What Is a Trust and How Does It Work?

March 22, 2022

A trust is a legal entity, created to hold assets for a person referred to as a beneficiary. The person in charge of the trust is the trustee. The person who creates the trust is known as the grantor (or trustmaker, settlor, or trustor). How the trust is structured and what it does varies widely, as detailed in the aptly-named article “Trusts Explained” from U.S. News & World Report. Trusts are used in estate planning to reduce estate taxes, help avoid having certain assets go through probate, or assist in validating and settling an estate.

Simply put, trusts are used to transfer assets from one person to another person, or institution, such as a nonprofit or a bank. The grantor establishes the trust and funds it by retitling assets to be owned by the trust. The grantor also chooses one or more beneficiaries and a trustee or a group of trustees, who are in charge of managing the trust.

You might create a trust to benefit a charity and have it managed by a bank or another type of financial institution. If the trustee is an institution, it will name a trust administrator or trust officer, who is in charge of managing the trust.

Placing assets in a trust ensures they are managed as directed in the trust documents, even when you cannot manage them yourself. Assets in a trust do not go through probate, allowing heirs to access assets more quickly than if they were transferred using a last will.

Certain kinds of trusts, and there are many, can be used to remove assets from your estate to reduce estate taxes.

Revocable living trusts provide a lot of flexibility. The grantor may change the terms of the trust or even shut the trust down at any time. The grantor may also be a trustee, so as to maintain complete control of the trust during the lifetime of the grantor. A successor trustee is named to control the trust when the primary trustee dies or becomes incapacitated.

In exchange for this much control, the assets are still considered part of the grantor’s estate. To avoid this, use an irrevocable trust. This trust cannot be altered by the grantor once it’s established. The grantor may not change the terms of the trust or dissolve the trust. Assets are under control of the trustee only. Assets in an irrevocable trust are not considered part of an estate, not subject to estate taxes and the grantor does not have to pay taxes on income generated by the trust during their lifetime. Note: this description is “painting” with a broad brush as there are many legal and tax “moving parts,” when it comes to irrevocable trusts.

Wills and trusts are both used to direct how assets are transferred after death. Trusts can be used to manage assets on your behalf, if you become incapacitated as well as after your death. Trust documents do not become part of the public record, while wills do. Wills have to be validated by the court; trusts do not. Some people place most or all of their assets within a trust to keep their business private.

Trusts provide a great deal more control over your assets and maintain privacy for the family. You control how and when assets are distributed in the trust document. For instance, children can be given money over a controlled period of time, rather than all at once. You can also use trusts to pass assets along to a family member with special needs who is receiving government benefits using a special needs trust. Passing assets directly to such an individual could put all of their government support and programs at risk.

Speak with your estate planning attorney about trusts and how they may benefit you, your spouse and your family. They can provide you with even greater peace of mind than a will. Note: the above description of a trust is truly “painting with a broad brush,” since there are many legal and tax “moving parts” when it comes to irrevocable trusts.

Reference: U.S. News & World Report (Feb. 7, 2022) “Trusts Explained”

Should I have a Charitable Trust in My Estate Plan?

March 15, 2022

Charitable trusts can be created to provide a reliable income stream to you and your beneficiaries for a set period of time, says Bankrate’s recent article entitled “What is a charitable trust?”

Establishing a charitable trust can be a critical component of your estate plan and a rewarding way to make an impact for a cause you care deeply about. There are a few kinds of charitable trusts to consider based on your situation and what you may be looking to accomplish.

Charitable lead trust. This is an irrevocable trust that is created to distribute an income stream to a designated charity or nonprofit organization for a set number of years. It can be established with a gift of cash or securities made to the trust. Depending on the structure, the donor can benefit from a stream of income during the life of the trust, deductions for gift and estate taxes, as well as current year income tax deductions when the assets are donated to the trust.

If the charitable lead trust is funded with a donation of cash, the donor can claim a deduction of up to 60% of their adjusted gross income (AGI), and any unused deductions can generally be carried over into subsequent tax years. The deduction limit for appreciated securities or other assets is limited to no more than 30% of AGI in the year of the donation.

At the expiration of the charitable lead trust, the assets that remain in the trust revert back to the donor, their heirs, or designated beneficiaries—not the charity.

