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Estate Planning Tips: New Tax Act Triggers Need for Estate Plan Audit and Review

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Feb 1, 2018

There are lots of updates in the media about the New Tax Act and how it provides increased wealth for some of us. For high income earners regardless of what sector you work in, you need to be fully aware of how the new Tax Act (H.R. 1- Tax Cuts and Jobs Act) might affect your estate plan (or why you probably need to get one done). Depending on your circumstance the impact can be significant. The key is to understand the new Tax Act and apply the changes to your personal situation, to ensure that the tax plan does not alter your estate plan’s original intentions in protecting your wealth for your family.

How the New Tax Act Could Affect Your Estate Plan

The new Tax Act H.R.1 was signed off by President Trump and there is no question it has an impact on estate planning. The new law doubled the federal exemption for estate tax, gift tax and the tax on generation-skipping transfers (GST), starting January 1, 2018. The lifetime exemption for each of these taxes is now $11.2 Million per taxpayer. If you are married, the total is now $22.4 Million of lifetime exemption. The exemptions are reduced by lifetime transfers prior to 2018 and are indexed for future inflation. The annual gift tax exclusion amounts also increased to $15,000 per donor per year.

What is interesting is that the increased gift, estate and tax exemptions are not permanent. This part of the Tax Act is scheduled to expire in 2026 and return to the prior exemption amount, which are $5.6 million plus inflation. Should there be changes in control of Congress and the Presidency (we have no control over this), things can change yet again. While it may make sense for some clients to take advantage of the increased exemptions and go with the flow, there is a risk that the new exemptions will unintentionally alter existing estate plans, requiring important and immediate changes. Our recommendation is to get your estate planning attorney to review your situation.

For example many estate plans for married couples use a certain formula to divide assets upon first and second deaths. How have you set yours up? At times upon the first death, the estate is held in a trust and access is given to the surviving spouse and/or descendants. Some families choose to say in their estate plan that only the descendants have access, skipping the surviving spouse entirely, or may provide fewer benefits to the surviving spouse. At second death, the estate plan will have yet again a different formula when it comes to dividing asset, based on the GST exemption, between children and grandchildren. There are tough things to work through but if you don’t it gets litigated in probate court, and the amount of wealth accumulated is reduced significantly for the family.

Tip: Under the new Tax Act, the larger exemptions may require a different set of “language” in your estate plan. This is important because in some instances, the changes may mean a reduction in what the surviving spouse receives, and what the children and grandchildren receive.

Tip: There could be provisions made now to take advantage of the opportunity to pass larger portions of their wealth to younger family members at minimal tax costs.

Velasco Law Group is an estate planning and litigation law firm located in Long Beach, Downey and Irvine. Our team of attorneys and paralegals are able to provide advice in English and Spanish. We work with professional wealth advisors all the time and can be a resource to you and your family. If you are going through a divorce, ensure that you check in with us as well. Change is difficult, but we are here to assist in protecting what is yours.

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