Category: Asset Protection

Who inherits IRA if the Beneficiary passes?

Who Inherits IRA if the Beneficiary Passes?

Retirement accounts need to have beneficiary designations to determine who inherits the funds when you pass. But who inherits an IRA if the beneficiary passes? Which estate would get the IRA when a non-spouse beneficiary inherits an IRA account but dies before the money is put in her name with no contingent beneficiaries can be complicated, says nj.com in the recent article entitled “Who gets this inherited IRA after the beneficiary dies?”

IRAs are usually transferred by a decedent through a beneficiary designation form.

As a review, a designated beneficiary is an individual who inherits an asset like the balance of an IRA after the death of the asset’s owner. The Setting Every Community Up for Retirement Enhancement (SECURE) Act has restricted the rules for designated beneficiaries for required withdrawals from inherited retirement accounts.

Under the SECURE Act, a designated beneficiary is a person named as a beneficiary on a retirement account and who does not fall into one of five categories of individuals classified as an eligible designated beneficiary. The designated beneficiary must be a living person. While estates, most trusts, and charities can inherit retirement assets, they are considered to be a non-designated beneficiary for the purposes of determining required withdrawals.

Provided there is a named beneficiary, and the named beneficiary survived the owner of the IRA account, the named beneficiary inherits the account.

The executor or administrator of the beneficiary’s estate would be entitled to open an inherited IRA for the beneficiary because the beneficiary did not have the opportunity to open it before he or she passed away.

Next is the question of who inherits the IRA from the named beneficiary if she passes before naming her own beneficiary.

In that instance, the financial institution’s IRA plan documents would determine the beneficiary when no one is named. These rules usually say that it goes to the spouse or the estate of the deceased beneficiary.

If you are interested in learning more about beneficiary designations, please visit our previous posts.

Reference: nj.com (June 1, 2021) “Who gets this inherited IRA after the beneficiary dies?”

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A trust is a good option when your children are minors

A Trust is an Option when Children are Minors

Let’s say that there’s a young father with a wife and young son, who owns a home and a Roth IRA account, with a few stock investments. On the stock investments, he’s filled out the beneficiary designation forms passing all his assets to his wife and son, should anything happen to him. This father owns his home is joint tenancy with right of survivorship with his wife. Does he need to set up a separate trust, if most of his assets pass through beneficiary designations? A trust is a good option when your children are minors.

Nj.com’s recent article entitled “Do I need a trust in case something happens to me?” says that leaving assets outright to a minor is typically a bad move. The son’s guardian and/or the court would take custody of the assets, both of which require significant court oversight and involvement.

The minor would also receive the assets upon attaining the age of majority, which in most states is age 18.

No one can tell what a young child will be like at the age of 18, especially after suffering the loss of their parents. Even if there are no significant issues, such as drug addiction or special needs, parents should think about what they’d have done with that much money at that age.

The best option is to leave assets in trust for the benefit of the minor son.

The trustee can manage and use the assets for the benefit of the young boy with limited court involvement.

The terms of the trust can also delay the point at which the assets can be distributed and ultimately paid over to the beneficiary, if at all.

For example, it’s not uncommon for a trust to stipulate that the beneficiary gets a third of the assets at 25, half of the remaining assets at 30 and the rest at age 35. However, other trusts don’t provide for such mandatory distributions and can hold the assets for the beneficiary’s lifetime, which has its advantages.

In some instances, the terms of the trust are included in a will. This creates a trust account after death, which is also called a testamentary trust.

If you have minor children, it is a good option to create a Trust. Talk to an experienced estate planning attorney, who can assess your specific situation and provide guidance in creating an estate plan. The attorney can also make certain that trust assets are correctly titled and that beneficiary designations of retirement accounts and life insurance are correctly prepared, so the trust under the will receives those assets and not the minor individually.

If you are interested in learning more about trusts and minor children, please visit our previous posts.

Reference: nj.com (June 14, 2021) “Do I need a trust in case something happens to me?”

 

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avoid these common estate planning scams

Avoid these common Estate Planning Scams

The Wealth Advisor’s recent article entitled “Beware of These Estate Planning Scams” advises you to avoid these common estate planning scams.

