Paul O. Dillon, Attorney at Law

Don’t Overlook Estate Planning While Building a Business

According to a recent article from Reuters, “Estate planning for founders: a roadmap for success, " estate planning should be at the foundation of an entrepreneur's overall plan for the future.” The pressures of building a business can cause estate planning to be overlooked, leading to significant issues for family members and the business itself.

Core planning, business continuity and wealth transfer strategies are key components to be addressed.

Core planning clarifies estate planning. Who will control the assets, who will benefit from them and how will taxes be paid? Included in core planning is creating a will and trusts and appointing fiduciaries for the estate. Within this area, there are three further elements:

• Planning for taxes. If a startup value appreciates rapidly, there needs to be a plan to mitigate transfer taxes to maximize the wealth passed to the next generation.
• Asset protection. Inheritances need to be protected by implementing asset protection strategies. This may include using trusts, company structures (like LLPs) and other means of protecting assets from claims by creditors or ex-spouses.
• Planning for Incapacity. With properly created documents, including Financial Power of Attorney, Healthcare Proxy, HIPAA Release and Living Wills, the business owner’s personal and financial affairs are handled smoothly by individuals of their choosing.

Business continuity requires a strategic plan for incapacity and the eventual fate of the business, whether it’s to be passed down to the next generation, sold, or dissolved.

• Liquidity planning. If the founder’s retirement is to be funded by the sale or transfer of the business, how will the business continue to operate? Cash flow mechanisms could include insurance policies, investment accounts, or other liquid assets.
• Buy-Sell Agreements. These are often created to take effect following a triggering event, like death or incapacity. The agreements should be designed to avoid any disputes and ensure the stable continuation of the business.
• Funding with Life Insurance: Life insurance is often used as part of buy-sell agreements to ensure that the business can continue and the family receives fair compensation for their portion of the business.

Wealth transfer strategies. The goal is to maximize the owner’s legacy by minimizing taxes and transferring wealth to beneficiaries most efficiently.

• Estate “freezing” techniques include the use of Grantor Retained Annuity Trusts (GRATs), Spousal Lifetime Access Trusts (SLATs) and dynasty trusts, used to minimize estate taxes by transferring future appreciation of assets to beneficiaries.
• Qualified Small Business Stock Planning. If founders have Qualified Small Business Stock (QSBS), they can achieve significant income tax benefits with careful estate planning.
• Charitable Giving. Philanthropy is a means of reducing estate taxes, while supporting causes that have meaning for the founder. Creating charitable trusts or foundations allows business owners to impact their communities, significantly enhancing the founder’s legacy.

Regardless of the size of the business, it’s important to create a plan to address issues to protect the business's long-term growth, maximize the wealth of the founder and their family and create a legacy for the future. Talk with an estate planning attorney about creating a plan today.

Reference: Reuters (April 17, 2025) “Estate planning for founders: a roadmap for success”

Estate Planning for Americans Living Overseas

There are many nuances to estate and inheritance taxes for Americans and more for Americans living outside of the United States. While the current federal estate tax levels are extremely high, there are different rules in other countries, and a clear understanding is needed, as reported in the Tax Management International Journal/Bloomberg Tax article, “Americans Living Overseas Need Cross-Border Estate Planning.”

At the very least, expatriates will want to understand the federal estate tax and how it works with state-level taxes and how European taxes work, which are very different than the American model.

The current 2025 federal estate tax exemption is $13.99 million per individual, and estates below this threshold don’t pay federal taxes. The exemption will likely remain at elevated levels in the foreseeable future. Estates exceeding this level are taxed at rates up to 40%. However, most high-net-worth individuals have strategic estate planning to minimize their tax liability. Lifetime gifting, charitable donations and trusts shelter assets and pass wealth on to future generations.

Several states have their estate taxes, which are typically far lower than the federal level. Oregon, Rhode Island and Massachusetts have the lowest exclusions at $2 million or less. New York State's estate tax exclusion is $7.16 million. However, there’s a so-called “cliff tax” if the estate value exceeds the exemption even slightly. In most states, the estate tax ranges from 0.8% to 20%. Your estate planning attorney will know what your state’s exemptions are.

