About Estate Planning


Estate planning is the process of organising during a person’s life, for the management and disposal of that person’s estate after death. Also, if a person becomes incapacitated before death, prior estate planning provides clarity for family and others about how a particular individual wants his or her affairs managed.

An estate is generally defined as the net worth of an individual, including all land and real estate, possessions, financial securities, cash, and other assets that the individual owns or has a controlling interest in.

Planning includes the bequest of assets to heirs and may include minimizing gift, estate, generation skipping transfer, and taxes. Estate planning includes planning for incapacity as well as a process of reducing or eliminating uncertainties over the administration of a probate and maximizing the value of the estate by reducing taxes and other expenses.

Aspects of Estate Planning

The most basic step in estate planning involves writing a will. Othher major estate planning tasks can include the following:

  • Limiting estate taxes by setting up trust accounts in the names of beneficiaries
  • Establishing a guardian for living dependents
  • Naming an executor of the estate to oversee the terms of the will
  • Creating or updating beneficiaries on plans such as life insurance, IRAs, and 401(k)s
  • Setting up funeral arrangement.
  • Establishing annual gifting to qualified charitable and non profit organisations to reduce the taxable estate
  • Setting up a durable power of attorney (POA)to direct other assets and investments

What Is A Will?

A will is a legal document created to provide instructions on how an individual’s property and custody of minor children, if any, should be handled after their death. The individual expresses their wishes through the document and names a trustee or executor that they trust to fulfill their stated intentions.

The will also indicates whether a trust should be created after death. Depending on the estate owner’s intentions, a trust can go into effect during their lifetime (living trust) or after their death (testamentary trust)

The authenticity of a will is determined through a legal process known as probate. Probate is the first step taken in administering the estate of a deceased person and distributing assets to the stated beneficiaries. When an individual dies, the custodian of the will must take the will to the probate court or to the executor named in the will within 30 days of the death of the testator.

The probate process is a court-supervised procedure in which the authenticity of the will left behind is proved to be valid and accepted as the true last testament of the deceased. The court officially appoints the executor named in the will, which, in turn, gives the executor the legal power to act on behalf of the deceased.

Estate Planning Basics

Appointing the Right Executor
The legal personal representative or executor approved by the court is responsible for locating and overseeing all the assets of the deceased. The executor has to estimate the value of the estate by using either the date of death value or the alternative valuation date, as provided in the Internal Revenue Code (IRC).

A list of assets that need to be assessed during probate includes retirement accounts, bank accounts, stocks and bonds, real estate property, jewelry, and any other items of value. Most assets that are subject to probate administration come under the supervision of the probate court in the place where the decedent lived at death. The exception is real estate, which must be probated in the county in which it is located.

The executor also has to pay off any taxes and debt owed by the deceased from the estate. Creditors usually have a limited amount of time from the date they were notified of the testator’s death to make claims against the estate for money owed to them. Claims that are rejected by the executor can be taken to court where a probate judge will have the final say as to whether or not the claim is valid.

The executor is also responsible for filing the final personal income tax returns on behalf of the deceased. After the inventory of the estate has been taken, the value of assets calculated, and taxes and debt paid off, the executor will then seek authorization from the court to distribute whatever is left of the estate to the beneficiaries.

Any estate taxes that are pending will come due within nine months of the date of death.

Planning for Estate Taxes
Federal and state taxes applied to an estate can considerably reduce its value before assets are distributed to beneficiaries. Death can result in large liabilities for the family, necessitating generational transfer strategies that can reduce, eliminate, or postpone tax payments. During the estate-planning process, there are significant steps that individuals and married couples can take to reduce the impact of these taxes.

AB Trusts
Married couples, for example, can set up an AB trust that divides into two after the death of the first spouse.

Education Funding Strategies
A grandfather may encourage his grandchildren to seek college or advanced degrees and thus transfer assets to an entity, such as a 529 plan, for the purpose of current or future education funding.2 That may be a much more tax-efficient move than having those assets transferred after death to fund college when the beneficiaries are of college age. The latter may trigger multiple tax events that can severely limit the amount of funding available to the kids.

Cutting the Tax Effects of Charitable Contributions
Another strategy an estate planner can take to minimize the estate’s tax liability after death is by giving to charitable organizations while alive. The gifts reduce the financial size of the estate since they are excluded from the taxable estate, thus lowering the estate tax bill.

As a result, the individual has a lower effective cost of giving, which provides additional incentive to make those gifts. And of course, an individual may wish to make charitable contributions to a variety of causes. Estate planners can work with the donor in order to reduce taxable income as a result of those contributions, or formulate strategies that maximize the effect of those donations.

