tax Relief Act (formally abbreviated as TRUIRJCA 2010), every individual has a $5 million federal estate tax exemption. If you do not need that entire amount, the balance of your exemption is portable to your surviving spouse when they later die. So for married couples, it’s fairly easy to shelter $10 million from federal estate taxation with little or no planning done in advance.
Intestate
If you fail to plan during during your life and die without creating a will you are deemed to have died “intestate”. Each state has laws that dictate how an intestate person’s property will be distributed leaving you with absolutely no control. Property may go to people you don’t want and in ways that you never intended. Dying intestate means no tax planning was done on your behalf.
Will
A will ‘ or a ‘last will and testament’ ‘ is a legal document that tells the probate court how you want your property distributed after you die, and who has the power and responsibility to wrap up your affairs. Through the probate process the court will give the ‘executor’ of your will the authority to gather all of your property, pay any remaining creditors’ bills, and distribute your remaining property as you specify in your will. Because the will takes effect only after a court determines that it is a valid document, a judge must act before your executor can step in and manage your estate.
Probate
Probate is a court-supervised process for distributing the individually owned assets of a deceased person. Assets are distributed to beneficiaries in accordance to the instructions written in the person’s will.
Revocable Living Trust
Perhaps the most common type of trust is the revocable living trust. As the name implies, revocable trusts are fully revocable at the request of the trust maker. Thus, assets transferred (or funded) to a revocable trust remain within the control of the trust maker; the trust maker (or trust makers if it is a joint revocable trust) can simply revoke the trust and have the assets returned. Revocable trusts can be excellent vehicles for disability planning, privacy, and probate avoidance.
Maintenance
Your estate plan is a snapshot of you, your family, your assets and the tax laws in effect at the time it was created. All of these change over time, and so should your plan. It is unreasonable to expect the simple will written when you were a newlywed to be effective now that you have a growing family, or now that you are divorced from your spouse, or retired and have an ever increasing swarm of grandchildren! Over the course of your lifetime, your estate plan will need check-ups, maintenance, tweaking, maybe even replacing. So, how do you know when it’s time to give your estate plan a check-up? Generally, any change in your personal, family, financial or health situation, or a change in the tax laws, could prompt a change in your estate plan.