The Florida Estate Planning and Probate Law Blog is focused on recent federal and state case law and planning ideas.

Showing posts with label Estate planning attorney. Show all posts
Showing posts with label Estate planning attorney. Show all posts

MEN THAT HAVE CHILDREN LATER IN LIFE ARE ELIGIBLE FOR AN EXTRA SOCIAL SECURITY BENEFIT?

Under existing social security rules, men that have children later in life (it would be gender discrimination but biologically women can’t currently conceive a child after age 60) are eligible for an extra Social Security benefit. Under the rule, when a man files for his social security benefits, each of his children under the age of 18 years is entitled to one-half (1/2) of what he would receive at full retirement age (even if he collects social security benefits early). Eligibility for the child benefit requires them to be: (i) under the age of 18 years; (ii) 18-19 years old if a full-time student (not higher than grade 12). For example, if a 62-year old man with a 10-year old child began collecting social security benefits immediately, not waiting till age 70 years, he would also receive one-half (1/2) of the maximum amount he would have received had he waited to collect at age 70 years, until his child reached the age of 18 years. At present, Donald Trump is receiving an extra $15,000 per year since his son is under age 18.

ESTATE PLANNING IS NOT JUST FOR THE OLD AND WEALTHY

Is your child ready for college? While you may have purchased for them new clothing, linens, towels, etc. the question becomes whether they have executed an estate plan? Most families fail to recognize that once their child (young adult) reaches age 18 years they are considered an adult under most state laws and their parents can no longer make all financial and health care decisions for them or have access to their medical records. As a result, estate planning is not only for the old or the wealthy and every individual over age 18 should have, at a minimum, a Power of Attorney and Health Care Directive. A Durable Power of Attorney designates another individual to act for the young adult in legal and financial matters. It is mainly used in the event of an accident or incapacity rendering the young adult unable to effectively manage legal and financial matters. Having such a document in place would avoid the necessity of having a guardian or conservator appointed should an accident or incapacity happen. The Health Care Directive empowers another to make health care decisions in the event of incapacity, articulate their wishes and directions in the event health should deteriorate and designates another to act as “personal representative” for purposes of HIPAA to authorize the release of medical records if necessary to obtain medical treatment. Make sure they have these documents in place prior to dropping them off in college.

DELAWARE REPEALS ITS ESTATE TAX EFFECTIVE JAN. 1, 2018

Effective January 1, 2018, Delaware residents will no longer be subject to a state estate tax. Delaware becomes one of the thirty-three (33) states that do not impose either estate or inheritance taxes or both. The repeal is the result of Democratic Governor John Carney Jr. signing a stand-alone estate tax repeal bill. One estate lawyer commented “[t]he very wealthy don’t have to move down to Florida.” The Governor and legislature recognized that that if wealthy folks stay in Delaware, instead of changing their residency to avoid the state estate tax, the state will generate more revenue from personal income tax than estate taxes (high of $16.2 million in 2011, and a low of $1.3 million in 2014).

ESSENTIAL ESTATE PLANNING DOCUMENTS

Regardless of your state of residency it is important to have your estate planning documents in order. The following is a list of essential documents and how they will benefit you. Last Will & Testament: a legal document in which you express your wishes as to how your estate (assets, accounts, real estate, etc.) is to be distributed at your death, and nominates the individual(s) or entity to manage the estate until its final distribution. Without this document the state statutes will control who administers your estate and to whom does it pass. ​ Power of Attorney: a written document in which you give another individual (they can reside anywhere) the power to act in your place in managing your assets, pay bills, handle insurance claims, sell real estate, file a tax return, to make gifts, create revocable trusts, invest assets and do anything you can do with your assets personally. You may name one or more agents under a power of attorney, and direct that one may act alone without the other, or that they must act jointly. You can also appoint a successor agent to act in the event the first person(s) you’ve named cannot act. A “durable” power of attorney does not become inoperative upon your incapacity. However, upon your death it is no longer effective. Health Care Surrogate Directive:​ a written instrument in which you appoint someone or multiple individuals you trust to make decisions about your medical treatment in the event you are unable to give instructions at the time the decisions must be made (ex., you are in a coma). Living Will: a document in which you state your wishes regarding medical treatment if you are unable to give instructions at the time the decisions for medical treatment need to be made. The living will can include instructions about the termination of life support and artificial nutrition and hydration (i.e., food & water intravenously). Pre-Need Guardian Declaration: a document that specifically nominates the individual(s) to serve on your behalf if it is necessary to appoint a guardian for you. A Florida Court must consider the individual(s) nominated if he/she is capable of serving. ​Without a power of attorney and health care surrogate in place your family will have to commence guardianship proceedings (petition the court to step in on your behalf) to make these decisions on your behalf. Guardianship proceedings is a very public process and makes the world aware that your family thinks you can’t take care of your own finances or medical decisions.

