Category: The Wealth Counselor

The month of May means not only the end of the school year and the beginning of summer but also the beginning of the busiest moving season of the year. That’s why May is National Moving Month. Your clients have a lot to think about when moving: along with organizing and packing up all of their belongings, there is also starting and stopping utilities, mail forwarding, updating voter registration, and so on. While the ever-growing number of items on their moving to-do list may be overwhelming, there are three important things you can do to help any client in the process of moving: (1) make sure they know where their important documents are, (2) help them set a moving budget, and (3) continue as their advisor, or connect them to a new advisor.

Make Sure They Know Where Their Important Documents Are

In all of the chaos of moving boxes and packing tape, it is easy for things to get lost in the shuffle or even thrown out during a move. Yet certain important documents, such as birth certificates, social security cards, passports, financial statements, and estate planning documents, should not be packed up and put on the moving truck along with the client’s dishes and shoes. You can help your client keep their important documents safe and accessible during their move and ensure that these items do not get thrown out by accident.

One idea you can suggest to your clients is that they purchase a portable file box with an attached lid and a secure latch. Purchasing a brightly colored one can make it more easily identifiable. Then, they should place this file box in a secure and easily accessible location. If they are moving locally, a logical place might be at a family member’s or friend’s home. If they are moving a longer distance, then that place might be the trunk of their car.

It is also wise for them to make electronic backup copies of all of their important documents. This could take the form of taking pictures of their documents and saving them to their smartphone, a password-protected removable flash or external hard drive, or storing them in the cloud. Then they will at least have a copy of these important documents in case they cannot locate the original. You can let your client know if you, as their advisor, have also made and stored copies of any of these important documents.

By helping your client with this simple step in the moving process, you will save them a lot of time and headache when, for example, they are not having to run around searching through unpacked boxes for their children’s birth certificates so that they can register them for their new school.

Help Them Set a Moving Budget

One of the pressing questions associated with a move is how much it will cost. Although the final calculation of cost will depend on factors such as the size of the client’s home, the distance the client is moving, and the client’s willingness to take on DIY projects, encourage clients to reach out to you or their financial advisor to help them set a moving budget that aligns with their long-term financial goals.

Continue as Their Advisor or Connect Them to a New One

Finally, you should discuss with your client whether you will be able to continue being their advisor after their move. In situations where it is not possible to continue being their advisor, such as when a client is moving to a state where their current estate planning attorney is not licensed to practice, then the advisor can help make the client’s transition easier by connecting them with a competent attorney in their new home town.

For example, a will or trust created in one state should generally be valid in the client’s new home state. However, some documents, such as a financial or medical power of attorney, can be state-specific. Because estate planning laws vary by state, it is highly recommended that they have their estate planning documents reviewed to ensure their validity in the client’s new state. Their estate planning attorney can review their documents or you can connect them with an attorney in their new state who can review them.

If the client is married, their out-of-state move may have additional estate planning implications if they are moving to or from a community property state. Currently, there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Moving from a community property state to a noncommunity property state (i.e., a common law state) or from a common law state to a community property state raises questions about whether community property remains or becomes community property. For example, if a couple acquires a home in California during their marriage and then moves to Nebraska and purchases a new home in Nebraska with the proceeds from the sale of their home in California, is the new Nebraska home community property? The client’s estate planning attorney can help answer these questions.

There is a lot to think about when moving, but it will ease the client’s burden if (1) they know where their important documents are, (2) they have a moving budget, and (3) they know they will continue to receive great advice from their advisor team after their move. If you need any assistance with a client who is moving, give us a call.

We all plan for “just-in-case” scenarios. When packing for our week-long vacation, we throw in a rain jacket even though the weather forecast is sunny—just in case. When helping clients plan for the future, it is also important to consider what will happen just in case one of our clients’ loved ones becomes disabled.

We tend to think that disability is something that affects other people. But approximately 61 million adults in the United States live with a disability—that is one in four adults. And more than one in four twenty-year-olds will become disabled before reaching retirement age. Disability is unpredictable, and accidents or serious physical or mental conditions, such as cancer or mental illness, can happen to anyone at any age. 

As helpful as it would be when advising our clients, no one has a crystal ball to see into the future. We do not know when a client will pass away, and we do not know what position a beneficiary will be in at the time of a client’s death. So even if our clients do not currently have a loved one who is disabled, it is critical not to overlook the question of what will happen if a client’s loved one becomes disabled at a future time.

If a loved one becomes disabled, they may need to rely on financial assistance from government programs such as Medicaid or Social Security Disability Insurance. Unfortunately, a monetary gift or inheritance may disqualify a person from receiving these public benefits. In this situation, a client’s well-meaning gift could become more of a curse than a blessing.

Standby Supplemental Needs Trust

To avoid the possibility that a disabled loved one will lose government benefits because they have too much money, a client may want to consider setting up a standby supplemental needs trust as part of their estate plan. The terms of a supplemental needs trust provide that the trust’s money and property are only available to “supplement” the government benefits a beneficiary may be receiving. Therefore, the trust’s money and property are not included as available resources when determining a beneficiary’s eligibility for government needs-based benefits. A “standby” supplemental needs trust does just what its name implies: the supplemental needs trust is not created automatically but is on standby and comes into existence only if a beneficiary is disabled at the time of the client’s death or, depending on the applicable state’s eligibility rules, becomes disabled at a later date but before the trust has been fully distributed. If the disabled beneficiary is receiving public assistance at the time of the client’s death, the inheritance the beneficiary receives in a properly drafted supplemental needs trust will not disqualify them from the public assistance benefits but instead can be used to supplement the benefits they are receiving from the government and enhance the beneficiary’s life.