Inheritance taxes are levied only by a few states, including Iowa, Nebraska, Kentucky, Maryland, New Jersey and Pennsylvania. Maryland, known as a corporate haven for its low business taxes, imposes both estate and inheritance taxes. These taxes are based on the value of the inheritance and the relationship to the decedent.

In Europe, U.S. citizens are subject to more inheritance taxes, where exemptions tend to be lower, and rates are far higher than in the U.S. If you live overseas, you’ll need to consider the cost of your exposure to two tax systems. U.S. federal estate taxes apply wherever you live, in or outside of the U.S., and European inheritance taxes are based on where the decedent lived.

Estate planning for expats requires a multi-national approach. Find out if your country has a U.S. Estate and Gift Tax Treaty, which may allow credits to offset taxes paid in one country against those owned in another.

American citizens may gift up to $19,000 per person every year tax-free. Some European countries have a similar situation where lifetime gifting is based on the relationship between the grantor and the recipient.

Trusts recognized in the U.S. may not be recognized in other countries, so be sure the structure works in both the U.S. and your country of residence to avoid unexpected taxes.

The will you created in the U.S. may not be in compliance with another country and could lead to problems in estate administration.

Speak with an experienced estate planning attorney who can help you navigate the estate taxes and estate planning needs for living outside of the U.S. You’ll need to plan strategically to navigate American and your adopted nation’s estate tax structures.

Reference: Tax Management International Journal/Bloomberg Tax (Jan. 28, 2025) “Americans Living Overseas Need Cross-Border Estate Planning”

Do Charitable Gift Annuities Work?

A Charitable Gift Annuity donated to a qualified 501(c)(3) charity creates an immediate tax deduction for a portion of the contribution and a fixed income stream from the charity for as long as the grantor lives. With the minimum contribution usually $5,000, a CGA is accessible for many people seeking to create a legacy and lower taxes, according to a recent article, “How about a gift that pays you back?” from Los Angeles Daily News.

Who could benefit from a CGA?

• A person who wants to give generously but is concerned about having enough income for the future.
• Someone who needs a last-minute tax deduction and has already reached contribution limits for an IRA or 401(k) plan.
• A philanthropic-minded person who wants to leave a large amount or all of their estate to charity and wishes to have the business end of their giving done all at once.
• A donor who wants to avoid or defer capital gains tax on an asset they want to donate to charity.

An estate planning attorney should be involved in creating and executing the CGA to ensure that all requirements are met so that the CGA achieves the desired results and works in tandem with the rest of the estate plan. The estate planning attorney will set up the CGA. You then donate the asset to the charity. The gift is set aside and invested by the charity. You receive fixed monthly or quarterly payments as long as you are living. After your death, the charity receives the funds remaining in the account.

The income tax deduction is the contribution minus the present value of the payments to the donor. The estate planning attorney can make the calculations. Current annuity rates range from 4.6 to 10.1% for 50 and older, based mainly on age. Let’s say someone made a $100,000 contribution. They would receive $4,600 to $10,000 a year from the charity.

The amount received never fluctuates and is fixed so it won’t adjust for inflation. However, it is secured by the charitable organization’s assets and continues at the stated rate, no matter how the annuity investments perform.

Another example: a couple in their 70s funds a Charitable Gift Annuity with $50,000 of appreciated stock originally purchased for $20,000. They will receive an income tax charitable deduction of $17,584 and a payment of 6% or $3,000 a year for the rest of their lives.

This kind of donation is advantageous to both the donor and the nonprofit. The charity needs to be a qualified 501(c)(3), and it’s best to pick a well-established charity with a Charitable Gift Annuity program in place. Your estate planning attorney will be able to review the program to be sure that it aligns with your overall estate plan.

Reference: Los Angeles Daily News (Dec. 29, 2024) “How about a gift that pays you back?”

What Is Legacy and Estate Planning?

Creating a last will and testament is part of planning for the future. Leaving a legacy is another. Both are part of an estate plan, which addresses planning for incapacity during your lifetime and the disposition of your property after you’ve passed. A comprehensive estate plan is a worthy endeavor, says a recent article from North Shore News, “How to secure your legacy with estate planning.”

