Estate Planning Blog

What Should I Do Now for a Successful Business Succession?

According to the Conway Center for Family Business, family businesses account for 64% of the U.S. Gross Domestic Product (GDP), yet 57% of those businesses have no formal succession plan.

Twin Cities Business’s recent article, “Don’t Wait for the Future,” notes that many businesses are founded on a high degree of personal trust and loyalty, often a simple handshake agreement. However, these informal agreements aren’t enough to protect you against disagreements and damaged relationships, which can be costly. A lack of business succession planning can negatively impact business owners, as well as their heirs and employees.

There are two key reasons business owners should think about a business succession structure sooner rather than later. One is taxes. Under the current laws, the estate tax exemption is scheduled to sunset in 2025. This leaves business owners with a small window to take advantage of the planning opportunities around this exemption. Second, the absence of a succession structure may result in business disruption at a very emotional time for owners and employees.

The reason why so many business owners are unprepared is that many of them find it uncomfortable or daunting to discuss succession planning or enacting formal agreements. Others don’t truly see the importance of such discussions. And, in other cases, it can be seen as a sign of disloyalty.

The good news is that partnerships can be strengthened if you address this process the right way, with respect for everyone’s point of view and a willingness to listen. The result will be that you’re totally confident that everyone’s interests are secured. This lets you focus on your business, instead of being distracted by unspoken concerns.

Formal contingency plans help business partners clarify their vision for the future. Many are so busy with personal lives, families, and work that they frequently fail to consider the impact of events outside their control. However, these conversations help us think clearly about what we want in the future and what it will take to get there.

If the process is handled correctly, guided by an experienced attorney, the result should be peace of mind and a higher degree of protection for partners and their families.

Reference:  Twin Cities Business (April 10, 2023) “Don’t Wait for the Future”

How is Congress Trying to Protect Seniors from AI Scams?

Senator Mike Braun, R-Ind., the ranking Republican on the Senate Special Committee on Aging, led a bipartisan effort to draft a letter to the Federal Trade Commission (FTC) that asks for an update on what the agency knows about AI-driven scams against the elderly and what it is doing to protect people. The letter, signed by every member of the Senate committee from both parties, asks about AI-powered technology that can be used to replicate people’s voices.

Fox News’ recent article entitled, “AI ‘voice clone’ scams increasingly hitting elderly Americans, senators warn,” reports that the letter to FTC Chairwoman Lina Khan cautioned that voice clones and chatbots are allowing scammers to trick the elderly into making them believe they are talking to a relative or close friend, which leaves them vulnerable to theft.

“In one case, a scammer used this approach to convince an older couple that the scammer was their grandson in desperate need of money to make bail, and the couple almost lost $9,400 before a bank official alerted them to the potential fraud,” the Senate letter said. “Similarly, in Arizona, a scammer posing as a kidnapper used voice-cloning technology to duplicate the sounds of a mother’s crying daughter and demand ransom.”

Senator Braun said “imposter” scams lead to about $2.6 billion in losses every year and that the elderly are especially at risk now that scammers have access to voice-clone technology.

“We’re getting calls into our constituent services line back in Indiana already where this is coming in and happening to some extent,” Braun said. He added that imposter scams can be done without using an artificial voice but warned that “AI makes it even easier because it’s like talking to your grandkid.”

Braun recalled a Senate hearing this week in which Senator Richard Blumenthal, D-Conn., opened the hearing on AI with an AI-generated voice that sounded like him, reading off an AI-generated script and said scammers have access to these same tools.

“When you can replicate a voice to the extent I couldn’t tell if that was Sen. Blumenthal or a replication – it sounded exactly like him – just imagine,” Braun said. “That is a tool that the scammers never had.”

The FTC has said it will use its authority to protect consumers from AI to the extent it can, as Washington policymakers look to expand their regulatory oversight of this new technology. The Senate letter to the agency suggested that the FTC update its “educational and awareness” materials to help seniors understand that scammers may be looking to fleece them out of their money using AI-generated voices.