  1. Cold Calls Offering to Prepare Estate Plans. Scammers call and email purporting to be long lost relatives who’ve had their wallets stolen and are stranded in a foreign country. Seniors fall prey to this and will pay for estate planning documents. Any cold call from someone asking that money be wired to a bank account, in exchange for estate planning documents should be approached with great skepticism.
  2. Paying for Estate Planning Templates. For a one-time fee, some scammers will offer estate planning documents that may be downloaded and modified by an individual. While this may look like a great deal, avoid using these pro forma templates to draft individual estate plans. Such templates are rarely tailored to meet state-specific requirements and often fail to incorporate contingencies that are necessary for a comprehensive and complete estate plan. Instead, work with an experienced estate planning attorney.
  3. Not Requiring an Estate Plan. Although less of a scheme, some people think they do not need an estate plan. However, proper estate planning entails deciding who can make health care and financial decisions during life, in the event of incapacity. These documents help to minimize the need for family members to petition the Probate Court in certain situations.
  4. Paying High Legal Fees. Like many things in life, with an estate plan, you may get what you pay for. Paying money upfront to have your intentions memorialized in writing can minimize the expense. Heirs should be on guard if an attorney hired to administer an estate is charging exorbitant fees for what looks to be a well-prepared estate plan. Don’t be afraid to get a second opinion in these situations.
  5. Signing Estate Planning Documents You Don’t Understand. Estate planning documents are designed to prepare for potential incapacity and for death. It is critical that your estate planning documents represent your intentions. However, if you don’t read them or don’t understand what you’ve read, you will have no idea if your goals are accomplished. Make certain that you understand what you’re signing. An experienced estate planning attorney will be able to explain these documents to you clearly and will make sure that you understand each of them before you sign.

You can avoid these common estate planning scams, by establishing a relationship with an experienced attorney you trust. If you would like to learn more about estate planning mistakes, please visit our previous posts. 

Reference: The Wealth Advisor (June 7, 2021) “Beware of These Estate Planning Scams”

 

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A SLAT allows you to protect assets

A SLAT allows You to Protect Assets

Interest in SLATs, or Spousal Lifetime Access Trusts, has picked up as the new administration eyes possible revenue sources from estate and gift taxes. According to a recent article titled “What Advisors Should Know About SLATs” from U.S. News & World Report, even if no changes to exemption levels happen now, the current federal lifetime gift and estate tax exclusion of $11.7 million will expire in 2026. When that happens, the exemption will revert to the pre-2018 level of about $6 million, adjusted for inflation. First, what is a SLAT? It’s an estate planning strategy where one spouse gifts assets to an irrevocable trust for the benefit of the other spouse. A SLAT allows you to protect assets by removing them from a joint estate, but the donor spouse may still indirectly retain access to the assets. The SLAT typically also benefits a secondary recipient, usually the couple’s children.

It’s important to work with an estate planning attorney who is knowledgeable about this type of planning and tax law to ensure that the SLAT follows all of the rules. It is possible for a SLAT that is poorly created to be rejected by the IRS, so experienced counsel is a must.

The attorney and the couple need to look at how much wealth the family has and how much the family members will need to enjoy their quality of life for the rest of their lives. The funds placed in the SLAT are, ideally, funds that neither of the couple will need to access.

If a donor spouse can be approved for life insurance, that’s a good asset to place inside a SLAT. Tax-deferred assets are also good assets for SLATs. Trust tax rates can be very high. If securities are placed into the trust and they pay dividends, taxes must be paid. When life insurance pays out, the proceeds are estate-tax and income-tax free.

SLATs also protect assets from creditors.

There are pitfalls to SLATs, which is why an experienced estate planning attorney is so important. Married couples with large estates may set up separate SLATs for each other, but they must take into consideration the “reciprocal trust doctrine.” SLATs cannot be funded with identical assets and they cannot be set up at the same time. The IRS will collapse trusts that violate this rule. One SLAT can be done one year, and the second SLAT done the following year, and they should be funded with different assets.

There’s also a trade-off: while the SLAT gets assets out of the estate, they will not receive a step-up in basis at the time of the donor spouse’s death. Basis step-ups occur when the deceased spouse’s share in the cost basis of assets is stepped up to their value on the date of death.