GOVERNOR SCOTT SAYS NO TO ELECTRONIC WILLS IN FLORIDA

On Monday, June 26, 2017, Florida Governor Rick Scott vetoed the "Florida Electronic Wills Act" (the "Act")." The Act would have authorized the creation of electronic wills, and for their execution to be witnessed and notarized through the use of remote technology. The bill also provided for the probate of an electronic will in Florida. The Act raised concerns over safeguards to exploitation and fraud. The Governor determined that the remote notarization provisions in the Act did not adequately ensure authentication of the identity of the parties to the transaction and were not cohesive with the notary provisions in the Florida Statutes. Additionally of concern was the fact that other states would not recognize electronic wills as a valid declaration of intent and their heirs with an intestate estate.

PRESIDENT TRUMPS 2017 INCOME TAX PLAN

On Wednesday, April 27, 2017, President Trump outlined his plan for income tax reform. His plan includes the following: decreasing the top corporate tax rate from 35% to 15%; imposing a one-time tax on the repatriation of previously untaxed overseas profits at a to-be-determined rate; conversion from the current system of taxation on worldwide profits to a territorial-tax system in which foreign profits are not taxed; decreasing the number of income tax brackets from seven (7) to three (3); a top individual income tax rate of 35% (down from the current 39.6 percent); maintaining the long-term capital gains and dividends tax rate at a maximum rate of 20%; repeal of the Alternative Minimum Tax, Estate Tax, and 3.8% Medicare tax on Net Investment Income; elimination of itemized deductions (deduction for state and local taxes); and doubling of the standard deduction (from $12,000 to $24,000 for married couples filing jointly and from $6,000 to $12,000 for single filers). The 15% corporate rate would apply to profits of pass-through businesses (S Corporations and LLCs) whose profits currently flow through to individual taxpayers and are taxed at a current rate as high as 39.6%. Itemized tax deductions for charitable contributions, mortgage interest and retirement savings will remain in place.

TRUST BENEFICIARY CHALLENGES ADOPTED SIBLINGS ENTITLEMENT TO BENEFITS

Family inheritance disputes have become common place throughout the world. The recent case of Edwards and Kuiper v. Maxwell, 42 Fla.L.Weekly D742a (1st DCA, March 31, 2017) evidences that it know impacts adopted siblings. In this case, an adult son was a discretionary beneficiary (distributions to him were at the sole discretion of the trustee) of his great-grandparents Trust. His father later adopted another child (which also made him a beneficiary of the Trust). After the adopted son was dispersed thousands of dollars from the Trust, the adult son challenged the adoption since he was never provided with notice of the adoption or the opportunity to challenge it. In reversing the lower court, the 1st DCA found that the adult son's "interest as a beneficiary was only “contingent” since subject to the discretion of the trustee," and he did not possess a direct, financial and immediate interest in the trusts.

FUTURE LIFE EXPECTANCY DECLINE FOR THOSE RESIDING IN THE UNITED STATES?

While the life expectancy at birth for residents of industrialized nations will continue to increase in the future the same is not expected in the United States. The life expectancy for US residents is expected to be on par with those in Mexico (women) and the Czech Republic (men). In contrast, South Korean women and Hungarian men are projected to make the largest overall gains (with South Koreans second among males). It is anticipated that South Korean women will live to an average of 90 years old by 2030 (the first time a population will break the 90-year barrier). While US residents are anticipated to gain a couple of years of life expectancy between 2010 and 2030, predicted lifespans will remain in the early 80's for women and late 70's for men (83.3 for women and 79.5 for men in 2030, up from 81.2 for women and 76.5 for men in 2010). The reasons for the small growth are the highest infant and maternal mortality rates, the highest obesity rate, and the “largest share of unmet health-care needs due to financial costs.” In December, the U.S. government reported that life expectancy had declined in 2015 for the first time since 1993 as death rates for eight of the 10 leading causes of death, including heart disease, rose.

