Upstate Estate Law, P.C. Blog

There were no real Congressional debates in September on extending the Bush Tax Cuts, or what to do about the repeal and pending reinstatement of the estate and generation skipping transfer taxes.  Congressional members have left D.C. until after the midterm elections in November.  Democrats did not want to suffer a defeat on their proposals prior to the midterms, and the Republicans wanted to keep the issue alive as a talking point in the run up to Election Day. Unsurprisingly, playing politics has won out to responsibility in our tax laws.  Can this be one of the reasons it seems a majority of the American people is fed up with politics as usual?

One way or the other, we will soon have certainty on the future of the estate and generation skipping taxes.  Stay tuned……

Absolutely.  Your financial planner can play a role in your estate planning.  If your planner has recommended particular products to you, such as life insurance, annuities, or IRAs, consideration should be given to the effect that such assets can have on your estate plan, including your estate tax liability. Reviewing your estate before purchasing these products could best inform you of how to best structure these products to maximize estate tax savings or insure that your testamentary intentions are carried out fully.

However, there does seem to be some financial planners who do not entirely understand the attorney’s role in the estate planning process.  I have been contacted in the past by financial planners who tell me that they have a client who requires estate planning, that the planner has made recommendations to the client regarding estate planning, and that the planner simply wants to hire me to draft the documents that conform to his/her recommendations.  My policy has been to always refuse such offers. In my opinion, this sort of relationship between attorney and financial planner does a disservice to the client in that the client believes that they have had an attorney review their estate plan, and yet, the attorney has not given any sort of independent advice to the client.  This independent advice is crucial to the attorney-client relationship. 

Furthermore, such activity by a financial planner could be viewed as the unauthorized practice of law, with the attorney being accused of facilitating the unauthorized practice of law.  I have even had some financial planners say that all I will do is draft the documents, not even meet the clients.  This is fraught with danger to attorneys and their bar licenses.  There was a recent report from the Indiana State Bar of a suspension of 120 days being given to an attorney who drafted a Will intended to be signed by a person with whom the attorney never met.

There is a middle ground that must be found here. The financial planner wants to be a trusted long term adviser to his client, and may feel uncomfortable in turning the client over to an estate planning attorney.  However, the professional ethics of the attorney require that the attorney act as more than a mere scrivener to the financial planner.   

In all instances when I am referred a client by a financial planner, I discuss with the financial planner what are believed to be the estate planning issues to be dealt with. But I always thereafter meet with the client separately from the financial planner, so that the client can truly believe that the attorney they have hired is giving them independent and unbiased advice.

Here is an anecdote which I believe demonstrates the danger to any attorney who agrees to be employed as a financial planner’s scrivener.  Suppose a financial planner advises his client to make irrevocable transfers of assets to an irrevocable trust.  Suppose that an attorney then follows the financial planner’s directions, drafts the irrevocable trust, and then drafts the transfer documents. The financial planner then supervises the execution of the documents.  What could be the problem?  You did what the client wanted after all.  BUT, suppose five years down the line that client realizes that because of changed circumstances they need those assets back from the irrevocable trust?  That client will probably go to an attorney (not you because the client does not know who you are) and discuss with that new attorney ways to overturn the trust.  That new attorney will likely advise the client to petition to overturn the trust based on lack of adequate and independent legal representation. Do you as an attorney really want to testify at a deposition on the record that you drafted estate planning documents for people that you never met, that the non-attorney financial planner was calling all the shots, and that you exercised no independent judgment as to the propriety of the irrevocable transfers? That is not a position I ever want to be in.  All of my estate planning clients get the benefit of my independent and unbiased advice.  Any circumstances that arise that seek to alter this independence deserve increased scrutiny.

So what should you do if your financial planner makes estate planning recommendations to you? First, ask the financial planner if he has attorneys working in his company who can give independent estate planning advice.  If the answer is no, ask for recommendations for an estate planning attorney in the community, and then contact that attorney for an appointment.

Any financial planner that tells you that they can manage your investments and also draft the documents required to effectuate your estate plan without you having to ever visit an attorney is doing you a disservice.  The estate plan will be subject to an increased likelihood of being challenged and set aside by a court, and you will be denied the value of independent advice.             

Like any decent lawyer, I need to add a disclaimer here: unfortunately, it is impossible to offer comprehensive legal advice over the internet, no matter how well researched or written. And remember, reviewing this website and my blogs doesn’t make you a client of my Firm: before relying on any information given on this site, please contact a legal professional to discuss your particular situation.

A recent development on the federal estate tax.  Senators Kyl and Lincoln are still working together to enact legislation fixing the current estate tax regime.  Under their proposal, the estate tax will return in 2011 with an exemption of up to five million dollars per person, ten million dollars per couple, to be indexed for inflation.  There would be a return to stepped up basis for inherited assets.  The rate of tax would gradually be reduced to 35%.

A novel idea is also to give estates of persons passing away in the year 2010 the choice to either pay estate tax under the new system and receive stepped up basis, or not pay estate tax and deal with the carry over basis rules and the resultant capital gains taxes. Such a decision calls for an evaluation of the economics of paying the estate tax versus paying the capital gains taxes (generally, smaller estates will be better off paying the estate tax and getting the stepped up basis for estate assets, while larger estates far in excess of the exemption would likely be better off paying the capital gains tax).  Such an evaluation would be similar to the evaluation currently undertaken to determine whether it is more beneficial to report estate asset values as of the date of death versus the alternate valuation date.  

Back to my all too familiar refrain on this issue: stay tuned.

First off, this Yankees fan would like to say thank you to George Steinbrenner for his successful stewardship of the New York Yankees over the past several decades.  RIP The Boss.  As a friend of mine said, somewhere in heaven Thurman Munson, Billy Martin, and George Steinbrenner must be having their long-awaited sitdown.

Now to blog business.  From a purely estate tax point of view, George Steinbrenner picked a pretty good year to pass on. There is no federal estate tax this year. The estate tax savings can be measured in the hundred’s of millions of dollars, considering a net worth north of one billion dollars.  I believe The Boss was domiciled in Florida, a state with no state estate tax, which results in additional estate tax savings.   On the other hand, The Boss may have owned some real property in New York, a state that can take a fairly good bite out of an estate with its estate tax.  But with no really good information as to his holdings and estate plan, it would be mere speculation to estimate what the New York estate tax might be.

It is more interesting to think about the possibility that Click here to finish this post.

Lives change. Personal relationships change. Assets change. And certainly laws change.  Why then is your current estate plan fifteen years old, or even five years old?   To borrow a common quote about education and learning, estate planning is by its nature a process, not an event.  If your estate plan was put into place greater than five years ago, you should think about a review.

As a demonstration of the estate planning as a process mantra, consider the Click here to finish this post.