Johnson County Estate Planning

Benefit Controlled Trust May Be Answer to Protecting Legacy

“Life is messy sometimes. Divorce, bankruptcies and lawsuits happen. They can potentially wipe out the inheritance you’ve carefully set aside for your loved ones. However, there are many trust options to help keep life from ruining your legacy.”

When beneficiaries receive their inheritance in their own names, a legacy becomes vulnerable to creditors, lawsuits, divorce and a second estate tax when they die. Complicating matters further, if the heir receives means-tested government benefits, their benefits may be lost if they receive a direct inheritance.

There is a solution, explains the article “What a Beneficiary Controlled Trust Can Do to Protect Your Legacy After You Are Gone” from Kiplinger. Having each beneficiary’s inheritance go into their own Beneficiary Controlled Trust can protect your legacy. Properly created and funded, the beneficiary may control, use and enjoy their inheritance with less risk than outright ownership. A Beneficiary Controlled Trust protects loved ones from the ups and downs of life. Divorce, lawsuits, creditor claims, bankruptcy are all unpleasant, but they do happen.

A Spendthrift Trust is used for beneficiaries who cannot be trusted to make good financial decisions, or who have people in their lives who can’t be trusted. It’s like a spigot on a garden hose. The trustee decides when the beneficiary should receive access to assets, how much and when.

In a Beneficiary Controlled Trust, the beneficiary can also be the controlling trustee. The beneficiary has the same level of control as they would with outright ownership. They can make investment decisions. Assets, including real property or investment accounts, are owned by the trust.

After inheritance, the primary beneficiary has the ability to alter the level of control or protection, if they are concerned about upcoming risks. If the risk is particularly strong, for example, a contentious divorce, the primary beneficiary may resign as a trustee and appoint a trusted family member or professional to act as a trustee.

Another trust is a HEMS trust, one limited to providing distributions for the beneficiary’s Health, Education, Maintenance and Support. HEMS trusts are used to avoid estate tax. However, in some states, certain creditors, including divorcing spouses or health care providers, are permitted to pierce the trust and access assets.

If the primary beneficiary of a Beneficiary Controlled Trust wishes to enhance asset protection, they can appoint an independent trustee who serves as the distribution trustee. They may make distributions to the beneficiary at their discretion, which can provide another level of protection. The beneficiary may not wish to giver such broad discretion to an Independent Trustee, as in the case of Brittney Spears. This can be minimized by giving the primary beneficiary the right to remove and replace the Independent Trustee. The beneficiary won’t have direct control over the distributions, but they decide who will manage the trust. The person may not be a related party or subordinate person.

Taxes should always be a consideration when creating trusts. Your estate planning attorney should review goals, concerns, and your unique situation to determine which type of trust works best for you and your family.

Reference: Kiplinger (Sep. 13, 2021) “What a Beneficiary Controlled Trust Can Do to Protect Your Legacy After You Are Gone”

You Need a Buy-Sell Agreement for Your Business

“What happens at your company when a shareholder dies or becomes disabled, or wants to leave? These are just two of the potential scenarios that can be properly addressed with a buy-sell agreement.”

Every business should have a buy-sell agreement to protect the owners, their families, employees and the company. Without a buy-sell agreement or succession plan, any company is at risk, notes a recent article titled “Why does your business need a buy-sell agreement?” from the Philadelphia Business Journal.

Many business owners are reluctant to recognize the possibility of their becoming disabled or dying, so they put off creating a buy sell agreement. However, as we all know, unexpected events happen and it’s always better to be prepared.

A buy-sell agreement offers protection first by establishing what type of triggering events could happen and defining the terms and conditions for how shareholders will enter and exit their ownership of the business.

Companies often have a buy-sell agreement stuck in a file drawer from ten or twenty years ago. Chances are that big changes have taken place in the business and the old agreement is no longer relevant. The day-to-day operations of a business are pressing, and there’s never enough time to get around to it. However, when the unexpected occurs, shareholders are left to negotiate among themselves during the worst possible time.

A well-drafted buy-sell agreement should address the most common events: death, disability, divorce, personal bankruptcy, voluntary termination, retirement and involuntary separation. The agreement should clearly state the percentage and type of ownership, how shares are valued and how any insurance proceeds are to be handled. Without knowledge of the value and terms of payment, there’s no way to provide protection for a triggering event.

Once the value of the company and its shareholders is defined, it may become clear that a business needs to close a valuation gap.