EVEN THE WEALTHY FAIL TO UPDATE THEIR ESTATE PLANNING DOCUMENTS

In a 2016 study, 26% out of 3,105 wealthy individuals surveyed had a complete estate-planning strategy to transfer their wealth to the next generation. Further, only 54% had created a will, but most had not updated them. As a result, $1.5 trillion of the $3.2 trillion is without direction as it falls into the hands of the next generation. Perhaps, the reason why people avoid preparing an estate plan is because they are not sure what they want to do with their wealth at some distant point in the future and a clearer picture of what heirs should receive will present itself at a later date. Another part of a solid estate plan is to communicate important facts so that the heirs are able to prepare for an inheritance. The sooner in life these conversations are expressed, the smoother the wealth transfers. Don’t Delay Planning Your Estate, Barron’s, February 10, 2017.

NEW MICHIGAN LAW ALLOWS FOR THE CREATION OF DOMESTIC ASSET PROTECTION TRUSTS

On December 5, 2016, the State of Michigan joined the ranks as one of seventeen states (including Alaska, Delaware, Nevada, Utah and South Dakota) that permit the use of irrevocable self-settled asset protection trusts for purposes of creditor protection planning. The law becomes effective on February 5, 2017. A Michigan domestic asset protection trust ("DAPT") will enable an individual to shelter assets from future third party creditors. A DAPT is an irrevocable self-settled trust which, when established and funded properly, allows the grantor (the individual establishing the trust) to protect his or her property from the claims of future third party creditors and still maintain a beneficial interest in the trust property. The majority of DAPTs are administered by an independent Trustee (usually a corporate Trustee), friend or family member who is domiciled or has a business presence in the jurisdiction in which the DAPT is established. The Trustee will have the absolute discretion to make distributions to a class of beneficiaries, which may include the grantor. A DAPT can be a highly effective creditor protection tool.

SPECIAL NEEDS TRUST PLANNING

Families with a special needs child/adult need more estate planning than families without. A Special Needs Trust (SNT) can play an important role in helping families plan. Issues to consider: Preserve public benefits while enhancing your child/adult's lifestyle. Many individuals with special needs obtain basic support from Supplemental Security Income (SSI) - a gateway to Medicaid and other critical programs. Since SSI covers only essential expenses, it is important to create a supplement for their lifestyle. But because SSI imposes limits on income and assets, gifts or an inheritance could adversely impact benefits eligibility. The Social Security Administration (SSA) does not count assets in an SNT as income for determining benefits eligibility because the assets are owned by the trust rather than the special needs beneficiary. Ensure assets will be used as intended. With an SNT, distribution of assets is directed by trust documents as well as SSA and IRS guidelines. By comparison, if you leave assets to an "able-bodied" child and ask that some of the funds be used for the sibling with special needs, the child may fail to honor your request, lose the assets to creditors or die prematurely and leave the funds to his or her own children. Allow others to contribute. If you establish the trust now, family members and friends can make gifts to the SNT. Anyone interested in leaving an inheritance or making a gift should be advised to direct bequests to the SNT. Maximize the benefits of a personal injury settlement. If the child/adult is the recipient of a sizable settlement, having the payout (often a lump sum plus a structured settlement) directed to a self-settled SNT offers several benefits. They will still qualify for public benefits, can use settlement funds for nonessential expenses and may enjoy the financial security of receiving regular payments for life.

