Category: Estate Planning

Crummey Trusts are an Option to Gift to Minors

Crummey Trusts are an Option to Gift to Minors

If you’re looking for ways to pass wealth on to children or grandchildren, one valuable tool to consider may be the Crummey Trust. Crummey Trusts represent a strategic option for those looking to gift assets to minors. Named after the first individual to utilize this approach, the Crummey Trust offers a way to gift money to minors while enjoying significant tax advantages and maintaining control over the funds’ distribution.

A Crummey Trust allows you to gift assets to minors without those gifts being subject to gift tax up to a certain amount annually. As of 2024, you can give up to $18,000 annually to a minor through a Crummey Trust without incurring gift tax or affecting your lifetime gift tax exemption. This type of trust is particularly appealing because it prevents the minor from gaining direct access to the funds until they reach an age where they can manage the money responsibly.

A Crummey Trust operates on the concept of “present interest” gifts. For a gift to qualify for the annual gift tax exclusion, the recipient must have the right to use, possess, or enjoy the gift immediately. Crummey Trusts meet this requirement by allowing the beneficiary a temporary right to withdraw the gifted amount, typically within a 30-day window after the gift is made. If the withdrawal right is not exercised, the funds remain in the trust, subject to the terms set by the grantor.

While Crummey Trusts offer many advantages, they also require diligent record-keeping and clear communication with beneficiaries about their rights. Additionally, as beneficiaries age, they may choose to exercise their withdrawal rights, which could impact the grantor’s willingness to continue making gifts to the trust.

Crummey Trusts represent a strategic option for those looking to gift assets to minors while maintaining control over the distribution of those assets and optimizing tax benefits. By understanding the unique features and requirements of Crummey Trusts, you can make informed decisions that align with your estate planning goals and provide for your loved ones’ futures. If you would like to learn more about gifting, please visit our previous posts.

Reference: ElderLawAnswers “Crummey Trust: A Safe Way to Give Financial Gifts to Minors”

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Business Owners needs Succession Planning

Business Owners needs Succession Planning

Business owners typically have a high percentage of their net worth tied up in the business and sometimes the real estate where it operates. What’s surprising is how little attention is often given to the succession plan. Business owners need succession planning, says an article from Accounting Today, “The two sides to succession plans for private businesses.”

Starting with the operational side, who will take over the business owner’s work when they die, become incapacitated, or retire? If a business founder is in the weeds of the business, this is a big issue. The owner must have extensive conversations with key employees to discuss the details.

Multigenerational family ownership isn’t always the cure for a succession plan. Second- or third-generational roles must be planned, so capable people fill them. Bloodline succession doesn’t always work for running a business.

These conversations regarding roles, compensation and equity incentives must be very detailed. Not all employee leaders are willing to pour their lives into a privately owned business for the benefit of heirs without an incentive plan.

On the financial side of succession, who will become the owners of the deceased’s shares, and what financial arrangements will be made for that transfer? Businesses with the least amount of animosity and grief are those who have done the hard work: they have the business evaluated by an outside professional and having clear plans for how the successor owners will own and operate the business.

How will the transfer of the business take place in the future? An estate planning attorney should work with the business’ accountants, financial advisors, insurance brokers and other professionals to develop a clear plan for the business and the family.

If the owner is contemplating retirement, will they count on the income from the business operations to fund their retirement, or will they sell their shares to family members or outsiders? Who will oversee this transfer if the business owner becomes incapacitated?

Business owners needs succession planning for a privately held business. It is a lengthy process requiring input from skilled professionals, and ideally, it should begin the moment the business is well-established. There’s always time to tweak an existing plan, but never time to plan in an emergency. If you would like to learn more about business succession planning, please visit our previous posts. 

Reference: Accounting Today (Feb. 13, 2024) “The two sides to succession plans for private businesses”

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Understanding Marital Trusts in Your Estate Plan

Understanding Marital Trusts in Your Estate Plan

Married couples looking to secure their financial future and provide for the surviving spouse tax-efficiently may consider a marital trust.  This article will provide an understanding of marital trusts, how they work and their role in an your estate plan.