Divorce or the death of the recipient spouse means the donor spouse loses access to the SLAT’s assets.

The SLAT requires coordination between the estate planning attorney and the financial advisor, so anyone considering this strategy should act now so their attorney has enough time to take the family’s entire estate plan into account. There also needs to be a third-party trustee, someone who is not the recipient and not related or subordinate to the recipient.

Assets don’t have to be placed into the SLATs immediately after they are created, so there is time to figure out what the couple wants to put into the SLAT. A SLAT can be beneficial because it allows you to protect assets, however, forgetting to fund the SLAT, like neglecting to fund any other trust, defeats the purpose of the trust.

If you would like to read more about SLATs and other types of tools to protect assets, please visit our previous posts. 

Reference: U.S. News & World Report (May 3, 2021) “What Advisors Should Know About SLATs”

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when mom refuses to get an Estate Plan

Including a POD Account in your Estate Plan

Also called a “POD” account, a payable on death account can be created at a bank or credit union and is transferrable without probate at your death to the person you name. Sports Grind Entertainment’s recent article entitled “Payable on Death (POD) Accounts” explains that there are different reasons for including a POD account in your estate plan. You should know how they work, when deciding whether to create one. Talk to an experienced estate planning attorney who can help you coordinate your investment goals with your end-of-life wishes.

The difference between a traditional bank account and a POD account is that a POD account has a designated beneficiary. This person is someone you want to receive any assets held in the account when you die. A POD account is really any bank account that has a named beneficiary.

There are several benefits with POD accounts to transfer assets. Assets that are passed to someone else through a POD account are not subject to probate. This is an advantage if you want to make certain your beneficiary can access cash quickly after you die. Even if you have a will and a life insurance policy in place, those do not necessarily guarantee a quick payout to handle things like burial or funeral expenses or any outstanding debts that need to be paid. A POD account could help with these expenses.

Know that POD account beneficiaries cannot access any of the money in the account while you are alive. That could be an issue if you become incapacitated, and your loved ones need money to help pay for medical care. In that situation, having assets in a trust or a jointly owned bank account could be an advantage. You should also ask your estate planning attorney about a financial power of attorney, which would allow you to designate an agent to pay bills and the like in your place.

If you are interested in including a payable on death account in your estate plan, the first step is to talk to your bank to see if it is possible to add a beneficiary designation to any existing accounts you have, or if you need to create a new account. Next, decide who you want to add as a beneficiary.

If you would like to learn more about POD accounts and other banking issues related to estate planning, please visit our previous posts. 

Reference: Sports Grind Entertainment (May 2, 2021) “Payable on Death (POD) Accounts”

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talk about inheritance with your children

Talk about Inheritance with your Children

How do you talk about inheritance with your children? One strategy to get your children prepared to handle the assets they’ll eventually inherit, is to have them meet with your professional advisors. They can explain what you’ve been doing.

FedWeek’s recent article entitled “Preparing Your Heirs for Their Inheritance” suggests that your children should meet with your accountant for an explanation of any tax planning tactics that you have been implementing. That way those tactics can be continued after your death. If you have a broker or a financial planner, your heirs should meet with this adviser for a review of your portfolio strategies.

Know that if you hold investment property, it might pose special problems.

While your investment portfolio can be split between your children, who can follow their individual inclinations, it’s tough to divide physical property. Your kids might disagree on how the property should be managed.

With any assets—but especially rental property—you have to be realistic. Ask yourself if your children can work together to manage the real estate.

If they cannot, you may be better off leaving your investment property to the one child who really can manage real estate and leave your other children non-real estate assets instead. You might also provide that some of your children can buy out the others at a price set by an independent appraisal.

Another way you can help is by proper handling of appreciated assets, such as stocks.

If you purchased $20,000 worth of XYZ Corp. shares many years ago, those shares are worth $50,000. If you sell those shares to raise $50,000 in cash for retirement spending, you’ll have a $30,000 long-term capital gain.

You might raise retirement cash, by selling other securities where there’s been little or no appreciation.

That will allow you to keep the shares and leave them to your children. At your death, your shares may be worth $50,000, and that value becomes the new basis (cost for tax purposes) in those shares. If your children sell them for $50,000, they won‘t owe capital gains tax.