2016 YEAR END ESTATE PLANNING THOUGHTS

With December 31, 2016, right around the corner, it is important to look at your year end personal tax and estate planning situation. With a Trump administration and a Republican-controlled Congress, much attention has been paid to the tax proposals in the president-elect’s Contract with the American Voter and the House Republicans’ Task Force for A Better Way to see how they match up. The key points that both proposals have in common, as they affect our tax and estate planning clients, include: • Elimination of the estate tax, although the Trump proposal states that “capital gains held until death and valued over $10 million will be subject to tax.” • Reduction of the maximum individual federal income tax rate to 33 percent. Remember, states income tax rates are not affected. • Limitations on itemized deductions. • Repeal of the 3.8 percent net investment income tax and continue the current low tax rates for investment income. • Reduction of corporate tax rates. • Taxation of “carried interest” income at ordinary income tax rates. • Elimination of the alternative minimum tax. Estate Planning: wait and see. While it would be unwise to modify an existing estate plan simply to anticipate estate tax changes that may or may not occur, clients who are in the middle of planning (e.g., to make year-end gifts using valuation discounts or for business succession purposes) might want to continue and implement their planning, but with a view toward the possibility of estate tax repeal. Estate planning is not all about taxes. • Defer income and accelerate deductions. Since tax rates would be reduced next year, it would be smart to consider deferring income to be taxed in 2017 at, presumably, lower rates, and accelerate deductions to 2016 to reduce taxable income that would be taxed at higher rates and to take advantage of deductions that might disappear. The same thinking would apply to sales of capital assets: gains should be deferred to next year and losses should be harvested this year. • Make your charitable contributions now. You might want to make larger charitable contributions this year to reduce taxable income that would be taxed at higher rates. If you have pledged to make future contributions, consider honoring those pledges now. • Be prepared to review and possibly rewrite your existing estate plan. Of course, the action you take depends on what tax law changes are ultimately enacted. • Consider making annual exclusion gifts on or before Dec. 31. Each year you can give up to $14,000 in value (e.g., cash, property interests, stock, etc.), or $28,000 in value for gifts by a married couple, to an unlimited number of people. These dollar amounts will remain at $14,000 in 2017. • Consider front-loading a 529 Plan. 529 Plans provide some exceptional income tax planning benefits for those who are putting aside funds for college. • Consider making large lifetime gifts tax-free using your lifetime gift tax exemption. You may want to consider using part or all of your gift tax exemption by making a gift to your family members or others, thereby removing the value of the gifted asset, plus future appreciation, from your estate. Preferably, high basis assets should be gifted. While the possibility of a estate and gift tax repeal exists, there will be no tax cost by using your lifetime exemption (currently $5,450,000 and increasing to $5,490,000 in 2017), and if there is a repeal, you will have simply made additional tax-free gifts. • Review your entire estate plan. While there may be nothing to do now in response to the anticipated tax law changes, it is still a good time to review your existing estate plan to make sure it still expresses your wishes, discuss with your family and your professional advisors (including your tax accountant, financial planner, investment advisors, insurance professionals, and us) whether any non-tax related changes are desired or advisable, and then establish an action plan, which might include taking some action now and deferring some action until the tax laws have changed. Questions for Consideration: 1. Have you nominated the right individuals or organizations to serve as trustee, executor, guardian, conservator, attorney-in fact and/or health care agent? 2. Did you accidentally omit a beneficiary who should be included, or include someone as a beneficiary who should not be included? 3. Have you reviewed all of your beneficiary designations, including life insurance, IRAs, 401(k) plans, other employer-sponsored plans, to make sure they are not out of date and that they are consistent with your wishes and your other estate planning documents? 4. Are your assets properly titled (e.g., assets intended to be held in a Revocable Trust have been formally transferred by deed, change on account name, etc.)? 5. Are your estate planning documents in a safe location and easily accessible to the people named to handle your affairs (e.g., executor, trustee, attorney-in-fact or health care agent)? Have you communicated the location of these documents to these people? 6. Do you have in force adequate life insurance, disability insurance, liability insurance and, perhaps, long-term care insurance? 7. Are there changes within your family (such as births, deaths, aging, health problems, marriages, divorces or a family member’s ability to handle financial matters responsibly)? 8. Have there been changes in your financial situation, including increases or decreases in your income, net worth, liquidity, indebtedness, and major investments? 9. Are you contemplating retirement (or have you retired)? 10. Have you started a new business or sold an existing business?

IRS GIFT TAX RULES

Under the Internal Revenue Service (IRS) rules, the service has a three (3) year statute of limitations after the filing of IRS Form 709 to assess gift taxes on a gift, so long as the gift is adequately disclosed on the return. If a gift is not disclosed on Form 709, the statute of limitations does not begin to run on that gift. Form 709 requires the disclosures of prior gifts, so that the tax on the current gifts can be properly calculated (since prior gifts can impact the rate of tax and available unified credit applicable to the current year computations). The question has arisen as to what happens if a gift is improperly reported on a return? A recent Chief Counsel Advice 201643020 concludes that the Code does not support an extended statute of limitations in this circumstance. However, I do not recommend filing an improper return with the IRS.

