Still Waiting to Update Your Estate Plan?

If you are wondering if Franklin’s handwritten wills are valid, join the club. With an estate valued at least $80 million, it’s good news that some kind of will was found to divide up her assets. However, says Daily Reckoning in the article “Urgent: Your Will May Need Updates,” there’s no guarantee that those wills are going to hold up in court.

The problem with Aretha’s family? It proves how important it is to have a properly executed will and one that is also up to date. It’s different for every family and every person, but if you’ve done any of the following, you need to update your will.

Moved to a different state. The laws that govern estate law are set by each state, so if you move to a different state, your entire will or parts of it may not work. If your estate is deemed invalid, then your wishes won’t necessarily be followed. Your family will suffer the consequences. For example, if your old state required only one witness for a will to be valid and you move to a state that requires two witnesses, then your executor is going to have an uphill battle. Some states also allow self-written wills but have very specific rules about what is and is not permitted.

Bought new property. People make this mistake all the time. They assume that because their will says they are gifting their home to their children, updating the new address doesn’t matter. However, it does. Your will must specify exactly what home and what address you are gifting. If you have a second property or a new property, update the information on your will.

Downsized your stuff. Sometimes people get excited about getting rid of their possessions and accidentally discard or donate something they had promised to someone in their will. If your will doesn’t reflect your new, more minimal lifestyle, your heirs won’t get what you promised to them. Instead, they may get nothing. Therefore, review your will and distribute the possessions you do have.

Gifting something early and forgetting what was in your will. If your will specifies that your oldest son gets your mother’s mahogany desk, but you gave it to your niece two months ago, you may create some awkward moments for your family. Whenever gifting something with great sentimental or financial value, be sure to review your will.

Having a boom or a bust. If your finances take a dramatic turn, for better or worse, you may create problems for heirs, if your will is not revised to reflect the changes. Let’s say one account has grown with the market, but another has taken a nosedive. Did you give your two children a 50/50 split, or does one child now stand to inherit a jumbo-sized pension, while the other is going to get little or nothing?

Had a change of heart. Has your charity of choice changed? Or did a charity you dedicated years to change its mission or close? Again, review your will.

Had a death in the family. If a spouse dies before you, your will may list alternative recipients. However, you probably want to review your will. You may want to make changes regarding how certain assets are titled. If a family member who was a beneficiary or executor dies, then you’ll need to update your will.

Your estate planning attorney will review your will and talk about the various changes in your life. Life changes over the course of time, and your will needs to reflect those changes.

Reference: Daily Reckoning (Sep. 12, 2019) “Urgent: Your Will May Need Updates”

Dark Side of Medicaid Means You Need Estate Planning

A woman in Massachusetts, age 62, is living in her family’s home on borrowed time. Her late father did all the right things: saving to buy a home and then buying a life-insurance policy to satisfy the mortgage on his passing, with the expectation that he had secured the family’s future. However, as reported in the article “Medicaid’s Dark Secret” in The Atlantic, after the father died and the mother needed to live in a nursing home as a consequence of Alzheimer’s, the legacy began to unravel.

Just weeks after her mother entered the nursing home, her daughter received a notice that MassHealth, the state’s Medicaid program, had placed a lien on the house. She called MassHealth; her mother had been a longtime employee of Boston Public Schools and there were alternatives. She wanted her mother taken off Medicaid. The person she spoke to at MassHealth said not to worry. If her mother came out of the nursing home, the lien would be removed, and her mother could continue to receive benefits from Medicaid.

The daughter and her husband moved to Massachusetts, took their mother out of the nursing home and cared for her full-time. They also fixed up the dilapidated house. To do so, they cashed in all of their savings bonds, about $100,000. They refinished the house and paid off the two mortgages their mother had on the house.

Her husband then began to show signs of dementia. Now, the daughter spent her days and nights caring for both her mother and her husband.