The intentions for the future of the business can also be clarified through this process. Some provisions to consider are:

• How to notify other shareholders, in the event of a voluntary termination.
• Trailer provisions to protect exiting shareholders, in the event of a subsequent liquidity event.
• Discounts on value or extended payment terms for non-compliance of notification provisions.
• Insurance portability provisions to allow existing shareholders to reassign beneficiary designations (once payments owed to the exiting shareholder have been made).

Businesses are dynamic entities with frequent changes, so buy-sell agreements should be reviewed and updated in the same way that an estate plan needs to be updated—every three or four years.

Reference: Philadelphia Business Journal (Sep. 1, 2021) “Why does your business need a buy-sell agreement?”

Can You Make Heirs Behave from the Grave?

“There are many stories of strange conditions in wills and trusts over time. For example, the German poet Heinrich ‘Henry’ Heine died in 1856 and left his estate to his wife, Matilda, on the condition that she remarry, so that ‘there will be at least one man to regret my death’.”

Imposing strange or amusing conditions upon heirs may make for good novels. However, in the real world, terms and conditions are limited by the law. A last will or trust contains language specifying how you want assets to be distributed after your death. There are some conditions and terms included, but others should be left for fiction authors, according to a recent article titled “What Can You Force Your Heirs to Do To Get Your Wealth” from Forbes.

If something is illegal or against public policy, it is not acceptable in a last will. Defining public policy is not as easy as whether something is illegal, but it can be described effectively enough, or clarified by your estate planning lawyer. For example, making a gift of land to the town on the condition that an offensive statue be placed in the middle of the land would be against public policy. Requiring an individual to not marry a specific person or type of person before they can inherit is considered illegal in a last will. Beneficiaries are not to be prevented to live their lives freely through the force of a last will.

Whether a condition is valid also depends upon whether it is a precedent that existed at the date of your death or a condition that occurs after your death. For instance, a requirement for a beneficiary to live in a specific location at the time of your death might be considered valid by a court. However, a condition requiring a spouse to never remarry would not be valid.

Blatantly illegal terms of an inheritance are easy terminated. Leaving money to a known terrorist organization or requiring an heir to commit a crime is an easy no-go. However, sometimes things get murky. Restraints on getting married or selling or transferring property are two of the biggest problems, and often the stories behind the last wills are sad ones.

A condition of not marrying, divorcing, or remarrying is not legal. However, a condition that the beneficiary does not marry outside of the faith has been enforced as a valid last will condition. A complete prohibition of a second marriage by a surviving spouse has been deemed void. It should be noted that certain requests have been permitted, like having a surviving spouse lose payments from a trust when they remarry. As antiquated as it may sound, courts have affirmed the concept of the specific limitation to provide financial support only until the surviving spouse remarries and is, therefore, not void.

A probate court will not void a condition on a bequest automatically, even if it is clearly illegal. The beneficiary, or another interested party, must file with the probate court to have the condition voided. If you fail to do so, when the last will or trust is allowed, it is possible to lose your right to void the condition.

A better way to go: don’t try to control your heir’s behavior from the grave. It creates terrible ill will and may cloud a lifetime of happy memories. If you don’t want to give something to someone, your estate planning attorney will help you create an estate plan, and possibly a trust, to control how your assets are distributed.

Reference: Forbes July 21, 2021 “What Can You Force Your Heirs to Do To Get Your Wealth”

Mega-IRAs Could Be a Source for New Public Policies

“Congressional Democrats are weighing a new type of required distribution from individual retirement accounts, based on the account value instead of age, according to a discussion list of policy ideas obtained by CNBC.”

There are few specifics but owners of “mega” IRA accounts worth more than $5 million might be presented with new withdrawal requirements, if legislation for a new national safety net becomes law. For a very small slice of the American population, IRAs have become million and even billion dollar tax deferred accounts, according to a recent article from CNBC titled “Democrats may change the rules for ‘mega’ IRAs over $5 million."

There are roughly two dozen tax categories being considered by Congress to help raise money for the expansion of the nation’s safety net, which for now is anticipated to have a $3.5 trillion price tag.

The policy concept was spotted on a draft of ideas lawmakers assemble before formally pitching the ideas before their colleagues. Floating game-changing ideas to gauge response is part of today’s legislative process.

The list didn’t include a specific amount but suggests a limit of $5 million. It also included information regarding the number of mega IRA accounts. Apparently, the number of IRA accounts worth more than $5 million has tripled in the past ten years.

In contrast, the average American’s IRA is valued around $39,000.

