Podcast #135 Show Notes: Estate Planning with Daniel Kesten

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Daniel Kesten, an estate planning attorney and a speaker at the WCICon 20 in Las Vegas next March, is our guest on this episode. We have a great discussion concerning everything you need to know about getting started with your estate planning. Do you need a lawyer or can you do it on your own? If you need one, how do you find the right estate planning lawyer? We talk about pros and cons of probate, wills versus revocable trusts, the five fundamental decisions to make when formulating your estate plan, and other ancillary documents you may need. We get into tax topics like gifts taxes, estate taxes, generation-skipping transfer tax, state estate taxes, and inheritance taxes. We discuss whether you need a life insurance trust, reasons to make lifetime gifts, step up in basis, and why repealing of the estate tax could be bad for doctors. Daniel really gives it to us straight. You will know the next step you need to take in your estate planning after listening to this episode. Daniel is going to be a great addition to the White Coat Investor Conference March.

 

This podcast sponsored by Bob Bhayani at drdisabilityquotes.com. They are an independent provider of disability insurance planning solutions to the medical community in every state and a long-time white coat investor sponsor. They specialize in working with residents and fellows early in their careers to set up sound financial and insurance strategies. He is very responsive to me and to readers having any sort of an issue, so it is no surprise that I get great feedback about him from our readers and listeners. If you need to review your disability insurance coverage to make sure it meets your needs or if you just haven’t gotten around to getting this critical insurance in place, contact Bob at drdisabilityquotes.com today by email [email protected] or by calling (973) 771-9100. Just get it done!

Quote of the Day

Our quote of the day today comes from Stanley and Danko. You remember they are the authors of The Millionaire Next Door and they said,

“our research has found that physicians, in general, do not tend to be wealth accumulators.”

That is mostly because we spend too much.

Real Estate Course

There is a course on sale right now that you should know about if you have interest in real estate. This course will teach you how to invest directly in real estate. So it is different than Peter Kim’s Passive Income MD course that is all about passive real estate investing. This course is called Zero to Freedom Through Cashflowing Rentals. It is put together by two doctors, Letizia Alto and Kenji Asakura who have been extraordinarily successful in investing directly in real estate. If this is something you are interested in doing, I recommend this course to you. People that have taken the course have already bought properties before they’re even out of the course and are off and running.  It is a very supportive group that takes the course with you, full of people who are serious about building a real estate empire, either to supplement their clinical practice income, diversify their index stock and bond mutual funds, or just because this is something they want to do.  If you buy through our link you will also get a signed copy of the White Coat Investor’s Financial Bootcamp.

Estate Planning with Daniel Kesten

Benefits of Estate Planning

There are three benefits to estate planning.

  1. To make sure your money and your children go where you want them to in the event of your untimely death.
  2. To avoid probate.
  3. To minimize the effects of any estate, inheritance, or income taxes at death.

What Estate Planning Can Be Done By Yourself?

“I think that if your life is complex, you can’t really do any harm by having a consultation with an estate planning attorney. Sharing some information about you and your family and your finances with the attorney and the two of you can decide together what can be done on your own. I know that there is some good will-drafting software out there. I think it probably works for some people. The one tip I’ll share with the listeners on will-drafting software is that if you go down that route, pay close attention to execution formalities.

If you use the software and print out a document that accurately represents what you want to happen after your death, but then you don’t sign it using all the formalities set by the law of your state of residence, which could be things like the number of witnesses, whether or not you need a notary and so on. If you don’t follow through on the execution formalities that apply in your state then really you’ve just wasted your time and not accomplished anything.”

Estate planning is really all state-specific laws.  But if you draft a will in one state and then move, you don’t have to start over.

“Most states have rules that say that a validly executed will from another state is also valid in the new state. What we tell our clients who call us up and say, ‘hey, we’re thinking about moving out to a new state,’ we say two things. We say, ‘look, eventually, you should consult with a new attorney in your new state of residence.’ We think we’ve built in enough flexibility in our client’s wills that should tide them over at least for a couple of years in their new state.

The exception to that rule is moving to or from a community property state. The local state laws of property ownership and disposition of property on death are different enough in community property states as opposed to separate property states. That we do recommend to our clients that if you’re coming or going with a community property state, you really should sit down and start over when you get there.”

He is talking about Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, New Mexico, and Wisconsin.

Hiring a Good Estate Planning Attorney

“My recommendation is that you start by talking to your friends. My perception is that people don’t enjoy talking to their friends about estate planning. Maybe they think that they’ll end up revealing something they don’t want to reveal or maybe they’re just embarrassed because they haven’t started the estate planning process and their friends already have.

But I think the best place to start is ask your friends two questions. ‘Did you like the estate planning attorney you worked with and what did it cost?’ I think if you find that your friends can identify at least two or three estate planning attorneys in your local area who they’ve worked with, who they liked, then you can take it from there and whittle it down to one attorney and make your choice.

“The way to do that I think is to see if the attorney has a website where you can review his or her biography, which is important and go interview them in person. I think almost every estate planning attorney should be happy to sit in a room with a prospective client for 30 minutes or so. Just seeing if you have chemistry and seeing if the relationship would work.”

As far as biography, Daniel says to look for an attorney that has regularly advised clients on estate planning for at least 5-10 years or more. Also, ask whether they have done estate administration work.

“What I’m talking about now is that when an attorney is young, their clients tend to be young and healthy. Some attorneys who are just starting their practices in the estate planning world devote almost all their time to drafting wills and trusts for healthy clients. As you get older and further into your career, you attract older clients and your clients age with you. Eventually you do more estate administration work where the client has actually passed away and now the rubber hits the road. You have to see the estate plan in action. I think when you’re trying to pick an estate planning attorney, finding out how much a estate administration they perform in any given year is a good question to ask.

If they really don’t do any, you might want to work with someone who does at least a little bit of a estate administration work because being on the other side of that plan in action as the administration really gives you a different way of looking at estate planning and colors the advice you give to clients on the planning side.”

Benefits and Drawbacks of Probate

Daniel shares examples of drawbacks to probate in Florida and California. Florida wants to protect their wealthy elderly citizens and help them make sure their money goes where they want it to at their death.  The way that Florida looks out for that is with a very intrusive probate process that involves the need for court approval for selling assets. In California probate fees are very high for wealthy individuals.  Some states, like NY where Daniel resides, probate fees are capped at $1500 regardless of how much wealth passes through probate.

“I would suggest that if the probate fees themselves are not that high and if the probate process is not particularly intrusive, I think you should speak to an estate planning attorney in your home state about the specific drawbacks and potential benefits of probate in your state. In other words, what I’m suggesting is that probate may not be such a bad thing for everyone. Probate is the court supervised administration of your estate or at least the court supervision of the individual who is administering your estate. There can be benefits to that. Someone is looking over the shoulder of the executor of your estate or the personal representative of your estate and that might not be a bad thing. So if it’s not too expensive, you might want probate. But every case is different. Some clients don’t want their wills to become part of the public record. So that’s an example of someone who would likely want to avoid probate entirely.”

Wills vs Revocable Trusts

I asked Daniel about who should use a will and who can use a revocable trust. What benefits are there for a revocable trust other than avoiding probate? Basically there are two main ways of avoiding probate. One is naming beneficiaries and the other is putting the assets into a living or revocable trust. Daniel said you can also do it by combining those two.

“In other words, you could name beneficiaries for your retirement accounts and your life insurance and you could title some of your assets joint with survivorship. Then you could in combination with that, put any assets which you own individually and which do not carry beneficiary designations into a revocable trust.  One potential disadvantage to some wealthy individuals of avoiding probate by simply titling assets with beneficiary designations and survivorship is that, in the event there are expenses of your death, death taxes, or if you have any debts, it’s more difficult for a personal representative or a trustee or an executor to marshal assets to pay those expenses if nothing passes through probate.

So a revocable trust could be used to pay your debts and your death taxes if applicable. I’m a believer in revocable trust for many clients, but not for all clients. There are other advantages other than just avoiding probate and I’ll give you an example. Getting back to our recommendation that after parents die, their wealth should pass into trust for their children. Even if their children are mature and responsible adults as opposed to passing outright for those children. Remember that I was envisioning that those trusts could last for decades depending on how old the children are after their parents pass away. The trustees who you name for your children may need to change over time. In other words, the individuals or institutions you pick while you’re alive and healthy may not be the right individuals to serve as trustees for your children 20 or 30 years later. So every will and revocable trust agreement has succession provisions built in.

When those trusts are governed by a last will and testament, the trustee of the trust created by your will is authorized by your local probate court or surrogate’s court. Having a trustee resign and a new trustee take over can involve a court proceeding, which can be time consuming and expensive. With a revocable trust, it would create those same trusts for your children after you’re gone but the local probate court won’t be exercising authority or jurisdiction over the identity of those trustees. So it could be much easier for your trustee to resign and pass the baton to a successor trustee if the trust is governed by a revocable trust agreement. Another advantage to revocable trust agreements has to do with capacity. If you are no longer able to manage your own financial affairs, but you’ve created a revocable trust and funded it with your brokerage account while you were alive and healthy, it’s easy for the successor trustee you named in that document to take over your financial affairs for you. Now is it any easier than using a durable power of attorney? I think that would depend on the custodial institution and your home state, but it’s an alternative way to prepare for incapacity.”

 

5 Questions to Answer When Making an Estate Plan

  1. Who would you want to raise the children?
  2. Who is the fiduciary who will be charged with wrapping up your affairs for you and carrying out your estate plan for you in the event of your death? Usually, that’s going to be your spouse, but it likely makes sense to think about an alternative or a backup to your spouse.
  3. Who will be the trustee for the children? A close friend or a professional who will invest that money for their benefit and work out some kind of budget with the guardian to provide funds so that the guardian isn’t spending their own wealth to raise your children.
  4. Do we need to think about wrapping your wealth in any kind of trust at the first death as between the two spouses? So in some cases, clients want to make certain that their wealth ultimately gets to their children. If they’re very young, married couple, they may want their spouse to remarry and maybe even have other children if something were to happen to one of them. It would give some assurance that eventually your wealth not consumed by the spouse in their lifetime, finds its way to their children. This is closely related to death tax planning. But if the clients have more wealth and they are exposed to either state or federal death taxes, then we need to create a trust at the death of the first spouse to take advantage of death tax planning.
  5. What if something happens to the whole family? You would decide that as you draw up your estate plan. “What most clients do is some combination of more remote family members, possibly friends and often we see charities.”