After her mother died, she received a letter from the Massachusetts Office of Health and Human Services, which oversees MassHealth, notifying her that the state was seeking reimbursement from the estate for $198,660. She had six months to pay the debt in full, and after that time, she would be accruing interest at 12%. The state could legally force her to sell the house and take its care of proceeds to settle the debt. Her husband had entered the final stages of Alzheimer’s.

Despite all her calls to officials, none of whom would help, and her own research that found that there were in fact exceptions for adult child caregivers, the state rejected all of her requests for help. She had no assets, little income, and no hope.

State recovery for Medicaid expenditures became mandatory, as part of a deficit reduction law signed by President Bill Clinton. Many states resisted instituting the process, even going to court to defend their citizens. The federal government took a position that federal funds for Medicaid would be cut if the states did not comply. However, other states took a harder line, some even allowing pre-death liens, taking interest on past-due debts or limiting the number of hardship waivers. The law gave the states the option to expand recovery efforts, including medical expenses, and many did, collecting for every doctor’s visit, drug, and surgery covered by Medicaid.

Few people are aware of estate recovery. It’s disclosed in the Medicaid enrollment forms but buried in the fine print. It’s hard for a non-lawyer to know what it means. When it makes headlines, people are shocked and dismayed. During the rollout of the Obama administration’s Medicaid expansion, more people became aware of the fine print. At least three states passed legislation to scale back recovery policies after public outcry.

The Medicaid Recovery program is a strong reason for families to meet with an elder law attorney and make a plan. Assets can be placed in irrevocable trusts, or deeds can be transferred to family members. There are many strategies to protect families from estate recovery. This issue should be on the front burner of anyone who owns a home, or other assets, who may need to apply for Medicaid at some point in the future. Avoiding probate is one part of estate planning, avoiding Medicaid recovery is another.

Since the laws are state-specific, consult an elder law attorney in your state.

Reference: The Atlantic (October 2019) “Medicaid’s Dark Secret”

Feeling Squeezed? You Might be a Sandwich

The phrase “sandwich generation” is used to describe people who are caring for their parents and their children at the same time. The number of people who fall into this category is growing, according to an article from The Motley Fool, “How to Help Your Parents Retire Without Derailing Your Own Retirement.” A survey found that about 16% of Americans are currently caring for an elderly relative, and this number is expected to double within the next five years.

What’s worse, very few people are planning for this situation.

Planning is the only way to stop what has been called a self-perpetuating cycle. Without planning, caring for parents could derail your own retirement, making you need the support of your children when you get older, and while your kids are trying to save for their children’s college educations and preparing for their own retirement. Sound familiar?

What can you do to prevent this cycle?

See if your parents qualify for any assistance programs. There are government and private programs to help with housing, food, utilities and healthcare. The programs vary by location and the situation of the people who are seeking help, but there is help, if you know where to find it.

If parents are over 65, there is something called Supplemental Social Security Income, or SSI. This is in addition to the regular Social Security benefits and might be enough to close the finance gap. In 2019, SSI provides up to $771 per month for an individual or $1,157 for a couple, if the requirements are met.

Cost cutting. If your parents don’t have a budget, help them create one so you can all be aware of how much money is coming in and how much is going out of the household. Could they tighten their discretionary spending? They could also consider a reverse mortgage on their home, if they have enough equity. Are you willing or able to have them come live with you?

Selling items could also free up cash for living expenses. If they have a house filled with memorabilia, or valuable antiques, and are willing to do so, they can combine downsizing with making some income.

Creating a plan. Get everyone in the room—parents, siblings and spouses. Discuss the challenges ahead and make sure that everyone is clear on what expenses everyone can help with. Housing and healthcare are necessary. Luxury cars and vacations are not.

If the adult siblings need to adjust their own spending to help the parents, be realistic with each other. How much are you able to contribute, and how much are you willing to contribute? No one sibling should have to shoulder the burden themselves, unless they are wildly wealthy, and it won’t make a dent in their lifestyle.

