Define: Estate Planning

Estate planning is the process by which an individual or family arranges the transfer of assets in anticipation of death. An estate plan aims to preserve the maximum amount of wealth possible for the intended beneficiaries and flexibility for the individual prior to death. A major concern for drafters of estate plans is federal and state tax law.

Wills and trusts are common ways in which individuals dispose of their wealth. Trusts, unlike wills, have the benefit of avoiding probate, a lengthy and costly legal process that oversees the transfer of assets. Sometimes, though, it will be useful to make inter vivos gifts (gifts made while the donor is alive) in order to minimise taxes. The Federal Gift Tax exempts certain levels of lifetime gifts.

During the early 1500s in England, landowners found it advantageous to convey the legal title of their land to third parties while retaining the benefits of an ownership legal attorney. Because they were not the real “owners” of the land and wealth was primarily measured by the amount of land owned, they were immune from creditors and may have absolved themselves of some feudal obligations. While feudal concerns no longer exist and wealth is held in many forms other than land (i.e., stocks, bonds, bank accounts), the idea of placing property in third-party hands for the benefit of another. This is the idea of a trust that has survived and prospered.

Generally, a trust is a right to property (real or personal) that is held in a fiduciary relationship by one party for the benefit of another. The trustee is the one who holds title to the trust property, and the beneficiary is the person who receives the benefits of the trust. To understand the laws governing trusts, a good starting point is the Restatement (2nd) of Trusts.

Many trusts are created as an alternative to or in conjunction with a will and other elements of estate planning. State law establishes the framework for determining the validity and limits of both.

The Uniform Probate Code has shaped state law in this field. It includes provisions dealing with the affairs and estates of the deceased and laws dealing with specified non-testamentary transfers, like trusts and their administration. The theory behind the Code is that wills and trusts are in a close relationship and thus in need of unification. Since its creation, over thirty percent of states have adopted the Code substantially as a whole.

Since many individuals neither set up trusts nor execute wills, state intestate succession laws are an important complement to trust and estate law. They determine where an individual’s assets go upon death in the absence of a will. An estate planning law firm will be a valuable asset in determining the best course of action for your estate.