divorce

Lamar Odom: A Lesson to Learn

Currently the news is packed with stories about Lamar Odom’s recent “long weekend” and resulting medical problems (just Google it, you’ll find plenty of stories). The pertinent facts, however, are this: 1) Lamar Odom is unable to make healthcare decisions for himself; 2) he does not have a Living Will specifying what his healthcare wishes are; 3) we are unaware if he has a health care power of attorney; and 4) his recent divorce has not yet been finalized because of a backlog in the courts. Whether he has a healthcare power of attorney that just hasn’t been updated or he does not have one at all (and, thus, the law controls), his soon-to-be ex-wife, Khloe Kardashian, is responsible for making his healthcare decisions.

Having an Estate Plan (and an up-to-date estate plan) is essential to ensure that your wishes are carried out – whether it be who receives your assets after you pass, who controls your finances if you are unable, who makes your health care decisions if you are unable, etc.

When a major life event occurs, you should ALWAYS make sure to discuss the impact that life event may have on your estate plan with an experienced professional. Otherwise, like in the case of Lamar Odom, your soon-to-be ex-spouse may be making healthcare decisions for you (and possibly inheriting part of your estate if you pass away without an estate plan or an up-to-date estate plan)!

While there are plenty of lessons to learn in the recent news concerning Lamar Odom (again, just Google it), not having an estate plan or an up-to-date estate plan is definitely one that most people are guilty of themselves and can easily be remedied by speaking with an experienced professional.

For more thoughts on this issue, check out this article written by David H. Lenok and titled “Odom and Kardashian: Why Living Wills Matter

I hope this helps!

-Matt

© 2015 Matthew D. Brehmer and Crummey Estate Plan.

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Lifetime Gifts: An Important Estate Planning Technique (Part 2)

In Part 1 of this post, I focused on the similarities and differences between making annual gifts and making lifetime exemption gifts. Here, in Part 2 of this post, I will focus on the following reasons why it may still be important to consider making lifetime gifts:  

  • To minimize estate taxes;
  • To engage in Medicaid planning;
  • To provide for your loved ones during your lifetime; and
  • To decrease the size of your estate for easier estate administration after your death.

Minimize Estate Tax

Currently, in 2015, the estate tax exemption amount is $5.43 million. That combined with your spouse’s lifetime exemption amount if you are married, comes to $10.86 million. Therefore, for a vast majority of the population, minimizing estate tax is not even going to be on the radar. However, even though this exemption is permanent and indexed for inflation currently (and has been since 2010), Congress could always repeal it and lower the exemption amount; for instance, just seven years ago the exemption was only $2 million and if you look back another ten years before that, it was only $625,000. If Congress chose to go back to the “good old days,” a lot more of us would be subject to the estate tax. Keep that in mind.

For those of you who are unlucky enough (or, maybe I should say lucky enough) to be above the estate tax exemption, lifetime gifting is a great strategy to minimize estate taxes. Basically, by gifting assets away during your lifetime, either through annual gifts or lifetime exemption gifts, you are in essence “freezing” part of your estate. Consider the two following examples:

Example 1: You and your spouse have a $20 million estate today. You both live another 20 years, during which time your estate earns 6% annual interest and is now valued at about $64 million. Assuming the estate tax exemption increases at 3% during that same time, your combined estate tax exemption amount is about $19.5 million. Therefore, about $44.5 million of your estate will be subject to estate tax, which comes to about $17.8 million in estate taxes (at a 40% estate tax rate).

Example 2: You and your spouse have a $20 million estate today. Using $10 million of your combined estate tax exemption amount, you make a lifetime gift of $10 million, bringing the value of your estate down to $10 million. Assuming the same 6% interest, after 20 years, your estate is now worth about $32 million. And, assuming the same estate tax exemption amount as in Example 1 (about $19.5 million twenty years from now), you would have about $9.5 million of combined estate tax exemption left to use ($19.5 million – $10 million previously used). Therefore, about $22.5 million of you estate will be subject to estate tax, which comes to about $9 million in estate taxes.

