Designating IRA and other Qualified Plan Beneficiaries

Please note that this is a very complex area and what follows is generalizations.  This is an area that should be reviewed on a client-by-client, case-by-case basis with a qualified attorney or CPA.

The surge of Estate Planning “experts,” including websites and seminars over the past 20 years has created a surplus of “information” related to estate planning.  Much of this information, while useful in context, is misunderstood and consequently, misapplied.

My “rule of thumb” for the past few years has been to name adult, responsible beneficiaries as direct beneficiaries on IRA and qualified plan assets, unless there is a compelling reason otherwise.

Along with the growth in family Estate Planning Trusts, has come a misunderstanding by many clients and advisors, of the inter-reaction between Trusts and Qualified Retirement Plans.  We tend to think of Trusts as the best solution for all of our Estate Planning clients’ needs.  In a perfect world, this might be true.  From a planner’s perspective, I would like nothing better than to have the flexibility to funnel all of a client’s assets through their Revocable Living Trust.  It would give us ultimate control.  Unfortunately, it doesn't work that way, and while a frustration for planners, it is what we have to work with.

There is no area more fraught with potential economic disaster that so-called, “qualified retirement plans” and IRA’s.  Unfortunately, because our laws are sometimes at odds with each other, there is potentially major income tax peril in linking qualified plans with a Revocable Trust.  While there will be times when the clients’ objectives will require us to do so, such linking is not without pitfalls, and should be undertaken only very carefully.

My “rule of thumb” for the past few years has been to name adult, responsible beneficiaries as direct beneficiaries on IRA and qualified plan assets, unless there is a compelling reason otherwise.

In spite of this advice, we too often find that a client (or their financial advisor) has designated their Trust as beneficiary.

Qualified Plan and IRA Basics

The “idea” of qualified plans was to encourage people to do their own retirement savings.  The “carrot” was the ability to remove a portion of income from taxation when earned, and while it grew (in some cases, it worked “too well”).  Over my years as an Estate Planning Attorney, I have found it more common than not that a client has IRA and qualified plan assets that they are not drawing from, even when well into retirement.  However, the idea was never intended to be an Estate Planning mechanism for passing wealth down to the next generation.

the idea was never intended to be an Estate Planning mechanism for passing wealth down to the next generation

Because of this, the rules eventually require a “forced” withdrawal.  This normally ocurrs when the account holder (participant) reaches retirement age (“the year in which they reach age 70 1/2”).  A second instance is upon the death of the participant.  If the rules simply required a lump sum distribution at the death of the participant, it would be a simple mathematical equation and it would end there.  In that case there would be no issue with Revocable Trust beneficiary designation.  However, the law identifies some different methods of distribution and several of them are very tax-significant.

While an IRA is technically not a “qualified” retirement plan, it is by far the most common form of retirement savings, and shares essentially the attributes of a “qualified” plan.  Indeed once you are in “retirement mode,” the IRA is perhaps the better and more flexible retirement plan vehicle, particularly in terms of estate planning (and for this reason, we often counsel fully retired persons to roll their qualified plan assets into an IRA).  Most of the rules contained within IRS Regulations are specifically directed at IRA accounts.  IRAs are a more or less statutory retirement plan and as, such, are pretty typically similar, from sponsor to sponsor.  However, it is always advisable to read the plan document (be it an IRA or some other plan type), to ensure that it provides for what we think it does.  While we often apply IRA rules to other qualified plan accounts, it is important to understand that the plan documents may differ significantly.

When there is a Surviving Spouse

The Typical Family.

The most significant beneficiary designation involves the surviving spouse.  In the majority of planning situations, I deal with a married couple who have acquired assets together and raised their mutual children for a period of years.  Their typical wishes are to take care of each other in their retirement years and have any remaining assets go on to their children on a relatively equal basis upon their deaths.  In this case we almost never designate anyone but the spouse as the primary beneficiary of a participant’s retirement plan.  The spouse, in most circumstances, can elect to treat the decedent’s plan as their own.

In spite of this advice, we too often find that a client (or their financial advisor) has designated their Trust as beneficiary.  While this is often a cause for angst, there are IRS rulings (in the case of an IRA) that would allow a surviving spouse who was the sole income beneficiary of the trust to remove the IRA and make the favorable spousal election.  It does, however, increase complexity and reduce flexibility.

“Unique” Circumstances.

