Category: Estate Planning (Page 3 of 4)

Too much trustee discretion prevents elderly beneficiary from Medicaid eligibility.

October 21, 2019 / drussellcfp

A New York Appeals court recently affirmed the State’s Medicaid division’s decision to deny Medicaid eligibility to the beneficiary of a trust, arguing that the trust gave the trustee too much discretionary authority. The case underscores the need to have an experienced attorney familiar with local Medicaid rules, draft trust documents where protecting Medicaid eligibility is a major concern.

In this instance, the applicant’s son was trustee of a living trust established for the benefit of the applicant. As trustee, the son took out a home equity loan using trust assets as collateral, and used the loan proceeds to pay for his father’s living and caregiving expenses. Once the trust assets were depleted, the father applied for Medicaid benefits but was denied because the State ruled that the trust assets were available to the applicant, and imposed the required “look-back rule” in denying eligibility.

In upholding the State’s determination, the Appeals Court stated:

Because the trust instrument gave the trustees broad discretion in the distribution of the trust principal, including for petitioner’s benefit, the agency did not err in concluding that the principal is an available resource for purposes of petitioner’s Medicaid eligibility determination

For the full text of the ruling, click here.

Dying with Debt

October 3, 2019 / drussellcfp

At some point in our lives we may ask ourselves: “If I die and have debt, who or what will be responsible for paying back those I owe?”

One survey from Experian found that 73% of Americans are likely to die with debt. Another from Credit.com found that 73% of people who died between October and December of 2016 had outstanding debt. The average bill they left on the table was $61,554.

The laws regarding debt after death are defined by each state so there isn’t a single answer to the question above for everyone. On most occasions, the only time a family member would be responsible for your debt is if they cosigned a loan with you. People generally do not inherit another person’s debt. When we die, a new entity emerges, called our estate. An “Estate” represents your assets and your liabilities. Upon death, a legal process called “Probate” (which is the first step of administering the estate of a deceased person), will resolve your debts and distribute your remaining assets to your heir(s). Creditors may legally seize assets within your estate (money or property) in order to cure a debt owed to them. If you have no assets, your creditors may have to take a loss on your debts. Depending on the state you live in, a creditor has a fixed amount of time to make a claim against your estate for payment.

There is a legal pecking order as to who is allowed first claim to retrieve money from your estate. The higher priority goes to funeral expenses, administrative expenses, and federal taxes. The estate may then pay off expenses from the last illness and state taxes. At the bottom of the barrel are unsecured creditors, like credit card companies. Generally, all debts must first be paid by the estate before any remaining assets are distributed to an heir. An outstanding credit card balance, for example, must be paid before any money or gifts can be distributed to an heir. If there are not enough assets to pay the debts, then all assets and property will be sold to pay down as much of the debt as possible and the heir will inherit nothing.

In the case of secured debts (e.g. home mortgage or auto loans), property (which is collateral) may be distributed with its debt. For example, you own a car worth $15,000 and the loan on the car is $7,500. If you die and leave that car to someone, it will become that person’s obligation to pay off the loan. Except for certain situations (which include joint property or joint debt), creditors are unlikely to go after surviving family members when a debt cannot be paid by your estate money. The majority of married couples have joint accounts and joint debt. In these situations, a surviving spouse will be held legally responsible for the debt of their deceased spouse even if they did not generate the debt themselves. This is something that will often cause problems for surviving spouses who financially cannot pay off old debt and meet their everyday needs.

If a creditor contacts a surviving family member about a debt of a relative who has died, the family member should give the creditor the contact information of the decedent’s representative. The representative is responsible for paying any outstanding debts from the estate. If a will exists, the representative is known as the executor; if there is no will, the representative is known as the administrator.

In community property states (where married couples are considered to own their property, assets, and income jointly) credit accounts opened during marriage are automatically considered to be joint accounts. This could affect what your spouse will have to pay, depending on the debt that you incurred. The following states are community property states:
• Arizona
• California
• Idaho
• Louisiana
• Nevada
• New Mexico
• Texas
• Washington
• Wisconsin

One important exception to these general rules is if there is unpaid Federal Estate Tax. In a recent Nebraska case, a beneficiary who received property from his mother by gift and at the mother’s death was personally liable for the unpaid estate and gift tax. The beneficiary received four parcels of real estate from his mother by gift or at death. Gift and estate tax returns were not filed by the decedent or her estate. The IRS determined that the estate owed gift and estate taxes, plus penalties and interest, so the court ordered the sale of two properties owned by the beneficiary to satisfy the estate and gift tax liabilities.

