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Have You and Your Spouse Coordinated your Estate Plans?
When it comes to estate planning, married couples often assume that simply naming each other in their wills or designating each other as beneficiaries is sufficient. However, unintended consequences can result if you and your spouse fail to properly coordinate your estate plans.
Examples include conflicting provisions, unexpected tax consequences or assets passing in ways that don’t align with your shared wishes. Coordinated estate planning can help ensure that both your and your spouse’s documents and strategies work together harmoniously, protecting your legacies and the financial well-being of your loved ones.
Boost tax efficiency
One of the primary benefits of coordinating estate plans is tax efficiency. By working together, you and your spouse can take full advantage of the marital deduction and applicable gift and estate tax exemptions. This can help minimize the overall tax burden on both estates.
Coordination becomes especially important if you have a blended family, where children from previous relationships are involved, or in situations with complex assets like business interests or multiple properties. Clear and consistent planning that factors in tax consequences can help ensure that all beneficiaries are treated fairly and that your intentions are honored.
Streamline administration
Another benefit of coordinated planning is it helps streamline the administration of the estate. If one spouse becomes incapacitated or passes away, a well-integrated plan can reduce the administrative burden on the surviving spouse, avoid disputes and accelerate the transfer of assets.
Coordinating plans also allow you and your spouse to make joint decisions about health care directives, powers of attorney and guardianship of minor children, ensuring that both of your wishes are respected and consistently documented.
Follow your state’s law
Keep in mind that state law generally governs estate matters. Therefore, state law determines if your property is community property, separate property or tenancy by the entirety.
For instance, California is a community property state. That generally means that half of what you own is your spouse’s property and vice versa, though there are some exceptions.
Be proactive
Married spouses who coordinate their estate plans can avoid pitfalls and maximize the benefits of thoughtful planning. Taking these steps proactively can strengthen your and your spouse’s financial security and shared legacy. FMD can help ensure that all elements of your plans are aligned and up to date.
Why Choosing the Right Trustee Matters
It’s not uncommon for an estate plan to contain multiple trusts. They can enable you to hold assets for and transfer them to beneficiaries, avoid probate, and possibly reduce estate tax exposure. When drafting a trust, you must appoint a trustee. This can be an individual or a financial institution.
Before choosing a trustee, know that the job comes with many responsibilities — from keeping careful records and making smart investment choices to staying fair and keeping beneficiaries informed. A trustee must always put the beneficiaries’ interests first and handle everything with care, honesty and good judgment.
What are a trustee’s tasks?
Trustees have significant legal responsibilities, primarily related to administering the trust on behalf of beneficiaries according to the terms of the trust document. However, the role can require many different types of tasks. For example, even if a tax professional is engaged to prepare tax returns, the trustee is responsible for ensuring that they’re completed correctly and filed on time.
One of the more challenging trustee duties is to accurately account for investments and distributions. When funds are distributed to cover a beneficiary’s education expenses, for example, the trustee should record both the distribution and the expenses covered. Beneficiaries are allowed to request an accounting of the transactions at any time.
The trustee needs to invest assets within the trust reasonably, prudently and for the long-term sake of beneficiaries. And trustees must avoid conflicts of interest — that is, they can’t act for personal gain when managing the trust. For instance, trustees typically can’t purchase assets from the trust. The trustee probably would prefer a lower purchase price, which would run counter to the best interests of the trust’s beneficiaries.
Finally, trustees must be impartial. They may need to decide between competing interests while still acting within the terms of the trust document. An example of competing interests might be when a trust is designed to provide current income to a first beneficiary during his or her lifetime, after which the assets pass to a second beneficiary. Although the first beneficiary would probably prefer that the trust’s assets be invested in income-producing securities, the second would likely prefer growth investments.
What qualities should you look for?
Several qualities help make someone an effective trustee, including:
A solid understanding of tax and trust law,
Investment management experience,
Bookkeeping skills,
Integrity and honesty, and
The ability to work with all beneficiaries objectively and impartially.
And because some trusts continue for generations, trustees may need to be available for an extended period. For this reason, many people name a financial institution or professional advisor, rather than a friend or family member, as trustee.
Consider all your options
Naming a trustee is an important decision, as this person or institution will be responsible for carrying out the terms outlined in the trust documents. FMD can help you weigh the options available to you.
Members of the “Sandwich Generation” Face Unique Estate Planning Circumstances
Members of the sandwich generation — those who find themselves simultaneously caring for aging parents while supporting their own children — face unique financial and emotional pressures. One critical yet often overlooked task amid this juggling act is estate planning.
How can you best handle your parents’ financial affairs in the later stages of life? Consider incorporating their needs into your estate plan while tweaking, when necessary, the arrangements they’ve already made. Let’s take a closer look at four critical steps.
1. Make cash gifts to your parents and pay their medical expenses
One of the simplest ways to help your parents is to make cash gifts to them. If gift and estate taxes are a concern, you can take advantage of the annual gift tax exclusion. For 2025, you can give each parent up to $19,000 without triggering gift taxes or using your lifetime gift and estate tax exemption. The exemption amount for 2025 is $13.99 million.
Plus, payments to medical providers aren’t considered gifts, so you can make such payments on your parents’ behalf without using any of your annual exclusion or lifetime exemption amounts.
2. Set up trusts
There are many trust-based strategies you can use to assist your parents. For example, if you predecease your parents, your estate plan might establish a trust for their benefit, with any remaining assets passing to your children when your parents die.
Another option is to set up trusts during your lifetime that leverage your $13.99 million gift and estate tax exemption. Properly designed, these trusts can remove assets — together with all future appreciation in their value — from your taxable estate. They can provide income to your parents during their lives, eventually passing to your children free of gift and estate taxes.
3. Buy your parents’ home
If your parents have built up significant equity in their home, consider buying it and leasing it back to them. This arrangement allows your parents to tap their home’s equity without moving out while providing you with valuable tax deductions for mortgage interest, depreciation, maintenance and other expenses.
To avoid negative tax consequences, pay a fair price for the home (supported by a qualified appraisal) and charge your parents fair-market rent.
4. Plan for long-term care expenses
The annual cost of long-term care (LTC) can easily reach six figures. Expenses can include assisted living facilities, nursing homes and home health care.
