Wednesday, March 14, 2012 Advice for Executors: How to Manage Final Medical Expenses
Most people die in a hospital; sometimes after a long and slow decline, sometimes after a quick and unexpected tragedy. If you are an executor of the deceased’s estate this is significant because it means that there are usually final medical bills to be paid. What most executors do not know is that these final medical bills are not necessarily just like all the other final expenses, especially when it comes to filing a final tax return for the estate; this article from SmartMoney.com explains why.
“…When a person incurs medical expenses and dies before they are paid, the executor of the decedent’s estate can elect to treat those medical expenses as if they were paid when incurred – as long as the estate pays the expenses within one year after the date of death. In other words, this election allows those expenses to be deducted on the decedent’s final Form 1040, even though they were not paid by the date of death.”
Many executors may not think of this because medical expenses can only be deducted if they exceed a certain percentage of the deceased’s adjusted gross income (7.5% to be exact); but health care being what it is, final medical expenses can quite often reach this point.
This sounds easy, but be careful if the deceased’s estate exceeds the $3.5 million estate tax exemption—you may want to look into other options. The article suggests that in this case it might be beneficial to “forgo the election and count the unpaid medical expenses as liabilities on the estate tax return.”
As the executor of an estate you may have more options than you are aware of when it comes to taxes, probate, and achieving the best results for the beneficiaries. If you are unsure about any of these—or other—issues, please contact our office, we can help advise you on all angles of the trustee or probate process.
Friday, March 02, 2012 What To Do After A Death In The Family
Anyone who has lost a close friend or family member knows that what a difficult, painful, and overwhelming time it can be. We are often asked to help our clients through probate process when a loved one dies, but probate isn’t the only thing you’ll have to think about; in fact, it may not even be the first thing you should think about. We know that nothing can make this process easy, but we hope this brief guide can help make the process of dealing with the death of a loved one somewhat less overwhelming.
1. The first thing you’ll want to do is call close friends and family. They will share in your grief, and they can also share the responsibility of notifying others.
2. Contact a funeral director. This person can help walk you through the process of planning a memorial, making burial arrangements, and even writing an obituary. This can often be the most overwhelming task, not because it is particularly difficult, but because it has to be done so quickly; sometimes before the reality of death has had a chance to sink in with the survivors.
3. Find out if your loved one had a will. Contact their attorney (if they had one) and make sure you have the original for the probate court. If you aren’t sure how to file with will with the probate court you can contact an attorney, or check the website of the local probate office for the deceased.
4. Order multiple copies of the death certificate. You will need these for the insurance company, as well as for some of the steps below.
5. Collect the mail and contact all utility companies, credit card companies, debt collectors, etc.; call to notify them of the death and stop services.
6. Go through the deceased’s files and paperwork. This can be tedious, time-consuming, and confusing, depending on how organized your loved one was. This is important information you (or the executor or trustee) will need to file final tax returns and pass on to the probate court, so don’t be afraid to ask for help when you need it.
Dealing with the death of a loved one is one of the most difficult and overwhelming things you may ever have to do. If you are having a particularly hard time with the grieving process don’t be afraid to ask others to help with the more difficult items, or to hand the list over entirely to someone else if you feel unable to cope. This is when your own probate or estate planning attorney (or the deceased’s attorney, if they had one) can be especially helpful.
Although it sometimes feels as if time should stand still when someone we love passes away, life does go on, for better or worse. But the world is full of caring and knowledgeable people to help you through the process… if you only know where to look.
Monday, February 13, 2012 5 Basic Tips for Trustees
Naming someone as trustee of your living trust is quite possibly one of the most difficult decisions you’ll ever make. The trustee is involved in just about every aspect of the administration of a trust; and although it is considered a great honor, it can also be a great responsibility.
Most people choose someone close to them to serve as trustee: a best friend, son or daughter, brother or sister. Choosing someone who knows you and your family to serve in this role can be beneficial in many ways, but if that person doesn’t have a financial or legal background the responsibilities can be overwhelming! It is important that the person you nominate as trustee knows not only what is expected of trustees in general, but also knows what you expect of them as a trustee. For this reason, you may want to consider giving your nominated trustee these 5 Basic Tips for Trustees—and don’t forget to add your own personal requests as grantor.
1. Make sure you read and understand the entire trust document. If you don’t have a legal background it is okay (preferable, in fact) to ask for help from an attorney.
2. Always remember that the beneficiaries of the trust are your first priority and responsibility. Once you are trustee you have what is called a “fiduciary duty” to always act in the best interests of the beneficiaries.
