Attorney Davis recently appeared on The Attorneys to talk about the importance of estate planning. Check out the video below
The public defenders for the Parkland, Florida shooter suspect, Nikolas Cruz, have asked to withdraw from his defense as their client stands to inherit over $400,000 from his mother’s life insurance policy. Lynda Cruz, the mother of the Parkland shooter, passed away from pneumonia in November 2017, just a few months before the shooting. Based on Florida state law, public defenders are not allowed to work for defendants that can afford their own attorney.
The public defenders disclosed the possibility that Cruz would receive an insurance payout last year, but said at the time that it would likely amount to about $30,000. In the new filing, the defendants said neither they nor Cruz were aware the actual amount would be higher.
Because some of the victim’s families have sued Cruz in civil court, a judge could rule that he would not receive the insurance policy pay out and instead have it awarded to them.
Check out the article by Thomas Barrabi, Parkland, Florida Shooter Could Inherit $432,000; Public Defenders Ask to Withdraw.
According to Sophie, the daughter of the late Beverly Hills 90210 actor Luke Perry, her father was buried in an eco-friendly “mushroom suit.” She says that being buried in the suit rather than a traditional casket was one of the star’s last wishes.
As Sophie explains, when Perry discovered the suits, he “was more excited by this than I have ever seen him.” The burial suits are made by Coeio, a “green burial company,” according to its website. The eco-friendly suits, which cost $1,500, help to “return your body to the earth without harming the environment,” the company claims. According to People magazine, the suits have “built-in mushrooms and other microorganisms” that help to speed up the body’s decomposition process.
Check out the article by Madeline Farber, Luke Perry was Buried in Eco-Friendly ‘Mushroom Burial Suit,’ Late Actor’s Daughter Says, Fox News, May 4, 2019.
Last month I had the pleasure of attending the 36th Annual Magic City Art Connection in Linn Park and it was nothing short of amazing. Even though the park was covered with dancing, paintings, music, and sculptures from artists from all over the country, I especially appreciated the work from painters and sculptures here in the local Birmingham area. It wasn’t until a few years ago that I realized how many talented artists were right here in our backyard.
All of this excitement over art brings up an interesting situation to consider: how do you incorporate your art collection into your estate plan? Sure, you likely don’t have an authentic Picasso or Michelangelo, but you may have art that’s been passed down through your family; or maybe you want to start an art collection. Whether you collect paintings, audio recordings, or photography, your plan should include instructions on how to dispose of your most sentimental possessions. Below are a few estate planning considerations for art collectors.
Value of My Art?
When it comes to your estate plan, a primary consideration must be the monetary value of your art. This isn’t always the first thing collectors think about because their passion lies in the art itself, not the monetary value of the art. After all, we collect art because of an appreciation for a certain subject or medium, not the money. However, art collectors (especially high net worth collectors) must remember that their art will be among the many things considered when their estate is valued, which may have various tax consequences.
One way to get started on valuing your assets is to contact an art appraiser. Also, gather bills of sale for your art. This will be useful when the art changes hands in the future. This will also be helpful in determining the whether your art will appreciate or depreciate over time.
Disposing of Art in Estate Plan
Another consideration for art collectors is deciding how to dispose of their art in their estate plan. There are three main ways to dispose of art in your estate plan:
Selling Your Art and Distributing Proceeds to Beneficiaries – This is a very common choice for art collectors. One of the benefits of selling art is that the art will be included in the value of your estate, which may lessen or eliminate capital gains taxes that you would otherwise face if you sold the art during your lifetime.
Donating Your Art to a Charitable Organization – Donating your art to a charitable organization or a museum is an excellent way to dispose of your art. It can also be one of the more simple options. Donating your art through your estate plan will create a tax deduction based on the value of your art. Give while you’re living and you can take an income tax deduction, also based on the value of the piece or collection at the time of the donation. Depending on when and how you decide to donate your art, donors are often able to work out other details with the donees, including where the art may be placed in the museum.