When advising our clients about planning for the future, we provide great value by helping them think through the what-if scenarios. Failing to help them think through what would happen if a loved one became disabled could result in trust assets being completely consumed by a disabled beneficiary’s care instead of wisely invested and used to enhance their life. Further, such failure could be viewed as professional negligence. 

Since no one knows what the future holds, nearly every client could benefit from including standby supplemental needs trust provisions in their estate plan. If the standby supplemental needs trust is not needed at the time of the client’s death, then the trust will not come into existence. But it does not hurt to include it—just in case.

February 21 is the day on which we celebrate several US presidents who made noteworthy contributions to our country. As with any discussion that involves politics, a discussion about US presidents risks generating a variety of opinions about which reasonable minds can disagree. However, politics is not the focus of this month’s newsletter. Instead, our aim is to examine a few of the important lessons we can learn from the estate planning of some of our country’s most famous political leaders. Armed with these important lessons from history, you can help your clients make better decisions for their own estate planning.

George Washington

Washington was arguably the most universally beloved and revered US president. Volumes have been written about this man and what he accomplished during his life. One significant achievement that few people know about is the care Washington took to ensure that his final affairs were in order and that those who relied on him were cared for to the best of his ability. Washington’s last will and testament, widely available online in its entirety, shows that he thought carefully about his final affairs and about those who depended on him; he also remembered many individuals by making very thoughtful decisions and gifts of items of personal property or specific bequests. 

It is worth mentioning that Washington had a rather nontraditional family situation and had to carefully consider how his estate should be distributed among his loved ones. At age twenty-six, Washington married a widow, Martha Custis, who had two children of her own from her previous marriage, whom they raised together. After his stepson, John Custis, died during the war from an infection, Martha and George Washington raised John’s two youngest children as their own.  As a result of his blended family, Washington carefully crafted the language of his will to provide very specific bequests to each of his surviving family members to ensure that they were well cared for long after he was gone.

Washington provides an excellent example in the level of thought and care with which he crafted his estate planning. Even if we do not have the wealth that Washington died with, we can still be very deliberate and thoughtful when it comes to how much, and to whom, we leave our wealth and meaningful items of personal property. By spending sufficient time and effort to think about and memorialize how we want to leave our possessions to our loved ones, we can leave a real legacy that has the potential to benefit generations.

Thomas Jefferson

While equally as famous as George Washington, Thomas Jefferson’s financial situation was far less favorable than Washington’s upon his death. Despite being a brilliant intellectual and the principal author of the Declaration of Independence, Jefferson nevertheless struggled to manage his financial affairs during life. In addition, he was saddled with both debts inherited from his family and that he had assumed by cosigning on a loan for a friend who died prematurely. When Jefferson passed away, he still had significant debts that his family had to repay. Because Jefferson had valuable real property but very little liquid cash with which to pay his debts, his executor ultimately had to sell the family land at depressed market prices to raise enough cash to pay his debts. The unfortunate result of these circumstances was that very little of Jefferson’s property was able to be passed down within his family.  

Many families today face similar problems with illiquid or insolvent estates. This issue arises most often when a business or farm owner has significant wealth tied up in their business or land but little cash in reserve to settle debts or pay transfer taxes at death. This can cause the families left behind to feel intense pressure to sell the business or the land at significantly less than they might otherwise be able to sell it for under better conditions in order to raise the cash necessary to pay the debts or taxes that will shortly come due.

Life insurance is an important estate planning tool often used to provide sufficient cash to pay a deceased individual’s debts or transfer taxes. With the proper type and amount of life insurance, and by using certain estate planning tools such as irrevocable life insurance trusts, an individual can prevent a “land rich, cash poor” situation like that experienced by Thomas Jefferson’s family. 

Abraham Lincoln

Another well-known and beloved US president—a lawyer, no less—very surprisingly died without a will or any other type of estate planning in place. Lincoln, like so many of us, quite possibly believed that he had many more years to address this important task. His tragic murder at the hands of a political malcontent plunged Lincoln’s family into a confusing and completely unfamiliar situation as they attempted to settle his affairs with no knowledge of where to begin. His oldest son, Robert, reached out to US Supreme Court Justice David Davis to take charge of Lincoln’s affairs. Justice Davis generously stepped away from his duties on the court to assist the Lincoln family with the local court process for settling Lincoln’s estate. His estate was divided between his wife and his living sons, most likely according to the default laws of the jurisdiction. However, it remains unclear whether this is how Lincoln would have wanted to see his property divided.

A key lesson is that no one knows when they will pass away. Even someone as important and well-versed in the law as Abraham Lincoln was caught unprepared for his untimely demise, sadly leaving others to guess what his wishes would have been with respect to his property. The family undoubtedly experienced significant distress and frustration by not having a clear understanding or plan in place for handling Lincoln’s final affairs. Had Lincoln put some basic planning such as a will or a trust in place prior to his death, perhaps he could have helped ease his family through a very challenging time when he was no longer available to them.

