How Can I Obtain a Power of Attorney for My Dad?

April 5, 2022

Tyron Daily Bulletin’s recent article entitled “How to get power of attorney for a loved one” says the person granting you that power, known as the “principal,” must designate you as the agent (also known as attorney in fact) to have the powers specified in the POA document. it must be signed by the principal while he or she is sound of mind.

Talk to an elder law attorney so understand what your state laws say about powers of attorney. Note that you cannot get a POA if someone is already incapacitated because the principal of the POA must be able to sufficiently comprehend what a POA document represents and the effects of signing it. He or she must clearly communicate their intentions.

The agent of a POA must always act in the best interests of the principal. This can include managing the principal’s financial interests or overseeing the principal’s healthcare and may make decisions about their care and treatment.

There are several things as POA that you cannot do:

Create a contract to get paid for personal services provided to the principal
Vote in place of the principal
Create or alter the principal’s will
Designate another as the agent on behalf of the principal; and
Do anything that is not in the principal’s best interests.

Even if the principal is in good health now, it is smart to plan for potential challenges. You never know when an injury or illness may take away that person’s capacity to manage finances or make important decisions about medical care. The most opportune time to start considering power of attorney is before a parent or loved one requires any caregiving.

Talk with an elder law attorney about establishing a POA. Remember, the principal must be part of the conversation and cannot be mentally incapacitated.

Reference: Tyron Daily Bulletin (March 7, 2022) “How to get power of attorney for a loved one”

What are Penalties When Contributing to or Withdrawing From Retirement Accounts?

April 5, 2022

Money Talks News’ recent article entitled “3 Tax Penalties That Can Ding Your Retirement Accounts” reviews some penalties to avoid when contributing to or withdrawing from retirement accounts.

Excess IRA Contribution Penalty. Building a large amount of retirement savings is a super goal. However, contributing too much to an IRA can cost you. It is possible to commit this offense by (i) contributing an amount of money that exceeds the applicable annual contribution limit for your IRA; or (ii) improperly rolling over money into an IRA.

What happens if you get a little too eager to build a nest egg and make one of these mistakes? The IRS says that excess contributions are taxed at 6% per year provided the excess amounts remain in the IRA. The tax cannot be more than 6% of the combined value of all your IRAs as of the end of the tax year.

The IRS offers a remedy to fix your mistake before any penalties will be applied: you must withdraw the excess contributions — and any income earned on those contributions — by the due date of your federal income tax return for that year. Therefore, if you contributed too much to an IRA for 2021, you have until April 18, 2022, to withdraw the excess and thus avoid a penalty.

Early Withdrawal Penalty. Taking money out too soon from a retirement account is another potentially big error. If you withdraw cash from your IRA before the age of 59½, you might be subject to paying income taxes on the money, plus an additional 10% penalty. The IRS says, however, that there are several scenarios in which you are allowed to take early IRA withdrawals without penalties. For example, if you lose a job, you are allowed to tap your IRA early to pay for health insurance premiums.

The same penalties apply to early withdrawals from retirement plans like 401(k)s. However, there are again exceptions to the rule that allow you to make early withdrawals without penalty. The exceptions that let you to make early retirement plan withdrawals without penalty sometimes differ from the exceptions that allow you to make early IRA withdrawals without penalty.

Missed RMD Penalty. Retirement plans are neat because they let you to defer paying taxes on your contributions and income gains for decades. However, the IRS is eventually going to want its share of that cash. Taxpayers were previously obligated to take required minimum distributions — also known as RMDs — from most types of retirement accounts beginning the year they turn 70½. However, the Secure Act of 2019 raised that age to 72. The consequences of failing to make these mandatory withdrawals still apply. If you do not take your RMDs starting the year you turn 72, you face harsh penalties, and you may have to pay a 50% excise tax on the amount not distributed as required.

Remember that the RMD rules do not apply to Roth IRAs. You can leave money in your Roth IRA indefinitely, but another part of the Secure Act says your heirs have to be careful if they inherit your Roth IRA.

Reference: Money Talks News (March 1, 2022) “3 Tax Penalties That Can Ding Your Retirement Accounts”

Why Is Estate Planning Review Important?

March 31, 2022

Maybe your estate plan was created when you were single, and there have been some significant changes in your life. Perhaps you got married or divorced.

You also may now be on better terms with children with whom you were once estranged.

Tax and estate laws can also change over time, requiring further updates to your planning documents.