Devising Your Art to Your Loved Ones – Another common option is to keep the art within the family by gifting it to your heirs in your estate plan. You could gift it directly to your beneficiaries in your plan, but a more secure way of transferring your art to your beneficiaries and controlling how they are handled is to transfer the collection to a trust you create while living. This trust can also be useful for tax purposes.
Speak With Your Family
Though estate planning may not be a very fun conversation to have with your family, it is very important to have, especially if you have an art collection. It is highly possible that your family may not feel the same way about your art as you do, which may have an impact on deciding who to give your art to and how to dispose of it at your death. Incorporating your art into your estate plan may be almost as complex as the art itself. If you have questions about how to incorporate your art in your plan, don’t hesitate to contact us today.
Thanksgiving is one of America’s most beloved holidays–the cranberry sauce, the turkey, the pies, the rare reunion with family members you love and miss. One of the things that makes Thanksgiving so enjoyable is the planning. Thanksgiving gatherings generally don’t come together on their own. It takes family members deciding in advance who will roast the turkey, who will prepare the desserts, who will bring the beverages, etc.
Thanksgiving is just one example of how important it is to plan ahead in order to ensure success. Estate planning is no different. Planning your estate is important to make sure your assets are handled the way you would want them to be handled in any situation.
Coincidentally, Thanksgiving dinner provides a perfect opportunity for families to discuss their estate planning goals while everyone is together under the same roof. Many adults unfortunately delay having a conversation about estate planning with their families for many reasons. However, there are many benefits of having a conversation on estate planning with your family during holidays such as Thanksgiving.
Having the conversation provides an opportunity to form an understanding between you and your family on your goals and wishes for your assets and affairs. It also helps to reduce any confusion that there may be between you and your family, which may reduce the chances of disputes forming later down the road. Decisions don’t necessarily have to be made in the meeting. Sometimes it enough to simply achieve an understanding between you and your family on certain matters.
Many business owners and wealthy families, for example, use major holidays such as Thanksgiving to discuss business and philanthropy. If there’s a family business, family members may want to use that meeting to update the rest of the family on business performance or the succession plan for that business.
Having a conversation on estate planning during the Thanksgiving holiday is a great start to ensure a successful estate plan. That conversation should, however, transition to the office of a trusted adviser who can answer any questions or concerns you may have about your estate, as well as assist you with preparing a secure estate plan.
What to Do With an Inherited IRA
Inheriting an IRA may seem like a good thing, but there can be tax consequences if you aren’t careful. If you inherit an IRA, you should check with an attorney or financial advisor as soon as possible to find out your options.
IRAs are personal savings plans that allow you to set aside money for retirement and get a tax deduction for doing so. Earnings in a traditional IRA generally are not taxed until distributed to you. At age 70 1/2 you have to start taking distributions from a traditional IRA. Earnings in a Roth IRA are not taxed, nor do you have to start taking distributions at any point, but contributions to a Roth IRA are not tax deductible. Any amount remaining in an IRA upon death can be paid to a beneficiary or beneficiaries.
Spouse as beneficiary
If you inherit your spouse’s IRA, you can treat the IRA as your own. You can either put the IRA in your name or roll it over into a new IRA. The Internal Revenue Service will treat the IRA as if you have always owned it. If you are not yet 70 ½ years old, you can wait until you reach that age to begin taking minimum withdrawals. If you are over 70 ½ and were 10 or more years younger than your spouse, you can use a longer joint-life expectancy table to calculate withdrawals, which means lower minimum withdrawal amounts. If you inherit a Roth IRA, you do not need to take any distributions.
You can leave the account in your spouse’s name, but in that case you will need to begin taking withdrawals when your spouse would have turned 70 ½ or, if your spouse was already 70 ½, then a year after his or her death. If you want to drain the account, you can use the “five-year rule.” This allows you to do whatever you want with the account, but you must completely empty the account (and pay the taxes) by the end of the fifth year after your spouse’s death.
Non-spouse as beneficiary
The rules for a child or grandchild (or other non-spouse) who inherits an IRA are somewhat different than those for a spouse. You can choose to take distributions over your lifetime and to pass what is left onto future generations (called the “stretch” option). The required minimum distributions will be calculated based on your life expectancy. This allows the money to grow tax-deferred over the course of your life and to be passed on to your beneficiaries, if you wish. If you want to do this, you must retitle the IRA into an inherited IRA and take your first distribution by December 31 of the calendar year following the year the decedent died.
