After several days of counting ballots, Joe Biden has been declared the winner of the 2020 Presidential election by many major news outlets. Although we await the official certification of the election by each state, an official concession by President Trump, and the outcome of several pending lawsuits–which could take us into December or even January–the 2020 election and its aftermath promise significant changes in how Americans will be taxed. While it is unlikely that every proposal discussed during President-Elect Biden’s campaign will become the law of the land, we can still glean essential details from all the campaign rhetoric to help us prepare to weather these possible changes.
Proposed Policy Adjustments under a Biden Presidency
Here is what we know so far about some of President-Elect Biden’s key proposals that are most relevant to your estate planning:
Estate, Gift, and Generation-Skipping Transfer (GST) Taxes
For 2020, the estate and gift tax exemption is set at $11.58 million (indexed for inflation), with any wealth over that amount taxed at 40 percent as it passes to heirs. This exemption amount is scheduled to be lowered in 2025 to $5 million (also indexed for inflation) unless new legislation is passed before then.
President-Elect Biden suggested during his campaign that he would support legislation that would reduce both the estate and GST tax exemptions to $3.5 million per individual and would lower the lifetime gift tax exemption to $1 million. President-Elect Biden has discussed other proposed legislation, favorably proposed by Senator Bernie Sanders, that aims to place annual, aggregate donor limits on gifts to certain types of entities such as irrevocable life insurance trusts and certain pass-through entities such as family limited partnerships.
In addition to reduced transfer tax exemption amounts, several Democratic tax reform proposals have suggested returning estate tax rates to historical norms. What does that mean? In the 1940s, the top estate tax rate was 77 percent, and under 2001 federal tax law, it was as high as 45-55 percent. As a result, we may well see an upward adjustment in the estate and gift tax rates.
Capital Gains Taxes
Our current law taxes capital gains as regular income if those gains are realized on property held for less than one year. For long-term capital gains (gains on property held for a year or longer), there is a graduated tax rate depending upon the tax filer’s income level (0 percent, 15 percent, or 20 percent). For individuals and couples who earn more than $200,000 and $250,000 per year respectively in net investment income, there is an additional 3.8 percent surtax added to their capital gains tax rate.
The current law also allows for a step-up in basis of appreciated property if the property is held until the owner dies. This allows for inherited property to be sold or liquidated shortly after the owner’s death with little to no capital gains taxes assessed on the sale of the property.
Today’s law also allows for like-kind exchanges on appreciated property such as artwork and rental properties. This allows people to reinvest the gains that they earn on appreciated property into similar types of property without ever having to pay capital gains taxes when the property is sold. If the individual keeps making such like-kind exchanges on appreciated property until the individual’s death, the capital gains built up in that property will be erased by the basis step-up rules.
Proposed changes under a Biden presidency would either (1) eliminate the step-up basis rule for inherited property and impose a carryover basis rule for inherited property or (2) impose recognition of gain on property at the owner’s death. Additionally, the Biden tax plan proposes eliminating like-kind exchanges and imposing a 39.6 percent long-term capital gains tax rate on individuals earning more than $1 million per year. And if the 3.8 percent surtax on net investment income remains in place, the effective federal tax rate on long-term capital gains could exceed 43 percent.
If these changes are implemented along with the changes to the estate tax laws discussed above, many estates could see significant tax bills at the death of the estate owner.
What to Do in the Meantime
Although it may be too early to know exactly what the tax laws will look like in 2021, we can still take some concrete steps to prepare while we wait for answers. Tax issues, while certainly important, should not overshadow the need to get your affairs in order in case of an untimely death or disability. If it has been some time since you reviewed your estate planning documents such as wills, trusts, powers of attorney, and healthcare directives, now is a great time to do so. Reviewing these important aspects of your estate planning can go a long way toward creating peace and security for you and your loved ones in these uncertain times.
We Are Here to Help
No one knows for sure what the future holds for our country. However, what is certain is that we will continue to monitor the latest tax law developments closely and keep you updated as they unfold. In the meantime, if you have any questions or concerns, please do not hesitate to contact us. We are here for you.
Newsletter Category: Client Focused Newsletter
Protecting Your Significant Other’s Future
October is a popular month for couples to tie the knot in the United States. While wedding planning most often includes tuxedos, dresses, rehearsal dinners, and guest lists, an often overlooked part of pending nuptials is estate planning.
For young couples beginning a life together and getting married for the first time, estate planning may not be a terribly complicated endeavor. With minimal property and savings, simple wills, financial powers of attorney, and healthcare directives may be sufficient planning for the first years of marriage.
The age at which couples are getting married for the first time continues to creep upward, however. It is therefore common for individuals to accumulate significant amounts of property, savings, and investments during their single years. When couples with property beyond the most simple items marry, estate planning becomes much more urgent. It is even more crucial when children are born into the marriage or when entering a second or third marriage.
If you are considering marriage or have already tied the knot, reviewing the following information can help you tackle the critical task of planning for the management and distribution of your property should you become unable to manage your affairs or die sooner than you expect.
Challenge Your Assumptions
An all too common mistake that married couples make when approaching estate planning is to assume that their spouses will see things the same way they do. The following questions should be asked of each spouse:
How do you feel about the necessity of purchasing and maintaining life insurance?
Do you feel that the other could handle the family finances on their own if either of you were to die or become unable to manage your affairs?
Who should care and raise your minor children if you die?
To what extent should the money and property left to each other be protected from future creditors or new spouses?
Who is best prepared to make end-of-life decisions for you should you become critically ill and unable to communicate your wishes?
Do you expect that all of your wealth should be left to your spouse?
Do you want to leave some of your money or property to aging parents, children from another marriage, or to a charity or other cause that is important to you?
How should your property be left to your spouse or your children and grandchildren? Should these individuals inherit the money and property outright (no strings attached), or should the inheritance be left to your spouse and loved ones in trust (with specific instructions as to when and how the inheritance is to be used)?
The answers to these questions regularly surprise couples. If you are unsure of how you or your spouse would answer these questions, now is a good time to discuss them. Couples who communicate and challenge their assumptions will be far better prepared to successfully complete their estate plan.
Joint or Separate Estate Plans
The decision to jointly engage an attorney to assist you with your estate plan may not be as simple as it would seem at first blush. Depending upon your circumstances, it may be advisable for a couple to engage separate legal counsel to assist with the estate planning process. If any of the following circumstances apply to you, you should give serious thought to hiring separate counsel for your estate planning:
Do you or your spouse have children from a prior marriage or relationship? If yes, is there any tension between you and your spouse when discussing how you would want the accounts and property divided upon the death of one or both of you?
