This is the sixth in my series of the 10 most common estate planning mistakes.
Gifting is an important, frequently unused, estate planning tool. In the overall scheme of things it is actually very simple.
All you have to do is make gifts on a regular basis. The idea is to establish a pattern.
There are periods of our lives when we can make gifts. We can gift as long as we are competent. We can continue giving even in impotency by the use of a durable power of attorney. Finally, we can give by the use of last will and testament or a living trust.
How do you do this?
The best way is to write gift checks to your children as birthday and Christmas presents. You may do the same for grandchildren.
Checks to church and charities are important. The checks will become the evidence of your gift-giving pattern. Obviously you can continue to do this as long as you remain competent.
Why do you want to do this? You want to establish a plan of giving with adequate evidence to support your plan. Keep your records of contributions to church and charities and the members of your family as well as bank records of checks you have written.
Without adequate records as evidence no pattern can be established.
If you become incompetent without a durable power of attorney you have to have a conservator appointed by the probate court. Gifts will not be allowed unless there is an adequate record of gift giving.
If sufficient evidence is presented, the court will grant an order to make the gifts based on the record.
Should you suspect that you might need to depend on governmental assistance, gift giving may be considered. Qualifying for benefits depends on assets and if you have given it all away you will be subject to the five-year look-back rule and most likely disqualified.
A long, well-established pattern may be considered an exemption from the five-year look back rule.
Giving is a great way to reduce your estate for estate tax purposes. At present the federal gift and estate tax laws are uncertain. Congress may make changes in the present law. No one, some say, even Congress, knows what the result will be.
It is imperative that you contact your tax adviser to determine the tax law for the year you make a gift. Even though the tax rate no longer affects many, you may need to reduce your estate.
In such case, you will be giving up principal as well as income. Make sure you are able to live on the balance before you start giving, especially in large chunks.
To determine whether this will work, consult your financial adviser who should be able to indicate whether you have sufficient assets to need to use a gifting plan. Having asked and obtained the advice of your financial planner, there will be a witness to help establish your giving plan.
If you only want to give income, consider the amount you may have accumulated during the year. Has it been possible for you to spend less than your income? Do you have more in your checking account at the end of the year than you did in the beginning?
You are very lucky and should consider making gifts of that excess.
You could grant the gift-giving authority to the individual to whom you grant a power of attorney. This must be specifically stated in the document to grant that power to your attorney in fact.
Do you want gifts to your children to continue? What about your church and favorite charities? Do you want to state specific amounts?
Think about what you have been doing and whether you will want them to continue when you may not be able to do so yourself.
The final method of making gifts would be to the beneficiaries of your last will and testament or in your trust. It is within these documents, whichever you want to use, that you may specify to whom you want to make specific bequests.
There are two methods — specific amounts or percentages. For example you might give $10,000 to your church or you could say that the church is to receive 10 percent of your estate.
There are many other ways, just use your imagination.
When you and your lawyer sit down to draft your will or trust, discuss your plan for specific gifts. Then decide what you want to do and put it in your will or trust.
One thing many neglect to do is consider to whom to make specific gifts or bequests in the event that all of your children, parents and siblings pass away before you.
It may be very unlikely but you should have a plan.
Where would you want your estate to go if none of your immediate family was alive at the time of your death? Brothers, sisters, cousins, aunts and uncles, friends, church, charities, etc. are all good possibilities.
Even though you think it will never happen, you should have a plan for distribution in the event those most close to you are no longer living when you die. If you die without a will or trust the distribution of your estate will be governed by the state’s law of descent and distribution.
There is not sufficient space to discuss that law, suffice it to say you may not like it. Talk to your lawyer about it.
As with all of my articles, none of the suggestions here are meant to specifically apply to you. The intent of this article is to give you information and raise questions.
It is important that you contact your own financial adviser, insurance agent, accountant and lawyer to determine what is best for you and your particular set of circumstances.