Are you dealing with a serious or terminal illness?

Americans whose loved ones are entering hospice or approaching death, have many decisions to make in order to prevent the legal, financial, and emotional ramifications to their estates and families. Estate planning is critical to ensuring peace of mind for those approaching death and their families. In terms of estate planning, there are a few things to think about consider.

Many Americans who are approaching death may also be approaching incapacity. It is important to deal with and prepare for the latter, and the burdens it can have on an individual and their loved ones. Individuals who become incapacitated and are unable to carry out certain duties may need to get immediate, effective, durable powers of attorney for financial matters. Financial experts advise individuals to get powers of attorney sooner rather than later, so they can be implemented without the need for doctor’s letters further down the line. Powers of attorney allow the attorney-in-fact, or agent, of an individual to handle their financial affairs should they become incapacitated or disabled. Experts advise individuals to get an attorney-in-fact that they trust—a family member or another loved one—so they can rest assured that the decisions they make on their behalf are the right ones. Experts remind individuals that attorneys-in-fact cannot be appointed while they are incapacitated but can be if they are deemed “competent”.

Financial and estate planning experts like the Velasco Law Group advise their clients to fulfill any necessary funding requirements before death in order to avoid probate. A revocable trust is required to do this. This trust must be put into effect and be properly funded by transferring titles of real estate, funds in bank accounts and investment accounts into it. Without this trust funding, probate, either full or summary, may not be avoided. All beneficiaries should be designated in the trust—including beneficiaries of life insurance, retirement accounts, and annuities. Individuals who fail to designate beneficiaries may trigger unnecessary probate costs and higher income tax taxes for their families. This is particularly important for retirement accounts such as IRAs, 401(k)s, 457s, and 403(b)s.

Experts advise individuals approaching death to consider “swapping assets.” This process is two-fold: it involves the transfer of appreciated assets on a low-income basis, in order to achieve a step up in the income tax basis upon death; additionally, it involves the transfer of depreciated assets to avoid a step down in the income tax basis. Individuals also need to be mindful of how their assets are swapped, making sure that they do not become the subject of other expenses such as Medi-Cal liens in California. This swap can also help avoid capital gains taxes, which, in the state of California, can be up to 37.1%.

Charitable gifts are another important aspect of estate planning for Americans approaching death. Financial advisors recommend individuals make any desired charitable gifts during their lifetime, given that their estate is exempt from estate tax (the lifetime exemption for the estate tax is $5.45 million for single persons, $10.9 million for married couples). These charitable gifts can help provide a significant income tax savings for all estates, both big and small. For smaller estates, however, they may not provide savings on the estate tax, since they are not typically subject to it.

Life insurance policies should be reviewed before death. Advisors suggest individuals and their families review these policies to confirm that all of their policies are current and have not lapsed due to, for example, non-payment (if a policy has lapsed, it could possibly be reinstated before one’s death). For taxable estates (see the estate tax exemptions above), experts and advisors recommend that these policies be sold to an irrevocable life insurance trust or be altered in a way to stop or reduce insurance payments due to life expectancy (if the cash value of the policy is adequate).

Finally, experts advise individuals to plan to avoid income In Respect of the Decedent, or IRD. This allows taxable estates to avoid income with respect to decedent item(s), including income or retirement account distributions that may be paid after death. These items are all taxable and individuals are advised to talk to their financial advisor to set up a plan to avoid these taxes.

The Velasco Law Group is a bilingual (English and Spanish) estate planning and estate litigation law firm located with office in Long Beach, Downey, and Irvine. First consultations are complementary: you can schedule a time with our friendly staff by calling is or email us HERE