Did one of you bring far more money or property into the marriage?
Is there anything in your estate plan that you want to keep hidden from your spouse (for example, a child from outside the marriage that you do not want to reveal)?
Note: Honesty in marriage might well be the best policy in the long run.
Do you and your spouse have very different ideas about philanthropic goals in your estate planning?
Have you and your spouse entered into a prenuptial or postnuptial agreement?
If you have a prenuptial or postnuptial agreement, do you now want to change the terms of that agreement through an amendment or through your estate plan?
There may be other reasons to seek separate counsel in estate planning. A good rule of thumb is that if there are aspects of your financial and family relationship that will likely breed contention and misunderstanding between you and your spouse, you should consider using separate counsel to help negotiate and resolve the legal and estate planning issues that intersect with these problem areas.
On the other hand, for those who are willing to communicate and resolve the differences discussed above, it may be possible to jointly engage legal counsel to assist with your estate plan. One of the advantages of jointly hiring legal counsel is that the attorney can act in some ways as a mediator and educator, helping you identify and craft creative solutions to challenges that may arise during the estate planning process. Additionally, jointly hiring legal counsel tends to be a less expensive solution and communication tends to flow much more freely when fewer individuals are involved.
Elective Share Laws
It is important to understand that even if you do separate estate planning with your spouse, the United States has elective share laws designed to ensure that a married individual cannot completely disinherit a spouse or minor child from another marriage. The reason for these types of laws is that traditionally, lawmakers felt that these family relationships deserved protection from financial ruin by individuals who perhaps would unwittingly or unwisely attempt to disinherit a spouse or child dependent upon that individual for support.
These elective share laws are designed to allow a disinherited spouse or child who is still dependent upon the deceased individual to legally claim a percentage share of the individual’s accounts and property regardless of what the will or trust provides.
If you have agreed as a couple to leave your entire estate to someone other than the surviving spouse, you will likely need to sign a prenuptial or postnuptial agreement in which the disinherited spouse waives elective share rights. Such a waiver must meet certain requirements to be valid, which can vary by state. For example, most state laws require that the disinherited spouse must have been represented by independent legal counsel when negotiating the waiver.
Unmarried Couples
Marriage today is less common than it was a few decades ago, with more couples choosing to live together without the legal consequences of marriage. If you find yourself in such a relationship and nevertheless feel committed to your partner, you may be in even greater need of a carefully crafted estate plan, either together with your partner or on your own, depending upon your goals.
In nearly every state, the default laws (intestacy laws) that govern how your property is to be managed if you die without a valid will or trust or are unable to manage your affairs typically do not allow an unmarried partner to receive your property. To ensure that your property passes to your partner, certain legal steps must be taken:
Jointly titling property (such as bank accounts and real estate) with your partner so that it passes to the survivor automatically at the deceased partner’s death
Naming your partner as the payable-on-death or transfer-on-death beneficiary of certain financial accounts
Naming your partner as the beneficiary on your IRA, 401(k), 403(b), or other retirement plan
Drafting a will or trust and naming your partner as a beneficiary
Naming your partner as the beneficiary on a life insurance policy
Each of these methods of leaving property to your partner has pros and cons. For instance, jointly titling your home with your partner may be an easy way to ensure that your partner will inherit the home that you share when you die. However, if you and your partner split, your former partner now jointly owns that property and can force the sale of the property to liquidate their share. Additionally, there may be gift tax consequences to adding a partner to the title of your banking or investment accounts that could later affect you. Even worse, jointly titling your property with a partner can subject it to your partner’s lawsuits or creditor claims in the future even though your intent was merely to allow your partner to inherit that property upon your death.
You should also consider planning for your potential incapacity and whether your significant other will be your designated agent (decision maker) by drafting documents that address financial or healthcare matters:
A financial power of attorney can name your partner as the trusted individual to make financial decisions for you should you become unable to manage your own affairs
A healthcare power of attorney and living will (also called an advance healthcare directive) can name your partner as your medical decision maker should you be unable to make or communicate your medical decisions for yourself
Estate Planning When Your Marriage Is on the Rocks
Sadly, many marriages ultimately end in divorce. If in the process of divorcing, it is important to consider your current estate planning implications should something suddenly happen to you. Some decisions that you might want to change immediately include the following:
The person named as your medical decision maker. Choosing a different decision maker can usually be done at any time. Most people would not want their soon-to-be-ex in charge of making life and death decisions on their behalf.
The person appointed to make financial decisions on your behalf. Depending upon the type of financial power of attorney that has been prepared, your ex might be authorized to act on your behalf only when you are no longer capable of handling your affairs (a springing power of attorney)—or your ex might be authorized to act on your behalf now (an immediate power of attorney).
The guardian of your minor children from a prior relationship or marriage if you no longer want your soon-to-be ex-spouse to be the guardian.
The person named in your will as personal representative or trustee of your trust (if you have a separate trust from your spouse).
However, there are some things that you may not be able to change until after the divorce is finalized. For example, when a divorce case is pending in court, the couple is legally prevented from changing the following:
Legal title to bank accounts, real estate, and other types of investments
Beneficiary of a will or trust
Beneficiary designations on retirement accounts
Beneficiary designations on life insurance
Ownership of personal property such as vehicles, art, furnishings, etc.
Once a divorce has become final and the property division is memorialized in the divorce decree you have the right (and should not delay) to revise your estate plan in whatever manner you wish, keeping in mind any requirements imposed by the divorce decree, elective share laws for child support, or continuing spousal support obligations.
As you can see, obtaining solid legal estate planning counsel when you have a significant other—whether it is a spouse or partner—or minor children can be critically important. Without careful planning, you are almost guaranteeing that your loved ones will experience frustration, expense, and delays when it comes to the management and distribution of your property if something happens to you. Conversely, a carefully crafted estate plan can provide significant peace of mind for you, your significant other, and your children for years to come. Call our office today for a virtual or in-person consultation to discuss how we can help you with your estate planning goals.
Protect Your Family from Lawsuits with a Domestic Asset Protection Trust
Conversations with family, friends, and colleagues can sometimes wander into the topic of lawsuits, divorces, bankruptcies, and other threats that put one’s property at risk of loss to a creditor. Such conversations often leave people shaking their heads, asking what the world is coming to, and feeling vulnerable and frustrated. However, an important tool has become increasingly available to even those of modest means to protect their property from such threats at a reasonable cost and with relatively few hoops to jump through.