A marital trust is a legal arrangement in estate planning used predominantly by married couples. It is designed to provide financial benefits to a surviving spouse and can be a crucial part of an estate plan. Marital trusts ensure that upon the death of one spouse, the surviving spouse receives assets held in the trust. This arrangement not only offers financial security but also involves estate tax considerations.

In an estate plan, a marital trust comes into play upon the death of the first spouse. It’s created to transfer assets to the surviving spouse in a manner that is often exempt from immediate estate taxes, thanks to the unlimited marital deduction. This mechanism allows the surviving spouse to utilize the trust assets and potentially the income generated by these assets.

The unlimited marital deduction is a key component in how marital trusts operate. It allows for the transfer of an unrestricted amount of assets to the surviving spouse without incurring federal estate tax at the time of the first spouse’s death. This exemption is a significant advantage of using a marital trust in estate planning.

There are several types of marital trusts, each with specific features and benefits. A commonly used type is the Qualified Terminable Interest Property (QTIP) trust, which allows the first spouse to control how the trust’s assets are distributed after the death of the surviving spouse. Another type is the B Trust or credit shelter trust, which can help maximize estate tax exemption limits.

A marital trust offers numerous benefits to a surviving spouse. It ensures that the spouse can access trust assets and income, providing financial security. The trust can also stipulate how assets are managed and distributed, offering a layer of control and protection over the family’s financial legacy.

Estate tax plays a crucial role in the functioning of marital trusts. By utilizing a marital trust, you can defer the federal estate tax until the death of the surviving spouse. This deferral can result in significant tax savings, especially if the estate exceeds the federal estate tax exemption threshold.

While marital trusts offer many benefits, there are downsides to consider. One such drawback is their irrevocable nature; once established, the terms are generally set and cannot be easily altered. The surviving spouse’s estate may also be subject to increased estate taxes upon their death, depending on the trust’s structure and the value of the assets.

Establishing a marital trust involves careful planning and legal expertise. Consulting with an estate planning attorney will provide an understanding of martial trusts and ensure that the trust aligns with your estate plan. Staying informed and periodically reviewing your estate plan with an attorney is advisable to ensure that it continues to meet your objectives and complies with current laws.

There are different types of spousal trusts, each designed for specific situations and objectives. Apart from marital trusts, other options include Spousal Lifetime Access Trusts (SLATs) and bypass trusts, each offering unique advantages and serving different estate planning goals.

In conclusion, understanding marital trusts are a versatile and powerful tool will go a long way in your estate plan. They offer financial security for the surviving spouse and tax advantages and can be tailored to suit individual estate planning needs. If you would like to learn more about marital trusts, please visit our previous posts. 

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How Does an Estate Plan Address Young Beneficiaries?

How Does an Estate Plan Address Young Beneficiaries?

How does an estate plan address young beneficiaries? Certain beneficiaries require more intentional estate planning than others. While the law sets the age of adulthood at 18, specific testamentary instruments can redefine at what age a beneficiary is considered an adult. A recent article from The News-Enterprise, “When planning for young beneficiaries, consider all options,” explains how this works.

Young beneficiaries, especially 18-year-olds still in high school, are still immature, and their brains are still developing. Add a strong dose of grief to a teenager’s life, and even a bright, stable adolescent may not make good decisions.

Young adult beneficiaries are categorized in two ways: primary and contingent.

A primary beneficiary is one who the testator or grantor expects to be a young beneficiary at the time of distribution of assets or who is young when the estate planning documents are executed. This is typically the parents of young children or grandparents who intend to leave property to young grandchildren.

Contingent beneficiaries are those who are not anticipated to receive property as young beneficiaries. However, they could inherit if a primary beneficiary dies, such as when a grandchild receives an inheritance following their parent’s death.

Even for contingent beneficiaries, some level of planning needs to be done to define the age of majority and provide options for distribution. This is done through an immediate split of assets, with assets going into a general needs trust or a common pot trust.

Assets are most commonly left to young beneficiaries through an immediate split of assets upon estate distribution. Assets are held in a separate trust for each beneficiary, with a trustee appointed for each trust. Assets within the trust are typically available for the child’s health, education, maintenance, or support until the child reaches the predetermined age.

Upon reaching the age defined by the trust, the child may receive the assets either outright or incrementally over a period of time.