The core components of an estate plan include a last will, power of attorney and advance directives for health care decisions, sometimes called health care power of attorney or health care proxy. Your family will face additional stress and expenses if you don’t have a last will. Your wishes for the disposition of property won’t be honored, unless you proactively have an estate plan created.

Will charitable giving be part of your legacy? This also requires advance planning. When you make donations to individual charities or use Donor Advised Funds, you create a legacy of giving and may also create tax benefits. An experienced estate planning attorney will help create a plan to maximize the tax advantages of charitable gifting.

Estate planning is especially important for women, who statistically live longer than men and tend to have lower earning power. Women need to consider who will be their caregivers if their partners predecease them or if they are solo agers.

Discussing family dynamics with an estate planning attorney can help ensure that the estate plan is created to address individual needs. Estate planning is never a one-size-fits-all plan.

Estate planning also requires regular reviews. One estate planning attorney advises her clients to revisit their estate plans every time there’s a presidential election. It’s an easy way to remember the passing of four years, which is a good time to review an estate plan.

A carefully crafted and regularly updated estate plan addresses changes to your life and the laws governing wills, trusts and retirement accounts. The SECURE Act made major changes to how assets in retirement accounts are distributed to heirs, for instance. The addition of Roth IRA and SEP accounts created huge changes in the passing of assets to the next generation.

Your estate planning attorney will give you and your family the peace of mind of knowing you’re prepared for the future, including the unexpected events, happy and sad, that life brings.

Reference: North Shore News (October, 2024) “How to secure your legacy with estate planning”

Be Wary of Schemes that Deal with Estate Tax Exemption Sunset

If an estate planning strategy sounds too good to be true and is offered by someone not an experienced estate planning attorney, stay away. The title of a recent article from Wealth Management says it all: “Don’t Be Tempted By Pop-Up Estate Planning Schemes.”

This is not the time to get engaged with improperly prepared trusts or someone’s brilliant but untested twist on a basic trust. While we don’t know who will win this fall’s Presidential election, it’s highly unlikely estate planning and gift exemption limits will be reduced. If you don’t take advantage of these historically high levels before they change, you and your heirs may miss a once-in-a-lifetime chance to get assets out of your estate tax-free.

An experienced estate planning attorney will create a plan offering flexibility. They’ll educate you and identify options, which may include charitable giving. However, creating and executing these plans takes time, so don’t wait until the last minute.

Spousal Lifetime Access Trusts (SLATs) are very popular right now for all the right reasons. The SLAT is funded by one spouse (the donor spouse), who transfers their assets into the trust and out of their estate. Their spouse has access to the assets. Assets can be gifted up to the current lifetime gift exemption—currently $13.61 million per taxpayer. As long as you stay married, the assets can support your lifestyle, while the principal and future growth have been removed from your taxable estate.

Be careful about “pop-up” estate planning schemes. A trust created in haste using untested strategies is asking for trouble. One example is a yacht brokerage website that says you can use ownership of a yacht or jet to get a tax write-off and then give the yacht or jet to charity. Promotional materials declare that this is “IRS-sanctioned,” and somehow magically eliminates the hobby-loss rules. Take a pass on this.

Another comes from a group selling mineral rights and claims you can earn a tax deduction worth eight times the original investment—a $400,000 income tax deduction for a $50,000 investment. The explanation is you’re buying minerals at the low cost of getting them out of the ground, then gifting them to a charity at a marked-up retail price. The attorney opinions posted on the website are from non-existent law firms. Do you need to know more? Pass.

As we approach the end of these exemptions, more of these shady schemes are likely to emerge. Steer clear and rely upon a realistic estate planning attorney who has the experience and knowledge to help you achieve your goals.

Reference: Wealth Management (Aug. 22, 2024) “Don’t Be Tempted By Pop-Up Estate Planning Schemes”

Can You Gift Money from a Retirement Account?

When preparing an estate plan, it’s easy to neglect charitable giving, especially if your main focus is to get the plan done most efficiently and move on to the next task on your list—like spring cleaning or gardening. However, a recent article from the Tri-Cities Area Journal of Business recommends a way to take care of charitable giving as part of your estate plan that won’t be overly burdensome: “Use retirement accounts to give to charity in your estate plan.”

