Estate planning enables clients to manage and preserve assets while alive, and efficiently transfer them to intended beneficiaries during life or at death. The goal is to empower loved ones and protect the assets left behind. The potential components of an estate plan are as varied as the individuals who create them. Proper and effective estate planning generally combines a number of the following:
Asset Protection Planning and Privacy
Washington State has some of the highest jury awards in the country. With what some call a "litigious culture," many clients are afraid that success leaves them vulnerable to a lawsuit. Although, insurance will cover the majority of any potential award, most clients would like to be as proactive as possible by protecting assets and making themselves and their business unappealing as a possible litigation target.
Additionally, clients are often shocked to find that their “private” phone number is no longer private. Keeping one’s affairs confidential used to be straightforward. With the advancement of technology and new standards by Washington’s Secretary of State, however, keeping one’s address, phone numbers, the value of one’s home, lines of credit, mortgages, business interests – even the names and addresses of relatives - confidential has become more complex. We help clients with privacy and confidentiality concerns, keeping their affairs and information truly private.
Federal and State Estate Tax Minimization
The most common impetus for estate planning among high net worth individuals is tax minimization. Most want to avoid unnecessary federal estate taxes, but oftentimes little consideration is given to utiliziation of one’s generation-skipping transfer tax exemption and planning around state estate taxes. Plans can be structured to (1) take advantage of all exemptions from the federal and state estate taxes and the federal generation-skipping transfer tax, (2) minimize values of estate assets for taxation purposes, and (3) if desired, ensure no tax will be due at the first spouse’s death.
Prenuptial, Marital and Cohabitation Planning
A prenuptial agreement (sometimes called an antenuptial agreement) is a formal, written contract entered into prior to marriage that specifies how assets and debts will be managed during the marriage and distributed in the event of the death of a spouse or the marriage ending. A postnuptial agreement is the same type of contract, but it is entered into after marriage. A cohabitation agreement is, again, a similar contract, but entered into by unmarried couples who live together. cohabitation agreements may be entered into prior to the couple moving in together or after their cohabitation begins.
When clients find that the separate property they give or leave their child could end up in the hands of their child’s ex-spouse during a court’s “just and equitable division of the couple’s community and separate property,” they generally encourage their child to enter into a prenuptial agreement, especially if the separate property involves a family business.
For a number of reasons, prenuptial agreements are beginning to be the rule. Prenuptial agreements are most common with high-net worth individuals, business owners, and their children, but they are also becoming more common and can be very beneficial for entrepreneurs, clients with children, clients with special medical needs, and people with disparate asset levels.
Cohabitation agreements are being entered into more often due to the number of couples electing to live together without getting married. Washington does not have “common law marriage,” but it does have a doctrine known as “meretricious relationships,” which can apply to unmarried cohabitants based on a facts and circumstances test. Although unmarried cohabitants do not acquire the community property rights of married couples, if they are deemed to be in a meretricious relationship, the Supreme Court has held that “all property acquired during a meretricious relationship is presumed to be owned by both parties,” and that the court must “examine the relationship and the property accumulations and make a just and equitable distribution of the property.”
Estate and Trust Administration
After a loved one dies, assets must be distributed to their intended beneficiaries. This process can be accomplished through Probate or by trust administration or a combination of the two.
If all of the decedent’s assets were owned in a Living Trust or were non-probate assets (such as retirement accounts, payable on death accounts and/or life insurance), there is likely no need for a probate. Instead, the assets are distributed either through administration of the trust or pursuant to the beneficiary or titling designations.
We help with the administration of lifetime revocable or irrevocable trusts as well as the administration of a living trust upon the grantor’s death. This process generally does not involve the courts when the trust was properly funded before death, although there may be an ancillary reason to commence a probate proceeding.
Trust administration is very similar to probate administration except that it does not involve the court (absent a dispute). The Trustee acts like the personal representative in a probate proceeding and administers the trust by overseeing the investment of the trust assets, protecting the trust property, resolving all claims, paying all debts and taxes, and distributing the trust assets to the beneficiaries pursuant to the terms of the trust agreement.
Relationships between fiduciaries and beneficiaries designated in estate plans can be difficult. When someone is appointed as trustee of a trust or appointed personal representative of an estate, those appointments are subject to many fiduciary duties. A brief summary of the main fiduciary duties are:
Duty to Carry out the Fiduciary Purpose; Decedent’s Intent and Efficiency. Each co-Personal Representative and co-Trustee is charged with the duty to carry out the decedent’s wishes and intent and to administer the estate and trust expeditiously and efficiently.
Duty to Control and Protect Property. Each co-Personal Representative and co-Trustee must take control of and protect the estate and trust assets.
Duty of Loyalty and Prudence. Each co-Personal Representative and co-Trustee cannot put his, her or its own interests above those of the beneficiaries and each must administer the estate and trust as a prudent person would.
Duty to Inform and Report. Each co-Personal Representative and co-Trustee must keep the beneficiaries informed about the administration of the estate and trust and of the material facts necessary for them to protect their interests, including their requests for information. As such, each co-Personal Representative and co-Trustee must be able to account for all assets of the estate and trust.
The person or entity acting under fiduciary duties is often confronted with a range of difficult questions. Our lawyers can make determinations to ensure the fiduciary duties are met and to put the client’s mind at ease, which can include:
The fairness of the fiduciary’s actions
The extent of the fiduciary’s control
How to avoid lawsuits
Assessment and minimization of personal liability
Charitable giving is a wonderful way to merge clients’ philanthropic goals with estate and income tax savings. Charitable giving is not only wonderful because of its philanthropic objectives, but also because it is a way to alleviate capital gains tax issues that clients may be facing through the use of charitable remainder trusts, private foundations, donor advised funds or the charitable giving of portions of real property prior to a sale.
Because of the many opportunities for cash-flow planning and tax savings associated with charitable planning, it is important that clients review all their charitable options. The attorneys at Oak Street Law Group are experienced with all charitable vehicles, including private foundations, gift annuities, charitable trusts and donor advised funds.
Oak Street Law can help you reduce your income taxes, maximize your income, and attain your charitable aspirations.
For most business owners, their business represents one of their largest assets. Clients can make provisions, whether through buy-sell agreements, other shareholder agreements, or lifetime transfers to trusts for their children or other successors, to ensure that their business will continue on with their intended successors, as opposed to having to liquidate the business to satisfy estate taxes. The federal government is rarely the business owner’s intended successor!
Business and Estate Succession Planning
Business succession planning is the single most important way to prevent your business from getting caught in ownership and management disputes among family members and shareholders upon your retirement or death. The Oak Street Law Group provides experienced business succession planning counsel and services that integrate clients’ family estate planning, income and estate tax strategies, and retirement planning needs.
Business and Family Entity Structuring & Formation
When a client is ready to incorporate or form a business or establish a not-for-profit organization, we help them balance and enhance limits on liability and profitability and organize a tax structure that offers them the greatest benefit. We work closely with clients and their accountants to select the entity that provides the most desirable taxation, liability protection and operational advantages.