There may be circumstances where a direct beneficiary designation to a is not the desired result, such as where there is a second marriage, blended families, non-resident spouse, or perhaps just a concern that the surviving spouse may not appropriately manage the assets.  In this case, we may still want to designate a Trust as beneficiary.  For example, in a second marriage situation, the participant may wish to have the spouse have the annual income from the retirement plan, but ensure that any remaining plan assets go to their own children.  However, to use a common advertising disclaimer; "Do not try this at home."

While Congress has provided that it is permissible to designate a Trust as an IRA beneficiary (and, presumably, by analogy, other “qualified” plans); and the IRS has provided us with guidance on how to safely do so, that guidance is a proverbial minefield of danger.  Any misstep will likely not only result in a deemed lump-sum distribution (and therefore immediate income taxation) of the entire remaining balance, but will also very possibly result in taxation at the highest percentage brackets.

And, even if done properly, the appropriate administration of such accounts in a Trust guarantees long-term ongoing trust administration and lack of ultimate flexibility for the surviving spouse.

There may be circumstances where a direct beneficiary designation to a is not the desired result, such as where there is a second marriage, blended families, non-resident spouse, or perhaps just a concern that the surviving spouse may not appropriately manage the assets

Contingent Beneficiaries and When there is no Surviving Spouse

The concerns are even more compelling when there is no surviving spouse, or when, because of a prior death, the contingent beneficiary designation becomes effective.  Only the spouse is entitled the “treat-the-account-as-is-it-were-my-own” (referred to as a spousal rollover) election.  However, an individual beneficiary may still have some ability to reduce the effects of taxation on the account.

An individually designated beneficiary may elect “beneficiary IRA” treatment (sometimes called a “stretchout” IRA by financial advisors).  The rules here are pretty clear when the beneficiary is an identifiable individual.  The beneficiary may use his or her life expectancy (in accordance with published IRS tables), to calculate an annual required minimum distribution.  Distributions must commence shortly after the death of the participant, regardless of the age of the beneficiary.  But obviously, there is significant value in the continued tax deferral of the balance of the plan assets during the lifetime of the beneficiary.

“pass-through” language must comply with some very technical IRS Regulations requirements that attempt to match trust fiduciary accounting rules with IRA distribution rules.

Unpredictable Beneficiaries

What if our intended beneficiaries are minor children, or children with special needs or other “disabilities?”  These are instances in which we might wish to use a Trust, even in light of all the pitfalls.  These might be one of the “compelling” reasons my “rule of thumb” acknowledges.

The IRS rules, as noted earlier, do allow for a Trust to be the designated beneficiary of an IRA.  But as also noted, not without complexity and inflexibility.  The Trustee may “step into the shoes” of the trust beneficiaries in only a couple of instances.  First, if all of the trust beneficiaries are identifiable persons and the trust provides for immediate distribution of all of their shares to them; or second, if the trust contains specific “pass-through” (sometimes called “see-through”) language.  If there is a class of beneficiaries (like “children” or “grandchildren”), the distribution rules will be keyed to the oldest person in the class (with the effect of forcing the taxable income out in the fastest manner).

In each case, the IRA custodian will likely be somewhat inflexible.  Typically, this means that a trust “beneficiary” IRA is set up and the Trustee is charged with calculating the annual minimum distribution amount, requesting it from the custodian, and distributing it to the beneficiary, in accordance with the trust language.  This will likely continue on a yearly basis for the lifetime of the youngest beneficiary or until assets have been exhausted.  While this gives the “stretchout” benefit, it must be balanced with the economic and emotional costs of maintaining the trust.

And, the “pass-through” language must comply with some very technical IRS Regulations requirements that attempt to match trust fiduciary accounting rules with IRA distribution rules.

What about Charitable Beneficiaries?

The IRS regulations are also clear about who may be a designated beneficiary for purposes of the “stretchout” election.  They must be identifiable individual beneficiaries.  So what if the trust (or the IRA by direct designation) provides for a charitable beneficiary?  The purpose behind the individual requirement appears to be so the life expectancy calculations may be accurately made.  Obviously, an entity cannot have a life expectancy.

But the IRS has acknowledged that charitable beneficiaries are common, and has given us a planning “out.”  As long as the charity’s portion can be determined and is paid out within a year after the death of the participant, the IRS will essentially ignore it.

What this does tell us is how important the details in planning are.  I often find it fits client’s objectives more closely to designate a specific portion of the IRA to charity, or event to split off a separate account and designate it entirely to charity.

As with all Estate Planning, we need to remember that it is a “moving target.”  Regular period review of designations and of your goals are important to making sure this all works.

