Naming Guardians for Minor Children Is Critical for Parents

July 23, 2024

Naming guardians for your minor children is one of the most critical estate planning decisions for parents. It ensures that someone you trust will care for your children in the manner you prefer if you are no longer able to do so. Failing to choose a guardian can make your passing even harder on your children.

An insightful article from Slate tells of an unplanned guardianship situation. As the story goes, a couple in their 60s had decided not to have children but found themselves as the only available guardians for a great-nephew. The child’s mother passed away, his father was in prison and no one else was available. This forced the couple to fill the needs of a grieving 10-year-old from a different socioeconomic background. While they told of doing their best, it was hard for them and their great-nephew. This story emphasizes the unpredictability of life and the critical nature of having a guardianship plan in place.

An article from Forbes highlights a range of considerations for choosing a guardian. You must consider not just who loves your children but also who can handle the responsibility. Consider their lifestyle, location, values, and the potential guardian’s family dynamics. Are they prepared to take on the emotional and financial responsibility of raising children?

Who would be the first to step in and care for your children in an emergency? Sometimes, the best choice for a guardian might not be immediate family but a close friend or someone who has always been part of your children’s lives.

If your child is old enough, their opinion might be helpful. Asking them could provide insights into who they would be comfortable living with should anything happen to you.

Without a will specifying a guardian for minor children, the courts will decide who will care for your children. This situation can lead to outcomes you might never have intended. By choosing a guardian yourself, you control the process and ensure that your children’s future is in the hands of someone you trust.

Absolutely. Your decision today isn’t set in stone. People’s circumstances and relationships change, and your estate plan, including guardianship decisions, should be reviewed and can be revised as needed.

Becoming a guardian on short notice can be overwhelming. It’s crucial to consider the emotional and psychological support the child will need, such as counseling, and the practical aspects, like schooling and healthcare. Understanding the child’s background and needs will help smooth their transition into your family.

It’s never too early to plan for the future of your minor children. Naming guardians for your minor children is critical for parents, and requires thoughtful consideration and difficult conversations. If you would like to learn more about guardianship, please visit our previous posts.

References: Forbes (Jan. 29, 2020) “10 Tips for Choosing a Guardian for Your Minor Child” and Slate (Jan. 17, 2022) “A Child Has Suddenly Come Into My Care”

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If you are Leaving Property Behind, Consider a Land Trust

July 22, 2024

Estate planning can be complex. However, understanding the available tools can make it easier to protect your assets and provide for your beneficiaries. If you are leaving property behind, consider a land trust.

A land trust is a legal agreement where one party (the trustee) holds the title to the property for the benefit of another party (the beneficiary). This setup can offer privacy, ease of transfer and protection from creditors.

Land trusts offer several benefits:

Privacy: The property owner’s name isn’t on public records.
Control: The beneficiary can direct how the property is managed.
Protection: It can shield assets from certain legal actions.

A land trust can name virtually anyone as a beneficiary, including individuals, businesses and even other trusts. This flexibility makes land trusts a valuable tool for personalized estate planning strategies. Almost any type of real estate can be placed in a land trust. The eligible real estate types include residential homes, commercial buildings, farmland and vacant land.

Creating a land trust involves several steps:

Consult an Attorney: Get professional advice to ensure that a land trust fits your needs.
Draft the Trust Agreement: Outline the terms, including who will be the trustee and beneficiaries.
Transfer the Property: Deed the property to the trustee.

When Mr. and Mrs. Wilson decided to buy a vacation home, they wanted to keep their ownership private and ensure that the property would easily pass to their children. They opted for a land trust. The trust kept their names off public records, providing the privacy they desired. When Mr. Wilson faced a personal lawsuit, the vacation home was protected because it was held in the trust. Their children, named as beneficiaries, will smoothly inherit the property since it will avoid probate.

If you value privacy and have property, a land trust might be right for you. It’s especially useful for those who own multiple properties or wish to keep their ownership details confidential.