Learning from These Presidents

There is a great deal more that could be discussed and learned from the experiences of these and other US presidents as it relates to estate planning. As you discuss some of these lessons with your clients, we hope that you will be able to help them think about their own estate planning and what they might want to do differently going forward. If any of your clients have circumstances similar to those discussed above and you would like to learn more about how to craft an estate plan that is designed specifically for their unique situation, give us a call. We would be more than happy to visit with you or your clients and discuss these matters further. Until then, Happy President’s Day!

Not only is January the first month of a new year, it is also a time when many celebrate Hunt for Happiness Week (January 16-22, 2022). Happiness is something that humanity, in large part, has spent a tremendous amount of effort pursuing throughout history. Early on, happiness likely came from simple victories such as having a full belly, surviving another day, or simply staying warm. Over time, with the progress of civilization, happiness may have come from more complex sources such as art and literature, family and romantic relationships, religious worship, access to a wider variety of food and drink, education, and novel experiences. For many people, a lifetime is spent accumulating wealth in the effort to find happiness. But does the mere accumulation of wealth guarantee happiness? It depends on who you ask, of course. But most people will agree that happiness can be found from a variety of sources beyond total dollars reflected on a balance sheet.

When it comes to your clients finding happiness for themselves and their loved ones, consider how their estate planning might play a role in that process. The following steps can help ensure that the effort your clients put into their estate planning will contribute to their happiness and their family’s happiness rather than potentially diminish it. 

Step 1: Ask your client to identify and prioritize the experiences and activities that bring them the most happiness.

Rather than simply assuming that property or cash will bring continuing happiness to your client and then their family when they are gone, it is important to think about how their money and property can be used to generate happiness. Here are some examples:

• Is there a hobby that they and their families enjoy that they could more easily engage in as a result of the availability of money? 
  • Perhaps they have enjoyed hunting or fishing trips with their loved ones over the years.
  • Maybe they have a love of live theater or musical performances that has brought them joy over the years as they have shared such experiences with their family. 
• Did they have international travel experiences that they look back on fondly and would like to repeat or extend to younger generations?
• Was education a source of particular joy and satisfaction over the years that your clients would like their loved ones to be able to experience?
• Is there a special vacation location or property that has many happy memories associated with it?

Whatever experiences or activities have brought your client and their loved ones happiness throughout their lives, the first step is to identify them and determine whether your client wants to make such experiences or activities a priority in their own estate planning. 

Step 2: Review the client’s important documents to see if they reflect those priorities.

Once you have identified your client’s priorities, you should help them review their important estate documents, such as life insurance and retirement account beneficiary designations, wills, trusts, pay-on-death designations on accounts, and the deeds and titles on their property. Does your client understand how their accounts and property will be transferred or paid out when they die? If so, will the resulting payments and transfers realistically support the client’s priorities that you have helped them identify in Step 1? Or does their current estate plan risk allowing their accounts and property to be used or spent on things other than your client’s priorities? If so, is your client comfortable with that potential result? 

Step 3: Encourage your client to contact us to make necessary changes or additions to their estate planning.

If your client is not comfortable with the way their current plan meets their priorities, then it is crucial that they do not delay in addressing these issues with their entire professional advisor team, including their attorney, CPA, and financial planner. As your client’s attorney, we can help them craft provisions in their will or living trust that will set aside a sum of money to fund education for successive generations, travel, hunting trips, family reunions, or other experiences that create happy memories the client would like to pass on. Further, in order for your client to protect their property from being squandered on material possessions or expenses that bring little happiness to their loved ones, your client may need to change beneficiary designations on life insurance, retirement accounts, or cash accounts to be payable to a trust, or make other protective arrangements that can help them achieve their priorities. 

It is only with careful planning that your clients can turn something as mundane and inanimate as money and property into experiences and opportunities that can bring true and lasting happiness to them and their loved ones for generations. With proper planning using the tools at our disposal, a team of professional advisors can help your clients effectively meet this worthwhile goal. Such efforts will undoubtedly increase the likelihood that your clients and their loved ones will find the happiness and satisfaction in life that are readily available to those who diligently seek it.

Imagine the following scenario: As a professional advisor, you have worked with a married couple for decades. They have been ideal clients, have taken a genuine interest in you and your family, and have told you on multiple occasions how much they appreciate your professional advice and friendship for all of these years. The wife passed away recently, and the husband’s health is failing. With no children of their own and only distant and estranged relatives within their family, they spent a large portion of their wealth over the years supporting a number of charitable organizations, but they did not wish to provide any further gifts to the charities at death. As a result, you eventually learn from the husband that you have been named as a beneficiary of their trust to receive a sizable distribution at the husband’s death. When you express your surprise and gratitude for this kind gesture, your client confirms that he and his wife had discussed providing you with such a gift for years and that they are happy to do so as a reflection of the affinity they feel toward you. Continue reading →

In the chilling words of several George R. R. Martin’s Game of Thrones characters, “Winter is coming.” 

Along with this change of seasons comes a change in driving conditions in much of North America—slippery roads, rain, snow, less sunlight during the morning and evening commutes, and a variety of other hazards. Unfortunately, with an increase in such risks comes an increase in the likelihood of your clients being involved in a car accident. But far too few have given much thought to what steps should be taken if they are actually involved in a fender bender.

