Understanding the Critical Science of Estate Planning
Death and Taxes
A great transfer of wealth is taking place across the nation as Baby Boomers begin inheriting the $12 trillion that will be left to them by Depression-era parents. These Boomers have also started to distribute their own assets, and over the next few decades more than $30 trillion will pass from one generation to the next. But making the decisions required to create an estate plan is difficult for members of the ‘me’ generation who want to enjoy life to the fullest and retain control over their money, and still leave their children with a considerable inheritance.
Gina Barry says the demand for estate plans is on the rise, and, as just one form of evidence, she noted that Bacon Wilson, P.C., the Springfield-based firm where she’s a partner, has had to add two paralegals and two new attorneys to its Elder Law and Estate Planning department in the last five years due to the influx of business.“It’s not a crush, but demand has been gaining in intensity, and we are booked a month out,” said Barry, who concentrates her practice in elder law, estate planning, and residential real estate. “But we do make room for emergency cases, when someone is facing a nursing-home admission or receives a terminal diagnosis and wants to protect their assets from the cost of long-term care. It can be catastrophic, because a nursing home can cost $14,000 a month.”
Michael Simolo, a partner in estate planning and probate at Robinson Donovan, P.C. in Springfield, says his firm is also extremely busy. “We’ve added one associate and are thinking about adding more; our calendars are filled,” he told BusinessWest, noting that estate planning can be as simple as leaving everything to a spouse or involve creating a variety of trusts if there are complex issues such as a child with special needs or federal tax issues.
Elizabeth Sillen, a partner at Springfield-based Bulkley Richardson, LLP, agreed.
“There are many reasons why people come to us; some people are dealing with a parent’s estate and want to replicate what they did right or avoid what they did wrong, while others want to know when they should retire or collect Social Security,” said Sillen, who concentrates in estate planning, explaining that the estate-planning attorney’s role is to protect assets and does not involve financial planning.
Questions pertaining to the latter are typically answered by financial advisors, but timing is important because today’s retirees want to be active, travel, and take advantage of all the world has to offer. “We are the glue,” said certified financial planner Patricia Grenier, who co-founded BRP/Grenier Financial Services in Springfield. “Someone has to coordinate everything, and there are often big pieces missing when people go to estate planners.”The necessary information, which financial planners help clients determine, includes when a person will retire, the sum total of their assets, the way a pension will be handled, and when people will start collecting Social Security.
“There more than 8,000 strategies for couples to use when they collect Social Security, and many people don’t even know what their pension options are; these are bases that need to be covered before someone visits an attorney,” Grenier said. “When I meet with a client, we discuss their lifestyle, their income, where and how their money is invested, and their other assets. Health costs are a big issue, and so are family dynamics.
“I ask people how they plan to care for themselves, because there comes a point at which everyone needs help. A lot of decisions need to be made, and it’s a very emotional process, but our job is to make the meeting with the estate planner efficient and effective and coordinate what needs to happen,” she went on, noting that she has accompanied clients to an attorney’s office to do estate planning.
Simolo agrees that the decisions are difficult. “Estate planning is something people tend to put off. It’s not pleasant to think about, but you are not planning for yourself; you are planning for those you are leaving behind — and it’s not as painful of a process as people think,” he said. “Plus, putting off decisions doesn’t make it any less difficult, and planning gives you the option of extending a hand beyond the grave. If you have an estate plan, you can control your money to some extent after you die.”
One of the primary goals of a plan is to avoid probate. “However, probate is a lot easier than it used to be, and sometimes it’s easier to go through it than to retitle everything and put it in a trust,” said Simolo. “It depends on family dynamics, how much you own, and what you want to do.”
Limiting estate taxes is also critical: in Massachusetts, payment is due once an estate hits the $1 million mark, while the amount in Connecticut is $2 million. Federal taxes start at 40% if an estate totals $5.43 million or more, and although that seems like a lot, the number includes everything a person owns, including real estate, investments, bank accounts, and life insurance.
But experts agree that most people don’t reach that mark because the majority of Boomers have failed to save enough to retire in comfort.
“The biggest risk is that they will outlive their money, so it requires careful planning and strategizing,” Grenier said.
Generations tend to differ in how they want to allocate their assets, said those we spoke with.
“Folks from the Depression era are not as inclined to gift as Boomers because they fear they won’t have enough to last throughout their lifetimes; they are much more frugal and want a sense of security and know that there is enough to take care of them until they die,” Barry said, explaining that strategies used in tax planning can require a loss of control of assets, which is frequently not palatable to Boomers.
“The majority want to leave money to their kids, but some would rather have their heirs pay taxes than lose control,” she went on, adding that the state tax on $2 million is about $89,200, which could be avoided entirely.
Siller agrees. “Some Boomers don’t care if their heirs will have to pay estate taxes because they have no appetite for complex plans. But there is definitely a generational difference. People from the Depression era tended to be thrifty, live moderately, and save money. Boomers may live moderately, they are a lot more consumer-oriented,” she explained, noting that there is a lot more to buy today, including devices such as cell phones and computers that are necessary to keep pace with technology.The people Boomers delegate to be their healthcare proxy or to have power of attorney over their finances if they become incapacitated is another choice that demands careful consideration. “I have had clients say they want a daughter to take over their healthcare if they become incapacitated, but when I ask if she will be able to handle the decision to stop life support if it’s necessary, they realize they need to appoint someone else,” Barry noted. “And although people often think they will name their oldest child as power of attorney, they need to consider how honest and trustworthy they are and be sure they will never use their assets for their own benefit.”