Those are the five questions you need to answer to set up an estate plan.

Additional Ancillary Documents

Daniel also recommends you sign:

  • Durable powers of attorney
  • Healthcare proxies
  • Living wills if you want a living
  • HIPAA Waiver

I often laugh at the importance some people put on things like a healthcare proxy because I have people come into the emergency department with an unconscious grandpa and we need to make a decision of what to do for him. I turn to whoever shows up in the ER with him. I figure that person that actually came to the ER with him probably cares more about them than anybody else. That person has a big say in what we do with that person. I suspect that carries throughout a great deal of the healthcare system, especially when decisions need to be made quickly. So I asked Daniel what he thinks about the healthcare proxy? Is this something that really affects a lot of people or is this a seldom-used document, the pads the coffers of the estate planning attorney?

He instructs his clients to talk to their primary care physician if they think that they need a MOLST/POLST. This is basically what you want to happen in the event that you’re unconscious. It is a brightly colored paper Grandma puts on her fridge so the next time the paramedics knock on her front door and take her to the emergency room, everyone knows what they’re supposed to do and what they’re not supposed to do.

But he still believes that healthcare proxies play a role mostly in longterm incapacity, dementia-related conditions or someone who has had a serious stroke and is in a coma. In that case, he doesn’t want different family members and friends bickering with the healthcare providers over who has the authority to make long-term healthcare decisions for the client.

“I warn clients that if you don’t have a healthcare proxy and a durable power of attorney and you do become incapacitated, we might need to have a guardianship proceeding down in the courthouse for those clients which is an intrusive and can be an expensive process.”

How Estate Planning Attorneys are Paid

Dan said it varies by area. In his area, most estate planning attorneys charge by the hour. They don’t charge for that initial interview unless it’s clear during that interview that the client wants to hire them and they actually start providing legal advice during the interview. He feels like an estate planning attorney who charges by the hour should be able to provide an accurate estimate for a client upfront based on their experience and a little bit of basic information about the client.

There are of course attorneys who are willing to do these projects on a fixed fee or perhaps on a capped fee. Daniel tried that and didn’t have a lot of success. The clients didn’t remain engaged and focused when they knew up front exactly how much it was going to cost them. Sometimes they would lose interest along the way and fade out on him for six months and then come back and every time they would come back they had to start over. So not all attorneys offer a fixed fee but in your community, they might.

The hourly rate varies by area. In Kentucky, Dan was charging $130/hour. In NYC his hourly rate is $350/hour. He was the same attorney giving the same advice, but it’s a different economy. So it really depends on where you live.

Choosing a Guardian and a Fiduciary

I’ve wondered about the merits of naming the same person to be the guardian for the children and the fiduciary for those assets for the children. I asked Daniel if he thought that was a good idea or not.

“About 15 percent, maybe a little less, of my clients name a single individual as both guardian and fiduciary for the children or trustee for the children. I see all sides of it and I’ve heard really interesting stories from clients about it. I tell clients to evaluate who they would like to name as guardian using one set of factors and who they would like to name as trustee using a different set of factors.

“If it turns out that they come up with one answer to both questions, well that’s terrific. I don’t think there’s any problem with that per se, but guardian is really a different skillset than trustee and vice versa. So if you happen to have someone in your universe of friends and family members who you think would make the best choice as parent for your children, if you and your spouse are not around and they also have financial acumen and know what they’re doing, then I don’t have any problem with that client naming one person for both jobs.

If you’re concerned for potential for abuse, which by the way, if you think that the person you’re thinking of might take some of your children’s money, then they’re probably not a good candidate for this job anyway. But bear in mind, there are checks and balances. The children always have the right to demand an accounting, to know what happened to the money in their trust. I don’t think there’s a real need to name two separate individuals. But again, having said all that, I do find it the exception and not the rule that a client says to me, you know what, my brother is the perfect person for both jobs.”

Letter of Wishes

In regards to choosing a guardian for your children, Daniel pushes  back on clients who want to get really granular or really creative in their will or their revokable trust agreement. They are legally binding documents that will be referred to somethings for decades so he sticks with technical legal terms.

He recommends clients create a letter of wishes for those desires that don’t fit into the technical legal terms. For instance, I would want my child to get their own car when they’re 16 but it should be a used car. It’s not legally binding on your guardian or your trustee, but he has faith that you’re picking the right people that they’ll follow your wishes if you give them that kind of informal roadmap.

Death Tax

I frequently tell doctors that this big fear of a death tax is dramatically overblown. Simply because the estate tax exemption is so high that most doctors just aren’t going to have assets that are anywhere near that limit. The exemption from the federal estate tax is really quite generous right now, it’s $11.4 million per person. That means with a married couple, with some fairly basic estate planning, their family should not be exposed to the federal estate tax at all so long as their combined net worth is less than $22.8 million.

Daniel does point out that that amount is slated to get cut in half on January 1, 2026.

“The background on that is that the federal exemption amount technically is $5 million. But it includes an inflation adjustment, which got us into some odd numbers. Then as part of the 2018 tax act, the exemption is temporarily doubled. So you could say that the exemption today is $5 million adjusted for inflation times two but the temporary doubling of the federal exemption amount ends at the end of 2025. I think it’s reasonable to expect that at that time one of two things will happen. The exemption will either decline from about $12 million to about $6 million or some combination of Congress and the president will extend it just like they did at the end of 2012 when it was scheduled to decline from $5 million back to $1 million and a law passed continuing the $5 million exemption.”

Most members of the professional class, lawyers, doctors, accountants, dentists, the federal estate tax doesn’t require a lot of planning.

Gift Tax

How are the gift tax and the estate tax-related? They are both federal taxes on transfers of wealth.

“The gift tax can be thought of as a backstop to the estate tax, because if there wasn’t any gift tax and you were worth two or $300 million, you would probably go about giving your wealth to your children when you were in your eighties rather than holding onto it until death and losing 40 percent of it to the federal government at death.
So the gift tax prevents that type of death tax or estate tax avoidance.”

The gift tax is not meant to prevent family members from sharing modest amounts of wealth with each other. Direct payments of healthcare expenses and educational expenses are not included in the definition of a gift. You can pay your child’s health insurance premiums and college tuition as long as you write the check directly to the company or institution. Separate and apart from those exclusions, you can transfer your wealth in unlimited amounts to your spouse so long as he or she is a US citizen or to charities. There is no gift tax on transfers to spouses or charities.

But to just give money to your children or grandchildren or anyone else it is limited to $15,000 in any single calendar year to an unlimited amount of individuals. Once you cross that threshold though you trigger a gift tax return filing requirement.

“So let’s say you had one child and you gave him $16,000 in a single calendar year. Well, in that case you would need your accountant or you could try to do it yourself to file a gift tax return. It’s also due on April 15th just like your income tax return but it’s sent to a different office of the internal revenue service. You’re not going to owe any gift tax because of that very generous $11.4 million exemption that we discussed earlier. Although most people think of that as an exemption from the estate tax, it’s a unified exemption applicable to the sum of your lifetime wealth transfers or your gifts and the transmission of your wealth at death, your estate tax. So in my simple example, if you gave one of your children $16,000 in a single calendar year, you would file a gift tax return. You would tell the IRS that you gave that child $16,000, they would acknowledge that, okay, well the first 15 of that we don’t care about. But you would in effect be reporting to the government that you no longer have an $11.4 million exemption available. You now have an $11,399,000 exemption available because you have in an effect spent $1000 of that exemption.

So in that way, the gift tax and the estate tax are tied together. For a very, very wealthy individual, if they opted to give away $11.4 million to trust or friends or family members during their lifetime, well they could continue making those annual exclusion gifts of $15,000 per year. But if they exceeded that amount, then they would owe 0.40 for every dollar in excess of their total lifetime exemption and annual exclusion bandwidth.”

The main reason to give gifts is to enrich the lives of those you love. Don’t not do it simply because of worry about the gift tax.

Generation-Skipping Transfer Tax

This tax is a little harder to understand. Daniel says,

“Congress understands that a wealthy grandparent could deprive the internal revenue service of death taxes or estate taxes by leaving their wealth to their grandchildren. Putting aside the very generous exemptions, if Americans in general were exposed to federal estate taxes, I tell clients to think that Congress wants that estate tax at every single generation. So they want their estate tax when the grandparents die, they want to get it again when the parents die and they want to get the estate tax when the children die. They want the tax at every generation. So if grandparents could transmit their wealth directly to their grandchildren or put their wealth in trust, which ultimately benefits their grandchildren, the estate tax will not apply when the parents die.

That is when the generation skipping transfer tax steps in. It applies to transmissions of wealth, which skip a generation just like the name says. Having said that, all of those same generous exemptions apply to the GST tax. Meaning a grandparent could write a check for $11.4 million to a grandchild. There would be no gift tax on that check because the grandparent has an $11.4 million gift and estate tax exemption. Likewise, there would be no GST tax because the grandparent separate and apart from his gift and estate tax exemption also has an $11.4 million GST tax exemption. So the GST tax really is in the province of the very wealthy families who want to do multigenerational estate planning. They want to take full advantage of this exemption by putting some or all of their wealth in longterm trusts that can be enjoyed by their children and grandchildren and great grandchildren and beyond without suffering that estate tax at every generation.”

Inheritance Taxes

Inheritance taxes only exist for the States. There is no federal inheritance tax and there really aren’t very many in the States.

“The only thing special to know about inheritance taxes is that they’re a little bit trickier because the legal distinction between an estate tax and an inheritance tax is the base of the tax or the focus of the tax. So an estate tax is a tax on the transmission of wealth from an estate to the beneficiaries of the estate. It’s really a tax on the estate. An inheritance tax looks to the identity of those beneficiaries. Oftentimes with inheritance taxes you have different classes of beneficiaries and either there are exemptions that apply across the classes or there are different tax rates which could apply across the taxes. So just hypothetically, a particular state may identify children as a class A beneficiary, cousins as class B beneficiaries and unrelated individuals as class C beneficiaries.”

The tax is applied differently to the different classes so you should know in advance whether your estate plan is going to trigger either estate taxes or inheritance taxes.

