• The law will arbitrarily decide who gets your assets, regardless of your actual wishes and if you made those wishes known to anyone.
• The court, in a potentially lengthy and sometimes more expensive process, will decide who is entrusted to administer your estate (again, regardless of what your wishes may have been).
• The person who is selected to administer your estate will lack certain powers that your will could easily have provided htem.
• Intestacy often means uncertainty, especially for your loved ones.

For my own part, I am writing my will:

• …to make sure that particular assets of mine go to those who will properly appreciate them.
• …to designate an executor of my estate so the court doesn’t designate somebody who I don’t trust with this job.
• …to make sure my executor can start his or her job as soon as my will is admitted to probate (without a special provision in a will for this, the process can take weeks longer before the executor can begin his or her job).
• …to grant my executor certain powers so he or she can do what is necessary to settle my estate — without having to run to the court, hat in hand, to get permission.
• …to provide certainty for my loved ones.

It is a good idea to have an attorney review your estate plan whenever you have new developments in your life, such as:

• Marriage
• Divorce
• Birth of a child or grandchild
• Death of spouse, child, or parent
• Death of someone named in your current will
• Being diagnosed with a potentially terminal illness
• Coming into a windfall of money/assets (such as an inheritance, a prize, gambling winngs, etc.)
• You or your family taking on substantial debt
• Giving someone a substantial gift
• Taking on a new job that pays a great deal more
• Owning real estate
• Owning a business
• Owning a pet or other animal

The above is not an exhaustive list, but should give you some clue as to when an estate plan is due for a review. Additionally, anyone with a net worth in excess of $2 million has no excuse to not have an updated estate plan in place.

Additionally, it is a good idea to have an attorney review your estate plan about every two to five years. If it has been more than two years since your most recent estate plan review, strongly consider contacting an attorney who can meet your estate planning needs today.

MORE NEW YEAR NEWS

Now that we’re well into 2009, it’s important for clients and potential clients to realize how new tax laws impact their estate plans.

For starters, the annual gift tax exclusion has been increased to $13,000. The obvious implication of this is that an individual can now give up to $13,000 per donee per year tax-free. Additonally, these gifts can be split with one’s spouse – with the spouse’s consent – for a maximum of $26,000. Indeed, some married couples make their annual gifts as early in the calendar year as possible – to ensure that both spouses are alive at the time of the gifts (after all, a deceased spouse cannot consent).

Because of this, 2009 is a great time to review your trust plan and/or giving program (especially if it has been more than two years since your most recent estate plan review), so as to continue to maximize the use of lifetime gifting strategies. Additionally, all good trust plans, giving programs, and estate plans afford some degree of flexibility – not only to account for a client’s changing plans, priorities, and life developments, but also changes to applicable laws. Contact an attorney for your estate planning needs today.

- Joe Stanganelli, Esq.

(Suze Orman, for those of you who live under a rock, is the woman on TV who yells at people for spending too much money.)

I saw, as I flipped through the book near the pharmacist’s counter, that Suze Orman recommends to her readers that, in almost all cases, they opt for term life insurance over any other kind of life insurance.

To me, this is pretty ridiculous.

LIFE INSURANCE: BING!

When I think of a life insurance agent, I think of Ned Ryerson, the ineffectual insurance salesman from the movie Groundhog Day. As grating as old “Ned the Head” may be, however, non-term life insurance is often a key component of a good estate plan.

Obviously, a young, healthy, single person with no dependents most likely has little need for any kind of life insurance. Indeed, because of the very nature of life insurance, the longer you can wait to get it, the better.

Nonetheless, the unexpected does happen; that is why people have estate plans.

One obvious benefit of whole, universal or a similar life insurance plan is to maximize the transfer of wealth tax-free. Life insurance is usually not subject to estate taxes when it pays out. Thus, a substantial policy is often a great way to transfer wealth.

Additionally, estate liquidity can be a major issue in estates – especially those that are just barely large enough to be subject to estate tax. Estate representatives sometimes have to sell the family home, the family business, and other valuable and/or sentimental assets to pay estate taxes that are due. With a sufficient life insurance policy in place, the problem is easily solved; the taxes can be paid with the life insurance money without having to sell the estate’s major assets.

Life insurance is also commonly used in business succession plans, wherein the business partners are designated the beneficiaries, and then use that money to buy the decedent’s share of the business back from the spouse, children, or whomever received the business in the will.

Life insurance is not for everybody, and there are many different types of life insurance that can be used for many different things. Life insurance has a great many uses for estate planning (but term life insurance – while it has its uses – can tend to be of limited utility for estate planning needs). For more information on this topic, you should contact a competent attorney, CPA, CFP, or similar, neutral professional who won’t be compensated when you purchase a life insurance policy (unlike an insurance agent).