Charitable remainder trust. This trust is different from a charitable lead trust. It’s an irrevocable trust that’s funded with cash or securities. A CRT gives the donor or other beneficiaries an income stream with the remaining assets in the trust reverting to the charity upon death or the expiration of the trust period. There are two types of CRTs:

A charitable remainder annuity trust or CRAT distributes a fixed amount as an annuity each year, and there are no additional contributions can be made to a CRAT.
A charitable remainder unitrust or CRUT distributes a fixed percentage of the value of the trust, which is recalculated every year. Additional contributions can be made to a CRUT.

Here are the steps when using a CRT:

Make a partially tax-deductible donation of cash, stocks, ETFs, mutual funds or non-publicly traded assets, such as real estate, to the trust. The amount of the tax deduction is a function of the type of CRT, the term of the trust, the projected annual payments (usually stated as a percentage) and the IRS interest rates that determine the projected growth in the asset that’s in effect at the time.
Receive an income stream for you or your beneficiaries based on how the trust is created. The minimum percentage is 5% based on current IRS rules. Payments can be made monthly, quarterly or annually.
After a designated time or after the death of the last remaining income beneficiary, the remaining assets in the CRT revert to the designated charity or charities.

There are a number of benefits of a charitable trust that make them attractive for estate planning and other purposes. It’s a tax-efficient way to donate to the charities or nonprofit organizations of your choosing. The charitable trust provides benefits to the charity and the donor. The trust also provides upfront income tax benefits to the donor, when the contribution to the trust is made.

Donating highly appreciated assets, such as stocks, ETFs, and mutual funds, to the charitable trust can help avoid paying capital gains taxes that would be due if these assets were sold outright. Donations to a charitable trust can also help to reduce the value of your estate and reduce estate taxes on larger estates.

However, charitable trusts do have some disadvantages. First, they’re irrevocable, so you can’t undo the trust if your situation changes, and you were to need the money or assets donated to the trust. When you establish and fund the trust, the money’s no longer under your control and the trust can’t be revoked.

A charitable trust may be a good option if you have a desire to create a legacy with some of your assets. Talk with an experienced estate planning attorney about your specific situation.

Reference: Bankrate (Dec. 14, 2021) “What is a charitable trust?”

Can Estate Planning Reduce Taxes?

March 15, 2022

With numerous bills still being considered by Congress, people are increasingly aware of the need to explore options for tax planning, charitable giving, estate planning and inheritances. Tax sensitive strategies for the near future are on everyone’s mind right now, according to the article “Inheritance, estate planning and charitable giving: 4 strategies to reduce taxes now” from Market Watch. These are the strategies to be aware of.

Offsetting capital gains. Capital gains are the profits made from selling an asset which has appreciated in value since it was first acquired. These gains are taxed, although the tax rates on capital gains are lower than ordinary income taxes if the asset is owned for more than a year. Losses on assets reduce tax liability. This is why investors “harvest” their tax losses, to offset gains. The goal is to sell the depreciated asset and at the same time, to sell an appreciated asset.

Consider Roth IRA conversions. People used to assume they would be in a lower tax bracket upon retirement, providing an advantage for taking money from a traditional IRA or other retirement accounts. Income taxes are due on the withdrawals for traditional IRAs. However, if you retire and receive Social Security, pension income, dividends and interest payments, you may find yourself in the enviable position of having a similar income to when you were working. Good for the income, bad for the tax bite.

Converting an IRA into a Roth IRA is increasingly popular for people in this situation. Taxes must be paid, but they are paid when the funds are moved into a Roth IRA. Once in the Roth IRA account, the converted funds grow tax free and there are no further taxes on withdrawals after the IRA has been open for five years. You must be at least 59½ to do the conversion, and you do not have to do it all at once. However, in many cases, this makes the most sense.

Charitable giving has always been a good tax strategy. In the past, people would simply write a check to the organization they wished to support. Today, there are many different ways to support nonprofits, allowing for better tax advantages.

One of the most popular ways to give today is a DAF—Donor Advised Fund. These are third-party funds created for supporting charity. They work in a few different ways. Let’s say you have sold a business or inherited money and have a significant tax bill coming. By contributing funds to a DAF, you will get a tax break when you put the funds into a DAF. The DAF can hold the funds—they do not have to be contributed to charity, but as long as they are in the DAF account, you receive the tax benefit.