These expenses aren’t covered by traditional health insurance policies or Social Security, and Medicare provides little, if any, assistance. To prevent LTC expenses from devouring your parents’ resources, work with them to develop a plan for funding their health care needs through LTC insurance or other investments.
Don’t forget about your needs
As part of the sandwich generation, it’s easy to lose sight of yourself. After addressing your parents’ needs, focus on your own. Are you saving enough for your children’s college education and your own retirement? Do you have a will and power of attorney in place for you and your spouse?
With proper planning, you’ll make things less complex for your children so they might avoid some of the turmoil that you could be going through. Contact FMD for additional planning techniques if you’re a member of the sandwich generation.
Factor in GST Tax when Transferring Assets to your Grandchildren
If you’re considering making asset transfers to your grandchildren or great grandchildren, be sure your estate plan addresses the federal generation-skipping transfer (GST) tax. This tax ensures that large estates can’t bypass a round of taxation that would normally apply if assets were transferred from parent to child, and then from child to grandchild.
Because of the complexity and potential tax liability, careful estate planning is essential when considering generation-skipping transfers. Trusts are often used as a strategic vehicle to allocate the GST tax exemption amount effectively and ensure that assets pass tax-efficiently to younger generations.
ABCs of the GST tax
The GST tax applies at a flat 40% rate — in addition to otherwise applicable gift and estate taxes — to transfers that skip a generation. “Skip persons” include your grandchildren, other relatives who are more than one generation below you and unrelated people who are more than 37½ years younger than you. There’s an exception, however, for a grandchild whose parent (your child) predeceases you. In that case, the grandchild moves up a generation and is no longer considered a skip person.
Even though the GST tax enjoys an annual inflation-adjusted lifetime exemption in the same amount as the lifetime gift and estate tax exemption (currently, $13.99 million), it works a bit differently. For example, while the gift and estate tax exemption automatically protects eligible transfers of wealth, the GST tax exemption must be allocated to a transfer to shelter it from tax.
3 transfer types trigger GST tax
There are three types of transfers that may trigger the GST tax:
A direct skip — a transfer directly to a skip person that is subject to federal gift and estate tax,
A taxable distribution — a distribution from a trust to a skip person, or
A taxable termination — such as when you establish a trust for your children, the last child beneficiary dies and the trust assets pass to your grandchildren.
The GST tax doesn’t apply to transfers to which you allocate your GST tax exemption. In addition, the GST tax annual exclusion — which is similar to the gift tax annual exclusion — allows you to transfer up to $19,000 per year (for 2025) to any number of skip persons without triggering GST tax or using up any of your GST tax exemption.
Transfers to a trust qualify for the annual GST tax exclusion only if the trust 1) is established for a single beneficiary who’s a grandchild or other skip person, and 2) provides that no portion of its income or principal may be distributed to (or for the benefit of) anyone other than that beneficiary. Additionally, if the trust doesn’t terminate before the beneficiary dies, any remaining assets will be included in the beneficiary’s gross estate.
If you wish to make substantial gifts, either outright or in trust, to your grandchildren or other skip persons, allocate your GST tax exemption carefully. Turn to FMD for answers regarding the GST tax.
Undoing an Irrevocable Life Insurance Trust is Possible
Life insurance can be a powerful estate planning tool. Indeed, it creates an instant source of wealth and liquidity to meet your family’s financial needs after you’re gone. And to shield the proceeds from potential estate taxes, thus ensuring more money for your loved ones, many people transfer their policies to irrevocable life insurance trusts (ILITs).
But what if you have an ILIT that you no longer need? Does its irrevocable nature mean you’re stuck with it forever? Not necessarily. You may have options for pulling a life insurance policy out of an ILIT or even unwinding the ILIT entirely.
Benefits of an ILIT
An ILIT shields life insurance proceeds from estate tax because the trust, rather than the insured, owns the policy. Note, however, that under the “three-year rule,” if you transfer an existing policy to an ILIT and then die within three years, the proceeds remain taxable. That’s why it’s preferable to have the ILIT purchase a new policy, if possible, rather than transfer an existing policy to the trust.
The key to removing the policy from your taxable estate is to relinquish all “incidents of ownership.” That means, for example, you can’t retain the power to change beneficiaries; assign, surrender or cancel the policy; borrow against the policy’s cash value; or pledge the policy as security for a loan (although the trustee may have the power to do these things).
Reasons to undo an ILIT
Generally, there are two reasons you might want to undo an ILIT: 1) you no longer need life insurance, or 2) you still need life insurance but your estate isn’t large enough to trigger estate tax, and you’d like to eliminate the restrictions and expense associated with the ILIT. Although your ability to undo an ILIT depends on the circumstances, potential options include:
Allowing the insurance to lapse. This may be a viable option if the ILIT only holds a term life insurance policy that you no longer need. You simply stop making contributions to the trust to cover premium payments. Technically, the ILIT continues to exist, but once the policy lapses it owns no assets. It’s possible to allow a permanent life insurance policy to lapse, but other options may be preferable, especially if the policy has a significant cash value.
Swapping the policy for cash or other assets. Many ILITs permit the grantor to retrieve a policy from the ILIT by substituting cash or other assets of equivalent value. If allowed, you may be able to gain access to a policy’s cash value by swapping it for illiquid assets of equivalent value.
Surrendering or selling the policy. If your ILIT holds a permanent insurance policy, the trust might surrender it, which will preserve its cash value but avoid the need to continue paying premiums. Alternatively, if you’re eligible, the trust could sell the policy in a life settlement transaction.
Distributing the trust assets. Some ILITs give the trustee the discretion to distribute trust funds (including the policy’s cash value, other trust assets or possibly the policy itself) to your beneficiaries, such as your spouse or children. Typically, these distributions are limited to funds needed for “health, education, maintenance and support.”
These are some, but by no means all, of the strategies that may be available to unwind an ILIT. Contact FMD for additional details.
Need to Modify an Existing Irrevocable Trust? Decant It
“Decanting” an irrevocable trust allows a trustee to use his or her distribution powers to transfer assets from one trust into another with different — often more favorable — terms. Much like decanting wine to separate it from sediment, trust decanting “pours” assets into a new vessel, potentially improving clarity and control.