A land trust could be the solution if you want to protect your privacy, shield your property from creditors, or ensure a smooth transfer to your beneficiaries. It offers flexibility and control, making it a valuable tool in estate planning.

Planning your estate involves making important decisions about your assets and beneficiaries. If you are leaving property to your loved ones, consider a land trust as a valuable tool to leverage. If you would like to learn more about different types of trusts, please visit our previous posts.

Reference: Investopedia (April11, 2024) “Land Trust: What It Is, How It Works, Types, and Examples”

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Sometimes, a Professional Trustee is a Good Idea

July 18, 2024

A couple in their 70s are trying to complete their estate plan but can’t determine who should be their trustee or executor. It’s a second marriage for both. They each have an adult child, but neither child can serve. There are no other living relatives, and all their friends are also in their 70s. Sometimes, a professional trustee is a good idea. A professional trustee or company can provide administrative services for the trust without the potential headache with family members.

The couple gets kudos for tackling this complex issue, according to the article “We’re in our 70s and don’t trust our family to handle our estate. What can we do?” from Market Watch. Most people give up at this point and then run into problems in the future, either because of incapacity or because the death of the first spouse leaves the surviving spouse in a difficult situation.

The first place to start is conversing with your estate planning attorney. They will likely know of a professional trustee or company providing “estate administration services.” It may be possible that they offer this service in their own office, too.

If this isn’t satisfactory, speak with a major financial institution, which will likely be insured and subject to state and federal regulations. They may handle your financial and personal information, such as distributing assets, closing down accounts, handling digital assets and filing income and estate tax returns.

Consider the window of time. You’ll want to be sure the person or bank will still be operating in ten to twenty years. You’ll also want to be sure they are a fiduciary. This means they are legally bound to put your interests above their own, which a court can enforce.

The fees will depend upon the size of your assets and the entity you choose. A large bank will usually charge a certain percentage of your assets. Some use a sliding scale, like 5% on the first $100,000 and a lower percentage as the asset level rises. A $1 million estate could cost around $30,000 to administer.

If a professional trustee is the same person who is administering your trusts, there will be additional fees. The assets in the trust will need to be managed, including investing, making distributions and paying taxes. Many professional trustees handle special needs trusts, where parents have left money for disabled adult children, and administer trusts for family members.

Sometimes, a professional trustee is a good idea, even when family members are available. Naming a professional, whether an institution or an individual, can alleviate concerns about family dynamics interfering with your wishes. If you would like to learn more about being an executor, or trustee, please visit our previous posts.

Reference: Market Watch (June 15, 2024) “We’re in our 70s and don’t trust our family to handle our estate. What can we do?”

Photo by Andrea Piacquadio

Should You Tell Beneficiaries Their Inheritance?

July 16, 2024

Should you tell beneficiaries their inheritance? It is a legitimate question for many families. If you’ve watched Netflix’s The Gentlemen or HBO’s Succession, you know how powerful the inheritance storyline can be. The mystery creates suspense, and the reveal invites drama. However, your estate plan shouldn’t take lessons from these plot lines, says an article from mondaq, “Communicating Your Estate Plan: A Helpful Tool, Not A Fix-All.”

Whether to reveal the details of your estate plan should be preceded by another question: will being upfront with heirs and beneficiaries before you die reduce the likelihood of family fights and litigation, or will it create the conflict you were hoping to avoid?

While it’s best to be able to share your wishes, whether or not to communicate anything about your estate plan is entirely up to you. No one should feel they must share this information. Your estate planning attorney is ethically required to keep your discussions and any details confidential, even after you have passed.

Any person can modify their estate plan at any time, as long as they are competent and living. You can make any changes you want, even if you’ve told your beneficiaries one thing and then decide to do another. This may have negative consequences. However, you are legally allowed to do it.

