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Review Your Estate Plan Before the Rules Change

Lori Johnson, Bankrate.com

A general rule for estate plans is to revisit them when there's a major change in circumstances, such as a marriage, divorce or the addition of children or grandchildren.

The economic meltdown of 2008 was one of those significant events: It left a great number of Americans looking at lower asset values due to deterioration in the stock and real estate markets.


But changes in the economic landscape and possible estate-tax reform make now a good time to review your plan. And, experts warn, don't put it off simply because you're depressed over market losses or you have a natural tendency to avoid discussing death.

"A lot of people, I think, have been putting off their estate plans lately because the market has declined. They're not feeling as wealthy, or maybe they think it's not as important," says M. Everett "Rett" Peaden, an associate with the Atlanta-based law firm of Davis, Matthews and Quigley.

"People are saying, 'Gee, I had a couple million in my IRA and now it's only a million. Do I really need to worry about that?'" Peaden says. "One of the answers I give to people is, 'You never die at the right time, and no one ever expects it.' People need to stay on top of it."

Potential moves by Congress that could affect estate plan tax exemption amounts and depressed asset values combined with low interest rates are converging factors that should prompt a review, says Ron Knipping, CPA and managing principal at Rehmann Financial, a Saginaw, Mich.-based business consulting firm.

If you've updated your plan within the past couple of years, changes could be "fairly straightforward," he says.

But if your plan is 7 or 8 years old, it might not make sense any longer, says Ted Kurlowicz, professor of estate planning at The American College in Bryn Mawr, Pa. That's because the federal estate tax exemption has been steadily rising, from $675,000 in 2002, for example, to $3.5 million in 2009. It is scheduled for repeal in 2010, and then will revert to $1 million in 2011, unless Congress enacts reform.

"Everybody has had a significant change in the amount they can pass (to heirs)," Kurlowicz says. He expects estate-tax reform to be enacted by the end of the year.

Although all estate plans -- and changes to plans -- will vary based on your circumstances, here are five steps experts say people should consider to bring them up to date.

Do fact-finding first
Before you contact your attorney, determine what has happened to your asset values, how you own your assets, what amounts you are planning to pass on to beneficiaries and other information that will help you determine your net worth, Kurlowicz says. It's probably not going to be as high as you would like, but you need to know what you have.

Look at heirs in need now
If you can help heirs financially, you may want to shift some money out of your estate. Maybe a child or grandchild has lost a job and is in need of some financial assistance.

You'll reap the benefits as well. For example, you can pay medical expenses or tuition directly to the institution for a beneficiary and not have to pay gift tax.

But make sure you don't jeopardize your own financial situation.

"You should be looking not only at yourself but others who are going to be inheriting from you and making some adjustments," Kurlowicz says. "Maybe (you're) comfortable and can help them out, but it's going to change (the plan)."

Consider your cash flow
Knipping says some people delay analyzing cash flow out of denial and the fear there's not enough money in the estate. "Emotionally and realistically, it's a hard discussion," he says.

But looking at your cash flow could help you determine what you can gift now, and what you want to keep as part of your estate. "The big thing is never give away more than you can afford," Knipping says.

Take advantage of the depressed values
Peaden has been encouraging clients to consider gifting the reduced value of their shares in a business, property or other assets if they're worried about the estate tax. They remove the asset from the estate -- thus lowering the amount subject to tax -- and shift future appreciation to the recipient.

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"Most people agree that values are ... a little tight now, and they're expecting -- or hoping at least -- that things are going to rise over the next few years," he says.

Consider a living trust
"When you have a lot of flux, I like living trusts," Kurlowicz says. A living trust combined with power of attorney allows aspects of an estate plan to be changed after an individual loses mental capacity, unlike a will, which is not as amenable to change, he adds.

In a trust, you name a successor trustee or co-trustee who can take over if you become incapacitated.

If you decide on a living trust, you still need a will -- called a pour-over will -- that will transfer any assets to the trust that weren't transferred before death.

If the probate process in your state is onerous, a living trust may simplify the distribution of your estate because it bypasses probate.