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General Planning Considerations

What is estate planning?

How much is the Vermont estate tax?

What is the difference between a power of attorney and an executor?

In Vermont, if someone dies without a will, is probate necessary?

Does a person in their 20s or 30s need estate planning?

Can a grandparent pay for a grandchild's private school?

Do the provisions of a will override a beneficiary designation?

What is the marital deduction

Can you protect your children's inheritance if you die first and your spouse remarries?

How can I ensure my children receive an inheritance if I die and my spouse remarries?

What is a blended family, and how does a blended family affect estate planning?

What are factors to consider when estate planning for a blended family?

Is it OK to treat my children differently in my estate plan?

How do you adjust your estate plan for an ungrateful son?

How do you cut off an alcoholic child from an inheritance?

What are some tips for selecting a Guardian for my children?

What are Pet Trusts, and are they allowed in Vermont?

What is the "Applicable Federal Rate"? Why is it important in estate planning?

Is the Gift Tax different from the Estate Tax?

What are some creative ways to get around the Gift Tax?

What's the best way to disinherit someone?

What are some good ways to begin discussing my parent's estate plan?

What is gift splitting?

What are Crummey Powers?

What powers does a guardian have?

What should be on the agenda for an estate planning family meeting?

Do payments for education avoid generation skipping transfer taxes?

What are some last minute estate planning options?





Q: What is estate planning?

Estate planning provides tools for conserving and distributing an individual’s assets in a coherent and tax-efficient manner. A complete plan allows you to control your property while you are alive, take care of you and your loved ones if you become incapacitated, and when the time comes, distribute what you have to whom you want, when you want. In addition, it allows you to save every tax dollar, professional fee and court cost legally possible.


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Q: How much is the Vermont estate tax?

The Vermont estate tax is a graduated rate on a decedent’s taxable estate when the estate exceeds $2.75 million (as of 2015). The graduated rate starts at less than one percent for taxable amounts below $90,000, and rises steadily in increments until it tops out at 16 percent for taxable amounts above $10.04 million. However, because of the way that the state estate tax is calculated in Vermont, the effective rate on the first dollar above $2.75 million is closer to 35 percent and this elevated rate continues until an estate reaches close to $3.3 million, at which point the effective rate begins to slowly decrease. Calculation of the Vermont estate tax is complicated at best, and misleading at worst. Efforts are being made in the state legislature to simplify the state estate tax framework, but as of the end of the 2015 legislative session, no change has been implemented yet.

 

 


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Q: What is the difference between a power of attorney and an executor?

Literally, a lifetime of difference. Powers of attorney of all sorts are effective only during the principal’s lifetime, whereas an executor’s powers come into being only after the death of the principal.

Powers of attorney are documents whereby an individual (the principal) authorizes someone else (the agent) to act on the principal’s behalf. This could entail the agent’s signing papers to bind the principal to a contract, engaging in financial transactions on behalf of the principal, or in the case of an Advance Directive, declaring what medical treatment the principal would want, or not want, if the principal is unconscious or otherwise unable to communicate their medical wishes. Powers of attorney are important documents that can be invaluable if the principal is injured or falls ill. However, because many powers of attorney for finances are very broad, it is essential that the principal pick as an agent only someone that they have absolute trust in. Even though the agent has fiduciary obligations to the principal, a broad power of attorney in the wrong hands can cause all sorts of problems.

An executor is someone you name in your will to manage your probate estate. Because a will does not take effect until your death and your choice of executor must be approved by the Probate Court, an executor does not have any authority to act until after the probate process has been initiated. Choosing an executor, much like an agent, is an important issue. Executor’s should be detailed, fair-minded and conscientious, and someone who will carry out your instructions in your will as precisely as possible.


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Q: In Vermont, if someone dies without a will, is probate necessary?

Whether probate is necessary depends on whether there are any probate assets. If all of a deceased person’s assets pass to a surviving spouse or someone else because the assets were jointly owned, then probate may not be necessary. Also, if a person had a trust and all of the deceased person’s assets were in the trust, then probate may not be necessary.