Another way to give to charity is through your IRA’s Required Minimum Distribution (RMD) by giving the minimum amount you are required to take from your IRA every year to the charity. Otherwise, your RMD is taxable as income. If you make a charitable donation using the RMD, you get the tax deduction, and the nonprofit gets a donation.

Giving while living is growing in popularity, as parents and grandparents can have pleasure of watching loved ones benefit from the impact of a gift. A person can give up to $16,000 to any other person every year, with no taxes due on the gift. The money is then out of the estate and the recipient receives the full amount of the gift.

All of these strategies should be reviewed with your estate planning attorney with an eye to your overall estate plan, to ensure they work seamlessly to achieve your overall goals.

Reference: Market Watch (Feb. 18, 2022) “Inheritance, estate planning and charitable giving: 4 strategies to reduce taxes now”

What Does Estate Plan Include?

March 15, 2022

The will, formally known as a last will and testament, is just one part of a complete estate plan, explains the article “Essential components of an estate plan” from Vail Daily. Consider it a starting point. A will can be very straight-forward and simple. However, it needs to address your unique situation and meet the legal requirements of your state.

If your family includes grown children and your goal is to leave everything to your spouse, but then make sure your spouse then leaves everything to the children, you need to make sure your will accomplishes this. However, what will happen if one of your children dies before you? Do you want their share to go to their children, your grandchildren? If the grandchildren are minors, someone will need to manage the money for them. Perhaps you want the balance of the inheritance to be distributed among the adult children. What if your surviving spouse remarries and then dies before the new spouse? How will your children’s inheritance be protected?

Many of these questions are resolved through the use of trusts, another important part of a complete estate plan. There are as many different types of trusts as there are situations addressed by trusts. They can be used to minimize tax liability, control how assets are passed from one generation to the next and protect the family from creditor claims.

How a trust should be structured, whether it is revocable, meaning it can be easily changed, or irrevocable, meaning it is harder to change, is best evaluated by an experienced estate planning attorney. No matter how complicated your situation is, they will have seen the situation before and are prepared to help.

A memorandum of disposition of personal property gives heirs insight into your wishes, by outlining what you want to happen to your personal effects. Let’s say your will leaves all of your assets to be divided equally between your children. However, you own a classic car and have a beloved nephew who loves the car as much as you do. By creating a memorandum of disposition, you can make sure your nephew gets the car, taking it out of the general provisions of the will. Be mindful of state law, however.

Note that some states do not allow the use of a memorandum of disposition, let alone permit such “titled” assets to be transferred by such an informal memorandum. Consequently, you must clarify how this situation will be handled in your state of residence with your estate planning attorney.

You will also need a Power of Attorney, giving another person the right to act on your behalf if you should become incapacitated. This is often a spouse, but it can also be another trusted individual with sound judgment who is good with handling responsibilities. Make sure to name a back-up person, just in case your primary POA cannot or will not serve.

A Medical Power of Attorney gives a named individual the ability to act on your behalf regarding medical decisions if you are incapacitated. Make sure to have a back-up, just to be sure. Failing to name a back- up for either POA will leave your family in a position where they cannot act on your behalf and may have to go to court to obtain a court-appointed guardianship in order to care for you. This is an expensive, time-consuming and stressful process, making a bad situation worse.

A Living Will is a declaration of your preference for end-of-life care. What steps do you want to be taken, or not taken, if you are medically determined to have an injury or illness from which you will not recover? This is the document used to state your wishes about a ventilator, the use of a feeding tube, etc. This is a hard thing to contemplate, but stating your wishes will be better than family members arguing about what you “would have wanted.”

Reference: Vail Daily (Feb. 15, 2022) “Essential components of an estate plan”

What are Trends in Senior Health Care?

February 24, 2022

Feeling comfortable using virtual care technologies in the home, demanding more tech in independent living communities and becoming more engaged in their own health data are trends that show that seniors will be turning to technology more than ever to enhance their healthcare in the next year. Health Tech’s recent article entitled “3 Senior Care Tech Trends to Watch in 2022” gives us the top three trends in senior care for 2022:

Senior Care Will Continue to Adopt the Hospital-at-Home Model. Hospital-at-home is a growing trend in healthcare, as increased adoption of virtual care technologies permits the care of seniors with acute conditions to take place at home.