As you can see from the two examples above, by making a lifetime gift, you can save a substantial amount in estate taxes; $8.8 million in the examples above. Furthermore, the two examples above are stripped down for ease of illustration; if you took annual gifts into account each year and also used up the increase in the lifetime exemption amount each year, the savings would be even more substantial (plus there are many other strategies that can make lifetime gifting even more effective, e.g., by applying discounts to certain assets when gifting).

The main reason why this works so well is because your estate is typically going to grow at a faster rate than the estate tax exemption amount (and the greater the arbitrage, the greater the effect lifetime gifting can have on your eventual estate tax liability). Basically, meaning that, when you make a lifetime gift and rid your estate of that asset, you also rid your estate of the accumulation that the asset is going to make over your remaining lifetime. So you are in effect, freezing the value of that asset and the amount of your lifetime exemption that it is going to offset.

However, there is one major caveat to consider here and when considering any other reason to make lifetime gifts. When you die with an asset in your estate, the asset receives a step-up in basis. When you gift an asset during your lifetime, the asset has a carry-over basis. Below are two examples that illustrate the difference:

Example 1: Years ago you bought an asset for $10. It is now worth $100. The day before you die you gift it to your child. Your child then receives a carry-over basis of $10. If your child were to sell that asset when it is worth $110, your child would be subject to long-term capital gains tax on $100 ($110 – $10).

Example 2: Years ago you bought an asset for $10. It is now worth $100. You die with the asset and bequest it to your child. Your child then receives a step-up in basis of $100. If your child were to sell that asset when it is worth $110, your child would be subject to long-term capital gains tax on only $10 ($110 – $100).

As you can imagine, that difference plays a major role when considering lifetime gifting. In some instances, it may be a deal breaker, and in others, it may not affect the decision as much. For instance, if you will be subject to estate taxes, it may be more beneficial to reduce your estate before you die even if your child would be subject to more capital gains tax on that asset because the highest long-term capital gains tax rate is only 23.8% (which includes the net investment income tax) compared to a 40% estate tax rate. However, if you are not subject to the estate tax, it may be more beneficial to keep low basis and high growth assets in your estate so that when you pass away, those assets will receive a step-up in basis and save your heirs substantial amounts in long-term capital gains tax.

Medicaid Planning

Nursing home costs are a major concern for many (and, with good reason, the national average nursing home costs are around $6,500 a month).  Long-term nursing home care can wipe out your entire estate pretty quickly. Therefore, Medicaid planning has become a large part of estate planning today. And, one of the most used Medicaid planning strategies is lifetime gifting.

Each State has its own complex set of rules when it comes to Medicaid planning with lifetime gifting and the rules are forever changing so it is important to contact an expert when considering this strategy. However, the basic strategy is this – to gift away your assets prior to the Medicaid look back period (depending on your State that look back period could be 3 years, 5 years, or some other time period).

There are a number of risks associated with lifetime gifting that are especially pertinent here. Once you’ve made a gift it is irrevocable. Meaning that the person you gave the gift to now owns it. You cannot get it back. Furthermore, the person who you gave the gift to is now at risk of losing it; for example, to creditors, to a divorcing spouse, to different heirs if they pass away, etc. This means that the person you gave the gift to may not be able to support you later on should you need it.

All of these risks are heightened during Medicaid planning. This is because if you don’t make it past the look back period, you will be hit with a penalty period based on the gifts given during that look back period. During that penalty period you will not receive support from Medicaid for nursing home costs, which could really leave you in a tough spot if you have no other access to support. Furthermore, if you never end up needing Medicaid and living a long life outside of a nursing home (like we all hope), you may no longer have enough to support yourself because you gifted it all away. Therefore, lifetime gifting as a Medicaid planning technique must be discussed with an expert to ensure you are weighing all of the benefits and risks associated with it.

Providing for Loved Ones During Life

Lifetime gifting may be a great way to provide for your loved ones during your lifetime. If an annual gift is less than $14,000 to any one person, not only will there be no tax liability, there is no requirement to file a Gift Tax Return. Even if the gift is greater than $14,000, there will be no tax liability so long as you have not used up your entire current lifetime exemption amount of $5.43 million. However, you will be required to file a Gift Tax Return to report a gift greater than $14,000 to any one person within the same year.