Along with the financial planning, make sure that your parents have an estate plan. They’ll need a will, a power of attorney for finances and a healthcare power of attorney. The cost of working with an estate planning attorney to ensure that this is in place, is far less than dealing with court proceedings, if you need to pursue guardianship or settle the estate without a will.

Reference: The Motley Fool (Aug. 25, 2019) “How to Help Your Parents Retire Without Derailing Your Own Retirement”

Why Wills Need to be Updated

Lives change, and laws change. People come and go in our lives, through birth, death, marriage and divorce. Change is a constant factor in everyone’s lives. If your estate plan doesn’t keep up to date, says Next Avenue in the article “8 Reasons You May Need to Update Your Will,” you could create real problems for those you love. Here are eight reasons why people need to review their wills to ensure that your estate plan reflects your current life.

Moving to a new home. If you’ve moved to a new state since the last time your will was written, your will needs a review. Remember, wills are administered under the laws of the state where you live, so the new state’s laws apply. An out-of-state will could present issues. If the number of witnesses required to make a will valid in your old state of residence was one, but the new state requires two witnesses, your will could be deemed invalid.

Selling one home and buying another. If your will does not reflect your current address, it’s going to be very difficult for your executor to properly transfer ownership or manage the sale of the house. Most wills incorporate specific language about homes that includes the address.

You’ve done a good job of downsizing. Kudos to you for cleaning out and getting rid of unwanted items. If you no longer own things that are itemized in a will, they’ll be skipped over. However, do you want to give heirs something else? Without specific instructions, they won’t know who gets what.

Did you already give away possessions? Avoid family conflicts by being clear about who gets what. If you already gave your oldest daughter an antique dining room set but your will says it goes to the youngest son, things could become awkward. Similarly, if you gave one child something with a higher market or sentimental value than what you gave to another, it could create tension in the family. Updating your will is an opportunity to adjust these gifts.

Charity relationships change. The same organization that mattered greatly to you ten years ago may not have as much meaning—or may have changed its focus. Update your will to reflect the charitable contributions that matter to you now.

Finances change. If a will spells out exact amounts and the money is gone, or if your accounts have increased, those numbers may no longer be accurate or reflect your wishes. The dollar amounts may create a challenge for your executor. What if you designated a gift of stock to someone that wasn’t worth much at the time, but is worth a small fortune now? Amending a will can ensure that your gifts are of the value that you want them to be.

One child is now your primary caregiver. If one child has dedicated the last five years to taking care of you, you may want to update the document to show your gratitude and compensate them for lost earnings or expenses. If you do, explain your reasons for this kind of change to other children, so that there’s no misunderstanding when the will is read.

A beneficiary has passed away. If you are a surviving spouse, that alone may not be reason to update your will, if—and this is a big if—your will included alternate recipients as a plan for this situation. If there were no alternate recipients, then you will need to revise your will after the death of a spouse. If you listed leaving items to a beneficiary who has died, instructions on how to distribute these items or assets to someone else can be done with an amended will.

Your estate planning attorney will be able to review your will and your estate plan with you to determine what items need to be updated. Your documents may need only a tune-up, and not a complete overhaul, but it is advisable to review estate plans every three or four years.

Reference: Next Avenue (August 22, 2019) “8 Reasons You May Need to Update Your Will”

Will a No-Contest Clause Protect Your Estate from Squabbling Kids?

We may enjoy watching courtroom drama in movies, TV and on stage, but when it comes to our own lives, most people will do just about anything to avoid an estate battle. A “No Contest” provision is an attempt to preclude this and to give anyone who might be thinking about an estate battle a clear message, according to the article “Why courts enforce a ‘No Contest’ clause from The Daily Sentinel.

The simple answer to the question of “why would a court enforce a No Contest clause” is pretty straightforward. If that’s what you put in the will, that’s what the court wants to have happen.

An estate planning attorney will know the correct wording for your state, but the fundamental message in a No Contest clause is that anyone who attempts to contest or oppose the document will give up their share, lose any right or interest to the estate and will be treated as if they have died before the person who is signing the will.