The Domestic Asset Protection Trust
A domestic asset protection trust (DAPT) is a legal structure into which you (in your role as the grantor or trustmaker) transfer your accounts and property such as your home, cash, stocks, or other investments. Once transferred into the DAPT, the property is legally protected from future lawsuits, divorcing spouses, bankruptcies or creditors, and similar threats. Although you have transferred these accounts and property to the trust, you can continue to enjoy the benefit of this property in the DAPT with minor limitations.
DAPTs work on the legal principle that someone cannot take away from you something that you no longer own. When you transfer ownership of your property to a DAPT, you are actually making a gift of it to the trustee (the person or entity you have chosen to manage, invest, and use the accounts and property) on behalf of the irrevocable trust. The trustee is then under a legal obligation to use this property for your benefit, or for the benefit of those you have named in the trust.
How a DAPT Works
When you create a DAPT, you sign a trust document and permanently gift some of your property into the trust. The trust is irrevocable, meaning you cannot change the trust agreement (the document that creates the trust and establishes the rules that control the trust). The trustee can make distributions to you as the grantor, thereby allowing you to continue enjoying some benefits of the property in the trust. However, the trustee in most cases needs to be an independent trustee (someone who is not related or subordinate to you or any other beneficiary and will not inherit anything from the trust) in order to preserve the asset protection properties of the trust. Still, many states allow for a grantor to be a co-trustee and exercise authority with respect to the investment decisions of the trust.
Which States Have DAPT Laws?
Currently, the following states have legislation that authorizes the creation of a DAPT: Alaska, Connecticut, Delaware, Hawaii, Indiana, Michigan, Mississippi, Missouri, Nevada, New Hampshire, Ohio, Oklahoma, Rhode Island, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming.
It is important to remember that DAPT laws can vary significantly by state. Residency requirements of the grantor or trustee of a DAPT vary from state to state, as does the required connection of the grantor with the DAPT state. In some instances you can live in one state but have a DAPT in a different state. Some DAPT laws are better than others, and their effectiveness may depend upon the location of the property that you plan to gift into the trust. Given these considerations, it is critical that you speak with an experienced attorney when setting up a DAPT. Key differences in state law that can significantly impact the effectiveness of a DAPT include the following:
how a DAPT must be set up
who can serve as the trustee
how much of your property can be placed in the trust
which creditors will be blocked from reaching the trust property
what additional powers you, as the grantor, can exercise over the trust
how much time must pass before the property placed in a DAPT is protected from creditors
What Kind of Creditor Protection Does a DAPT Provide?
In general, a DAPT will allow you to shield accounts or property owned by the DAPT from any creditor claims that arise after the DAPT is funded and after any applicable time periods or notice requirements imposed by state law have been met. In many states, this protection can even include future claims of a current or future spouse, child, or creditor. It is important that you consult an experienced attorney regarding the protections your state’s DAPT statutes offer, as these can vary by state.
Despite the protection offered by a DAPT, some creditors will be able to reach the property owned by the DAPT regardless of which state law you use. Currently, no state’s DAPT laws allow a DAPT to be used to
spend down or qualify a grantor or the grantor’s spouse for Medicaid eligibility;
defeat state or federal reimbursement claims or rights of recovery for Medicaid benefits paid to the grantor or the grantor’s spouse; or
defeat creditor claims if property is transferred to a DAPT with the intent to prevent, hinder, or delay a known or present creditor from reaching the property.
Most states’ DAPT laws also provide the following exceptions to the creditor protections:
taxes (state and federal tax claims must still be paid from trust assets)
family support obligations such as alimony and spousal support (state laws differ significantly on this topic)
medical bills of a beneficiary (certain states allow access to the trust property to pay these medical bills)
Who Is Likely to Need a DAPT?
Not everyone will need a DAPT because not all people face the same kinds of risks. However, there are certain professions and circumstances for which you may want to consider using a DAPT as part of your estate planning.
High-risk occupations. Lawsuits are increasingly common against those in certain professions, such as doctors, accountants, lawyers, real estate developers, builders, architects, and business executives. Creating a DAPT to protect a portion of your assets can be an effective shield against risks associated with lawsuits if you are in one of these occupations.
Owning a business. Owning a business can put you at a higher risk of lawsuits. Using a DAPT can protect your home and other personal property against claims brought against your business.
Personal injury and accidents. Unfortunately, accidents happen to everyone. Moreover, it is common today for even innocent accidents to lead to litigation and potential loss of personal wealth. A tool such as a DAPT can be a critical part of protecting your property for your family both now and in the future.
Deciding If a DAPT Is Right for You
Deciding whether to use a DAPT should not be undertaken without good legal advice. The following factors, among others, should be carefully considered with the help of a qualified estate planning attorney:
How much of your property do you want to place in the DAPT?
What kind of access to the trust accounts or property will you need in the future?
Who will serve as the independent trustee responsible for making distributions to you?
Who, besides you, will be a beneficiary of the DAPT?
In which state will you form the DAPT?
What types of creditors are you most concerned about, and do the relevant state’s DAPT laws protect you against such creditors?
Once you have answered these questions, you will have a much better sense of whether a DAPT is a tool that will work for you. If you have additional questions about DAPTs, please give us a call. We would love to visit with you either in person or virtually.
Strike While the Rates Are Low: Low Interest Rate Planning Strategies for Passing on Your Wealth
COVID-19 has deeply impacted the economy in the United States and will likely continue to do so for some time. While most would agree that this pandemic is not a positive development, there are nevertheless some silver linings. One such silver lining is that certain powerful estate planning strategies have become much more attractive and feasible based on the current low interest rate environment. If you have a relatively large estate (over $10 million individually or $20 million as a married couple), you may want to talk with your estate planning attorney about the following planning strategies.
1. A Grantor Retained Annuity Trust (GRAT) is a tool that can be created by an experienced estate planning attorney to transfer significant wealth at a reduced transfer tax cost. This strategy requires a grantor (the person creating the trust) to transfer accounts or property into a carefully drafted irrevocable trust. The trust is designed to pay the grantor a stream of income at least annually and over a specific term of years. At the end of the specified term, the payments end and any property left in the trust not paid to the grantor is transferred (gift tax-free) to a third-party remainder beneficiary. This beneficiary is usually a child or descendant of the grantor.
The goal of a GRAT is for the assets in the trust to grow faster (at a higher interest rate) than the low interest rate published by the Internal Revenue Service (IRS), also known as the Section 7520 rate, used to calculate the present value of the payments made back to the grantor. If this occurs, the accounts or property remaining in the GRAT are transferred to the remainder beneficiaries free of gift taxes.
