Attorney, Daniel H. Alexander has over 20 years of experience in Estate Planning, Probate and Business Planning.
Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.
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Tip #4: If your account(s) are in your trust, amend your trust and add a co-trustee with you while you are alive instead of adding someone to your account(s).
Many people will add a child to their bank account so they have easy access to it to help, but the problem is that 1) the child’s creditors can come after the account because they are on it as an owner and 2) many times after death there is confusion as to who should receive that account. Was it a gift to that specific child, or did you mean for it to go to all beneficiaries?
Adding a co-trustee while you are alive can avoid these problems. Once that is done then you update your accounts with both trustees on the account. The co-Trustee then has access to the account(s) so they can assist you easily, it remains part of the trust, so it is not subject to the child's / co-Trustee's creditors, and it is subject to distribution as stated in the trust. Also, the co-Trustee is already on the account(s) at your death, so they have immediate access.
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As an essential service provider in our community, we are OPEN and actively helping clients. We are meeting with clients in person and taking necessary precautions to keep everyone safe. However, due to the COVID-19 warnings and restrictions, if you feel uncomfortable coming into the office, we can consultations by phone or via Zoom chat. Please give us a call at 530-891-8000 or toll free at (800) 530-4529 as we are here to help.
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Tip 3: Regarding Powers of Attorney - If you trust your agent under your Power of Attorney, then make their power EFFECTIVE IMMEDIATELY. (side note - if you don't trust them then don't have them as your agent)
When it comes to being able to use a Power of Attorney there are basically 2 types: 1) effective immediately or 2) a springing power that springs into effect at a certain time, such as incapacity.
Believe it or not, many Powers of Attorney are drafted having a "springing" power. This means that they spring into effect when a person becomes incapacitated. Usually, the problem here is that incapacity has to be proven by one, or many times, by two physicians before the agent's authority becomes effective. This can sometime be difficult to get.
Also, many time you may want your agent to go do something for you even though you have capacity. Perhaps you can't leave the house, or it is just something you don't want to deal with at that time. With a springing power they could not go and do it.
Therefore, in my opinion, your Power of Attorney for Finances, and your Advanced Health Care Directive, should state that the powers of the agent are EFFECTIVE IMMEDIATELY (it will actually say that - effective immediately).
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Tip #2 - Fund Your Trust! What does this mean in non-legal ease - put your stuff into the name of your trust.
When I meet with a client initially, I discuss this, when we sign the trust, we discuss this, and I provide all the documentation to actually do it. I send letters and emails telling them to fund the trust. I make phone calls telling them to fund their trust and, in my advertising, I tell everyone to fund their trust.
What happens? Clients go on with life and don't fully fund their trust!! Why, because they acquire other property and forget about the trust, or they refinance and their property comes out of the trust without them really knowing, or life happens, and they just don't take the time to get it properly titled.
Basically, here it is in short, if you have people as beneficiaries of your trust (children, grandchildren, friends, etc.) (and not entities such as a charity), then everything should either be titled in your trust, or the trust should be the beneficiary or pay on death beneficiary. Once that is done then just be sure that your trustees and trust beneficiaries are correct. If you want your oldest son to have your Fidelity account, then state that in the trust.
Conversely, if you name your oldest son as the beneficiary of the Fidelity account on a beneficiary designation form with Fidelity (and not in your trust), the gift could be opened up to problems such as: 1) what if he is deceased, did you name a correct contingent beneficiary; 2) you lose control over the distribution in situations of disability, divorce, bankruptcy, etc., 3) and I could go on.
Again, and I'm talking to you, FUND YOUR TRUST!
People, and this means you, GET YOUR ASSETS PROPERLY TIED TO YOUR TRUST. There are some exceptions (retirement assets) but most assets should be tied to your trust. Your house should be deeded to your trust. Your banks and investment accounts should actually be held in the name of the trust in the financial institution’s records.
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Tip #1: Living Trusts are the Way to Go. There are many article stating wills, joint tenancy and beneficiary designations are good enough. I disagree. In this post I am not going into the details of the pitfalls with wills, joint tenancy and beneficiary designations. The point is a Revocable Living Trust, if done correctly, is the way to go in almost situations where clients have assets.