3. Make sure that the trust has its own separate checking account. If the trust is a living trust you as trustee will likely be the person who creates that separate account after the death of the grantor. Under no circumstances should a trustee mingle personal finances with trust finances.
4. Maintain regular contact with the beneficiaries; not just to provide them with regular accountings of trust activity or investments, but also so you yourself can remain aware of the lifestyle, needs, and feelings of all the beneficiaries.
5. Be sure you have a support team that will benefit the trust and the beneficiaries. Get investment advice from a financial professional; have a trusted attorney help with any legal questions you might have; hire a mediator to help if there are irreconcilable differences amongst the beneficiaries. The goal here is not to spend the trust funds frivolously, but to protect and preserve trust assets as the grantors would have wished for their beneficiaries.
Friday, December 02, 2011 Speculation About the Estate of Steve Jobs Continues
The public has been curious about the estate of Steve Jobs ever since he passed away in early October, but with his assets wisely protected with a trust, his family's privacy regarding the distribution of inheritance has remained intact. (Privacy is only one of the many benefits of using a trust as part of your estate plan.) However, what is not a secret is that Mr. Jobs’ significant investments in both Disney and Apple stock will pose some interesting questions for his advisors and heirs. Whatever the family chooses to do, it's clear that estate tax and capital gains tax laws will have to be taken into consideration.
This article in Investment News discusses what Jobs’ trustees or heirs might choose to do with his valuable investments. According to the article Jobs had billions of dollars invested in Apple and Disney stock. Now, “under the U.S. Tax Code, his heirs may sell shares of Apple and Disney, and avoid $867 million in capital gains taxes. If Apple's late co-founder left his estate to his wife, Laurene Powell Jobs, the family won't be liable for the 35% estate tax until she dies or gives money to others, according to estate planners.”
An executor or trustee has a responsibility not only to follow the wishes of the grantor of the trust, but also to look out for the best interests of the beneficiaries; which in this case may include selling or diversifying investments Jobs had chosen to hold onto for sentimental reasons.
Additionally, any executor or trustee will have tax laws to consider--not only the laws in place right now, but any changes to the estate or capital gains tax laws being considered by Congress for 2013. “The capital gains tax is set to rise to 20% in 2013, from 15%, and high-income Americans also will be subject to a 3.8% levy on unearned gains.” This means that advisors and heirs won’t want to wait too long before making any decisions.
The estate of Steve Jobs may be larger than most, but the same issues and questions will face the executors, trustees, and heirs of estates of all sizes. Whether you are a grantor, executor, heir or trustee, our office can help you through any questions or concerns you may be facing. Don’t be afraid to contact us.
Monday, October 03, 2011 The Pros and Cons of a Crummey Trust
If you are looking for a reliable way to leave financial gifts to family members you may find that a Crummey trust is the right estate planning strategy for your family. A recent article in the Wall Street Journal explains that “Crummey trusts are used in many circumstances, but are best suited for making gifts to minors—especially when a parent is giving money to a young child who isn't ready to handle a large sum.”
While it’s true that Crummey trusts can be a very convenient and reliable estate planning tool, they do require a certain amount of annual attention and maintenance, and may not be the right strategy for everyone.
Crummey trusts can be used for many different kinds of assets, but they are most commonly used to protect life insurance policies from estate taxes. Your estate planner can help you set up the Crummey trust and use it to purchase a life insurance policy. Then you “fund the premiums with annual gifts... That gets money out of the estate while skirting the gift tax. Since the trust owns the policy, the death benefit ultimately goes to the trust, shielding it from federal estate taxes.”
Once the initial work of setting up the trust and buying the insurance policy is done, “The trustee must send out ‘Crummey letters’ each year, informing beneficiaries that they can withdraw the gifted amount during a window of time, say 30 days. Usually, the beneficiary leaves the money in the trust. But the IRS considers it a tax-free gift only if the person has the right to take it in the short term, and the Crummey letter proves that he has that right.”
Sending letters once a year isn’t a difficult task, but forgetting even once can lead to consequences with the IRS. Our advice is to be very careful to select a trustee you can count on to be timely and detail-oriented with the Crummey letters. Alternatively, the estate planner who set up your trust will often be willing to take over the administrative task of sending annual Crummey letters as well. Contact our office for more information. Monday, August 29, 2011 Should Beneficiaries Also Serve as Executor or Trustee?
When someone
creates a will or a trust of course they want to choose a dependable and
trustworthy person as executor or trustee. For most people this means someone
close to them—a family member or friend, or often the most responsible of their
adult children. However, this often means that the person they’ve chosen as
executor or trustee is also a beneficiary. The question that occurs is this: Is it a conflict of interest to be both executor/trustee
and beneficiary?