An estate comprises different assets, which all have different characteristics. Some assets are distributed by a will, and others by the beneficiary designation on the account. Some are subject to income taxes for heirs, and others are not taxable. This info needs to be considered when preparing an estate plan.

If you choose to give pre-tax retirement accounts, those funds are typically subject to income tax when beneficiaries withdraw money from them. A pre-tax retirement account may be more expensive for heirs, especially if they are in a high-income tax bracket. The inheritance could also push them into a higher tax bracket.

Nonprofits are not subject to income tax and are grateful to receive pre-tax retirement assets.

Your estate plan consists of a last will and testament, powers of attorney and health care directives. Your estate includes different types of assets, and you’ll need to consider their value in light of their tax liabilities when creating an estate plan.

Beneficiary designations are usually used with life insurance policies and retirement accounts. They can be changed whenever you want, and you can name whoever you want to receive the accounts, except pensions governed by federal law. Those must go to your spouse and follow the rules of the pension custodian.

To understand this concept, let’s say a married couple has two children and a net worth of $one million, which includes a $500,000 house, $100,000 in the bank and $400,000 in their retirement accounts. If they want 10% of their estate to go to a charity and the rest to their children, they could do the following:

• Write the amount or percent of the donation into their will and direct their executor to ensure funds are donated from their probate estate, or
• They can use the beneficiary designation on their retirement account to give a certain percentage to their children and charity.

The charity will receive $100,000 from the pre-tax assets, thereby preserving more nontaxable assets for their children. As assets change over time, they may need to change the percentage of the assets given through the retirement accounts. Assuming high marginal tax rates, by giving from their retirement accounts, their heirs will net a higher amount than if other assets were used to make the gift to the charity.

If your estate plan hasn’t included charitable giving, and this is an important part of your legacy, consult with an estate planning attorney to learn how to structure your estate plan and beneficiary designations to work together to achieve your goals.

Reference: Tri-Cities Area Journal of Business (April 15, 2024) “Use retirement accounts to give to charity in your estate plan”

Estate Planning has Begun for Exemptions Expirations

The high lifetime estate and gift tax exemptions gave extremely wealthy Americans terrific tax breaks. In 2024, exemptions are currently at $13.61 million per person and $27.22 million for married couples.  However, the end of these levels means that taxpayers with wealth of a much lower magnitude will need to prepare, according to a recent article from Forbes, “Wealthy Families: Consider These Planning Ideas Before ‘The Sunset.’”

Some state estate taxes are tied to federal estate taxes, so people of modest wealth should check with their estate planning attorney to be sure they are properly situated before the law changes. In addition, several strategies can be considered and applied to many tax brackets.

Charitable Giving. Instead of making a gift through a trust, you might consider donating cash to a charity. Under the 2017 law, the deductions for direct cash contributions jumped from 50% of AGI to 60%, including gifts to Donor-Advised Funds (DAFs). When the exemptions end, the limit will return to 50%, so if you are charitably inclined, making a cash gift now is a good idea.

Strategic Gifting. Assets depressed in value may have tax value as gifts. You might gift them to a beneficiary or a trust, so their appreciation may occur after they have been removed from your taxable estate. This creates two wins: the depressed assets will use less of your lifetime estate and gift tax exemption, and their future growth and possible increase in value will take place outside of the taxable estate.

“Substitution Powers” Assets. If you have transferred assets to grantor trusts with retained “substitution powers," consider moving low-basis assets out of trusts at a lower current value in exchange for higher-basis assets of equivalent value. This strategy could lessen capital gains on the lower-basis assets by returning them to the taxable estate and benefit from the step-up in basis at death. Talk with your estate planning attorney about how this might work for you.

Business Owner Planning. The Qualified Business Income (QBI) tax deduction created by the Tax Cuts and Jobs Act allows select pass-through entities, like sole proprietorships, partnerships, and S-corp owners, to deduct as much as 20% of business income. There are income thresholds and other limits to consider. However, this tax deduction ends on December 31, 2025. Accelerating income now could be of great value for business owners who qualify.

Basic Income Tax Planning. Income tax brackets will return to their levels before the TCJA law was enacted. The top bracket may increase to 39.6%, so you may not want to defer income. Middle tax brackets are also expected to expand.