If you choose not to stretch the IRA, you will have to withdraw it all within five years of the original IRA owner’s death. This can lead to a large tax bill–unless the IRA is a Roth, in which case the distributions are tax-free.
Trust as beneficiary
If the IRA names a trust as the beneficiary, the trust may not be able to take advantage of the opportunity to stretch withdrawals across decades. Stretching an IRA may still be an option, however, if the trust is considered a “see-through” or conduit trust. If you have inherited an IRA in a trust, contact your attorney to find out your options.
If the decedent’s estate was subject to an estate tax, the IRA beneficiary may be able to get an income tax deduction for the estate taxes paid on the IRA.
For information on how to include an IRA in your estate plan, click here.
Be Careful About Putting Only One Spouse’s Name on a Reverse Mortgage
A recent case involving basketball star Caldwell Jones demonstrates the danger in having only one spouse’s name on a reverse mortgage. A federal appeals court has ruled that an insurance company may foreclose on a reverse mortgage after the death of the borrower, Mr. Jones, even though Mr. Jones’ widow is still living in the house. While there are protections in place for non-borrowing spouses, many spouses are still facing foreclosure and eviction.
A reverse mortgage allows homeowners to use the equity in their home to take out a loan, but borrowers must be 62 years or older to qualify for this type of mortgage. If one spouse is under age 62, the younger spouse has to be left off the loan in order for the couple to qualify for a reverse mortgage. Some lenders have actually encouraged couples to put only the older spouse on the mortgage because the couple could borrow more money that way. But couples often did this without realizing the potentially catastrophic implications. If only one spouse’s name was on the mortgage and that spouse died, the surviving spouse would be required to either repay the loan in full or face eviction.
In order to protect non-borrowing spouses, the federal government revised its guidelines for reverse mortgages taken out after August 4, 2014 to allow spouses to stay in the house as long as they meet certain criteria, including proving ownership within 90 days of the borrowers death. In 2015, the federal government allowed lenders to defer foreclosure on a widow or widower and assign the mortgage to the federal government. Advocacy groups looking at reverse mortgage foreclosures have found that despite these new regulations, lenders are still foreclosing on non-borrowing spouses. Of the 591 non-borrowing spouses who have sought help to avoid foreclosure, only 317 received assistance.
These regulations did not help Mr. Jones’ wife, Vanessa. Mr. Jones, who blocked more than 2,200 shots during his 17-year professional basketball career, obtained a reverse mortgage in 2014 on the Georgia home he lived in with his wife. The contract defined the “borrower” to be “Caldwell Jones, Jr., a married man.” Ms. Jones did not put her name on the reverse mortgage because she was under age 62 at the time of the mortgage. Mr. Jones died later that year, and when Ms. Jones did not repay the loan, the insurer began foreclosure proceedings.
Ms. Jones sued the insurer in federal court to prevent the foreclosure, arguing that federal law prohibited the insurer from foreclosing on the house while she lived in it. Under a provision in federal law, the federal government “may not insure” a reverse mortgage unless the “homeowner” does not have to repay the loan until the homeowner either dies or sells the mortgaged property and defines “homeowner” to include the borrower’s spouse.
On appeal, the 11th Circuit Court of Appeals (Estate of Caldwell Jones, Jr. v. Live Well Financial (U.S. Ct. App., 11th Cir., No. 17-14677, Sept. 5, 2018)) ruled that the federal law in question only covers what the federal government can insure and does not govern the insurer’s right to foreclose. The court agrees with Ms. Jones that the law is intended to safeguard widows and implies that the federal government should not have insured the loan in the first place, but finds that federal law does not cover the insurer’s private right to demand immediate payment and pursue foreclosure.
When purchasing a reverse mortgage, it is always safer to put both spouse’s names on the mortgage. If one spouse is underage when the mortgage is originally taken out, that spouse can be added to the mortgage when he or she reaches age 65. If you have a reverse mortgage with only one spouse on it, contact an elder law attorney to find out the best way to protect the non-borrowing spouse.