How Car Accidents Can Impact a Client’s Estate Plan

Healthcare decision-making. In the event of an accident where a client becomes unable to speak or make decisions for themselves due to an injury, they will need to have someone who can speak to doctors and medical providers on their behalf. If a client has planned in advance, a validly executed medical power of attorney will allow someone the client has chosen previously (a healthcare agent) to speak with doctors and arrange for treatment until the client regains consciousness. If a client does not have a medical power of attorney in place, decision-making authority could be unclear and might delay them receiving certain types of medical treatment. Thus, it is important that your clients not only have a medical power of attorney in place and signed, but also that they inform those closest to them about where to obtain a copy of it should they need to be rushed to a hospital in the event of an accident. 

Adequate insurance coverage. Many people do not realize that carrying adequate insurance coverage is one of the most effective ways to protect themselves from lawsuits that would place their savings and property at risk of loss. Ensuring that your client carries adequate car insurance is one of the simplest ways you can help them ward off a lawsuit. Beyond increasing their car insurance limits, you may also want to discuss whether it would make sense for them to purchase an umbrella insurance policy. Umbrella policies act as a form of backup insurance to other types of primary casualty insurance policies. Essentially, if a client is involved in a car accident where the damages they caused exceed the limits of their car insurance policy, an umbrella insurance policy can step in and cover such excess liability. With both policies in place, there will be a large enough pool of insurance money that the insurance companies will have a much greater ability to settle any lawsuit against your client as a result of the car accident before it ends up in court where the plaintiff could seek payment from the client directly.

As part of your client’s estate planning review, you should discuss the limits of their car insurance policy and any umbrella policy that they may already have (or that they intend to purchase) and the types of protections that those policies provide. Adequate insurance can go a long way toward protecting their accounts and property from loss to a lawsuit as a result of a car accident.

Disability insurance. Clients should be reminded that in addition to the risks of being inadequately insured from a liability perspective, a car accident that results in their own injury could have both short- and long-term financial consequences from a disability perspective. Without the ability to engage in gainful employment, a family can suffer significant financial hardships in a very short period of time. Being unable to pay a mortgage, rent, car payments, utility bills, or healthcare expenses because of lost income can be devastating. Short-term and long-term disability insurance can therefore offer incredibly important protection against loss of income from such an accident. If your clients have not yet considered purchasing disability insurance to protect against this kind of risk, you may want to raise the topic with them sooner rather than later.

Personal Injury Settlements

In some cases, a personal injury settlement may be paid to your client in a lump sum. If your client has received such a settlement, it is important that you work with them to suggest prudent investment options that will protect the settlement funds from both the risk of major market losses as well as unnecessary diminishment from inflation. These funds should be protected and invested in a manner that will ensure that they are available to your client to provide for their needs, particularly when the client’s needs have increased as a result of the injuries sustained in the accident.

Be Careful of Fraudulent Transfers

After a car accident where there are significant property damages and medical injuries, a client can be tempted to take steps to protect what they own if they fear that a lawsuit may result from the accident. But it is important to help your clients resist the temptation to begin transferring or retitling their property and accounts to friends or family in an effort to hide what they own to protect it from their creditors. In many states, taking such steps after an accident has occurred in which a client is liable is considered to be a fraudulent or voidable transfer that can be ignored by the courts. In other words, even though a client may have made an otherwise legal gift or transfer of their accounts and property to someone else, the courts are likely to allow the party in a successful lawsuit against the client to seize the property that your client has transferred to someone else in an effort to avoid having it used to pay the judgment against them. 

No, Revocable Trusts Do Not Protect a Client’s Property from Personal Lawsuits

A very common misconception is that if your client creates a revocable living trust for estate planning purposes, they have thereby protected their assets from lawsuits and creditors. Unfortunately, this is simply not the case. While it is possible to design a revocable living trust that will protect a client’s assets after they have died from the creditors and lawsuits of the named beneficiaries of their trust (usually their loved ones), revocable trusts in general offer no protection against the client’s own creditors or lawsuits filed against them. This is because the client has complete control over the property placed in their revocable trust. And because they retain the power to revoke the trust, a judge can order them to revoke the trust and use the trust property to pay their creditors and lawsuit judgments. 

That being said, there are certain types of irrevocable trusts and other asset protection strategies that, if designed properly, can greatly enhance the level of protection a client can obtain for their property. However, these should be explored with the assistance of an experienced asset protection and estate planning attorney to ensure proper creation and implementation.

When it comes to protecting a client’s accounts and property, the time for taking the necessary steps is well before an accident ever occurs. Doing so will help your clients maximize the amount of asset protection that is available to them through purchasing insurance or designing estate planning features that have a much better chance of warding off potential lawsuits in the event of an accident. 

We hope that we have given you some things to consider along with your clients that will help you encourage them to revisit their estate planning. Protecting a client’s hard-earned accounts and property is a worthwhile investment of time and effort. If you or your clients are not sure where to start, give us a call. We would be happy to help them take the next step in preparing for the perils that winter can bring.

Estate Planning Awareness Week is October 18–24, 2021. To that end, this month’s newsletter is geared toward helping you, as a professional advisor, gain awareness and understanding of the most common estate planning myths. Left unaddressed, these myths can create serious trouble for families and individuals, often leading to intrafamily conflict, permanently damaged relationships, and lengthy and expensive court battles.