Whole Life Insurance as Estate Planning

Now all of us have been told by an insurance agent selling whole life insurance that we should buy a policy for estate planning reasons. Daniel doesn’t recommend this.

But if a client comes to him already with a term policy with a large death benefit or a whole life policy with a large death benefit, then they go through a decision tree with that client as to whether or not they should create a trust to become the owner of that policy.

“I really think it’s critical that the clients understand that the reason we would create a trust is the third of your three reasons for estate planning. It’s really boils down to death taxes, estate taxes. The point is that the proceeds of life insurance policy are relatively easy to keep away from the reach of estate taxes. But as we’ve been discussing, the exemptions are so generous that if your hypothetical family has a $1 million of net worth and a $1 million term policy, death tax really doesn’t come into the calculation.  So that’s not a family that we would recommend a life insurance trust to.

The decision tree works a little bit more like this, based on federal exemption amounts and any state exemption amounts if you live in one of the states that taxes wealth at death. Taking into account your current balance sheet and your vision for how much wealth you’ll accumulate over the course of your lifetime, do you think that you are postured to pay death taxes when you die? If the answer to that is yes, then maybe we want to keep your life insurance away from the estate tax by creating a trust to own the policy rather than have you own the policy for the rest of your lifetime.

But an additional complication applies for married clients. Because a lot of people buy life insurance to provide for their surviving spouse, particularly term life insurance, a lot of people have it so that if you die while you’re still in your working years so that your widow or widower can afford to continue their lifestyle. So if that’s the reason you’re buying life insurance, almost implicitly you expect your surviving spouse to consume the life insurance proceeds during his lifetime or her lifetime as opposed to taking those life insurance proceeds and investing them and accumulating more wealth. So if you think your surviving spouse is going to consume the life insurance proceeds, that’s another reason why you don’t need a trust to own your life insurance.”

Repealing the Estate Tax

Daniel has said that repealing the estate tax might not be good for us.  He admits his bias as planning for estate taxes is a lot of what he does for a living. But he wonders why there is such popular appeal to get rid of the estate tax entirely for two reasons.

  1. It does provide revenue to the federal government and if we repeal it, he suspects that Congress would find a way to fill that hole likely by inching up our income taxes a bit.
  2. Basis step-up at death.

“Now, as you know, every single asset that I own has an income tax basis. If I dispose of that asset, my capital gains or capital loss is calculated based on the difference between what I get for it and what my basis is. The sort of classic client is the elderly couple who bought their home 40 years ago and has held onto their Procter and Gamble stock for the entire 40 years. They have a very low basis in that house and the very low basis in their Proctor and Gamble stock. The basis adjustment at death eliminates the capital gains tax that their heirs would otherwise pay after inheriting that house and the stock. In other words, when I die, all of my assets take a new income tax basis and the new basis is the fair market value of each individual asset on the date of my death. So if you have a lot of built in gains, you don’t want to sell those assets in the last years of your life. You’re better off holding them if you can afford to until you die and then your spouse or your children can sell those assets tax free. Well, that system works really, really well for 99.9 percent of America right now, because 99.9 percent plus of America is not exposed to estate taxes. You get the benefit of the basis step up without having to file an estate tax return regardless of whether or not you have wealth in excess of the federal exemption amount. So my concern is that if Congress repeals the estate tax, I don’t know what the justification would be for keeping the basis step up around. In other words, I’ve always felt that the two are tied together. Now before I get angry emails, it’s important to acknowledge that the concept of the basis step up is a creature within the income tax sections of the tax code, the internal revenue code. There are separate chapters of the internal revenue code governing the income tax versus the estate and gift tax. So it is true that basis step up a death is an income tax concept. But I think it’s one thing to repeal the estate tax and also repeal the basis step up versus just repealing the estate tax and keeping the basis step up around. I’m not sure there would be a rational explanation to keep the basis step up around if there is no longer in a estate tax. The basis step up eliminates a double taxation which would otherwise take place at death if you’re a estate paid an estate tax on all your assets and then your heirs also had to pay a capital gains tax when they liquidated your assets. So again, I think there’s a little risk to doctors and members of the professional class to be cheering on the sidelines for complete repeal.”

I think it’s really important to mention this step-up in basis that occurs at death because it really is a big deal when it comes to reducing the taxes of any wealth transfer from one generation to another. This is why you don’t want to have your name on the title of your parents’ home. This is why you don’t want to have your name on their brokerage account. When they die it essentially becomes a gift to you and the original basis is preserved. Whereas if you actually inherit it, then you get the step-up in basis at death.

Mitigating Estate Taxes

Daniel says there are really two ingredients to mitigating estate taxes. One is total return and the other is an income tax concept. By total return, he means appreciation and income. If you make large lifetime wealth transfers while you’re alive and healthy, that consumes some of your $11.4 million exemption.

When we talk about lifetime wealth transfers as a way to mitigate death taxes, what we’re really talking about is removing the total return from the date of the gift through the date of the client’s death from the reach of the death tax. The appreciation and income and total return on the dollars that you gave away, which will escape the reach of a estate tax. So that’s the primary ingredient of mitigating your exposure to a estate tax. Making large lifetime transfers or large lifetime gifts removes future appreciation and return from the reach of the estate tax.

“The other ingredient is actually an income tax concept. Which is that the IRS has agreed that you can give that million dollars not to your children, but to a trust for the benefit of your children. You can structure that trust so that you, the creator of the trust are still responsible for the income taxes associated with the earnings. The way the trustee invest the million dollars, no matter what the ordinary income and capital gains are on that a $1 million, that tax bill can come to you every year.

By paying the income tax on the earnings of the wealth that you’ve given away you’re doing two things. You’re compounding the total return on the wealth that you’ve given away because it’s not being leaked out in the form of any income tax drag. At the same time, you are spending down your dollars by paying the tax bill on your children’s earnings and you want to spend that down because all other things being equal, your money is exposed to a estate tax when you die.”

Ending

I hope this discussion with Daniel was helpful in understanding different aspects of estate planning and that you have a plan of what you need to do next. If that is hiring an estate planning attorney you should really hire a local attorney to handle your estate planning. If you live in NY you can give Daniel a call. If not, talk to your friends and family and find a local attorney that has the experience Daniel discussed.

If you found this episode or these show notes helpful please pass them on to a colleague and help others get their financial life in order.

Full Transcription

Intro: This is the White Coat Investor Podcast where we help those who wear the white coat get a fair shake on Wall Street. We’ve been helping doctors and other high-income professionals stop doing dumb things with their money since 2011. Here’s your host, Dr. Jim Dahle.

Jim Dahle: This is the White Coat Investor Podcast number 135 estate planning with Daniel Kesten. This podcast sponsored by Bob Bhayani at drdisabilityquotes.com. They’re an independent provider of disability insurance planning solutions to the medical community in every state and a long-time white coat investor sponsor.
Jim Dahle: They specialize in working with residents and fellows early in their careers to set up sound financial and insurance strategies. He’s very responsive to me and to readers have any sort of an issue, so it was no surprise that I get great feedback about him from our readers and listeners. If you need to review your disability insurance coverage to make sure it meets your needs or if you just haven’t gotten around to getting this critical insurance in place contact Bob @drdisabilityquotes.com today by emailing [email protected] or by calling (973) 771-9100. Just get it done.

Jim Dahle: Our quote of the day today comes from Stanley and Danko. You remember they’re the authors of The Millionaire Next Door and they said our research has found that physicians, in general, do not tend to be wealth accumulators and that’s mostly because we spend too much. There is a course on sale right now that you should know about, particularly if you have interest in real estate.

Jim Dahle: This is a course that will teach you how to invest directly in real estate. This is different from Peter Kim’s passive income MD course that’s all about passive income. This one is called Zero to Freedom Through Cashflowing Rentals and it’s put together by two docs, Letizia Alto and Kenji Asakura who have been extraordinarily successful in investing directly in real estate.

Jim Dahle: They’ve got a number of doors that they have purchased and basically replaced their physician incomes and became financially independent very, very quickly through cash flowing rentals. It was interesting. I met them both at the passive income MD conference a few weeks ago and it was a surprise to learn that they pay literally no tax. No income tax at all the last two or three years because they’ve covered basically all of her part-time clinical income and all of their other income from the real estate with depreciation from the real estate.

Jim Dahle: So there’s some very real benefits out there to invest indirectly in real estate. If this is something you are interested in doing, I recommend this course to you. It’s not the cheapest course out there, but it’s put together by physicians who can speak directly to you and who can take you by the hand and get you up to speed. By the end of this course, a lot of people taking it have actually had some success.

Jim Dahle: Have already bought properties before they’re even out of the course and are off and running. So it’s a very supportive group that takes the course with you and this for people who are serious about building a real estate empire. Either to supplement their clinical practice income to diversify their index stock and bond mutual funds or just because this is something they want to do. But if that’s you, I would suggest taking this course.

Jim Dahle: There are some introductory material that you can get through and still get your money back. So you can try before you buy, but if you buy through our links, which we’ll put into the show notes, you will also get a signed copy of the White Coat Investor’s Financial Bootcamp that we’ll send to you just as soon as the course gets going.

Jim Dahle: The link you need to go through is whitecoatinvestor.com/rental that’s whitecoatinvestor.com/rental. I’ve got a couple of testimonials from those who took the course when we offered it earlier this year. Here’s one, I gained confidence from taking Zero to Freedom Through Cashflowing Rentals. The class on mindset was amazing, this is exactly what I was missing.

Jim Dahle: Another one, thank you Kenji and Letizia for showing us a new way to financial freedom. Another one, Letizia and Kenji and their course helped give us a vision of what is possible, we all now have something we can run towards. Hello, real estate professional status 2020. So if this is something that you are interested in, I’d recommend this course. You can enroll for it at whitecoatinvestor.com/rental.

Jim Dahle: All right, before we get into our interview today, I’ve got a special guest today. It’s going to be pretty exciting, but I just wanted to say thanks for what you do. The more high-income professionals I talk to, the more I realize that it’s very difficult to have a high income without a difficult job. Whether you’re an attorney, whether you’re a physician, a dentist, pharmacist, whenever you are, chances are if you’re listening to this podcast, you have a hard job and I want to thank you for doing it.
Jim Dahle: It’s not easy, we do need your services in our society and I’m glad there are people that are willing to do them. I think about all the specialties of medicine I’m not willing to do and I’m so grateful when my patients need or my family members need that service. I just wanted to say thanks for what you’re doing. Our guest today is not a physician, our guest today is an attorney.