Communication can take any form and be vague or specific. You could disclose the existence of an estate plan and inform heirs that it was carefully created based on your wishes and the advice of an estate planning attorney and any other tax and wealth advisers.

Sometimes, knowing a plan has been made with professional help can allay concerns from heirs. You might communicate the general framework of the estate plan, letting heirs understand who has been named for roles like Power of Attorney, Health Care Power of Attorney, Successor Trustee and Executor. It may be helpful to explain why you’ve made these decisions to avoid the “Mom would have never wanted this” arguments.

Things don’t always go as planned, however. If explanations are not consistent among heirs, there will be conflict. Even if explanations are consistent, there will be conflict in some families, no matter how clear you are with everyone.

In some cases, having your estate planning attorney convey details of your choosing to family members might be helpful. Learning this information from someone outside the family can be less triggering, particularly when the family respects the attorney as a skilled professional.

Should you tell beneficiaries their inheritance? Unfortunately, there are some families where transparency won’t preclude conflict. In these situations, sharing any details may create battles you may not want to be a part of or subject you to attempts to influence your decisions. This is something that each person has to consider. A frank conversation with your estate planning attorney about handling these issues will help you decide if or how much information to share with your family. If you would like to learn more about inheritance planning, please visit our previous posts.

Reference: mondaq (June 18, 2024) “Communicating Your Estate Plan: A Helpful Tool, Not A Fix-All”

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Estate Planning with Annuities can be Complex

July 15, 2024

Estate planning can seem daunting. If you’re new to it, you have to learn about power of attorneys, trusts and much more. However, this effort can pay off many times over for you and your loved ones. Once you have a handle on the basics, you can start incorporating advanced strategies into your estate planning such as annuities. Nerdwallet makes the case that having good estate planning is important, and annuities are a vital tool to consider. Estate planning with annuities can be complex.

Annuities are insurance contracts that offer a series of payments over time. These contracts can pay out for a set period or the rest of your life. People often use them to manage retirement income.

Annuities have two phases. An accumulation phase is where you contribute money to the fund, and a withdrawal phase is where the contract pays out. Leaving your money in an annuity during the accumulation phase gives it room to grow tax deferred.

Annuities offer income security, tax advantages and legacy planning opportunities. Not only can you fund your retirement, but you can ensure a steady income stream for your beneficiaries. Annuities are a flexible tool to hedge against volatile markets and achieve financial security.

One of the primary reasons to include annuities in your estate plan is to provide for your heirs. According to Charles Schwab, there are three strategies you can consider during the accumulation phase:

Cash out your annuity if you’re at the end of its surrender period, though be aware of potential charges and taxes. This option provides immediate liquidity, which can be useful for other estate planning needs. However, you may suffer fees or tax penalties related to the early withdrawal.

Moving ownership to a non-grantor irrevocable trust will remove your annuity from your estate to benefit your heirs. This strategy can protect the annuity’s value from creditors and reduce estate taxes.

Make periodic withdrawals during the accumulation phase to take advantage of favorable tax treatment. Regular withdrawals can help you manage your income and tax liabilities more effectively and provide funds for other investments or expenses. This approach allows you to access the annuity’s value without triggering large tax penalties.

Once your annuity enters the payment phase, you have different options to support your estate planning goals:

Annual Gifts to Heirs: Make annual gifts using annuity distributions. This will reduce your taxable estate, benefit your loved ones and comply with annual gift restrictions.
Purchase Life Insurance: Use payouts to fund life insurance premiums. By setting up one of these policies, you can provide a tax-free inheritance for your beneficiaries.
Charitable Donations: Donate annuity payments to reduce taxable income and support charitable causes.
Reinvestment: Reinvest annuity payments into other financial instruments to continue growing your estate’s value.

Estate planning with annuities can be complex. However, you don’t have to navigate it alone.