Read more...

Should your Children have an Estate Plan

Occasionally, during an Estate Planning conference with clients, this question comes up.  As an Estate Planning lawyer, I should probably be more pro-active about suggesting this topic.  As a professional, however, I always feel some discomfort about coming across as just “selling” services or forms.  So, I tend to soft-peddle the selling aspect of my job, and try to focus on the needs of the client.

It is a question that should be addressed in every client relationship

But it is a good question, and one that at some point should be addressed in every client relationship.  Most of my clients have children.  Many of them are yet living at home, or are in school somewhere.  These are the children my question addresses.  Once emancipated, I think the question is an unequivocal yes.  But for children still “living at home,” whether an estate plan is appropriate is dependent on the circumstances.

As long as children are minors, the parent is generally still their legal guardian, and can make most legal and health decisions for them.  However, it often comes as a surprise to parents who are still “footing the bill” for everything for their children, that they no longer have legal rights to many important areas once their child has reached the age of majority (18 in Michigan and in most states).  And more surprisingly to some parents, in some states, their legal rights may be somewhat limited at an earlier age.

The concern here is not usually any kind of adversary relationship with parent and child.  The concern is that third parties will (and in most cases are legally required) to honor the privacy rights of children.  This means that it can be very difficult in some instances to get information, speak to people on behalf of your children, and generally remain “in the loop.”

it often comes as a surprise to parents who are still “footing the bill” for everything for their children, that they no longer have legal rights to many important areas

Particularly when they were away at college, we had our children execute Durable Powers of Attorney and Health Care Designations of Patient Advocate.  There were a number of instances during those times when those documents came in very handy – both for us and for our children.

In some instances, we have also created Trust Agreements for children who have accumulated some financial wealth.  In most cases, this wealth would be either turned back to the parent, or distributed among siblings.

As a general matter, I believe the answer to the question will often be yes, and that the question should almost always be asked as part of the Estate Planning Process.

Read more...

Welcome Clarification on Family Transfers of Residential Real Property and “Uncapping”

The new law now provides that transfers of property into and out of a trust, and via an estate, to these family members, are exempt, in addition to direct transfers.

Beginning December 31, there is yet another beneficial new exception to “uncapping” of transfers of residential real property between certain family members.

In the early 1990’s the Michigan Legislature passed legislation that “capped” the ability of local taxing bodies to increase the “taxable value” of real property to a the lesser of (currently 1.05%) and the rate of inflation for the year.  The statute attempted to define “transfer,” and also set out a series of exceptions to “transfers.”  Over the ensuing years, other exceptions (notably the Agriculture Exception) were added.  But also during this period, some disagreements arose over the meaning and intent of this legislation.  The was a particularly important issue for family cottages and recreational properties that were passed down from generation to generation.

In 2011, the Michigan Supreme Court interpreted one of these disagreements, in Klooster v. City of Charlevoix, holding among other things, that if at the time all owners at one generation died, but there was also a surviving joint tenant in the next generation (most commonly one or more children), that the survivorship conveyance of title by operation of law was not a “transfer” as the Legislature intended that term.  While I have never been persuaded by the Klooster analysis, who am I to rock the boat – particularly when the decision is basically favorable to the taxpayer?  See my blog, “Michigan Supreme Court Buys Us Another Generation on Real Property Taxes,” from March, 2011.  The Klooster case gave us some new, limited planning opportunities to preserve the “cap” on family transfer of property.  But it wasn’t enough.

It wasn’t enough

In December of 2012, Governor Snyder signed new Legislation aimed at this problem.  See, New Michigan Law Avoids “Uncapping” in Family Transfers.”  But as we will see, the aim was not as accurate as it might have been.  The new legislation (effective December 31, 2013, and on), provided that a direct transfer or conveyance of residential real property to a person related to the transferor “by blood or affinity to the first degree,” where the residential use continued, was not deemed a transfer for “uncapping” purposes.  This rather archaic definition seemed reasonably clear to those of us who took the basic Wills and Estates course in law school, but it left way to much uncertainty on the table.

It remained unclear whether these transfers among family members only applied to direct transfers (which would exclude transfers using Trusts, Wills, Estates and Limited Liability Companies).  If they did, it was – though a welcome forward step – still not enough.