Myth #1: Estate planning is only for the wealthy.

When the topic of estate planning comes up, professional advisors often hear their clients respond with phrases like “Oh, estate planning is only for rich people,” or “Why do I need an estate plan? I plan to spend it all before I die!”

Unfortunately, this kind of response, perhaps subconsciously, allows the person making the statement to avoid having to expend any further energy thinking about the uncomfortable reality of their own mortality and the consequences of not having planned for their incapacity or death. As their professional advisor, consider whether you have a responsibility to gently push back on such responses from a client. Most things worth doing are going to involve some effort, and estate planning is no exception.

Incapacity Planning

Even individuals and couples of modest means may suddenly become incapacitated. When an individual cannot speak or make decisions during a period of incapacity, someone else will need to carry out that responsibility. Without estate planning documents in place (for example, a healthcare directive, trust, and financial power of attorney), a court will need to appoint a conservator or guardian to make decisions on behalf of the incapacitated client. Furthermore, the court will decide who will be placed in charge of your client’s accounts and property, resulting in additional expenses, delays, and significantly less privacy for your client. If the client wants to choose who will make financial and healthcare decisions for them, estate planning must be completed beforehand that names the appropriate individuals to carry out those responsibilities. 

Planning with Trusts

We have heard of professional advisors telling a client that only wealthy individuals need a trust. However, such advice is too simplistic. When an individual dies owning real estate, even if they are of modest means, the probate court will need to authorize the sale or transfer of that property, which can result in additional expenses, delays, and loss of privacy. Establishing a trust and titling real estate in the name of the trust can be an effective way to eliminate the need for probate. For many people, avoiding probate is an important estate planning goal, particularly when the client desires to keep the distribution of their accounts and property private and efficient, even if they have what most would consider modest wealth. Probate avoidance may actually be more important for those of modest means because probate is not the most cost-effective way to transfer property at death.

Myth #2: Joint ownership is sufficient.

A client may declare to you that they do not need to engage in estate planning because they have already added their children to their accounts or on the title to their property. At first impression, it can be tempting to agree that this is sufficient to avoid probate; and while this can be one method for avoiding probate (both during life and at death), there are serious risks associated with joint ownership that are commonly overlooked. For example, adding children to an account or to the title of property can result in those accounts or property getting tangled up in that child’s divorce proceeding, lawsuit, or bankruptcy. 

Furthermore, there could be gift tax consequences for adding a child to the ownership of certain property, particularly if that child received instructions from the client to divide and distribute that property to others after the client has passed away. Additionally, the joint owner may be under no legal obligation to follow the client’s instructions on how to divide the accounts and property after the client’s death. The joint owner could decide to keep the money or property rather than follow your client’s instructions with no legal consequences.

Myth #3: Avoiding taxes is the only reason to create an estate plan.

It can be easy to dismiss the need for an estate plan considering today’s historically high estate tax exemption ($11.7 million per person in 2021). Most Americans do not need to worry about estate taxes. However, tax avoidance is only one of many goals of estate planning, and in many cases it is not the most important goal. For example, planning for the orderly passing of your client’s treasured heirlooms to avoid family discord may be far more important than tax planning in the long run. Alternatively, your client may have children who are struggling financially or with substance abuse challenges, are in a rocky marriage, or work in high-liability professions. As a result, it may be crucial for your clients to ensure that whatever inheritance is left to those children is protected from loss to lawsuits, creditors, or divorcing spouses.

Myth #4: I can just name my loved ones on beneficiary designations.

In some states, accounts such as retirement accounts, life insurance, and bank accounts can be left to loved ones through beneficiary designations, while transfer-on-death deeds can be used to leave real property to loved ones. Utilizing such tools can avoid probate in most cases. However, when these types of accounts and property get transferred at death, they are direct transfers that cannot be protected from lawsuits, creditors, divorcing spouses, or other threats from third parties. In addition, if minor children are named as designated beneficiaries, a conservatorship must hold the property until the minor child reaches the age of majority (usually eighteen or twenty-one years old, depending upon state law). Once the child reaches that age, the accounts and property are transferred directly to the child, and a more mature loved one or financial manager will be unable to protect the funds for the child. 

In addition, beneficiary designations and transfer-on-death deeds are useless in the case of the client’s disability or incapacity. Should the client become incapacitated, a conservator must be named through the court system to manage the property for the client’s benefit until the client dies and the transfer-on-death deeds or beneficiary designations become operable.

What You Can Do to Help Your Clients

Understanding these myths will put you in an excellent position to dispel them for your clients. By correcting these erroneous beliefs about estate planning, you can help your clients begin the estate planning process in a truly responsible and effective manner. As your clients begin to see the value of careful estate planning, your value to them as a professional advisor will undoubtedly grow. We would love to help you and your clients better understand the value of careful estate planning and how to avoid falling victim to these and many other estate planning myths. Give us a call today.

Best of B-Town 2021

Thank you to everyone who took the time to vote for our law firm as Bloomington’s favorite. We are happy to announce that our firm won the 2021 Best of B-Town! We are honored that so many of our clients, friends and other professionals in town took the time to vote for us this year. We will continue to strive each day to earn this recognition.

