Rewrite Your Will
There’s no question that the new law increasing the individual exemption from federal estate and gift tax to $5 million per person has made many estate plans, particularly those of married couples, obsolete. Indeed, in the latest issue of Forbes, Ashlea Ebeling and I have an article, Rewrite Your Will, pointing out that with the exemption jumping (it was only $2 million as recently as 2008), some couples’ old wills containing “formula” bypass trusts could have unintended (and unfortunate) consequences.
While the article presents, I think, a pretty good overview of the issues presented by the new law, there’s one bit of advice it doesn’t include: Assuming you are in good health, aren’t anticipating any risky adventures or big life events (say, the birth of your first child) in the next several weeks, and aren’t very rich, you might want to put off the visit to your estate planning lawyer for a few months.
Now I know I’m going to hear screams from the lawyers on this one. They’ll warn that a reader who procrastinates could get hit by a bus tomorrow. In fact, my coauthor, Ashlea, just opined on her blog about how couples should no longer use estate tax uncertainty as an excuse for delaying planning. (As an example of over-the-top procrastination, Ashlea cites one couple with two elementary school children and a $1 million-plus house who still don’t have wills and so fly on separate airlines when they cross the Atlantic.)
Ok, if you have kids and no signed will whatsoever you need to see a lawyer or at least use some do-it-yourself software pronto. But otherwise, here’s why you might want to delay a bit: Legal experts are still in the early stages of parsing the new law and debating the best ways for ordinary folks to plan now. (Estate lawyers spent the last two weeks of 2010 either on vacation or scrambling to take advantage of an end of the year loophole for very wealthy families.)
As Deborah Jacobs, a lawyer and author of a book on estate planning explains in two must-read articles for married folks here and here, the law’s new “portability” provision allowing couples to pass on a combined $10 million estate tax free has created an opportunity for many couples to simplify their planning and perhaps do away with cumbersome bypass trusts. But the best way for most couples to proceed isn’t yet completely obvious. After all, the estate tax changes signed into law by President Obama on Dec. 17th expire at the end of 2012 and so the decade long era of estate tax uncertainty is hardly over. Plus, state estate and inheritance laws add to the uncertainty. (For the latest on your state’s law, click here.)
Even more importantly, lawyers don’t yet have the updated legal drafting software which should help them to hold down costs in routine cases. With your lawyer’s meter ticking at $300 or more an hour, do you really want to pay for him or her to learn on the job or draft documents the old-fashioned way? ”The new law has temporarily created a level playing field,’’ says Jacobs. “When was the last time lawyers could say they didn’t know too much more than their clients?”
So read the Forbes articles and pull out your will to see if you have any of the troublesome clauses they describe. If you do, definitely put a rewrite of your will on your to-do list for February or March–after your lawyer has had a chance to get up to speed and get the latest software. Meanwhile, look both ways before crossing the street.
By JANET NOVACK