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I've written almost all my columnsin the second person, to you the planner, providing ideas on how to help the third person, your clients. Well, this time, I've got a beef with my clients. And for a vegetarian, that's worrisome.
The single most common comment we hear when asking clients to come in to reevaluate their documents and plans is the refrain, "Nothing's changed." It's almost as if Big Brother had everyone rehearse together. How could anyone possibly believe that nothing has changed?
THE USUAL CULPRITS
Everyone knows they need to revise their planning to reflect normal life changes. These include:
* Birth of children or grandchildren;
* Death of a family member;
* Death, disability or estrangement of a named fiduciary;
* Marriage, divorce or cohabitation;
* Change in health;
* Change in financial status;
* Moving to a new state or country;
* Change in asset composition (even if the values are comparable); and
* Changes in goals, perceptions or feelings.
OTHER SUSPECTS
But the usual life changes are only some of the developments that can mandate revising an estate plan. Others are listed below.
Estate-tax repeal. Even if you signed a will last year, we had an estate tax then-and no one (unless they're fibbing) thought there was any chance of the estate tax being allowed to lapse into repeal. So everything has changed for anyone who signed a will, prenuptial agreement, buy-sell agreement and more prior to Jan. 1, 2010. Anything pegged to tax definitions has changed, ZAP! ZOWIE! (Remember the old Batman TV show?) "Nothing's changed" is a recipe for disaster.
Other legal changes. Aside from the massive tax law changes that have occurred in recent months (with more likely to come), many other laws have changed over the last five to 10 years. Any estate plan or ancillary documents written prior to these changes warrant review and possible action.
Both the federal government and its state counterparts have passed new laws and revised existing ones, creating the need to update plans. For example, at the federal level, a fully phased in Health Insurance Portability and Accountability Act (HIPAA) requires written authorization to access health data. Most current trusts, shareholder agreements and other documentation should include some form of HIPAA release so that the appropriate people can access the limited data they need.
At the state level, new and changed laws include the Prudent Investor Act and the Principal and Income Act, enacted in most states to harmonize laws on exercising fiduciary investment discretion and administering trusts. Individual states have also made changes. For example, New York dramatically amended its power of attorney statute in September 2009, and some states have adopted legislation acknowledging same-sex couples.
Clients who say "nothing has changed" often have no idea which key laws in their state may have changed or the impact of those changes. "Nothing has changed" often means, "I really don't know what has changed."
Trusts. Trust drafting has changed dramatically, at warp speed. A few short years ago, directed trusts, trust protectors, perpetual trusts and myriad other techniques were simply not available. If clients have not addressed planning in years, they may be ignoring a host of valuable concepts.
Even if clients already have substantial assets in an irrevocable trust, they may still have room to maneuver. Old trusts may permit fiduciaries to take actions that can effect significant changes. For example, decanting an old trust into a new trust is permitted by statute in many states and by common law (case law) in others. "Nothing has changed" just doesn't apply to trusts.
Investments. Even Rip Van Winkle knows the entire investment world was turned upside down over the past few years. Advisors must review and update every financial, retirement and estate plan to reflect the new abnormal. Every trust, custodial account and estate account should have a written investment policy statement that has been updated recently to reflect the sea changes in the investment world. Not doing so is tantamount to looking for trouble.
Estate plans commonly include insurance and gift plans. Clients can't really ascertain how much life insurance is appropriate without evaluating their net worth, cash flow needs and other basic considerations, all of which have been affected by the financial upheaval. Gift programs are typically planned to minimize estate tax. There is no estate tax today (that will change, undoubtedly), but clients can't possibly know how much they can afford to gift without having a handle on their current financial situation and making projections about their future situation. What's changed? What hasn't changed dramatically?
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