It was still not enough

My own view was that given the history of interpretation of similar issues by local governments and by the Michigan Department of Treasury, combined with the near-bankrupt condition of our state government, they were going to take a very literal interpretation of the statutory language.  In Michigan State Tax Commission Bulletin number 23 dated December 16, 2013, my supposition was confirmed.  They would view this as only applying to direct transfers:  “Due to the blood relationship clause, the Commission has defined the transferee and transferor as a ‘person.’  Therefore, this exception to uncapping does not apply to a trust, a limited liability company, or a distribution from probate.”  Transfers to and from estate planning devices like trusts would not come within the exception.  Nor would transfers from an estate, whether by Will or intestate succession.  Again, while there were some additional planning opportunities (the “Ladybird” Deed, for example would work), they were still too limited.  One of the benefits of estate planning – and particularly the trust as a planning tool – is the ability to maintain some management and control where the beneficiaries are either not sufficiently mature to manage, or where there are multiple beneficiaries.  The trust allows ownership and management of assets for the benefit of children, including family legacy real estate (like the family cottage).

Now there is good news

The title of the blog promised good news.  And there is.  On October 10, the Legislature passed still more legislation, clarifying the “uncapping” rules.  Effective December 31, the law now defines those family members within the no uncapping exception more specifically as transfers to “a mother, father, brother, sister, child, adopted child, or grandchild.  And even better, the new law now provides that transfers of property into and out of a trust, and via an estate, to these family members, are exempt, in addition to direct transfers.

We now can breathe easier as estate planners and clients, knowing that we can continue to plan for estates using tried and true techniques.  Like any new law, there will be a period study and analysis and inevitably, questions about clarity of certain provisions and interpretation.

All in all:  I think this is a great development.

Thanks to my Law Partner and fellow Estate Planner, Elian Fichtner for her research and help on this article and topic.  See more about both of us on our website link at the top of the Blog 

Read more...

Congress Finally Gives us Answers on Estate and Gift Tax

To quote former President Gerald Ford, with respect to the Federal Estate and Gift Tax: "our long, national nightmare is over." Late on January 1, Congress enacted "The American Taxpayer Relief Act of 2012." I won't go into great detail about the act (there is a lot about it we still don't actually know and will have to wait for the analysis of people more capable than I am), but will point out the highlights of the Estate and Gift Tax provisions which are of considerable importance to Estate Planning.

The Act preserves the $5 million per person ($10 million per married couple) "unified" estate and gift tax exemption and indexes it for inflation.

The Act preserves the 2012 levels of a $5 million per person exemption, maintains the "unified"estate and gift structure (meaning the $5 million threshold applied to total transfers, whether by gift during lifetime or inheritance on death), and indexes them for inflation. The Act also makes the concept of "portability," which was added in the 2010 extension for the first time, a permanent part of the tax structure. What "portability" means is that for married couples, the $5 million credit can be allocated or "shared" between them at any time, including after death. This effectively eliminates–in most cases–the need for those "clunky," inconvenient, "AB Trusts" ("his and hers"), and all the allocations and adjustments we were constantly making in those plans. This should have the effect of greatly simplifying the planning process in all but a few instances. The only real, substantive change in the law is a (modest?) increase in the rate (which will only apply after the $5/10 million credit has been used up).

What does "permanent" mean?

Most importantly, the Act makes the current Estate and Gift tax laws permanent. One of my colleagues asked me, what does "permanent" mean? I think that is a fair question. In 2000, the so-called "Bush Tax Cuts" were implemented and because of internal machinations in Congress, were built around a 10-year "sunset." This meant that unless Congress acted during the 10-year period, the laws would automatically expire on December 31, 2010. In a demonstration of the "brinksmanship" for which our modern Congress has become so famous for, in late December of 2010, they "extended" the law for 2 more years.

For the first time in the past 12 years, planners will be able to tell clients what to expect in this area. As we move forward in 2013, I expect that many of our clients will be looking at much simpler estate planning devices.  I think that is a plus

But when they extended the general tax laws, they made unanticipated major changes to the Federal Estate and Gift tax. This was in every way a good change. But it was "temporary," because it was part of an extension, again due to expire recently on December 31, 2012. The new law does not have a "sunset" provision. This means that until Congress acts by legislation to change it, it is permanent. That is as "permanent" as any law gets these days.

My personal view, and what I have been able to glean from reading other sources, suggests that Congress has no appetite to make future major changes to this area, for a number of reasons. So, what we now have is some consistency and something on which we should be able to rely for the foreseeable future.

For the first time in the past 12 years, planners will be able to tell clients what to expect in this area. As we move forward in 2013, I expect that many of our clients will be looking at much simpler estate planning devices. I think that is a plus.