Key Takeaways

Income Security: Annuities provide a steady income stream, ensuring financial stability during retirement and for your beneficiaries.
Tax Advantages: Annuities allow contributions to grow tax-deferred, and strategic payouts minimize taxable income.
Legacy Planning: Transferring annuities to a trust or using them to purchase life insurance protects your estate from taxes and ensures that your heirs benefit.
Flexibility: Options like annual gifts, charitable donations and trust transfers offer diverse ways to include annuities in your estate plan.

Reference: Nerdwallet (Dec. 21, 2022) “Annuities: What They Are and How They Work – NerdWallet” and Charles Schwab (Nov. 17, 2023) “5 Ways to Use Annuities in Your Estate Plan”

If you would like to learn more about annuity planning, please visit our previous posts.

Image by Nattanan Kanchanaprat

The Estate of The Union Season 3|Episode 7 is out now!

July 11, 2024

The Estate of The Union Season 3|Episode 7 is out now! The current immigration debates are nothing new, and are politically charged by both parties. Casa Marianella is an answer – not a complete one, but an amazing one. One that works!

We are fortunate to have Jennifer Long, the Founder of Casa Marianella as a guest. Casa Marianella welcomes displaced immigrants and promotes self-sufficiency by providing shelter and support services. Casa, as it is called, is the most successful and delightful haven for those coming here for a new life.

It’s not a shelter in the classic sense, it seems more like a loving way-station to move people from other places on to success. Plus, Jennifer has a manner of explaining all this is a tone and form that make it easy to “get”. To learn more about the valuable work of Casa Marianella, please visit their website: www.casamarianella.org

If you are interested in volunteering with Casa Marianella, please email volunteer@casamarianella.org.

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 7 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.

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.

Planning for Retirement with a Special Needs Child

July 8, 2024

Retirement is a time to relax and enjoy life after years of hard work. However, parents of children with special needs will need to handle this transition with care. Planning for retirement with a special needs child is critical to your child’s long-term care and your own financial future.

Beginning your retirement planning early is crucial. Likewise, this process should be an extension of your existing financial planning. Starting early allows you to anticipate state and federal benefits changes and adjust your strategies accordingly.

For instance, Medicaid waivers and other support systems can be unpredictable. Just because these benefits systems can supplement your needs today doesn’t mean they’ll be able to do so tomorrow. Flexible, far-sighted financial preparation can help you absorb changes in benefits programs.

Open communication between both parents is vital. It’s common for parents to prioritize their child’s needs over their own retirement savings. However, finding a balance is key. Both parents should be on the same page regarding their goals for retirement and their child’s future. Involving a financial planner and a special needs attorney can help align these goals and create a comprehensive plan.

Two professionals with Special Needs Alliance weighed in on planning for retirement with a special needs child. One, Jeff Yussman, emphasizes the importance of honest discussions about assets, liabilities, and the desired retirement lifestyle.

Another advisor, Emily Kile, highlights the need to leave an advocate for their child in advance. It may be smart to move a child with special needs to a future housing option while parents are still alive. This can reduce the pain and uncertainty of making such moves when the parents pass away.

The first step is reviewing the titles on your accounts, beneficiary designations and estate plans. Ensuring that the chosen trustees and agents align with the goals for your child with special needs is critical. You should consider the financial security available through life insurance policies, such as second-to-die life insurance.

Parents must also plan for the long-term care of their child with special needs. This includes preparing for the potential loss of private health insurance and understanding the longevity of their financial plans. It is important to have regular estate planning meetings that account for these factors.

While well-intentioned family members might offer to care for your child, their circumstances can change. Marriages, divorces, and other life events can impact their ability to provide consistent care. Plan for these variables to ensure your child’s stability.

Planning for retirement with a special needs child can be challenging. However, you don’t have to do it alone. If you would like to learn more about special needs planning, please visit our previous posts.