Jim Dahle: This is Daniel Kesten who is actually going to be a speaker at the white coat investor conference. Let’s get them on the line here. So our guest today on the White Coat Investor Podcast is Dan Kesten. He is married to a physician, an emergency physician actually who’s listening on this broadcast. I just found out as we’re recording this, so welcome to her as well.
Jim Dahle: But Dan is an estate planning attorney and he’s an estate planning attorney that’s going to be speaking on estate planning at the White Coat Investor Conference coming up in March in Las Vegas. So I’m excited to get them on the podcast before the conference just so you guys can get to know him a little bit better and maybe get a little bit more excited to come to his talk at the conference. But welcome to the White Coat Investor Podcast, Dan.
Dan Kesten: Thanks, Jim, really pleased to be here with you and your listeners.

Jim Dahle: So I’m excited to talk about estate planning. I feel a little bit guilty. I’ve got a estate planning I need to do, quite honestly, I have a lot of estate planning I need to do. The problem is I almost feel like I have to make some decisions before I can go see an attorney. That I need to decide what I want to happen to my business in the event that I get run over by a bus and it’s been decisions like that, that have kept me from seeking out and engaging with an estate planning attorney. What would you say to somebody like me that’s just not ready to make those decisions as far as whether they should come see you or somebody like you?
Dan Kesten: Jim, that’s a really interesting point of view and in my mind, I always thought that the reason clients wait so long to call us is that they’re embarrassed that they haven’t already taken care of it. But I would say if you’re waiting because you think you need to make decisions first, go on and take the plunge. Go on and give a call to an estate-planning attorney and let them guide you through the questions that really need to be answered. They may have data points or anecdotes that they can share with you that help you frame those questions and help you along to getting toward answers.
Jim Dahle: Now, a lot of people in the white coat investor audience, whether they’re blog readers, whether they’re hanging out on the forums and the Facebook groups. Whether they listen to the podcast, they tend to be do-it-yourself types. They may work on their own car, they may manage their own investments, etc. What estate planning can be done by ourselves and when does it time to call the professional?
Dan Kesten: Jim, it really depends on the person. I think if you’re the kind of person who does your own income tax returns, whether, with Turbo Tax or some other system, that’s a headstart. That may be an indication that you can do some of your estate planning yourself. I think if you asked a doctor how much medical care and advice can I provide for myself, he would be kind of hardwired to say, well, there’s certain things you can do to keep yourself healthy. But ultimately there are things you really need to see a licensed physician about.

Dan Kesten: I feel the same way on estate planning. I think that if your life is complex, you can’t really do any harm by having a consultation with an estate planning attorney. Sharing some information about you and your family and your finances with the attorney and the two of you can decide together what can be done on your own.
Dan Kesten: I know that there is some good will-drafting software out there and I don’t have a black and white position, no one should ever use will drafting software. I think it probably works for some people. The one tip I’ll share with the listeners on will-drafting software is that if you go down that route, pay close attention to execution formalities.
Dan Kesten: If you use the software and print out a document that accurately represents what you want to happen after your death, but then you don’t sign it using all the formalities set by the law of your state of residence, which could be things like the number of witnesses, whether or not you need a notary and so on. If you don’t follow through on the execution formalities that apply in your state then really you’ve just wasted your time and not accomplished anything.
Jim Dahle: Although in some States you can just put your will on the back of a napkin, right? Some states really don’t have much of a requirement, isn’t that correct?
Dan Kesten: It’s true. It depends and the law favors people being able to control what happens to their wealth when they die. So there are various informal wills that can be admitted to probate, but you don’t want to wind up in a situation where you’re causing pain for your loved ones after you’re gone. Because you used the old back of the napkin method and then you learned that that’s not admissible in your state or not enforceable in your state.
Jim Dahle: Or rather your heirs learn.
Dan Kesten: Exactly.

Jim Dahle: I know this is all state-specific law. What if you get a will in one state and then you move? Is that automatically you need to redo it or does it usually work in the new state too?
Dan Kesten: So most states have rules that say that a validly executed will from another state is also valid in the new state. What we tell our clients who call us up and say, hey, we’re thinking about moving out to a new state, we say two things. We say, look, eventually, you should consult with a new attorney in your new state of residence. We think we’ve built in enough flexibility in our client’s wills that they should tide them over at least for a couple of years in their new state.
Dan Kesten: But the exception to that rule is moving to or from a community property state. The local state laws of property ownership and disposition of property on death are different enough in community property states as opposed to separate property states. That we do recommend to our clients that if you’re coming or going with a community property state, you really should sit down and start over when you get there.
Jim Dahle: So we’re really talking about Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada and New Mexico and Wisconsin there.
Dan Kesten: Jim, I’m glad you know these community property States. I couldn’t do it off the top of my head but that-
Jim Dahle: I couldn’t either, that’s what Google’s for. But the point is you got to know what your state is and that’s the same thing with any sort of estate planning or asset protection law because this is all state law dependent.
Dan Kesten: Sure.

Jim Dahle: So let’s talk for a minute about getting an attorney. How do you tell if somebody is a good estate planning attorney versus a bad one? This is an incredible difficulty for patients looking for a good doctor, right? There’s no good rating system. You certainly can’t trust what’s on Yelp or Google reviews. How do you get a good estate planning attorney and maybe not so much a good one as the right one for your situation?
Dan Kesten: So it might be easy and it might not be easy. My recommendation is that you start by talking to your friends. My perception is that people don’t enjoy talking to their friends about estate planning. Maybe they think that they’ll end up revealing something they don’t want to reveal or maybe they’re just embarrassed because they haven’t started the estate planning process and their friends already have.
Dan Kesten: But I think that’s the best place to start is to ask your friends two questions. Did you like the estate planning attorney you worked with and what did it cost? I think if you find that your friends can identify at least two or three estate planning attorneys in your local area who they’ve worked with, who they liked, then you can take it from there and whittle it down to one attorney and make your choice.
Dan Kesten: The way to do that I think is to see if the attorney has a website where you can review his or her biography, which is important and go interview them in person. I think almost every estate planning attorney should be happy to sit in a room with a prospective client for 30 minutes or so. Just seeing if you have chemistry and seeing if the relationship would work.

Dan Kesten: In terms of looking at an attorney’s biography, estate planning is complicated and it really takes a few years of doing it before you probably are qualified to do it on your own. So I would look for an attorney who highlights estate planning as one of the areas that he or she regularly advises clients on.
Dan Kesten: I would look for at least five to 10 years or more of experience and I would want to ask them in person, do they also do estate administration work? So what I’m talking about now is that when an attorney is young, their clients tend to be young and healthy. Some attorneys who are just starting their practices in the estate planning world devote almost all their time to drafting wills and trusts for healthy clients.
Dan Kesten: As you get older and further into your career, you attract older clients and your clients’ age with you. Eventually you do more estate administration work where the client has actually passed away and now the rubber hits the road. You have to see the estate plan in action. I think when you’re trying to pick an estate planning attorney, finding out how much estate administration they perform in any given year is a good question to ask.
Dan Kesten: If they really don’t do any, you might want to work with someone who does at least a little bit of a estate administration work. Because being on the other side of that plan in action as the administration really gives you a different way of looking at estate planning and colors the advice you give to clients on the planning side.
Jim Dahle: This is a little bit of an unrelated question, but how does an estate planning attorney view an asset protection attorney? Do most estate planning attorneys feel like they can do asset protection as well or do they view that as a completely separate specialty and you really need two different attorneys working with you on those two aspects of your financial plan?

Dan Kesten: Jim, I recommend to my clients that they hire a specialized credit or protection or asset protection attorney. I think that that is a different sub-specialty. I’m certain that there are very qualified trusts and estates attorneys in the country who are also qualified to give asset protection planning advice. But if a client comes to me and says, I’m a surgeon and I want to have protection for my wealth above and beyond my insurance, I really would like to create a self settled asset protection trust.
Dan Kesten: I would almost always refer them to a specialist. Having said that, a lot of what trusts and estates attorneys do every single day carries with it asset protection benefits. I’ll give you the most obvious example, which is that if I meet a young married couple with children and I’m just preparing a straightforward estate plan for them, most of the time one spouse’s will says everything to my spouse. If my spouse is not living, everything in trust for the children and the second spouse’s will is usually a mirror image for that.
Dan Kesten: The point is, is that those trusts for the children are incredibly remote from creditor’s claims. So what we recommend to our clients who intuitively say to us, well, if we’re both gone, the children should get their inheritance free of all trust. Maybe when they’re 21 years old or 25 years old. I think that was the old way of doing things.
Dan Kesten: But in the modern estate planning world, the conventional advice is to say that the trust for the children, which come into existence after both parents are deceased in a household where the biological parents are married to each other, those trusts should not terminate when the children are in their 20s or even when they’re in their thirties we recommend to our clients that those trusts push out till 50 or structure them as full lifetime trusts.

Dan Kesten: This means that the trustees will have the ability to distribute wealth to the children after mom and dad are gone at any age. But we no longer hardwire into our client’s wills a mandate that the trust pay out when the children are 21 or 25 and the reason for that is asset protection. As long as the wealth that you and your spouse have worked so hard to create, remains in trust for your children after you’re gone, your children’s creditors will have no way of accessing that wealth. That includes an ex-spouse in the event of a divorce. So a lot of what we do in the straight down the middle of estate planning world does have asset protection benefits.
Jim Dahle: So I often tell my readers and listeners that there’s really three benefits to estate planning. The first one being to make sure your money and your children go where you want them to in the event of your untimely death. The second to avoid probate and then the third of course, to minimize the effects of any estate or inheritance or income taxes at death. Let’s talk for a minute about probate. It’s benefits and drawbacks and the merits of avoiding probate.
Dan Kesten: Sure. So this is an example of how state law differs across the 50 States. I was practicing for several years before I really came to appreciate how painful probate can be in certain States. Two that come to mind are Florida and California and probate in Florida and California is painful for different reasons.
Dan Kesten: In Florida, I think the state of Florida recognizes how many very wealthy elderly citizens reside in Florida and they want to protect that population. They want to make certain that their wealth meets the first goal that you mentioned, Jim. That their wealth goes where they want it to go when they die. The way that Florida looks out for that is with a very intrusive probate process.