Read more...

Some Family Cottage Strategies in Light of the Klooster Case

Nothing triggers emotions more than the family cottage. You may have raised children who spent all their vacations there. You may have grown up there yourself. All the best memories are often there. Yet this family "heirloom" often becomes the most difficult asset to pass to the next generation; and sometimes the most contentious.

As an owner-family, one of the first questions I have clients consider is whether they should even go down that proverbial road? There is simply no legal "GPS" for finding the right mix of ownership and management of multiply-owned family recreational property. Much has been written about this subject over the years, including "Saving the Family Cottage," by Stuart Hollander, a Northern Michigan Attorney who lived and practiced in Leelanau County; and "The Cottage Rules" by Nikki Koski. These books purport to help "solve" the problems arising in trying to pass a cottage from one generation to the next. Yet they admit that it is more of an art than a science. In the end, I usually counsel my clients that their own family "chemistry" will make or break the succession, no matter how good or clever our written documents and plans may be. And, a continuing problem is how, even after passing to the second generation, successive generations will be treated. This article is not really a piece addressing whether the family cottage should be passed. Nor is it really a road map illustrating how it should be done. Rather, it addresses some of the pros and cons of different ownership methods and when they might be considered, in light of the real property taxation.

In 2010, the Michigan Supreme Court decided Klooster v City of Charlevoix, defining under what circumstances a "transfer" resulting in "uncapping" for purposes of the Michigan ad valorem real property tax. "Capping" refers to a limitation placed on the ability of the taxing municipality to raise the "taxable value" of real property as its fair market value increases. The intent of the act was to keep current owners from being unfairly taxed in relation to increase and development of surrounding properties, during their tenure of ownership. It imposes a formulaic limit on tax increases. However, when the ownership is transferred, this "cap" comes off and the taxing authority is free to make a one-time (for each transfer) adjustment to reflect fair market value in the hands of the new owner. The Klooster decision put an interesting (and for some of us, unexpected) twist on the meaning of "transfer" of ownership for purposes of the act. See, Michigan Buys Supreme Court Buys Us Another Generation on Real Property Taxes.

Before addressing the pros and cons, it is appropriate to review ownership options for family cottage properties. Over the years, some different methods of ownership by the next generation have been prevalent.

Joint Ownership

Perhaps the most common (and the most fraught with problems) is joint ownership of property. Michigan law observes several different types of joint ownership. Among non-married owners, the most common and often presumed type is as tenants-in-common. In tenancy-in-common, each owner owns an "undivided" fractional interest in the property. The interest can be sold, or transferred freely. In the event a problem arises in co-ownership, a tenant-in-common may ultimately petition the Circuit Court for an action to partition. The court may, alternatively, order a sale or physical division of the property. A second type of concurrent ownership is as joint-tenants. This type of ownership presumes that on your death, your interest passes, automatically, to the surviving owner. But during lifetime, between non-married owners, the interests may be sold or transferred freely. Such a transfer converts the joint tenancy to tenancy-in-common. A third type of joint ownership is known as joint tenancy with full rights of survivorship (JTWROS). Here, the decedent's interest also automatically passes to the survivor(s). However, these interests may not be transferred or sold without the concurrence of all joint owners. The JTWROS tenancy may not be severed, even by a court.

You may note that I have prefaced each of these with "among non-married owners." In Michigan, when a husband and wife take title to real property, it is presumed that they do so as tenants-by-the-entireties (a special type of JTWROS ownership reserved for married couples). It should be easy to see that, depending upon the makeup of owners and their ability to (and perhaps live) together, each of these owner methods may have potential significant disadvantages.

It is permissible, and in my view, strongly recommended, that the parties have a separate, recordable and enforceable written agreement providing for use, management and succession issues.

A separate, written agreement providing for use, management and succession issues is strongly recommended

Trusts

Another ownership method is a Trust. Most often, a parent-owner will create a Trust for ownership during their lifetime which provides for "rules" and management of the property following their death. Trusts can create complexities and difficulties that may have been completely anticipated by the client and/or drafter. Someone or some entity must act as the Trustee, with the significant responsibilities impose by both the Trust Agreement and the Michigan Trust Code. Tax reporting at both the federal and state level is required. The allocation of the taxable (and deductible) attributes is not always simple. There are annual reporting and accounting requirements, sometimes to more "remote" individuals who may have no current involvement, but have a possible future interest. Trusts are generally a cumbersome method for continuing ownership and often will direct another form of ownership upon the death of the original owners/trustors and transfer to the next generation. The "uncapping" circumstances for trusts are quite complex.