A 2018 AARP survey found that 76% of adults ages 50+ said they prefer to stay in their homes and communities, aging in place rather than moving to an independent living community. According to the American Hospital Association, the hospital-at-home care delivery model can reduce costs, improve outcomes and enhance the patient experience. However, traditional healthcare organizations have a part to play in this care delivery model with telehealth and remote patient monitoring that can extend care to the home setting.

Organizations Will Create Tech Concierge Roles to Help Seniors. Tech ownership, adoption, and use among older adults increased during the pandemic, with nearly half of those in an AARP saying that they used video chats more than before. With growing use of texting, email, smartphones and wearable devices, seniors are using more technology. As a result, the trend is likely to continue.
Consumerization Will Give Seniors More Control Over Their Health. Wearables and apps place health data in consumers’ hands. Healthcare organizations will not have to provide patients with all of their health information, which will create even more patient involvement in healthcare. This will give older adults more information and empower them to be active in decision-making about their health. Another impact of consumerization on senior care is that older adults are getting more comfortable with technology and are joining independent living communities’ selection committees to make decisions about which technologies the community will acquire.

As we go into 2022, consumerization and the desire for personalization are expected to impact the types of technology preferred by older adults and offered by independent living communities, as well as the ways seniors interact with digital health solutions.

Reference: Health Tech (Dec. 14, 2021) “3 Senior Care Tech Trends to Watch in 2022”

Can I Avoid Password Problems for My Family in Estate Planning?

February 24, 2022

Barron’s recent article entitled “How to Ensure Heirs Avoid a Password-Protected Nightmare” explains that even financial planners may not consider until too late, how difficult it can be to recover and access a loved one’s accounts after they pass away. Since we are much more paperless with our finances, getting access to these accounts can be extremely hard for heirs, if they don’t have the right information. That’s because digital accounts are protected by encryption, multifactor authentication and federal data privacy laws.

Create a list of digital accounts and instructions on how to access them. The list should include not only financial assets but social media and other accounts. Digital accounts that loved ones or advisors may need to access following a death include:

Traditional financial accounts
Cryptocurrency accounts
Home payment and utilities accounts
Health insurance benefits
Email accounts
Social media
Smartphone accounts
Storage and file-sharing
Photo, music and video accounts
E-commerce accounts
Subscriptions to streaming services, such as Netflix, newspapers, music services; and
Loyalty/rewards programs for airlines and hotels.

Create a list of accounts, passwords and access information, keeping it up to date as information changes and letting a trusted person, such as an executor or estate planning attorney, know its location. Without a password list, it can be a nightmare.

Note that with every digital account, there’s a specific process that heirs must undertake to gain access, which should then be communicated clearly in your estate plan. Make a list of all digital assets and their access information, but don’t include this in the will itself, since the document is part of the public record in probate.

Being prepared well ahead of time can help your family avoid additional stress and delays as they probate your estate. It also ensures that they don’t forfeit significant financial assets concealed behind an impenetrable digital wall.

Reference: Barron’s (Dec. 15, 2021) “How to Ensure Heirs Avoid a Password-Protected Nightmare”

How Should I Plan to Sell My Business?

February 24, 2022

For many business owners, between 70% and 80% of their wealth is tied up in their business. Research also shows that just 20% to 30% of businesses that go to market actually sell. That leaves 80% of business owners with limited options to monetize the value of their business and wealth for future financial security.

The Tampa Bay Business Journal’s recent article entitled “Selling a family business: Plan to maximize value and preserve wealth” explains that there are several factors facing Boomer business owners, as they consider selling their businesses:

They may be worried about forfeiting their income stream.
They may feel trapped because the business funds a certain lifestyle.
They could be worried about what they’ll do in the next chapter of life after leaving.
They may not have a sense of urgency or plan for an unexpected life event, such as an illness or death; and
They could be misinformed about options for a strategic exit to capitalize on the business’ value.

It’s critical to start business exit planning now.

It’s not uncommon that when businesses are passed on from one generation to the next, family conflicts can occur. With about three-quarters (70%) of family businesses failing after being passed to the next generation, there’s good reason to reconsider leaving your business to your children in the traditional sense.