To conclude, when you pass away, your estate is responsible for paying off any balances owed by you, not your family. If your estate goes through probate, your administrator (or executor) will look at your debts and assets and, guided by the laws of your state, determine in what order your bills should be paid. The remaining assets will be distributed to your heirs according to your will or state law.

Sources:

Sullivan, B. 2018, January 11. State of Credit: 2017. Retrieved from https://www.experian.com/blogs/ask-experian/state-of-credit/

DiGangi, C. 2017, March 31. Americans Are Dying With an Average of 62K of Debt. Retrieved from http://blog.credit.com/2017/03/americans-are-dying-with-an-average-of-62k-of-debt-168045/

Saret, L. 2019, September 23. Widtfeldt v. Commissioner, U.S. Dist. Court, D. Nebraska: Beneficiary Personally Liable for Unpaid Estate + Gift Taxes. Retrieved from https://wealthstrategiesjournal.com/2019/09/23/widtfeldt-v-commissioner-u-s-dist-court-d-nebraska-beneficiary-personally-liable-for-unpaid-estate-gift-taxes-sept-17-2019/ .

Daughter of woman whose partner predeceased her mother by 12 days, in court fight over inheritance.

September 26, 2019 / drussellcfp

A woman fighting for her multi-million dollar inheritance might have to forfeit the entire fortune to charity thanks to a poorly-written will — a case that has raised questions about the rights of unmarried gay couples and their children.

Jill Morris, died of breast cancer in 2016 at age 84 and left a multi-million dollar estate to her long-time partner, Joan Anderson, with whom she had an 18 year relationship. Anderson died of a stroke just 12 days after Morris, and, according to Morris’ last will and testament, her estate was to be divided among three charities if Anderson did not survive her by thirty days.

A Manhattan Surrogate Court Judge has ruled that the estate belongs to the charities. Emlie Anderson, Joan Anderson’s daughter claims the judge should have known that Morris would not have included such “harsh wording in her will.”

It’s upsetting to me. It’s like they’re trying to negate my mother and her relationship with Jill, she told the Daily News. That’s what they’re saying, that their relationship wasn’t important.

Source: Woman fighting for late mother’s inheritance plans to appeal after Manhattan judge decides multi-million dollar fortune should go to charity – New York Daily News

Prior Correspondence: A Key Tool in Preparing Your Estate Dispute Case for Trial | Estate Conflicts

September 25, 2019 / drussellcfp

Attorney Brett Hebert, with the national law firm, Gordon Rees, recently wrote an article on the firm’s blog regarding the admissibility of certain correspondence in estate litigation cases.

A typical situation we see involves an elderly person who begins to show signs of losing mental capacity. Then an unscrupulous person “enters” the life of the elderly person, begins to take “care” of the elderly person, and begins to “help” the elderly person with their finances and medical care. Then the elderly person’s estate plan (trust, will, power of attorney) “changes” dramatically to the benefit of the unscrupulous person (and to the detriment of former beneficiaries). As a result, the former beneficiaries of the elderly person begin to ask the unscrupulous person about the changes. The unscrupulous person may send correspondence in return. The elderly person may correspond with the former beneficiaries, too.
These communications typically come in the form of emails, texts, and letters. Sometimes, people post on social media about the disputes. There may even be voicemails or handwritten notes. All of these items are potentially relevant to the dispute and subsequent litigation.

If you suspect that a loved one may have been influenced by someone with ulterior motives, retention of any correspondence with that person or with the possible victim could be beneficial to your case.

Source: Prior Correspondence: A Key Tool in Preparing Your Estate Dispute Case for Trial | Estate Conflicts

Estate Planning Pitfalls for Older Couples Living Together.

September 16, 2019 / drussellcfp

An increasing number of Americans ages 50 and older are in cohabiting relationships, according to a new Pew Research Center analysis of the Current Population Survey. In fact, cohabiters ages 50 and older represented about a quarter (23%) of all cohabiting adults in 2016. One reason could be the adult children’s rejection to their older parent’s marriage, especially if the relationship formed soon after the death of the other parent. Approximately 23% of cohabiters over age 65 are widowed.

However, as with many things in life, what seems simple — living together — is often quite complex. Unmarried couples, of all sexual orientations, can face a variety of problematic and emotionally difficult issues because estate planning laws are written to favor married couples.