The following factors can impact the effectiveness of a GRAT:
The health of the grantor and whether the grantor can be expected to live beyond the GRAT term
The interest rate (Section 7520 rate) for the month in which the accounts or property are transferred to the GRAT
The nature of the accounts or property being contributed to the trust and their growth potential
The remaining lifetime gift tax exclusion amount available to the grantor
It is also important to note that the creation of a GRAT will require the filing of a gift tax return to report the gift. With deliberate planning, however, the amount of the gift to be reported can be negligible.
2. A Charitable Lead Trust (CLT) can also offer significant tax savings if you intend to make charitable giving a part of your estate plan and legacy. This is particularly true in today’s low interest rate environment. Similar to a GRAT, a CLT is an irrevocable trust that makes payments out of the trust to a beneficiary (a qualifying charity) over a specified period and is tied to the IRS Section 7520 rate. The period can be a set number of years or for the lifetime of the grantor. Unlike a GRAT, however, a CLT names a charity as the recipient of the annual payments over the trust term. Upon completion of the trust term and payments, the accounts and property remaining in the trust pass to chosen beneficiaries (often children or descendants) free of gift and estate tax.
The value of the gift reported on the gift tax return for the year in which the gift was made is calculated as the difference between the amount of the initial gift and the present interest of the sum of all of the payments payable to the charity. Because that present interest value is calculated using the currently low Section 7520 rate, the aim is for the money and property in the CLT to grow at a higher rate, thus allowing more of the growth to be transferred tax-free to remainder beneficiaries at the end of the trust term. In addition, and depending upon how it is structured, a CLT can provide valuable income tax deductions during the grantor’s lifetime.
It is important to remember that the payments to the charity must be made each year regardless of the performance of the trust assets. Poor investment performance can result in the need to use trust principal to cover the required charitable payments.
3. Intrafamily loans are another often overlooked strategy to transfer additional wealth to family members without unnecessarily using up your gift tax and estate tax exemption amounts. These kinds of loans can be an excellent way to help family members recover from low credit scores or eliminate certain high interest commercial home loans, consumer debt, business loans, or education loans, all while keeping interest payments within the family rather than enriching commercial lenders.
In a low interest rate environment, you could loan a family member money using the Applicable Federal Rate (AFR) as the interest rate over the term of the loan. The loaned money could then be invested by the borrower in assets that are likely to grow faster than the AFR built into the loan. The difference between the AFR payable to the lender and the realized rate of growth of the invested loan proceeds would accrue to the benefit of the borrower and outside of your estate (leaving less to be taxed upon your death). Thus, you can indirectly transfer this growth to your family members without the need to report the “transferred” amount as a gift to the IRS.
As a reminder, even though these are intrafamily loans, this does not mean that they can be informal. Such loans must be properly documented with executed promissory notes and, where appropriate, secured with collateral as if they were arm’s-length transactions so that the IRS cannot reclassify all or part of the loan as a gift.
There are several other strategies beyond those discussed that can help you take advantage of these historically low interest rates. Now is a great time to give us a call so we can review strategies for taking advantage of low interest rates. Doing so can maximize your wealth and the wealth of succeeding generations, even in these economically challenging times. We are available for in-person or virtual meetings, as you prefer.
Preparing Your Beneficiaries to Receive Their Inheritance
When you hire an estate planning attorney, you are often looking for help with preparing your accounts and property to ultimately pass smoothly and safely to your loved ones. This is a key component of estate planning. An experienced estate planning attorney will put much thought and effort into ensuring that an appropriate estate plan is created using a variety of legal documents including wills, trusts, powers of attorney, and health care directives. These important tools can ensure that what you own ends up in the right hands, at the right time, and with as little cost and delay as possible.
Prepare beneficiaries to receive assets. An often-overlooked aspect of estate planning, however, is preparing beneficiaries to receive money and property. With all of the thought that goes into making sure taxes are minimized, probate is avoided, and accounts and property are protected, few clients give sufficient thought as to whether their beneficiaries have been adequately prepared to suddenly receive large amounts of cash or manage property. Working through the following questions with your beneficiaries can pay huge dividends by ensuring that they are prepared to receive your accounts and property.
Identify successors for a family business. If a family business makes up a large portion of your family’s wealth, have you identified who will continue to run the business if you become incapacitated or suddenly pass away? Will your successor be a family member who has been working in the business, and is this person fully prepared to take over your role? If a family member will take over, does the person understand the extent to which they will manage the business for the benefit of other family members? Or does the successor have expectations about the financial rewards of participating in the business that differ from those of the rest of the family? These questions can cause a great deal of discord within a family if left unanswered.
Consider complicated assets. Perhaps the wealth of your estate is made up of a complicated portfolio of stocks, bonds, cash, and investment accounts. If that is the case, do your beneficiaries understand the basics of investing with these types of accounts? Do they understand the tax implications? Are your beneficiaries used to taking advice from attorneys, financial advisers, and tax professionals, which will allow them to achieve the most benefits from the accounts left to them? Or do your beneficiaries consider such advice needless, expensive, or untrustworthy, and will such attitudes come back to haunt them down the road?
Discuss the challenges of co-owning real estate. If you have a large amount of real estate, farmland, or commercial property or rentals, have your beneficiaries been taught how to manage such properties? Will these properties be passed on to beneficiaries through a trust or through a business entity such as a limited liability company or family limited partnership? If an entity is being used, how has the management structure been set up? Do all beneficiaries understand their roles within the management structure? What if one of the beneficiaries no longer wants to be in a partnership with his or her siblings? Is there a clear path for the beneficiary’s exit from such an arrangement that is fair to both the departing beneficiary and the remaining beneficiaries? Is that exit spelled out clearly in an operating, partnership, or other type of agreement for later reference by your beneficiaries?
Even something as seemingly innocuous as passing on a family vacation property to adult children can pose a significant risk of rekindling old sibling rivalries. Have you and your attorney met with the beneficiaries, either as a group or individually, to make sure your goals and hopes are clear with regard to the property being left to them? What do you hope your beneficiaries will do with the property you leave to them? Have you asked them whether they even want the property, or in what manner they would like to receive it? Many parents have been completely surprised at their children’s responses to these questions.
Consider asset protection. Parents sometimes think that their children are not at all concerned about asset protection and believe their children would be upset if they were left anything with “strings attached” or conditions on how to use the money or property. Imagine the parents’ surprise when the children share their reasons for why receiving an inheritance outright would be a disaster. Parents are not always aware of the marital or financial challenges their children may be facing that have the potential to lead to a significant, if not total, loss of their inheritance.