You can have a will created without a No Contest clause, but if you want to make it very clear how you feel about anyone challenging your will, this is a good way to do it.

As you might imagine, it’s not always so cut and dried. There are limitations that courts need to consider, when they are being asked to enforce this type of clause. The red flag is whether there is “probable cause” to challenge provisions of the will or trust. Simply put, if there is language that either is against the law or against public policy, meaning it encourages behavior that is not legal or desired by our general society, then the court may accept a challenge to the will.

For instance, a provision of a will or trust that would result in discrimination or encourage deceitfulness could be challenged. If the language in the No Contest clause differs markedly from the language in the rest of the document, it could be open to challenge.

For the most part, courts are required to let people decide how they want their assets distributed. For someone who is considering making a statement with their will that may be a bit unconventional or that may not be received well by family members, a No Contest clause will enforce their wishes. It is highly recommended that if this is what someone has in mind, they consult with an estate planning attorney to be sure that their wish will be deemed valid by the court.

As with every part of your estate plan, it’s far better to have an estate plan in place with all your wishes carefully outlined, than to hope that your personal executive has the ability to handle your requests. If your will creates a mutiny, then the executor will bear the brunt of the plan. They’ll need to be fully supported by the law, if controversial wishes are going to stand firm.

Reference: The Daily Sentinel (August 24, 2019) “Why courts enforce a ‘No Contest’ clause

How to Avoid an Epic Fail of a Business Succession Plan

For the business owner, the success of their business impacts their daily lives. The success of their succession plans (say that five times fast!) is inexorably linked to having a well-conceived and properly prepared plan, that is coordinated with their estate plan. Both plans need to be built to withstand challenges, which are outlined in the article “Five events that can ruin a succession plan” from Kenosha News.

Let’s take a closer look at the “Five D’s of Succession Planning.”

Death. Believe it or not, businesses can succeed in the face of their owner’s death. However, this is only if all of the right steps are taken, and the right people are prepared to lead. If the business owner has named a successor, created a plan and purchased business interruption insurance and/or life insurance, the business has a shot at continuing. However, in most cases, the estate plan fails to address leadership succession, liquidity and leadership.

Disability or Disease. Sometimes disability and disease can be worse than death to a business. If the right advisors and plan is in place for death, the business may survive. However, a sick or disabled business owner, especially if they have been the only ones making key decisions, may be less likely to survive. If a disabled business owner has lost some cognitive function and is not able to make the best decisions on behalf of their business and their employees, the business may lose value.

Divorce. Nothing destroys a business, like extended litigation. This is often what happens when divorce occurs. A smart couple will work together, despite their personal acrimony to protect the value of the business and their joint assets. Tearing each other apart harms children and businesses. The best approach is to have a plan created for what would happen to the business, if the couple divorced. Think of it as a prenup for the business.

Drama. Our tendencies toward drama impact businesses. If there is a succession plan and those plans are communicated to the leaders, who make clear to middle management and employees that there are plans in place to continue the business, the company can remain stable. In their absence, rumors will impact everyone, from key employees to management, to vendors. Nothing hurts a business more when other companies in the same business are gossiping about its impending demise. The shining stars of the company will flee for more stable opportunities. Vendors may refuse credit. It spirals downward.

Drive. Most business owners are self-driven individuals who love to see their inspiration, ideas and energy grow into successful businesses. When it’s time to get into the weeds of details, or manage people, they’re not that interested. Or, they dig into the details and the company depends upon one person to succeed—rarely a good idea. When that drive is lost and there’s no plan to hand things over to the next generation or key employees, the business can slump, lose value and eventually, close its doors.

A strong succession plan does more than protect the owner. It protects the owner’s family, employees and their families and communities. An estate planning attorney who routinely works with business owners will be familiar with the strategies available to ensure that all the pieces are in place to continue the business and protect the family.

Reference: Kenosha News (August 25, 2019) “Five events that can ruin a succession plan”

Can I Keep a Loved One’s Inheritance From Their Spouse?