Here is why: 1) Trusts avoid probate if funded properly, saving time and money; 2) Trusts help take care of you upon incapacity (successor trustee steps in or co-trustee is already acting) and take care of your estate at your death, 3) Trusts can help manage assets for beneficiaries, such as minors, or for those who just cant handle money, and for the unknown and unpredictable situation your beneficiaries may find themselves in such as divorce, bankruptcy, disability, incapacity, etc.; 4) if the trust has a Trust Protector provision, a 3rd party Trust Protector can make necessary changes to be sure the purpose of the trust is met and help protect the trust, and; 5) Estate Tax planning can be done without the need of a Court.
Basically, I really like all the tools available in a properly drafted trust!
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Relying on the government's estate plan. If you do nothing to set up an estate plan, your property will be distributed according to the laws of the state where you live. The laws may require the judge to give your property to someone other than the person you would have chosen.
Relying on a Will. If you have only a Will, your heirs will face serious and costly problems, one of which is probate. True, a will is the most common estate planning tool, but it is not a good tool for you to use.
Relying on joint tenancy. Almost everybody owns their home and bank accounts in joint tenancy. Yet joint tenancy often causes families horrible legal nightmares. You have many options better than owning property in joint tenancy, and they come with substantially less risk.
Relying on conservatorships and guardianships. These court-supervised methods of dealing with a person's incapacity are costly, time-consuming and horribly burdensome. By setting up a living trust, you avoid the need for conservatorships and guardianships.
Assuming you can avoid probate because your estate is small. Most people assume their estates are worth far less than they actually are. The small estate exemption that avoids probate is permitted only for estates with a value of less than $166,250 in personal property. However, Real Estate of any value must go through some type of Probate process if part of an Estate (not in a trust, not in joint tenancy, no transfer on death)
Relying on a form kit for your living trust. No two personal situations are the same. That's why no two living trusts should be written the same way. The only estate plan you can depend on is one that is custom prepared by a qualified attorney.
Relying on the wrong attorney. Most attorneys know very little about estate planning. And some estate planning attorneys earn a substantial part of their income from probating estates. Make sure you hire an estate planning attorney who wants to help to avoid probate.
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An entrepreneur hopes to pass on the family business to his child. It's a simple goal, but the process requires careful planning.
Can an S-corporation be placed into a revocable living trust without losing its S-Corp status? Is this a good way to pass our company on to our children?
Yes, S-Corp. stock can be placed into a revocable living trust. In fact, such trusts are a standard estate-planning technique commonly used in states with high probate costs. Experts say that the revocable trust is useful because assets can be put in and taken out as the trust holder wishes and at his or her death, the fees, expenses, and potential complications of probate court are not incurred.
After the owner's death, the trust is permitted to own S-Corp stock for up to two years, during which time the trustee may be responsible for collecting assets, paying funeral bills, settling debts, and filing income- and estate-tax returns. After such administrative business is completed, the trustee is free to transfer the stock to your heirs.
If you choose a revocable trust as a vehicle for family business succession, keep a few things in mind:
You may want to make your child or children the trustee after you so that they can vote the stock of the corporation immediately and keep the company operating without a hitch. These tasks can be complex if the value of your business and other trust assets is large. Having your child take charge may make administration of the trust, and the business, that much easier.
Additionally put together a plan for transferring the company gradually over your lifetime. Generally speaking, transfers during your lifetime are the best way to leave a business to a child. If you hold all the stock until your death, it will be at full value when your child inherits it, and the estate taxes will be high. If you've been retired for a number of years, and your child has been running the company, they will wind up paying estate tax on all the value they created.
An estate planner will help you plan to make gifts of stock during your lifetime and invest in life insurance that will help cover the estate tax bill. Essentially, gift taxes are cheaper than estate taxes, so most of my clients give away pieces of their company gradually, and by the time they die, they've given all or most of it away so the inheritors will not have to pay estate tax at all.
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Do you buckle your seat belt when you get in your vehicle? It's simple, doesn't take much time, and you know you'll be protected in the event of an accident.
