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5 Steps For Adding Digital Assets To Your Estate Plan

Although digital technology has made many aspects of our lives much easier and more convenient, it has also created some unique challenges when it comes to estate planning.

If you haven’t planned properly, for example, just locating and accessing all of your digital assets can be a major headache—or even impossible—for your loved ones following your death or incapacity.And even if your loved ones can access your digital assets, in some cases, doing so may violate privacy laws and/or the terms of service governing your accounts. You may also have some online assets that you don’t want your loved ones to inherit, so you’ll need to take measures to restrict and/or limit access to such assets.

​Given the unique nature of your online property, there are a number of special considerations you should be aware of when including online property in your plan. Here are a few of the steps you should take to help ensure your digital assets are properly accounted for, managed, and passed on.

1. Make an inventory:

Create a list of all your digital assets, along with their login and password information. Some of the most common digital assets include cryptocurrency, online financial accounts, online payment accounts like PayPal, websites, blogs, digital photos, email, and social media.

Store the list in a secure location, and provide your fiduciary (executor, trustee, or power of attorney agent) with detailed instructions about how to locate and access your accounts. To make them easier to manage, back up any cloud-based assets to a computer, flash drive, or other physical storage device. Review this list regularly to account for any new digital property you acquire.

2. Include digital assets in your estate plan:

Just like any other property you want to pass on, detail in your plan who you want to inherit each digital asset, along with your wishes for how the asset should be used or managed. If you have any assets you don’t want passed on, include instructions for how these accounts should be closed and/or deleted.

Do NOT include passwords or security keys in your planning documents, where they can be read by others. This is especially true for your will, which becomes public record upon your death. Instead, keep this information in a separate, secure location, and provide your fiduciary with instructions about how to access it. Consider using digital account-management services, such as Directive Communication Systems, to help streamline this process.

If you have particularly complex or highly encrypted digital assets like cryptocurrency, consider including provisions in your plan allowing your fiduciary to hire an IT consultant to deal with any technical challenges that might come up.

3. Restrict access:

Include terms in your plan detailing the level of access you want your fiduciary to have to your digital accounts. For example, do you want your fiduciary to be allowed to view your emails, photos, and social media posts before passing them on or deleting them? If there are any assets you want to limit access to, we can help you include the necessary provisions in your plan to ensure your privacy is respected.

4. Include relevant hardware: 

Don’t forget to include the physical devices—smartphones, computers, tablets—upon which your digital assets are stored in your plan. Having quick access to these devices will make it much easier for your fiduciary to manage your digital assets. And since the data can be transferred or deleted, you can even leave these devices to someone other than the individual who inherits the digital property stored on them.

5. Review service providers’ access-authorization functions:

Some service providers like Google, Facebook, and Instagram allow you to give specific individuals access to your accounts upon your death. Review the terms of service for your accounts, and if these functions are available, use them to document who you want to access your accounts.

Double check that the people you named to inherit your digital assets using these access-authorization tools match those you’ve named in your estate plan. If not, the provider will likely give priority to the person named with its tool, not your plan.

Keep pace with technology

As technology evolves, you’ll need to adapt your estate plan to keep pace with the ever-changing nature of your assets. As your Personal Family Lawyer®, we know just how valuable your online property can be, and our planning strategies are specifically designed to ensure these assets are preserved and passed on seamlessly in the event of your death or incapacity. Contact us today to schedule a Family Wealth Planning Session.

Remarrying In Midlife? Avoid Accidently Disinheriting Your Loved Ones

​Today, we’re seeing more and more people getting divorced in middle age and beyond. Indeed, the trend of couples getting divorced after age 50 has grown so common, it’s even garnered its own nickname: “gray divorce.”

Today, roughly one in four divorces involve those over 50, and divorce rates for this demographic have doubled in the past 30 years, according to the study Gray Divorce Revolution. For those over age 65, divorce rates have tripled.