Preparing for the Reduction in the Estate Tax Exemption

In late May of this year, the U.S. Treasury released a publication detailing a number of the proposed tax code changes that the Biden administration would like to usher through Congress in an ambitious effort to modernize the US tax system to meet its citizens’ needs. While reasonable minds may differ strongly on the best way to stimulate the US economy and create wealth and security for the American people, one thing is certain: the need for individuals to engage in careful estate and tax planning to avoid paying more tax than necessary is not going away.

This IRS publication, sometimes referred to as the Green Book, outlines a number of key proposals that—if ultimately passed—have the potential to significantly shake up the estate planning world as we know it today by sidelining a number of tried and true estate planning strategies while potentially increasing the frequency of use and usefulness of others.

As some commentators have observed, any direction to reduce the estate and gift tax exemption amount from its current historically high level of approximately $11.7 million per taxpayer is noticeably absent from these proposals. Although there is certainly no guarantee that such a proposal will not be made in the future, we can nevertheless focus for now on what we do know about the law as written today and what steps we can take to address the coming changes.

One of the first things to understand is that, even with no action whatsoever by Congress, estate tax laws passed under the Trump administration will expire and reset to the prior laws in 2026. This reset will restore the estate and gift tax exemption amount to $5 million, as it was in 2016 (though it will be indexed for inflation, resulting in an exemption amount of approximately $6.6 million in 2026). Again, this is the law as it stands today; without further action from Congress, it will remain the law.

It is therefore important to consider the average rates of return on your current investments, compounded annually, to determine what kind of return on your investments you can expect within the next five to ten years. Using a basic calculator or spreadsheet, many of our clients and their advisors are surprised to see that, even with a moderately healthy return of approximately 7 percent annually, their net worth could easily double in ten to twelve years. If the estate tax exemption amount is halved in 2026 and increases only with inflation at a rate of approximately 2.5 percent per year, you could very quickly find yourself at risk of paying significant estate taxes (currently at a 40 percent rate) if you are still in the mindset of having an $11.7 million estate tax exemption ($23.4 million for married couples) available when either you or your spouse passes away in the next one to two decades.

What should we be doing now?
Given the current uncertainty, trying to predict the future and determine which strategies will best accommodate your tax and estate planning goals can be frustrating. This is particularly true when we consider some of the other Green Book proposals:

• Raising the top income tax rates
• Taxing capital gains as ordinary income for people who earn more than $1 million per year
• Treating any transfers of appreciated property (including gifts and inheritances) as a sale of the property, thus triggering capital gains taxes on the property, instead of allowing the traditional carryover basis for gifted property or stepped-up basis for property inherited at the death of the property owner
• Limitations on deferral benefits for like-kind exchanges of real estate

You should still consider certain strategies, however, because these changes have not yet been implemented and may ultimately never be enacted. For example, the following strategies are still effective tools under current tax law, and if you implement them now, you could realize significant tax savings.

Grantor Retained Annuity Trust
A grantor retained annuity trust (GRAT) enables you to transfer appreciating accounts and property to chosen noncharitable beneficiaries (usually children or other family members) using little or none of your gift tax exemption (depending on the value of your retained interest in the trust). To accomplish this, you would transfer some of your property to the GRAT and retain the right to receive an annuity. After a specified period of time, the noncharitable beneficiaries will receive the amount remaining in the trust.

Installment Sales to an Intentionally Defective Grantor Trust
Another useful strategy that can still be used today is to gift seed capital (usually cash) to an intentionally defective grantor trust (IDGT) and then sell appreciating or income-producing property to the IDGT. The IDGT makes installment payments back to you over a period of time. If the account or property increases in value over the period of the sale, the accounts or property in the trust will appreciate outside your taxable estate and will therefore avoid estate taxes. Additionally, because you will pay income taxes on the income generated and accumulated in the trust, which is an indirect (nontaxable) gift to the trust (and, therefore, to its beneficiaries), the trust itself does not have to pay income taxes on the income that it retains.

Spousal Lifetime Access Trust
A spousal lifetime access trust (SLAT) strategy calls for you to gift property to a trust created for the benefit of your spouse (and potentially other beneficiaries like children or grandchildren). An independent trustee can make discretionary distributions to those beneficiaries, which can benefit you indirectly, while an interested trustee should be limited to ascertainable standards when making distributions (i.e., health, education, maintenance, or support). This strategy allows you to use the currently high lifetime gift tax exemption amount by making gifts to your spouse; pay income taxes for the trust, which allows for indirect, nontaxable future gifts to the value of the trust for the trust beneficiaries; and still benefit indirectly from the trust through your spouse. Because the trust is designed to avoid using the marital deduction, the money and property in the SLAT will not be included in either your or your spouse’s gross estate for estate tax purposes.

Irrevocable Life Insurance Trust
Irrevocable life insurance trusts (ILITs) are still a tried-and-true method for leveraging life insurance to ease the burden placed on your estate if it will be subject to estate tax at your death. This type of trust is established by transferring an existing life insurance policy into the ILIT (or a new policy is purchased with money gifted to the trust). You would then make annual cash gifts to the ILIT to pay the premiums on the life insurance policy. At your death, the trust receives the insurance death benefit and distributes it according to the trust’s terms. Because the trust receives the death benefit and the premiums gifted to the trust are completed gifts, your estate would not include any of the trust’s value. This strategy can be a powerful method of leveraging relatively small gift tax exemption usage to create both liquidity for your taxable estate as well as significant accounts or property outside the estate to benefit your beneficiaries.