But not Suze Orman. At least, not on this issue.

(In all seriousness, I admire Suze Orman. She started off as a waitress living in a van and is now a multimillion-dollar success. To me, she is a living Horatio Alger story and an embodiment of the American Dream, and has earned my respect.)

Speaking of Suze Orman, apparently her own financial concerns could in fact be solved with life insurance and other estate planning mechanisms.

DOCTOR, HEAL THYSELF

According to an interview with The New York Times, Suze Orman is concerned about losing lots of money to estate taxes. More specifically, according to the interview, she is in a committed same-sex relationship with another wealthy individual (her producer). She is concerned that, because she and her partner cannot legally be married, they cannot make use of the marital deduction – and therefore a substantial portion of their substantial estates will be lost to estate taxes.

This presents an important, burgeoning issue in the estate planning field: GLBT planning. Neither the federal government nor any other jurisdiction in the United States (save Massachusetts) recognizes same-sex marriages (although some states have other, similar mechanisms, such as civil unions). This presents an additional challenge when it comes to estate planning for people in committed same-sex relationships. Typically, because of the marital deduction (i.e., the mechanism by which you can give things to your spouse tax-free), one common goal of estate planning is to reduce or eliminate estate taxes at the second death – because upon the first death between the married couple, the decedent spouse has presumably left everything (save for their initial $2,000,000 estate tax exemption) or most everything to their surviving spouse, tax-free. For couples who cannot enter into a marriage recognized by current federal law, like Suze Orman and her female producer, this is not an option.

First and foremost, Suze and her partner could each benefit from substantial life insurance policies, respectively (and it’s not like they can’t afford it, either; according to the same interview, Suze Orman’s liquid net worth is in the $25,000,000 neighborhood). This policy easily turns a few million dollars into several million dollars once it pays out. Furthermore, the life insurance payouts would be tax-free. This could easily make up for the loss to estate taxes.

Furthermore, Suze and her partner would each benefit from irrevocable living trusts set up for their partner’s benefit, set up to not pay out until the first death between them. This is especially ironic because Suze recommends to her readers in her 2009 Action Plan that they set up revocable living trusts. The problem with revocable living trusts is they are still subject to taxation as part of the grantor’s estate; because of their revocability, the grantor is still deemed to “control them,” and therefore own them as part of her estate.

“ACTION” ESTATE PLAN FOR SUZE ORMAN

Because Suze Orman is a good sport (I am assuming), I am going to give her some fun, free “legal advice” (I put “legal advice” in quotation marks so nobody can sue me later; this is all rhetorical and hypothetical, and not intended or presented as actual advice forming an attorney-client relationship. Please see the Notices Page for more information). Based upon the limited information I have, with all other things being equal, I would advise Suze to and her partner to each do the following:

• Set up irrevocable living trusts wherein:
  • The present interest income beneficiary is some favorite 501(c)(3) charity (say, PBS – an entity that Suze Orman has done a lot fundraising for). In other words, all of the income that the money in the trust earns goes to this charity. Suze, this is a great option for you. This not only avoids estate taxes later by foregoing all control between the two of you in your lifetime, but has additional tax benefits because the money is going to a 501(c)(3) organization – and is therefore subject to the charitable deduction.
  • Upon the death of the trust grantor, the money will be paid out to your life partner.
• Set up life insurance trusts for each other’s respective benefit. Take on life insurance policies for each other’s benefits (NOT TERM! That is, unless one of you is expecting to shuffle off this mortal coil soon), and designate the beneficiary of the policy to be the trustee of the life insurance trust benefiting your partner.
• (EDIT: For this to work, the beneficiary would have to be the owner of the policy.  Life insurance will not be free from estate taxation if the owner retains any incidences of ownership, such as being able to change the beneficiary.)
• Set up a Unified Credit Trust in your will to make use of your $3,500,000 estate tax exemption (note: $3.5 million is only the estate tax exemption amount for 2009; this amount is subject to change after 2009).
• Consult a knowledgeable attorney today about other aspects of your estate plan.

And Suze, if you’re reading this and this information helps, feel free to mention my blog on your show.

- Joe Stanganelli, Esq.

STANGANELLI’S FIRST LAW OF ECONOMICS

No matter the state of the economy – and how good or bad things may be – someone is getting rich somewhere.

I studied historical economic markets. Someone, somewhere, is always making money on a rising stock (or, in the case of a short sell, a falling stock). Some business is always performing swiftly. There were people who amassed large fortunes even in the Great Depression.