A recent nj.com article asks, “How do I protect my niece’s inheritance from her husband?” The article says that in a scenario where someone plans to leave most of her estate to her niece but doesn’t want her estranged husband to get his hands on the money, she must be proactive to make sure the funds go where she intends them to go.

If this happens in New Jersey, the niece’s inheritance will be subject to the New Jersey inheritance tax. The tax is levied based on the relationship of the deceased to the beneficiary. In this case, the niece’s inheritance would be subject to an inheritance tax of 15 to 16%.

This inheritance tax is assessed, because the aunt is a New Jersey resident. It doesn’t matter where the beneficiary resides.

One option is for the aunt to leave the assets to the niece outright or in trust.

The laws in many states, like Missouri, South Carolina, and New Jersey, say that unless the parties otherwise agree, upon divorce there will be equitable distribution of their marital property. Marital property generally doesn’t include the property received by gift or inheritance, as long as that person didn’t co-mingle it with the marital property.

Therefore, the most economical way to transfer property to the niece, is to leave it to her in the testator’s will, with instructions for her to keep it separate and apart from her marital property.

An outright bequest may not be the best way to leave property to the niece, even though it’s probably the most economical method for the aunt.

However, if the aunt leaves the inheritance in trust, she’ll make certain the property isn’t commingled with marital assets.

Further, if the trust is properly prepared by an experienced estate planning attorney, the income from the trust will likely not be used to decrease any support to which the niece may otherwise be entitled from her spouse, in the event that they divorce down the road. The trust can also protect against other events, by instructing to whom funds should be paid upon the premature death of the niece. That would further prevent her estranged husband from ever being able to make a claim against the funds.

Reference: nj.com (August 21, 2019) “How do I protect my niece’s inheritance from her husband?”

Why You Might Want a Charitable Lead Annuity Trust in Your Estate Plan

The IRS has posted an anonymized version of a letter ruling about charitable lead annuity trusts (CLAT), a trust used in estate planning. In case you were wondering, anonymized means that any information in the letter ruling that could be used to identify the parties involved, has been removed.

A CLAT letter ruling could be of interest to those who are using life insurance, annuities, or other instruments in estate planning.

Think Advisor’s recent article, “IRS Posts Charitable Lead Annuity Trust Letter Ruling,” explains that if the taxpayer passes away prior to the taxpayer’s spouse, the trust is supposed to pay specified debts and expenses, then distribute the trust assets to other individuals and trusts.

If the spouse dies first, the trust is supposed to pay specified expenses and make specified distributions of the assets to individuals and trusts. The trust is then supposed to push the remaining assets into a CLAT. The CLAT is then to pay a charity an annuity amount, that is equal to 5% of the fair market value of the initial trust estate.

A CLAT is designed to have a benefit stream that lasts a specified number of years.

Leslie Finlow, a senior technician reviewer at the IRS Office of Associate Chief Counsel for passthroughs and special industries, said in the letter ruling that the IRS will treat the CLAT as having a benefits payment term of a specified term.

While the term will depend on the amount of assets that winds up in the CLAT, determining the term will be possible, when the trust ends up with its share of the estate, she noted.

If the taxpayer, the spouse, and the trust meet a number of conditions, the taxpayer’s estate should be able to take a tax deduction for the present value of the annuity payments from the CLAT, Finlow explained.

“To the extent any estate, succession, legacy, or inheritance taxes are paid from the residue prior to funding the CLAT pursuant to the terms of revocable trust or by the law of the jurisdiction under which the estate is administered, the amount of the charitable deduction in either estate is determined using the actual amount passing to the CLAT after payment of such taxes,” Finlow writes.

Note that a letter ruling gives the views of one IRS official. A private letter ruling, or PLR, is a written statement issued to a taxpayer that interprets and applies tax laws to the taxpayer’s situation.

Reference: Think Advisor (August 19, 2019) “IRS Posts Charitable Lead Annuity Trust Letter Ruling”

Where Should I Keep My Estate Plan?