While the original trust must be irrevocable, meaning its terms typically can’t be changed by the grantor, decanting offers a lawful method for trustees to update or adjust those terms under certain conditions.
Decanting Q&As
There are several reasons a trustee might consider decanting. For example, the original trust may lack flexibility to deal with changing tax laws, family circumstances or beneficiary needs. Decanting can allow for the removal of outdated provisions, the addition of modern administrative powers or even a change in the trust’s governing law to a more favorable jurisdiction. It may also provide a way to correct drafting errors, protect assets from creditors or introduce special needs provisions for a beneficiary who becomes disabled.
However, decanting laws vary dramatically from state to state, so it’s important to familiarize yourself with your state’s rules and evaluate their effect on your estate planning goals. Here are several common questions and answers regarding decanting a trust:
Q: If your trust is in a state without a decanting law, can you benefit from another state’s law?
A: Generally yes, but to avoid any potential complaints by beneficiaries it’s a good idea to move the trust to a state whose law specifically addresses this issue. In some cases, it’s simply a matter of transferring the existing trust’s governing jurisdiction to the new state or arranging for it to be administered in that state.
Q: Does the trustee need to notify beneficiaries or obtain their consent?
A: Decanting laws generally don’t require beneficiaries to consent to a trust decanting and several states don’t even require that beneficiaries be notified. Where notice is required, the specific requirements are all over the map: Some states require notice to current beneficiaries while others also include contingent or remainder beneficiaries. Even if notice isn’t required, notifying beneficiaries may help stave off potential disputes in the future.
Q: What is the trustee’s authority?
A: When exploring decanting options, trustees should consider which states offer them the greatest flexibility to achieve their goals. In general, decanting authority is derived from a trustee’s power to make discretionary distributions. In other words, if the trustee is empowered to distribute the trust’s funds among the beneficiaries, he or she should also have the power to distribute them to another trust. But state decanting laws may restrict this power.
Decanting can be complicated
Because of its complexity, decanting an irrevocable trust should be approached with careful legal and tax guidance. When used appropriately, it can be a strategic way to modernize an inflexible trust and better serve your long-term goals as well as your beneficiaries. Consult FMD before taking action.
There’s No Time like the Present to have Your Will Drafted
When a person considers an “estate plan,” he or she typically thinks of a will. And there’s a good reason: A well-crafted, up-to-date will is the cornerstone of an estate plan. Importantly, a will can help ease the burdens on your family during a difficult time. Let’s take a closer look at what to include in a will.
Start with the basics
Typically, a will begins with an introductory clause identifying yourself and where you reside (city, state, county, etc.). It should also state that this is your official will and replaces any previous wills.
After the introductory clause, a will generally explains how your debts are to be paid. The provisions for repaying debt typically reflect applicable state laws.
You may also use a will to name a guardian for minor children. To be on the safe side, name a backup in case your initial choice is unable or unwilling to serve as guardian or predeceases you.
Make bequests
One of the major sections of your will — and the one that usually requires the most introspection — divides up your remaining assets. Outside your residuary estate, you’ll likely want to make specific bequests of tangible personal property to designated beneficiaries. For example, you might leave a family heirloom to a favorite niece or nephew.
When making bequests, be as specific as possible. Don’t simply refer to jewelry or other items without describing them in detail. This can avoid potential conflicts after your death.
If you’re using a trust to transfer property, identify the property that remains outside the trust, such as furniture and electronic devices. Typically, these items won’t be suitable for inclusion in a trust.
Appoint an executor
Name your executor — usually a relative or professional — who’s responsible for administering your will. Of course, this should be a reputable person whom you trust.
Also, include a successor executor if the first choice can’t perform these duties. If you’re inclined, you may use a professional as the primary executor or as a backup.
Follow federal and state laws
Be sure to meet all the legal obligations for a valid will in the applicable state and keep it current. Sign the will, putting your initials on each page, with your signature attested to by witnesses. Include the addresses of the witnesses in case they ever need to be located. Don’t use beneficiaries as witnesses. This could lead to potential conflicts of interest.
Keep in mind that a valid will in one state is valid in others. So if you move, you won’t necessarily need a new will. However, there may be other reasons to update it at that time. Contact FMD with any questions regarding your will.
Sharing Your Estate Plan’s Details with Family has Pros and Cons
When it comes to estate planning, one important decision many people struggle with is whether to share the details of their plans with family members. There’s no one-size-fits-all answer — it largely depends on your goals and your family’s dynamics. However, thoughtful communication can go a long way in reducing confusion and conflict after your death. Let’s take a closer look at the pros and cons of sharing your estate planning decisions with your family.
The pros
Sharing the details of your estate plan provides many benefits, including:
Explaining your wishes. When they design their estate plans, most people want to treat all their loved ones fairly. But “fair” doesn’t always mean “equal.” The problem is that your beneficiaries may not understand that without an explanation.
For example, suppose you have adult children from a previous marriage and minor children from your second marriage. Treating both sets of children equally may not be fair, especially if the adult children are financially independent and the younger children still face significant living and educational expenses. It may make sense to leave more of your wealth to your younger children. And explaining your reasoning upfront can go a long way toward avoiding hurt feelings or disputes.
Obtaining feedback. Sharing your plans with loved ones allows them to ask questions and provide feedback. If family members feel they’re being treated unfairly, you may wish to discuss alternatives that better meet their needs while still satisfying your estate planning objectives.
Streamlining estate administration. Sharing details of your plan with your executor, trustees and any holders of powers of attorney will enable them to act quickly and efficiently when the time comes. This is particularly important for people you’ve designated to make health care decisions or handle your financial affairs if you become incapacitated.
The cons
There may be some disadvantages to sharing the details of your plan, including:
Strained relationships. Some loved ones may be disappointed when they learn the details of your estate plan, which can lead to strained relationships. Keeping your plans to yourself allows you to avoid these uncomfortable situations. On the other hand, it also deprives you of an opportunity to resolve such conflicts during your lifetime.
Encouragement of irresponsible behavior. Some affluent parents worry that the promise of financial independence may give their children a disincentive to behave in a financially responsible manner. They may not pursue higher education, remain gainfully employed and generally lead productive lives. Rather than keeping your children’s inheritance a secret, a better approach may be to use your estate plan to encourage desirable behavior.