IMPORTANT 2017 FEDERAL TAX AND EXEMPTION AMOUNTS

Federal Estate & Gift Tax: The Federal estate tax exemption amount will be $5,490,000 in 2017. The annual gift exclusion amount will remain at $14,000 Qualified Plans for 2017: The limit on the maximum amount of elective contributions that a person may make to a §401(k) plan, a §403(b) tax-sheltered annuity, or a §457(b) eligible deferred compensation plan remains unchanged at $18,000. The limit on “catch-up contributions” to a §401(k) plan, a §403(b) tax-sheltered annuity, or a §457(b) eligible deferred compensation plan for persons age 50 and older remains unchanged at $6,000. The dollar limit on the maximum permissible allocation under a defined contribution plan is increased from $53,000 to $54,000. The maximum annual benefit under a defined benefit plan is increased from $210,000 to $215,000. The maximum amount of annual compensation that may be taken into account on behalf of any participant under a qualified plan will go from $265,000 to $270,000. The dollar amount used to identify “highly compensated employees” remains unchanged at $120,000. Social Security Tax: The Department of Health and Human Services has set the maximum taxable wages for the OASDI portion of the social security tax at $127,200 for 2017, which is an increase from the 2016 limit of $118,500.

NEW JERSEY ELIMINATES ITS ESTATE TAX IN 2018, BUT KEEPS ITS INHERITANCE TAX

On October 14, 2016, Governor Chris Christie signed into law legislation which raises the New Jersey estate tax exemption to $2,000,000 in 2017 (up from $675,000) and eliminates it entirely in 2018. Until January 1, 2018, the New Jersey estate tax will continue to be applied based on a graduated rate table which begins at 4% for estates of $675,000 or more and increases to 16% for estates in excess of $10,100,000. While the New Jersey estate tax exemption is going away, the New Jersey inheritance tax will remain. The New Jersey inheritance tax only applies to transfers to other relatives and friends, and does not apply to transfers at death to parents, spouse, children and other descendants and charity. So ends New Jersey's reign as the state with the highest estate tax among those states which continue to impose an estate tax.

SPOUSAL LIFETIME ACCESS TRUSTS

Is a Spousal Lifetime Access Trust (SLAT) part of your estate plan? Many families today, for both Florida estate planning and Florida estate protection planning purposes, are utilizing SLAT’s to protect their assets. When both spouses are living, one spouse can establish this type of trust for the other spouse through the use of their lifetime gift tax exemption. A SLAT will typically name the non-gifting spouse as the beneficiary, and allow the trustee to make distributions to them during their lifetime. Upon the non-gifting spouse’s death, the trust assets can then pass to the designated trust beneficiary(s) under the specified terms and conditions of the instrument. For estate planning purposes, the non-gifting spouse can be given a limited power of appointment, effective at their death, which allows them to change how the SLAT assets will be distributed after the beneficiary-spouse’s death. This effectively gives them the ability to change the trust beneficiary(s) and the specified terms and conditions of the instrument. To maximize the asset protection benefits available with a SLAT, the gifting spouse should fund the trust using only their personal assets and not jointly held assets. The non-gifting spouse should only serve as a trustee if the power to make distributions to themselves is limited by an “ascertainable standard” (distributions can only be made for health, education, maintenance, and support). Under no condition should the gifting spouse serve as a trustee of the SLAT.

WHERE THE PRESIDENTIAL CANDIDATES STAND ON THE ESTATE TAX!