Entity Ownership - Limited Liability Company / Partnership

For numerous reasons, the Limited Liability Company (LLC) has become the real estate owning entity of choice in Michigan. It is an outgrowth of the Partnership, which was perhaps the preferred method before the LLC. The partnership's "achilles heel" was the unlimited liability every partner had on all partner activities. The LLC effectively created a Partnership with the same limited liability that a corporation traditionally had. And, over time, the Michigan LLC Statute has evolved as the most flexible and creative business entity tool available for planning.

The LLC has become the Real Estate Owning Entity of Choice in Michigan – but it has "uncapping" Issues.

With an entity format, the owners can have an agreement for management and succession of ownership for multiple generations. A manager(s) can be designated and "branches" among the family can be defined, for purposes of voting. A "buy and sell" agreement can be put in place, providing for valuation methods and payment methods, as well as limitations on sales and transfers. Accounts can be established for payment of expenses. And, because the entity is the owner of the real property, as "members" come and go, the ownership stays within the company. Because of this structure, the LLC is, in my view, a better practical and legal planning alternative to the Joint Property Agreement.

There are negatives. There is a cost to set up the LLC, and a (generally nominal) cost of annual maintenance. Like the Trust, federal and state tax reporting is required. The LLC is a "public" entity, in that it is on file in Lansing, with a register address and agent. Perhaps the most significant negative is the "uncapping" issue mentioned above.

How Klooster Applies

The Michigan Tax Tribunal has ruled that transfers of real property interests to a LLC will automatically cause uncapping. While a reading of the statute does not, in my view, intuitively suggest that result, the rulings of the Tribunal have the force of law in Michigan until a court having proper jurisdiction says otherwise. To the best of my knowledge, at the time of this writing, no court has done so. Nor is the Klooster result, in my opinion, the intuitive result of a reading of the statute. But the Michigan Supreme Court is the highest legal authority in the state and they have spoken.

If "uncapping is an issue, consider Joint Ownership with a written agreement; If it is not, go the route of the LLC

In summary, if "uncapping" is not a significant issue, you should strongly consider the formation of a LLC. Conversely, if "uncapping" is a significant issue, you should consider joint-ownership with a Property Agreement. However, before spending too much time on the "uncapping" issue, it is probably worth looking at whether the "uncapping" issue is as significant at one might think. Currently, most vacation property values are at a long-time low here in Michigan. Thus, the "jump" from current taxable value and fair market value (loosely, SEV in Michigan) may not be as significant as it first appears. Even though the "value" looks like a substantial number, it is worth doing the math to see what the actual increase in taxes might be. It may be that "uncapping" in the current environment is a "window" that should be taken advantage of. Remember that once the "uncapping" occurs, the "cap" starts over again for the succeeding owners.

Read more...

The “Special Needs Trust” - Critical Planning for Family Members with Disability

Wills, Trusts, Durable Powers of Attorney, and Health Care Patient Advocate Designations are all basic tools used in the Estate Planning process. There are also some special purpose tools which are important to consider in any good planning process.

One of the areas we always cover in the initial client meeting is whether there are any family members who have a disabling condition. While we are generally exploring the immediate family, it is worth noting that the considerations important to this area can also be important to more remote family members such as parents, grandchildren, siblings and their children.

The Dilemma For Parents

The classic dilemma for parents of a disabled child is that under our current system of governmental support, the child may not own significant assets; yet caring parents know that one they are no longer their to take care of their child’s needs, there may be nobody else who can do that.

A traditional approach to such planning was to “disinherit” the child and leave his or her portion of the estate to someone else (usually siblings) with the tacit agreement for that person to hold the assets and use them for the child’s benefits. Leaving assets to the disabled child (even in trust) can have devastating impact on that child’s established benefit program (including among other programs, SSI, State Programs, and the all-important Medicaid), by disqualifying them from those benefits.

Traditional trust planning simply doesn’t work (even with a so-called “spendthrift” trust), because these all-important programs are often referred to in legal terms as “necessary services” and traditional trust law allows providers of such “necessary services” to reach even well-drafted spendthrift trusts.