Most often, when a person does not have a will or a trust probate becomes necessary to ensure that creditors have an opportunity to ensure the deceased person’s legitimate debts are paid off, and to transfer title of real property and titled assets to the deceased person’s survivors. Vermont’s intestacy laws determine, in the absence of a will, how the deceased person’s assets will pass to the survivors.

See the articles: Overview of Vermont’s New Rules for People Dying Without a Will, New Law Allows Vehicles to Pass Probate Free, and Probate and Intestacy Are Readers’ Biggest Concerns on the Articles Page.


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Q: Does a person in their 20s or 30s need estate planning?

There are levels of estate planning applicable to every age.  While many people in their 20s and 30s do not need an elaborate estate plan, they should complete a few basic documents.  The most important documents for this age focus on planning for accidents or illness, and include an Advance Directive for Health Care, which allows someone to make medical decisions on your behalf and provides guidance as to the types of medical care you want and don't want; a General Durable Power of Attorney for Finances, which allows someone to make financial decisions for you; and a HIPAA Release, which allows hospitals and medical institutions to release your medical information to family members or others.  Additionally, if you have a family of your own, a basic will is advised so that you can name who would raise your children in the event you and your spouse were severely injured or killed.  Planning doesn't have to be complicated, but life tends to get very complicated when no planning is involved.

See the article: Misconceptions About Estate Planning on the Articles Page.


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Q: Can a grandparent pay for a grandchild's private school?

Grandparents may pay for the education expenses of a grandchild without any adverse tax consequences, provided the payments are made directly to the school and are considered by the IRS to be a qualifying education expense. Qualifying educational expenses include tuition for full-time or part-time students, but do not include payments for books, supplies, dormitory or boarding fees, or similar costs not directly related to tuition.

See the article: Unlimited Educational and Medical Payments Allowed Under Gift Tax Exemption on the Articles Page.


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Q: Do the provisions of a will override a beneficiary designation?

No, rather a beneficiary designation overrides the provisions in your will. The reason is that your beneficiary designations form part of a contract that you have with the financial institution managing the account, and contractual provisions overrule language included in a will. For this reason, it is advisable to check every couple years to ensure all of the beneficiary designations on your financial accounts, including retirement accounts and life insurance policies, are up to date and reflect your current wishes. Also, if you are recently divorced or widowed, update your beneficiary designations immediately. It frequently happens that former spouses receive life insurance proceeds, to the dismay of current spouses.

See the articles: Why Beneficiary Designations Are So Important and Beneficiary Designations Are the Final Word on the Articles Page.


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Q: What is the marital deduction

The marital deduction allows for unlimited lifetime gifts between spouses, and for unlimited transfer of assets from a decedent to their surviving spouse. The deduction, equal to the value of the assets transferred, applies as a deduction against gifts in the calendar year when occurring between living spouses, or as a deduction against the deceased person’s gross estate for estate tax purposes.

For gifts between spouses, if the recipient spouse of a gift is not a U.S. citizen at the time of the gift, the deduction is limited to $100,000. For estate taxes, if the surviving spouse is not a U.S. citizen, the deduction is also limited, but the limitation can be circumvented through use of a qualified domestic trust set up before the death of the first spouse.

The marital deduction is an important estate planning option that is frequently used to rebalance estates between spouses, and to delay estate taxes until the death of the second spouse so that the surviving spouse’s standard of living is not substantially reduced.


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Q: Can you protect your children's inheritance if you die first and your spouse remarries?

Yes, but you have to avoid simplistic estate planning that leaves everything to your spouse if you die first. Most basic wills leave everything to one’s surviving spouse, who may decide how all the family assets are distributed upon their death, because they own everything. Instead of leaving everything to your spouse, you can leave your share of the family assets to your children in trust, but give your spouse limited access to the assets in trust for the remainder of his or her life. That way your spouse has access to the assets so that their standard of living can be maintained, but upon your spouse’s death, the assets pass to your children. This is a common planning scenario where blended families are involved. Blended families exist where one or both spouses has children from a prior marriage.

See the articles: How to Avoid Disinheriting Your Children and The Casserole Brigade on the Articles Page.


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Q: How can I ensure my children receive an inheritance if I die and my spouse remarries?