We Are Here to Help You
You can still implement these strategies today to significantly benefit yourself and your loved ones. If you feel that you can benefit from a deeper understanding and exploration of these and other strategies, please let us know. We would love to sit down with you and discuss whether any of these strategies make sense for your particular situation. Call us today!

When clients select a successor trustee for their trust, they frequently choose one person to serve as a successor trustee at a time. Many attorneys continue to recommend that only a single trustee be appointed to avoid the potential for disagreements or conflicts between co-trustees during the trust administration after the trustmaker’s death or disability. This can be a prudent approach and works well in many situations. This is particularly true when the appointed trustee diligently keeps the trust beneficiaries informed about the trust administration and carefully fulfils the trustee’s responsibilities under both the law and the provisions of the trust document.

However, many clients are reluctant to place the entire responsibility for trust administration on one person. As a result, it is increasingly common for a trustmaker to nominate two or more family members or friends to serve as successor co-trustees. In some cases, it may even be beneficial to divide the trustee responsibilities between a professional trustee and a family member trustee. For example, a professional trustee might be given the responsibility for trust investments, accounting, and tax matters, and the family member trustee may be asked to handle certain distribution responsibilities, such as the timing and amounts of distributions to a minor beneficiary. While this co-trustee approach can have some drawbacks, it also has benefits that may be worth considering.

Advantages and Disadvantages of a Co-trustee Approach

Choosing multiple individuals to serve as co-trustees offers the following advantages:

• Co-trustees can provide checks and balances to guard against potential abuses.
• Sharing or separating the responsibilities of trust administration among co-trustees can expedite the efficient administration of a trust.
• Depending on the terms of the trust, a particular co-trustee may be able to respond quickly to an emergency situation if none of the other co-trustees are available.
• Beneficiaries may be more likely to accept the actions and decisions of unified co-trustees as opposed to the decisions of a single trustee.
• Administrative responsibilities can be allocated among the co-trustees based on each co-trustee’s unique strengths and skills.

However, there are also disadvantages to consider:

• Disagreements between co-trustees can lead to conflicts or stalemates.
• Delays can result if the trust requires that all co-trustees be present and act together to conduct trust business.
• Financial institutions, individuals, and businesses may be reluctant to take direction from fewer than all co-trustees, even if the trust document authorizes a single co-trustee to act.
• Compensating multiple co-trustees for their time spent handling trust business can result in potentially higher costs.

What You Can Do to Help

As a professional advisor, you should discuss these advantages and disadvantages with your clients well before a client has a health event that could lead to their incapacity or death. Doing so will help them identify whether they are comfortable with their choice of one successor trustee or multiple successor co-trustees. This discussion may help your clients realize that they need to make changes to their estate planning documents, either to add another individual or a professional fiduciary as a successor co-trustee or to remove certain individuals listed as a co-trustee because of the potential for conflicts. Of course, we welcome the opportunity to meet with you and your clients to discuss available options and make any necessary updates to their estate documents to ensure that their documents better match their intent.

On the other hand, you may not learn of your clients’ choices regarding successor trustees until a client has passed away and the successor co-trustees are in your office asking for your help in the trust administration process. If that is the case, you will likely have to play the hand that is dealt and work to bring value to the client through alternative means.

As an advisor, you can play a crucial role in counseling the successor co-trustees by educating them on the financial and tax consequences of certain decisions, such as liquidating different types of accounts and property held in the trust in preparation for distribution. Alternatively, if a trust is being divided into separate subtrusts for tax planning or asset protection planning purposes, the co-trustees may need education on the different options for long-term investing of the trust property to help them fulfill their fiduciary duty under the law to prudently administer the trust. 

Counseling and educating co-trustees on these options may also help facilitate the resolution of conflicts that may arise between co-trustees during the trust administration. Your prior experience working with clients with similar conflicts can be a valuable resource to draw upon as you suggest possible compromises and solutions to the co-trustees for resolving their own conflicts. In this way, your professional advice can bring great value and clarity to an otherwise contentious impasse between trustees. The added value you bring to the table will increase the likelihood that the trustees will continue to rely on your professional advice and services throughout the trust administration and in the future.

Whether your clients have a single successor trustee or co-trustees, you can play a valuable role in helping them successfully navigate the many challenges and decisions that can arise during the trust administration. Contact us today so we can discuss additional strategies for working with successor trustees.

When we think of estate planning, we often think about preparing our accounts and property to go to our loved ones in a tax-efficient way, protected from probate, disgruntled heirs, beneficiaries’ creditors, divorcing spouses, bankruptcy, and the poor spending habits of children or other beneficiaries. We rarely consider preparing for receiving an inheritance of our own.

Believe it or not, there are some essential things you must consider when you anticipate receiving an inheritance. Understanding these issues can be crucial to protect that inheritance from unnecessary taxes and outside threats like creditors, divorcing spouses, and bankruptcy.

Understanding the Nature of the Property to Be Inherited

The first way to properly prepare to receive an inheritance is to discover what you will be inheriting. Is it real estate, a 401(k), or an individual retirement account (IRA)? Perhaps it is publicly traded stock, an interest in a family business, or just simply cash from a savings account or life insurance policy.