Alternative Minimum Tax and Incentive Stock Options. The exemption amount for the AMT increased under the TCJ. However, this will also return to previous levels, making more taxpayers vulnerable to the AMT. One workaround is to exercise incentive stock options, which aren’t considered income for regular tax purposes but are considered income for AMT taxes. The AMT could be due in the year of exercise. If you can exercise before 2026, it could be a tax-savvy move.

Estate Planning Strategies. Planning needs to be flexible, since there is no way to know if Congress will or won’t act to renew TCJA. It may seem like there’s time to make any necessary changes. However, it takes time to create and execute a plan, which is why wealthy families are acting now to protect their assets.

Reference: Forbes (March 6, 2024) “Wealthy Families: Consider These Planning Ideas Before ‘The Sunset’”

Will My Family Need to Pay an Estate Tax?

Known as the “death tax,” an estate tax is applied to assets inherited by others when you die. In addition to the federal tax, twelve states and the District of Columbia have their own estate taxes, says a recent article from CNBC, “What is estate tax and who pays it?”

Inheritance taxes and estate taxes are often confused. A beneficiary pays inheritance taxes, while estate taxes are paid from the decedent’s estate before any remaining property or assets are distributed to heirs.

One of the executor’s duties is to file an estate tax return. The value of the assets is usually determined by their fair market value.

The unlimited marital deduction means the surviving spouse is exempt from federal estate taxes.  However, the second spouse to die’s estate will need to pay estate taxes.

The current federal estate tax exemption ranges from 18% to 40%, depending on how much the estate is over $13.61 million. This historically high number will revert to $5 million (indexed for inflation) on January 1, 2026.

Twelve states and the District of Columbia impose their own estate taxes. These include Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont, and Washington. Connecticut and Vermont have flat estate taxes. However, most estate tax rates increase with the total value of the assets.

An experienced estate planning attorney will help identify strategies to minimize or avoid paying estate taxes altogether. For instance, if you leave assets to a qualifying charity, that amount is deducted from the gross estate before taxes.

Gifting is a frequently used means of minimizing estate taxes. In 2024, you can gift up to $18,000 per individual without paying the federal gift tax and without the gift counting towards your lifetime gift exemption of $13.61 million. A married couple may give up to $36,000 tax-free combined.

Irrevocable trusts transfer control of an asset from the grantor to the beneficiary, protecting it from creditors and reducing the estate's value. While rules vary from state to state, irrevocable trusts typically may not be amended, modified, or terminated without the beneficiary's consent.

Contributions can also be made to 529 educational plans, which offer tax-free earnings and withdrawals for educational expenses. They are excluded from the taxable estate. However, the contribution can’t be more than $18,000 per year, or it will be subject to the gift tax. Each state sets its own contribution limits per beneficiary.

Most Americans don’t have to pay federal estate taxes. Still, many state taxes have lower exemption levels, so speak with your estate planning attorney to learn your estate’s tax liability and consider how to minimize it for your heirs.

Reference: CNBC (Feb. 17, 2024) “What is estate tax and who pays it?”

How Do Qualified Charitable Distributions Work?

Qualified Charitable Distributions use the federal tax code to benefit older taxpayers and must take Required Minimum Distributions (RMDs). Recent changes in federal law under the SECURE Act 2.0 present even more opportunities to use QCDs, according to a recent article, “Planning Ahead: Expanding on year-end tax strategies for Qualified Charitable Distributions,” from The Mercury. How does it work?

Required Minimum Distributions for seniors can become a problem since taxpayers above a given age must withdraw specific amounts based on their age from traditional retirement accounts and pay taxes on the withdrawals, regardless of whether they need the money. The reason is obvious: if people weren’t required to take funds out of their accounts, the government would never have the opportunity to generate tax revenue. The QCD lessens the blow of the additional year-end taxes by providing some relief through donations to qualified charities.

Used correctly, the QCD serves two purposes: saving on taxes and benefiting a favorite charity. Charities include any 501(c)(3) entities under the federal tax code. Before using a QCD, ensure the charity you choose is a qualified 501(c)(3). Otherwise, you’ll lose any tax benefits.

