How to Choose a Trustee

 

If you create a trust, you will need a separate person or institution, called a "trustee," to manage the trust either now or in the future, depending on the type of trust.  Choosing the right trustee is crucial to making sure your wishes are carried out. The choice is important because being a trustee can be a difficult job, with a trustee's duties including making proper investments, paying bills, keeping accounts, and preparing tax returns.

A trust is a legal arrangement through which a trustee holds legal title to property for another person, called a "beneficiary." The trust document will name the trustee, although there are several different types of trusts. The simplest one is a revocable living trust in which the person who creates the trust maintains control of the trust while he or she is alive. In this situation, the trust document will name a successor trustee to take over after the original trustee dies or becomes incapacitated. Other trusts -- such as an irrevocable trust or special needs trust -- may have a separate trustee from the start.

The law isn't very strict about who may serve as your trustee, as long as the person is legally competent, meaning he or she is over 18 years of age and is capable of managing his or her own affairs. The main consideration when selecting a trustee is picking someone who is trustworthy. The trustee has a duty to manage the trust in the beneficiary's best interest. The trustee does not need legal or financial expertise, but he or she must have good judgment. In the case of a special needs trust, the trustee should have knowledge of federal benefits programs.

Another consideration is that the trustee be able to manage the trust for an extended period of time. Your choice of trustee should be someone who will likely be around for a long time and who has the time to devote to trustee duties. It is important that the trustee be of sound mind and body.

If you don't know anyone who meets these qualifications, you can look into hiring an independent trustee. This can be an individual or an institution with no beneficial interest in the trust. Some examples include: a bank or trust company, a professional trustee, an investment adviser or manager, an investment banker, an accountant or a lawyer. In addition to being independent, a professional trustee will usually have experience and expertise in managing trusts. If you aren't comfortable with having a stranger manage the trust, it may be possible to choose a family member and a professional trustee as co-trustees. The downside to hiring an independent trustee is that the trustee will charge a fee, which is usually a percentage of the trust.

Whomever you choose as trustee, it is important to reevaluate your choice every few years. The person who is right today may not be right tomorrow. Your attorney can help you determine who is the best trustee for you. 

Medicare Announces Parts A and B Premiums and Deductibles for 2016

 

The Centers for Medicare and Medicaid has announced the Medicare premiums, deductibles, and coinsurances for 2016. As expected, for the third year in a row the standard Medicare Part B premium that most recipients pay will hold steady at $104.90 a month.  However, about 30 percent of beneficiaries will see their Part B premium rise to $121.80 a month.  Meanwhile, the Part B deductible will increase for all beneficiaries from the current $147 to $166 in 2016.

The Part B rise was supposed to be much steeper for the 30 percent of beneficiaries who are not “held harmless” from any increase in premiums when Social Security benefits remain stagnant, as will be the case for 2016.  But the premium rise was blunted by the Bipartisan Budget Act signed into law by President Obama November 2.  Medicare beneficiaries who are unprotected from a premium increase include those enrolled in Medicare but who are not yet receiving Social Security, new Medicare beneficiaries, seniors earning more than $85,000 a year, and “dual eligibles” who receive both Medicare and Medicaid benefits.

For beneficiaries receiving skilled care in a nursing home, Medicare's coinsurance for days 21-100 will go up from $157.50 to $161.  Medicare coverage ends after day 100.

Here are all the new Medicare figures:

• Basic Part B premium: $104.90/month (unchanged)
• Part B premium for those not “held harmless”: $121.80
• Part B deductible: $166 (was $147)
• Part A deductible: $1,288 (was $1,260)
• Co-payment for hospital stay days 61-90: $322/day (was $315)
• Co-payment for hospital stay days 91 and beyond: $644/day (was $630)
• Skilled nursing facility co-payment, days 21-100: $161/day (was $157.50)

Higher-income beneficiaries will pay higher Part B premiums:

• Individuals with annual incomes between $85,000 and $107,000 and married couples with annual incomes between $170,000 and $214,000 will pay a monthly premium of $170.50 (was $146.90).
• Individuals with annual incomes between $107,000 and $160,000 and married couples with annual incomes between $214,000 and $320,000 will pay a monthly premium of $243.60 (was $209.80).
• Individuals with annual incomes between $160,000 and $214,000 and married couples with annual incomes between $320,000 and $428,000 will pay a monthly premium of $316.70 (was $272.70).
• Individuals with annual incomes of $214,000 or more and married couples with annual incomes of $428,000 or more will pay a monthly premium of $389.80 (was $335.70).