Do you figure that since things are fine now, you'll wait to buckle your seat belt until you feel the car start spinning out of control? Unless you have the reflexes of Superman, you probably won't have enough time.
Or do you just never buckle your seat belt and figure that your family and professionals can handle things in the event of an accident, because you are just too busy to do it now.
What does this have to do with estate planning? Well, other than the fact that you hopefully have your plan in place in the event of an accident; it seems that may people fall into one of these categories when it comes to planning for the future.
There are those who want to be prepared, and who get their plan done in a few visits. They don't have to worry about what will happen to them or their loved ones in the event of a crisis. They have had time to carefully think through their decisions, and make sure everything is just how they want it. They are calm when they discuss Estate Planning, and relieved when the plan is finalized. They have their seatbelts securely fastened and can enjoy the ride.
Then there are those who put off planning until it is almost too late. They are leaving the country in this weekend and only have time to do the bare minimum and not the comprehensive and complete plan they wanted to do. Or their mental capacity is slipping and the time they have to plan, before someone else needs to handle their affairs, is very limited. What they have is better than nothing, but it will leave some complications for their loved ones to deal with in the event of their death or incapacity (ie they do not have a trust or powers of attorney). The expenses are higher; the risk of running out of time is greater. They are stressed out when they come to plan, but mostly relieved when they are done.
Then there are those who make no plan. These are the saddest cases. There has been a crisis in the family and instead of being able to concentrate on their parents or other loved ones, the children are visiting the attorney to try to sort out the legal mess. They are trying to figure out what their parents have so that they can pay for their care or apply for Medicaid or MediCal for them.
Maybe they are having to go to Court to get a conservatorship over their parents so that they can sell the house or handle the finances. Maybe there are siblings who don't get along and can't agree over who should do what, and its back to Court to let the judge decide. Things that could have been decided when the parents were competent, are now being fought over. Adult children who have their own lives and families to think about are having to jump through many hoops to accomplish what would have been completed with a simple task had their parents or relative taken the time to plan for their estate and for themselves.
We buy car insurance, but no health life insurance. We tuck our kids in at night and lock the doors, but they do not plan for their demise. These clients are sad, stressed, worried, angry and scared when they come to see me. As we work through the issues burden starts to lift, but the feeling of relief comes at a higher price and possibly with less satisfaction and relief as if there had been a plan put in place when there was time. All I can say is make the time.
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You've spent a lifetime building your business. Take a moment to make sure that your hard work will survive the death of you or one of your partners.
As the owner of a closely held business, much of your wealth is probably tied up in the business. While returning earned income back into the business helps finance growth, it can cause severe liquidity problems for your estate when you die. After paying probate and estate taxes, your estate and surviving family members also may encounter liabilities that become payable upon your death. They may also face the potential of decreased business earnings, due to your absence.
There are ways to overcome these liquidity problems. Business-oriented planning tools can help reduce estate taxes and make the best use of the cash available. The most common business estate-planning tools are living trusts, buy-sell agreements, Section 303 stock redemptions, Section 6166 estate tax deferrals and the qualified family-owned business exclusion. Business-owned life insurance can be used to fund each of these planning methods.
Probate fees and Federal Estate Taxes alone can cause a business to go under after the death of the partner or parent who owned it. As stated above, much of your wealth is probably tied up in the business. For probate matters, the entire value of the estate is considered and then taxes, fees and costs are determined accordingly. So, if you only have a will and your personal and business assets are worth, say $2,000,000.00, then without a trust, the probate fees would be approximately $100,000.00 – ouch.
However, with an A-B family trust for a husband and wife in the above situation, the probate fees and the Federal Estate Tax would have been $0.00. That is right, nada
Buy-sell agreements can establish the value of your business for estate-tax purposes and improve your estate's liquidity by assuring a ready market for your business upon your death. These agreements also protect business partners from sharing ownership with a deceased stockholder's family.
There are two main forms of buy-sell agreements: cross-purchase and stock redemption. In an insurance-funded cross-purchase arrangement, each business owner buys an insurance policy on the other, naming themselves as beneficiary. At the death of one of the owners, the surviving owner receives tax-free insurance proceeds to use in purchasing the deceased owner's stock from his or her estate.