(Speaking of the Great Depression, and in the spirit of continuing to include interesting recipes on this blog (even though it’s a law blog), I found this recipe for Depression Cake online. Depression Cake was a common dessert during the Great Depression; most recipes do not use sugar, milk, or eggs, because they were scarce and expensive during the Great Depression. Anyway, try it out. Who knows? With the economic climate these days, it may become popular again.)

I also read cases – and saw a glimpse of the amount of litigation there is in the country.

STANGANELLI’S SECOND LAW OF ECONOMICS

Where Party A and Party B are separate entities in a given set of economic circumstances, three outcomes are possible: 1.) A wins, B loses.

Even among attorneys, however, the effects of economic collapse are felt. Presently, I know a lot of lawyers who are actually not faring so well right now. Many are out of work, and most others have seen their practices want for business. Additionally, a recent American Bar Association survey indicates that 69% of attorneys in the United States report that they will be negatively impacted by the recession – with a whopping 19% expecting to lose their jobs entirely.

Nonetheless, in the decaying fields of economic downturn, there are patches to be found where the grass is greener.

C SOMETIMES WINS

The American Bar Association puts out a monthly publication known as the ABA Journal. This month’s issue (billed on the cover as a “SPECIAL RECESSION ISSUE”) features a piece about Eleanor Breitel Alter, who heads up her law firm’s family and matrimonial law department (in other – more relevant –
words, she’s a divorce lawyer).

While bankers and lawyers and others pinch pennies, Ms. Alter finds her divorce practice to be doing just fine, thank you. “Moneyed spouses” whose jobs and/or stock have “gone to the devil” – as Ms. Alter puts it – are flocking to get divorced – when they might otherwise have waited – in an attempt to limit a court’s determination of their earning power. Additionally, people who are already divorced are bombarding Ms. Alter’s office with requests to get a permanent divorce order or separation agreement changed – in light of the economically bleak times.

Aside from the intellectually droll revelry to be had in observing Ms. Alter’s circumstances (i.e., a successful divorce attorney whose surname is a homonym for the sacred table at which her clients once wed) (get it?), it is clear from the article that, as the economy changes, people are making changes in their own lives that impact their assets and their families.

CHANGE

This leads me, albeit somewhat circuitously, to the topic of estate planning.

Anytime you marry, remarry, divorce, annul, or otherwise change your marital status, your estate plan may be dramatically impacted.

For starters (and I am going to type in all caps now to emphasize the drama of this point): MARRIAGE ALMOST ALWAYS VOIDS YOUR WILL.

When you marry, with rare exception, any will that you have becomes null and void. Once this happens, you need a new will unless you want your estate plan to be governed by intestacy.

INTESTACY

Intestacy is a fancy lawyer word for “the government gets to decide who gets your stuff, regardless of your wishes.” Many, many trees have been killed in publishing the complex laws that dictate how an estate is distributed in intestacy. And regardless of how it turns out, the lawyer (“C”) will definitely win.

(Intestacy can be especially distasteful when a person dies with no next-of-kin remaining. If this happens in Massachusetts, for example, the deceased’s property goes to the state government.)

Intestacy, quite obviously, is usually a bad idea. The advice I would typically give to a client is to pony up the dough to fix up a will now so that his/her loved ones don’t have to deal with a probably more complex (and probably more expensive) probate process later.

“YOU’RE DEAD TO ME!”

Divorce does not a void a will, but it does treat the divorced spouse as being already dead. This means that, when a court interprets your will, they will totally ignore anything that mentions the spouse you divorced. This probably seems like a good thing.

The problem arises, however, when alternative arrangements are not made. Let’s look at a basic example. Jack has a simple will that leaves everything to his wife, Jill, and names Jill as his executrix. A year later, Jack and Jill divorce. Several years after that, Jack dies – without ever having updated his estate plan. Now, the court will distribute all of Jack’s property will be via intestacy. Additionally, because no executor/executrix has been appointed (remember that Jill is treated as predeceased!), probate may be delayed because of the process of appointing an appropriate administrator for Jack’s estate. Time is money, and probate delays can be costly. This is not a good thing (except for “C”).

With rising divorce rates among society’s better heeled, estate plans will be impacted across the board. Naturally, if you are divorced, or considering getting married or divorced, contact an estate planning attorney to review your estate plan. Your estate planning attorney can help you make sure that your assets are distributed according to your wishes – no matter what happens.

JOKE OF THE DAY: How to Get Rich

“Then my wife’s father died and left us two million dollars.”