Both presidential candidates have proposed changes to the estate tax regime. Mr. Trump calls for a total repeal of the Federal estate tax. No matter how much wealth you accumulate during your life, under Mr. Trump’s plan, there will be no estate tax due on death. The Trump belief is that you have paid taxes your whole life; therefore, you shouldn’t be taxed again at death. However, the repeal of the estate tax comes with a caveat, even under this plan: capital gains held until death will be subject to tax, in some cases. Mr. Trump’s proposal eliminates stepped-up basis on death for estates over $10,000,000. Basically, under this plan, gain, determined using the deceased’s basis on the asset, would be subject to tax when an inheritor sells an asset, not when she or he inherits it on the death of a decedent. The $10,000,000 exemption is similar in amount to the current federal estate tax exemption. It is unclear if the $10,000,000 exemption is per person, or per married couple. Similarly, it is unclear if Trump’s plan eliminates gift and generation-skipping tax provisions as well. The impact of Mr. Trump’s plan would be less felt by the wealthy who believe their children and grandchildren will retain the assets they inherit or those whose assets have not appreciated significantly, and more by those whose children plan on selling the assets they have inherited and whose assets have significant appreciation attached to them. Mrs. Clinton’s plan calls for increasing the Federal estate tax. Originally, Mrs. Clinton proposed reducing the threshold at which estates are taxed, from $5,450,000 per individual or $10,900,000 per married couple to $3,500,000 per individual or $7,000,000 per married couple, and increasing the top estate tax rate from 40% to 45% for the highest-taxed estates. The end result of this plan seems to put the estate tax back to where it was in 2009. Yet, just last week, Clinton’s campaign material referred to an even more aggressive estate tax, with a 50% tax rate on estates over $10 million per individual, a 55% rate for estates over $50 million per individual and an unprecedented 65% tax rate for the largest estates valued at over $500 million per individual. The Clinton plan would also eliminate stepped-up-basis when assets pass to heirs on death. The combination of an estate tax without a corresponding step up in basis is quite novel, and if passed would be the first time in our country’s history that the estate tax system worked this way. The goal of Mrs. Clinton’s estate tax proposal is said to raise additional tax revenue by targeting the wealthiest in our country Proponents of an estate tax, like Mrs. Clinton’s, argue that it helps to stop wealthy people from getting even wealthier, generation after generation. Undeniably, the impact of Mrs. Clinton’s plan will be felt by the wealthiest Americans. The goal according to the Clinton campaign would be use to use the additional revenue collected by the new estate tax regime to help pay for some of her plans which assist the middle class in our nation, like expanding the child tax credit and simplifying small business taxes. Which candidate will win the election? Article courtesy of Brian Cave, law firm.

HILLARY CLINTON PROPOSES 65% TOP RATE FOR ESTATE TAX

Democratic presidential candidate Hillary Clinton would levy a 65% tax on the largest estates and make it harder for wealthy people to pass appreciated assets to their heirs without paying taxes, expanding the list of tax increases she would impose on the top sliver of America’s affluent. The estate-tax increase and other new proposals that Mrs. Clinton detailed on Thursday would generate $260 billion over the next decade, enough to pay for her plans to simplify small business taxes and expand the child tax credit, according to the nonpartisan Committee for a Responsible Federal Budget, which advocates fiscal restraint. In all, Mrs. Clinton would increase taxes by about $1.5 trillion over the next decade, increasing federal revenue by about 4%, though that new burden would be concentrated on relatively few households. There is at least a $6 trillion gap between her plan and the tax cuts proposed by her Republican rival Donald Trump. The Clinton campaign changed its previous plan—which called for a 45% top rate—by adding three new tax brackets and adopting the structure proposed by Sen. Bernie Sanders of Vermont during the Democratic primaries. She would impose a 50% rate that would apply to estates over $10 million a person, a 55% rate that starts at $50 million a person, and the top rate of 65%, which would affect only those with assets exceeding $500 million for a single person and $1 billion for married couples. In 2014, just 223 estates with a gross value exceeding $50 million filed taxable estate-tax returns, according to the Internal Revenue Service. In a statement, Mr. Sanders said the proposal would respond to the “grotesque level of wealth” concentrated among the top few households. “Secretary Clinton understands that it is appropriate to ask the top three-tenths of 1%, the very wealthiest people in this country, to pay their fair share of taxes so that we can provide a child tax credit for millions of working families and lower taxes for small businesses,” Mr. Sanders said. The 65% estate-tax rate would be the highest since 1981 and marks one of the most enormous tax-policy gulfs between Mrs. Clinton and Mr. Trump, who would repeal the tax. “It is the height of hypocrisy for Hillary Clinton to offer an even more dramatic hike in the death tax at the same time she uses exotic tax loopholes reserved for the very wealthy to exempt her Chappaqua estate,” said Jason Miller, a spokesman for Mr. Trump, referring to Mrs. Clinton’s use of residence trusts in New York to lower the value of her taxable estate. Neither Mrs. Clinton’s nor Mr. Trump’s proposals stand much chance of succeeding in a divided Congress where Republicans control the House and Democrats can block action in the Senate. The current top rate of 40% was set as part of a bipartisan compromise in January 2013, and the first $5.45 million a person is exempt from tax. Mrs. Clinton’s plan is “dead on arrival,” said Rep. Kevin Brady (R., Texas), chairman of the House Ways and Means Committee. “It will stop family owned businesses—including women and minority-owned businesses—from being passed down to their children and grandchildren,” he said. The estate tax is “wildly unpopular” with small business owners, said Matt Turkstra, who works on the issue for the National Federation of Independent Business, and “the biggest transfer of wealth is going to be from very, very wealthy people to lawyers.” The shrunken version of the estate and gift tax that has been in place in recent years brings in relatively little money for the federal government, less than 1% of projected revenue over the next decade, according to the Congressional Budget Office. Still, the tax carries symbolic and political weight. Republicans and their allies in the business world see it as a patently unfair confiscation of wealth that punishes family-owned businesses. Democrats see it as a leveling tool necessary to combat the increasing concentration of wealth, and say that the impact would largely be felt by a very small number of people. “The people who care a lot about it are the ones who are subject to it or the ones who benefit from it,” said Michael Graetz, a tax-law professor at Columbia University and co-author of a book on the politics of the estate tax. That includes charities, he said, which worry that a repeal of the tax would reduce charitable bequests. Mrs. Clinton would also repeal what is known as the step-up in basis. Under that rule, people who die with appreciated assets—for example, a stock bought decades ago—don’t have to pay the capital-gains taxes on the increase in value before death. Then, their heirs only have to pay taxes when they sell the assets and only have to pay capital-gains taxes on the difference between the sale price and the value when they were inherited. Under Mrs. Clinton’s plan and under a proposal from President Barack Obama that has gone nowhere in Congress, a bequest of an asset would be treated as realizing those pent-up gains. There would be an exemption of undetermined size that would focus the tax on high-income families, and Mrs. Clinton’s proposal, the campaign said, would include “careful protections and flexibility for small and closely held businesses, farms and homes, and personal property and family heirlooms.” But the combination of the 65% estate tax and the change to capital-gains rules could lead to significant increases in effective tax rates at death on some people—including, for example, Mr. Trump, who claims a net worth of $10 billion, though independent estimates put it lower. Mrs. Clinton’s new proposals would also limit like-kind exchanges, the technique commonly used in real estate to defer capital gains when properties are sold. The latest changes are part of a series of tax increases Mrs. Clinton has rolled out to pay for targeted tax cuts and for increased spending. She would impose a 4% surcharge on income over $5 million a year, limit deductions for high-income households, create higher capital-gains rates on assets held for between two and six years and require the “Buffett Rule,” a minimum 30% tax rate for the highest-income households named for investor Warren Buffett. “These proposals reflect Hillary Clinton’s approach to growing our economy: making investments in good-paying jobs and the middle class, paid for by closing loopholes and asking the wealthiest to pay their fair share—even as Donald Trump wants to give trillions in tax breaks tilted towards the wealthy,” said Mike Shapiro, an economic policy adviser to Mrs. Clinton. Article courtesy of the Wall Street Journal Sept. 22, 2016