Grenier agreed. “The person in that role has to be qualified to handle it. You want someone who has the time and ability to carry out your wishes.”
Long-term care also has to be considered. Although it’s prudent in some cases for the person to take out insurance, it doesn’t always make sense. And although estate plans can be altered if circumstances change, many people never update their plans. “They are lulled into a sense of security once a plan is created, but it’s imperative that they return to their attorney if they inherit a tremendous amount of wealth,” Barry said.
Siller concurred, and said estate planning involves many factors. “Estate planners provide people with options that are very concrete after they learn everything they need to know about their situation. But the process is complex and requires specificity,” she said, adding that considerations such as putting assets in a child’s name include whether he or she may get divorced, go bankrupt, or is in a high-risk profession and could be sued. Meanwhile, Boomers with grandchildren may want to set up college plans for them.
“If Boomers do some advance planning, they may be able to give their children all of the benefit of the income they inherit without imposing a tax burden on them,” Siller said. “But everyone’s situation is different, so we build a plan for each client that suits their needs. It’s a satisfying process.”
The demand for business-transition planning is another area that is undergoing rapid growth.
“A lot of small-business owners want to retire, but it can be challenging. The business is often like their child, and it’s important to them that it continues to thrive,” said Siller. “And if one child is really interested in taking over, they need to navigate continuity along with fairness to other children, which can be tricky.
“It’s a whole world unto itself,” she went on, adding that, in some cases, life insurance is used as a way to equalize the value of the business, while in others where the building sits on land that is owned, the parcel is transferred to non-participating children, and the child who takes the helm of the business pays rent on the land to their siblings.
Barry says many factors enter into the equation, and it’s critical to know how much the business is worth on the open market.
“I can’t tell you how many business owners have never had their firm properly evaluated by an accountant,” she explained. “They think they know its value or what they could sell it for, but they have no idea of its actual value.”
That figure can be pivotal, said Simolo, who noted that a business may constitute the majority of the value of an estate.
“Succession planning for businesses poses a unique set of circumstances which are different for every family and every business. It’s a matter of fulfilling the intentions of the owner to the greatest extent possible, while protecting its future,” he told BusinessWest.
Another weighty consideration involves planning for children with special needs, and estate-planning attorneys say more clients are coming to the table with this challenge.
“Some children are receiving benefits or are incapable of managing their own funds,” Barry said. “There is a great increase in the number of people addressing these needs.”
Siller concurred, and said special consideration needs also to be made if children have addiction problems or are in relationships the parent is unhappy about.
Meanwhile, second marriages can be another tricky area to navigate.
“Kids from a first marriage often feel resentful if a second spouse inherits the bulk of the estate, so it’s important to find ways to keep the peace,” said Siller. “We try to have conversations and get the person to think about what they want to do before we come up with a plan.”
But leaving everything to a spouse, even in a first marriage, can be challenging if the deceased had always handled the finances.
“Sometimes we create a trust to ensure the remaining spouse will have plenty of money,” Siller said, adding that issues also arise if the spouse is not a citizen. “And if there is a second home, people worry about how their kids will share it. Sometimes a trust is put in place with a management structure that gives children the ability to buy out their siblings or sell the property, as there is often one primary user. Some parents endow a vacation home to preserve memories, but there are a lot of variables.”
Single people have their own dilemmas to contend with. “Their estate plans can be more complicated than a married couple’s,” Siller explained. “They need to think carefully about things because there are fewer tools available to them to reduce taxes.”
But even after all of these variables are accounted for, the work is not done.
“The drafting of documents is only half of the estate plan,” Simolo said. “The other half is making sure assets are properly structured so the plan works. Sometimes assets are made joint or taken out of joint ownership, and beneficiary designations must be properly named.”
Grenier concurred, noting that it’s not uncommon for people to fail to take the necessary steps to make the plan viable.
“Many never follow through with financial planners or investment advisors after their plans are set up; if a trust is created to protect assets, it has to be funded,” she said. “The accounts and real estate that will go into it have to be retitled, and beneficiaries have to be titled appropriately to match the plan. You can have the best attorney in the world, but if there is no follow-through, the plan won’t work.”
Attention to Detail
The bottom line is that estate planning and elder law is a complex manner, and although some people use the Internet to create what Barry calls “a will in a box,” such a strategy can lead to problems down the line.
“In most cases, there is an error because the person doesn’t understand the language or know what’s missing,” she said, adding that a simple estate plan, which typically costs less than $1,000, takes every facet of the individual’s situation into account and puts language in place to ensure their intentions will be carried out.
“Some people don’t think they have enough to warrant putting together a plan, but it’s never true,” she went on. “And it’s far better to plan your estate when you are not under pressure. Doing the work is much more enjoyable if you are not faced with a catastrophic event.”
Grenier concurs. “It is a daunting task that involves a lot of decisions,” she told BusinessWest. “But people need to make sure they have everything lined up, then finish the circle by following through and having things moved into trusts and taking care of other details.”
Whether they do or not, the transfer of wealth will continue, and future generations will bear the brunt — or reap the rewards — of what the people who go before them have left behind.
“If you don’t have a will,” Simolo said, “the state will create one for you — and it may not match your intentions.”