Dan Kesten: In other words, if you allow your assets to go through probate in Florida, the bad news is that your personal representative, just as an example, will need court approval to sell your condo. So that’s an intrusive process and most people in Florida try to avoid it. But the good news is, it’s that it’s there for a good reason. California is a different story.
Dan Kesten: In California, my understanding is that the probate fees can be extraordinarily high, particularly for wealthy individuals. So I believe it’s common practice in California to avoid probate as well. Here in New York, probate fees are capped at under $1500 so no matter how much wealth passes through probate, you’re not going to pay any more than that.
Dan Kesten: So it really comes down to a different calculus about whether or not you should work to avoid probate in your home state. I would suggest that if the probate fees themselves are not that high and if the probate process is not particularly intrusive, I think you should speak to an estate planning attorney in your home state about the specific drawbacks and potential benefits of probate in your state.

Dan Kesten: In other words, what I’m suggesting is that probate may not be such a bad thing for everyone. Probate is the court supervised administration of your estate or at least the court supervision of the individual who is administering your estate. There can be benefits to that. Someone is looking over the shoulder of the executor of your estate or the personal representative of your estate and that might not be a bad thing.
Dan Kesten: So if it’s not too expensive, you might want probate. But every case is different. Some clients don’t want their wills to become part of the public record. So that’s an example of someone who would likely want to avoid probate entirely.
Jim Dahle: Now, a lot of times people have decided to try to it using a revocable trust rather than a will. Can we talk for a minute about who needs a will and needs a revokable trust, what the benefits are really of a revokable trust other than avoiding probate? Because basically, those are the two main ways of avoiding probate. One is naming beneficiaries and the other is putting the assets into a living or revocable trust. Is there any other way of avoiding probate or are those pretty much it?
Dan Kesten: The only other way is to combine the two. In other words, you could name beneficiaries for your retirement accounts and your life insurance and you could title some of your assets joint with survivorship. Then you could in combination with that, put any assets which you own individually and which do not carry beneficiary designations into a revocable trust.
Dan Kesten: So you could combine the two approaches. They’re both effective for avoiding probate. One potential disadvantage to some wealthy individuals of avoiding probate by simply titling assets with beneficiary designations and survivorship is that, in the event there are expenses of your death, death taxes, or if you have any debts, it’s more difficult for a personal representative or a trustee or an executor to marshal assets to pay those expenses if nothing passes through probate and there’s nothing in your revocable trust.

Dan Kesten: So a revokable trust could be used to pay your debts and your death taxes if applicable. So I’m a believer in revokable trust for many clients, but not for all clients. There are other advantages other than just avoiding probate and I’ll give you an example. Getting back to our recommendation that after parents die, their wealth should pass into trust for their children. Even if their children are mature and responsible adults as opposed to passing outright for those children.
Dan Kesten: Remember that I was envisioning that those trusts could last for decades depending on how old the children are after their parents pass away. The trustees who you name for your children may need to change over time. In other words, the individuals or institutions you pick while you’re alive and healthy may not be the right individuals to serve as trustees for your children 20 or 30 years later. So every will and revocable trust agreement has succession provisions built in.
Dan Kesten: When those trusts are governed by a last Will and Testament, the trustee of the trust created by your will is authorized by your local probate court or surrogate’s court. Having a trustee resign and a new trustee take over can involve a court proceeding, which can be time consuming and expensive. With a revocable trust, it would create those same trusts for your children after you’re gone but the local probate court won’t be exercising or authority or jurisdiction over the identity of those trustees.
Dan Kesten: So it could be much easier for your trustee to resign and pass the baton to a successor trustee if the trust is governed by a revocable trust agreement. Another advantage Jim to revokable trust agreements has to do within capacity. If you are no longer able to manage your own financial affairs, but you’ve created a revocable trust and funded it with your brokerage account while you were alive and healthy, it’s easy for the successor trustee you named in that document to take over your financial affairs for you.
Dan Kesten: Now is it any easier than using a durable power of attorney? I think that would depend on the custodial institution and your home state, but it’s an alternative way to prepare for incapacity. So those are a couple of the reasons that clients use revokable trust apart from trying to avoid probate.
Jim Dahle: So let’s talk about a basic plan. Let’s say we just have a physician couple, one’s a doc, one’s a stay-at-home-parent, a couple of kids, neither have been married to anybody else, don’t have any other children. What does a basic estate plan for those folks look like? Let’s say they have a net worth of $1 million. What does their estate plan look like?

Dan Kesten: So I tell that couple that they really need to answer five questions. The first question is the most human of the five. That is if something happened to both of you, who would you want to raise the children? So your state law is going to have some provisions about the appointment of a guardian for your minor children if both parents are deceased.
Dan Kesten: But why not use an estate plan to trump those provisions and nominate someone to serve that role? To step into your shoes as parent, to have custody of your children and to decide where do they go to school? What do they do on Sundays? Do they go to camp in the summertime? All those things would be the legal decision of your guardian. So that’s the first question that your hypothetical couple would need to answer.
Dan Kesten: There are two other roles that need to be filled, and that’s executor or personal representative or trustee under your revocable trust. In other words, who’s the fiduciary who will be charged with wrapping up your affairs for you and carrying out your estate plan for you in the event of your death? Usually, that’s going to be your spouse, but it likely makes sense to think about an alternative or a backup to your spouse.

Dan Kesten: In case your spouse doesn’t want to take on that responsibility or if something happens to your spouse before you. So that’s the second question that the couple needs to think about. The third question is the final role or position that they need to think about filling and that’s a trustee for the children. That gets back to the topic we discussed earlier which is, rather than leave the million dollars outright to the two children or in UTMA accounts that they will take control of when they turn 21 why not leave instructions that the wealth pass into a trust for their benefit or two separate trusts for the two children to be managed by a close friend or a professional who will invest that money for their benefit and work out some kind of budget with the guardian to provide funds so that the guardian isn’t spending their own wealth to raise your children.
Dan Kesten: So those are three of the five questions. The next question is, do we need to think about wrapping your wealth in any kind of trust at the first death as between the two spouses? So in some cases, clients want to make certain that their wealth ultimately gets to their children. If they’re very young, married couple, they may want their spouse to remarry and maybe even have other children if something were to happen to one of them.
Dan Kesten: But in that case, they may also want some kind of reassurance that, hey honey, I want you to have all the money if something happens to me. I want it to be available to you, but I also want some assurance that eventually it will find our way to our children. To the extent you don’t consume it during your lifetime as a widow or widower. So the answer to that is to include trusts for the surviving spouse in both estate plans and closely related to that is death tax planning.
Dan Kesten: At a $1 million I don’t think there’s any state in the nation that would currently levy any inheritance taxes or estate taxes on a $1 million estate. But if the clients do have more wealth than that and they are exposed to either state or federal death taxes, then we need to create a trust at the death of the first spouse to take advantage of death tax planning.

Dan Kesten: The final decision, Jim, that the couple needs to make is the most morbid of all which is what if something happens to the whole family, either in a common accident or in succession, meaning one parent, then a second parent, and then something happens to the children while those trusts still hold wealth for their benefit. So you would decide that as you draw up your estate plan. What most clients do is some combination of more remote family members, possibly friends and often we see charities. So those are the five decisions that the family needs to decide so that we can create an estate plan for them.
Jim Dahle: What does that typically end up looking like? The who, who, who you can basically name in the will and trust documents. That takes care of the first three questions. What in the end ends up getting established? They set up a revocable trust and maybe one for each of the spouses or what actually gets done in the end?
Dan Kesten: So normally the work product for our typical client is a number of documents. It can almost feel like a real estate closing when the clients come in the room. So we’ll have a separate set of documents for each spouse when we do estate planning for a married couple. Those documents are usually either a full last will and testament if the client has decided to not use a revocable trust approach or a simple pore over the will and a revocable trust if they are using a revokable trust approach.
Dan Kesten: But in addition to those two documents, we recommend that the client’s also signed durable powers of attorney, healthcare proxies, living wills if they want a living will and a HIPAA Waiver. So that’s really the entire work product in the final package. We also want to make the clients understand what they’ve done so they get a memo and a diagram so that they can pull it out of the drawer in a couple of years and remember exactly how this estate plan works.

Jim Dahle: What do they pay for? Are they paying for the products? Are they paying consultation fees? How do they pay estate planning attorneys?
Dan Kesten: So that again varies and that I think is the type of thing you would want to ask your friends based on the local practice. In my area, most estate planning attorneys charge by the hour and we track our time at six minutes intervals using stopwatch technology, but we do bill for all the time that we invest on behalf of the client.
Dan Kesten: We don’t charge for that initial interview unless it’s clear during that interview that the client wants to hire us and we actually start providing legal advice during the interview. I think an estate planning attorney who charges by the hour should be able to provide an accurate estimate for a client upfront based on their experience and a little bit of basic information about the client that they download from the client.
Dan Kesten: They should be able to provide an accurate estimate. There are of course attorneys who are willing to do these projects on a fixed fee or perhaps on a capped fee. I’ve tried that and it didn’t have a lot of success. I felt like sometimes clients didn’t remain engaged and focused when they knew up front exactly how much it was going to cost them. Sometimes they would lose interest along the way and fade out on me for six months and then come back and every time they would come back we had to start over. So not all attorneys offer a fixed fee but in your community they might.

Jim Dahle: What’s a typical hourly rate? What am I going to pay an attorney? Is it $200 an hour, is it $500 an hour. What does it cost?
Dan Kesten: Well, I can tell you that I did this in my home state of Kentucky in the very late nineties and I think I charged about $130 an hour. When my wife started her residency, we got in an airplane to move to New York and my hourly rate jumped to about $350 an hour. I was the same attorney giving the same advice, but it’s a different economy. So it really depends on where you live and the rates are in your area.
Jim Dahle: It’s interesting that it changes like that for law because for medicine sometimes moving in New York you get paid less.
Dan Kesten: I know that from firsthand experience Jim.
Jim Dahle: A couple other questions before we leave this topic. The first one is what do you think of the merits of naming the same person to be the guardian for the children and the fiduciary for those assets for the children. Do you think that’s a good idea or do you think it ought to be separate people?
Dan Kesten: Jim, about 15 percent maybe a little less of my clients name a single individual as both guardian and fiduciary for the children or trustee for the children. I see all sides of it and I’ve heard really interesting stories from clients about it. I tell clients to evaluate who they would like to name as guardian using one set of factors and who they would like to name as trustee using a different set of factors.