WMUR’s recent article entitled “The ‘final’ estate-planning step” reminds us that change is a constant thing. With that in mind, here are some key indicators that a review is in order.

The value of your estate has changed dramatically
You or your spouse changed jobs
Changes to your income level or income needs
You are retiring and no longer working
There is a divorce or marriage in your family
There is a new child or grandchild
There is a death in the family
You (or a close family member) have become ill or incapacitated
Your parents have become dependent on you
You have formed, purchased, or sold a business;
You make significant financial transactions, such as substantial gifts, borrowing or lending money, or purchasing, leasing, or selling assets or investments
You have moved
You have purchased a vacation home or other property in another state
A designated trustee, executor, or guardian dies or changes his or her mind about serving; and
You are making changes in your insurance coverage.

Reference: WMUR (Feb. 3, 2022) “The ‘final’ estate-planning step”

When Can Estate Assets Be Distributed?

March 31, 2022

Just as an individual pays taxes, so do estates. An estate is required to file an annual income tax return for each calendar year it is open, even if only for part of the year. This is in addition to the estate tax return and the decedent’s final tax return, explains a recent article “The Dangers Of Distributing Estate Assets Too Soon” from Forbes.

The estate tax return is based on the assets in the estate, the income received and deductible expenses paid during the calendar year. Only one estate tax return is required. However, as long as the estate is open, an annual estate income tax return needs to be filed.

To minimize income, many executors distribute income to beneficiaries shortly after it comes into the estate. The estate takes a deduction for the income distributed to beneficiaries in the same year it is received by the estate. Beneficiaries are required to include the distribution in their gross income.

However, if the estate does not distribute income before the end of the year, the estate will owe income taxes. There are further complexities to be aware of, including what happens if an executor receives unexpected income or does not know the tax impact of certain transactions. The estate has to pay taxes, but what happens if all assets have been distributed?

The estate still owes those taxes.

The executor may be personally liable for paying the taxes.

If some of the expenses the estate pays are not deductible, but the executor thinks they are, then the estate will have an income tax liability, possibly without the cash to pay it.

The estate often receives property taxable as income if it is not distributed to beneficiaries, like a stock dividend. The estate receives the stock, and its taxable income based on the value at the date of the distribution.

If the estate does not distribute the stock to beneficiaries until later in the year and the stock’s value declines, the estate is still required to recognize the income equal to the stock’s value on the date it was received. If the executor deducts the lower value of the stock, then the estate will be liable for the income tax on the difference.

In some cases, these kinds of issues can be prevented by maintaining a certain level of cash in the estate account until the final estate tax return is filed. The beneficiaries receive distributions once all of the taxes—estate income, estate and final individual or final joint—are paid.

For larger or more complex estates, it is wise to have a tax discussion with the estate planning attorney, the family CPA and the executor, so all parties are prepared for tax liabilities in advance.

Reference: Forbes (Feb. 16, 2022) “The Dangers Of Distributing Estate Assets Too Soon”

What Happens when Bitcoin Holders Die?

March 29, 2022

If you have $10 in a cryptocurrency wallet or $1 million stashed offline in cold storage, you need a plan to help your next of kin gain access when you die, especially if heirs are not familiar with the brave new world of digital money. That’s the no-nonsense message from a recent article titled “What Happens to Your Crypto When You Die? Make a Plan, Or Lose Your Investments Forever” from Next Advisor. It is estimated that early buyers of cryptocurrency have already lost millions or billions because they died without a succession plan or lost their wallet keys and were not able to access their accounts.

Cryptocurrency is not small change today. It is here to stay.

If you own cryptocurrency, you need to incorporate it into your estate plan. Crypto estate planning is a balance between keeping the assets secure and accessible at the same time. Bitcoin and other cryptocurrencies are decentralized, meaning they are not issued by any country’s central banking authority. Unless another person has the right information to access the account, the assets will be gone permanently when you die. There is no paper trail and no 800-number to call.

The first step is to set up proper storage for the crypto and any other digital assets, like NFTs (non-fungible tokens) under a number of layers of security. You will need to set up tiered back-up accounts to store these assets, with varying layers of security.

If you buy and sell crypto on an exchange, loved ones may be able to access the exchange by signing into the company’s portal, similar to ones commonly used for banking, accounting, or financial investments. They need to know your password and username and will probably need access to your cell phone and email to receive a two-step verification code.

However, if you have significant sums of cryptocurrencies, you will need a more secure back-up option, which will be harder for executors to access. You will need to give your executor a crypto education as well as an estate plan.