Many people ask their attorney to hold the original documents of their estate plan. This prevents the plan from being misplaced at home and keeps it away from prying family members.

Forbes’ recent article, “Keeping Your Estate Planning Documents Safe,” explains that because of the expense of storage and the move to paperless offices, some estate planning attorneys are now having their clients hold the original documents.

This saves money for the attorney, but it leaves the client with the problem of where to put the originals.

If you need a safe and secure place for them, here are some options.

No safe deposit boxes. Avoid placing the original documents in a safe deposit box, because the authority to get into the box is inside the box! If you pass away or are incapacitated—and nobody has access to the safe deposit box—they’ll need a court order to get access. For them to get the court order, they need the documents inside the box. It’s like the chicken and the egg.

Get a fireproof safe. A fireproof safe is a great place to keep these important documents.

Make copies. Get a set of hard copies in another location that is easily accessible. You can now use the safe deposit box to hold a set of copies of your documents. Your attorney should also have a set of hard copies.

E-records. Your estate planning attorney should also have an electronic copy of your estate plan and should send you an electronic version of the documents to keep with your e-records.

Don’t lose it, if the originals are misplaced or destroyed. If the original documents somehow vanish, your family may still be able to use a set of copies. For instance, a photocopy of a will can be probated, once the executor has attested that she has made a diligent search to find the original which hasn’t turned up.

Remember that this isn’t a “one and done” task. You should review your documents every few years to make certain the people you’ve named in them are still alive and your intentions haven’t changed.

Reference: Forbes (August 16, 2019) “Keeping Your Estate Planning Documents Safe”

Succession Planning For Business Owners
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Succession Planning For Business Owners

A business owner without an estate plan, is a business owner whose business and personal estate are both in jeopardy, says the Augusta Free Press in an article that asks “Own a business? 5 reasons you need an estate plan.”

You need more than a will to plan for incapacity. If you become ill or incapacitated, a will isn’t the estate planning tool that will help you and your family. What you need is a power of attorney (POA). This document names another individual or individuals to manage your finances and your business dealings, while you are unable to do so. Your estate planning attorney can create a power of attorney that limits what the named person, known as an “agent” may do on your behalf, or make it a broad POA so they can do anything they deem necessary.

Your state’s estate plan may not align with your wishes. Every state has its own laws about property distribution in the event a person does not have an estate plan. A popular joke among estate planning attorneys is that if you don’t have an estate plan, your state has one for you—but you may not like it. This is particularly important for business owners. If you have a sibling who you haven’t spoken to in decades, depending upon the laws of your state, that sibling may be first in line for your assets and your business. If that makes you worried, it should.

Caring for a disabled family member. A family that includes individuals with special needs who receive government benefits requires a specific type of estate planning, known as Special Needs Planning. This includes the use of trusts, so a trust owns assets the assets for the benefit of such a family member without putting government benefits at risk.

 

Help yourself and heirs with tax liability. If your future plan includes leaving your business to your children or another family member, there will be taxes due. What if they don’t have the resources to pay taxes on the business and have to sell it in a fire sale just to satisfy the tax bill? An estate plan, worked out with an experienced estate planning attorney who regularly works with family-owned businesses, will include a comprehensive tax plan. Make sure your heirs understand this plan—you may want to bring them with you to a family meeting with the attorney, so everyone is on the same page.

Avoid fracturing your own family. An unhappy truth is that when there is no estate plan, it impacts not just the family business. If some children or family members are involved in the business and others are not, the ones who work in the business may resent having to share any of the business. How to divide your business is up to the business owner. However, making a good plan in advance with the guidance of an experienced advisor and communicating the plan to family members will prevent the family from falling apart.

There’s no way to know how family members will respond when a parent dies. Sometimes death brings out the best in people, and sometimes it brings out the worst. However, by having an estate plan and business plan for the future, you can preclude some of the stresses and strains on the family.

Reference: Augusta Free Press (August 13, 2019) “Own a business? 5 reasons you need an estate plan.”

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