With divorce coming so late in life, the financial fallout can be quite devastating. Indeed, Bloomberg.com found that the standard of living for women who divorce after age 50 drops by some 45%, while it falls roughly 21% for men. Given the significant decrease in income and the fact people are living longer than ever, it’s no surprise that many of these folks also choose to get remarried.

And those who do get remarried frequently bring one or more children from previous marriages into the new union, which gives rise to an increasing number of blended families. Regardless of age or marital status, all adults over age 18 should have some basic estate planning in place, but for those with blended families, estate planning is particularly vital.

In fact, those with blended families who have yet to create a plan or fail to update their existing plan following remarriage are putting themselves at major risk for accidentally disinheriting their loved ones. Such planning mistakes are almost always unintentional, yet what may seem like a simple oversight can lead to terrible consequences.

Here, we’ll use three different hypothetical scenarios to discuss how a failure to update your estate plan after a midlife remarriage has the potential to accidently disinherit your closest family members, as well as deplete your assets down to virtually nothing. From there, we’ll look at how these negative outcomes can be easily avoided using a variety of different planning solutions.

Scenario #1: Accidentally disinheriting your children from a previous marriage

John has two adult children, David and Alexis, from a prior marriage. He marries Moira, who has one adult child, Patrick. The blended family gets along well, and because he trusts Moira will take care of his children in the event of his death, John’s estate plan leaves everything to Moira.

After just two years being married, John dies suddenly of a heart attack, and his nearly $1.4 million in assets go to Moira. Moira is extremely distraught following John’s death, and although she planned to update her plan to include David and Alexis, she never gets around to it, and dies just a year after John. Upon her death, all of the assets she brought into the marriage, along with all of John’s assets, pass to Moira’s son Patrick, while David and Alexis receive nothing.

By failing to update his estate plan to ensure that David and Alexis are taken care of, John left the responsibility for what happens to his assets entirely to Moira. Whether intentionally or accidentally, Moira’s failure to include David and Alexis in her own plan resulted in them being entirely disinherited from their father’s estate.

There are several planning options John could’ve used to avoid this outcome. He could have created a revocable living trust that named an independent successor trustee to manage the distribution of his assets upon his death to ensure a more equitable division of his estate between his spouse and children. Or, he could have created two separate trusts, one for Moira and one for his children, in which John specified exactly what assets each individual received. He might have also taken advantage of tax-free gifts to his two children during his lifetime.

Whichever option he ultimately decided on, if John had consulted an experienced estate planning attorney like us, he could have ensured that his children would have been taken care of in the manner he desired.

Scenario #2: Accidentally disinheriting your spouse

Mark was married to Gwen for 30 years, and they had three children together, all of whom are now adults. When their kids were young, Mark and Gwen both created wills, in which they named each other as their sole beneficiaries. When they were both in their 50s, and their kids had grown, Bob and Gwen divorced.

Several years later, at age 60, Bob married Veronica, a widow with no children of her own. Bob was very healthy, so he didn’t make updating his estate plan a priority. But within a year of his new marriage, Bob died suddenly in a car accident.

Bob’s estate plan, written several decades ago, leaves all of his assets to ex-wife Gwen, or, if she is not living at the time of his death, to his children. State law presumes that Gwen has predeceased Bob because they divorced after the will was enacted. Thus, all of Bob’s assets, including the house he and Veronica were living in, pass to his children. Veronica receives nothing, and is forced out of her home when Bob’s children sell it.

By failing to update his estate plan to reflect his current situation, Bob unintentionally disinherited Veronica and forced her into a precarious financial position just as she was entering retirement. If Bob had worked with an estate planning attorney to create a living trust, he could have arranged his assets so they would go to, and work for, exactly the people he wanted them to benefit.

For example, if he wanted the bulk of his assets to go to his children, but didn’t want to cause any disruption to Veronica’s life, he could have put his house, along with funds for its maintenance, into the trust for her benefit during her lifetime, and left the remainder of his assets to his kids. This would allow Veronica to live in and use the house as her own for the rest of her life, but upon her death, the house would pass to Bob’s children.