You can accomplish this through a will or a trust. If through a will, you simply name your children as beneficiaries. Keep in mind that your spouse has a right to what’s known as an “elective share” whereby they can inherit a portion of your estate regardless of what the will states. One problem with the will approach is that if you leave a sizable portion of your estate to your children, your spouse might need to scale back their standard of living. For this reason, many people opt for a trust that is structured so that the surviving spouse has limited access to the deceased spouse’s assets for the remainder of the surviving spouse’s life, but upon the death of the surviving spouse, the assets pass to the first decedent’s children. By creating the trust structure, you are allowing your spouse to maintain their standard of living, while ensuring that the remaining funds eventually pass to your children.


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Q: What is a blended family, and how does a blended family affect estate planning?

By blended families, we mean a situation where one or both spouses have children from a prior marriage.  It's important for the estate planner to point out the potential landmines in a blended family situation, and for the married couple to plan accordingly. 

For instance, planning for blended families usually calls for a revocable living trust so that the first spouse to die does not inadvertently disinherit their children from the prior marriage. If the first spouse to die simply passes their assets to the surviving spouse, the surviving spouse may exclude the decedent spouse's children from their estate plan, which is usually not what the decedent spouse would have wanted. Through a revocable living trust, each spouse can ensure that all of their children will remain beneficiaries of their inheritance.

Other considerations include whether to limit (and to what degree) the surviving spouse's access to the decedent's assets, who to name as trustee of the various trusts, and how to protect your children's inheritance from the surviving spouse's new romance.

For more information on estate planning with blended families, see How to Avoid Disinheriting Your Children and The Casserole Brigade on the Articles Page.


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Q: What are factors to consider when estate planning for a blended family?

There are many factors to consider when working with a blended family because these situations have inherent conflicts built into the family relationships. The most obvious conflict is between the surviving spouse and the decedent’s children from a prior marriage. Questions to ask include:

  • How much access should the surviving spouse have to assets in the Marital and Credit Shelter trusts?
  • Should the surviving spouse be trustee, or a co-trustee, of these trusts?
  • Should all the decedent’s assets be tied up in these trusts for the lifetime of the surviving spouse, or should your children from a prior marriage receive something upon your death?
  • Do you intend to treat all of your children equally even though they come from different marriages?
  • Do you treat your stepchildren equally to your own children?
  • Should the surviving spouse have a power of appointment?

There are a lot of issues to go over when a blended family engages in estate planning. It’s best to consult a seasoned estate planning attorney who can point out the issues and the options available, because the conflicts can later tear a family apart if these issues are not handled well.

See the articles: How to Avoid Disinheriting Your Children and A Family Meeting to Discuss Your Estate Plan on the Articles Page.


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Q: Is it OK to treat my children differently in my estate plan?

It’s both OK and sometimes advised, but dependent entirely on one’s personal and family circumstances. The default for most parents is to treat their children equally, but situations arise where leaving money to one child already very well off doesn’t seem to make sense when other children are equally productive but in careers that simply don’t compensate as much. Factors that go into this decision include the amount of money at issue, whether a child will feel slighted if their share is unequal, and possibly whether a child simply doesn’t deserve as much as their sibling, among other issues. Talking through how you want to proceed, and the best way to accomplish your plan, is best done with an experienced estate planning attorney, who has seen these situations before.


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Q: How do you adjust your estate plan for an ungrateful son?

Some parents disinherit their children with no regrets, others struggle with how to handle this uncomfortable situation. There are several options for dealing with difficult children, including making uneven distributions among your children, altering the timing of distributions, and leaving your children their inheritance in different forms, for example one child could receive their inheritance outright while another receives theirs in trust with a corporate trustee to manage it. With a trust, you could also place conditions on distributions so that the beneficiary must meet certain requirements before distributions are made from the trust. There are many options available, which your estate planning attorney can discuss with you.

See the article: Estate Planning with Difficult Children in Mind on the Articles Page.


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Q: How do you cut off an alcoholic child from an inheritance?

It’s possible to disinherit someone entirely in a will or trust, or to condition distributions from a trust on the alcoholic beneficiary meeting certain requirements, such as sobriety, before a distribution can be made. Establishing a reliable method for determining continuous sobriety may be problematic, but if the parent can settle on language they are comfortable with, the provisions can be enforced through the use of a trust.