Gift today rather than at death. In many cases, it makes sense for parents, during their lifetime, to give their children a portion of the accounts and property that they ultimately want to leave them at death so that the parents can observe how their children will manage and use the property. In some cases, parents have learned a great deal about how their children are likely to handle even larger infusions of cash or property from an inheritance after they are gone. On a more positive note, giving children a substantial amount of their inheritance prior to death can provide a valuable opportunity for parents to mentor their children in the appropriate use and management of the accounts and property, preparing them for the additional accounts and property earmarked for them at the parents’ passing.
We are here to help. Preparing your beneficiaries to receive money and property can in many ways be an even greater challenge than preparing your money and property for your beneficiaries. Nevertheless, putting sufficient effort into such an undertaking has the potential to pay huge dividends by helping to ensure the money and property you have spent your life accumulating will be used to truly benefit your loved ones in the way that would be most satisfying to you. If you are uncertain about where you should start, please reach out to us. We have significant experience helping our clients determine the right questions to ask to begin this important process. We are here to help—call today to set up a virtual or in-person meeting.
Correction to June 2020 Client Newsletter
In our efforts to quickly provide you with information about new legislation (the CARES Act and its impact on the new SECURE Act), we incorrectly stated the RMD rollover rule in our last newsletter in the section addressing required minimum distributions as follows: “If you have already taken an RMD for 2020, you are not allowed to repay it into your retirement plan, but you are permitted to roll it over into a new IRA within 60 days of the distribution, allowing you to avoid paying income tax on the RMD.”
Here is the rule correctly stated, with some additional explanation:
Under the previous tax law, an RMD you have taken cannot be rolled back into an IRA unless this is done within 60 days after the distribution, and a rollover from one IRA to another IRA (or from one Roth IRA to another Roth IRA) can be done only one time per year (365 days). Under the CARES Act, if you had already taken an RMD prior to the passage of the new law, you are allowed to roll it over into the original account within 60 days, and this time limit was extended by IRS Notice 2020-23 for distributions—including RMDs—taken between February 1st and May 15th if the rollover occurs by July 15th. If you took an RMD in January, it may not be returned unless the IRS provides additional relief.
Although the once-per-year IRA rollover rule is still in effect, if you have already used your IRA rollover, you are permitted to do a rollover to a non-IRA retirement account such as a 401(k). The once-per-year rule does not apply to RMDs taken from a 401(k) or to Roth conversions.
Our sincerest apologies for the misstatement of the new, temporary rule.
Retirement Account Basics for 2020
The COVID-19 pandemic has led to volatile markets, and your retirement account may have a much smaller balance than only a few short months ago. In response to the economic fallout stemming from the pandemic, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which was signed into law on March 27, 2020. The CARES Act was primarily aimed at providing quick and substantial relief to individuals and businesses affected by the economic shutdown in response to the spread of COVID-19. Several of the relief measures can provide significant peace of mind, as they provide you with the option to access some of the funds in your retirement accounts without the usual penalties if you have been negatively affected by COVID-19. In addition, the new legislation contains other provisions that may lower your tax bill for 2020.
Early Distributions. Under the CARES Act, the 10% early distribution penalty tax that would otherwise apply to the majority of distributions made before a participant turns age 59 ½ is waived for “coronavirus-related distributions” (CRD) made at any time during 2020 from qualified retirement plans, such as IRAs, 401(k)s, 403(a) and (b) plans, and 457 plans, for distributions of up to $100,000.
A CRD is a distribution from an eligible retirement plan made during 2020 to a qualifying individual who is diagnosed with coronavirus, or whose spouse or dependent has been diagnosed with it, or who has experienced adverse financial consequences from a coronavirus-related quarantine, furlough, layoff, work reduction, business closure or reduction in hours (for business owners) or an inability to work due to lack of child care related to coronavirus. The distributions will be subject to income tax, but if you qualify, you may opt to spread the payments evenly over three years rather than having to pay it all in 2020. You may also recontribute the distributed funds to the retirement plan or another retirement plan (with an exception for 457 plan distributions), by a single rollover or multiple rollovers, within three years of the date of the distribution regardless of any contribution limit established by the plan.
Loans. During the 180-day period from the date of enactment of the CARES Act, plans can increase their loan limits to the lesser of $100,000 or 100% of the participant’s vested account balance for qualified individuals, up from the previous limits of $50,000 or 50% (note that loans are not permitted from IRAs) for participants adversely affected by coronavirus as discussed above. In addition, qualified individuals with an existing loan from a retirement plan that is due to be repaid by December 31, 2020, can delay repayment by one year. Later repayments will be adjusted to reflect the delayed due date plus interest accruing during the delay. The one-year period of delay in repayment is disregarded in determining the maximum five-year loan period.
Required Minimum Distributions. If you are a participant in a 401(k), 403(a) or (b) plan, a 457, or an IRA (not a defined benefit plan), the CARES Act waives required minimum distributions (RMDs) for the calendar year 2020, meaning that if you do not need the distribution, you can leave the funds in your account, avoiding any income tax that would be due if you took a distribution.[1] The CARES Act waiver also applies to RMDs for retirees who reached age 70 ½ in 2019 but deferred taking an RMD in 2019 until April 1, 2020. Normally, retirees in this category would also have to take a second RMD for 2020 by December 31, 2020, but this RMD is waived as well. If you have already taken an RMD for 2020, you are not allowed to repay it into your retirement plan, but you are permitted to roll it over into a new IRA within 60 days of the distribution, allowing you to avoid paying income tax on the RMD.
The waiver is also applicable to designated beneficiaries who have inherited retirement accounts. Further, 2020 is not counted for purposes of the post-death payout “five-year rule” applicable to non-designated beneficiaries[2] when the owner died before his or her own required beginning date.
However, the CARES Act has no impact on the new 10-year payout rule required by the SECURE Act, which precludes most non-spousal beneficiaries from stretching their distributions over their lifetime, as 2020 is the first year that non-eligible designated beneficiaries[3] would be subject to that rule when they inherit a retirement account. Because the 10-year payout does not start until the year after the year in which the account owner died, 2021 counts as year one rather than 2020.
Note: The CARES Act does not affect your ability, if you are 70 ½ years old or older, to make an annual qualified charitable distribution (QCD) of up to $100,000 from your IRA directly to a qualified charity in 2020 without counting the distribution as taxable income. However, the suspension of RMDs may reduce your incentive for doing so because the distribution will not offset the RMD, thus enabling you to avoid taxable income. However, a QCD will reduce your taxable IRA balance, so it will still provide a tax benefit to you. Further, under the CARES Act, for 2020, individuals who itemize their deductions can elect to deduct up to 100% (up from 60%) of their adjusted gross income for cash charitable contributions, so if you choose to take a cash distribution from your IRA and contribute that cash to a qualified charity, you can potentially completely offset the tax attributable to the distribution using the charitable deduction.