More business owner children either can’t afford to buy the family business or would prefer to not be saddled with it. In fact, UBS Global Wealth Management found that 82% of the next generation would prefer the money from the sale of the business. Half of family business owners also don’t know their exit options and have no transition team or transition plan.

About half of all exits from a family business aren’t voluntary. The five Ds — death, disabilities, divorce, distress, and disagreements — can derail a sound business exit strategy. Instead of holding on too long and focusing on just income generation, business owners should look at growing the enterprise value of the business, thus making it more attractive and transferrable to new ownership.

Business owners should have secure contracts, an experienced management team and a sound succession plan to keep the business operating and demonstrate its market value.

You should aim to exit your business when it’s at peak enterprise value and while you have control to depart on your terms.

Simply gifting a family business to the next generation may not be the right decision. Ask an experienced estate planning attorney about other options to consider.

Reference: Tampa Bay Business Journal (Nov. 29, 2021) “Selling a family business: Plan to maximize value and preserve wealth”

How Does a Charitable Trust Help with Estate Planning?

February 22, 2022

Simply put, a charitable trust holds assets and distributes assets to charitable organizations. The person who creates the trust, the grantor, decides how the trust will manage and invest assets, as well as how and when donations are made, as described in the article “How a Charitable Trust Works” from yahoo! finance. An experienced estate planning attorney can help you create a charitable trust to achieve your estate planning goals and create tax-savings opportunities.

Any trust is a legal entity, legally separate from you, even if you are the grantor and a trustee. The trust owns its assets, pays taxes and requires management. The charitable trust is created with the specific goal of charitable giving, during and after your lifetime. Many people use charitable trusts to create ongoing gifts, since this type of trust grows and continues to make donations over extended periods of time.

Sometimes charitable trusts are used to manage real estate or other types of property. Let’s say you have a home you’d like to see used as a community resource after you die. A charitable trust would be set up and the home placed in it. Upon your death, the home would transfer to the charitable organization you’ve named in the trust. The terms of the trust will direct how the home is to be used. Bear in mind while this is possible, most charities prefer to receive cash or stock assets, rather than real estate.

The IRS defines a charitable trust as a non-exempt trust, where all of the unexpired interests are dedicated to one or more charitable purposes, and for which a charitable contribution deduction is allowed under a specific section of the Internal Revenue Code. The charitable trust is treated like a private foundation, unless it meets the requirements for one of the exclusions making it a public charity.

There are two main kinds of charitable trusts. One is a Charitable Remainder Trust, used mostly to make distributions to the grantor or other beneficiaries. After distributions are made, any remaining funds are donated to charity. The CRT may distribute its principal, income, or both. You could also set up a CRT to invest and manage money and distribute only earnings from the investments. A CRT can also be set up to distribute all holdings over time, eventually emptying all accounts. The CRT is typically used to distribute proceeds of investments to named beneficiaries, then distribute its principal to charity after a certain number of years.

The Charitable Lead Trust (CLT) distributes assets to charity for a defined amount of time, and at the end of the term, any remaining assets are distributed to beneficiaries. The grantor may be included as one of the trust’s beneficiaries, known as a “Reversionary Trust.”

All Charitable Trusts are irrevocable, so assets may not be taken back by the grantor. To qualify, the trust may only donate to charities recognized by the IRS.

An estate planning attorney will know how to structure the charitable trust to maximize its tax-savings potential. Depending upon how it is structured, a CT can also impact capital gains taxes.

Reference: yahoo! finance (Dec. 16, 2021) “How a Charitable Trust Works”

When Do I Need to Review Will?

February 22, 2022

You should take a look at your will and other estate planning documents at least every few years, unless there are reasons to do it more frequently. Some reasons to do it sooner include things like marriage, divorce, birth or adoption of a child, coming into a lot of money (i.e., inheritance, lottery win, etc.) or even moving to another state where estate laws are different from where your will was drawn up.

CNBC’s recent article entitled “When it comes to a will or estate plan, don’t just set it and forget it. You need to keep them updated” says that one of the primary considerations for a review is a life event — when there’s a major change in your life.