Scenario #3: Allowing Assets to Become Depleted
Steve is a divorcee in his early 60s with two adult children when he marries Susan. Steve has an estate valued at around $850,000, and he has told his kids that after he passes away, he hopes they will use the money that’s left to fund college accounts for their own children. But he also wants to ensure Susan is cared for, so he establishes a living trust in which he leaves all his assets to Susan, and upon her death, the remainder to his two children.

Yet, soon after Steve dies, Susan suffers a debilitating stroke. She requires round-the-clock in-home care for several decades, which is paid for by Steve’s trust. When she does pass away, the trust has been almost totally depleted, and Steve’s children inherit virtually nothing.

An experienced estate planning attorney like us could have helped Steve avoid this unfortunate outcome. Steve could have stipulated in his living trust that a certain portion of his assets must go to his children upon his death, while the remainder passed to Susan.

Additionally, Steve might have used life insurance to provide cash for Susan’s care upon his death, or he could have purchased a second-to-die life insurance policy for himself and Susan, naming his children as beneficiaries. Such a policy would ensure that regardless of the amount remaining in the trust, Steve’s children would receive an inheritance upon Susan’s death.

Bringing families together

Along with other major life events like births, deaths, and divorce, enteringinto a second (or more) marriage requires you to review and rework your estate plan. And updating your plan is exponentially more important when there are children involved in your new union.

As your Personal Family Lawyer®, we are specifically trained to work with blended families, ensuring that you and your new spouse can clearly document your wishes to avoid any confusion or conflict over how the assets and legal agency will be passed on in the event of one spouse’s death or incapacity.

If you have a blended family, or are in the process of merging two families into one, contact us, as your Personal Family Lawyer®, today to discuss all of your options.

6 Things You Should NOT Include In Your Will

A will is one of the most basic estate planning tools. While relying solely on a will is rarely a suitable option for most people, just about every estate plan includes this key document in one form or another.

A will is used to designate how you want your assets distributed to your surviving loved ones upon your death. If you die without a will, state law governs how your assets are distributed, which may or may not be in line with your wishes.

That said, not all assets can (or should) be included in your will. For this reason, it’s important for you to understand which assets you should put in your will and which assets you should include in other planning documents like trusts.


While you should always consult with an experienced planning professional like us when creating your will, here are a few of the different types of assets that should not be included in your will.

1. Assets with a right of survivorship: 

A will only covers assets solely owned in your name. Therefore, property held in joint tenancy, tenancy by the entirety, and community property with the right of survivorship, bypass your will. These types of assets automatically pass to the surviving co-owner(s) when you die, so leaving your share to someone else in your will would have no effect. If you want someone other than your co-owner to receive your share of the asset upon your death, you will need to change title to the asset as part of your estate planning process.

2. Assets held in a trust:

Assets held by a trust automatically pass to the named beneficiary upon your death or incapacity and cannot be passed through your will. This includes assets held by both revocable “living” trusts and irrevocable trusts.

In contrast, assets included in a will must first pass through the court process known as probate before they can be transferred to the intended beneficiaries. To avoid the time, expense, and potential conflict associated with probate, trusts are typically a more effective way to pass assets to your loved ones compared to wills.

However, because it can be difficult to transfer all of your assets into a trust before your death, even if your plan includes a trust, you’ll still need to create what’s known as a “pour-over” will. With a pour-over will in place, all assets not held by the trust upon your death are transferred, or “poured,” into your trust through the probate process.

Meet with us for guidance on the most suitable planning tools and strategies for passing your assets to your loved ones in the event of your death or incapacity.

3. Assets with a designated beneficiary: 

Several different types of assets allow you to name a beneficiary to inherit the asset upon your death. In these cases, when you die, the asset passes directly to the individual, organization, or institution you designated as beneficiary, without the need for any additional planning.