The New Year is all about a fresh start. Along with losing a few pounds and joining the gym, why not consider starting 2018 off with an estate plan that works for you and your family? This does not simply mean assessing whether or not you have estate planning in place. It also means ensuring the planning you do have is up to date and actually accomplishes your estate planning goals. Only about half of all Americans have planned for their disability and death. Of the fifty percent of people who have created estate plans most estate plans are only updated every 20 or so years. We believe your best practice is to review your estate planning every year and update your estate plan every 2-3 years so it remains consistent with changes in your life (personal and financial), changes in the law, changes in your attorney’s experience, and changes in your legacy. Make 2018 the year you adopt this philosophy as well!
In addition to reviewing your physical estate planning documents, the New Year is also a good time to assess what you own and determine if assets have been bought or sold which might impact your planning. Proper asset ownership is a critical piece to ensuring your estate planning works. Consider this relatively common scenario: you have a checking account, a savings account a retirement account and a house. All of the accounts and the house are owned jointly with your oldest child and your oldest child is the beneficiary of your retirement account. You also have a Last Will and Testament that says when you die everything you own is to be split equally between your three children. In this situation, when you do die, what do you think is going to happen? If you believe your oldest child gets everything and you have disinherited your other two children, you would be correct. Because your oldest child is the joint owner and beneficiary of all of your assets, she gets everything! This is true even though you have a Will that say something else and your intent is for all of your children to be equal beneficiaries of your estate. This is a perfect example of why reviewing what you own and how you own it is essential to the success of your estate planning.
Each year, hundreds of thousands of incoming freshman leave their parents’ nest and get their first taste of independent life as an adult. For most students, the experience is nothing short of a dream come true while for others weekend trips home may be the only way to keep their sanity. Regardless of how long it takes a new college student to get comfortable in his or her new way of life, one thing is certain- and it is something that many parents do not fully grasp: When a child moves away from home to begin this exciting chapter of life, he or she is not only leaving the comforts of home but also the protections that parents offer until the age of 18. By “comforts” and “protections” I mean much more than having someone who does your cooking or laundry. Under the law, when your child turns 18 he or she is an adult under the law, which means that a parent’s right’s in controlling some affairs of that child become significantly diminished. Among these diminished rights are the (1) the right to make healthcare decisions on behalf of the child, and (2) the right to act on the child’s behalf in financial transactions.
In the event the child is hospitalized, medical personnel have no obligation to follow anyone’s wishes regarding treatment or consent except for the patient’s, and medical records are going to remain sealed from view absent a court order directing otherwise. In the event of a serious accident or illness that leaves the child unable to determine his or her own course of treatment or who can make those decisions on his or her behalf, a doctor’s hands are going to be tied, which will lead to a court’s intervention in order to make important decisions.
Further, institutions such as banks, utility providers or even landlords typically will not permit an individual that is not named on an account to access its funds or information. This means that if a child is in the hospital for an extended period of time unable to act on his own behalf, the financial repercussions of failing to do things such as pay bills in a timely fashion can be long-lasting in the form of bad credit and collections.
So how do parents prepare and plan for these unthinkable situations in which decisions regarding the child’s healthcare and financial transactions must be handled? The answer is PROPER ESTATE PLANNING. Below are a few documents that your college-bound child should not leave the nest without.
Advanced Directive for Health Care
A living will is a directive that instructs family members and medical professionals on which end-of-life procedures you want done (for example, instructions on when you want to be kept on or removed from life support). A medical power of attorney (also known as a health care power of attorney) is a legal document in which you are able to appoint someone to make decisions regarding your health care in the event that you become incapacitated. Advanced directives for healthcare are often useful to designate a medical power of attorney in conjunction with a living will to form this document in order to ensure that you will have someone advocating for the directives you have spelled out in writing. In addition to those directives spelled out in writing, an advanced directive for health care can also allow you to appoint someone to make decisions regarding your health care that isn’t spelled out in writing.