The Special Needs Trust

Most states recognize a special purpose trust, however, generally known as a Special Needs Trust. In Michigan, a properly drafted Special Needs Trust (know as a Michigan Discretionary Trust under Michigan case law) cannot be reached by creditors: even the Michigan Department of Human Services, which administers Medicaid and SSI for Michigan residents. In recent years, estate planners working in the relatively new field of “Elder Law,” have used these trusts in their quest to assist elder residents of Long Term Care facilities to qualify for Medicaid, while protecting their assets. There has been a rather long history of government measures tightening the rules on these trusts so that their use has become much more limited.

However, Congress has carefully limited these measures’ application to the true, third-party Special Needs Trust for the developmentally disabled community. In this context they remain completely viable and are still (in most cases) the most effective planning tool to provide for disabled children. Indeed, in one of the more sweeping congressional acts, the legislative history not only specifically addressed the continuing viability of these trusts for disabled children, but actually enhance their use by creating another favorable exception.

The advantage of the Special Needs Trust is that parents can leave substantial assets, in Trust, for the benefit of their child without exposing them to the risks of the above-mentioned, more traditional approach. There were always the concerns that the sibling would die, become disabled themselves, have legal problems (such as bankruptcy or divorce), all of which would put the assets intended for the disabled child at risk. In a word, there was a lack of certainty. The Special Needs Trust provides that certainty, by assuring that the sibling can be “in charge of” the assets without owning them. It can provide also for succession of management.

It is important to understand the legal implications of this trust. “Disinheriting” a child is a very emotional hurdle. But good planning doesn’t really disinherit - at least not morally. Rather, it ensures that the child will continue to receive (often essential) governmental benefits, while the “inheritance” intended for them is preserved, to be used for those very things the parents are doing for their child while they are still living.

Care must be taken, both in the creation of a Special Needs Trust and in its administration. The primary important point is that the Trust language establish the intent of the grantor(s) that the asset not belong to the child, but that it be used for very specific and limited purposes for the benefit of the child. Once activated, the Trustee must understand the rules, in order not to jeopardize the status of the Trust. An “active” special needs trust will be scrutinized by the Michigan Attorney General’s office, so it is critical that it be drafted by someone with knowledge and experience in this area. And, because of this requirement (relatively recent), we currently generally structure these trust as “stand-alone” documents rather than as part of a general family trust document.

The Traditional Third Party Special Needs Trust

There are two different Special Needs Trust recognized by the government as effective. The traditional Special Needs Trust is a “third-party” trust. In other words, it is created by a person or persons who have no legal responsibility to provide for the beneficiary and is established in such a way that the beneficiary has no legal right of withdrawal for any reason. Distributions from the trust are solely at the discretion of the Trustee. It is critically important that such trusts never be “tainted” with assets that in any way or at any time “belong” to the disabled person (thus, benefit payments and inherited assets should not be used to fund the trust). There may be ways to use such assets creatively and that should be discussed with an expert.

The Payback Trust

The second variety is what I referenced earlier as an “enhanced” planning capability. The law now provides that a Special Needs Trust may be created with assets belonging to the disabled person; but with some tradeoffs. If the disabled person is under age 65, a Special Needs Trust may be funded with their own assets, as long as the trust provides for a “payback” provision. After the death of the disabled person (or on termination of the trust in some cases for other reasons) this “payback trust” must pay the governmental provider back for its expenditures, first, before distributing assets to other heirs. The benefit of a “payback trust” is that it allows the disabled person to qualify (or remain qualified) for governmental benefits without any interruption. In the meantime, the assets within the trust can be managed and used for the benefit of the disabled child during their lifetime.

It is important that these two types of Special Needs Trust be distinguished and where applicable done separately (it is not unusual to have both types in place for clients where it is appropriate). We have effectively established “payback trusts” to hold the proceeds of law suits. We have also had good success with our local Probate Court jurisdictions in converting Conservatorship and Guardianship assets into “payback trusts.”

Our standard trust documents contain a “catchall” provision that provides that any time a distribution is to be made to a person with a disabling condition, it may be paid to the trustee of an existing Special Needs Trust or held as a Special Needs Trust for that person.

If you have a family member with a disabling condition, have had concerns about their ultimate welfare, and have not consulted with an Estate Planning Professional about a Special Needs Trust, this is a clear opportunity to put some essential planning in place and achieve peace of mind.

Read more...

THE TOOLS OF ESTATE PLANNING; THE REVOCABLE LIVING TRUST

In prior months we have discussed a number of the “Tools” which comprise a well rounded Estate Plan. While I have opined that the Durable Power of Attorney is perhaps the all-important “hub” of a good plan, the Revocable Living Trust is–perhaps–equally important.