Reference: Special Needs Alliance (Oct. 7, 2022) “retirement planning steps you need to take”

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Avoiding Tax Issues When Gifting to Grandchildren

July 2, 2024

Gifting to grandchildren is a wonderful way to share your wealth with young loved ones. Getting some help at the right time can help ensure that they enjoy a bright future. However, taxes may drastically reduce the inheritance they receive. That’s why avoiding tax issues is vital when gifting to grandchildren, so you are making the most of your legacy.

Gifting to grandchildren can be transformative for them and their future. These gifts can make a difference, whether for education, starting a business, or simple financial stability. However, making the greatest difference will require a keen understanding of estate taxes.

Before a deceased person’s estate transfers to their inheritors, the government levies estate taxes. However, many ways exist to reduce or even avoid estate taxes altogether. Estate tax law is largely progressive and provides many allowances and deductions. In particular, accounts are available to fund your beneficiaries’ educations tax-free.

According to ElderLawAnswers, 529 accounts are ideal for helping your inheritors afford education. These special savings accounts are designed for college education expenses, K-12 tuition, apprenticeship programs and student loan repayments, and they offer significant tax advantages. The money you put into a 529 account grows tax-free, and withdrawals for qualified education expenses are also tax-free.

However, the disadvantage of a 529 account is that it only covers education-related expenses. General-purpose gifting has significant limits if you want to avoid a large tax burden.

The IRS places annual limits on gifting to grandchildren, the annual gift tax exclusion. As of 2024, you can give up to $18,000 per year to each grandchild without incurring any gift taxes. If you stay within these limits, you won’t have to pay gift taxes or worry about reducing your lifetime gift and estate tax exemption.

Another strategy to reduce or avoid estate taxes is setting up a trust. You can structure trusts to manage your assets to meet specific goals. By implementing a trust, you can decide how and when your grandchildren receive their inheritance. This is particularly useful if they are young or not yet financially responsible.

There are various types of trusts to consider, such as:

Revocable Trusts: These allow you to maintain control over the assets and make changes as needed.
Irrevocable Trusts: These remove the assets from your estate, potentially reducing estate taxes. However, you cannot change the terms once it’s set up.
Education Trusts: Specifically designed to fund education expenses, similar to 529 accounts but with more flexibility.

Avoiding tax issues when gifting to your grandchildren will ease your tax burden and maximize your contributions to their future. If you would like to learn more about gifting, please visit our previous posts.

Reference: ElderLawAnswers (Jul. 12, 2018) “Using 529 Plans for a Grandchild’s Higher Education”

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Inheriting Foreign Assets is Complex

July 1, 2024

An inheritance is almost always a mixture of happiness and sadness. You’re grieving the loss of a loved one at the same time you’ve received a financial bequest. Inheriting foreign assets from someone who lives outside of the country or from a non-U.S. citizen makes matters complex, says this recent article, “U.S. Tax: 4 Tips For Americans Receiving A Foreign Inheritance,” from Forbes.

There are certain IRS reporting requirements to be aware of, in addition to knowing what taxes you’ll be responsible for. Here are four top issues.

If the deceased person was a former American citizen and met specific requirements as a “covered expatriate” or “CE,” anyone receiving an inheritance must pay the IRS 40% of the inheritance. An estate planning attorney with experience in CE inheritances can help avoid or minimize this admittedly high level of taxes.

Even if the inheritance is not taxable, it must be reported to the IRS by the American recipient. If it is found to have been unreported, a 25% penalty will be levied. Your estate planning attorney will know how to report the inheritance using IRS Form 3520.

Depending on the type of asset inherited, there may be other reporting obligations. The Foreign Account Tax Compliance Act (FATCA) requires IRS Form 8938 to be filed if the total value of foreign financial assets is more than a specific threshold. The annual thresholds are lower for citizens who live in the U.S. than for Americans living abroad.

The U.S. tax basis must be accurately valued and documented when inheriting a foreign asset. The basis of a foreign asset from a CE will be “stepped up” to its fair market value as of the decedent’s death date. However, there are many nuances to this, and in some situations, there is no step-up.