Whatever it is, there are steps you can take today to plan to receive and manage it properly. For example, if you will receive a large IRA account from a parent, do you understand the new rules associated with inherited IRAs as implemented by the SECURE Act passed in late 2019? If not, you should educate yourself now on how to maximize the tax benefits available under the law regarding required distributions. Without an understanding of these often complicated rules, you could make an irreversible mistake and withdraw all of the IRA funds at one time, thereby substantially increasing your tax liability in the year of withdrawal. There are a variety of nuances to these rules that a tax adviser or attorney can help you understand and navigate properly.

Likewise, if you are receiving rental property as a part of your inheritance, you should consider the business of being a landlord and if you even have an interest in continuing to operate such a venture. If not, you may want to prepare to find a buyer for the property who can offer you a fair price as soon as possible. Or, at the very least, look into hiring a property management company to take over as soon as you inherit the property. 

Powers of Appointment

If your loved one has completed trust planning that includes establishing an irrevocable trust for you, such trusts frequently include important features that are generally referred to as powers of appointment. A power of appointment in a trust is a right, often given to the beneficiary of the trust, to gift trust property to someone else or, in some cases, to yourself. These powers are often limited to making gifts to only certain classes of people (such as the descendants of the trustmakers), or they may be limited to making gifts only at death (a testamentary power of appointment) or during life (a lifetime power of appointment). Some trusts include both types of powers. These can be powerful planning tools that have been given to you through trust documents. Failure to recognize the existence of these powers can lead to unintended consequences, or at the very least, crucial missed asset protection and tax-planning opportunities. 

If you know that you have been granted a power of appointment, you should attempt to obtain a copy of the relevant trust documents to carefully review and determine the nature of these powers. An experienced estate planning attorney can help you with this task. With this information, your professional advisers can properly advise you on the planning opportunities and tax consequences of the powers of appointment that may be available to you. 

Keeping Inheritance Separate from Marital Property

A common mistake made by married individuals who receive an inheritance is to commingle that inheritance with the property of both spouses. How can this be a mistake? An example may best illustrate the point:

Imagine Robin receives a cash inheritance from her deceased father of $300,000 and she and her spouse Morgan decide to use the inheritance to buy a vacation cabin in the mountains. When purchasing the property, the title company assumes that because they are a married couple, they want to take title to the property as joint tenants with rights of survivorship and the deed gets prepared and recorded accordingly. Further imagine that over the years, they furnish the property together, maintain it, and enjoy many family vacations there. One night, however, Morgan has a little too much to drink at a bar, gets behind the wheel, and causes a deadly accident that results not just in a DUI, but also in a wrongful death lawsuit. Because Morgan’s name is on the title to the property as a joint owner, Robin and Morgan discover that the family cabin is an asset that can be used to satisfy the lawsuit judgement against Morgan. As a result, they are forced to sell the cabin and use half of the proceeds to satisfy the judgement.

This unfortunate circumstance can be the result of Robin’s failure to keep her inheritance as separate property. By commingling her property with Morgan, she made it much easier for the judgment creditor in the lawsuit to reach what otherwise would have been considered Robin’s separate inheritance property.

Commingling inherited property can also lead to a similar result if Robin and Morgan ultimately divorce and the family court judge has to determine how to divide the marital property. Failing to keep the inherited property separate during marriage can often lead to that property being divided between spouses at divorce. This is very state specific and even keeping inherited property separate may not keep it from being included in the marital estate in a divorce. Consulting with a family law attorney is always best.

Inheritor’s Trust

A fourth way for you to prepare to inherit property is by using an inheritor’s trust. This is a special type of trust that can be established by the individual who will be leaving an inheritance to you. An inheritor’s trust is designed to receive the inheritance that you would otherwise receive directly. It must be carefully designed and implemented to work properly, and an experienced estate planning attorney should most certainly be used in the effort. A properly drafted inheritor’s trust includes the following key elements:

• It is created and signed by the individual who will be leaving you an inheritance, not by you
• The trust creator names the trust instead of you as the beneficiary of their will or revocable living trust
• It typically has a spendthrift clause or is otherwise designed to protect the inherited property from creditors, divorcing spouses, lawsuits, bankruptcies, etc.
• You are the beneficiary of the inheritor’s trust
• You may also be named as the trustee or co-trustee of the inheritor’s trust, depending upon how protective the trust needs to be of the trust property

An inheritor’s trust includes the following benefits:

• The inheritance can be excluded from your taxable estate, potentially saving your family estate taxes
• The trust can be a more cost-effective way to protect the assets instead of your loved one revising their existing plans
• Upon your own death, the inheritance will be distributed outside of your probate estate, which can help ensure privacy and lower attorneys fees and administration costs
• The inheritance will likely be protected from creditors, lawsuits, and divorcing spouses
• In some circumstances, the inheritance can even be controlled and managed by you as a trustee
• You can decide how remaining trust assets will be distributed after you pass away if the trust gives you that power (through powers of appointment)

An inheritor’s trust can be a powerful tool to use when you anticipate receiving a large inheritance and would like to make sure that the inheritance is protected from certain tax consequences or threats from creditors. 

If you would like to learn more about any of these concepts, give us a call. We would love to discuss these ideas in greater depth with you so we can help you build and protect your wealth more effectively.