Another option is to use a common pot trust. This is used for parents with multiple minor children. This type of trust allows the assets to remain in one trust to be used for the needs of all children until a triggering event, such as the youngest child reaching age 18. At that time, the remaining trust assets are split into as many shares as there are beneficiaries, and the shares are distributed according to the remaining instructions. Each separate share is usually left in an ongoing general needs trust until a certain age.

Leaving property in trust for young beneficiaries doesn’t cut off their ability to use the money property. The trustee can continue to use the assets for the beneficiary’s care. However, whatever is left is distributed to the beneficiary upon reaching the distribution age.

Your estate planning attorney can help you determine how to address young beneficiaries in your estate plan. He or she will let you know the best way to structure trusts for your children or grandchildren based on your wishes and their ages. By redefining the age of majority and outlining specific directions for distributions, young beneficiaries can receive the most value from their inheritance. If you would like to learn more about managing assets for your beneficiaries, please visit our previous posts. 

Reference: The News-Enterprise (Feb. 10, 2024) “When planning for young beneficiaries, consider all options”

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Use Qualified Disclaimer to avoid Inheriting IRA

Use Qualified Disclaimer to Avoid Inheriting IRA

The rules governing inherited Individual Retirement Accounts (IRAs) have changed over the years. They have become even more complex since the passage of the original SECURE Act. The inheritor of an IRA may be required to empty the account and pay taxes on the resulting income within 10 years. In some situations, beneficiaries might choose to use a Qualified Disclaimer to avoid inheriting the IRA, according to a recent article, “How to Opt Out of Inheriting an IRA” from Think Advisor.

Paying taxes on the distributions could put a beneficiary into a higher tax bracket. In some situations, beneficiaries may want to execute a Qualified Disclaimer and avoid inheriting both the account and the tax consequences associated with the inheritance.

Individuals who use a Qualified Disclaimer are treated as if they never received the property at all. Of course, you don’t enjoy the benefits of the inheritance but don’t receive the tax bill.

Suppose the decedent’s estate is large enough to trigger the federal estate tax. In that case, generation-skipping transfer tax issues may come into play, depending on whether there are any contingent beneficiaries.

An experienced estate planning attorney is needed to ensure that the disclaimer satisfies all requirements and is treated as a Qualified Disclaimer. It must be in writing, and it must be irrevocable. It also needs to align with any state law requirements.

The person who wishes to disclaim the IRA must provide the IRA custodian or the plan administrator with written notice within nine months after the latter of two events: the original account owner’s death or the date the disclaiming party turns 21 years old. The disclaiming person must also execute the disclaimer before receiving the inherited IRA or any of the benefits associated with the property.

Once you use the qualified disclaimer to avoid inheriting the IRA, it must pass to the remaining beneficiaries without the disclaiming party’s involvement. The disclaiming party cannot directly decide who will receive their interests, such as directing the inherited IRA to go to their child. If the disclaiming party’s child is already named as a beneficiary, their interest will be received as intended by that child.

The person inheriting the account must execute the disclaimer before receiving any benefits from the account. Even electing to take distributions will prevent the disclaimer from being effective, even if the person has not received any funds.

In some cases, you may be able to disclaim a portion of the inherited IRA. However, these are specific cases requiring the experience of an estate planning attorney. If you would like to learn more about inherited IRAs, please visit our previous posts. 

Reference: Think Advisor (Feb. 8, 2024) “How to Opt Out of Inheriting an IRA”

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Bypass Trust is a pivotal Estate Planning Tool

Bypass Trust is a pivotal Estate Planning Tool

A bypass trust, also known as a credit shelter trust or B trust, is a pivotal estate planning tool. It’s designed to help minimize estate taxes and ensure that a larger portion of your assets reaches your intended beneficiaries. A bypass trust works by allowing a surviving spouse to benefit from the trust assets during their lifetime, while preserving the trust principal for the next generation.

One of the primary benefits of a bypass trust is its ability to shield assets from estate taxes. This trust type strategically utilizes the federal estate tax exemption, allowing couples to effectively double the amount exempted from estate taxes. When one spouse passes away, the assets up to the estate tax exemption amount can be transferred into the bypass trust, thus reducing the taxable estate of the surviving spouse.