Don’t forget to factor in your state’s laws
As you think over how much you wish to disclose to your loved ones about your estate plan, be sure to consider applicable state law. The rules governing what a trustee must disclose to beneficiaries about the terms of the trust vary from state to state. Some states permit so-called “quiet trusts,” also known as “silent trusts,” which make it possible to keep the trust a secret from your loved ones.
Other states require trustees to inform the beneficiaries about the trust’s existence and terms, often when they reach a certain age. For example, trustees may be required to provide beneficiaries with a copy of the trust and an annual accounting of its assets and financial activities. However, many states allow you to place limits on the information provided to beneficiaries.
Sharing is caring
Ultimately, a well-crafted estate plan should speak for itself. But open communication, when done thoughtfully, can support your plan’s success and give your loved ones clarity and peace of mind. Contact FMD with questions.
If Your Estate Includes IP, Consider these Planning Strategies
Over your lifetime, you’ve likely accumulated various tangible assets. These may include automobiles, personal property or art. It’s relatively easy to account for such assets in your estate plan, but what about intangible assets, such as intellectual property (IP)? These assets behave differently from other types of property, so careful planning is required to preserve their value for your family.
What is IP?
IP generally falls into one of four categories: patents, copyrights, trademarks and trade secrets. Let’s focus on only patents and copyrights, creatures of federal law intended to promote scientific and creative endeavors by providing inventors and artists with exclusive rights to benefit economically from their work for a certain period.
In a nutshell, patents protect inventions. To obtain patent protection, inventions must be novel, “nonobvious” and useful. The two most common patent types are utility and design patents:
A utility patent may be granted to someone who “invents or discovers any new and useful process, machine, manufacture or composition of matter, or any new useful improvement thereof.”
A design patent is available for a “new, original and ornamental design for an article of manufacture.”
Under current law, a utility patent protects an invention for 20 years from the patent application filing date. A design patent lasts 15 years from the patent issue date. For utility patents, it typically takes at least a year to a year and a half from the date of filing to the date of issue.
When it comes to copyrights, they protect the original expression of ideas that are fixed in a “tangible medium of expression,” typically in the form of written works, music, paintings, sculptures, photographs, sound recordings, films, computer software, architectural works and other creations. Unlike patents, which the U.S. Patent and Trademark Office must approve, copyright protection kicks in as soon as a work is fixed in a tangible medium.
For works created in 1978 or later, an author-owned copyright lasts for the author’s lifetime plus 70 years. A “work-for-hire” copyright expires 95 years after the first publication date or 120 years after the date the work is created, whichever is earlier. More complex rules apply to works created before 1978.
What are the estate planning considerations?
For estate planning purposes, IP raises two important questions:
What’s the IP worth?
How should it be transferred?
Valuing IP is a complex process. So it’s best to obtain an appraisal from a professional with experience valuing this commodity.
After you know the IP’s value, it’s time to decide whether to transfer it to family members, colleagues, charities or others through lifetime gifts or bequests after your death. The gift and estate tax consequences will likely affect your decision. However, you also should consider your income needs and who’s in the best position to monitor your IP rights and take advantage of their benefits.
For example, if you continue to depend on the IP for your livelihood, hold on to it until you’re ready to retire or no longer need the income. You also might want to sell or retain ownership of the IP if your children or other transferees lack the desire or wherewithal to take advantage of its economic potential and monitor and protect it against infringers.
Whichever strategy you choose, it’s important to plan the transaction carefully to ensure your objectives are achieved. There’s a common misconception that when you transfer ownership of the tangible medium on which IP is recorded you also transfer the IP rights. IP rights are separate from the work and are retained by the creator — even if the work is sold or given away.
Turn to a professional
Having your assets distributed according to your wishes after your death is a primary reason for having an estate plan. And whether artistic or scientific endeavors are the source of your wealth or simply meaningful diversions, it’s likely that you care deeply about who ultimately possesses your works and enjoys their benefits. Contact FMD to help ensure your estate plan correctly accounts for your IP.
Stepped-Up Basis Rules Can Ease the Income Tax Bite of an Inheritance
With the federal gift and estate tax exemption amount set at $13.99 million for 2025, most people won’t be liable for these taxes. However, capital gains tax on inherited assets may cause an unwelcome tax bite.
The good news is that the stepped-up basis rules can significantly reduce capital gains tax for family members who inherit your assets. Under these rules, when your loved one inherits an asset, the asset’s tax basis is adjusted to the fair market value at the time of your death. If the heir later sells the asset, he or she will owe capital gains tax only on the appreciation after the date of death rather than on the entire gain from when you acquired it.
Primer on capital gains tax
When assets such as securities are sold, any resulting gain generally is a taxable capital gain. The gain is taxed at favorable rates if the assets have been owned for longer than one year. The maximum tax rate on a long-term capital gain is 15% but increases to 20% for certain high-income individuals.
Conversely, a short-term capital gain is taxed at ordinary income tax rates as high as 37%. Gains and losses are accounted for when filing a tax return, so high-taxed gains may be offset wholly or partially by losses.
The amount of a taxable gain is equal to the difference between the basis of the asset and the sale price. For example, if you acquire stock for $10,000 and then sell it for $50,000, your taxable capital gain is $40,000.
These basic rules apply to capital assets owned by an individual and sold during his or her lifetime. However, a different set of rules applies to inherited assets.
How stepped-up basis works
When assets are passed on through inheritance, there’s no income tax liability until the assets are sold. For these purposes, the basis for calculating gain is “stepped up” to the value of the assets on the date of your death. Thus, only the appreciation in value since your death is subject to tax because the individual inherited the assets. The appreciation during your lifetime goes untaxed.
Securities, artwork, bank accounts, business interests, investment accounts, real estate and personal property are among the assets affected by the stepped-up basis rules. However, these rules don’t apply to retirement assets such as 401(k) plans or IRAs.
To illustrate the benefits, let’s look at a simplified example. Dan bought XYZ Corp. stock 10 years ago for $100,000. In his will, he leaves all the XYZ stock to his daughter, Alice. When Dan dies, the stock is worth $500,000. Alice’s basis is stepped up to $500,000.