There are centralized crypto exchanges, like Coinbase. There are hot wallets, also known as mobile wallets, that are not on a centralized platform and require a 12 or 24 word secret seed phrase to gain access. There’s also cold storage, which works like a digital safe via a USB drive. A 12 or 24 word secret seed phrase is also needed to recover or backup account information.

Your plan to pass these assets to the executor includes a physical copy of security phrases and a physical fireproof, waterproof lock box. Secure your cold storage hardware wallet—a private wallet key with a 12 or 24 word secret seed phrase—in the lockbox and make sure your executor knows the location of the safe and how to access it. Then, in one or preferably more than one separate location, store physical documents describing each digital wallet.

Describe each wallet in detail: is it an exchange, mobile wallet, or hardware wallet? Include all of the security keys, seed phrases, usernames, password information with instructions for each, including cell phone codes for the mobile wallets on your phone. Do not store anything on the internet.

You will likely need to educate family members about how crypto and other digital assets work. They may not be comfortable with this new kind of asset. An alternative is to liquidate digital currency into more traditional assets, by transferring the crypto from the wallet into a centralized exchange, then selling it for U.S. dollars. There will be taxes due, since the IRS recognizes selling crypto as selling assets.

Reference: Next Advisor (Feb. 17, 2022) “What Happens to Your Crypto When You Die? Make a Plan, Or Lose Your Investments Forever”

Can Grandchildren Receive Inheritances?

March 29, 2022

Wanting to take care of the youngest and most vulnerable members of our families is a loving gesture from grandparents. However, minor children are not legally allowed to own property. With the right strategies and tools, your estate plan can include grandchildren, says a recent article titled “Elder Care: How to provide for your youngest heirs” from the Longview News-Journal.

If a beneficiary designation on a will, insurance policy or other account lists the name of a minor child, your estate will take longer to settle. A person will need to be named as a guardian of the estate of the minor child, which takes time. The guardian may not be the child’s parent.

The parent of a minor child may not invest and grow any funds, which in some states are required to be deposited in a federally insured account. Periodic reports must be submitted to the court, and audits will need to be done annually. Guardianship requires extensive reporting and any monies spent must be accounted for.

When the child becomes of legal age, usually 18, the entire amount is then distributed to the child. Few children are mature enough at age 18, even though they think they are, to manage large sums of money. Neither the guardian nor the parent nor the court has any say in what happens to the funds after they are transferred to the child.

There are many other ways to transfer assets to a minor child to provide more control over how the money is managed and how and when it is distributed.

One option is to leave it to the child’s parent. This takes out the issue of court involvement but may has a few drawbacks: the parent has full control of the asset, with no obligation for it to be set aside for the child’s needs. If the parents divorce or have debt, the money is not protected.

Many states have Uniform Transfers to Minors Accounts. In Pennsylvania, it is PUTMA, in New York, UTMA and in California, CUTMA. Gifts placed in these accounts are held in custodianship until the child reaches 18 (or 21, depending on state law) and the custodian has a duty to manage the property prudently. Some states have limits on the amount in the accounts, and if the designated custodian passes away before the child reaches legal age, court proceedings may be necessary to name a new custodian. A creditor could file a petition with the court if there is a debt.

For most people, a trust is the best option for placing funds aside for a minor child. The trust can be established during the grandparent’s lifetime or through a testamentary trust after probate of their will is complete. The trust contains directions as to how the money is to be spent: higher education, summer camp, etc. A trustee is named to manage the trust, which may or may not be a parent. If a parent is named trustee, it is important to ensure that they follow the directions of the trust and do not use the property as if it were their own.

A trust allows the assets to be restricted until a child reaches an age of maturity, setting up distributions for a portion of the account at staggered ages, or maintaining the trust with limited distributions throughout their lives. A trust is better to protect the assets from creditors, more so than any other method.

A trust for a grandchild can be designed to anticipate the possibility of the child becoming disabled, in which case government benefits would be at risk in the event of a lump sum payment.

There are many options for leaving money to a minor, depending upon the family’s circumstances. In all cases, a conversation with an experienced estate planning attorney will help to ensure any type of gift is protected and works with the rest of the estate plan.

Reference: Longview News-Journal (Feb. 25, 2022) “Elder Care: How to provide for your youngest heirs”

What was Stephen Sondheim Estate Plan?