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Q: What are some tips for selecting a Guardian for my children?

When selecting a guardian for your children, one overriding concern is to reduce the children’s stress as much as possible. With this in mind, consider a family member with a close relationship to your children so that the transition is more predictable, or a guardian that lives near your home. Consider what changes the guardian will have to make in their own lifestyle to accommodate your children. You don’t want to cause upheaval in the guardian’s household because this too causes stress that might be released in unexpected ways. For instance, you should consider a guardian who has similar-aged children of their own or someone who is economically independent so that your children will not be a financial burden. Consider a guardian who shares your core beliefs, such as religious and moral values, your philosophy on education, discipline and upbringing, even your politics. It is usually best to avoid naming a couple; instead name the husband or wife so that if the couple later separates or divorces, there will not be any dispute as to who remains the legal guardian. 

Also, a good rule of thumb for nearly all positions in estate planning is to name at least one backup, or alternate, in case the first person named is unable or unwilling to take on the responsibility. To avoid selecting someone who would prefer not to accept this responsibility, talk to the prospective guardian first to gauge their willingness and to share your hopes for your children.  Finally, be prepared to re-evaluate your choice every 3-5 years to ensure that your existing selection remains the best available choice in light of changing circumstances.

See the article: Tips on Selecting a Guardian for Your Minor Children on the Articles Page.


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Q: What are Pet Trusts, and are they allowed in Vermont?

Pet trusts and related documents make arrangements for your pets in the event you become incapacitated or die.  What happens to your pet if no one is available to care for them?  Often they are put to sleep.  Pet owners frequently assume that a family member or close friend would take care of their pet, but that too often turns out to be wishful thinking.  The Humane Society of the United States estimates that 9,600 dogs and cats are euthanized in this country every day. 

If you want to plan ahead for the care of your pet, there are several ways to go about it.  You can have an informal agreement with a family member or friend that the person take over care and management of the pet.  Informal agreements often work, but be aware that two common situations sometimes get in the way.  First, sometimes more than one family member thinks they are getting the pet, or if the pet is valuable, such as a purebred dog or cat, a rare bird or a horse, more than one family member may seek custody.

More advanced planning includes naming the person who should receive your pet in your will, setting up a pet trust, or creating an agreement whereby you list who receives the pet, whether money will be provided for the pet's care, and other information relevant to the pet's proper care, such as medical conditions, favorite toys, unusual habits, etc. Pet trusts, which became available in Vermont earlier this year, allow for naming a person to care for your pet and putting aside money that can only be spent for the pet's care, which can include funds for daily expenses and activities, boarding when necessary, pet insurance and the like. 

For more information on planning for pets, see Estate Planning and Pets on the Articles Page.


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Q: What is the "Applicable Federal Rate"? Why is it important in estate planning?

The Applicable Federal Rate (AFR) refers to three rates determined by the U.S. Treasury based on debt instruments of varying maturities. The federal short-term rate applies to debt instruments with a term of three years or less; the federal mid-term rate applies to terms of more than three years, but not over nine years; and the federal long-term rate applies to terms of more than nine years.

The AFR comes into play in estate planning in many areas, most of which benefit from a low interest-rate environment. These include low-interest intra-family loans, installment sales of a closely held business or family limited partnership, grantor retained annuity trusts (GRAT), charitable lead annuity trusts (CLAT), private annuities, and self-cancelling installment notes (SCIN). In recent years, AFRs have been at historically low rates, making many of the above estate planning strategies worth investigating.


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Q: Is the Gift Tax different from the Estate Tax?

Yes. The gift tax is separate, but recently reunited with the estate tax under the provisions of the Tax Relief Act of 2010. Unlike the estate tax, which is applied after a person's death, the gift tax is levied during a person's life. The person making the gift is known as the donor or transferor, and is responsible for paying the gift tax.  Gift tax returns are due by April 15 of the year following the calendar year when the gift was made.