The following are some of the most common assets with beneficiary designations, and therefore, such assets should not be included in your will:

  • Retirement accounts, IRAs, 401(k)s, and pensions
  • Life insurance or annuity proceeds
  • Payable-on-death bank accounts
  • Transfer-on-death property, such as bonds, stocks, vehicles, and real estate

4. Certain types of digital assets:

Given the unique nature of digital assets, you’ll need to make special plans for your digital assets outside of your will. Indeed, a will may not be the best option for passing certain digital assets to your heirs. And in some cases—including Kindle e-books and iTunes music files—it may not even be legally possible to transfer the asset via a will, because you never actually owned the asset in the first place—you merely owned a license to use it.

What’s more, some types of social media, such as Facebook and Instagram, have special functions that allow you to grant certain individuals access and/or control of your account upon your death, so a will wouldn’t be of any use. Always check the terms of service for the company’s specific guidelines for managing your account upon your death.

Regardless of the type of digital asset involved, NEVER include the account numbers, logins, or passwords in your will, which becomes public record upon your death and can be easily read by others. Instead, keep this information in a separate, secure location, and provide your fiduciary with instructions about how to access it.

5. Your pet and money for its care: 

Because animals are considered personal property under the law, you cannot name a pet as a beneficiary in your will. If you do, whatever money you leave it would go to your residuary beneficiary (the individual who gets everything not specifically left to your other named beneficiaries), who would have no obligation to care for your pet.

It’s also not a good idea to use your will to leave your pet and money for its care to a future caregiver. That’s because the person you name as beneficiary would have no legal obligation to use the funds to care for your pet. In fact, your pet’s new owner could legally keep all of the money and drop off your furry friend at the local shelter.

The best way to ensure your pet gets the love and attention it deserves following your death or incapacity is by creating a pet trust. We can help you set up, fund, and maintain such a trust, so your furry family member will be properly cared for when you’re gone.

6. Money for the care of a person with special needs: 

There are a number of unique considerations that must be taken into account when planning for the care of an individual with special needs. In fact, you can easily disqualify someone with special needs for much-needed government benefits if you don’t use the proper planning strategies. To this end, a will is not a suitable way to pass on money for the care of a person with special needs.

Given this, you should always work with an experienced planning lawyer like us to create a special needs trust. We can make certain that upon your death, the individual would have the financial means they need to live a full life, without jeopardizing their access to government benefits.

Don’t take any chances

Although creating a will may seem fairly simple, it’s always best to consult with an experienced planning professional to ensure the document is properly created, executed, and maintained. And as we’ve seen here, there are also many scenarios in which a will won’t be the right planning option, nor would a will keep your family and assets out of court.With this in mind, you should meet with us, as your Personal Family Lawyer®, to discuss your specific planning needs, so we can find the right combination of planning solutions to ensure your loved ones are protected and provided for no matter what. Schedule a Family Wealth Planning Session™ today to get started.

Start Planning Now to Prepare Your Estate for a Possible Democratic Sweep—Part 2

No matter who you vote for on November 3rd, you may want to start considering the potential legal, financial, and tax impacts a change of leadership might have on your family’s planning. As you’ll learn here, there are a number of reasons why you may want to start strategizing now if you could be impacted, because if you wait until after the election, it could be too late.

While we don’t yet know the outcome of the election, Biden could win and the Democrats could take a majority in both houses of Congress. If that does happen, a Democratic sweep would have far-reaching consequences on a number of policy fronts. But in terms of financial, tax, and estate planning, it’s almost certain that we’ll see radical changes to the tax landscape that could seriously impact your planning priorities. And while it’s unlikely that a tax bill would be enacted right away, there’s always the possibility such legislation could be applied retroactively to Jan. 1, 2021.