Estate Freezing
This is another strategy that can be used to limit death taxes. It involves an individual locking in the current value, and thus tax liability, of their property, while attributing the value of future growth of that capital property to another person. Any increase that occurs in the value of the assets in the future is transferred to the benefit of another person, such as a spouse, child, or grandchild.

This method involves freezing the value of an asset at its value on the date of transfer. Accordingly, the amount of potential capital gain at death is also frozen, allowing the estate planner to estimate their potential tax liability upon death and better plan for the payment of income taxes.

Using Life Insurance in Estate Planning
Life insurance serves as a source to pay death taxes and expenses, fund business buy-sell agreements, and fund retirement plans. If sufficient insurance proceeds are available and the policies are properly structured, any income tax on the deemed dispositions of assets following the death of an individual can be paid without resorting to the sale of assets. Proceeds from life insurance that are received by the beneficiaries upon the death of the insured are generally income tax-free.4

Estate planning is an ongoing process and should be started as soon as an individual has any measurable asset base. As life progresses and goals shift, the estate plan should shift in line with new goals. Lack of adequate estate planning can cause undue financial burdens to loved ones (estate taxes can run as high as 40%), so at the very least a will should be set up—even if the taxable estate is not large.

Estate Planning Cases 

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. This controversy concerns the right to $400,000, part of the corpus of a trust established in Delaware by a settlor who later became domiciled in Florida. One group of claimants, “legatees,” urge that this property passed under the residuary clause of the settlor’s will, which was admitted to probate in Florida. The Florida courts have sustained this position. 100 So. 2d 378. Other claimants, “appointees” and “beneficiaries,” contend that the property passed pursuant to the settlor’s exercise of the inter vivos power of appointment created in the deed of trust… click to see more

North Carolina Dept. of Revenue v. Kimberley Rice Kaestner 1992 Family Trust

Argued April 16, 2019—Decided June 21, 2019 Joseph Lee Rice III formed a trust for the benefit of his children in his home State of New York and appointed a fellow New York resident as the trustee. The trust agreement granted the trustee “absolute dis- cretion” to distribute the trust’s assets to the beneficiaries. In 1997, Rice’s daughter, Kimberley Rice Kaestner, moved to North Carolina. The trustee later divided Rice’s initial trust into three separate sub- trusts, and North Carolina sought to tax the Kimberley Rice Kaestner 1992 Family Trust (Trust)—formed for the benefit of Kaestner and her three children—under a law authorizing the State to tax any trust income … click to see more


Opinion of the Court by MR. JUSTICE MURPHY, announced by MR. JUSTICE RUTLEDGE.The problem of the federal income tax consequences of intra-family assignments of income is brought into focus again by this case.The stipulated facts concern the taxable years 1937 to 1941, inclusive, and may be summarized as follows:The respondent taxpayer was an inventor-patentee and the president of the Sunnen Products Company, a corporation engaged in the manufacture and sale of patented grinding machines and other tools. He held 89% or 1,780 out of a total of 2,000 shares of the outstanding stock … click to see more

Burch v. George

Marlene Burch (Marlene) became the fifth wife of Frank Burch (Frank) in December 1985. In 1988, Frank executed his integrated estate plan, which consisted of a will and an inter vivos trust. The beneficiaries of the trust included Marlene, Frank’s elderly mother, his children from a prior marriage, and other relatives. Prior to his death in March 1989, Frank transferred substantial assets to the trust… click to see more

Belfield v. Coop

This is an appeal from a decree of the circuit court of Kendall County declaring that a certain instrument is not the last will and testament of Evreard Belfield, deceased, setting aside said instrument and declaring the probate thereof null and void. The decree was entered upon the verdict of a jury in an action brought by the plaintiffs, Russell Belfield and Helen Falkenberg, a nephew and niece of deceased and his sole heirs-at-law. The defendants were Ralph Coop and Sara Grate as joint executors of the will, and the legatees and devisees hereinafter named, all of whom appealed except ... click to see more


Estate Planning Case Summaries

Lawyer Reviewed Cases

Seim v. State

reviewed by Wood Law Group

These are consolidated appeals from a conviction of possession of stolen property, a felony, NRS 205.275, and from a revocation of probation predicated on a prior felony conviction. Appellant’s prior conviction was entered on a plea of guilty to the felony charge of attempted possession of a stolen vehicle… click to see more


reviewed by Wyatt & Butterfield, LLC

Appellants brought this action in November of 1979 against appellees. They alleged that between the years 1938 and 1942 appellee, Adolph Andres, purchased by separate deeds lands aggregating 440 acres which were acquired by funds produced from their labor, but title to which had been placed in the name of Adolph. They contend that… click to see more


