Estate Planning, Probate & Elder Law Attorneys

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» Other Presidential Candidates on the Estate Tax

I've posted a bit about the two major candidates for President, and their views on taxation. In the interest of providing a bit more information, I thought it might be helpful to see about the other four people who may appear on your ballot. Here's what their websites say on this issue:

Bob Barr (Libertarian Party)

Tax reform is desperately needed in the United States; but before we can reform the tax code, we must sharply reduce the tax burden on Americans. Meaningful tax reform begins with reining in government spending. Second, we need a tax code that makes taxation fairer and simpler for all citizens.

There are several alternative tax reform strategies. One would be to create a flat income tax, while cutting or eliminating many other levies, such as the estate tax (or “death tax”) and capital gains tax. Another option would be to replace the income tax and payroll taxes with a consumption tax, such as the Fair Tax

Ralph Nader (Independent)

Ralph Nader does not believe that "unearned income" (dividends, interest, capital gains) should be taxed lower than earned income, or work, inasmuch as one involves passive income, including inheritances and windfalls, while the latter involves active effort with a higher proportion of middle and lower income workers relying on and working each day, some under unsafe conditions, for these earnings.

Cynthia McKinney (Green Party) -- note that I couldn't find anything specific about estate tax on her website, but the Green Party's platform states the following:

The accumulation of individual wealth in the U.S. has reached grossly unbalanced proportions. It is clear that we cannot rely on the rich to regulate their profit-making excesses for the good of society through "trickle-down economics." We must take aggressive steps to restore a fair distribution of income. We support tax incentives for businesses that apply fair employee wage distribution standards, and income tax policies that restrict the accumulation of excessive individual wealth.

I would assume that's a vote to keep the estate tax.

Chuck Baldwin (Constitution Party) -- I also couldn't find anything specific on his website, but this is from the Constitution Party's platform:

[I]t is our intention to replace, with a tariff based revenue system supplemented by excise taxes, the current tax system of the U.S. government (including income taxes, payroll taxes, and estate taxes.)

If I missed any other candidates (Wiccan Party?), or if you have a link to more information about these candidates' views, please let me know.

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» Claims and Secured Property in Probate

Previously (here), I have discussed the fact that not all claims against probate estates are created equally. Rather, under Illinois law, some claims have priority over others. For instance, attorney's fees, funeral expenses, and other administrative expenses get paid first (that is, they are first class claims). Most other claims are seventh class claims.

That being said, it's important to realize that secured property is not subject to the above classification system. As two commentators put it*,

Secured collateral that is in the possession of the representative is not a part of the probate estate and does not become a part of the probate estate until the secured lien has been discharged. Once the lien has been discharged, the formerly secured collateral becomes part of the probate estate and is available to other creditors of the estate.

To take an example: John Smith dies with a 200K house as his sole asset, a 100K mortgage on the house, and 200K in additional valid claims. His personal representative must pay off the mortgage first, and then use the remaining 100K equity in the house to satisfy the 200K in additional valid claims.

*See Richard A. Campbell and Mary C. Talarico, "Claims Against the Estate," Chapter 4 in Illinois Estate Administration (IICLE 2003).