In the bypass trust arrangement, the trust is split into two separate trusts when the first spouse dies. The survivor’s trust is revocable and contains the surviving spouse’s share of the estate, while the deceased spouse’s share is transferred into the bypass trust, which becomes irrevocable. This separation allows for efficient estate tax management.

The surviving spouse plays a crucial role in a bypass trust. They have access to the trust income and, in some cases, the principal for certain needs. However, the trust assets remain in the trust and are not considered part of the surviving spouse’s estate, thus avoiding estate taxes upon their death.

Selecting a trustee for a bypass trust is an essential decision. The trustee manages the trust assets and ensures that they are used according to the terms of the trust. It’s essential to choose someone who is trustworthy and understands the financial and legal responsibilities involved.

Setting up a bypass trust requires careful planning and drafting by an experienced estate planning attorney. The trust document must outline the terms of the trust, including how the assets will be managed and distributed. This process also involves making decisions about beneficiaries and trustees.

Bypass trusts are closely tied to tax law, particularly federal estate tax laws. How a bypass trust is structured can significantly impact the estate taxes owed. Understanding current tax laws and how they affect your estate plan is crucial.

A bypass trust is most beneficial for couples with substantial assets that exceed the federal estate tax exemption amount. It’s an effective way to reduce estate taxes and ensure that more of your estate goes to your beneficiaries rather than to tax payments.

The landscape of estate planning and tax law is constantly evolving. It’s important to stay informed about changes in the law and how they may impact your estate plan. A bypass trust remains a relevant and pivotal tool in many estate planning strategies.

If you’re considering a bypass trust as part of your estate plan, consulting with an experienced estate planning attorney is essential. They can help you understand if a bypass trust is the right option for your situation and guide you through the process of setting one up. If you would like to learn more about bypass trusts and estate taxes, please visit our previous posts. 

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Divorce Impacts your Estate Plan

Divorce Impacts your Estate Plan

Divorce is a life-altering event that significantly impacts various aspects of life, including your estate plan. Clients either going through a divorce or have recently finalized one often feel uncertain about how the divorce will affect their estate. This article shares crucial aspects of revising your estate plan after a divorce, ensuring that your assets and loved ones are protected according to your current wishes.

When you get divorced, updating your estate plan is imperative, as your ex-spouse may still be entitled to certain benefits. Your estate, which includes all assets owned, might still be accessible to your ex-spouse unless changes are made. Revising your estate plan ensures that your assets are distributed according to your updated preferences. Updating your will is essential after a divorce. Your ex-spouse may still be named as the executor or beneficiary. By revising your will, you can ensure that your estate is administered by someone you trust and that your assets are distributed according to your latest intentions.

Revoking your power of attorney is a critical step post-divorce. Your ex-spouse may be able to make financial and care decisions on your behalf. It’s advisable to appoint someone you trust to handle these matters, ensuring that your affairs are managed according to your current preferences.

Beneficiary designations are often overlooked during estate planning after divorce. It’s crucial to revise these as your ex-spouse might still be listed as a beneficiary on life insurance policies, retirement accounts and other financial instruments. Updating these designations is a simple yet essential step in ensuring that your estate is distributed according to your current wishes. Your ex-spouse is likely named as a trustee or beneficiary if you have a living trust. Post-divorce, you need to revise this document to reflect your current wishes. This might include appointing a new trustee or changing the beneficiaries.

If you have minor children, your estate plan probably includes guardianship designations. Post-divorce, reassess these choices. You might want to name someone other than your ex-spouse as the guardian, ensuring that your children’s care aligns with your current wishes.

State law and the terms of your divorce decree can impact your estate plan. Understanding these implications and ensuring that your estate plan complies with legal requirements is important. An experienced estate planning attorney can provide valuable insights and guidance.

Don’t wait until the divorce is finalized. Start updating your estate plan as soon as the divorce is pending. This proactive approach ensures that your interests are protected throughout the divorce process.

Divorce significantly affects your estate plan, and it’s crucial to take timely action to revise it. Remember, updating your estate plan post-divorce is not just a legal necessity; ensuring that your assets and loved ones are protected according to your current wishes is crucial. Don’t hesitate to seek professional assistance to navigate this complex process. If you would like to read more about estate planning post divorce, please visit our previous posts. 

