Is This The End Of Estate Tax Problems?

It is almost certain that before 2009 ends, the unified tax credit will be $3.5 million per person, or at least $7 million for a married couple. This credit can be used to offset the amount of estate tax, so wealth can essentially be left to your heirs tax-free. Hey, if you are married and are worth about $14 million, then a $7 million “freebie” makes legally beating the estate tax an easy-to-attain goal.


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Whether you are worth $5 million or $50 million, you have always been able to beat the estate tax—now it’s just going to be easier. However, an estate plan, which is really just a death plan, does absolutely nothing until you enter the pearly gates. You also need a lifetime plan for now until you get hit by the final bus.

The goal of this article is to change the way you think about estate planning. With the new unified credit, the estate tax monster won’t be scaring as many people. So for the moment, please pretend you are a client, sitting in my office, and we are going to talk about your estate plan.

Here’s the first question I typically ask: “Assuming you do not have enough wealth to worry about being hit by the estate tax (Client 1) or you know you will be hit hard by the estate tax, but for the moment, you forget the awful tax even exists (Client 2), then tell me: What is your single, biggest concern?”

Hands down, Client 1’s biggest concern is to maintain his lifestyle and that of his spouse for as long as they live. Sure, the client has other concerns, such as staying healthy, transferring the family business to the business kids and treating the non-business kids fairly, but lifestyle is always center stage.

So, we quickly take care of Client 1’s death planning with wills, trusts and life insurance. The real emphasis on lifetime planning involves enabling Client 1 to transfer the business to his business kids tax-free while retaining control of the business via voting stock. We also make sure the client and his wife have the best health insurance at a minimum cost. Finally, we create a wage continuation plan in case the client can no longer work someday, and we find a way to protect his personal assets.

The single biggest lifetime planning task is to make sure that Client 1 gets the highest rate of return on his investments while minimizing risk.

Now, let’s talk about Client 2. Yes, he has an estate tax problem—big time—but he has so much wealth that he doesn’t have to think about any lifestyle concerns. If the client still owns a business, then transferring it to his kids or key employees in a tax-effective way is his biggest concern. Waiting until death only enriches the IRS, so instead, Client 2 should use an intentionally defective trust to transfer the business tax-free. This method allows Client 2 to keep control of his business for as long as he lives, yet not have to worry about estate taxes.

However, what if Client 2 has sold the business and is now sitting on a pile of cash, or what if he has accumulated a sizeable amount of cash and a significant stock and bond portfolio over the years? Typically, Client 2 also has a large amount of money (often in excess of $1 million) in a qualified plan such as a 401(k), profit-sharing plan or IRA. These plans are conservative—their goal is to maximize the rate of return on investable assets while minimizing risk. One of the fun parts of the planning system we use for these clients is helping them accomplish this goal.

Here’s one final fact about Client 2: His wealth during normal business conditions tends to double every 6 to 9 years, exacerbating estate tax problems. So, of course, we design a unique lifetime plan to maximize the growth of the client’s wealth, but dovetail the lifetime plan with the estate plan to eliminate the impact of the estate tax.

It’s not as complicated as you think. Take this article to your professional advisor and discuss how the following strategies might apply to you:

For your business, ask how a captive insurance company can lower your property and casualty insurance costs. Also ask how an intentionally defective trust can transfer your business to your kids or employees tax-free. For your residence, look into a qualified personal residence trust or a 50/50 revocable trust ownership. For your qualified plan funds such as your 401(k) or IRA, a retirement plan rescue or a subtrust both avoid double taxation of your funds and turn them into three to five times more tax-free wealth. Finally, for your investment-type assets such as real estate, cash-like assets, stocks and bonds, ask about a family limited partnership.

Also, if you have charitable intent, look into charitable lead trusts, charitable remainder trusts and those wonderful family foundations. You can leave millions of dollars to charity without reducing the amount your heir’s inheritance.

When the above strategies are done correctly, it is not difficult to escape the clutches of the estate tax monster.