Often referred to as a “Will-substitute,” the Revocable Trust functions, like a Will, to distribute assets to heirs (known as “beneficiaries”) after death. However, it is the additional things that can be done with a Trust that make it “shine” in the Estate Planning arena. A Trust allows the maker (known as a “grantor”) to provide for ongoing management of assets and controlled distributions for beneficiaries who may be minors, incapacitated, or simply not ready for unfettered receipt of assets in the mind of the grantor. And, during the continued lifetime of the grantor, the Trust can be an important asset management tool in the event of the grantor’s own incapacity.

In most states, a Trust is not subject to the same “formalities of execution” that a Will must have. Trusts are generally governed by contract law (with some modification by modern state Trust Codes), which can allow for more flexibility in drafting for the wishes of the grantor.

The “magic” of the a Trust is that it is recognized as a “legal person” and therefore, “lives on” after the death of the Grantor. This means that there is essentially uninterrupted management and control of assets within the Trust and (usually) no need for court-supervised administration of the estate.

Like many legal concepts, there are some common misconceptions about Trusts:

Trusts do not save or avoid taxes. Trusts, themselves are simply tools. Avoidance or reduction of taxes requires active planning, and often involves the use of Trusts. Many times over my 25 years of practice, I have seen persons relying on the existence of a Trust as a tax savings, only to be rudely surprised after it was too late.

You don’t have to hire a third party Trustee. There often seems to be this vague notion that you must put all your assets in a box, take it down to the bank or brokerage, and entrust it to some third party who then tells you how and when you can use them. This is followed by a similar vague thought about the expense involved.

In reality, you may–and usually should (and the substantial majority of my clients do) be your own Trustee. Indeed, most of these Trusts are known as “Grantor-Revocable Trusts” (which has a technical tax meaning). Michigan’s Trust Code actually provides that the grantor of such a Trust remains and is treated as the owner of the Trust assets in all respects. There is no independent tax reporting or filing under a grantor-revocable Trust. Nor is there any duty to “account” (it just wouldn’t make sense to require you to account to yourself).

On the death or incapacity of the grantor, a successor trustee can be a family member or close personal friend or advisor. With married couples, we usually appoint spouses as co-trustees, with the surviving spouse continuing in that role. This doesn’t mean there is never a time when a third party Trustee might be advised. There are professional trustees who are well versed in trust and asset management and set up to fulfill the formal requirements of trust administration. Most often this arises after the grantor’s death.

You don’t have to have be a millionaire for a Trust to be advised. I would like to have $10 for every time in my career that I have heard a client (and sometimes a colleague) say the estate wasn’t large enough for the estate tax and therefore a trust wasn’t necessary. This misconception goes hand-in-hand with the notion that Trusts somehow eliminate or reduce taxes. The primary function of a Trust is orderly, managed, asset distribution without the need of Probate. Any client who owns a home, has life insurance and some other assets is at least a candidate for a Revocable Living Trust.

There are certain crucial steps in setting up an Effective Trust:

Trusts must be Funded! One critical error we see regarding Trusts is that they often fail to be funded. I like to describe a Trust as a box. The document itself is the box.

We can make a pretty nice box, with lots of proverbial bells and whistles. But by itself, it is still just a box–an empty box.

The trust will only cover assets that are titled in the trust, or are designated to automatically pay into the trust at some point (often on death). Other assets will still be subject to probate (or may, whether intended or not, pass directly to a beneficiary or joint owner).

Careful attention must be paid to each type of asset in this process. There are even some assets which in most circumstances, should probably not be put into a Trust (most notably, many retirement plan assets).

Regular Monitoring is Critical. Another factor contributing to the failure of Trusts in Estate Planning is the failure to periodically and consistently review the plan. This relates not just to the document itself, but to the process of funding. The one true constant in our lives is change. I am consistently impressed with how often clients change their asset mix. CD’s become due. Accounts are changed to “better” investments. Products are exchanged and rolled over. And banks seem to change names so often these days that often the paint isn’t even dry on the new signs between name changes. All these factors contribute to the crucial need to undertake periodic review. While I am hesitant to set a “rule of thumb,” if it has been more than two years between reviews, that is too long! The reality of the situation is that your own particular circumstances will dictate the frequency.

We recommend Revocable Living Trusts for the majority or our Estate Planning clients, not because it is a “favored product,” but because it truly fits the needs and goals of most clients in our experience. In upcoming posts, I will address some variations of Trust Agreements that may be recommended for clients with particular circumstances.

Read more...