“I’ve never seen any new technology, new business, where the people that created it have been more worried about how you use it,” he said. “They’re worried that if they’re going to get any monetary value out of it, they are going to have to make sure it’s well-regulated.”

“I just think there’s no way that AI can go unchecked, and I’m glad to see the people … on the forefront are thinking the same way,” he said.

Reference: Fox News (May 18, 2023) “AI ‘voice clone’ scams increasingly hitting elderly Americans, senators warn”

How Gifting and Joint Ownership Can Go Wrong

As with many things related to estate planning, do-it-yourself solutions appearing to be fast and easy fixes often become problems for parents and their children. Trying to simplify asset protection by gifting is loaded with risks, says a recent article, “SENIOR SCENE | Pitfalls of gifting and joint ownership of assets” from The Sentinel-Record.

Most notably, the laws governing eligibility for Medicaid used for nursing home care require a 60-month “look-back” period, where any transfer of assets for any reason makes the person ineligible for Medicaid benefits up to 60 months or even longer from the date the gift was made.

Secondly, creditors of the person making a gift could claim any transfer was a fraudulent transfer made in an attempt to defeat the rights of creditors to make a claim. Both parent and child could end up in costly, time-consuming litigation over creditor claims.

Third, and perhaps most problematic, is the chance for the child’s creditors to attach the assets in order to satisfy a claim against the child. This could also occur if the child is embroiled in a divorce—the assets could be considered a marital asset by the court.

Gifting assets was a popular estate planning strategy to reduce or eliminate estate taxes in the past. Nevertheless, in light of the very high current federal estate tax exemptions, this is only used for some families.

Another disadvantage of gifting is the transfer of tax cost basis from the parent to the child for capital gains tax purposes. As a result, the child would be forced to pay capital gains taxes on the increase in value from the parent’s tax cost—typically the original purchase price—versus the ultimate sales price.

Contrast this with a child who inherits an asset at death from a parent. When the child inherits the asset at death, the asset receives a step-up in tax basis to its date-of-death value. This is one of the most favorable tax rules remaining, which is lost when gifting during life is used.

Another problem occurs when seniors make assets jointly owned, especially bank accounts. The bank often encourages this, trying to be helpful so the child may pay the parents’ bills. However, by placing the child’s name on the account, the parent may be subjecting their account to potential creditor claims of their children.

In addition, the jointly owned account passes only to the surviving owner, so the estate plan may be circumvented by having the assets in the account pass to the one child rather than passing to all the remaining trust under a will or trust.

An estate plan created by an experienced estate planning attorney can eliminate many pitfalls of gifting and joint ownership. Before making gifts or establishing joint accounts, meet with an estate planning attorney to learn how to achieve your goals, including planning for Medicaid, without putting your assets at risk.

Reference: The Sentinel-Record (May 28, 2023) “SENIOR SCENE | Pitfalls of gifting and joint ownership of assets”

What Legal Documents Does Every Senior Need?

Legal documents pertaining to health care, end-of-life treatments and allowing others to access medical records are vital to protecting adults at any age. However, they are especially important for seniors, says a recent article from The News-Enterprise, “All seniors need legal documents for medical issues.”

These documents include a living will, health care power of attorney and HIPAA authorization. In addition, they give you the ability to name the individuals you want access to secure medical information and who will be able to make decisions about your health care during incapacity.

The health care power of attorney is the broadest and most important medical estate planning document. Depending upon where you live, it may be known as medical power of attorney, healthcare proxy, or healthcare surrogate.

Here’s where an estate planning attorney is needed: like many estate planning documents, the health care power of attorney can be broad, encompassing both a living will, and a HIPAA authorization within one single document, or it can be extremely limited. By having a document created for you, rather than using a boilerplate form, you can ensure your exact wishes are followed.

The health care power of attorney generally makes specific determinations. The document needs to name one person or agent and a backup agent to act on your behalf. Many people think they can change their agent if the agent becomes incapacitated or unavailable. Still, all too often, they need to remember to have their document updated, and then, when they need to have an agent act on their behalf, no one can do so.

