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Basic Estate Planning: A Check List For You and Your Attorney

Here is a checklist of things to cover when working with your attorney on your estate plan:

  1. Confirm your “domicile” state to avoid multi-state tax and administrative problems.
  2. Execute or update medical authorizations and living wills.
  3. Designate an agent on a durable power of attorney.
  4. Decide whether to name in writing someone to be your guardian or conservator if the need arises.
  5. Review existing assets to determine how title is held. Review retirement plans, IRAs, and insurance policies, and change beneficiaries if necessary or appropriate. Also review bank and investment accounts to determine ownership and succession.
  6. Review and update your wills and trusts.
  7. Decide whether to create a living trust or to fund an existing but unfunded trust to manage assets. Potential advantages are privacy; avoidance of probate administration; professional management during disability; and continuity of administration.
  8. If you have any power of appointment over assets held in trusts created by others, decide whether such powers should be exercised.
  9. Estimate potential estate tax liabilities and determine sources of funds to pay such taxes. (The federal estate tax was reinstated in 2011, affecting persons with estates over $5,000,000. Maine estate taxes affect estates of $1,000,000 but the Maine exemption will increase to $2,000,000 in 2013.)
  10. Consider annual gifts. (The elimination of the “gift in contemplation of death” rules for assets other than insurance may suggest making lifetime gifts to children and grandchildren under the annual exclusion to shelter gifts of up to $13,000 per donee. There are additional exclusions for direct payment of medical and educational expenses.)
  11. Consider marital gifts. (During times when the federal and state estate taxes are in effect, marital gifts may provide a means to assure that you can fully use your available estate tax credit. Marital gifts to your surviving spouse may aid your surviving spouse’s comfort during the period of estate administration.)
  12. Determine if you have received any property from a decedent and whether there may be a credit available under Code Section 2013.
  13. Consider generation skipping transfers to use the exemption from GST tax.
  14. Consider ancillary procedures. (If you have real estate or other property in other jurisdictions that would require ancillary administration, consider gifts or the use of trusts or family liability companies to minimize ancillary administration costs.)
  15. Determine the likely needs of your estate for cash to pay debts and expenses of administration and plan for meeting such needs. (Possible considerations include flower bonds, life insurance, sales of business interests or other illiquid assets.)
  16. Assure that appropriate arrangements have been made with respect to family business interests including successor management, voting of stock, access to bank accounts and business records, and possible buy sell or other agreements with respect to stock.
  17. Decide if you should take any steps to plan for long term care, either through home based care or nursing home care, including the alternatives of long term care insurance and possible qualification for state assistance under the Mainecare program. (If Mainecare eligibility is likely to be an issue, and your spouse will remain at home, consider transfers of assets to your spouse to fund a community spouse resource allowance and to fully fund the community spouse income allowance. Also consider maximizing the use of excluded resources and allowable transfers of assets under existing regulations.)
  18. Consider burial or other funeral arrangements, organ donations, and obituary.
  19. Consider charitable gifts, such as: lifetime gifts; gifts at death; gift annuities; pooled income funds; charitable remainder trusts; gifts of remainder interests; gifts of life insurance; and gifts of retirement plan benefits.