Your estate planning attorney can help you understand the process of making a QCD. You’ll need to coordinate with the custodian of the IRA. While some may provide step-by-step information, others require you to coordinate with your estate planning attorney and financial advisor. A reminder—the point of the QCD is that the distribution does not appear in your adjusted gross income and goes directly to the charity.

Usually, taking RMDs adds funds to your taxable income, which can, unfortunately, push you into a higher income tax bracket. It could also limit or eliminate some tax deductions, such as personal exemptions and itemized deductions. There may be increases in taxes on Social Security benefits as well. Whether you want or need to take the RMD, you must take it and include it as taxable income.

A QCD allows individuals required to take RMDs to donate up to $100,000 to one or more qualified charities directly from a taxable IRA without the funds being counted as income.

The RMD age has increased to 73, but the $100,000 will be indexed for inflation. Under SECURE Act 2.0, individuals will be allowed to make a one-time election of up to $50,000 inflation-indexed for QCDs to certain entities, including Charitable Remainder Annuity Trusts, Charitable Remainder Unitrusts and Charitable Gift Annuities.

QCDs cannot be made to donor-advised funds, private foundations and supporting organizations, even though these are often categorized as charities.

It must be noted that the rules concerning QCD are detailed and strict—you’ll want the help of an experienced estate planning attorney.

The QCD must be made by December 31 of the tax year in question.

Reference: The Mercury (Nov. 22, 2023) “Planning Ahead: Expanding on year-end tax strategies for Qualified Charitable Distributions”

Tax Strategies for Different Stages of Aging

Defining “late old age” must consider factors like health, mental status, family history and plain old luck, says a recent article from Financial Advisor, “Tax-Smart Wealth Transfer Tips For Clients In Late Old Age.” However, imagine this scenario: a person in late old age is often widowed and, if they are well-to-do, has more assets than they are likely to spend in their remaining years after accounting for reserves needed for long-term care.

At this stage, it’s important for the person to have an estate plan in place, with named beneficiaries on any retirement and investment accounts, and have taken steps to minimize taxes heirs will be liable for upon their death. If this planning has not been done yet, there’s still time—but there’s no time for delay.

Recent changes in the treatment of inherited retirement accounts and events like deaths, births, or marriages in the family mean every plan needs a close look at least annually. What else needs to be done?

• Directed, consistent, constant dollar levels of withdrawals from traditional individual retirement accounts (IRAs). This avoids being catapulted into a higher tax bracket. Charitable donations should be used, while enough IRA assets should be retained to take advantage of lower tax brackets coming in late old age.
• Topping off required minimum distributions (RMDs) with voluntary withdrawals to fund Roth conversions, starting when the individual was married, and the spouse was alive when couples enjoy more advantageous tax levels than singles.
• This is also the time to contribute to donor-advised funds (DAFs) or the family foundation by selling highly appreciated stocks. If one spouse’s death was anticipated, a share of appreciated stock held in joint accounts could be transferred to a separately owned account to gain the step-up at the spouse’s death.

After the work has been done and you enter late old age, there are three priorities to keep in mind:

• Be sure the beneficiaries in your IRA reflect your current preference and minimize the beneficiaries’ taxes from traditional IRAs.
• Confirm that the person named as your executor understands your investments and bequest preferences and is ready to take on the tasks to come in the future.
• In the case of imminent inheritance tax liability imposed by federal or state law, speak with your estate planning attorney about how a planned charitable gift or other means of minimizing estate taxes might be accomplished.

Can beneficiaries’ tax burdens be minimized? Consider these options:

• Switching IRA beneficiaries to grandchildren or younger family members in lower tax brackets, since non-spouse beneficiaries have only ten years to empty the accounts.
• Helping wealthy children who don’t need inheritances designate their children or others in the family’s next generation as beneficiaries of other non-IRA assets in the estate.
• Make a planned charitable gift to avoid federal and state inheritance taxes and capital gains taxes on appreciation the estate will owe before probate is completed.

An experienced estate planning attorney can handle legal filings after death. Nevertheless, the exact attorney needs to be part of the team, including a competent executor aware of your intentions and a financial advisor familiar with your assets and transaction history.

Reference: Financial Advisor (Oct. 3, 2023) “Tax-Smart Wealth Transfer Tips For Clients In Late Old Age”