Gift tax rules are more complicated than most people realize. To arrive at the gift tax, you take the value of the gift, subtract the annual exclusion amount if not already used for the recipient, subtract amounts passing to a spouse or charitable organization, then add in any applicable generation skipping transfer taxes payable, which results in the taxable gifts for the relevant year. The gift tax is cumulative, so the amount of gifts made in prior years is added to the current year gifts to determine the total taxable gifts. Then, figure the tax on the total taxable gifts, and the tax on the current year gifts; subtract the latter from the former, and you arrive at the gift tax for the current year. Finally, subtract the donor’s unified credit, provided the donor has some available, and you arrive at the gift tax due for that year.

There are important exceptions to the gift tax laws, including payments made directly to qualifying educational and medical institutions. Whenever making sizable gifts of more than $13,000 to any individual, consult an attorney or a CPA to see how best to minimize gift taxes.

See the article: Giving Gifts on the Articles Page.


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Q: What are some creative ways to get around the Gift Tax?

With the reunification of the estate and gift tax rates, an individual may, under current law, give $5 million in lifetime gifts (a married couple may give $10 million) before gift taxes become due. Few people need to exceed that amount, but if you see a need to give more, or you don’t want to reduce your estate tax exemption amount, here are some opportunities in the existing gift tax laws that allow substantial tax-free gift giving to family members, friends and charitable organizations.

First, consider the annual gift tax exclusion amount of $13,000 per person, to any number of people you choose. Couples may give $26,000, and if a couple is making gifts to a child and spouse, the amount doubles to $52,000 per year.

Second, consider the gift tax exclusion for education and medical payments made directly to the provider. You can give an unlimited amount of qualified payments for tuition and medical expenses, including medical insurance.

Third, consider gifts to public charities or private foundations.

Fourth, if married, consider making gifts to your spouse. You might consider this if your property is separately owned, and one spouse’s net worth is below the Vermont or federal estate tax exemption amount, while the other spouse’s exceeds the state or federal exemption amount and thus would be subject to tax if they were the surviving spouse.

See the articles: Giving Gifts and Creative Ways to Pay for Education on the Articles Page.


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Q: What's the best way to disinherit someone?

To disinherit someone who would otherwise likely receive a portion of your estate through the Vermont intestacy laws, you need to have a written will or trust. Absent a written document, the intestacy laws will control. With a will or trust, most attorneys suggest naming the person who you wish to disinherit, but stating that although they are a child (or other relationship) of yours, you wish to leave them nothing. Many attorneys advise against providing reasons for your actions, as the disinherited person could contest the will later on the grounds that those reasons no longer applied. Some attorneys recommend leaving the person a nominal amount and including a “no contest” provision. By doing this, the disinherited person has to weigh receiving the nominal amount against contesting the will and potentially receiving nothing if they lose in court.

Keep in mind, surviving spouses cannot be disinherited. A surviving spouse may waive the will and exercise their “elective share” to take one-half of their deceased spouse’s estate. Your children and others do not have similar rights.


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Q: What are some good ways to begin discussing my parent's estate plan?

There are three common approaches to raising the issue of estate planning with elderly parents. One method is to discuss what happened to a family friend or neighbor who recently died, particularly if the lack of estate planning caused family problems. You and your parents can learn from their mistakes. Another method is to begin your own estate planning and mention to your parents what you have learned. You can also state that your attorney wants to know how your parents estate planning is set up so that the attorney can plan accordingly. The final method is to suggest your parents get organized, first with getting important paperwork in order, then addressing incapacity issues with an Advance Directive, a power of attorney for finances and a HIPAA release. Once your parents complete those documents, the next natural step is drafting a will or trust. Be aware that patience is important, and recognize that as the elderly get older, one of their biggest fears is losing control, so attempting to micro-manage the process could very well backfire. It’s never an easy conversation, but it will undoubtedly benefit everyone.

See the NEET articles: Talking to Your Parents About Estate Planning on the Articles Page.


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Q: What is gift splitting?

When a married person makes a gift to a person other than his or her spouse, both spouses may elect to treat the gift as though it had been made one-half by each of them. This allows a donor to make a gift of double the annual exclusion amount ($14,000 in 2013), if their spouse consents.

There are some rules. First, both spouses must be a citizen or resident of the United States. Second, the couple must be married at the time of the gift and the consenting spouse may not remarry during the remainder of the calendar year. Third, an election to split a gift applies to all gifts during the calendar year when the gift was made. In other words, spouses may not pick and choose which gifts made during the year will be treated as split gifts and which will not. The spouse’s consent to splitting gifts is made on a gift tax return that is due by April 15 of the year following the year in which the gift was made.


