Many legislative changes are expected over the coming months as our country transitions to a new administration. Although the Biden administration’s plans for estate tax reforms have not been fully detailed, signals from Biden’s campaign indicate that two major changes will likely be introduced to Congress:

• Reduction of the lifetime exemption. The current $11 million lifetime exemption amount (adjusted annually for inflation) that went into place as part of the Tax Cuts and Jobs Act of 2017 (an increase from the previous $5 million exemption) is set to expire at the end of 2025. For the year 2021, individuals may gift up to $11.7 million during life or at death without gift or estate tax consequences. If left unchanged, this amount would continue to increase with inflation until 2026 when the exemption amount would return to $5 million. However, many expect that the Biden administration will propose adjusting the lifetime exemption amount downward, possibly to $3.5 million per individual.

• Elimination of the stepped-up basis for capital gains at death. Currently, inheritors enjoy the benefit of a stepped-up basis on capital assets (certain investments such as stocks and bonds, real estate, cars, etc.) upon a decedent’s death. This means that appreciated capital assets previously owned by the decedent are valued at the fair market value as of the decedent’s date of death for tax purposes. As such, any capital asset appreciation that occurred prior to the decedent’s death is not subject to capital gains taxes under current federal estate tax law. The Biden tax plan seeks to eliminate the stepped-up basis, which means that any appreciation on capital assets held by the decedent during his or her lifetime would be subject to capital gains taxes. Further, Biden’s tax plan has proposed a long-term capital gains tax increase that could double the capital gains tax rate for wealthy individuals.

Now that the Democratic Party controls both the House and Senate, it is very likely that tax reforms will be made. However, with other pressing issues including COVID-19 and economic relief, many believe that changes to the current tax structure will likely not occur until the end of 2021 and will not go into effect until 2022. As such, this year should provide time to consider making gifts, perhaps recognize capital gains early, or make other adjustments to address the impact these changes could have on your estate plan.

References for additional information:

Biden’s Tax Proposals and Estate Planning (Skadden)

What Does A Biden White House Mean For Estate Planning? (Forbes)

10 Biden Tax Plans (MarketWatch)

Joe Biden’s Tax Plans for the Next Few Years (Kiplinger’s)

2020-2021 Capital Gains Tax Rates - and How to Calculate Your Bill (NerdWallet)

With the end of 2020 in sight, a few last minute estate planning considerations provided by JD Supra can help you close out this turbulent year with confidence and a clean slate:

1. Make gifts of cash to public charities to take advantage of tax laws;

2. Have discussions regarding your estate plan with your family over the holidays;

3. Review and update your estate plan every few years or after a major life event such as a birth, death, or marriage;

4. Check account ownership and beneficiary designations to make sure they still reflect your wishes;

5. Make sure your family knows how you would like your affairs to be handled in the event of your incapacity and where all pertinent documents (powers of attorney, living wills, advance directives, etc.) are stored;

6. Investigate life insurance options for the benefit of your dependents or loved ones; and

7. Finalize or pledge charitable gifts that qualify for 2020 tax purposes.

Wishing you joy and happiness this holiday season, and a safe and bright start to a brand new year!

With the holiday season upon us, especially this year, care and concern for family and loved ones takes on particular importance. Although contemplating what will happen to our assets should we lose capacity or pass away is not a typically joyful holiday pastime, thinking broadly about your main goals for your estate plan can provide a positive starting point. To help you get started, below are some of the most common estate planning objectives:

• Provide financially for oneself, spouse, children, or other friends and family members

• Minimize estate and income tax consequences

• Appoint a guardian for children

• Give to charities, churches, or other organizations

• Contribute to educational costs of loved ones

• Protect assets from creditors

• Appoint representatives in the event of incapacity

• Simplify the process of asset transfer for family members

• Give specific items of personal property to family or friends

• Avoid the probate process

Taking the time to consider what you wish to accomplish with your estate plan can make the process seem less daunting and provide a clear roadmap for developing your plan. For more information on ways to meet your estate planning objectives, take a look at this recent piece from Forbes.

When I started my estate planning business seven years ago this week, I never would have dreamed that I would be meeting clients in a makeshift outdoor office.  Yet, here we are.  While law school does not prepare attorneys to operate in a global pandemic, it does prepare us to maintain composure while navigating unexpected twists and turns.  To say there were a lot of those this year would be a drastic understatement.