This two-part series is aimed at outlining the major ways Biden plans to change tax laws, so you can adapt your family’s planning considerations accordingly. Last week in part one, we detailed Biden’s plan to raise roughly $4 trillion in revenue by implementing a variety of measures designed to increase taxes on individuals earning more than $400,000.

Specifically, we discussed the former Vice President’s proposals to increase the top personal income tax rate and capital-gain’s tax rates, reinstitute the Social Security tax on higher incomes, and reduce the federal gift and estate-tax exemption to levels in place during the Obama administration. If you haven’t read that part yet, do so now.

Here, in part two, we’ll cover three additional ways the Biden administration plans to raise taxes, along with offering steps you might want to consider taking to offset the bite these proposed tax hikes could have on your family’s financial and estate planning.

Elimination of step-up in basis on inherited assets

In addition to raising the capital-gains tax rate, Biden has also proposed repealing the step-up in basis on inherited assets. Under the current step-up in basis rule, if you sell an inherited asset that has appreciated in value, such as real estate or stock, the capital gains tax you owe on the sale is pegged to the value of the asset at the time you inherited it, rather than the value of the asset when it was originally purchased.

This can minimize, or even totally eliminate, the capital gains you would owe on the sale. For example, say your mother originally bought her house for $100,000. Over the years, the house grows in value, and it’s worth $500,000 upon her death. If you inherit the house, the step-up would put your tax basis for the house at $500,000, so if you immediately sold the house for $500,000, you would pay zero in capital-gains.

Alternatively, if you held onto the house for a few more years and then sold it for $700,000, you would only owe capital gains on the $200,000 difference on the house’s value from when you inherited it and when it was sold.

However, if the step-up in basis is repealed and you sell the house, you would owe capital gains tax based on the difference between the home’s original purchase price of $100,000 and the price at which you sell it. And whether you sell it right away or wait for it to increase in value, you’d be on the hook to pay exponentially more in capital gains, compared to what you’d owe with step-up in basis in effect.

At this point, it isn’t clear exactly how the new rules would work under Biden’s plan, or what, if any, exceptions would apply. That said, if step-up in basis is repealed, your loved ones most likely won’t be able to avoid paying capital gains on appreciated assets they inherit from you, but if you have highly appreciated assets, meet with us to discuss options for reducing your loved one’s tax bill as much as possible.

Capping the value of itemized deductions at 28%

Another way Biden plans to bring in more tax revenue is by capping the value of itemized deductions at 28% for those earning more than $400,000. This means taxpayers in the highest bracket would get a 28%—rather than 39.6%—reduction for every deductible dollar they itemize.

Given the proposed cap, if you earn more than $400,000 and plan to itemize, you should meet with us and your CPA together to discuss alternative ways to save on your taxes to offset the new cap on itemized deductions. For example, if you would be limited by the itemized deduction cap in 2021 or later, you may want to consider increasing charitable donations in 2020.

If you’d like to make a big charitable gift this year, but aren’t yet sure which charities you would want to benefit, we have strategies that could work for you. Contact us as soon as possible to get started.

Increased taxes on businesses

If you own a business, it’s likely a primary source of your family’s income. And depending on its revenue and entity structure, your business could see a tax hike should Democrats sweep the election.

One of the hallmarks of the TCJA was a lowering of the corporate tax rate from 35% to 21%. Biden proposes to raise the corporate rate to 28%. Additionally, under the TCJA pass-through entities—sole proprietorships, partnerships, limited liability companies (LLCs), and S corporations—were given a potential 20% deduction on Qualified Business Income (QBI). Biden plans to eliminate the 20% QBI deduction, but only for those businesses with pass-through income exceeding $400,000.

Although we don’t specialize in business tax law, if your family business stands to be affected by these proposed changes, we can work with you and an experienced business lawyer we trust to develop strategies to reduce the sting of these tax increases. Call us, as your Personal Family Lawyer®, today if you have a business and would like our support with this planning.