Without an appointed agent, court intervention becomes necessary, which is time-consuming and costly.

The health care power of attorney should specify when the agent may act on behalf of the person and address both access to information and decision-making. The ability to immediately make decisions is critical when the individual is at an advanced age or has urgent medical needs. In addition, other provisions are included to ensure the agent has the full ability to act.

A living will, sometimes called an advance medical directive, may be a separate document or contained within the health care power of attorney. It includes instructions for end-of-life decisions. These may be as detailed as outlining when artificial nutrition and hydration may be used or as simple as naming an agent with the right to remove the person from life support. If you have strong feelings about using life-prolonging devices, your wishes can be legally enforceable through a living will.

Lastly, a HIPAA authorization permits another person to have access to review medical records.

These health care documents should be created with the help of an experienced estate planning attorney to ensure the person carrying out your wishes is the person whose judgment you trust and to clarify your wishes. Preparing for these tough decisions in advance is hard. However, this is a gift to those you love, who will otherwise be left hoping they did what you would have wanted.

Reference: The News-Enterprise (May 27, 2023) “All seniors need legal documents for medical issues”

Do Joint Accounts With Rights of Survivorship Work?

A common request from seniors is to add their children to their bank accounts, in case something unexpected should occur. Their goal is admirable—to give their children access to funds in case of an emergency, says a recent article from Kiplinger, “Joint Account With Rights of Survivorship and Alternatives Explained.” However, making a child joint owner of a bank account, investment account or even a safe deposit box, can have unintended consequences.

Most couple’s bank accounts are set up by default as “Joint With Rights of Survivorship” or JWROS, automatically. Assets transfer to the surviving owner upon the death of the first spouse. This can lead to several problems. If the intent was for remaining assets not spent during a crisis to be distributed via the terms of a will, this will not happen. The assets will transfer to the surviving owner, regardless of directions in the will.

Adding anyone other than a spouse could also trigger a federal gift tax issue. For example, in 2023, anyone can gift up to $17,000 per year tax-free to anyone they want. However, if the gift exceeds $17,000 and the beneficiary is not a spouse, the recipient may need to file a gift tax return.

If a parent adds a child to a savings account and the child predeceases the parent, a portion of the account value could be includable in the child’s estate for state inheritance/estate tax purposes. The assets would transfer back to the parents, and depending upon the deceased’s state of residence, the estate could be levied on as much as 50% or more of the account value.

There are alternatives if the goal of adding a joint owner to an account is to give them access to assets upon death. For example, most financial institutions allow accounts to be structured as “Transfer on Death” or TOD. This adds beneficiaries to the account with several benefits.

Nothing happens with a TOD if the beneficiary dies before the account owner. The potential for state inheritance tax on any portion of the account value is avoided.

When the account owner dies, the beneficiary needs only to supply a death certificate to gain access to the account. Because assets transfer to a named beneficiary, the account is not part of the probate estate, since named beneficiaries always supersede a will.

Setting up an account as a TOD doesn’t give any access to the beneficiary until the death of the owner. This avoids the transfer of assets being considered a gift, eliminating the potential federal gift tax issue.

Planning for incapacity includes more than TOD accounts. All adults should have a Financial Power of Attorney, which allows one or more individuals to perform financial transactions on their behalf in case of incapacity. This is a better alternative than retitling accounts.

Retirement accounts cannot have any joint ownership. This includes IRAs, 401(k)s, annuities, and similar accounts.

Power of attorney documents should be prepared to suit each individual situation. In some cases, parents want adult children to be able to make real estate decisions and access financial accounts. Others only want children to manage money and not get involved in the sale of their home while they are incapacitated. A custom-designed Power of Attorney allows as much or as little control as desired.

Your estate planning attorney can help you plan for incapacity and for passing assets upon your passing. Ideally, it will be a long time before anything unexpected occurs. However, it’s best to plan proactively.

Reference: Kiplinger (March 30, 2023) “Joint Account With Rights of Survivorship and Alternatives Explained”