In an insurance-funded stock-redemption arrangement, the corporation purchases the stock of a deceased shareholder. Here the business is the owner and beneficiary of life insurance policies on each shareholder. A partnership looking for a business continuation plan may use a similar arrangement called an entity purchase.
Section 303 redemptions
Section 303 of the Internal Revenue Code gives your estate a one-time opportunity to remove cash or other property from your business, at little or no tax cost, through a partial redemption of your stock. This can provide the liquidity your survivors need to pay funeral costs, estate and administrative expenses, and state and federal death taxes.
To be eligible for a Section 303 redemption, the stock value must exceed 35 percent of your estate. The maximum amount that can be paid under such a plan equals the total amount of the federal estate tax, state death taxes, funeral and administrative expenses. Corporate-owned life insurance can be used to fund the redemption. Under this arrangement, your business purchases an insurance policy on your life and at your death uses the tax-free proceeds to buy enough stock from your estate to cover death expenses and taxes.
An estate tax burden can force the liquidation of a closely held business. Internal Revenue Code Section 6166 was designed to prevent this liquidation. If the business interest constitutes more than 35 percent of your adjusted gross estate, under Section 6166 the executor may elect to pay the estate tax attributable to the value of the business in 10 annual installments, beginning no later than five years after the date of your death.
There are a number of requirements you'd have to meet to be eligible for the Section 6166 extension. If your estate qualifies, life insurance offers an economical way to pay these installments.
Qualified family-owned business exclusion
If your business qualifies as "family owned," you may be able to exclude part of it from estate taxation. Your business qualifies as family owned if the business comprises more than 50 percent of your total estate and you pass the estate on to a "qualified heir." A qualified heir is generally defined as a spouse, child, grandchild or other descendent. Your heirs, however, should realize that they have to hang onto the business for at least 10 years following such an estate transfer. If they don't, they may have to pay the full estate taxes that were avoided. Life insurance can provide your heirs with the cash necessary to pay estate taxes whether or not you qualify for this exclusion.
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I'm always asked, and always curious, about celebrity Estate Planning. Can they really screw-up their Estate Plan's as much as their lives.
As I discuss in other articles, Revocable Living Trusts are the preferred Estate Planning vehicle for me and my clients. They are usually private and generally can be easily managed. One way I thought we all could all learn about good and bad Estate Planning is to take a look at Estate Planning, or lack there of, by celebrities. This post is about Farrah Fawcett who recently passed.
Farrah Fawcett had a living trust that should have been kept private, but "someone" leaked it to the press and so now we get a chance to look in to her life. It has been posted online courtsey of radaronline.com at the following link:www.radaronline.com/sites/default/files/FarrahFawcettWillREVISED.pdf.
I was surprised to find out that long time boyfriend Ryan O’Neal was left out of the trust, yet Fawcett’s ex-boyfriend, Gregory Lawrence Lott, received $100,000. It appear that the majority of her personal property went to her nephew, along with an additional $500,000 and her father received $500,000 in a special trust for his life time to be used for his welfare.
Her only son, Redmond, received $4.5 million, which is to be held in trust for his life, with the interest on the trust to be distributed to him at least 4 times a year (or more often) and the principal to be used only for his "health". Just for health? Well Farrah must have thought he will need a lot of rehab. Keep in mind the interest alone on $4.5 million, say at 8% a year, is $360,000 or $30,000 a month. The problem here is that Farrah's trustee is required to distribute the interest to Redmond, so he can do whatever he wants with it, which may be against his best interest, especially when you look at his track record. If Farrah were my client I would have suggested more control over the interest and perhaps a broader ability to use the principal for Redmond, say for his health, education and welfare.
Farrah's artwork was left to the University of Texas and her charitable foundation (The Farrah Fawcett Foundation) is basically received the remainder of her estate, including the amount of principal left after the death of her father and her son Redmond. Her estate was apparently worth an estimated $50 million and is to be managed by her trustee, who was her business manager and producer, Richard Francis.