Unmarried partners need to consider the following issues related to estate planning and living together:

Medical incapacity: In the absence of a durable power of attorney for healthcare, non-married individuals may be treated as “legal strangers” and unable to make healthcare decisions on behalf of their partner.
Living arrangements: If the wealthier partner dies or becomes incapacitated with no provision for the other partner to remain in the home (by a will or title) the other partner can be forced from the home by blood kin.
Dying without a will: Intestacy laws (state laws that determine where a deceased’s property goes when there is no will) are not favorable to unmarried partners.
Employer Retirement Plans: Plans like 401k’s, profit sharing, and pension plans, as well as group life insurance plans are governed by a federal law known as ERISA. This law requires that a spouse be the beneficiary of these plans in the event of the employee’s death unless waived by the spouse. No such protection is afforded unmarried partners unless the partner is listed on the Plan’s beneficiary form.

For more, see Brad Wiewel, The Legal Dangers of Living Together, Next Avenue, August 28, 2019.

Older Investors Also Want to Know the Impact of Impact Investing

September 12, 2019 / drussellcfp

Contrary to popular belief, older investors have as much of an appetite for impact investing as their younger counterparts.

Articulating social impact is not only about measuring an investment’s good in the near term but showing (particularly older) investors how their capital can leave its mark long after they’re gone. Fund managers who may be used to younger investors forking over their cash for social impact will have to increasingly gear their pitches toward an aging generation that, already in retirement, has less willingness to take on risk, less time to make investment decisions and more skepticism about social impact.

Source: Investors Want to Know the Impact of Impact Investing

Life Insurance Options for the Terminally Ill

September 10, 2019 / drussellcfp

The emotional stress of dealing with one’s impending death due to a terminal illness like cancer, AIDS, etc., is further compounded by the customary increase in medical bills and a likely reduction in earning capacity.

A person owning life insurance policies may have several options for reducing some of his or her financial concerns.

Methods of Reducing Financial Concerns

Borrow against cash values: Permanent type policies such as whole life, variable life, universal life, etc., build up cash values over the years. The owner of the policy is usually able to borrow money from the cash value, often at favorable interest rates. When death occurs, the policy loans and any interest will be subtracted from the face amount of the policy before payment is made to the beneficiary. If there is also a “waiver of premium” provision the insured may be relieved of the monthly premium payments, in certain circumstances.
Surrender the policy: Policies with accumulated cash values can be surrendered to the life insurance company. However, this would generally not be desirable, since the face amount of the policy is usually much higher than the surrender value and the time of death is close. There may also be income tax consequences.
Borrow funds from a third party: Other friends, family members, and possibly the beneficiary of the policy may be willing to lend money to the person who is terminally ill and then receive repayment from the insurance proceeds.
Accelerated death benefits: Some life policies provide for payment of a portion of the face amount if the insured becomes terminally ill. This is generally called a “living benefit” or an “accelerated death benefit.” Even if it is not mentioned in the policy the company may have extended the right to the policy owner; the availability of such benefits should be investigated. Some companies require the owner to have a life expectancy of from six to nine months or less. Terminally ill persons (diagnosed by a physician as expected to die within 24 months) may receive accelerated death benefits free of federal income taxes. Chronically ill individuals may also exclude from income accelerated death benefits which are used to pay the actual costs of qualified, long-term care. See IRC Sec. 101(g) for more detail.
Viatical settlements: Another option is to sell one’s life policy to a third party[1] in exchange for a percentage of the face amount. This is called a viatical settlement. It comes from the Latin word “viaticum” which means “supplies for a difficult journey.” These settlements may also be available with contracts that have no cash value such as individual or group term life insurance policies. Factors which will determine the amount of the settlement include:
- The insured’s life expectancy is a factor. In general, the shorter the period, the more a viatical settlement company will pay. Some companies will accept up to a five year life expectancy, but many prefer a shorter term of years.
- The period in which the company can contest the existence of a valid contract must have passed, as well as the “suicide provision” (typically two years after issue). This period may begin again for policies that have been reinstated after a lapse for nonpayment of premium.
- The financial rating of the company that issued the policy is important. A lower rating can result in a smaller settlement.
- The dollar amount of the premiums is a factor. The buyer of the policy is likely to be required to continue making the payments for the remainder of the insured’s lifetime.
- The size of the policy is a factor. Most settlement companies have upper and lower limits; for example, a top limit of $1,000,000 down to a low-end limit of $10,000.
- The current prime interest rate is important, since the buyer will compare the settlement agreement to other types of investments.