The idea is part of a broader theme of raising revenue from the wealthy to pay for social needs, like education, address climate change, assist working families with paid leave, childcare and other basic human needs.

It may have been sparked by a recent report that one of the founders of PayPal owns a Roth IRA valued at $5 billion. IRAs were created as a means of encouraging working Americans to save for retirement. However, they have become huge tax shelters for the wealthy.

More than 28,600 taxpayers owned IRAs worth more than $5 million in 2019, but they account for less than a tenth of 1% of the 70 million Americans who have a traditional or Roth IRA. The mega accounts add up to $280 billion, or about 3% of the total $8.6 trillion owed in IRAs.

Limiting the size of tax-deferred retirement accounts isn’t new. Several attempts have been made to cap the amount in IRAs or change distribution rules.

The final legislation may not be known for some time, but one response to this proposal would be to convert traditional IRAs to a Roth. Paying taxes at the time of the conversion, even if done over time, could be useful to eliminate having to pay taxes on the funds, if withdrawal rules change. In addition, there are no Required Minimum Distributions (RMDs) on Roth IRAs, so funds can grow tax free for the life of the owner.

Reference: CNBC (Sep. 8, 2021) “Democrats may change the rules for ‘mega’ IRAs over $5 million”

How Does Probate Work?

“A probate judge is an official of the county court system and a judicial official of the state, who decides civil court cases that involve the probate process.”

Probate is a court-directed process to examine the last will and testament, authorize the executor named in the last will and give the “all clear” to the executor to go ahead and carry out all of the directions in the last will. However, it’s not always that simple—and sometimes, it can get extremely complicated.

A probate judge also oversees cases when there is no last will, explains the article “How Do Probate Judges Administer Estates?” from Yahoo! Finance. If there is no last will, the estate is considered “intestate,” and the court appoints an administrator to manage the estate.

Most probate cases are decided using the laws of the state. The probate judge may also be involved in guardianship and mental competency cases. In some states, the probate court oversees adoption cases instead of a family court. However, the main responsibility of the probate judge is overseeing estates.

Probate includes the process of determining the last will’s validity, ensuring that bills and taxes are paid and property is distributed according to the deceased’s wishes. However, if there is no last will and no family member petitions the court to contest the last will, the probate judge’s involvement in the estate (and the family’s life) becomes far more extensive.

Here’s how it works.

The executor of the estate files the last will with the probate court. The probate court has to be sure there are no objections to the last will, like a possibility that someone may claim that the last will was not knowing and voluntarily made by the decedent. In the most intense cases, the judge may have to declare the need for litigation. However, if there are no objections, the executor is approved. The next step is for the executor to get a tax ID number from the IRS and open an estate bank account.

The executor next notifies all interested parties about the last will. This is done by placing classified ads in local newspapers. All possible heirs must be notified, whether they are mentioned in the last will or not, and if they can be found. Creditors have a specific time period to submit claims against the estate through the probate court.

Inventory of all assets must be done, and a total value assigned to the estate on the date of death. The inventory is filed with the probate court and provided to heirs. This is a lot of work, and the executor must be diligent. It may be necessary to hire professionals to value assets, like real estate. Many people work with an estate planning attorney to ensure that the estate is properly valued.

If the last will is contested, the probate judge reviews evidence and hears arguments. The process can take years, depending on the complexity of the estate. The probate judge issues rulings and opinions.

If there is no last will, the judge appoints an administrator of the estate to conduct the duties of the executor as described above. With no last will, the probate judge invokes the law of intestate succession, which in most states, means that the order of inheritance is based on the relationship between the deceased and the next of kin. If there are estranged family members, they may end up inheriting most of the estate, regardless of their relationship with the decedent.

Having a last will prepared by an experienced estate planning attorney permits you to make the decisions about your property, spares your family from potentially losing everything you have worked to attain and saves your loved one’s time, money and emotional hardship.

Reference: Yahoo! Finance (Aug. 31, 2021) “How Do Probate Judges Administer Estates?”

How to Protect an Estate from a Rotten Son-in-Law

“Whatever the reason, whether your life is a bed of roses or a getting-worse-nightmare, there are things you can do now to insure what you leave will go to who you want. And when. And in what portion or portions.”

If you’ve been working for a while, you have an estate. If you’ve been working for a long time, you may even have a sizable estate, and between your home, insurance and growing retirement funds, your estate may reach the million dollar mark. That’s the good news. But the bad news might be an adult child with a drug or drinking problem, or a child who married a person who doesn’t deserve to inherit any part of your estate. Not to mention an ex-spouse or two. What will happen when you aren’t there to protect your estate?