All of the appreciation in those shares during your lifetime will not be taxed. So take the time to talk about inheritance with your children. It will avoid a great deal of head and heartache for everyone. If you are interested in learning more about discussing difficult estate planning topics with your children, please visit our previous posts. 

Reference: FedWeek (March 31, 2021) “Preparing Your Heirs for Their Inheritance”

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Qualified charitable distributions are a tool

It is not Wise to Leave your IRA to your Estate

It is not wise to leave your IRA to your estate. The named beneficiary of an IRA can have important tax consequences, says nj.com’s recent article entitled “How is tax paid when an estate is the beneficiary of an IRA?”

If an estate is named the beneficiary of an IRA, or if there’s no designated beneficiary, the estate is usually designated beneficiary by default. In that case, the IRA must be paid to the estate. As a result, the account owner’s will or the state law (if there was no will and the owner died intestate) would determine who’d inherit the IRA.

An individual retirement account or “IRA” is a tax-advantaged account that people can use to save and invest for retirement.

There are several types of IRAs—Traditional IRAs, Roth IRAs, SEP IRAs and SIMPLE IRAs. Each one of these has its own distinct rules regarding eligibility, taxation and withdrawals. However, with any, if you withdraw money from an IRA before age 59½, you’re usually subject to an early-withdrawal penalty of 10%.

A designated beneficiary is an individual who inherits the balance of an individual retirement account (IRA) or after the death of the asset’s owner.

However, if a “non-individual”, such as an estate, is the beneficiary of an IRA, the funds must be distributed within five years, if the account owner died before his/her required beginning date for distributions, which was changed to age 72 last year when Congress passed the SECURE Act.

If the owner dies after his/her required beginning date, the account must then be distributed over his/her remaining single life expectancy.

The income tax on these distributions is payable by the estate. A compressed tax bracket is used.

As such, the highest tax rate of 37% is paid on this income when total income of the estate reaches $12,950.

For individuals, the 37% tax bracket isn’t reached until income is above $518,400 or $622,050 if filing as married.

Therefore, you can see why it’s not wise to leave your IRA to your estate. It’s not tax-efficient and generally should be avoided.

If you would like to learn more about how to incorporate IRA distributions within your estate planning, please visit our post on Charitable Remainder Trusts.

Reference: nj.com (Feb. 26, 2021) “How is tax paid when an estate is the beneficiary of an IRA?”

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You have Options when Inheriting a House

You have options when inheriting a house. If you inherit a house, there are tax and financial issues. Yahoo Finance’s recent article from (December 21, 2020) entitled “What to Do When You Inherit a House” gives us some topics to keep in mind.

Inheritance and Estate Taxes. Inheriting a house doesn’t usually mean any taxes because there’s no federal inheritance tax. But some larger estates may have to pay federal estate taxes. There are also six states that have an inheritance tax: Iowa, Kentucky, Maryland, Nebraska, New Jersey, and Pennsylvania. The spouse is exempt from paying inheritance tax, and children and grandchildren are exempt from inheritance tax in four states (not PA or NE).

Capital Gains Taxes. This may be a concern if the heir decides to sell the house. Capital gains taxes are federal taxes on the profits on the sale of assets. Short-term capital gains taxes apply on sale of assets owned for a year or less, and long-term capital gains taxes are for the sale of assets owned for longer. However, when a house is transferred by inheritance, the value of the house is stepped up to its fair market value at the time it was transferred, so that a home purchased many years ago is valued at current market value for capital gains.

Exclusion. Also, if the heir occupies the home as his or her primary residence for at least two out of five years, the IRS may grant an exclusion of up to $500,000 on capital gains taxes for a couple filing jointly or $250,000 for a single filer.

Mortgage. If the home has a mortgage, there will be monthly payments to make.

Reverse Mortgage. If there is a reverse mortgage, a type of home loan available to seniors age 62 and older, the ownership of the home will transfer to the mortgage company when the owner dies.

Short Sale. If the house is underwater, with a mortgage balance more than the home’s value, the new owners may ask the lender to do a short sale, selling the property for less than the loan balance and accepting that amount to settle the debt.

Other Expenses. If the home is paid off, there still could be major repairs to be made before it can be sold or occupied. There are also ongoing costs for property taxes, utilities, residential insurance and maintenance costs, as well as possible home owner association fees.