As executor
or trustee a person has a legal duty to manage the property in the decedent’s
estate for the benefit of the trust or estate beneficiaries. This means that
while the executor/trustee should be compassionate, he or she must act in an
equal and unemotional manner toward ALL the beneficiaries.
A
beneficiary, on the other hand, is often by definition emotional. Even those
beneficiaries who are not concerned with the monetary aspect of their
inheritance (and let’s be honest, many heirs are more concerned with the dollar
amount than they might let on) will likely be emotionally invested in the heirlooms
of the estate. Many family feuds are sparked when siblings can’t agree on who gets
the family silver or great grandma’s engagement ring. And the potential for
conflict only increases when real estate is involved.
If you are
creating your will or trust, the best way to avoid this conflict is to be as
specific as possible in your instructions to your executor and beneficiaries. Spelling
out in no uncertain terms who gets the family silver will decrease the chances that
the executor will be tempted to take advantage of his or her position. You may
also want to consider naming a disinterested party as a trust advisor or
co-executor to provide checks and balances throughout the administration
process.
If you are a
beneficiary who is also serving as executor/trustee there are a few things you
can do to ensure you keep your executor and beneficiary roles separate:
* You may
want to consider contacting a probate or estate planning attorney to mediate or
oversee the process.
* Rely on
random but fair methods (such as flipping a coin, drawing straws, or organizing
a round robin) to distribute unassigned personal property with emotional value.
* Be sure to
involve an impartial appraiser if real property is involved.
* If all
else fails, an executor or trustee is always permitted to step down and hand
the role over to a qualified and disinterested party. Friday, July 29, 2011 Retirement Assets May Be Unpleasant Surprise for Heirs
You’ll often read news articles or blog posts about saving for retirement—when to start, how much to save, what savings or investment plan is best—but there’s an important retirement topic which often goes underreported: How these retirement accounts impact your heirs.
As noted by this article in the Wall Street Journal, “The new, higher threshold for the federal estate tax has many heirs happily thinking they won’t have to surrender a big piece of their inheritance.” But these heirs “may need to think again if they’re in line to receive a lot of money from tax-protected retirement accounts like 401(k)s and IRAs.”
Many (if not most) retirement assets these days are IRD assets, this is “income in respect of a decedent,” and it means that the assets are income earned by a person, but not taxed or received before that person passed away. These IRD assets can be wonderfully beneficial to the investor... but they can be an unpleasant surprise for heirs, who will end up paying the taxes on these assets.
“Heirs who receive retirement accounts often pay far more tax on IRD than they have to, collecting payments from the plan but failing to take an annual deduction that is available to beneficiaries. Sometimes that’s because the tax attorney who planned the estate knew about the deduction, but the accountant who prepares the heir’s taxes doesn’t.”
Some of the solutions suggested in the article are to take advantage of a recent rule change which allows many IRD savings accounts to be converted to Roth 401(k)s. Taking advantage of this and converting the money to a Roth allows the owner to pay any applicable taxes now, so that heirs won’t be liable. Another option is to move money from the IRD retirement account into an irrevocable life insurance trust, thus removing it from the taxable estate.
“People need to refocus their thinking on what heirs are truly inheriting.” Our office can help you do just that. A little bit of thought and action now can save your heirs a lot of taxes and confusion down the line, and this is especially true if you are lucky enough to have a significant amount of savings that you anticipate passing on to your children or grandchildren. Friday, May 06, 2011 How to Protect and Pass On Artwork, Antiques, and Other Valuable Assets
Some assets—such as real property, stocks and savings—are fairly straightforward when it comes to bequeathal to heirs; other assets—such as valuable artwork or antiques—are not so easy. How do you will an asset to a loved one when there is no deed of ownership? And just as importantly, how do these paperless assets figure into the size and administration of your “taxable estate”?
According to this article by Bonnie Kraham, how you dispose of these assets can be extremely important to the administration and taxation of your estate. One particularly dangerous method is referred to as “the empty hook” method, wherein “When the collector dies, the beneficiaries simply remove the artwork (from the hooks) in accordance with name tags on the items for the intended recipients. Thus, the estate is left with "empty hooks" of what may be part of a sizable taxable estate for estate tax purposes.”
The problem that arises with the “empty hook” method is that wealthy families who collect artwork or antiques as investments often have records of their purchases and sales, as well as a list of valuable items for insurance purposes. Any of these documents and records would be reviewed during probate or administration of the estate. “If you don't fully disclose the value of your art collection, or don't properly plan to gift art in compliance with estate tax rules and regulations, you can pass on tax fraud, instead of art, to your beneficiaries.”
