Fundamentals of estate planning
Everyone lives on borrowed time. It is therefore imperative to plan ahead for those whom he/she will leave behind. Genuine caring transcends death. Towards this end, it is important to develop an efficient and sound estate plan.
There are various considerations in developing an estate plan, but each plan should take into account these two primordial objectives: (1) maximizing the value of the estate available for distribution; and (2) effectively disposing of the estate in accordance with the intentions and desires of the property owner.
Tax planning is important to reduce the estate tax due to the government. At present, the estate tax is at six percent of the net estate.
An effective way to reduce the estate tax is to manage the value of the estate. The estate tax is based generally on the fair market value of the estate at the time of death. As certain properties appreciate through time, transferring them to a holding corporation is a sound way to peg their value. The transfer of properties to a corporation can be carried into effect by way of a property-for-share swap which can be considered a tax-free exchange transaction under Section 40(C)(2) of the Tax Code. This is considering that for non-listed corporations, common shares of stocks are valued at book value and preferred shares of stocks are valued at par value for estate tax purposes.
A property can also be transferred to an irrevocable trust for a designated beneficiary. An irrevocable trust is, in essence, a donation subject to a six percent donor’s tax, which is the same rate as the estate tax. The advantage, however, is that the property put in an irrevocable trust will no longer be subject to estate tax. Hence, the increase in the value of the property from the time it is placed in the trust to the time of death will no longer yield estate tax.
A person may also secure life insurance upon his own life and name a third party as an irrevocable beneficiary. The proceeds of such life insurance are not subject to estate tax under Section 85(E) of the Tax Code.
There are also property transfers that can lessen the net taxable estate such as the transfer of property to the government for public use, and the transfer to social welfare, cultural and charitable institutions, provided under Sections 86 and 87 of the Tax Code, respectively.
It is important to note as well that at present, there is an estate tax amnesty program pursuant to Republic Act 11213, as amended by Republic Act 11569, which can be availed only up to 14 June 2023. The estate tax amnesty program offers an opportunity to settle unpaid estate tax liabilities of decedents who died on or before 31 December 2017. The estate tax amnesty shall be equivalent only to six percent of the net estate at the time of death, instead being based on the present fair market value of the properties. Further, the estate tax amnesty program provides a waiver of penalties and interests, and immunity from civil, criminal, and administrative cases under the Tax Code, arising from the late or non-payment of estate tax liabilities.
Sad as it may be, the partition of properties left by a decedent may disrupt the harmony in the family. This is especially true if the decedent left no instructions for the distribution of his/her estate.
Under Section 783 of the Civil Code, a person may control the disposition of his/her properties after death through a last will and testament. A will affords the flexibility to the testator to institute voluntary heirs and assign specific properties to designated heirs. The will can also include certain conditions and terms for the distribution, management, and ownership of the estate of the testator.
In conclusion, it is never too early and never too late for anyone to adopt an estate plan. One should not forget one of the basic reasons for wealth accumulation, no matter how large or small it is — that is love for the family. Let not such wealth be the very reason for the disruption of harmony and love in the family.
Source: Devina Law