When Alice sells the stock two years later, it’s worth $700,000. She must pay the maximum 20% rate on her long-term capital gain. On these facts, Alice has a $200,000 gain. With the 20% capital gains rate, she owes $40,000. Without the stepped-up basis, her tax on the $600,000 gain would be $120,000.
What happens if an asset declines in value after the deceased acquired it? The adjusted basis of the asset the individual inherits is still the value on the date of death. This could result in a taxable gain on a subsequent sale if the value rebounds after death, or a loss if the asset’s value continues to decline.
Turn to us for help
Without the stepped-up basis rules, your beneficiaries could face much higher capital gains taxes when they sell their inherited assets. If you have questions regarding these rules, please contact FMD.
Estate planning Q&A: Guardianship
If you’re the parent of a newborn, toddler or older child, you may be thinking about naming a guardian for him or her. This can be a difficult decision, especially if you have many choices or, on the other hand, no one you can trust.
The following are answers to common questions about guardianship:
Q. How do I choose a guardian for my child?
A. In most cases involving a single parent or a parenting couple, you designate the guardian in a legally valid will. This means the guardian will raise your child if you (or you and your partner) should die unexpectedly. A similar provision may address incapacitation issues.
Choose the best person for the job and designate an alternate in case your first choice can’t fulfill the duties. Parents frequently name a married couple who are relatives or close friends. If you take this approach, ensure both spouses have legal authority to act on the child’s behalf.
Also, select someone who has the necessary time and resources for this immense responsibility. Although it’s usually not recommended, you can name different guardians for different children.
In addition, consider the living arrangements and the geographic area where your child would reside if the guardian assumed legal responsibilities. Do you really want to uproot your child and send him or her to live somewhere far away from familiar surroundings?
Q. Do I have to justify my decision?
A. No. However, it can’t hurt — and it could help — to prepare a letter of explanation for the benefit of any judge presiding over a guardianship matter for your family. The letter can provide insights into your choice of guardian.
Notably, the judge will apply a standard based on the child’s “best interests,” so you should explain why the guardian you’ve named is the optimal choice. Focus on aspects such as the child’s preferences, who can best meet the child’s needs, the moral and ethical character of the potential guardian, and the guardian’s relationship to the child.
Whether you’re naming a guardian for a child in your will or you’re attempting to become a guardian yourself, you must adhere to the legal principles under state and local law. Fortunately, FMD can provide any necessary guidance.
Estate Planning for Residential Real Estate with a Qualified Personal Residence Trust
Do you own your principal residence? If so, you’re likely aware that you can benefit from the home’s build-up in equity, realize current tax breaks and pocket a sizable tax-exempt gain when you sell it.
And from an estate planning perspective, it may be beneficial to transfer ownership of your home to a qualified personal residence trust (QPRT). Using a QPRT, you can continue to live in the home for the duration of the trust’s term. When the term ends, the remainder interest passes to designated beneficiaries.
A QPRT in action
When you transfer a home to a QPRT, it’s removed from your taxable estate. The transfer of the remainder interest is subject to gift tax, but tax resulting from this future gift is generally reasonable. The IRS uses the Section 7520 rate, which is updated monthly, to calculate the tax. For September 2024, the rate is 4.8%, down from the year’s high thus far of 5.6% in June.
You must appoint a trustee to manage the QPRT. Frequently, the grantor will act as the trustee. Alternatively, it can be another family member, friend or professional advisor.
Typically, the home being transferred to the QPRT is your principal residence. However, a QPRT may also be used for a second home, such as a vacation house.
What happens if you die before the end of the trust’s term? Then the home is included in your taxable estate. Although this defeats the intentions of the trust, your family is no worse off than it was before you created the QPRT.
There’s no definitive period of time for the trust term, but the longer the term, the smaller the value of the remainder interest for tax purposes. Avoid choosing a term longer than your life expectancy. Doing so will reduce the chance that the home will be included in your estate should you die before the end of the term. If you sell the home during the term, you must reinvest the proceeds in another home that will be owned by the QPRT and subject to the same trust provisions.
So long as you live in the residence, you must continue to pay the monthly bills, including property taxes, maintenance and repair costs, and insurance. Because the QPRT is a grantor trust, you’re entitled to deduct qualified expenses on your tax return, within the usual limits.
Potential drawbacks
When a QPRT’s term ends, the trust’s beneficiaries become owners of the home, at which point you’ll need to pay them a fair market rental rate if you want to continue to live there. Despite the fact that it may feel strange to have to pay rent to live in “your” home, at that point, it’s no longer your home. Further, paying rent generally coincides with the objective of shifting more assets to younger loved ones.
Note, also, that a QPRT is an irrevocable trust. In other words, you can’t revise the trust or back out of the deal. The worst that can happen is you pay rent to your beneficiaries if you outlive the trust’s term, or the home reverts to your estate if you don’t. Also, the beneficiaries will owe income tax on any rental income.
Contact FMD to determine if a QPRT is right for your estate plan.
Estate Planning for Non-U.S. Citizens Requires Extra Care
Traditional estate planning strategies generally are based on the assumption that all family members involved are U.S. citizens. However, if you or your spouse is a noncitizen, special rules apply that require additional planning. Avoid costly tax traps by understanding how the U.S. gift and estate tax laws apply to noncitizens.
Defining “domicile”
Noncitizens can become subject to U.S. gift and estate taxes if they’re domiciled in the United States. Under IRS guidelines, an individual becomes domiciled in a country “by living there, for even a brief period of time, with no definite present intention of later removing therefrom.”
To determine a person’s “present intention,” the IRS considers a number of factors, such as the amount of time the person spends in the United States; their green card or visa status; the location of their business interests and residences; the location of their health care providers, jobs, places of worship and community ties; the place where their vehicles are registered and where they’re licensed to drive; the place where they’re registered to vote; and the domiciles of their friends and family members.
Noncitizens who are deemed to be domiciled in the United States are subject to U.S. gift and estate taxes on their worldwide assets, much like U.S. citizens. And, like U.S. citizens, they’re eligible for the federal gift and estate tax exemption ($13.99 million for 2025) and the annual gift tax exclusion ($19,000 per recipient for 2025).