Perhaps the best way to hold and legally dispose of your art or antiques collection upon your death is to transfer ownership of these valuable assets into a trust. “Transferring your art collection to a trust may be the most effective, efficient and transparent way to administer your estate after death . . . Trusts are private documents and, although the tax reporting remains the same for trust assets, trusts protect the privacy of an art collector or artist, which can be an emotional protection for the beneficiaries.” Additionally, keeping valuable artwork in trust provides an extra layer of protection from divorce or frivolous lawsuits during your lifetime.
Contact our office, or your own local estate planning attorney, for more information. Wednesday, April 27, 2011 One Simple Step Now Can Save Time and Money Later
Being named as the executor of the estate of a deceased loved one comes with many challenges, including dealing with the probate system, and refereeing unhappy family members; but one of the most difficult (and least discussed) challenges is sorting through the plethora of paper and information that people collect over the course of a lifetime.
You can save your executor (and your family) time and money later by organizing your important documents and finances right now. If you’re not sure where to begin, or what information an executor would need to know, we’ve assembled a list of information and documents an executor might need quick and easy access to if anything were to happen to you:
Instructions and letter to trustee:Contact information for your EP attorney and trustees, instructions on how to begin the process.
Minor children:Information about your minor children, nearby guardians or relatives, medical and health insurance information.
Personal Information:Birth and marriage certificates, passports, family, friends and contact people.
Estate Planning Documents:Trust, wills, any amendments, personal property memorandum.
Employment/Business Information:Contact information for supervisors, client information if you are a small business owner.
Health Care: Advanced Health Care Directive, HIPAA, emergency contact information, phone numbers for doctors, health insurance particulars.
Financial Powers of Attorney
Real Estate and Tangible Property:Deed to your home, mortgage information, homeowners and fire insurance, vehicle records, artwork and antiques.
Bank Accounts and Investments:Account numbers and locations, contact information.
Monthly Expenses and Bills:A copy of one monthly statement for each.
Information about recent Taxes
Retirement Accounts/Government Benefits: Account numbers, beneficiary information.
Life Insurance:Account numbers, beneficiary information
Memorial and Burial/Cremation:Preferences, pre-paid arrangements, phone numbers.
Memberships/Secured Accounts/Passwords
Once you are organized, keep your information in an accessible place and make your executor aware of the location. This simple act of organization will not only benefit you right now, it will save your family and your executor much time, money and frustration later on. Monday, March 07, 2011 Who Owns Credit Card Debt After the Death of a Parent?
Administering the estate of a deceased loved one can be complicated and emotional under the best of circumstances, but executors who take on this overwhelming task may find themselves facing more than just the demands of relatives and heirs—they may also find themselves facing the illegitimate demands of creditors. This article on the New York Times’ New Old Age Blogwarns readers to “Be wary of collection agencies that try to convince you that you are responsible for payment on a card owned solely by a deceased parent.”
After the death of a parent, children and heirs often receive calls from debt collectors looking for someone—anyone!—to pay off the debts of the deceased, even if the heirs have no obligation to do so. In most situations relatives are not required to pay the debts of the deceased from their own assets. “Spouses, children or other loved ones don’t ‘inherit’ credit card debt unless they co-signed the card... When someone dies, credit card companies have to wait near the back of the line to receive payment. If what’s left over after settling the estate isn’t enough to pay the bill, credit card debt is written off.”
Probate or administration of an estate is a process which follows established steps; heirs and credit card companies alike must wait their turn in line. “Administrative fees (like executors’ fees, filing fees, appraisals of property and tax-preparer fees), mortgages, reverse mortgages, taxes and even funeral expenses have to be paid off before heirs can inherit anything from the estate.” Unfortunately, most bereaved relatives aren’t aware of the laws on this subject, and debt collectors take advantage of that ignorance.
The best way to avoid this painful interaction is to have a proper estate plan. “Most of the headache can be avoided with a will... If you make it well known who owns what, both in terms of assets as well as liabilities, you can prevent a lot of this from taking place outside of your control.” The article also recommends taking preemptive action. “After the death of a parent, send a letter or call the banks and credit card companies to cancel cards and let them know that the cardholder has died.” Friday, March 04, 2011 Tough Decisions Await Executors of 2010 Estates
If you are the executor of the estate of a decedent who died in 2010 you may think you’re in the clear. After all, there was no estate tax in 2010 right? Making distributions should be a piece of cake. Wrong. Because of the estate tax election available on the estates of 2010 decedents, administering those estates will actually be more work than you may think.