Review beneficiary designations. Now is also a great time to reach out to your financial advisor to review your beneficiary designations. As you know, life circumstances can change very quickly. If a marriage, death, or divorce has occurred since you last reviewed your beneficiary designations, you should give some thought to whether they are still consistent with your estate planning objectives. It would be unfortunate if your retirement funds went to an ex-spouse or someone else you no longer want to benefit. In addition, alternate beneficiaries should be named in case the primary beneficiary passes away before inheriting the account.
If a trust is the beneficiary of your retirement account, it is crucial for us to meet to review your estate plan. Before the SECURE Act was passed, we may have included “conduit” provisions in your trust so that the trust would qualify as a designated beneficiary of a retirement account, allowing the RMDs to pass through to the trust’s primary beneficiary for their individual life expectancy. Now, conduit trusts are ineffective after ten years, at which point the retirement account balances must be paid directly to the trust’s beneficiaries, which may substantially increase the income taxes they owe and make the entire amount available to claims by their creditors or divorcing spouses. Needless to say, if your estate plan includes this type of trust, it may no longer achieve your goals.
We Can Help
We have all been affected by COVID-19 in one way or another, but we want to let you know that we are available to help. If you would like to discuss how to best include your retirement account, which may be one of the largest assets you own, into your estate plan or have any other estate planning concerns, please give us a call. Our goal is to make sure that you have the best estate plan in place so you can gain peace of mind from knowing that you and your loved ones are secure, both now and in the future. We are happy to meet with you by video conference or by phone if you prefer.
[1] Under the new SECURE Act, effective January 1, 2020, retirees are typically required to take an RMD from their plan upon reaching age 72.
[2] The plan participant’s estate, a charity, or a trust that does not qualify as a see-through trust.
[3] Beneficiaries who do not fall within one of five categories (surviving spouse, minor child of the participant, disabled beneficiary, chronically ill individuals, beneficiaries less than 10 years younger than the plan participant) of beneficiaries that are still allowed to use the life expectancy payout.
Estate Planning as a Powerful Exercise in Optimism
Many scientific studies have established that there is a wide range of benefits flowing from a positive attitude and positive thinking. At a time when many are focused on worst-case scenarios and gloomy predictions, you can resist the pull of negativity and embrace the beneficial results of positivity. This is not just an attempt to make yourself feel better in spite of reality, but rather to take full advantage of the proven benefits of positivity. You can increase not only your own wellbeing but also that of your children or other beneficiaries by creating an estate plan designed to promote their happiness, which in turn, will enable them to live healthier and more successful lives. Fortunately, if you are someone for whom it does not come naturally, positive thinking can be learned by surrounding yourself with positive people, deliberately engaging in positive self-talk, and living a healthy lifestyle, just to name a few common methods.
Health Benefits of Positivity
According to the Mayo Clinic, positive thinking has a multitude of health benefits, including an increased life span, lower rates of depression, lower levels of distress, greater resistance to the common cold, more psychological and physical well-being, better cardiovascular health and less risk of death from cardiovascular disease, and better coping skills.[1] Happiness, a byproduct of a positive attitude, has repeatedly been shown to boost the immune system, with studies showing that happy people who were exposed to illnesses were less likely to become sick or had milder symptoms than others who were less happy.[2]
Impact of Positivity on Success
Dr. Martin Seligman, a well-known researcher in the field of psychology, has found that those who are happy and satisfied with their lives are more likely to have desirable outcomes in school, work, social relationships, health, and life in general. Negative emotions narrow our perspective, driving us toward a single, instinctive action (reacting to danger) while ignoring everything else around us. In contrast, positive emotions are accompanied by a broadened perspective that allows us to see and examine a variety of options and then choose the one we believe is best for that moment.
Those who tend to be more optimistic are more likely to establish clear life goals, focus on different ways to reach their goals, and believe that their goals will become a reality. Hopeful people view negative events as temporary setbacks or isolated unfortunate events. As a result, they are more resilient and able to handle challenges and view them as learning experiences. They have confidence that they can take action to improve their lives, and thus, are more likely to do just that.
Use Your Estate Plan to Create Positivity and Appropriate its Benefits for Your Beneficiaries
Rather than focusing primarily on negative goals, such as preventing a spendthrift child from wasting his or her inheritance, view your estate planning as a way to pass along a positive legacy. One method is to create an ethical will that shares your important values, religious beliefs, life lessons, and blessings with your family members. An ethical will, which could be in written or video form, is something that could be shared during your lifetime as a way of drawing family members closer together, or it could be one of the most meaningful gifts you leave for family members when you pass away. The positive emotions that come from the enhanced relationship and knowledge that they are loved could be a powerful catalyst that increases the wellbeing of your family.
In addition, you can provide funds for activities that create positive experiences for your beneficiaries, ultimately enhancing their wellbeing. Although providing financial security for family members and loved ones is clearly a positive goal, rather than simply thinking of your wealth as a way for your children or loved ones to acquire more “stuff”, you can be more deliberate and thoughtful about your estate planning, setting aside money for meaningful experiences, e.g., family trips, schooling, or volunteer activities, that will allow your beneficiaries to flourish and develop their strengths and interests. In fact, research shows that experiential gifts (gifts of events that recipients experience) result in a stronger relationship between the giver and the gift recipient than material gifts, even if the gift giver does not experience the event with the recipient.[3] The improvement in the relationship is the result of the positive emotions that are experienced while the recipient is experiencing the gift. These positive emotions also can ultimately increase their physical and mental wellbeing and likelihood of success in life.
Let Us Help You Achieve a Positive Goal
During this time of crisis, a positive attitude is more important than ever. We can help you think through and identify the ways you can incorporate positivity into your estate planning, which will provide you with the confidence and peace of knowing that you are not only providing your family with financial security, but also that you are leaving a positive legacy that will promote your loved ones’ physical, emotional, and spiritual wellbeing and future success. Please call us today to schedule a meeting so we can discuss how you can best achieve your positive estate planning goals. We are more than happy to meet with you over the phone or videoconference if you prefer.