The original opinion filed in this cause June 21, 1985, is hereby withdrawn, and the following opinion is substituted in lieu thereof:This case presents the question of whether the State, by failing to record a condemnation order dated December 21, 1939, can be divested of its title to a highway right-of-way under § 6887, Code of 1923 (now, Code 1975, § 35-4-90). We think that it can. Accordingly, the judgment of the trial court is affirmed… click to see more

Luxenberg v. Griffith

reviewed by Faulkner Law

Sandra Luxenberg, as executrix under the will of her mother, Estelle Rosen, sued Michael Griffith and Judy Miller for trespass, interference with enjoyment of property, and nuisance, seeking injunctive relief and damages. 1 A jury found in favor of defendants, and Luxenberg appeals, contending that the trial court erred (1) in admitting into evidence minutes of the Tybee Island City Council; (2) in admitting the testimony of a defense witness; and (3) in failing to give a requested charge on negligence. For reasons which follow, we affirm… click to see more

Esdale v. Sarasota County Sheriff’s Office

reviewed by Lehn Law Firm

Following an order (Doc. 38) dismissing the plaintiffs’ claim against the Florida Department of Law Enforcement (“FDLE”) and construing the Sarasota County Sheriff’s Office’s (the “SCSO”) and the District Twelve Medical Examiner’s (the “Medical Examiner”) motions to dismiss (Docs. 10, 15, and 17) as motions for a more definite statement (and granting the same), Steven Esdale, individually, and Steven and Lisa Esdale, on behalf of their minor son… click o see more 

Scott v. Clerk of Circuit Court for Frederick County

reviewed by The Law Office of Paul Black

Opinion by Cathell, J.The State of Maryland imposes two separate taxes upon the transfer of real property — a recordation tax and a transfer tax. Md. Code (1985, 1994 Repl. Vol., 1995 Supp.), §§ 12-102 and 13-202 of … click here to see more

Jerome v. Probate Court of the Town of Barrington

reviewed by The Law Office of Paul Black

OPINION This case came before the Supreme Court for oral argument on January 30, 2007, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda… click here to see more

Gail Rasmussen and Bethanne Darby v. John R. Kroger

reviewed by Laskody Law Office PC

En BancOn petition to review ballot title filed April 15, 2011, considered and under advisement June 22, 2011.Ballot title referred to the Attorney General for modification.1 LINDER, J.Petitioners seek review of the Attorney General’s certified ballot title for Initiative Petition 15 (2012)… click here to see more 

Firchau v. Carr

Legacy Law Group Colorado, PLLC

Concurring: H. Joseph Coleman, Marlin J AppelwickUNPUBLISHED OPINIONShirl Firchau appeals the summary dismissal of her claims against attorney Allen Lane Carr for legal malpractice and for breach of his fiduciary duty as trustee under the will that Carr drafted in 1974 for Shirl’s mother, Bobbie Firchau… click to see more

Everett Powell v. Indiana Real Estate Commission

reviewed by Faulkner Law

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case… click to see more

Meier v. Denver United States National Bank

reviewed by Legacy Law Group

This writ of error is directed to a decree of the Denver Probate Court construing the Last Will and Testament of Henry J. Meier. We will refer to the plaintiff in error, Helen Croke Meir, as the plaintiff herein… click to see more

Forbis v. Neal

reviewed by Laskody Law Office PC

This case arises from a dispute over the assets of Bonnie Sustare Newell (Newell) and her sister Augusta Lee Sustare (Sustare). LaMarr Garland Forbis, Newell and Sustare’s niece, brought a fraud action on… click to see more


reviewed by The Law Office of Paul Black

The appellee, propounder of the will of Pauline J. Bywaters, obtained an order of the Probate Court of DeKalb County admitting the will to probate in solemn form. The appellants, who are the caveators… click to see more 

Delbello v. Bilyeu

reviewed by Faulkner Law

This case is on appeal from a ruling on a petition for declaratory judgment brought in the Probate Court of Fulton County, seeking a construction of certain provisions of the last will and testament… click to see more

Crittell v. Bingo

reviewed by Wyatt & Butterfield, LLC

Edmond and Elma Crittell, the proponents of a will held to be invalid and fraudulent, appeal the superior court’s award of full attorney’s fees under Alaska Civil Rule 82, contending that the rule… click to see more

Bitterman v. Bitterman

reviewed by Lehn Law, P.A.

The conflict between Bitterman and the Williams College cases arises out of the application of section 733.617, Florida Statutes (1993), a section of the Probate Code, which was amended by the legislature in 1993. Prior to that time, the compensation for both personal… click to see more

Estate Planning Stories

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