After examining the above factors, a settlement company will generally offer the owner of the policy between 25% and 85% of the policy’s face amount. The settlement amount may be received free of federal income tax under conditions similar to those described above under “accelerated death benefits.”

Other Considerations

If the terminally ill person is presently receiving benefits that are dependent upon his or her “means” (income or assets), like Medicaid, food stamps, etc., he or she must weigh the effect of a viatical settlement on these benefits. Benefits may be terminated or reduced until the settlement amount is “spent down.”
If the policy also has an accidental death or dismemberment rider, those rights should be specifically retained by the insured in the viatical settlement agreement. The time between applying for a viatical settlement and having the cash is generally three to eight weeks. However, this will depend on how quickly the medical information and beneficiary release forms are in the hands of the settlement company.
Most viatical settlement companies stress the confidential nature of the transaction but they require the named beneficiary to release any possible claim to the proceeds. If the insured does not want the beneficiary to know of the illness, he or she may change beneficiaries just prior to completing the settlement. If the estate were named as beneficiary, the insured (owner) would be the only one who would need to sign the release forms.
If death occurs before the viatical settlement is completed, with the insured’s estate as the beneficiary, the life insurance proceeds would be paid to the estate and may be subject to probate administration.
Viatical settlement of group insurance policies will usually require that one’s employer be notified.
Confidentiality may also be lost if the policy is sold by the settlement company in the “secondary market” to individual investors, since a new investor would want to know the health status of the insured.
An escrow account is generally used to make certain that the payment of the agreed upon amount is made to the insured shortly after the insurance company notifies the escrow company that the ownership of the policy has been transferred to the viatical settlement company.
Several viatical settlement companies should be investigated in order to negotiate the best offer.

Typical Uses for the Cash Received Include

Cover out of pocket medical expenses.
Finance alternative treatments not covered by existing medical insurance.
Purchase of a new car or finance a dream vacation.
To be able to personally distribute cash to loved ones.
Ease financial stress to perhaps further extend life expectancy.
Maintain one’s dignity by not dying destitute.
Pay off loans.

The sale of one’s life insurance policies can have far reaching effects and should be done only after consulting with one’s attorney, certified public accountant or other advisors.

[1] Effective January 1, 2018, the Tax Cuts and Jobs Act of 2017 established a new requirement to report certain information when a life insurance policy is acquired in a “reportable policy sale.” A reportable policy sale refers to the acquisition of an interest in a life insurance contract, directly or indirectly, if the acquirer has no substantial family, business, or financial relationship with the insured, apart from the acquirer’s interest in the life insurance contract.

I’m Trustee For My Parents’ Trust – Now What?

September 9, 2019 / drussellcfp

So, your parents have a trust, and you’ve just found out that you are the trustee. Do you thank them or did they reward you with the booby prize? A trustee is held to a high standard of accountability and must act in accordance with an established standard of care as outlined below. To fail in one or more of these – called a breach of fiduciary duty – is to invite litigation and sometimes results in broken family relationships where a family member is also the trustee. Professional trustees, like banks with trust departments, or corporate trustees will be given very little leeway if they fail in any of these duties, but untrained family members or individuals who find themselves in this unenviable position are often not excused for lack of knowledge either.

Duty of loyalty. A trustee has a fundamental duty to administer a trust solely in the interests of the beneficiaries. A trustee must not engage in acts of self‐dealing.
Duty of administration. The trustee must administer the trust in accordance with its terms, purposes, and the interests of the beneficiaries. A trustee must act prudently in the administration of a trust and exercise reasonable care, skill, and caution, as well as properly account for receipts and disbursements between principal and income.
Duty to control and protect trust property. The trustee must take reasonable steps to take control of and protect the trust property.
Duty to keep property separate and maintain adequate records. A trustee must keep trust property separate from the trustee’s property and keep and render clear and accurate records with respect to the administration of the trust.
Duty of impartiality. If a trust has two or more beneficiaries, the trustee must act impartially in investing, managing, and distributing the trust property, giving due regard to the beneficiaries’ respective interests.
Duty to enforce and defend claims. A trustee must take reasonable steps to enforce claims of the trust and to defend claims against the trust.
Duly to inform and report. A trustee must keep qualified trust beneficiaries reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests.
Duty of prudent investment. A trustee who invests and manages trust property has a duty to “invest and manage trust property as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust.