A significant difference between U.S. citizens and noncitizens, and a potential tax trap for the unwary, is that the marital deduction isn’t available for transfers to noncitizens. Ordinarily, married couples can transfer an unlimited amount of assets between each other — during their lifetimes or at death — without triggering gift or estate taxes. However, estate planning strategies that rely on the marital deduction may not be available to noncitizen domiciliaries.
There are other options, however. For example, a spouse can:
Make tax-free transfers to his or her noncitizen spouse up to the transferor’s unused gift and estate tax exemption.
Make annual exclusion gifts. The annual exclusion for gifts to a noncitizen spouse is $190,000 for 2025.
Potential tax trap
A person who’s neither a U.S. citizen nor a U.S. domiciliary — that is, a “nonresident alien” — is subject to U.S. gift and estate taxes only on assets that are “situated” in the United States. Intangible property — such as corporate stock, bonds or promissory notes — is deemed to be situated in the United States for estate tax purposes (but typically not for gift tax purposes) if it’s issued by a domestic corporation or by a U.S. citizen or the U.S. government.
Here’s where the potential tax trap comes into play: The exemption amount for U.S.-situated assets owned by nonresident aliens is only $60,000, compared with $13.99 million for U.S. citizens or domiciliaries. Depending on the value of a person’s property in the United States, this can result in significant gift and estate taxes.
There may be strategies for avoiding these taxes, such as holding the assets through a properly structured and operated foreign corporation. Also, in some cases, tax treaties between the United States and a nonresident alien’s country of citizenship may provide some relief.
If you or your spouse is a noncitizen, talk to FMD about the potential estate planning ramifications.
What Happens if You and Your Siblings Inherit your Parents’ Home?
When estate planning, it’s common for parents to leave their primary residence or a vacation home to their children. While your parents’ wills or trusts may specify who gets what percentage of the home, typically, you and your siblings will receive equal shares in the property.
This can result in potential problems. For example, perhaps you and your siblings have different financial needs or can’t agree on what to do with the home. Let’s take a look at how to best approach the situation.
Determine what to do with the house
The first step is to sit down with your siblings and have an open, honest discussion about your wishes for handling the inherited home. Generally, the options are:
Keep the home and share it among family members,
Rent out the home and share the rental income,
Sell the home and divide the profits, or
Arrange for one sibling to buy out the others.
If you decide to share the home, have a written agreement drafted by your attorney that outlines rules regarding scheduling, allowable uses, and responsibility for maintenance and expenses. If you choose to sell the home or arrange a buyout, obtain a professional appraisal to avoid disputes over the home’s value.
Other considerations
If you rent out the home, determine how you’ll handle rent collection, maintenance and other rental activities. One option is to engage a property management company to handle the day-to-day management.
Another issue to consider is how the title to the property will be held. For example, if you and your siblings own the home as tenants in common, then your respective interests will pass to your heirs according to your individual estate plans. But if you hold the property as joint tenants, then when one sibling dies, the surviving siblings receive his or her share.
Keep in mind that each of the options described above has different tax implications. Contact FMD with questions.
Contributing to a Roth 401(k) Plan may Help Achieve Estate Planning Goals
When it comes to your 401(k) plan, you may have a choice to make regarding contributions. Should you make contributions on a pre-tax (traditional) basis or on an after-tax (Roth) basis? The right answer depends on your current and expected future tax circumstances as well as your estate planning goals.
Traditional vs. Roth 401(k)s
The main difference between a traditional and a Roth 401(k) plan is essentially the same as the difference between a traditional and a Roth IRA: the way they’re taxed. Contributions to a traditional 401(k) are made with pre-tax dollars — that is, they’re deductible. Funds grow on a tax-deferred basis and both contributions and earnings are taxable when they’re withdrawn. Contributions to a Roth 401(k) plan are made with after-tax dollars — that is, they’re nondeductible. But qualified withdrawals of both contributions and earnings are tax-free. Plus, you can participate in a Roth 401(k) plan regardless of your income.
Salary deferral limits for traditional and Roth 401(k) plans are the same: for 2024, $23,000 plus an additional $7,500 in catch-up contributions if you’ll be 50 or older by the end of the year. The limits on combined employee and employer contributions are $69,000 and $76,500, respectively (up to 100% of compensation).
Distribution rules for traditional and Roth 401(k) plans are also similar. Penalty-free withdrawals (tax- and penalty-free withdrawals for Roth plans) are available when you reach age 59½, die or become disabled (with limited exceptions). In addition, for a Roth 401(k), the account must have been open for at least five years.
Another important difference between the two types of plans is that traditional 401(k) accounts are subject to required minimum distribution (RMD) rules when you reach a certain age. Specifically, age 73 for those who turn 72 this year or after, increasing to age 75 for those who reach that milestone after 2032. For Roth 401(k) accounts, RMDs aren’t required beginning in 2024.
From a tax perspective, with a Roth 401(k) you pay tax at the time of your contributions, while traditional 401(k) funds are taxed when you withdraw them. Mathematically speaking, that means the best choice depends on whether you expect to be in a higher or lower tax bracket after you retire.
If you’re a high earner and expect to be in a lower bracket when you retire, you’re better off with the upfront tax break offered by a traditional 401(k). If you expect to be in a higher tax bracket in retirement (for example, if you’re early in your career and expect your income to grow substantially in the future, or you believe Congress will raise taxes down the road), then consider a Roth plan and pay the tax now.
Estate planning factors
Taxes during your lifetime aren’t the only factor, however. It’s also important to consider the estate planning implications. The elimination of RMDs for Roth 401(k)s makes them a powerful estate planning tool. So long as you don’t need the funds for living expenses, you can leave them in the account, growing on a tax-free basis, for life. And if the account is at least five years old, your heirs will be able to withdraw the funds tax-free.
With a traditional 401(k), the RMD rules will force you to draw down the account, regardless of whether you need the funds, leaving less for your heirs. Plus, withdrawals by your heirs will be taxable.
It may be in Your Best Interest to File a Gift Tax Return
If you’ve given a significant financial gift to a family member, you may wonder whether you’re required to file a gift tax return. Even if no tax is due, filing Form 709, United States Gift (and Generation-Skipping Transfer) Tax Return, can be a smart decision. Indeed, a timely filed gift tax return that meets the IRS’s adequate disclosure requirements starts the clock on the statute of limitations. This year, the deadline to file a 2024 gift tax return is April 15 (October 15 if you file for an extension).