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Q: What are Crummey Powers?

Crummey powers are often used in conjunction with Irrevocable Life Insurance Trusts (ILIT) to make a gift to a trust qualify for the gift tax annual exclusion. In order for a gift to qualify for the gift tax annual exclusion, it must be a gift of a present interest. In the context of ILITs, the Grantor makes a gift to the trust, which the trust beneficiary has the power to withdraw. If the beneficiary does not exercise the power to remove the contribution within a stated time period, often 30 days, the power lapses and the contribution can be used to pay a life insurance premium or for other purposes. It’s important that there not be a written understanding or other agreement between the Grantor and the beneficiary that the beneficiary will not remove the Grantor’s gift to the trust, because then the IRS will find that the Grantor’s contribution was not a present interest gift.

See the articles: Doubling Life Insurance Proceeds with an ILIT and Uses of Life Insurance in Estate Planning on the Articles Page.


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Q: What powers does a guardian have?

The answer depends on the Probate Judge who appointed the guardianship. The Probate Judge usually designates specific powers to the guardian in regard to the ward. Aside from the specific powers, guardians must promote and protect the best interests of the ward, and ensure that the ward receives the benefits and services that the ward is entitled to. Common benefits and services include education for wards of school age, residential services for wards who lack adequate housing, nutritional services, medical and dental services, and therapeutic and habilitative services, such as adult education and vocational rehabilitation.


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Q: What should be on the agenda for an estate planning family meeting?

The circumstances surrounding the family meeting often drive the agenda. Most family meetings include having the attorney provide the children a general overview of their parent’s estate plan, including how the plan is designed to work, and how the children will inherit, e.g. either in trust or outright. If the children are inheriting in trust, which is increasingly common, the children need to be advised of the benefits of this approach, and the importance of leaving assets in trust for as long as reasonably possible. A similar discussion is usually held regarding IRA assets and how they will pass. Successor trustees and other fiduciaries should also be informed of their future role, what will be expected of them, and how they can access help when they have questions. One of the primary purposes of a family meeting is to avoid surprises later, so that children can understand what their parents did in their estate plan, and why they did it that way. Family meetings are not appropriate for all families, but when possible, they can head off disputes later that invariably become costly and cause needless divisions among siblings.

See the article: A Family Meeting to Discuss Your Estate Plan on the Articles Page.


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Q: Do payments for education avoid generation skipping transfer taxes?

Yes, provided the payment for tuition is a qualified transfer falling under Internal Revenue Code Section 2503(e). Qualifying tuition payments are not treated as a transfer of property by gift, nor are they subject to the generation skipping transfer tax (GST).

GST exemptions apply to the annual gift tax exclusion (currently $13,000 per year) and direct payments for qualifying tuition or medical expenses under IRC 2503(e) because the GST rate of tax depends on the definition of the exclusion ratio. The exclusion ratio for direct skips that are nontaxable gifts is set equal to zero, therefore there is no tax on these transfers.

See the article: Unlimited Educational and Medical Payments Allowed Under Gift Tax Exemption on the Articles Page.


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Q: What are some last minute estate planning options?

Provided the person is still competent, traditional estate planning can be done on an expedited basis. Some attorneys are willing to turn around an estate plan, including funding of trusts, within a few days, although usually at a premium to the attorney’s standard rates. Other options include using the annual gift exclusion to make cash gifts to any number of people, and if the person is married, gift splitting should be under consideration. Also in the gifting area, payments for a family member or friend’s medical expenses or tuition payments would also be tax free, provided the payments are qualified and made directly to the institution. Gifts to charitable organizations should also be considered.

If the person is not competent, these options are probably not be available unless the person has completed a durable power of attorney for finances that specifically authorizes an agent to make gifts on behalf of the principal. In Vermont, an agent may not make a will on behalf of the principal, but there is no similar prohibition on making a trust, provided the power of attorney specifically authorizes it.

Other options may exist, but would require speaking to an estate planning attorney regarding the specifics of the situation.


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