Start Strategizing Now

Regardless of how you feel about Trump, the TCJA offers a number of highly valuable tax breaks that may disappear for good should a so-called “blue wave” occur in the upcoming election. To this end, if your family has yet to take advantage of the TCJA’s favorable provisions, you still have a chance to do so, but you have to act immediately.

Given the time needed to analyze your options, create a plan, and finalize your transactions, waiting until the election is over to get started will almost certainly be too late. While you don’t need to immediately make any actual changes, we suggest you at least start strategizing now. And this means contacting us, as your Personal Family Lawyer®, right away.

Whether you need to transfer assets out of your estate to lock in the enhanced gift and estate tax exemptions, accelerate large transactions to reap favorable capital-gains rates, or would like to increase your charitable donations for 2020, we can help you get the ball rolling. Schedule your appointment today, so you don’t miss out on massive savings that may never come again.

Start Planning Now to Prepare Your Estate for a Possible Democratic Sweep—Part 1

No matter who you are voting for on November 3rd, you may want to start considering the potential legal, financial, and tax impacts a change of leadership might have on your family’s planning. And as you’ll learn here, there are a number of reasons why you should start strategizing now, because if you wait until after the election, it will very likely be too late.

Although the election outcome is impossible to predict, some polls show Joe Biden with a healthy lead over Donald Trump and the Democrats could be poised to take a majority in both houses of Congress. Such a Democratic sweep will likely have far-reaching consequences on a number of policy fronts. But in terms of financial, tax, and estate planning, it’s almost certain that we’ll see radical changes to the tax landscape that could seriously impact your planning priorities. And while it’s unlikely that a major tax bill would be enacted right away, there’s always the possibility that when legislation does pass it could be applied retroactively to Jan. 1, 2021.



With that in mind, in this two-part series, we’ll outline the major ways Biden plans to change tax laws, so you can adapt your family’s finances and estate planning considerations accordingly. Although you may decide to put off any actual changes to your estate plan until after the election, if you have any big transactions on the horizon, or if you have an estate that could be worth $1 million or more when you die, we suggest you at least start strategizing now. That way, you’ll have plenty of time to take the appropriate action before the end of the year, which will undoubtedly be a chaotic period regardless of who wins the election.

Focus on high net-worth taxpayers

While Trump has yet to release any formal economic proposals for a second term, Biden’s proposed economic agenda is essentially focused on raising some $4 trillion of new revenue over the next 10 years. The vast majority of this revenue would come from increasing taxes on high net-worth individuals.

Under Biden’s plan, “high net-worth individuals” are taxpayers earning more than $400,000. Those earning less than that would generally not see an increase—and perhaps even a decrease—in taxes, at least in the short-term. At this point, however, it’s not clear if the $400,000 threshold would apply equally to singles, heads of households, and/or married joint-filing couples.

Although the specifics haven’t been fully ironed out yet, Biden’s plan would boost tax revenue in a handful of ways:

  • Increasing the top personal income and capital-gains tax rates
  • Reinstating the payroll tax on higher incomes
  • Returning the federal estate and gift tax exemption to prior levels
  • Eliminating the step-up in cost basis on inherited investments
  • Capping itemized deductions
  • Increasing the corporate tax rate

Increased personal income tax rates on the wealthy

Starting in 2018, Trump’s Tax Cuts & Jobs Act (TCJA) reduced the top federal income tax rates on individuals from 39.6% to 37%. Biden’s tax plan would put the top income tax rate back to 39.6% on personal income in excess of $400,000.

This means that everyone earning more than $400,000 a year would see a tax hike. On the other hand, those making less than $400,000 would see no change in their personal income tax rate.

Higher maximum tax rate for capital gains

One of the most dramatic changes proposed under Biden’s plan involves the way capital gains are taxed. Short-term capital gains (assets held for a year or less) are taxed at the ordinary income tax rates, and under Biden’s proposal, those rates would max out at 39.6%. But the tax rates for long-term capital gains would see an even bigger hike.