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The Estate of The Union Season 3|Episode 2

The Estate of The Union Season 3|Episode 2 is out now!

The Estate of The Union Season 3|Episode 2 is out now!

Millennials continue to be a mystery to everyone – except Millennials!

In this third part of Millennial Mysteries, Brad and his Millennial son, Sam, discuss and review a movie they recently saw together: Godzilla Minus One. Boomer Brad thinks this is one of the BEST movies he has ever seen – and they explain why here.

They have a very entertaining discussion on how movies affect Millennials and what Millennials want to see in movies. And this version of Godzilla was nominated for an Oscar!

 

In each episode of The Estate of The Union podcast, host and lawyer Brad Wiewel will give valuable insights into the confusing world of estate planning, making an often daunting subject easier to understand. It is Estate Planning Made Simple! The Estate of The Union Season 3|Episode 2 is out now! The episode can be found on Spotify, Apple podcasts, or anywhere you get your podcasts. If you would prefer to watch the video version, please visit our YouTube page. Please click on the links to listen to or watch the new installment of The Estate of The Union podcast. We hope you enjoy it.

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Texas Trust Law focuses its practice exclusively in the area of wills, probate, estate planning, asset protection, and special needs planning. Brad Wiewel is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. We provide estate planning services, asset protection planning, business planning, and retirement exit strategies.

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Understanding how a Guardianship and Conservatorship Contrast

Understanding how a Guardianship and Conservatorship Contrast

Guardianship and conservatorship are two legal mechanisms designed to assist individuals who cannot manage their own affairs. While they share similarities, understanding how a guardianship and conservatorship contrast is vital. Guardianship typically pertains to personal and health care decisions, while conservatorship deals with financial matters. Both require court appointment and carry significant responsibility.

Guardianship involves the legal authority granted to a guardian to make decisions on behalf of a person who is unable to do so. This typically pertains to personal, health and welfare decisions. A court appoints a guardian when an individual is deemed incapacitated, and the guardian may have to make a wide range of personal decisions for them. A guardian has significant responsibilities, including making personal care decisions, overseeing living arrangements and ensuring the overall well-being of their ward. They must keep detailed records and report to the court regularly, demonstrating that they are acting in the best interests of the ward.

In cases involving minor children, guardianship becomes essential when parents are unable to provide care. The guardian, appointed by the court, assumes responsibility for the child’s personal needs and welfare, acting in their best interests. This is often seen when parents are unable or unwilling to care for their child or in the event of the death of the parents.

Conservatorship, on the other hand, is primarily focused on financial matters. A conservator is appointed to manage the financial affairs of an individual who is unable to do so themselves, due to incapacity or other reasons. This includes managing a person’s assets, making investments and handling financial decisions. In conservatorship proceedings, the court appoints a conservator to oversee the financial needs of the incapacitated individual. The conservator must act responsibly and is often required to provide the court with periodic financial reports.

While a guardian manages personal and medical decisions, a conservator handles the financial aspects, such as personal and financial records, asset management and financial planning. This distinction is crucial in understanding the roles and responsibilities each holds.

The legal authority granted to a guardian differs from that of a conservator. A guardian makes personal and medical decisions, while a conservator focuses on financial and asset management. This division ensures that all aspects of an individual’s life are cared for adequately. Both guardians and conservators are appointed by the court and must act in the best interests of their wards. They are supervised by the court and must provide regular reports to demonstrate their compliance with legal responsibilities.

Incorporating guardianship and conservatorship into an estate plan is crucial. An estate plan can appoint a guardian or conservator in advance, providing clarity and direction in the event of incapacitation. Including a power of attorney in your estate plan can preempt the need for a court-appointed guardian or conservator. This allows you to choose who will make decisions on your behalf, if you become unable to do so.

An effective estate plan, including wills and power of attorney, can provide peace of mind and ensure that your wishes are honored. It prepares for scenarios where you might be incapacitated, ensuring that your personal and financial matters are in trusted hands. Navigating the complexities of guardianship and conservatorship can be challenging. A lawyer can help you understand how a guardianship and conservatorship contrast. The assistance of an estate planning or elder lawyer is invaluable in understanding your options, the legal process and ensuring that your loved one’s needs are met.