Much like the position of Executor, the role of Trustee is not to be accepted lightly and can often be a lifetime of responsibility. If you are not comfortable serving in this capacity, discuss this with your parents now so that alternate plans can be made.

Trusts are excellent vehicles for protecting an estate from creditors, transfer taxes, or misbehaving heirs. Their operation may be simple or complex, but it is incumbent upon you to talk to your parents about their trusts, and especially who the parties are if you are in the role of financial caregiver.

Source: American Bankers’ Association.

Brady Bunch Estate Planning: Balancing the Duty of Loyalty

September 3, 2019 / drussellcfp

It is a well established principle of trust law that trustees are fiduciaries who owe specific duties to the beneficiaries of a trust. These duties can be grouped into duties of loyalty and duties of care.

But what if a trust has beneficiaries with adverse interests to one another? It is not uncommon for a trust to have two kinds of beneficiaries – a current beneficiary as well as a remainder beneficiary. That is, the current beneficiary may have rights to the income from the trust, and perhaps even discretionary rights to the trust’s assets (also known as the trust principal or corpus); whereas the remainder beneficiary may have rights or equitable interest in what is left in the trust (the remainder) after a period of years or upon the death of the current beneficiary. These adverse interests can test the mettle of most individual or family trustees as both beneficiaries are owed duties of loyalty and care.

Suppose Mike Brady created a trust to take effect at his death. His trust includes the following (summarized) instructions:

At my death, my trustee shall pay to my surviving spouse the net income from my trust for as long as my spouse shall live.
In addition to the net income, my trustee may also pay to my surviving spouse from the trust’s principal, as much as my trustee shall deem necessary to maintain my spouse in [her] accustomed standard of living.
Upon my spouse’s death, my trustee shall distribute my trust to my surviving children (Greg Brady, Peter Brady, and Bobby Brady) in equal shares.

Now supposed that when Mike Brady dies, Carol Brady is appointed to serve as trustee of Mike’s trust. Or, perhaps Mike’s oldest son, Greg, is appointed as trustee. This is not only permitted but done frequently, presumably to avoid paying a professional trustee. The conflicts to the Duty of Loyalty are obvious.

For example, if Carol Brady is trustee, it stands to reason that she would want to maximize current income from the trust while minimizing principal growth. Likewise, if Greg is trustee, he would want to maximize his ultimate share of the trust by investing for growth rather than income. In addition, asking either party to objectively define “accustomed standard of living” puts them both in awkward, if not conflicting positions. Should Alice’s services as a live-in housekeeper continue to be paid after everyone has moved on? Carol could certainly argue that the expense met the accustomed standard of living test, but would Greg require Carol to pay for it herself, or would he deny it saying it wasn’t necessary any longer?

Perhaps when Mike and Carol were in the attorney’s office, their response to these hypothetical situations was typical. “Oh our kids would never argue over this.”

It is possible to be loyal to both beneficiaries even if there are adverse interests. However, doing so requires a great deal of objectivity, scrutiny, and immunity to emotional persuasion. A wise trustee will establish clear expectations and open communication early in the relationship to avoid favoring one beneficiary over the other and risk breaching the duty of loyalty.

How often should legal documents be reviewed?

August 30, 2019 / drussellcfp

Once a legal document is completed and signed, it is often carefully laid to rest in a safe deposit box or file drawer and comes out again only when a party dies or a conflict arises.

Prudent persons periodically review and update their legal documents. Just how often depends, of course, on the document and which circumstances have changed. The following list sets forth some events that may require the updating of a legal document.

Life Events

● Marriage.
● Dissolution of a marriage (divorce).
● Death of a spouse.
● Disability of a spouse or child.
● A substantial change in estate size.
● A move to another state.
● Death of executor, trustee or guardian.
● Birth or adoption.
● Serious illness of family member.
● Change in business interest.
● Retirement.
● Change in health.
● Change in insurability for life insurance.
● Acquisition of property in another state.
● Changes in tax, property or probate and trust law.
● A change in beneficiary attitudes.
● Financial responsibility of a child.

If there is any question as to the effect of a change in circumstances on your will, trust, buy-sell agreement, asset titles and beneficiary designations, etc., contact the appropriate member of your team and have it reviewed before a crisis arises.