THE NEW 2016 IRS DEFINIATION OF HUSBAND AND WIFE

The Internal Revenue Service (IRS) has formally put into place, effective September 2, 2016, amendments to the regulations that define “who is married for tax purposes.” The new regulations state that it will interpret the term “husband and wife” as any two people who are married to each other, even if they are a same-sex couple. The IRS is addressing this issue as a result of the 2013 U.S. Supreme Court ruling in United States v. Windsor (which struck down the section of the Defense of Marriage Act (DOMA) prohibiting recognition of same-sex marriages for federal purposes) and the 2015 Supreme Court ruling in Obergefell v. Hodges (that made same-sex marriage legal throughout the nation).

ESTATE PLANNING DOCUMENTS - DONT LET YOUR CHILDREN LEAVE HOME WITHOUT THEIRS IN PLACE

Becoming an empty nester and watching your child(ren) leave the home (for school or a job) can be difficult emotionally. Reality is that when a child reaches the age of 18 they are a legal adult, even though they may still depend on you for financial and emotional support. Most parents are surprised to learn that once a child turns age 18 they are not legally permitted to make financial or medical decisions on their behalf, or even be notified if their child is in the hospital emergency room. To avoid this from happening, it is important to have your child(ren) create their own estate planning documents (Power of Attorney, Health Care Surrogate and Living Will). Estate planning documents are not just for the older generation. These documents will provide authority and allow a parent or family member to step in, when a child needs financial or medical assistance and the child is unable to make such decisions for themselves. Alternatively, a parent will have to commence a guardianship proceeding to obtain legal authority to assist the child. Having your child(ren) execute these documents once they reach age 18 and before they leave home will provide you with piece of mind.