Lifetime gifts can be a great way for people to support their loved ones during their lifetimes without the fear of tax consequences or added responsibilities (like filing another tax return). However, you do need to consider the carry-over basis versus step-up in basis discussion above if gifting securities and/or property as opposed to cash.

Ease of Estate Administration at Death

Lifetime gifting may also be a great way to ease the administration of your estate at the time of your death. Typically, the smaller the estate, the easier it is to administer it at death. Furthermore, the type of assets that are held in your estate at the time of your death can determine how easy or how cumbersome administering your estate will be. If your estate is made up of entirely nonprobate assets, then administering your estate will be relatively easy. However, if you estate is made up of many different probate assets, then administering your estate will become more cumbersome and expensive.

By making lifetime gifts that reduce the value of your estate and rid your estate of probate assets, you can really lift some of the burden and costs that fall on your loved ones when having to administer your estate after your death. Again, however, you do need to consider the carry-over basis versus step-up in basis discussion above. Furthermore, you do not want to diminish your estate to a level where it becomes difficult for you to live day-to-day.

Conclusion

As you can see from above, lifetime gift planning is still very much alive in estate planning today. And, this holds true even for those who are not concerned about estate taxes. However, there are many things that need to be considered before making a lifetime gift and they should be discussed with an expert. But, if after weighing all of the risks and benefits, the scales are tipped in your favor, lifetime gifting can provide an important estate planning technique that starts to take effect prior to much of your other estate planning.

Thanks for reading!

-Matt

© 2015 Matthew D. Brehmer and Crummey Estate Plan.

Beneficiary Designations: An Overlooked Estate Planning Tool

While a vast majority of the population has not prepared the “staple” estate planning documents that every person over the age of 18 should have, almost everyone has prepared a beneficiary designation form of some sort. When I say “staple” estate planning documents, I am talking about a Last Will & Testament, Health Care Power of Attorney (with a Living Will and HIPAA Authorization), and Durable (Financial) Power of Attorney. It is essential that every person have at least all of these documents to effectuate their estate plan; and, most importantly, they must all work together!

In honor of Halloween, in the following scenario, I am going to use Frankenstein, Frank for short, age 40. Frank is very proactive about preparing his estate plan – he does have a pretty dangerous job creating monsters so probably a good thing he’s proactive, right? Frank discusses his final wishes with his attorney and his attorney prepares him a perfect set of “staple” estate planning documents. Per his wishes, his Last Will & Testament states that everything is to go to his wife, if she survives him, and if she does not, then to be split equally among his children (age 15 and 13). Further, if his children are under the age of 25 at the time of his death, their share of his estate shall be held in trust until they are age 25. Great, Frank thinks he is all set to go, like many people would.

However, here’s the kicker: any asset that Frank has prepared a beneficiary designation form for, will NOT pass through his Last Will & Testament at the time of his death (unless he has named his estate as the beneficiary, which in most cases is not advised). That means that whomever Frank named as beneficiary on that form will get that asset at his death (the form may have been filled out 20 years ago when he just started working, was not married and had no children). His wishes as outlined in his Last Will & Testament will not control how that asset is distributed.

Good thing Frank was advised of this. Frank takes heed of this advice and updates his beneficiary designation forms to carry out the same wishes as under his Last Will & Testament. However, typically this is not as simple as just updating the names on the form. Frank needs to ensure that the form is prepared properly, which includes drafting to make sure that any shares his children may receive will be held in trust until they are age 25, identical to his wishes under his Last Will & Testament.

It is important to remember that if he had not updated his beneficiary designations, his “real” final wishes would not have been carried out after his death; his $200,000 IRA may have gone to his ex-girlfriend that he named as beneficiary when he was 20 years old. On the other hand, if he had updated his beneficiary designation but done so improperly, again, his “real” final wishes may not have been carried out after his death; his $200,000 IRA may have gone outright to his two financially immature children, then age 18 and 20, instead of being held in trust until they were 25.