[1] “Positive Thinking: Stop Negative Self-Talk to Reduce Stress,” last visited April 16, 2020, https://www.mayoclinic.org/healthy-lifestyle/stress-management/in-depth/positive-thinking/art-20043950
[2] Mark Holder, “Happiness and Your Immune System,” Psychology Today, June 9, 2017, https://www.psychologytoday.com/us/blog/the-happiness-doctor/201706/happiness-and-your-immune-system
[3] Cindy Chan and Cassie Mogilner, “Experiential Gifts Foster Stronger Relationships than Material Gifts,” 43(6) Journal of Consumer Research 913 (April 2017), https://acadehttps://academic.oup.com/jcr/article/43/6/913/2632328mic.oup.com/jcr/article/43/6/913/2632328
Financial Literacy Month: Are All of Your Financial Ducks in a Row?
In March 2004, the Senate passed Resolution 316, which officially recognized April as National Financial Literacy Month. Both Houses of Congress have passed similar resolutions since then designed to encourage financial literacy so that individuals are better prepared to manage their money, credit, and debt. Nevertheless, in the fourth quarter of 2019, U.S. household debt, which includes student debt, credit card debt, auto debt, mortgages, home equity loans, and other debts, exceeded $14 trillion for the first time ever.[1] In addition, forty percent of the respondents of one recent survey indicated that it would be very difficult for them to meet their current financial obligations if their next paycheck were delayed for one week, and another thirty-four percent said it would be somewhat difficult.[2] The COVID-19 pandemic has, unfortunately, made this potential difficulty a scary reality for many Americans.
Whether or not you are indeed struggling financially, it is important to do a realistic assessment of your financial situation and how prepared you and your family are for the future. Creating or updating your estate plan is an important part of exercising control over your finances, and ensuring that proper plans are in place can provide substantial peace of mind and security for you and your family.
Take an Inventory
One of the first steps in creating an estate plan is to take an inventory of your money and property. Regardless of whether you are wealthy or just getting by, everything that you own is part of your estate and should be listed–or at least accounted for– in your inventory. This inventory should include the following:
The value of all of your real estate, including your home
Tangible personal property, i.e., cars, heirlooms, artwork, jewelry, furniture, etc.
All accounts (e.g., bank, investment, retirement accounts) and their balances, using the most recent statements
The contents of all safety deposit boxes (and note where they are located)
The cash value and death benefits of all insurance policies
All liabilities, i.e., mortgages, lines of credit, notes, other debts
All business interests
As you and your estate planning attorney evaluate your inventory, there are several questions you should ask yourself.
Am I saving adequately for retirement? Clearly, the answer to this question will vary for different individuals and circumstances, but many financial advisors recommend saving ten to fifteen percent of your pre-tax income during the entire span of your entire working years. If you have not been saving adequately, consider increasing your contributions to your retirement accounts.
Are sufficient funds available to provide for my spouse and dependents if I pass away? If the answer is no, consider purchasing a life insurance policy large enough to replace your income, as well as pay off any outstanding debts, college for your children, final expenses, and other important expenses, e.g., the cost of your child’s wedding or their first car.
Do I have a lot of debt? If you have substantial debt, your family members generally will not be responsible for paying it if you pass away. However, your estate will have to pay off your creditors before your beneficiaries receive anything. Life insurance can help in this situation as well: You can either purchase life insurance sufficient to pay your debt or you can make family members or loved ones the beneficiaries of your policy (or a trust for their benefit), as the proceeds of the policy never become part of your estate but are transferred directly the beneficiaries of the policy. Similarly, retirement, investment, and brokerage accounts allow you to name one or more beneficiaries, keeping those funds outside of your estate. Real estate or accounts owned jointly will also pass directly to the surviving owner when permitted by state law.
An even better course of action, however, would be to meet with a financial planner who can help you create a budget enabling you to decrease or eliminate your debt so that your loved ones will receive all the money and property you would like them to have.
Protect Your Assets
If you transfer money and property you would like to preserve for your beneficiaries into an irrevocable trust, that is, a trust that cannot be amended, modified, or revoked (except under limited circumstances), those assets will be protected from any of your future creditors or judgments (with time limits). Because the money and property used to fund the trust is no longer yours and you have no control over it, it is not available to pay your creditors. Your family members and loved ones can be named as the beneficiaries of the trust. This strategy can be particularly helpful for individuals working in professions that are at a high risk of lawsuits, e.g., doctors, lawyers, etc.
Warning: An irrevocable trust will not protect money and property from creditors having a claim at the time the trust is created. Courts can rescind transfers to trusts if they are determined to have been made with the intention to defraud current creditors.
Consider the Needs of Your Beneficiaries
Protect their inheritance from their creditors. Even if you take all the steps necessary to ensure that your beneficiaries receive a nice nest egg when you pass away, it can disappear quickly once it is in their hands unless your estate plan is designed to avoid this possibility. Fortunately, you can create a trust with terms that will protect your beneficiaries’ inheritance against claims arising from their creditors, divorcing spouses, or lawsuits. There are a variety of different types of trusts that can protect the money and property from such claims, but the following are among the most commonly used.
A fully discretionary trust gives a trustee absolute and complete discretion regarding the amount and timing of distributions to your beneficiaries; in fact, the trustee is not required to make any distributions to them at all. In this case, the beneficiaries’ creditors will not be able to reach the funds held by the trust because the beneficiary does not have an enforceable right to receive any distributions from the trust.
A beneficiary-controlled trust gives a beneficiary who is also a trustee the discretion to make distributions to him or herself for their “health, education, maintenance and support.” An independent co-trustee has the authority to make discretionary distributions for other purposes. Thus, the beneficiary has some degree of control over the trust funds, but the money and property held in the trust, with restrictions on distribution, may still be protected from creditor’s claims.
Create a trust for a specific purpose(s). You can include terms in your trust authorizing the trustee to make distributions for your children or other loved ones for specific purposes so that even after you have passed away, you are still able to help the trust beneficiaries make certain important purchases or pay for special care.
A trust can authorize distributions for certain important expenses. For example, you would likely want to help your child pay for a wedding, make a down payment on a home, or start a business while you are alive, so you may want to create a trust authorizing distributions for those purposes so that they will be covered even after your death. Like other types of discretionary trusts, the money and property held by the trust cannot be reached by the beneficiaries’ creditors. Once the money has been distributed to the beneficiary, though, the creditors will be able to reach it.
If you have a special needs child or grandchild, a special needs trust may be an appropriate consideration. This type of trust, which must be carefully drafted, allows you to provide for someone with special needs without causing them to become disqualified for government benefits for which they are otherwise eligible.