The Heir’s Options. Three options when a home is inherited are for the heir to occupy it, sell, or rent it. Occupying the home means it will stay in the family, which can be nice if there are memories connected with the property. If there is no mortgage, this can also be an economical option. Selling it provides cash if it’s worth more than the mortgage after any necessary repairs. This is a quick and easy way to make the most of a home inheritance without adding any future risks. Finally, renting it can provide passive income and some tax advantages. However, being a landlord involves costs and dealing with tenants can require a lot of time and attention.

Emotional and Relationship Issues. Inheriting a home that’s been in the family for decades can bring up a lot of feelings for the heirs. If multiple heirs were each bequeathed part ownership, it can be difficult to determine what everyone wants and choose a mutually acceptable course of action.

Heirs can ask for the help of an experienced estate planning attorney to facilitate discussions and to make sure that everyone understands the agreement.

You have options when inheriting a house. There are tax, financial and emotional considerations, and a lot is dependent on the size of the mortgage, the home’s value and the costs of upkeep.

If you are interested in learning more about protecting the family home, please visit our previous posts. 

Reference: Yahoo Finance (Dec. 21, 2020) “What to Do When You Inherit a House”

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managing an inherited retirement account

Avoid Naming a Trust as Beneficiary of Your IRA

It is generally a good idea to avoid naming a trust as beneficiary of your IRA. The IRA usually loses the benefit of tax deferral, due to the fact that it has to be distributed faster than in other scenarios. There are only a few cases when a trust as beneficiary can avoid this problem.

Wealth Advisor’s recent article entitled “Should A Living Trust Be Beneficiary Of Your IRA?” explains that the general rule is when an IRA beneficiary isn’t an individual, the IRA must be distributed fully within five years. When a trust, an estate, or a business entity is named as beneficiary, the IRA must be distributed quickly, and it’s then taxed. However, there’s an exception when you name a trust that qualifies as a “look-through” or “see-through” trust under IRS rules. To draft this type of trust, work with and experienced estate planning attorney to be certain that it avoids the five-year rule. Even so, the IRA must be distributed to the trust within 10 years, in most instances.

Another exception says there may not be a penalty when your spouse’s revocable living trust is named as the IRA beneficiary. Consider a recent IRS ruling that involved a married couple. The husband owned an IRA and had started to take required minimum distributions (RMDs). He died and had named a trust as sole beneficiary of his IRA. The wife had previously established the trust and was the sole beneficiary and sole trustee of the trust. She could amend or revoke the trust and could distribute all income and principal of the trust for her own benefit. In effect, it was a standard revocable living trust that is primarily used to avoid probate. The widow wanted to exercise the spousal option for an inherited IRA to roll the IRA over to an IRA in her name. The move would give her a new start, letting her manage the IRA, without reference to her late husband’s IRA. She could begin her RMDs based on her own required beginning date and life expectancy. She also could designate her own beneficiaries of the IRA.

The widow asked the IRS to rule that the IRA could be rolled over tax free into an IRA in her name. She wanted to have the IRA balance distributed directly to her to roll it over to an IRA in her own name within 60 days. The IRS said that was okay, noting that she was the trustee and sole beneficiary of the trust. She was entitled to all income and principal of the trust. Moreover, she was the surviving spouse of the deceased IRA owner.

In this situation, the widow was the sole person for whose benefit the IRA is maintained. As such, she can take a distribution from the inherited IRA and roll it over to an IRA in her own name without having to include any of the distribution in gross income, provided the rollover was accomplished within 60 days of the distribution.

Although this was a good answer for the widow, you may not want to name a living trust or your estate as the beneficiary of your IRA, even under similar circumstances. She had to apply to the IRS for a private ruling to be sure of the tax results, which is an expensive and time-consuming process.

Avoid naming a trust as beneficiary of your IRA, unless it is under very limited situations. This can be very complicated, so talk to an experienced estate planning attorney about your specific situation.

If you would like to learn more about IRA distributions, please visit our previous posts. 

Reference: Wealth Advisor (Dec. 29, 2020) “Should A Living Trust Be Beneficiary Of Your IRA?”