Rates differ for beneficiaries who are married but file a separate tax return from their spouse:

• Those with incomes between $85,000 and $129,000 will pay a monthly premium of $316.70 (was $272.70).
• Those with incomes greater than $129,000 will pay a monthly premium of $389.80 (was $335.70).

The Social Security Administration uses the income reported two years ago to determine a Part B beneficiary's premiums. So the income reported on a beneficiary's 2014 tax return is used to determine whether the beneficiary must pay a higher monthly Part B premium in 2016. Income is calculated by taking a beneficiary's adjusted gross income and adding back in some normally excluded income, such as tax-exempt interest, U.S. savings bond interest used to pay tuition, and certain income from foreign sources. This is called modified adjusted gross income (MAGI). If a beneficiary's MAGI decreased significantly in the past two years, she may request that information from more recent years be used to calculate the premium.

Those who enroll in Medicare Advantage plans may have different cost-sharing arrangements.  The average Medicare Advantage premium is expected to decrease slightly, from $32.91 on average in 2015 to $32.60 in 2016. 

Your Right to Refills If Medicare Drops Coverage of Your Drugs

 

Medicare prescription drug plans can change which drugs they cover, leaving you without coverage for a drug you need. Or you may switch plans into a plan that doesn't cover your medication. In these circumstances, Medicare drug plans are required to offer you a 30-day transition supply of the drug you were taking.

All Medicare drug plans, including Medicare Advantage plans with prescription drug coverage and stand-alone drug plans, must offer these transition refills. Plans must provide a 30-day supply (unless a lesser amount is prescribed) of an ongoing medication within the first 90 days of plan membership or within the first 90 days of the new contract year. The plans are also required to provide written notice that you are using your transition supply and explaining what your rights are.

You are entitled to a transition refill when you first enroll in a Part D plan, if you move to a new plan that does not cover your current medication, when your current plan drops your medication or imposes new restrictions on the drug, or when you experience a change in your level of care (e.g., a move from a hospital to a nursing home). The 30-day supply is designed to give you time to either talk to your doctor and find a substitute medication or to request a coverage exception from your current plan. If you ask for a coverage exception, your plan must provide temporary refills until the request has been processed.

Residents in long-term care facilities get additional protections. If you are in a long-term care facility, the plan must cover all the 31-day refill requests you submit in the first 90 days on the plan. After the first 90 days, the plan must offer an emergency 31-day supply if your request for an exception has not been processed.

Four Steps to Take Right After an Alzheimer's Diagnosis

 

If you or a loved one has been diagnosed with Alzheimer's disease, it is important to start planning immediately. There are several essential documents to help you once you become incapacitated, but if you don't already have them in place, you need to act quickly after a diagnosis.

Having dementia does not mean an individual is not mentally competent to make planning decisions. The person signing documents must have "testamentary capacity," which means he or she must understand the implications of what is being signed. Simply having a form of mental illness or disease does not mean that you automatically lack the required mental capacity. As long as you have periods of lucidity, you may still be competent to sign planning documents.

The following are some essential documents for someone diagnosed with dementia:

• Power of Attorney. A power of attorney is the most important estate planning document for someone who has been diagnosed with Alzheimer's disease or some other form of dementia. A power of attorney allows you to appoint someone to make decisions on your behalf once you become incapacitated. Without a power of attorney, your family would be unable to pay your bills or manage your household without going to court and getting a guardianship, which can be a time-consuming and expensive process.
  
• Health Care Proxy. A health care proxy, like a power of attorney, allows you to appoint someone else to act as your agent for medical decisions. It will ensure that your medical treatment instructions are carried out. In general, a health care proxy takes effect only when you require medical treatment and a physician determines that you are unable to communicate your wishes concerning treatment.
  
• Medical Directive or Living Will. Medical directives and living wills explain what type of care you would like if you are unable to direct your own care. A medical directive can include a health care proxy or it can be a separate document. It may contain directions to refuse or remove life support in the event you are in a coma or a vegetative state or it may provide instructions to use all efforts to keep you alive, no matter what the circumstances.
  