March 24, 2022

Ninety-one-year-old Broadway legend Stephen Sondheim died suddenly at his Roxbury, Ct. home in November, one day after celebrating Thanksgiving, according to his lawyer and friend F. Richard Pappas at the time.

New York Post’s recent article entitled “Stephen Sondheim left behind an estate worth an estimated $75 million” reports that the “West Side Story” songwriter’s assets totaled about $75 million, according to documents accompanying his 2017 will filed in Manhattan Surrogate’s court last month.

Sondheim’s will gives all of his wealth, including his personal effects, the rights to his music and literary works, to the Stephen J. Sondheim Revocable Trust. Sondheim left his nearly $75 million estate to his husband, charities and other friends as beneficiaries of the trust. The trust was created with Sondheim’s pour-over will, where everything goes to the trust.

It is believed that Sondheim worked with an estate planning attorney to create a very good sound estate plan that will benefit his spouse, as well as friends and charitable organizations that were important to him. It also keeps order of his intellectual property, so there’s somebody managing his musical legacy.

The Broadway legend named 20 people and charities as beneficiaries to his trust, including his husband Jeffrey Romley, the Smithsonian Institute, the Museum of New York City, the Library of Congress, the New York Public Library for the Performing Arts, the Dramatists Guild Fund and the Irish Repertory Theater Company. His “Into the Woods” collaborator and director James Lapine is also listed as a beneficiary to the trust.

Irish Repertory Theater co-founders Ciarán O’Reilly and Charlotte Moore called the bequest “a lovely surprise.”

Sondheim “never failed to honor us with his staunch support … especially of our musicals and musical adaptations,” their statement continued. “Having ‘Himself’ in our audience, while absolutely terrifying, confirmed our right to venture into the mysterious worlds in which he was the undisputed master.”

Whitney Donhauser, the Ronay Menschel Director of Museum of the City of New York, said in a statement, “We feel honored that Stephen Sondheim — theater titan, lifelong New Yorker and 2013 Louis Auchincloss Prize recipient — recognized our mission as New York’s storyteller, by including us as a beneficiary of his trust.

“His generous contribution allows us to continue sharing the powerful, diverse and important role of the theater in New York City.”

Reference: New York Post (Jan. 23, 2022) “Stephen Sondheim left behind an estate worth an estimated $75 million”

Taking Care of Dying Parent’s Financial Affairs Can Be Challenging

March 24, 2022

It’s not uncommon for adult children to have to face a parent’s decline and a stay in hospice at the end of their life. The children are tasked with trying to prepare for his passing. This includes how to handle his financial matters.

Seniors Matter’s recent article entitled “How do I handle my father’s financial matters now that he’s in hospice?” says that caring for a sick family member is a challenging and emotional time. Because of this major task, it is easy to put financial considerations on the back burner. Nonetheless, it is important to address a few key issues.

If a family member is terminally ill or admitted to hospice – and you are able to do so – it may be a good idea to start by helping to take inventory of your family member’s assets and liabilities. A clear idea of where their assets are and what they have is a great starting point to help you prepare and be in a better position to manage the estate.

An inventory may include any and all of the following:

Real estate
Bank accounts
Cars, boats and other vehicles
Stocks and bonds
Life insurance
Retirement plans (such as a 401(k), a traditional IRA, a Roth IRA and a SEP IRA);
Wages and other income
Business interests
Intellectual property; and
Any debts, liabilities and judgments.

Next, find out what, if any, estate planning documents may be in place. This includes a will, powers of attorney, trusts, a healthcare directive and a living will. You will need to find copies.

This is hard to do while a loved on is dying, but it can make the aftermath easier and less stressful.

Reference: Seniors Matter (Feb. 22, 2022) “How do I handle my father’s financial matters now that he’s in hospice?”

Do You Have to Pay Taxes on Inherited IRAs?

March 22, 2022

If you’ve inherited an IRA, you won’t have to pay a penalty on early withdrawals if you take money out before age 59½. However, you may have to make those withdrawals earlier than you’d wanted. Doing so may trigger additional income taxes, and even push you into a higher tax bracket. The IRA has always been a complicated retirement account. While changes from the SECURE Act have simplified some things, it’s made others more stringent.

A recent article titled “How Do I Avoid Paying Taxes on an Inherited IRA?” from Aol.com explains how the traditional IRA allows tax-deductible contributions to be made to the account during your working life. If the IRA includes investments, they grow tax—free. Taxes aren’t due on contributions or earnings, until you make withdrawals during retirement.