As the COVID-19 pandemic took over our lives, estate planning came to the forefront of the minds of many.  My business has doubled over last year through the pandemic.  Thank you to my clients for entrusting me with your estate planning needs, particularly through this turbulent time.  I am incredibly grateful for the grace all of my clients have shown while listening to my children carrying on in the background of Zoom meetings and phone calls with good humor and kind understanding.  Your flexibility in moving to virtual appointments and meetings in our driveway, garage, or patio has made this stressful time manageable.  I am so thankful for your amiability.

As always, thank you to my family, friends, and professional network for your continued support.  Your referrals are so appreciated and your trust in me to serve your clients and loved ones is truly meaningful.

If nothing else, the past few months have given many of us a greater appreciation for the value of our homes. A home is typically the largest non-financial asset Americans own at the time of death. As such, the transfer of one’s home is often a major consideration during the estate planning process. Whether the goal is to avoid probate, minimize capital gains, or attempt to qualify for Medicaid, there are several ways a home can be transferred through an estate plan.

If you have been in your home for a number of years, the value of your home has likely appreciated markedly since the time of purchase. Therefore, simply gifting your home to a loved one during your lifetime could have significant capital gains tax implications. So, what are some effective ways to plan for a transfer of your home while minimizing capital gains? Below are a few options:

1. Living Trust: By transferring a home into a living trust, the home is immediately taken out of the original homeowner’s estate. This means that when the original homeowner passes away, the transfer of his or her home will not involve a probate court. Upon the death of the original homeowner, a home that has been placed in a trust can be sold and proceeds distributed to loved ones with the benefit of a stepped-up basis for capital gains considerations.

2. Life Estate: By reserving a life estate in a home, the original homeowner maintains the right to live in the home during his or her lifetime. Upon the original homeowner’s death, the home transfers (with a stepped-up basis) to the named beneficiary. It is important to keep in mind that the original homeowner gives up many ownership rights to the property, including the ability to mortgage or sell the home, during his or her lifetime.

3. Transfer on Death Deed: Also known as a Lady Bird deed, a transfer on death deed allows the original homeowner to maintain full control and possession of the property during his or her lifetime. Upon the death of the original homeowner, the home will transfer to the named individuals outside of the probate process.

When all factors and options are taken into consideration, an estate plan can be a very useful tool for arranging the transfer of a home. To learn more, check out this recent article published by Forbes.

A huge thank you to so many who shared and took advantage of the free health care power of attorney and living will promotion over the past 4 months! Wishing everyone a fun and safe 4th of July!

While establishing a comprehensive estate plan is essential, your plan could prove useless if your loved ones do not know how to access it when needed. Hunting for an estate plan during an emergency situation is not something a scared or grieving loved one should have to do. Especially in consideration of the unpredictability and seriousness of COVID-19, it is important to make sure your will, powers of attorney, and living will are easily accessible should you become ill or incapacitated. In a recent article, Forbes provides some ideas for storing a “go package” containing your most important estate planning, insurance, and medical documents in a convenient spot where it can be quickly retrieved by you or a loved one.

Recommended documents and information to compile in the “go package” include:

1. Medical power of attorney or advance directive;

2. Living will;

3. Financial power of attorney;

4. Last will and testament;

5. Living trust agreement;

6. Copy of insurance and/or Medicare card and information;

7. General medical history including chronic conditions, prescriptions, supplements, over-the-counter medications, and allergies;

8. Full legal name, birth date, and Social Security Number;

9. Emergency contacts; and

10. Contact information for medical providers.

Storing these items in a spot near the exit to your home where the package can be easily picked up on the way out the door or in another conspicuous location that is known to your loved ones can save time and stress in an emergency.

In the face of a global crisis, I wish you comfort in holding on to what is important and trusting that these times will pass. As uncertainty abounds, please feel free to continue to contact me with any questions or planning needs. Document review and consultations are always free of charge. I will continue to offer free health care powers of attorney and living wills until July 4th, 2020. If you or a loved one need these or any other planning documents, please be assured that I work quickly to deliver documents promptly and coordinate witnessing and notarization.

Through this unsettling time, some have taken the opportunity to pontificate, some to take action, and others to simply tune out the noise and wait for it to end. The beauty lies in the fact that we live in a country where we are free to do as we choose, yet recognizing that the vast majority of Americans are suffering, sacrificing, and doing their individual best for the sake of all. Thank you to all of the helpers across every industry giving it your very best when we need you the most. May we always remember those who choose with humility and courage to stay standing in our corner through our greatest trials refusing, without exception or excuse, to let us fall.