Dan Kesten: If it turns out that they come up with one answer to both questions, well that’s terrific. I don’t think there’s any problem with that per se, but guardian is really a different skillset than trustee and vice versa. So if you happen to have someone in your universe of friends and family members who you think would make the best choice as parent for your children, if you and your spouse are not around and they also have financial acumen and they listen to the White Coat Investor Podcast regularly and know what they’re doing, then I don’t have any problem with that client naming one person for both jobs.
Dan Kesten: If you’re concerned for potential for abuse, which by the way, if you think that the person you’re thinking of might take some of your children’s money, then they’re probably not a good candidate for this job anyway. But bear in mind, there are checks and balances. The children always have a right to demand an accounting to know what happened to the money in their trust.
Dan Kesten: I don’t think there’s a real need to name two separate individuals. But again, having said all that, I do find it the exception and not the rule that a client says to me, you know what, my brother is the perfect person for both jobs.
Jim Dahle: What about some epic blowout fights between the guardian and the trustee? Do you have any examples where the guardian thought they ought to have more money now and the trustee just disagreed and just became this epic fight or is this really not really an issue? They usually always agree on how much money’s reasonable for raising the kids to whenever, 18 or 21 or whatever.
Dan Kesten: So to be really candid, I’m pleased to say that after doing this for 22 years, I’ve never seen a guardian appointed for a minor child and I hope I never do. But what we recommend to clients to avoid those kind of disputes is something known as a letter of wishes. So I push back on clients who want to get really granular or really creative in their will or their revokable trust agreement.

Dan Kesten: Those documents are legally binding and they’ve got to be referred to sometimes for decades. So we stick with technical legal terms in those documents and we don’t really recommend the clients set forth in their will. Well, I want my child to get a Honda when they’re 16 or I want them to get $20,000 after they’ve been married for one year. We find that those provisions don’t hold up very well over time and they’re just too particular.
Dan Kesten: So instead what we recommend is that the client write what is known as a letter of wishes, which is an imposing name for the document. But really it’s just an email to your guardian and your trustee that says, this is what I would do if I was still around. I would want my child to get their own car when they’re 16 but it should be a used car. I don’t want any client of mine putting that in their will but I think it’s a great thing to put in a letter of wishes. It’s not legally binding on your guardian or your trustee, but I have faith that you’re picking the right people and that they’ll follow your wishes if you give them that kind of informal roadmap.
Jim Dahle: Let’s talk for a minute also about the ancillary documents. I often laugh at the importance some people put on things like a healthcare proxy. Because I have people come into the emergency department and you know what grandpa is not conscious and we got to make a decision of what to do for him. I turn to whoever shows up in the ER, it might be friend, it might be spouse, it might be child.

Jim Dahle: I figure that person that actually came to the ER with him probably cares more about them than anybody else. That person has a big say in what we do with that person. I suspect that carries throughout a great deal of the healthcare system, especially when decisions need to be made quickly. But what do you think about the healthcare proxy? Is this something that really affects a lot of people or is this a seldom used document, the pads, the coffers of the estate planning attorney?
Dan Kesten: I’m fortunate because my spouse is an emergency medicine physician that she turned that light bulb on for me years ago that emergency departments around the country aren’t asking patients in cardiac arrest if they have a healthcare proxy and a living will. So I’ve been able to counsel my clients, when is a healthcare proxy relevant and when is it not really relevant? Once I know I’ll also mention the concept of a MOLST to clients and tell them they should talk to their primary care physician if they think that they need a MOLST.
Jim Dahle: Now let’s explain what that is because in my state we call it a POLST but I’m sure it’s the same thing. This is basically what you want to happen in the event that you’re unconscious. It’s a document that, they handle the medics when the medics pick you up at your house, right? That’s what you’re talking about.
Dan Kesten: Yeah, I tell clients, and we don’t prepare them because they are quite particular about individual medical procedures. What I tell clients is that it’s something on brightly colored paper that grandma needs to put on her refrigerator so the next time the paramedics knock down her front door and take her to the emergency room, everyone knows what they’re supposed to do and what they’re not supposed to do.

Dan Kesten: That really illustrates your point about a healthcare proxy because it’s the opposite. No one’s going to have the access to the healthcare proxy in the emergency department. But I do believe that healthcare proxies play a role and really what I envision healthcare proxies primarily solving for is longterm incapacity, all timers and other dementia related conditions or someone who has had a serious stroke and is in a coma.
Dan Kesten: In that case, I don’t want different family members and friends bickering with the healthcare providers over who has the authority to make longterm healthcare decisions for my client. I want the healthcare providers to know who my client designated to make those decisions for him or her. So I think that’s where the healthcare proxy comes in.
Dan Kesten: I warn clients that if you don’t have a healthcare proxy and a durable power of attorney and you do become incapacitated, we might need to have a guardianship proceeding down in the courthouse for those clients which is an intrusive and can be an expensive process so we can solve for that with a well drafted healthcare proxy and durable power of attorney.
Jim Dahle: I always find it interesting that people have a different caretaker and then the healthcare proxy or the healthcare power of attorney is a different child in a different state. I always find it interesting that they have different people doing that. So the person with them isn’t the person making the decisions and I got to get on the phone and talk to somebody else. But I just find that fascinating that sometimes that happens.
Dan Kesten: It does happen. We talk about geographic proximity and we also talk about the son-in-law who is the doctor and whether or not he’s the right person to have the healthcare proxy. Ultimately clients, I think they really go with their gut on who is best at making those kinds of decisions. I also hear from a lot of clients that they want to pick the family member who’s the toughest and the most realistic. I think a lot of clients are afraid that they’ll name someone in their healthcare proxy who is a little too soft and won’t understand how to make those difficult healthcare decisions. So they go with someone who’s more practical.
Jim Dahle: On the other hand they may go, that guy’s going to pull the plug too early.
Dan Kesten: I hear that a lot as well.

Jim Dahle: All right, let’s turn the page. Let’s talk about taxes. I mentioned earlier the three purposes of a state plan. The last one, of course, is to minimize taxes. I frequently tell doctors particularly in most States that this big fear of a death tax is dramatically overblown. Simply because the estate tax exemption is so high that most doctors just aren’t going to have assets that are anywhere near that limit. Can we talk for a little bit about these federal taxes, gift taxes and estate taxes, inheritance taxes, and the generation skipping transfer tax?
Dan Kesten: Jim, I feel the same way you do. You would think based on some news reports that the federal estate tax impacts everyday Americans. It definitely impacts a lot of Americans and it’s an extremely expensive tax, but the exemption from the federal estate tax is really quite generous right now, it’s $11.4 million per person. That means with a married couple, with some fairly basic estate planning, their family should not be exposed to the federal estate tax at all. So long as mom and dad’s combined net worth is less than $22.8 million.
Dan Kesten: That figure that federal exemption amount is adjusted for inflation and goes up every January 1st I believe it’s going to rise to 11.5 on January 1, 2020 and it will continue to rise. Now it is slated to get cut in half on January 1, 2026 and the background on that is that the federal exemption amount technically is $5 million. But it includes an inflation adjustment, which got us into some odd numbers. Then as part of the 2018 tax act, the exemption is temporarily doubled.
Dan Kesten: So you could say that the exemption today is $5 million adjusted for inflation times two but the temporary doubling of the federal exemption amount ends at the end of 2025. I think it’s reasonable to expect that at that time one of two things will happen. The exemption will either decline from about $12 million to about $6 million or some combination of Congress and the president will extend it just like they did at the end of 2012 when it was scheduled to decline from $5 million back to $1 million and a law passed continuing the $5 million exemption.

Dan Kesten: But as you say, for most members of the professional class, lawyers, doctors, accountants, dentists, the federal estate tax doesn’t require a lot of planning. Unless you’ve sold a medical device or have a very large dermatology practice, you probably aren’t exposed to it right now.
Jim Dahle: It’s interesting, a lot of people don’t understand the gift tax either. Can you explain how the gift tax is related to the estate tax?
Dan Kesten: Sure. They’re closely related, but they are separate taxes. So they’re both federal taxes on transfers of wealth. The gift tax can be thought of as a backstop to the estate tax, because if there wasn’t any gift tax and you were worth two or $300 million, you would probably go about giving your wealth to your children when you were in your eighties rather than holding onto it until death and losing 40 percent of it to the federal government at death.
Dan Kesten: So the gift tax prevents that type of death tax or estate tax avoidance. The gift tax is an interesting tax in that it’s not meant to prevent family members from sharing modest amounts of wealth with each other. What I mean by that is the following, first of all, direct payments of healthcare expenses and educational expenses are not included in the definition of a gift.

Dan Kesten: So you could pay your son’s health insurance premiums so long as you write that check directly to the health insurance company, that’s not considered a gift. Likewise, you could pay the tuition of your next door neighbor who’s taking night classes at college. That’s not considered a gift so long as you write the check directly to the school. Separate and apart from those exclusions, you can transfer your wealth in unlimited amounts to your spouse so long as he or she is a US citizen or to charities.
Dan Kesten: There’s no gift tax on transfers to spouses or charities. But that leaves us with the question of, well, how much wealth can I give to my children or grandchildren? There you have to be a little bit more careful. The answer is you can give $15,000 in any single calendar year to an unlimited amount of individuals. So if you have three children, you can give them each $15,000. If you have three children and a best friend from college, you could give your three children 15,000 and your best friend from college, 15,000.
Dan Kesten: I tell clients that the gift tax doesn’t care as long as you’re giving no more than $15,000 in a single calendar year to those individuals. You can do that for an unlimited number of people. Once you cross that threshold though, Jim, you trigger a gift tax return filing requirement. So let’s say you had one child and you gave him $16,000 in a single calendar year.
Dan Kesten: Well, in that case you would need your accountant or you could try to do it yourself to file a gift tax return. It’s also due on April 15th just like your income tax return but it’s sent to a different office of the internal revenue service. You’re not going to owe any gift tax because of that very generous $11.4 million exemption that we discussed earlier. Although most people think of that as an exemption from the estate tax, it’s a unified exemption applicable to the sum of your lifetime wealth transfers or your gifts and the transmission of your wealth at death, your estate tax.