Three-year time limit
Generally, the IRS has three years to challenge the value of a transaction for gift tax purposes or to assert that a nongift was, in fact, a partial gift. But unless the transaction is adequately disclosed, there’s no time limit for reviewing it and assessing additional gift tax. That means the IRS can collect unpaid gift taxes — plus penalties and interest — years or even decades later.
Some may hesitate to file a gift tax return disclosing a non-gift transaction for fear of attracting IRS scrutiny. However, a carefully prepared gift tax return can be the best insurance against unpleasant tax surprises in the future.
Defining adequate disclosure
When you file a timely gift tax return that meets the adequate disclosure requirements, the IRS has only three years in which to challenge the gift’s valuation. To meet these requirements, a return must include:
A description of the transferred property and any consideration received,
The identity of, and the relationship between, the transferor and each transferee,
The trust’s tax identification number and a brief description of its terms (or a copy of the trust instrument) if property is transferred to a trust,
Either a detailed description of the method used to value the transferred property or a qualified appraisal,
A statement describing any position taken that’s contrary to any proposed, temporary or final tax regulations or revenue rulings published at the time of the transfer, and
An explanation as to why transfers reported as nongifts aren’t gifts.
Additional requirements apply to transfers of interests in a corporation, partnership (including a limited liability company) or trust to a member of the transferor’s family. In addition to the above, adequate disclosure requires:
A description of the transactions, including a description of the transferred and retained interests and the methods used to value each,
The identity of, and relationship between, the transferor, transferee, all other persons participating in the transactions, and all parties related to the transferor holding an equity interest in any entity involved in the transaction, and
A detailed description (including all actuarial factors and discount rates) of the method used (if any) to determine the amount of the gift, including, for equity interests that aren’t actively traded, the financial and other data used to determine value.
Financial data generally includes balance sheets and statements of net earnings, operating results, and dividends paid for each of the preceding five years.
Gain peace of mind
Certain gifts, such as those involving trusts, real estate or business interests, should always be reported to the IRS to establish clear tax treatment. Filing a return creates a paper trail, reducing the risk of disputes later.
Even if a gift tax return isn’t strictly required, filing one can provide peace of mind and strategic estate tax advantages. Contact FMD with any questions.
Single and Child-Free? Here’s Why Estate Planning is Still Crucial
Even if you’re single and have no children, having an estate plan helps ensure your final wishes are clearly documented and respected. Estate planning isn’t solely about passing assets on to direct descendants; it’s about taking control of your future.
Without a formal estate plan, state laws will determine how your assets are distributed, and those default decisions might not align with your values or desires. Whether they’re your financial investments or personal assets, a comprehensive estate plan allows you to specify exactly who should receive what, be they close friends, extended family or even charitable organizations.
Without a will, who’ll receive your assets?
It’s critical for single people to execute a will that specifies how and to whom their assets should be distributed when they die. Although certain types of assets can pass to your intended recipient(s) through beneficiary designations, absent a will, many types of assets will pass through the laws of intestate succession.
Those laws vary from state to state but generally provide for assets to go to the deceased person’s spouse or children. For example, the law might provide that if someone dies intestate, half of the estate goes to his or her spouse and half goes to the children. However, if you’re single with no children, these laws set out rules for distributing your assets to your closest relatives, such as your parents or siblings. Or, if you have no living relatives, your assets may go to the state.
By preparing a will, you can ensure your assets are distributed according to your wishes, whether that’s to family, friends or charitable organizations.
Who’ll handle your finances if you become incapacitated?
Consider signing a durable power of attorney that appoints someone you trust to manage your investments, pay bills, file tax returns and otherwise make financial decisions should you become incapacitated. Although the law varies from state to state, typically, without a power of attorney, a court will appoint someone to make those decisions on your behalf. Not only will you have no say in who the court appoints, but the process can be costly and time consuming.
Who’ll make medical decisions on your behalf?
You should prepare a living will, a health care directive (also known as a medical power of attorney) or both. This will ensure your wishes regarding medical care — particularly resuscitation and other lifesaving measures — will be carried out in the event you’re incapacitated. These documents can also appoint someone you trust to make medical decisions that aren’t expressly addressed.
Without such instructions, the laws in some states allow a spouse, children or other “surrogates” to make those decisions. In the absence of a suitable surrogate, or in states without such a law, medical decisions are generally left to the judgment of health care professionals or court-appointed guardians.
What strategies should you use to reduce gift and estate taxes?
When it comes to taxes, married couples have some big advantages. For example, they can use both of their federal gift and estate tax exemptions (currently, $13.99 million per person) to transfer assets to their loved ones tax-free. Also, the marital deduction allows spouses to transfer an unlimited amount of property to each other — either during life or at death — without triggering immediate gift or estate tax liabilities.
For single people with substantial estates, it’s important to consider employing trusts and other estate planning techniques to avoid, or at least defer, gift and estate taxes.
Form your plan
Finally, planning ahead can help avoid potential complications in the future. Unexpected events can lead to family disputes if there’s no clear guidance on how your affairs should be handled.
With an estate plan, your personal wishes are followed precisely, ensuring that your legacy — whether it includes contributions to a cause you believe in or support for a family member — is preserved exactly as you intend. Contact FMD if you’re single, without children and have no estate plan. We can help draft one that’s best suited for you.
Business Owner? A Buy-Sell Agreement Should be Part of Your Estate Plan
If you hold an interest in a business that’s closely held or family owned, a buy-sell agreement should be a component of your estate plan. The agreement provides for the orderly disposition of each owner’s interest after a “triggering event,” such as death, disability, divorce, termination of employment or withdrawal from the business.
A buy-sell agreement accomplishes this by permitting or requiring the company or the remaining owners to purchase the departing owner’s interest. Often, life insurance is used to fund the buyout. And because circumstances frequently change, reviewing your buy-sell agreement periodically is important to ensure that it continues to meet your needs.
Valuation provision must be current
It’s essential to revisit the agreement’s valuation provision — the mechanism for setting the purchase price for an owner’s interest — to ensure that it reflects the business’s current value. A pressing reason to do this sooner rather than later is because, absent congressional action, the federal gift and estate tax exemption is scheduled to be halved beginning in 2026.