There are steps to protect your estate and your family members, as described in the recent article “Is your son-in-law a jerk? Armor plate your estate” from Federal News Network.

Don’t overlook beneficiary designations. Most employer-sponsored retirement and savings accounts have beneficiary designations to identify the people you wish to receive these assets when you die. Here’s an important fact to know: the beneficiary designation overrides any language in your last will and testament. If your beneficiary designation on an account names a child but your will gives your estate to your spouse, your child will receive assets in the account, and your spouse will not receive any proceeds from the account.

Don’t try to sell a property for below-market value. The same goes for trying to remove assets from your ownership to qualify for Medicaid to cover long-term care costs. Selling your home to an adult child for $1 will not pass unnoticed. Estate taxes, gift taxes, income taxes and eligibility for government benefits can’t be avoided by this tactic.

A common estate planning mistake is to name specific investments in a will. A will becomes part of the public record when it is probated. Providing details in a will is asking for trouble, especially if a nefarious family member is looking for assets. And if the sale or other disposition of the named asset before your death impacts bequests, your estate may be vulnerable to litigation.

How will you leave real estate assets to heirs? Real estate assets can be problematic and need special consideration. Are you leaving shares to a vacation home or the family home? If kids or their spouses don’t get along, or one person wants to live in the home while others want to sell it, this could cause years of family fights.

Making a bequest to a grandchild instead of to a troubled adult child. Minor children may not legally inherit property, so leaving assets to a grandchild does not avoid giving assets to an adult child. The most likely guardian will be their parent, undoing the attempt to keep assets out of the parent’s control.

Include a residuary clause in a will or trust. Residuary clauses are used to dispose of assets not specifically mentioned in a will or trust. Your estate planning attorney will create the residuary clauses most appropriate for your unique situations.

Prepare for the unexpected. Your estate plan can be designed to address the unexpected. If a primary beneficiary like a daughter or son divorces their spouse, a trust could prevent the ex from gaining access to your assets.

An effective estate plan, prepared with an experienced estate planning attorney, can plan for all of the “what ifs” to protect loved ones after you have passed.

Reference: Federal News Network (Sep. 1, 2021) “Is your son-in-law a jerk? Armor plate your estate”

Prepare for Changes in Tax Laws and Possible Retroactivity

“As we enter into a new era of tax code proposals from the Biden administration, it’s important to be thinking about what those changes may mean when planning for the upcoming tax season and retirement.”

The proposed tax increase on capital gains may be applied to taxpayers with annualized realized gains over $1 million, with those high net families paying a higher tax rate of 39.6%, nearly double the current 20% rate for individuals, explains the article “Capital Gains Strategies to Keep Clients on Track for Retirement” from Wealth Management.com. Unlike previous tax proposals, there is now talk of making these changes retroactive to April 28, 2021.

Congress has historically never affected tax bills on a retroactive basis, but these are uncertain times and Congress is very divided. While fundamental tax and estate planning should continue as the final tax legislation is far from being decided, there are some steps to consider.

First is an accelerating gain realization to a period before the effective date of any legislation. If legislation is made retroactive but the start date is January 1, 2022, this won’t be needed, but could still be helpful.

The second planning strategy is charitable giving with appreciated securities. For families who are philanthropic, making donations with appreciated securities have several benefits. The taxpayer receives an income tax charitable deduction for the value of the security and the capital gain is not realized when the security is transferred to a charity. This strategy also benefits the family in a high tax situation.

Finally, investors may find it best to hold on to investments for extended periods to avoid realizing capital gains.

Retirement planning is being impacted by the discussions happening on Capital Hill as well. The negotiations and research on limiting a step-up in cost basis of an inherited asset after a person’s death is being watched carefully by estate planning attorneys and accountants. The step-up in cost basis often dramatically reduces the capital gains owed by the recipient. If this does happen, estate planning attorneys may need to become more aggressive with planning for gain realization.

If this change does come to pass, increasing fixed income investments in taxable accounts may become more valuable.

What can you do while waiting to see what action Congress takes? Reevaluate your risk profile and consider your retirement budget and cash flow needs. Equally important, check in with your estate planning attorney. While there’s no way to know exactly what the final form of these legislative changes will be, they will have an impact on your estate plan. Make sure you are as prepared as possible, so your estate plan changes can be made in a timely manner.

Reference: Wealth Management.com (Sep. 3, 2021) “Capital Gains Strategies to Keep Clients on Track for Retirement”