The repeal of the estate tax in 2010 also brought with it a repeal of the “step up in basis,” meaning that heirs selling inherited assets were taxed based on the original acquisition cost of the assets, not on their value as of the date of the taxpayer’s death. This generally resulted in a higher tax paid on assets than the normal estate tax rate—not good for taxpayers. But 2010 estates don’t have to go by these rules. The legislation passed in December of 2010 gave 2010 estates the opportunity to elect whether they wanted to use the 2010 estate tax laws, or the new laws for 2011. This article in Forbes explains what this means:
“The 2010 Tax Relief Act restored the estate tax for individuals dying in 2010 with a $5 million per person exemption and a maximum rate of 35%. It also repealed the modified carryover basis rules for property acquired from a decedent who died in 2010. However, estates of individuals dying in 2010 can elect zero estate tax and the modified carryover basis rules that would have applied before they were repealed. That means the basis of assets acquired from the decedent would be the lesser of the decedent’s adjusted basis (carryover basis) or the fair market value of the property on the date of the decedent’s death.”
In general this tax election is a good thing, it allows executors to choose which tax formula will cost the beneficiaries the least in taxes; but it does mean a lot more paperwork and a lot more attention to detail. If you are the executor of an estate of a decedent who died in 2010, don’t hesitate to call us. We can answer your questions and help you explore your options. Monday, January 24, 2011 5 Essential Tips for Executors or Trustees
Serving as executor or trustee of a will or a trust is an honor... but it’s also a job—a BIG job—and not one to be taken lightly. The role of executor or trustee can be one of great financial power, but it carries with it a heavy fiduciary obligation. Fiduciary obligation means that an executor or trustee must act in the best interests of the beneficiaries; it means that although the executor or trustee may be doing all the work, he or she may see very little return on that work, which is all for the benefit of the named beneficiaries.
If you have been nominated (or are currently serving) as an executor or trustee there are a few things you’ll want to remember as you go about your duties:
1. The will or trust is your guide, the mission statement by which you should operate; read and understand the document completely, and have an attorney help you, if necessary.
2. You need to be pro-active—to an extent. If you are managing a large amount of money or assets over a period of time it is probably not in the best interests of the beneficiary to let those funds sit in a savings account. Create (with an advisor, if necessary) a financial plan for the trust assets.
3. Although you may be handling the estate assets, you should not have any personal financial dealings with the trust. You should under no circumstances borrow from or lend money to the trust. Keep your finances separate!
4. Communication and transparency is key! Keep detailed records of all of your actions and transactions regarding the will or trust, and send regular reports to the beneficiaries. Regular communication prevents unhappy surprises or angry lawsuits in the future.
5. You don’t have to do it alone. If you were picked as a trustee because of your financial knowledge and experience—great! But if you were picked because you are the oldest, or the most responsible, or the favorite you may feel overwhelmed by the job ahead of you. Don’t try to muddle through alone, get the help and support of an experienced attorney or advisor. Friday, November 12, 2010 The Ins and Outs of Incapacity
Most people think that having a trust is about controlling (to an extent) what happens to your assets after you die. This is true, but a trust actually has a much broader scope: a trust can also protect and provide for your loved ones—and more importantly, it can protect and provide for you—if you should ever become incapacitated.
In basic terms, incapacity means that you are no longer able to make decisions for yourself. Sometimes it is easy to determine incapacity: the person is in a coma or unconscious and obviously unable to make decisions. But sometimes it’s more difficult. What about whether or not a person is able to make rational decisions? What if someone is suffering from Alzheimer’s, Dementia, or even a severe mental illness... should that person be making important financial decisions?
It is important to include a discussion of incapacity in your trust, because this one word carries a lot of weight. It is when you are incapacitated that your successor trustee will take over, when the agent nominated in your Healthcare Directive will get the authority to make health care decisions for you, and when your financial Power of Attorney will go into effect. With so much hanging on a single word, it’s important to know exactly what that word means.
Every standard trust should have a definition of incapacity as determined by a court of law. This means that you are deemed incapacitated when a court of competent jurisdiction determines that you are unable to legally handle your own affairs. A really good trust will also include a definition of incapacity as determined by two physicians; which means that two independent, licensed physicians have examined you and have determined that in their opinion you are unable to effectively manage your property or financial affairs.
There are many reasons why you want to have more than just the standard definition of incapacity, the primary reason being that court proceedings can be lengthy and filled with red tape. While your agent is spending days or weeks going through the legal process, your estate is languishing and your financial agent is powerless to take action on your behalf. Giving two physicians the power to determine your incapacity will circumvent the red tape and prevent lengthy delays.
Call or come into our office for more information about incapacity and what it means in your trust or Healthcare Directive. |