The pandemic has created an interest in estate planning, which includes a will and other legal documents that address end-of-life considerations. Research now shows that 18- to 34-year-olds are now more likely (by 16%) to have a will than those who are in the 35-to-54 age group. In the 25-to-40 age group, just 32% do, according to a survey. Even so, fewer than 46% of U.S. adults have a will.

If you’re among those who have a will or comprehensive estate plan, here are some things to review and why. In addition to reviewing your will in terms of who gets what, see if the person you named as executor is still a suitable choice. An executor must do things such as liquidating accounts, ensuring that your assets go to the proper beneficiaries, paying any debts not discharged (i.e., taxes owed) and selling your home.

Likewise, look at the people to whom you’ve assigned powers of attorney. If you become incapacitated at some point, the people with that authority will handle your medical and financial affairs, if you are unable. The original people you named to handle certain duties may no longer be in a position to do so.

Some assets pass outside of the will, such as retirement accounts, like a Roth IRA or 401(k)plans and life insurance proceeds. As a result, the person named as a beneficiary on those accounts will generally receive the money, regardless of what your will says. Note that 401(k) plans usually require your current spouse to be the beneficiary, unless they legally agree otherwise.

Regular bank accounts can also have beneficiaries listed on a payable-on-death form, obtained at your bank.

If you own a home, make sure to see how it should be titled, so it is given to the person (or people) you intend.

Reference: CNBC (Dec. 7, 2021) “When it comes to a will or estate plan, don’t just set it and forget it. You need to keep them updated”

What Does the Role of Estate Executor Entail?

February 22, 2022

Being named as the executor of a will is an honor and an obligation. However, depending on the size of the estate and your relationship to the deceased, performing the duties of an executor can feel like a second job, says Kiplinger’s recent article entitled “What to Do When You’re the Executor.”

This can be a real challenge for adult children who are responsible for executing the estate of the last surviving parent. These executors are often required to distribute assets among several beneficiaries, sell the family home and look over all the family belongings. If the family is a bit dysfunctional, if it’s a big estate, or if their parents’ estate planning was poor (or nonexistent), it’s even more time-consuming. Let’s look at some basic steps most executors should follow:

Get a dozen copies of the death certificate and file the will. Copies of the death certificate are usually available from the funeral home. You must then file the will and death certificate with the county probate court. If probate is required, you must get a letter from the court, known as a letter of testamentary. This gives you legal authority over the estate.

Assemble your pro team. In most instances, you’ll need an experienced estate planning attorney to help you navigate the probate court. The attorney who helped the decedent draw up his or her will is a good choice, as he or she is most likely familiar with the estate.

Create an inventory of assets. If the deceased didn’t keep good records of bank and brokerage accounts, insurance policies, tax returns, and other documents, you may need to track down some of these accounts.

Protect personal property. If the estate includes a home, the executor is responsible for maintaining the property and paying the mortgage, taxes and insurance until it’s sold.

Set up a separate bank account. An executor will need to pay bills and make deposits on behalf of the estate, so set up a bank account in the name of the decedent’s estate. This will also provide you a record of transactions that will prove useful if anyone challenges your administration of the estate.

Pay the decedent’s debts. This is a crucial action. If the decedent’s unpaid bills and other debts aren’t paid before the estate is distributed to heirs, creditors could sue. The executor is also responsible for filing a state and federal tax return to pay any taxes owed (or claim a refund).

Communicate with the beneficiaries on a regular basis. Don’t leave the heirs in the dark.

Distribute the assets. Finally, you can distribute the assets after all debts are paid, which may first require court approval.

If this sounds like more than you can handle, you can decline to act as an executor. Sometimes that’s the right choice.

Reference: Kiplinger (Oct. 29, 2021) “What to Do When You’re the Executor”

Estate Planning Blog

Serving Clients Throughout North Central Missouri

What Is a Trust and How Does It Work?

Should I have a Charitable Trust in My Estate Plan?

Can Estate Planning Reduce Taxes?

What Does Estate Plan Include?

What are Trends in Senior Health Care?

Can I Avoid Password Problems for My Family in Estate Planning?

How Should I Plan to Sell My Business?

How Does a Charitable Trust Help with Estate Planning?

When Do I Need to Review Will?

What Does the Role of Estate Executor Entail?

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What Is a Trust and How Does It Work?

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What Does Estate Plan Include?

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How Should I Plan to Sell My Business?

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