As you review your agreement, pay close attention to the valuation provision. Generally, a valuation provision follows one of three approaches when a triggering event occurs:
Independent appraisal by one or more business valuation experts,
Formulas, such as book value or a multiple of earnings or revenues as of a specified date, or
Negotiated price.
Independent appraisals almost always produce the most accurate valuations. Formulas tend to become less reliable over time as circumstances change and may lead to over- or underpayments if earnings have fluctuated substantially since the valuation date.
A negotiated price can be a good approach in theory, but expecting owners to reach an agreement under stressful, potentially adversarial conditions is asking a lot. One potential solution is to use a negotiated price but provide for an independent appraisal in the event the parties fail to agree on a price within a specified period.
“Redemption” vs. “cross-purchase” agreement
The type of buy-sell agreement you use can have significant tax and estate planning implications. Generally, the choices are structured either as “redemption” or “cross-purchase” agreements. A redemption agreement permits or requires the company to purchase a departing owner’s interest, while a cross-purchase agreement permits or requires the remaining owners to make the purchase.
A disadvantage of cross-purchase agreements is that they can be cumbersome, especially if there are many owners. For example, if life insurance is used to fund the purchase of a departing owner’s shares, each owner will have to purchase an insurance policy on the lives of each of the other owners. Note that redemption agreements may trigger a variety of unwelcome tax consequences.
A versatile document
A buy-sell agreement can provide several significant benefits, including keeping ownership and control within your family, creating a market for otherwise unmarketable interests, and providing liquidity to pay estate tax and other expenses. In some cases, a buy-sell agreement can even establish the value of an ownership interest for estate tax purposes. FMD can work with you to design a buy-sell agreement that helps preserve the value of your business for your family.
A Power of Appointment Can Provide Estate Planning Flexibility
A difficult aspect of planning your estate is taking into account your family members’ needs after your death. Indeed, after you’re gone, events may transpire that you hadn’t anticipated or couldn’t have reasonably foreseen.
While there’s no way to predict the future, you can supplement your estate plan with a trust provision that provides a designated beneficiary a power of appointment over some or all of the trust’s property. This trusted person will have the discretion to change distributions from the trust or even add or subtract beneficiaries.
Adding flexibility
Assuming the holder of your power of appointment fulfills the duties properly, he or she can make informed decisions when all the facts are known. This can create more flexibility within your estate plan.
Typically, the trust will designate a surviving spouse or an adult child as the holder of the power of appointment. After you die, the holder has authority to make changes consistent with the language contained in the power of appointment clause. This may include the ability to revise beneficiaries. For instance, if you give your spouse this power, he or she can later decide if your grandchildren are capable of managing property on their own or if the property should be transferred to a trust managed by a professional trustee.
Detailing types of powers
If you take this approach, there are two types of powers of appointment:
“General” power of appointment. This allows the holder of the power to appoint the property for the benefit of anyone, including him- or herself, his or her estate or the estate’s creditors. The property is usually included in a trust but may be given to the holder outright. Also, this power of appointment can be transferred to another person.
“Limited” or “special” power of appointment. Here, the person holding the power of appointment can give the property to a select group of people who’ve specifically been identified by the deceased. For example, it might provide that a surviving spouse can give property to surviving children, as he or she chooses, but not to anyone else. Thus, this power is more restrictive than a general power of appointment.
Whether you should use a general or limited power of appointment depends on your circumstances and expectations.
Understanding the tax impact
The resulting tax impact may also affect the decision to use a general or limited power of appointment. The rules are complicated, but property subject to a general power of appointment is typically included in the taxable estate of the designated holder of the power. However, property included in the deceased’s estate receives a step-up in basis to fair market value on the date of death. Therefore, your heirs can sell property that was covered by a general power of appointment with little or no income tax consequences.
In contrast, property covered by a limited power isn’t included in the holder’s estate. However, the new heirs inherit the property with a carryover basis and no step-up in basis. So, if the heirs sell appreciated property, they face a potentially high capital gains tax.
Your final decision requires an in-depth analysis of your tax and financial situation by your estate tax advisor. Contact FMD with any questions.
Do You Have the Right Amount of Life Insurance Coverage?
Life insurance plays a vital role in your estate plan because its proceeds can provide for your family in the event of your untimely death. And for wealthier families, life insurance proceeds can cover any estate tax liability not covered by the current $13.99 million federal gift and estate tax exemption.
But when was the last time you reviewed your policy? The amount of life insurance that’s right for you depends on your circumstances, so it’s critical to regularly review your life insurance policy.
Reevaluating your policy
Life insurance isn’t a one-size-fits-all solution. Milestones such as marriage, having children, buying a home or starting a business bring new financial responsibilities. A policy purchased years ago may no longer protect your loved ones adequately.
Conversely, you may be over-insured, paying for coverage you no longer need. For example, if your children are financially independent or you’ve paid off significant debts, your coverage requirements might decrease.
The right amount of insurance depends on your family’s current and expected future income and expenses, as well as the amount of income your family would lose in the event of your untimely death.
On the other hand, health care expenses for you and your spouse may increase. When you retire, you’ll no longer have a salary, but you may have new sources of income, such as retirement plans and Social Security. You may or may not have paid off your mortgage, student loans or other debts. And you may or may not have accumulated sufficient wealth to provide for your family.
When you sit down to reevaluate your life insurance policy, consider the:
Coverage amount. Is your policy sufficient to cover current expenses, future obligations and debts?
Policy type. Term life insurance can be cost-effective for temporary needs, while whole life or universal policies may offer long-term benefits such as cash value accumulation.
Beneficiaries. Ensure your policy lists the correct beneficiaries, especially after a major life event such as marriage, divorce or the birth of a child.
Premiums. Are you paying a competitive rate? Shopping around or converting an old policy could save money.
While reviewing your policy, keep in mind your broader financial plan. How does your policy currently fit within your overall strategy, including tax implications, estate planning and business succession planning?
Turn to us for help
Taking the time to reassess your life insurance needs is an investment in your family’s financial security. Contact FMD to ensure your coverage aligns with your current and future estate planning goals.