Each situation is unique, and a lawyer can provide tailored advice depending on your specific circumstances. They can help you navigate the legal system, ensuring the best outcome for you and your loved ones. If you would like to learn more about guardianship, please visit our previous posts. 

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Pitfalls of Adding a Child to Your Home's Deed

Pitfalls of Adding a Child to Your Home’s Deed

As an estate planning attorney, I’ve witnessed many parents consider adding a child to the deed of their home with good intentions. They often view this as a simple strategy to ensure that their property seamlessly passes to their children without the complexities of probate. However, this well-intentioned move can lead to numerous unexpected complications and financial burdens. This article explains the pitfalls of adding a child to your home’s deed might not be the optimal choice for your estate plan.

To begin, let’s clarify what it means to add a child to the deed of your home. By doing this, you are legally transferring partial ownership rights to your child. This action is commonly perceived as a method to circumvent probate. However, it is imperative to understand that it also entails relinquishing a degree of control over your asset.

When you add your child to the deed, you are not just avoiding probate; you are creating a co-ownership situation. This means your child gains legal rights over the property, equal to yours. Such a shift in ownership can have significant legal ramifications, particularly if you need to make decisions about the property in the future.

Avoiding probate is often cited as the primary reason for adding a child to a home’s deed. Probate can be a lengthy and sometimes costly process. However, it’s essential to weigh these concerns against the potential risks and challenges of joint ownership. Probate avoidance, while seemingly beneficial, does not always equate to the most advantageous approach. The process of probate also serves to clear debts and distribute assets in a legally structured manner. By bypassing this process, you might be opening the door to more complicated legal and financial issues in the future.

One of the most overlooked aspects of adding a child to your deed is the gift tax implications. The IRS views this act as a gift. It’s important to understand that the IRS has established specific rules regarding gifts. If the value of your property interest exceeds the gift tax exclusion limit, you might be required to file a gift tax return. This could potentially lead to a significant tax liability, an aspect often not considered in the initial decision-making process.

The loss of control over your property is a critical consideration. Once your child becomes a co-owner, they have equal say in decisions regarding the property. This change can affect your ability to sell or refinance the property and can become particularly problematic if your child encounters financial issues. In a co-ownership scenario, if your child faces legal or financial troubles, your property could be at risk. Creditors might target your home for your child’s debts, and in the case of a child’s divorce, the property might become part of a marital settlement. Adding a child to your deed can inadvertently lead to family disputes and legal challenges, especially if you have more than one child. Equal distribution of assets is often a key consideration in estate planning to maintain family harmony.

A significant financial consideration is the potential capital gains tax burden for your child. When a property is inherited, it usually benefits from a step-up in basis, which can significantly reduce capital gains tax when the property is eventually sold. However, this is not the case when a child is added to a deed. Without the step-up in basis, if your child sells the property, they may face a substantial capital gains tax based on the difference between the selling price and the original purchase price. This tax burden can be considerably higher than if they had inherited the property.

There are several alternatives to adding a child to your home’s deed. Creating a living trust, for instance, allows you to maintain control over your property while also ensuring a smooth transition of assets to your beneficiaries. A living trust provides the flexibility of controlling your assets while you’re alive and ensures they are distributed according to your wishes upon your death. This approach can also offer the benefit of avoiding probate without the downsides of directly adding a child to your deed.

Given the complexities and potential pitfalls of adding a child to your home’s deed, seeking professional legal advice is essential. An experienced estate planning attorney can help navigate these complexities and tailor a plan that aligns with your specific needs and goals.

While adding a child to your home’s deed might seem straightforward to manage your estate, it’s fraught with potential problems and complications. It’s vital to consider all the implications and seek professional guidance to ensure your estate plan is effective, efficient and aligned with your long-term intentions. If you would like to learn more about managing real property in your estate plan, please visit our previous posts. 

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Information in our blogs is very general in nature and should not be acted upon without first consulting with an attorney. Please feel free to contact Texas Trust Law to schedule a complimentary consultation.
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