Inheriting foreign assets is complex and requires the guidance of an experienced estate planning attorney to avoid significant taxes and penalties. If you know you’ll be inheriting assets from a CE, speak with an estate planning attorney to figure out what to do before and after the inheritance. If you would like to learn more about inheriting assets, please visit our previous posts.

Reference: Forbes (June 3, 2024) “U.S. Tax: 4 Tips For Americans Receiving A Foreign Inheritance”

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Creating a Trust to Avoid Probate Nightmares

June 25, 2024

Good estate planning ensures that your loved ones receive what you leave them without unnecessary delay or expense. However, that can go out the window when the procedure freezes your estate for months or years. Creating a trust to avoid probate nightmares can go a long way to help your loved ones once you pass.

Waiting months for probate can worsen the grief of losing a loved one. Look no further than the story of Penelope Ormerod, as told by The Guardian.

When Penelope Ormerod applied for probate on her late aunt’s estate, she expected a smooth process. Instead, she waited for seven months due to severe delays in the probate system. Recent reforms and centralization efforts had made the system more unresponsive and left her waiting. Beneficiaries, like her daughter Jessica, had dreams of funding their education on hold. This is one example of the turmoil that can ensue when your estate doesn’t avoid probate.

Trusts are powerful tools in estate planning that can prevent your family from going through similar probate ordeals. Setting up a trust means transferring your assets smoothly and quickly to your loved ones. While the traditional will process often requires probate, a trust operates outside this framework. In many cases, this saves time and reduces stress for your inheritors.

Trusts offer flexible, tailored methods for asset distribution. You can use a trust to give assets under various conditions or for specific purposes. You can establish trusts to provide your beneficiaries with lump sums or structured payouts. This ensures that beneficiaries like the Ormerod’s can avoid probate instead of waiting to receive their inheritance. Preventing delays in accessing an estate’s assets is particularly important for young families supporting minor children or ensuring that a family does not have to change their living arrangements due to court scrutiny of home ownership.

By avoiding probate, trusts can save your family stress, time and money. Probate fees and legal costs add up; setting up a trust can be a cost-effective way to pass on your assets. Trusts can also reduce tax liabilities and get more of your money to your loved ones.

Consider creating a trust so your family can receive their inheritance when you want them to, and avoid the nightmares of a probate. If you want to get started, contact an estate planning attorney. They’ll guide you through the options and help you ensure that your loved ones get what you leave them.

Key Takeaways:

Avoid Probate Delays: Trusts can bypass the lengthy and stressful probate process. As a result, your beneficiaries will receive assets sooner and without undue stress.

Flexible Distribution Options: Trusts provide various ways to distribute assets. Choose from lump sums, structured payouts and other options that best serve your loved ones.

Cost and Time Efficiency: Trustees can save on legal fees and court costs by avoiding probate through a trust. Trusts may also reduce tax liability for your beneficiaries.

Secure Your Legacy: Setting up a trust with the help of an estate planning attorney helps safeguard your wishes when you’re gone.

If you would like to learn more about probate, and how to avoid it, please visit our previous posts.

References: The Guardian (May 2, 2021) “Grieving relatives despair at months of waiting for probate”

SmartAsset (August 25, 2023) “How Does a Beneficiary Get Money From a Trust?”

Photo by RDNE Stock project

Blog Articles

Naming Guardians for Minor Children Is Critical for Parents

If you are Leaving Property Behind, Consider a Land Trust

Sometimes, a Professional Trustee is a Good Idea

Should You Tell Beneficiaries Their Inheritance?

Estate Planning with Annuities can be Complex

The Estate of The Union Season 3|Episode 7 is out now!

Avoiding Tax Issues When Gifting to Grandchildren

Inheriting Foreign Assets is Complex

Creating a Trust to Avoid Probate Nightmares

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