Long-term capital gains (assets held for more than a year) are taxed at lower rates than short-term gains to encourage long-term investment. Those rates are currently set at 0% for individuals with annual incomes up to $40,000, 15% for incomes between $40,001 and $441,450, and max out at 20% for incomes above $441,451.

The Biden plan, however, would create an entirely new tax bracket just for long-term capital gains in which gains for individuals with incomes higher than $1 million would be taxed at 39.6%. So if you’re making more than $1 million a year, you’d no longer see the benefit of lower capital gains rates.

Given the potential for an increased capital gains tax rate, if you earn more than $1 million a year and are considering a sale of capital-gains qualified assets, or if a sale will bump up your income, you may want to consider accelerating any large transactions, so they’re finalized before the end of the year.

If this is the case for you, consult with us, along with your tax and financial advisors, right away for guidance about which transactions should be prioritized and how to maximize your tax savings on each one. Keep in mind, if you wait to contact us about such transactions until mid-November, it’s unlikely we are going to be able to accommodate your needs, so be sure to act now.

Increased Social Security tax on high-income earners

Another way Biden’s plan would raise tax revenue is by subjecting incomes above $400,000 to the Social Security tax. Currently, the 12.4% Social Security tax—also known as the payroll tax—applies only to the first $137,700 of your income. Earnings above that amount aren’t subject to the tax, and the cap goes up annually with inflation.

Biden proposes applying the 12.4% tax to wages and self-employment income starting at $400,001. This means the first $137,700 of your earnings will continue to be taxed at 12.4%, but you will pay no Social Security tax on additional earnings up to $400,000. However, any additional earnings exceeding $400,000 would be taxed at 12.4%.

The untaxed gap, or “doughnut hole,” on earnings between $137,700 and $400,001 would close over time with the annual increases for inflation. This change is designed to bolster the Social Security system by ensuring that the highest income levels are eventually subject to the full payroll tax.

In light of this proposed change, if you are expecting a bonus or other special end-of-the-year compensation, you should consider arranging for the money to be paid out by the end of 2020, rather than waiting until the start of 2021.

Increased estate and gift tax exposure

When it comes to estate planning, the most critical aspect of Biden’s proposed tax increases would be a major reduction in the federal gift and estate tax exemption. Starting in 2018, the TCJA doubled the gift and estate tax exemption from prior levels, increasing to $11.58 million for single taxpayers and $23.16 million for married couples. Any amounts above this exemption you give away during your lifetime or transfer upon your death are subject to a flat 40% tax.

The increased exemption amounts under the TCJA will sunset at the end of 2025, but if Biden wins the presidency, the enhanced exemption could be repealed much sooner. Indeed, Biden proposes to reduce the exemption back to at least the 2017 level of $5.45 million for individuals and $11.58 for couples.

There are others who suggest the federal gift and estate tax under Biden might even return to 2009 levels, when the individual exemption was set at $3.5 million and the estate tax rate was 45%. What’s more, seeing that in the past lawmakers have made estate tax rates retroactive, it’s possible that these changes could be applied retroactively and go into effect as early as Jan. 1, 2021.

Whatever the final outcome, it’s clear that if you have assets valued between $3.5 and $11 million, you need to seriously consider taking steps now to take advantage of favorable estate-tax exemption rates that may never be seen again. To this end, you should consider opportunities to transfer assets out of your estate now in order to lock in the higher exemption amounts.

That said, transferring assets out of your estate, whether done via gifting or other means, can take several weeks to plan, set up, and finalize, so avoid the temptation to wait until after the election to start planning. In fact, you should immediately meet with us, as your Personal Family Lawyer®, to discuss your options and get things started.

By setting your plan in motion now, you can have your strategies in place and ready to go, so you can pull the trigger (if needed) once election results are in.

Next week, we’ll continue with part two in this series on how to prepare your estate plan for a Biden presidency.

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