Contrary to popular belief, estate planning involves much more than just drawing up a Will. Your plan should also include changing your will periodically to accommodate changes to your family structure (i.e., marriage, divorce, adoption, etc.), changes to your assets (acquiring new assets, selling off existing assets, etc.), changes to how your assets distributed after your death, and changes to probate and other laws pertaining to the distribution of your assets. While, distribution of your assets upon your death is an important part of your estate plan, effectively planning your estate involves much more than that. Other issues to consider in your estate plan include:
- Develop a plan to to minimize estate tax liability and avoid probate as much as possible, as well as preserve and increase the value of your estate so you can pass as much of your wealth as possible to your intended heirs.
- Planning what medical treatment you will receive if you ever become incapacitated to the point that you are unable to communicate your wishes, as well as planning on what medical facility will provide the care and naming the person who will communicate your wishes to physicians and other medical staff.
- Planning on who will handle your financial, personal, business and legal affairs if you ever become incapacitated, as well as how your affairs will be handled. Planning on how children and other loved ones will be provided for in the event you are no longer able to provide for them due to your incapacitation or death.
- Drafting and periodically updating your final arrangements document to express your death and burial preferences, as well as setting up a trust fund and/or pre-need plan to pay for them (saving your loved ones from the anguish of having to make these decisions in a bereaved state and being financially burdened with the expenses involved).
- Administration of your estate after your death.
The list can continue for quite some time, which is why we strongly suggest that you retain the services of a reputable estate planning lawyer to help you formulate the best estate plan for your needs and periodically update it to accommodate changes in laws, changes in your family structure, changes in your assets, changes to decisions you've made regarding your health care, or any changes you may want to make in how you want your estate distributed and/or administered.
WHAT IS THE ESTATE TAX?
All property that a person has at the time of his/her death is subject to tax. The estate tax is payable by your estate and it is usually paid before property is distributed to the beneficiaries of the estate. Barring an extension, the estate tax is due within nine (9) months after your death. Everyone's estate is subject to the estate tax; however, there is: (1) an unlimited estate tax marital deduction when property is passed to a surviving spouse, (2) a credit which enables every individual to dispose of a certain indexed dollar amount of property, and (3) an exclusion for disposition of property to a charitable organization. The unlimited marital deduction, charitable deduction and transfer tax credit enables most estates to be distributed without incurring any federal estate tax. In addition, there are many ways in which you can structure your estate - to take advantage of available exclusions, exemptions, credits and deductions - so that the tax bite is reduced. Massachusetts also has an estate tax which reaches smaller estates and must be taken into consideration.
WHAT IS THE GIFT TAX?
A federal tax (but not a Massachusetts tax) is imposed upon all gifts from an individual to others during his/her lifetime. This tax is incurred whenever a gift is made. There are exceptions to the imposition of the federal gift tax, such as: (1) every individual is allowed to make gifts of up to $14,000 (indexed) per donee per year free from gift tax (a husband and wife each has this annual exemption so a married couple can gift up to $28,000 without incurring any tax), (2) gifts to pay tuition to a qualified educational organization or to persons who qualify as a provider of medical care made on behalf of another individual are excluded, (3) an unlimited gift tax marital deduction when property is transferred to a surviving spouse of the donor, and (4) a unified credit which enables every individual to dispose of a certain amount of property by gift during lifetime.
As retirement age approaches, most business owners hope to transfer their businesses, whether to a family member or to an outside buyer, in such a way as to provide for retirement and preserve the business as a going concern. Transferring ownership and control to a succeeding generation can be a lengthy and difficult process, balancing the owners' and the successors' needs while keeping in mind the best interests of the business.
Any business owner that wants his or her business to survive past the current generation needs to have a succession plan. Unfortunately, many business owners realize they need succession planning, but hesitate to begin the process. In fact, among the mistakes made in business succession planning, the most common is simply waiting too long to start. The reasons vary, but the results are often the same following the death or retirement of the owner: forced liquidation of the business.
Although the complexity and length of succession plans obviously vary from business to business, most require at least five years to plan and implement in full. Putting the process off, to avoid difficult decisions, can narrow the choices available and lead to serious business or tax consequences. Moreover, the difficulties in family or employee rivalry that cause business owners to procrastinate are merely postponed; if planning is delayed they will inevitably arise and play themselves out without the business owner's input.
The overlapping complexities of business succession planning often requires the skills of several outside professionals such as accountants, bankers, insurance advisors and business consultants, as well as attorneys. Proper planning can minimize or eliminate the various taxes that impact the succession, provide for retirement and preserve the business itself.
If your business is incorporated and you are selling out to a larger corporation, it may be possible to defer the tax due on the sale by structuring the sale as a corporate reorganization and accepting the purchaser's stock in exchange for your own business's stock or assets. If you comply with the extensive rules for these types of transactions, you will not be taxed on the value of the stock you receive until you sell it. If you receive other property in addition to the stock, however, you will have to recognize taxable gain on this amount.
The process of forming a tax exempt organization can be complex and confusing. Furthermore, tax exempt status does not necessarily mean charitable status. To qualify for charitable status under the Internal Revenue Code (§ 501(c)(3)), your organization must be organized for one or more of the purposes specifically designated in the Code, namely: charitable; religious; educational; scientific; literary; testing for public safety; fostering national or international amateur sports competition; or the prevention of cruelty to children or animals. Additional tax exemptions exist under separate sections of the IRC for other groups, including: labor unions, chambers of commerce, social and recreational clubs, fraternal societies, civic leagues, credit unions, farmers' coops, mutual insurance companies, and legal service organizations.
If obtained, the recognition of your organization as a 501(c)(3) tax exempt entity by the Internal Revenue Service brings a host of benefits, including:
- Tax free income - Income earned by the organization is tax- free.
- Tax deductible donations - Donors can make charitable contributions and receive tax deductions on their tax returns.
- Employee benefits - Employees will be entitled to various fringe benefits like group life insurance, health insurance, corporate pension plans etc.
- Grants - The organization will be qualified to receive private and public grant money.
- Postage - Lower postage rates on corporate mailings.