A Roth IRA is different. You fund the Roth IRA with after-tax dollars, earnings grow tax free and there are no taxes on withdrawals.

With a traditional inherited IRA, distributions are taxable at the beneficiary’s ordinary income tax rate. If the withdrawals are large, the taxes will be large also—and could push you into a higher income tax bracket.

If your spouse passes and you inherit the IRA, you may take ownership of it. It is treated as if it were your own. Howwever, if you inherited a traditional IRA from a parent, you have just ten years to empty the entire account and taxes must be paid on withdrawals.

There are exceptions. If the beneficiary is disabled, chronically ill or a minor child, or ten years younger than the original owner, you may treat the IRA as if it is your own and wait to take Required Minimum Distributions (RMDs) at age 72.

Inheriting a Roth IRA is different. Funds are generally considered tax free, as long as they are considered “qualified distributions.” This means they have been in the account for at least five years, including the time the original owner was alive. If they don’t meet these requirements, withdrawals are taxed as ordinary income. Your estate planning attorney will know whether the Roth IRA meets these requirements.

If at all possible, always avoid immediately taking a single lump sum from an IRA. Wait until the RMDs are required. If you inherited an IRA from a non-spouse, use the ten years to stretch out the distributions.

If you need to empty the account in ten years, you don’t have to withdraw equal amounts. If your income varies, take a larger withdrawal when your income is lower and take a bigger withdrawal when your income is higher. This can result in a lower overall tax liability.

If you’ve inherited a Roth IRA and funds were deposited less than five years ago, wait to take those funds out for at least five years. When the five years have elapsed, withdrawals will be treated as tax-free distributions.

One of the best ways for heirs to avoid paying taxes on an IRA is for the original owner, while still living, to convert the traditional IRA to a Roth IRA, paying taxes on contributions and earnings. This reduces the taxes paid if the owner is in a lower tax bracket than beneficiaries, and lets the beneficiaries withdraw funds as they want with no income tax burden.

Reference: Aol.com (Feb. 25, 2022) “How Do I Avoid Paying Taxes on an Inherited IRA?”

What are the Signs of Elder Abuse?

March 22, 2022

According to the National Adult Protective Services Association, the “vast majority” of cases reported to its member agencies involve people the victim knows, including relatives, caregivers, neighbors and friends.

AARP’s recent article entitled “Spot the Red Flags of Elder Financial Abuse” explains that financial exploitation can range from stealing someone’s Social Security check to forging financial documents to misappropriating cash, jewelry and other property. Financial fraud costs seniors at least $36.5 billion annually, according to the National Council on Aging.

Here are some signs and circumstances that can help you identify elder financial abuse and perhaps prevent it from happening to you or someone you love:

Unusual financial activity. A big red flag of potential financial abuse is unexplained activity in an older person’s accounts. Ask about any large withdrawals and unpaid bills to make certain sure there are no questionable credit card charges. Stop any bank transfers or recurring transactions the account holder does not remember making. Review an aging loved one’s bank and credit card statements regularly with him or her to help guard against fraud. You may also create a transparent system that lets both of you monitor financial activity and perform basic record-keeping, and keep the lines of communication over money matters open.

New ‘friends’ or helpers. Those seniors who live alone are particularly susceptible to financial exploitation. Wrongdoers can more readily hide their misdeeds, if no one else is around. Experts caution that perpetrators of financial abuse, especially new acquaintances, frequently try to box out others and limit relatives’ contact with a vulnerable, older adult. Use caution with newcomers who try to insert themselves into a senior’s life in a way that makes them indispensable in the eyes of the victim.

Cognitive decline or loss of financial acumen. If a senior has known cognitive impairments like Alzheimer’s or dementia or is beginning to show a loss of financial acumen, a trusted individual may need to immediately step in to help. Financial fraud can easily happen when a third party has access to an older adult’s sensitive private data, such as account numbers, passwords or Social Security number. Many older people also require help with money management tasks.

Mobility or frailty issues. Even those without cognitive impairments may be susceptible to financial abuse if they have physical disabilities or other issues that prevent them from driving or otherwise getting around. Therefore, seniors with mobility issues who are unable to go to the bank on their own, or who are not good with computers, may not have the physical ability or the aptitude to do remote banking. They may have to rely on another to handle routine transactions, such as deposits, withdrawals, or transfers.

Reference: AARP (Feb. 28, 2022) “Spot the Red Flags of Elder Financial Abuse”

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How Can I Obtain a Power of Attorney for My Dad?