What is an Estate Asset?

Estate planning attorneys are often asked if a particular asset will be included in an estate, from life insurance and real estate to employment contracts and Health Savings Accounts. The answer is explored in the aptly-titled article, “Will It (My Home, My Life Insurance, Etc.) Be in My Estate?” from Kiplinger.

When you die, your estate is defined in different ways for different planning purposes. For example, you have a gross estate for federal estate taxes which defines all of the assets subject to the tax. However, there’s also the probate estate, which means property controlled by a will, and a non-probate estate, which means property passing outside of probate and the will.  So, if you are asking if an asset is part of an estate, it depends on which “estate” you mean.

Let’s start with life insurance. You’ve purchased a policy for $500,000, with your son as the designated beneficiary. If you own the policy, the entire $500,000 death benefit will be included in your gross estate for federal estate tax purposes. If your estate is big enough ($12.06 million in 2022), the entire death benefit above the exemption is subject to a 40% federal estate tax.

However, if you want to know if the policy will be included in your probate estate, the answer is no. Proceeds from life insurance policies are not subject to probate, since the death benefit passes by contract directly to the beneficiaries.  An executor or administrator of your estate never controls or has access to it.

Next, is the policy an estate asset available for beneficiaries of your probate estate?  So, let’s assume you left a will and your son is the named executor.  The will names all three of your children as equal beneficiaries.  Because the life insurance bypassed the probate process and went to a named beneficiary, none of the life insurance is available to the other two children.  If you wanted the money to go in trust for a beneficiary under the will, fund charitable giving or specific bequests, then the life insurance proceeds aren’t available for those purposes.

As an aside, common probate assets may include real property, tangible property like household contents, vehicles and so on, bank accounts depending on titling, and miscellaneous refunds due to the decedent.  Common non-probate assets may include life insurance, retirement funds and accounts with beneficiary designations generally.

Another aspect of figuring out what’s included in your estate depends upon where you live. In community property states—Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin—assets are treated differently for estate tax purposes than in states with what’s known as “common law” for married couples. Also, in most states, real estate owned on a fee simple basis is simply transferred on death through the probate estate, while in other states, an alternative exists where a transfer on death deed or similar technique is available.

It is also true that certain states expect executors to have information about non-probate assets.  For example, New York has estate tax and Pennsylvania has inheritance tax.  Both states require an executor to file the appropriate return that will include information about non-probate assets because they are subject to tax (similar to the federal estate tax) even though the executor doesn’t take control of them.  Texas, you’ll be happy to know, does not have an estate or inheritance tax.

Speak with an experienced estate planning attorney in your state of residence to know what assets are included in your federal estate, what are part of your probate estate, and how taxes and creditors will apply to these various assets.

Reference: Kiplinger (Dec. 13, 2021) “Will It (My Home, My Life Insurance, Etc.) Be in My Estate?”

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Role of Insurance in Estate Planning

Insurance in estate planning addresses liquidity, tax concerns and is even a vehicle for affordable long term care coverage.

I often discuss life insurance when working with a client on their estate plan and the role of insurance in estate planning in general.  Some have term life insurance policies from when they are young, others whole life policies promoted to them as money available into late retirement, and even a few solely because of the tax benefits to life insurance.  It’s possible that life insurance may play a much bigger role in your estate planning than you might have thought, says a recent article in Kiplinger titled “Other Uses for Life Insurance You May Not Know About.”

If you own a life insurance policy, you’re in good company—just over 50% of Americans own a life insurance policy and more say they are interested in buying one. When the children have grown up and it feels like your retirement nest egg is big enough, you may feel like you don’t need the policy. However, don’t do anything fast—the policy may have far more utility than you think.

Tax benefits. The tax benefits of life insurance policies are even more valuable now than when you first made your purchase. Now that the SECURE Act has eliminated the Stretch IRA, most non-spouse beneficiaries must empty tax-deferred retirement accounts within ten years of the original owner’s death unless some other exception applies. Depending on how much is in the account and the beneficiary’s tax bracket, they could face an unexpected tax burden and quick demise to the benefits of the inherited account.

Life insurance proceeds are usually income tax free, making a life insurance policy an ideal way to transfer wealth to the next generation. For business owners, life insurance can be used to pay off business debt, fund a buy-sell agreement related to a business or an estate, or fund retirement plans.

Even more, life insurance is often a very good tool to pay estate taxes.  This is true for two reasons.  First, the tax has to be paid in dollars, so an infusion of cash from a life insurance policy provides funds to pay it without selling off other assets such as real estate or business interests.  Second, life insurance is an easy asset to include an irrevocable trust.  It would be held outside of your estate (thus doesn’t make your estate tax bill go up) and for most insurance you don’t need immediate access to it.  See here for more information:  https://www.galliganmanning.com/the-irrevocable-life-insurance-trust-why-should-you-have-one/

What about funding Long Term Care? Most Americans do not have long-term care insurance, which is potentially the most dangerous threat to their or their spouse’s retirement. The median annual cost for an assisted living facility is $51,600, and the median cost of a private room in a nursing home is more than $100,000. Long-term care insurance is not inexpensive, but long-term care is definitely expensive. Traditional LTC care insurance is not popular because of its cost, but long-term care is more costly. Some insurance companies offer life insurance with long-term care benefits. They can still provide a death benefit if the owner passes without having needed long-term care, but if the owner needs LTC, a certain amount of money or time in care is allotted.

Financial needs change over time, but the need to protect yourself and your loved ones as you age does not change. Speak with an estate planning attorney about the role of insurance in estate planning for you.

Reference: Kiplinger (July 21, 2021) “Other Uses for Life Insurance You May Not Know About”

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