HIPPA Release Form
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that sets rules for health care providers and health plans about who can look at and receive your health information, including family members and friends. You know those forms every health care provider makes us sign when we receive any type of medical care? The one that typically allows the doctor to release information to our health insurer? That is a HIPAA form.
A signed HIPAA authorization is like a permission slip. It permits healthcare providers to disclose your health information to anyone you specify. A stand-alone HIPAA authorization (not incorporated into a broader legal document) does not have to be notarized or witnessed. Young people who want parents to be involved in a medical emergency, but fear disclosure of sensitive information, need not worry; HIPAA authorization does not have to be all-encompassing. The young adults can stipulate not to disclose information about sex, drugs, mental health, or other details they might want to keep private.
A Durable Power of Attorney for Finances and Property
The durable power of attorney for finances and property functions the same as the durable power of attorney for healthcare; but it addresses powers related to non-medical actions such as those related to finances and property management and transactions. With a valid durable power of attorney for finances and property an agent should be able to access the principal’s bank accounts and financial records, pay rent, utilities and credit card bills, manage investments and loans and so on.
Important to note as well is the ability to structure the powers of attorney to limit the agent’s ability to take action until the principal is deemed incapacitated so the principal is the only party able to act on his behalf unless or until something happens.
Nowadays, most Americans hold their wealth in retirement accounts. When it comes to
inheritance and estate planning, special considerations are necessary to ensure that these assets are protected and distributed according to the account holder’s wishes.
Retirement assets, such as IRAs, are typically passed via beneficiary designation. For example, for a married couple with children, it would be common to designate the spouse as primary beneficiary and children as secondary. However, in almost all occasions it is advantageous to name a trust—rather than a particular individual—as the designated beneficiary. Once the retirement account becomes inherited by a non-spouse beneficiary (i.e. children), it is important to understand that IRS regulations
treat this inherited retirement account differently. Specifically, once inherited, the beneficiary is obligated to begin taking required minimum distributions from such funds within a more immediate time horizon of either five years or over the beneficiary’s life expectancy. An IRA administrator will also offer the option of receiving the proceeds as a lump sum payment, which is very often discouraged, especially in the case of minor or financially irresponsible children. The preferred goal in planning for inheriting retirement assets is to maximize this window of time so that the tax-sheltered, long-term growth benefits of retirement accounts are maximized.
IRAs and other retirement instruments were designed precisely for a specific purpose: retirement. They were not intended as a savings mechanism for future generations. Tax laws work according to this assumption, and so foresight and planning are necessary when including such holdings in an estate to be passed on to beneficiaries. Trusts can serve as an appropriate conduit to protect and preserve these assets.
Some will consider a standard revocable living trust by default when structuring a retirement trust. This could cause unfavorable consequences, however, including a more fixed distribution schedule and the lack of creditor protection. Further, the IRS may a not consider the revocable living trust as a designated third party beneficiary, resulting in the assets becoming immediately, taxable income.
A Standalone Retirement Trust is a trust that is created for the sole purpose of serving as the beneficiary of the remainder of your IRA funds (and other qualified funds, e.g. 401(k)). Thus, the trust will be funded after you pass with whatever is left of your retirement assets. Then, the trustee of the Standalone Retirement Trust will oversee the distribution of the funds to your heir(s) in a manner you see fit.
A Standalone Retirement Trust will provide you with significantly greater control over the manner in which your remaining retirement funds are distributed to your loved ones, rather than just control who will receive the funds after you die—as is the case with leaving your IRA through a simple beneficiary designation.
Other potential benefits of Standalone Retirement Trusts include
- Asset protection in the event of a divorce;
- Creditor protection;
- Generation-skipping tax benefits;
- Special Needs/Supplemental Trust benefits;
- Alerts the beneficiary of any tax consequences of an immediate payout;
- Allows beneficiary’s to thinly stretch tax obligations over time;
- Alleviates the need for a court appointed guardian for minor beneficiaries
- Provides a beneficiary with asset protection in the event the beneficiary becomes disabled; and
- Allows for successor beneficiaries.
For more information on Standalone Retirement Trusts contact our office today.