As I write, there are still a lot of unanswered questions in Congress about the estate tax and capital gain tax, and as you know, I don’t like to speculate much or make suggestions based on what might or might not change. The one thing I will repeat from last month is that there are far more non-tax reasons for planning than tax reasons, so you should take the next few months to get serious about figuring out and building the non-tax part of your estate plan. The personal stuff has to be decided before you can do meaningful tax planning anyway.
One columnist I like is Thomas Sowell, who occasionally wrote a column of Random Thoughts. Those were among my favorites. I can’t match his tongue-in-cheek wit and style, but here are some of my Random Thoughts about estate plans that work and plans that won’t:
1. You only need to have your estate plan in proper shape before you die. If you know that date, wait until it gets close. Planning for disability also needs to be ready just before your mind goes, so if you are of sound mind now, you can put that off, too.
2. If you become disabled and want your successor to still farm your land and pay really low rent, give him a general power of attorney. That way he can sign your name to rent your farm to himself at whatever rate he chooses — at least until someone else realizes that he has a direct conflict of interest and is engaged in a crime of financial exploitation, using his trusted position to effectively steal part of your rent. With a little luck, during the investigation he might be able to convince authorities that before your mind faded, you said you wanted him to cheat you and the other heirs this way, even though you left nothing like that in writing.
3. Planning also means signing advance directives for your medical care. If you sign a free Practitioners Order for Life Sustaining Treatment, or POLST, form, no matter what options you mark on that form, the medical personnel won’t need to bother consulting you or your family about any more of the life-or-death decisions.
4. When you do living trust planning, you have to retitle your assets to your trust so your trust can control those assets. When you do planning with a will, you have to retitle your assets so they won’t avoid probate.
5. The couple who splits their property into tenant-in-common ownership as a way of assuring their wills accomplish estate tax planning are assuring that the lawyer gets at least two probate cases. The couple who plans with wills and tries to avoid probate will assure that the estate tax planning fails.
Joint tenancy ownership of property has only a 50% chance of achieving a desirable result.
6. Avoid living trusts and probate by making sure every one of your assets has a named beneficiary — pay on death, transfer on death, designated beneficiary — or a joint owner who is guaranteed to outlive you. This keeps your life simple because now you only have as many estate plans as you have assets.
7. In the same way, you can make sure that no one person will know the estate value that has to be reported to the taxing authorities. Each beneficiary or joint owner walks away quietly with his or hers. This doesn’t change the fact that the value must still be reported. It just assures that no one responsible for or receiving your estate knows what has to be reported. So, every beneficiary becomes personally liable for their share of the taxes but knows not how much. That is, until the IRS catches up with them. After the IRS tracks down the transfers made based on your income tax returns, insurance claims, deed records and so forth, they will let the beneficiary know — with penalties and interest added.
8. You want to leave your grandson $50,000 so he’ll have money for college? Don’t waste money on a lawyer. Just let the teller at the bank help you make a $50,000 CD payable on death to him. That way when you die and he turns 18, he can buy a lifted pickup with big tires.
9. There is always the unpleasant alternative of seeking advice from professionals who can help you explore your options, consider the pros and cons, and develop and implement a comprehensive plan to do all the good you can.
But don’t resort to that.
Ferguson is an attorney who owns The Estate Planning Center in Salem, Ill. Learn more at thefarmersestateplanningattorneys.com. The opinions of this writer are not necessarily those of Farm Progress/Informa.