Dan Kesten: So in my simple example, if you gave one of your children $16,000 in a single calendar year, you would file a gift tax return. You would tell the IRS that you gave that child’s 16,000, they would acknowledge that, okay, well the first 15 of that we don’t care about. But you would in effect the reporting to the government that you no longer have an $11.4 million exemption available. You now have an $11,399,000 exemption available because you have in an effect spent $1000 of that exemption.
Dan Kesten: So in that way, the gift tax and the estate tax are tied together. For a very, very wealthy individual, if they opted to give away $11.4 million to trust or friends or family members during their lifetime, well they could continue making those annual exclusion gifts of $15,000 per year. But if they exceeded that amount, then they would owe 0.40 for every dollar in excess of their total lifetime exemption and annual exclusion bandwidth.
Jim Dahle: It’s interesting a lot of people are worried about giving away more than $15,000 even though they’re nowhere near the exemption limit. They’re just worried about it. They’re worried about doing the paperwork or worried the law some taxes or something. So I think that’s very reassuring to hear exactly how it works. I also don’t get the impression that anybody is watching this very closely. I would bet there are an awful lot of gifts going on that never show up on a gift tax form. Do you have any sense for people’s compliance with that particular law?

Dan Kesten: It’s a very interesting comment and first of all, I agree with you. We’ve seen those questions on the blogs where people are extremely anxious about crossing the $15,000 threshold. I can tell you the gift tax return is only four pages long and if you’re making a gift of cash, you could probably fill out that return yourself. It’s not a big deal and you’re really just using some of these extremely large $11.4 million exemptions.
Dan Kesten: So I would say file it. With respect to compliance people ask me that question all the time, do I really have to report this gift? All my friends bought their kids’ apartments when they graduated from college. I feel ridiculous being compliant. I say to them, would you neglect to report $100,000 of income on your income tax return? I just don’t think it’s worth it to look the other way.

Dan Kesten: I want all my clients to comply with the gift tax law. It is a federal law. So yeah, I can’t recommend not complying. Having said that, the internal revenue service does seem out-manned and out-gunned. We’ve seen a recent Congress cut their budget and some people say enforcement is reduced. On the other hand, with the $11.4 million exemption, there are not as many taxable estates any longer in this country meaning the number of attorneys like myself who are preparing and filing a state tax returns and helping executors pay the state taxes, all those numbers are way down.
Dan Kesten: So there is some anecdotal evidence that that has a lot of internal revenue service attorneys who used to audit estates with time on their hands to audit wealth transfers during life or unreported gifts. So I do think it’s the wise thing to be compliant.
Jim Dahle: Now we haven’t talked much about the generation skipping transfer tax and I don’t think very many doctors understand how this works at all. Can you explain this tax?
Dan Kesten: Well, I can try to Jim. It’s not easy to explain, but the starting point I think is that Congress understands that a wealthy grandparent could deprive the internal revenue service of death taxes or estate taxes by leaving their wealth to their grandchildren. Putting aside the very generous exemptions, if Americans in general were exposed to federal estate taxes, I tell clients to think that Congress wants that estate tax at every single generation.
Dan Kesten: So they want their estate tax when the grandparents die, they want to get it again when the parents die and they want to get the estate tax when the children die. They want the tax at every generation. So if grandparents could transmit their wealth directly to their grandchildren or put their wealth in trust, which ultimately benefit their grandchildren, the estate tax will not apply when the parents die, when the middle generation dies.
Dan Kesten: That’s when the generation skipping transfer tax steps in. That’s the purpose of the generation skipping transfer, otherwise known as GST tax. It applies to transmissions of wealth, which skip a generation just like the name says. Having said that, all of those same generous exemptions apply to the GST tax. Meaning a grandparent could write a check for $11.4 million to a grandchild.

Dan Kesten: There would be no gift tax on that check because the grandparent has an $11.4 million gift and estate tax exemption. Likewise, there would be no GST tax because the grandparent separate and apart from his gift and estate tax exemption also has an $11.4 million GST tax exemption. So the GST tax really is in the province of the very wealthy families want to do multigenerational estate planning.
Dan Kesten: They want to take full advantage of this exemption by putting some or all of their wealth in longterm trusts that can be enjoyed by their children and grandchildren and great grandchildren and beyond without suffering that estate tax at every generation.
Jim Dahle: Let’s talk just for a minute about inheritance taxes. Now these only exist for the States. There is no federal inheritance tax and there really aren’t very many in the States. But can you explain the difference between an estate tax and inheritance tax and anything special listeners ought to know about inheritance taxes?
Dan Kesten: The only thing special to know about inheritance taxes that they’re a little bit trickier because the legal distinction between an estate tax and an inheritance tax is the base of the tax or the focus of the tax. So an estate tax is a tax on the transmission of wealth from an estate to the beneficiaries of the estate. It’s really a tax on the estate. An inheritance tax looks to the identity of those beneficiaries.
Dan Kesten: Oftentimes with inheritance taxes you have different classes of beneficiaries and either there are exemptions that apply across the classes or there are different tax rates which could apply across the taxes. So just hypothetically, a particular state may identify children as a class A beneficiary, cousins as class B beneficiaries and unrelated individuals as class C beneficiaries.
Dan Kesten: The inheritance tax looks after classifying the beneficiaries across class a class B in class C, that hypothetical tax may apply differently to class A, B and C beneficiaries. So it can be a little bit more complicated and legally the tax is calculated differently, but the end result is the same which is you should know in advance whether your estate plan is going to trigger either estate taxes or inheritance taxes.

Jim Dahle: Now, I have a lot of physician readers and listeners who have been told by an insurance agent typically selling whole life insurance that they should buy a policy for estate planning reasons. In general, I presume they’re alluding to a life insurance trust and irrevocable insurance trust who really needs these really, is this something that they are just using to try to sell more policies or is this something that a lot of people should actually be taken advantage of?
Dan Kesten: Well, Jim, I think you and I see pretty much eye to eye on the topic of life insurance. Having said that, two of my best friends are life insurance brokers and they provide a lot of value to their clients and they go about it in a very honest way. But the need for whole life policy depends on a lot of different factors, but it really boils down to whether you see it as an asset class that you want to devote your investible dollars to or not.
Dan Kesten: If a client already has a valuable life insurance policy or I should say, if a client comes to us and they have a term policy with a large death benefit or a whole life policy with a large death benefit, then we go through a decision tree with that client as to whether or not we should create a trust to become the owner of that policy.
Dan Kesten: I really think it’s critical that the clients understand that the reason we would create a trust is the third of your three reasons for estate planning. It’s really boils down to death taxes, estate taxes. The point is that the proceeds of life insurance policy are relatively easy to keep away from the reach of estate taxes. But as we’ve been discussing, the exemptions are so generous that if your hypothetical family has a $1 million of net worth and a $1 million term policy, death tax is really don’t come into the calculation.

Dan Kesten: So that’s not a family that we would recommend a life insurance trust to. The decision tree works a little bit more like this, based on federal exemption amounts and any state exemption amounts if you live in one of the states that taxes wealth at death. Taking into account your current balance sheet and your vision for how much wealth you’ll accumulate over the course of your lifetime, do you think that you are postured to pay death taxes when you die?
Dan Kesten: If the answer to that is yes, then maybe we want to keep your life insurance away from the estate tax by creating a trust to own the policy rather than have you own the policy for the rest of your lifetime. But an additional complication applies for married clients. Because a lot of people buy life insurance to provide for their surviving spouse, particularly term life insurance, a lot of people have it so that if you die while you’re still in your working years so that your widow or widower can afford to continue their lifestyle and get the kids through college and pay off the mortgage and all those important things.
Dan Kesten: So if that’s the reason you’re buying life insurance, almost implicitly you expect your surviving spouse to consume the life insurance proceeds during his lifetime or her lifetime as opposed to taking those life insurance proceeds and investing them and accumulating more wealth. So if you think your surviving spouse is going to consume the life insurance proceeds, that’s another reason why you don’t need a trust to own your life insurance.

Dan Kesten: We just want to make certain that our clients understand all of these factors and also understand the legal fees for creating a life insurance trust and the care and feeding that goes into a life insurance trust every year so that they can decide whether they need one or not.
Jim Dahle: Let’s talk for a minute about gifts. You’ve mentioned that reducing your death tax exposure is really a relatively minor reason to make gifts. What do you see as the main reason to make gifts?
Dan Kesten: I think the most practical reason to make gifts is to enrich the lives of your loved ones. That’s the phone call I think most trusts and estates attorneys receive most often is, “hey, I’d like to help this member of my community out. Am I allowed to write them a check?” What are those rules? Getting back to those blog posts, do I have to pay gift tax if I write a check to someone or can I pay for my nephew’s college education? Do I need a trust?
Dan Kesten: We hear a lot from grandparents who need to understand the different tools for transmitting wealth to their grandchildren. Those tools basically are UTMA accounts, 529 college savings accounts, or a more sophisticated trust. So we talk clients through those options, the different tax attributes of each technique and the transaction costs of each technique.

Dan Kesten: So those are the gifting questions that apply to everyone using lifetime gifts to mitigate exposure to death taxes is pretty much the majority of my law practice. That’s something we do a lot. But those clients, again, our clients who are postured to pay death taxes when they pass away.
Jim Dahle: Now you have said that repealing the estate tax may not be all good. Most of us are thinking, why don’t we just get rid of this thing completely? You feel that it could actually shoot doctors in the foot. Can you explain why that is?
Dan Kesten: Yeah, I’m concerned about complete repeal and I admit I’m biased because planning for estate taxes is a lot of what I do for a living. I have a lot of clients who I genuinely like who are exposed to estate taxes and I want to help them out. But I’m uncertain why there’s such popular appeal to get rid of the estate tax entirely for two reasons.

