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Well, happy new year to all. At the 11th hour Congress decided not to let us fall off the Fiscal Cliff by passing the American Taxpayer Relief Act of 2012. But what does that mean in the world of estate planning? There are a number of things that happened (or didn’t happen). So let’s go through each one.

First, the federal exemption for gift and estate taxes was fixed permanently at $5 Million indexed by inflation, instead of reverting back to $1 Million. As of January 2013, that amount became $5.25 Million. This means that you can transfer the first $5.25 Million tax free, whether it was by gifting to people during your lifetime or to your loved ones upon your death. Of course ‘permanent’ just means until Congress changes it.

What about transfers between spouses? The IRS still looks at this as a special type of transfer. They still have what’s called an unlimited marital deduction, meaning you can transfer all of your estate to your spouse tax free, regardless how large it is! Just remember that now the surviving spouse has all of the assets and will be taxed for anything over the exempted amount when he or she dies. Also remember that this marital deduction is only available to spouses who are U.S. citizens.

The second item, which is sort of attached to the first, is that Congress raised the top tax rate on the estate tax from 35% to 40% on the amount that is greater than the exemption. This is still better than the 55% that it was going to go up to had Congress not acted.

The third item is a thing that the legal and financial world has dubbed ‘portability’ of your estate tax exemption. This is another added benefit for married couples. When the first spouse dies, the surviving spouse can elect to add any unused portion of the deceased spouse’s exemption to their own. This would then allow the surviving spouse to transfer up to $10.5 Million if the deceased spouse did not use any of his or her exemption.

Remember that portability of the deceased spouse is not automatic. The administrator of the deceased spouse’s estate must file an estate tax return for the deceased spouse, even if no tax is due. This return is due nine months after death with a six-month extension allowed. If the administrator doesn’t file the return or misses the deadline, the spouse loses the right to portability. Surviving spouses should file it even if they’re not wealthy today, because who knows what the future holds.

What about making a gift during your lifetime? Not everything is taxed, or counted against your $5 Million exemption. Every person has an annual exclusion. As of January 2013, that amount went up to $14,000. This means that you can literally stand on the street corner and give every person who walks by $14,000 and never have to tell the government about it. Now I don’t necessarily recommend doing that, but you can if you want, without paying any taxes and without telling the IRS. Anything above the $14,000 has to be reported to the IRS. They will keep tabs to see if and when you go over your $5 Million lifetime exemption.

There’s one other thing that I need to remind everyone about. Although the federal estate tax exemption has been locked in at $5 Million, New York State estate tax exemption is only $1 Million. The tax rate varies but averages around 10%-12%. So, for a $5 Million estate there may be no federal tax due, but your heirs might be paying New York up to $500,000 in taxes. New York doesn’t have any gift tax so there are ways to minimize, if not eliminate, the estate tax with proper planning.

For the past couple of months I’ve been talking about the different fiduciaries that are typically named in a Will or a Trust. There’s one that’s more specifically for younger people and it specifically goes in your Last Will and Testament. That’s the choosing of a guardian over your children.This is a very difficult conversation to have with clients. Can you imagine a young couple contemplating a future for their child in which those same parents don’t play a central role? Almost as much as parents pray that their children will outlive them, parents likewise hope that they will be around to help guide and shape their children’s lives long into their adulthood. As a parent of young adults, it has given me a great deal of pride to watch my children grow and mature.

While an uncomfortable conversation to have, it is necessary for parents to consider what will happen to their children in the unlikely event that they don’t see their children into adulthood. While no parent wants to think about it, there is possibly no more important a choice that parents can make than deciding who will raise their children if something were to keep them from doing so themselves. Most people would prefer to control how their assets are distributed at the time of death rather than leave the decision to the courts. How could the decision of who raises your children be of any less import?

When choosing a potential guardian for your children, one of the main considerations that should guide your decision is lifestyle. When I refer to lifestyle, I’m not talking about making sure your child is raised in the lap of luxury with your rich cousin who owns a bank. I’m talking something much more fundamental than that — choose someone that you trust to love and care for your children in the same way that you would do if you were around.

There is no question that this decision will be guided by your own preferences and experiences. Parents need to recognize that one choice isn’t necessarily better than another, but each choice carries with it long term consequences. Just think about this. Would you expect your children’s informative experiences to be the same if they are raised by your divorced, workaholic brother as compared to them being raised by your stay-at-home sister and her husband? Of course not. But your brother may love them and your sister may be abusive to them.

Every person you contemplate as a guardian will have his or her good and bad traits. It’s your job to figure out who strikes the right balance for what your child needs. The decision will (or should) be shaped by the values and philosophies you hold dear. When choosing a potential guardian, just a few things you should think about include: their religious beliefs; their moral values; their educational values; and their societal/political philosophies. All will have a very real and lasting impact on your child’s development, so be sure that the guardian’s values and philosophies are an acceptable match for how you want your child raised.

Now on paper, all this sounds easy. But most of us have limited choices. When considering potential candidates for their children’s guardian, one of the questions that clients often ask is, “Am I limited to choosing a family member?” The answer is absolutely not! Although many turn to brothers, sisters and sometimes even parents as their first choice for guardian, there is nothing to say that trusted friends wouldn’t be an equivalent or even far better selection than a family member. So long as the potential guardians have a real and trusted relationship with a child, I think they should be a valid candidate for the duty.

The simple fact of life is that not every person is a suitable guardian for every child. It’s a case by case decision. Depending on circumstances, it may not be the wisest choice to place a young child with older guardians who are themselves at risk of passing before the child reaches adulthood. It’s a personal choice though, and nothing says that one selection is more appropriate than another. When making the decision, you need to think not only about your child’s circumstances (are they older, younger, special needs, etc.), but you need to consider the circumstances of the individuals that you are considering to make sure they are good fits both long and short term. Just a few issues to consider: are they elderly; divorced; close to your family (geographically and emotionally); suffer from addictions; financially stable; have their own children. All will have an impact on your children, so be sure to think long and hard on your choice.

Now that you’ve gone through the exercise of figuring out who is the best fit for raising your children, what comes next? The obvious answer is to reduce it to writing by having an estate planning attorney draft a Last Will and Testament. While correct, that’s only half of the answer. Yes, you need to ensure that your wishes are reduced to writing to make sure they are given later effect, but even before that’s done, there’s something else you need to do. Talk to the potential guardians! Let them know what you’re thinking and why you’d like to select them. Chances are good that they will be honored to take on the duty, but there’s no guarantee unless you confirm it with them first. The last thing you want to do is name someone as a guardian who doesn’t want or isn’t prepared for the responsibility. Then make sure you follow up with an estate planning attorney and memorialize your decision.