Let Us Help You and Your Family Move Toward a Secure Future
Celebrate Financial Literacy Month by taking steps to get your financial house in order. Estate planning is an essential part of this process, as it is all about providing you and your family with the peace of mind that comes with knowing that even if the unexpected happens, the future is secure. Please call us today to set up a meeting so we can create an estate plan that meets all of your needs and goals.
[1] Federal Reserve Bank of New York, “Quarterly Report on Household Debt and Credit, February 2020,” accessed March 17, 2020, https://www.newyorkfed.org/medialibrary/interactives/householdcredit/data/pdf/hhdc_2019q4.pdf
[2] American Payroll Association, “Getting Paid in America Survey,” last modified September 10, 2019, https://www.nationalpayrollweek.com/wp-content/uploads/2019GettingPaidInAmericaSurveyResults.pdf
Celebrate Single Parent Day: Take Steps to Provide for Your Kids’ Future
In 1984, Congress issued a resolution, signed by President Reagan, establishing March 21st as National Single Parent Day: a day devoted to recognizing the dedication of single parents, who make self-sacrificial efforts to care for their children’s needs, and encouraging family members, friends, and communities to help provide an optimal environment for their children. As a single parent, you should feel proud of your efforts to nurture and care for your children. Here are a few additional things you can do to provide for your children’s future that you may not have considered.
Name a guardian. If your children’s other parent is willing and able to care for them if you pass away unexpectedly, he or she will likely be given physical custody of the children and responsibility for their care. In the case of single parents, however, the other parent often may not be able or willing to take on this role. This is why it is crucial for you to name a guardian who will step into your shoes to provide day-to-day care for your children if something happens to you. If you do not name a person you trust, a court will step in to appoint someone. Because the person the court chooses to be your children’s guardian may not be the person you would have chosen, it is vitally important that you designate this person in advance. You can name a guardian in your will (and in some states, a separate document can be used specifically for this purpose): Although the court will still have to appoint the guardian, the court will typically defer to your wishes.
In making your decision, there are a few factors to keep in mind: Does your chosen guardian share your values and parenting style? Will your chosen guardian require your children to relocate? Does your chosen guardian have the energy and stamina needed to care for your children? Do they have the time to be an involved caregiver? Do you want more than one guardian to care for multiple children, or do you prefer for the children to stay together? It is important to weigh the importance of these considerations in making your decision.
Create a custodial account. If your children are minors, you can establish a custodial account to hold an inheritance under a law called the Uniform Transfer to Minors Act or the Uniform Gifts to Minors Act. If you do not appoint the custodian, the court will appoint someone to control and manage your children’s inheritance until they reach the age of majority. This is necessary because minors legally cannot own money or property on their own. A custodian will manage the funds in the account for the benefit of your children, but the downside is that when they reach the age of majority (18-21 years old depending on applicable state law), the funds will be distributed to them in a lump sum. At that point, they can spend the money as they wish, which may not be optimal for a young person who is not yet mature enough to make prudent financial decisions. In addition, any present or future creditors could try to reach your children’s inheritance to satisfy their claims.
Create a trust. A trust is often preferred over a custodial account because it is more flexible and can be designed to protect the funds against your children’s future creditors and their own imprudent spending. You can name someone who is adept at handling money to manage and disperse the funds for the benefit of your children if you die before they reach adulthood—or the age you have decided to the funds should be distributed to them. This can be the same person who will act as the children’s guardian, or a different person if you do not trust the guardian (e.g., an ex-spouse) to handle the money you have left to your children.
If you would like to set up a trust that can be used to manage your money and property for your (and your children’s) benefit if you become too ill to do it yourself, you can establish a revocable living trust with yourself as the trustee. This type of trust will remain in effect if you pass away, and the successor trustee you have named can continue to manage the funds and make distributions for the benefit of your children. The successor trustee can also step in to manage and distribute the funds for your benefit if you are unable to do so. An often less preferable option is to include provisions in your will for the establishment of a trust at your death. This type of trust will not help if you become disabled because it will not go into effect until your death. In addition, it will not be funded until your will has been probated, a process that may be expensive and time-consuming. Also, by creating the trust through your will, the management and distribution of funds may also be subject to ongoing oversight by the probate court.
The trust terms can specify the purposes for which the trust funds can be used, how and when the trustee should make distributions, and, if you so choose, the age at which you would like the trust funds to be fully transferred to your children—which does not have to be at the age of majority. You can choose the type of distributions you believe are best for your children: Some parents give the trustee the discretion to make distributions for specific purposes, such as the children’s health, maintenance, education, or support, or even for a down payment on a house or to provide funding for the child to start up a business. Others give the trustee complete discretion in making distributions for the benefit of the children. The timing of distributions, which can be designed to meet your particular goals, can also be spelled out in the trust.
If you have more than one child, you can specify whether the distributions should be for equal amounts or if a greater percentage of the money in the trust should be distributed for the benefit of certain children, e.g., children with special needs or younger children who did not get as much financial assistance from you while you were alive. In addition, you can address specific issues that may be of concern. For example, you can indicate whether you would like a home you own to be sold, or if you prefer for the children’s guardian to move into the home so they will not have to relocate. If your home is not sold, the terms of the trust can also indicate who will be responsible for paying the real estate taxes, utility bills, and maintenance expenses. The home is a particularly complex issue to consider, as there are often emotional ties and memories connected to it, as well as ongoing costs, and frequently, a mortgage. As experienced estate planning attorneys, we can help you think through the best course of action for your family.
Consider writing down your wishes regarding grandparents’ visitation. If you have named someone other than a grandparent (your parent) to be your children’s guardian, it is important to specify in your estate planning documents whether you wish the grandparents to be able to visit with your children.
While you are living, it is your fundamental constitutional right to determine whether–and how often– your children will see your parents (their grandparents). However, when you pass away, grandparents may have a right to see your children. Every state has enacted a grandparent visitation statute, and they vary regarding their permissiveness or restrictiveness. Some statutes only allow grandparents to obtain a visitation order when the children’s parents have separated, divorced, or one or both of them have died. Others are less restrictive[1] and allow grandparents to obtain a visitation order even if the parents are still married and are both still living. What both types of statutes have in common is that they both require visitation not to interfere in the parent-child relationship and to be in the best interests of the child.
Call Us Today
As a single parent, you can gain substantial peace of mind by creating an estate plan that ensures your children will be properly cared for—both physically and financially—in the unlikely event that something happens to you while they are still too young to take care of themselves. Please call our office today to schedule a consultation.
[1] Some of these less restrictive statutes have been found to be an unconstitutional infringement on the fundamental right of parents to control the upbringing of their children.