Dan Kesten: The first is simply it does provide revenue to the federal government and if we repeal it, I suspect the Congress would find a way to fill that hole likely by inching up our income taxes a bit. But the more subtle reason has to do with the basis step up at death. Now, as you know, every single asset that I own has an income tax basis.
Dan Kesten: If I dispose of that asset, if I sell that asset, my capital gains or capital loss is calculated based on the difference between what I get for it and what my basis is. The sort of classic client is the elderly couple who bought their home 40 years ago and has held onto their Procter and Gamble stock for the entire 40 years. They have a very low basis in that house and the very low basis in their Proctor and Gamble stock.
Dan Kesten: The basis adjustment at death eliminates the capital gains tax that their heirs would otherwise pay after inheriting that house and the stock. In other words, when I die, all of my assets take a new income tax basis and the new basis is the fair market value of each individual asset on the date of my death. So if you have a lot of built in gains, you don’t want to sell those assets in the last years of your life.
Dan Kesten: You’re better off holding them if you can afford to until you die and then your spouse or your children can sell those assets tax free. Well, that system works really, really well for 99.9 percent of America right now, because 99.9 percent plus of America is not exposed to estate taxes. You get the benefit of the basis step up without having to file an estate tax return regardless of whether or not you have wealth in excess of the federal exemption amount.

Dan Kesten: So my concern is that if Congress repeals the estate tax, I don’t know what the justification would be for keeping the basis step up around. In other words, I’ve always felt that the two are tied together. Now before I get angry emails, it’s important to acknowledge that the concept of the basis step up is a creature within the income tax sections of the tax code, the internal revenue code.
Dan Kesten: There are separate chapters of the internal revenue code governing the income tax versus the estate and gift tax. So it is true that basis step up a death is an income tax concept. But I think it’s one thing to repeal the estate tax and also repeal the basis step up versus just repealing the estate tax and keeping the basis step up around. I’m not sure there would be a rational explanation to keep the basis step up around if there is no longer in a state tax.
Dan Kesten: The basis step up eliminates a double taxation which would otherwise take place at death if you’re a state paid a state tax on all your assets and then your heirs also had to pay a capital gains tax when they liquidated your assets. So again, I think there’s a little risk to doctors and members of the professional class to be cheering on the sidelines for complete repeal.

Jim Dahle: I think it’s really important to mention this step up in basis that occurs at death because it really is a big deal when it comes to reducing the taxes of any wealth transfer from one generation to another. This is why you don’t want to have your name on the title of your parents’ home.
Jim Dahle: This is why you don’t want to have your name on their brokerage account. Because then when they die it essentially becomes a gift to you and the original basis is preserved. Whereas if you actually inherit it, then you get the step up in basis at death. Is that correct?
Dan Kesten: Jim, we see that question on the blog posts fairly regularly and you are absolutely correct. There seems to be some sort of gut instinct to give mom’s house away a year or two before she passes away or at least to put it in joint names. If there’s a large built in gain in that house and mom is not otherwise exposed to estate taxes, that would be pretty significant blunder. Why not let mom keep title to the house until she passes away so that the executor or personal representative can put the house on the market and sell it completely free of capital gains taxes. It’s a mistake we really don’t want to see people making.

Jim Dahle: A lot of the more advanced estate planning techniques, life insurance trusts, family limited partnerships, etc, seem to take advantage of the idea of gifting some things now before they appreciate. That way the heirs receive the appreciated basis while reducing the size of the estate. Can you talk for a little bit about how gifting can be used to save taxes upon wealth transfer? Whether using a complicated scheme like family LLCs or family limited partnerships or trusts or just in general how that works.
Dan Kesten: So there are really only two ingredients to mitigating estate taxes. One of those ingredients is total return, which is, as you know, is appreciation and income. Let’s start with total returns. So because of the way that the exemption works, as I mentioned earlier, if you make large lifetime wealth transfers while you’re alive and healthy, that consumes some of your $11.4 million exemption.
Dan Kesten: So I often say to clients, consider an unmarried individual with $12.4 million of cash sitting in the bank and he’s not earning any money and he’s not spending any money. He’s stuck at 12.4, it’s not unrealistic scenario, but just bear with me. So he could give a $1 million to his children today and he would have $11.4 million. Has he done anything with respect to estate taxes?

Dan Kesten: Well, if the children likewise put the money in the bank and it remains there, a $1 million gift remains frozen at a million. Let’s see it through. Now the client passes away and we file an estate tax return. On the estate tax return, we acknowledged that the client passed away with just $11.4 million. He started with 12.4 and he gave a million away. So he only has $11.4 million, but he used $1 million of his exemption when he was alive and wealthy. So he only has $10.4 million of exemption remaining and he has a $1 million taxable estate and he owes $400,000 in tax.
Dan Kesten: So when we talk about lifetime wealth transfers as a way to mitigate death taxes, what we’re really talking about is removing the total return from the date of the gift through the date of the client’s death from the reach of the death tax. So let’s say this same client with $12.4 million is investing very successfully. So if he gives away a million dollars just as he did in the last example, but as assets are growing and that million dollars that he gave away would have been $2 million at the time of his death, had he held onto it.
Dan Kesten: Well, it’s that $1 million of appreciation and income and total return on the dollars that he gave away, which will escape the reach of a state tax. So that’s the primary ingredient of mitigating your exposure to a state tax. Making large lifetime transfers or large lifetime gifts removes future appreciation and return from the reach of the estate tax.

Dan Kesten: The other ingredient is actually an income tax concept. Which is that the IRS has agreed that you can give that million dollars not to your children, but to a trust for the benefit of your children. You can structure that trust so that you, the creator of the trust are still responsible for the income taxes associated with the earnings. The way the trustee invest the million dollars, no matter what the ordinary income and capital gains are on that a $1 million, that tax bill can come to you every year.
Dan Kesten: By paying the income tax on the earnings of the wealth that you’ve given away you’re doing two things. You’re compounding the total return on the wealth that you’ve given away because it’s not being leaked out in the form of any income tax drag. At the same time, you are spending down your dollars by paying the tax bill on your children’s earnings and you want to spend that down because all other things being equal, your money is exposed to a state tax when you die.
Dan Kesten: So those are the two real primary ingredients to mitigating your estate taxes. Again, transferring future appreciation away from the reach of estate taxes and in a more sophisticated approach remaining on the hook for the income taxes on those earnings after you’ve given them away.

Jim Dahle: If you add in a complicated structure like an FLP, a family limited partnership or a family limited liability company, an FLLC, there’s another factor you add in there. That’s the fact that what they’re receiving isn’t as valuable because they really don’t have the full use of it for a period of time afterward. So you can gift shares of a family business, for instance, at a lower value essentially than maybe they will really eventually be worth in addition to those two factors. Am I correct?
Dan Kesten: That’s absolutely correct. So these are referred to as valuation discounts and they reflect the reality that I don’t want to be a minority shareholder in my neighbor’s family business. If I were going to offer my nextdoor neighbor to buy 20 percent of his family business knowing that I wouldn’t have any say in how the business is run or even when I would ever get a dividend from that business, I wouldn’t offer to pay him 20 percent of the fair market value of the business.
Dan Kesten: I would demand a discount both because a lack of marketability, meaning I can’t turn around and sell that stock or that partnership interest on the stock exchange and also lack of control. So these valuation discounts can be very powerful for families that own closely held businesses and they’re appropriate. I want my clients to know, however, that the IRS doesn’t love seeing clients artificially pursue these discounts by forming holding companies to hold their brokerage accounts.
Dan Kesten: That’s something that was popular in the 90s and there are still good reasons to do it and viable reasons to do it in some cases. But there’s risk associated with taking marketable assets and wrapping them up in a limited partnership or a limited liability company and saying to the IRS, hey, we just took our $10 million brokerage account and it’s on now only worth $7 million. So valuation discounts are appropriate, but you need to be careful and you need to be well advised.
Jim Dahle: So it’s still appropriate for a small family business or a farm or something like that but maybe not for your brokerage account.
Dan Kesten: That’s exactly right.

Jim Dahle: Well Dan, that’s been a great discussion. We’re going a little bit long here, but I didn’t want to stop it because there was so much good information there. But if listeners want to get in touch with you, they want to hire you other than hunting you down at the White Coat Investor Conference, what is the best way to get in touch with you?

Dan Kesten: So Jim, I think first and foremost they should ask themselves an important question which is, do they live in New York City? You should really hire a local attorney to handle your estate planning work for you. There are a lot of good reasons for that. I’m only licensed in New York and I want to see my clients in person and I want them to come to my office for the will signing.
Dan Kesten: As we mentioned, it’s a little bit different economy here than it is in a lot of other parts of the country. So if you do live here and you’re interested in hiring me, you can reach me at my law firm which is Pryor Cashman, P-R-Y-O-R C-A-S-H-M-A-N. We’re on the internet, my email is [email protected] Kesten is K-E-S-T-E-N and love to hear from you.

Jim Dahle: Thank you so much for coming on the White Coat Investor Podcast Dan.
Dan Kesten: Thanks for having me. I really look forward to seeing you in March.

Jim Dahle: All right, that was great having Daniel on. He chooses straight, that’s what I like about him and I think he’s going to be a great addition at the White Coat Investor Conference. I don’t think I was able to get CME for his talk, but that’s the case with many of the talks. Frankly, a lot of you come into the conference are far more interested in the financial topics than the wellness and burnout topics anyway.

Jim Dahle: So make sure you stop by and listen to his presentation at the White Coat Investor Conference here in a couple of months if you’re going to that. Thanks for also for those of you leaving us a five star review that really does help spread the word, gets this podcast up the rankings so people notice it and find it and also helps of course to tell people directly about the podcast.

Jim Dahle: Frankly, the growth of The White Coat Investor over the years has been probably majority word of mouth. It’s just attendants telling the residents, residents telling their students, students tell them their attendants and all of a sudden there are a lot of us that are being a lot smarter with our money than there used to be. This episode was sponsored by Bob Bhayani and drdisabilityquotes.com. They’re a truly independent provider of disability insurance planning solutions to the medical community nationwide

Jim Dahle: Bob specializes in working with residents and fellows early in their careers to set up sound, financial and especially insurance strategies. Contact him today by email at [email protected] or by calling (973) 771-9100. Also, if you’re interested in that real estate course, that’s whitecoatinvestor.com/rental.
Jim Dahle: You only have until December 15th to enroll in this and then it’s probably going to be six months before they open it up again. So if you’re interested in that, you can get more information at that link and sign up there. Head up, shoulders back, you’ve got this and we can help see you next time in the White Coat Investor Podcast.
Disclaimer: My dad, your host, Dr Dahle, is a practicing emergency physician, blogger, author, and podcaster. He is not licensed accountant, attorney or financial advisor. So this podcast is for your entertainment and information only and should not be considered official personalized financial advice.