For high-net-worth families, estate plans are rarely simple. Relationships may be complicated, and estate and tax laws change over the years.
As a result, plans usually become more involved over time. Even if they are filled with features that made sense at the time of creation, plans may be subject to internal inconsistencies - provisions that work at cross-purposes and that could be revised profitably.
Below are some of the inconsistencies that bedevil many estate plans.
POWER OF ATTORNEY
Powers of attorney are ubiquitous in estate planning, since naming an agent to handle financial, tax and legal matters in the event of illness is an essential protective measure. Yet many clients are highly inefficient in designating when an agent can act on their behalf.
Many clients are not comfortable in authorizing an agent to act immediately. Instead, they employ a safeguard that lets an agent's authority to act take effect only when a client is disabled. This is called a springing power because it springs into effectiveness only when a client is disabled.
But a springing mechanism can be problematic since it requires a third party, like a wealth manager, to be persuaded that a client is in fact disabled. Some states, notably Florida, even prohibit these types of powers.
Sometimes, there is a logical inconsistency in what a client is doing. After all: If a client trusts the agent, why not make the agent's authority effective immediately? Nevertheless, if the client is not comfortable with a power of attorney taking effect at once, there should be a better solution. For instance, a client could create a monitor relationship, in which an agent has to send reports to an independent person for review. A CPA or wealth management firm could then review bank and brokerage statements on a monthly basis, comparing them with a prior budget to protect against inappropriate spending.
If a client has concerns over empowering an agent to act immediately, it's logical to create checks and balances.
Estate planning attorneys tend to devise plans based on a current balance sheet, rather than beginning with a financial projection, to identify what wealth a client is likely to leave behind. That may be insufficient.
If a client remains a net saver and his or her wealth will grow, it might be worthwhile to engage in more aggressive estate-tax minimization. If the burn rate is too high, on the other hand, a client may face a substantial risk of running out of money before death - making any bequest irrelevant.
Often, projections will support a middle ground of estate planning: An advisor might take some tax-minimization actions, but not create as costly or complex a plan as the balance sheet might appear to justify.
Many power of attorney documents give an agent a right to make certain gifts - perhaps to continue financial help a parent had been giving adult children, to reduce estate taxes or to accomplish another goal.
Although less frequently used, revocable living trusts are likely to increase in use as the older population increases - whether to avoid probate or to facilitate management of assets as a client faces health challenges.
These living trusts also may include gift provisions, but planners should ensure these are coordinated with power of attorney documents. Is the same person named agent and trustee? Are the gift provisions different? Which controls? If different fiduciaries are named, who coordinates between the two?
In many estate plans, the tax allocation clause is ignored as boilerplate. It should not be.
For clients facing a 40% federal estate tax, the provision in their will that determines which bequests bears this cost could be significant in determining who inherits what. For clients facing a state estate tax instead of a federal one, this provision is particularly important.
For example, assume a client has a $4 million estate and lives in a state with a $1 million exemption. Assume further that the estate will face a $400,000 state estate tax. The client bequeaths $2 million to a son, with the remaining estate to be divided equally between two daughters. If the objective is primarily to benefit the son, perhaps the daughters should bear the tax burden.
Understanding the client's objectives is critical. If the bequest to the son is to a trust because of unique challenges the son faces, then perhaps the residuary should bear any tax or other cost.