Now Frank was proactive, think about all the people who have not had the “staple” estate planning documents prepared or had their beneficiary designations reviewed to ensure that they are correctly filled out; is their estate going to be distributed as they really intended? Further, Frank’s estate plan was relatively simple; most people’s circumstances and wishes are much more complicated than his. This makes conjunctive planning even more so important – attorneys must advise clients as to both their Last Will & Testament (or Trust) and any beneficiary designations that they may have made to ensure that they are all consistent and carry out the client’s final wishes.

Types of Assets

If you have any of the following assets, you have most likely prepared a beneficiary designation form at some point:

  • Any retirement accounts, including 401(k)s, IRAs, pension plans, profit sharing plans, etc.;
  • Life insurance;
  • Brokerage accounts; and/or
  • Annuities.

In addition, most States now allow owners to name a beneficiary for any real estate property they own (i.e., transfer on death designation) and any bank accounts they have (i.e., payable on death designation). Now, think about all of the assets you have or may have at death. For most people, besides your tangible personal property (e.g., household goods, automobiles, etc.), the above list of assets covers a majority of your estate. That is why beneficiary designation planning is ESSENTIAL to estate planning today.

Non-Probate

A Last Will & Testament directs how and to whom your executor or personal representative should distribute your probate property. However, if you have prepared a beneficiary designation form for one of the types of assets listed above, that asset will not go through probate and therefore, the distribution of that asset will not be controlled by your Last Will & Testament. The distribution of that asset will be controlled by the beneficiary designation form that you filled out, possibly haphazardly and without much thought and advice.

While avoiding probate is great news and on the top of most people’s estate planning goals, the beneficiary designation form must be filled out correctly in order to properly effectuate your final wishes. This is something that should be discussed with an attorney so you can ensure that it is done correctly and that when fully considering the big picture, your final wishes are carried out. The big picture includes all of your assets and how and to whom they will be distributed to at your death, whether that distribution is controlled by beneficiary designations, your Last Will & Testament, and/or your Living Trust.

Naming Your Beneficiaries

Depending on your estate plan, you may choose to name an individual, trust, estate, charity and/or any combination of these as the beneficiary to one or more of the assets listed above. However, this decision is not as easy as just filling in a blank on a beneficiary designation form. There are numerous considerations to contemplate and discuss with an experienced attorney before making any final decisions. Some of the issues that may arise depending on your estate plan include (all of which will be discussed in future posts):

  •  How to effectively and efficiently leave the asset to multiple beneficiaries, whether the asset should be split up immediately among the multiple beneficiaries, held in trust for some or all of the multiple beneficiaries, spread out over future generations, etc.;
  • How to protect the asset from the beneficiary, whether the beneficiary is too young, financially immature, disabled, has creditor/divorce concerns, etc.;
  • How to minimize the tax consequences, whether it is the impact of estate tax, generation-skipping transfer tax, income tax, deferring tax, etc.;
  • How to comply with the complex IRA (or any asset listed above) rules, whether you are naming an individual, estate, trust and/or charity as a beneficiary and the different consequences of naming each; and/or
  • How to prepare and implement an estate plan that considers the big picture and ensures that your estate is distributed effectively and efficiently, according to your final wishes, with the least amount of time and cost involved.

Conclusion

With beneficiary designations possibly controlling the distribution of a majority of a person’s estate, estate planning must include beneficiary designations and how they affect the person’s final wishes as outlined in their Last Will & Testament and/or Living Trust. This is why both the long trusted “staple” estate planning documents and beneficiary designation forms are important and required for every person today. This will, in many cases, inevitably lead to attorneys and financial advisers being required to work together to ensure that the client’s estate plan is carried out correctly. The issues that may arise are complex and the consequences may be severe, therefore, you need to seek professional advice before finalizing your beneficiary designation forms.

– Attorney Matthew D. Brehmer

 

© 2014 Matthew D. Brehmer and Crummey Estate Plan.