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It is important to talk to your children about your estate planning

The Generation-Skipping Tax Can Make A Big Impact

The generation-skipping tax can make a big impact on the assets you’re able to leave to heirs. The generation-skipping transfer tax, also called the generation-skipping tax, can apply when a grandparent leaves assets to a grandchild—skipping over their parents in the line of inheritance. It can also be triggered, when leaving assets to someone who’s at least 37½ years younger than you. If you are thinking about “skipping” any of your heirs when passing on assets, it is important to know what that may mean tax-wise and how to fill out the requisite form. An experienced estate planning attorney can help you and counsel you on the best way to pass along your estate to your beneficiaries.

KAKE.com’s recent article entitled “What Is the Generation-Skipping Transfer Tax?” says the tax code imposes both gift and estate taxes on transfers of assets above certain limits. For 2020, you can exclude gifts of up to $15,000 per person from the gift tax, with the limit twice as much for married couples who file a joint return. Estate tax applies to estates larger than $11,580,000 for 2020, increased to $11,700,000 in 2021.

The gift tax rate can be as high as 40%, and the estate tax is also 40% at the top end. The IRS uses the generation-skipping transfer tax to collect its portion of any wealth that is transferred across families, when not passed directly from parent to child. Assets subject to the generation-skipping tax are taxed at a flat 40% rate.

Note that the GSTT can apply to both direct transfers of assets to your beneficiaries and to assets passing through a trust. A trust can be subject to the GSTT, if all trust beneficiaries are considered to be skip persons who have a direct interest in the trust.

The generation-skipping tax is a separate tax from the estate tax, but it applies alongside it. Similar to the estate tax, this tax begins when an estate’s value exceeds the annual exemption limits. The 40% GSTT would be applied to any transfers of assets above the exempt amount, in addition to the regular 40% estate tax.

That is the way the IRS gets its money on wealth, as it moves from one person to another. If you passed your estate to your child, who then passes it to their child then no GSTT would apply. The IRS would just collect estate taxes from each successive generation. However, if you skip your child and leave assets to your grandchild, it eliminates a link from the taxation chain, and the GSTT lets the IRS replace that link.

You can use your lifetime estate and gift tax exemption limits, which can help to offset how much is owed for the generation-skipping tax. However, any unused portion of the exemption counted toward the generation-skipping tax is lost when you pass away.

If you’d like to minimize estate and gift taxes as much as possible, there are several options. Your experienced estate planning attorney might suggest giving assets to your grandchildren or another generation-skipping person annually, rather than at the end of your life. That’s because you can give up to $15,000 per person each year without incurring gift tax, or up to $30,000 per person if you’re married and file a joint return. Just keep the lifetime exemption limits in mind when planning gifts.

You could also make payments on behalf of a beneficiary to avoid tax. For instance, to help your granddaughter with college costs, any direct payments you make to the school to cover tuition would generally be tax-free. The same is true for direct payments made to healthcare providers, if you’re paying medical expenses on behalf of another.

Another option may be a generation-skipping trust that lets you transfer assets to the trust and pay estate taxes at the time of the transfer. The assets you put into the trust must stay there during the skipped generation’s lifetime. Once they die, the trust assets can be passed on tax-free to the next generation.

There’s also a dynasty trust. This trust can let you pass assets to future generations without triggering estate, gift, or generation-skipping taxes. However, they are meant to be long-term trusts. You can name your children, grandchildren, great-grandchildren and subsequent generations as beneficiaries and the transfer of assets to the trust is irrevocable. Therefore, when you place the assets in the trust, you will not be able to take them back out again. You can see why it’s so important to understand the implications, before creating this type of trust.

The generation-skipping tax can make a big impact on the assets you’re able to leave to heirs. If you’re considering using this type of trust to pass on assets or you’re interested in exploring other ways to transfer assets while minimizing taxes, speak to an experienced estate planning attorney. If you would like to learn more about GSTT and other estate tax issues, please visit our previous posts.

Reference: KAKE.com (Feb. 6, 2021) “What Is the Generation-Skipping Transfer Tax?”

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Information in our blogs is very general in nature and should not be acted upon without first consulting with an attorney. Please feel free to contact The Wiewel Law Firm to schedule a complimentary consultation.
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