• Will and Other Estate Planning Documents. In addition to making sure you have people to act for you and your wishes are clear, you should make sure your estate plan is up to date, or if you don't have an estate plan, you should draw one up.  Your estate plan directs who will receive your property when you die. Once you are deemed incapacitated, you will no longer be able to create an estate plan. An estate plan usually consists of a will, and often a trust as well. Your will is your legally binding statement on who will receive your property when you die, while a trust is a mechanism for passing on your property outside of probate. 

In addition to executing these documents, it is also important to create a plan for long-term care. Long-term care is expensive and draining for family members. Developing a plan now for what type of care you would like and how to pay for it will help your family later on. Your attorney can assist you in developing that plan and drafting any necessary documents.

Avoiding Pitfalls When Forced to Start Breaking Your Retirement Piggy Bank

 

The oldest of the 75 million baby boomers have begun turning 70 in 2016. Becoming a septuagenarian is a milestone in itself, but it also means that soon the IRS will likely be expecting you to start cashing out your tax-deferred retirement savings that you may have spent decades building up. 

If you don’t start taking what are called required minimum distributions (RMDs) from your non-Roth individual retirement account (IRA) or 401(k) accounts and pay taxes on the withdrawals, you will face a 50 percent penalty on what should have been withdrawn but wasn’t.  But more than this, how you structure these distributions can have a profound effect on your own retirement and on what you leave your heirs.

Congress created the rules governing the minimum distribution of retirement plan funds to encourage saving for retirement and to allow retirement assets to build up tax-free during the plan owner's working years. You do not pay tax on income you put into a tax-deferred retirement plan when earned or on investment income or gains on the account itself. However, the funds you withdraw upon retirement are treated as taxable income in the year you take the distribution. And if your children withdraw the funds from a tax-deferred account that they inherit from you, they will be taxed on such distributions at their income tax rates.

Not everyone with a retirement account must take RMDs, however.  Usually, employees who are still working can, if their plan allows, wait until April 1 of the year after they retire to start receiving these distributions, as long as the employee doesn’t own at least five percent of the company.  (You still have to take RMDs from SEP or SIMPLE plans, although you can continue contributing to them as well.) Also, funds up to $125,000 invested in a qualifying longevity annuity contract (QLAC) are not counted in calculating your regular RMDs and distributions are not required until age 85.

When to Start the Withdrawals?

The first decision 70-year-olds have to make is when to begin their RMDs.  Ordinarily, your RMD must be made by December 31 of each year.  But recognizing that people may need some extra time to adjust to this new landscape, the IRS allows you to defer your first RMD until April 1 of the year following the year you turn 70 ½.  Those who will turn 70 in the second half of the year will be 70 ½ in 2017, which means they can wait until April 1 of 2018 to make the withdrawals.  (If you turn 70 in the first half of 2016, you must make the withdrawals by April 1 of next year.)

But waiting as long as possible may not be in your interest.  If you delay until April 1 of the year after you turn 70 ½, you could have a hefty tax bite because you would have to take your second year distribution by December 31 of the same year. This additional income could push you into a higher tax bracket for that year and also affect the tax that might be due on your Social Security benefitsand maybe even increase your Medicare tax for the following year if your income rises above $200,000 (for single filers; 2016 figure).

Making the Calculation

You must withdraw a small percentage of your tax-advantaged retirement savings each year after age 70.  The exact amount for a year is determined by dividing the fair market value of your retirement account(s) as of the previous year’s end by the applicable distribution period. A simple chart gives your distribution period in years. If, for example, you had $100,000 in a retirement account on December 31 of last year and you were 73 as of that date, you would have to withdraw $4,049 from the account by the end of this year ($100,000 divided by your distribution period of 24.7 years).

The distribution period is different if the sole beneficiary of your IRA is your spouse and he or she is more than 10 years your junior.  In this case, consult the "Joint Life and Last Survivor Expectancy" table in the Appendix of the IRS's Publication 590. To see this publication, go to: https://www.irs.gov/pub/irs-pdf/p590b.pdf.

Also, just because you missed a required withdrawal or didn’t withdraw enough doesn’t mean you’ll automatically get hit with the 50 percent penalty.  You can ask the IRS to waive the penalty by filing Form 5329 with your tax return, saying that you were confused or had poor financial advice.

Advance Planning Helps

Planning in advance can help you avoid ending up in a higher tax bracket or paying higher Social Security or Medicare taxes once you start taking your RMDs. One strategy is to convert some of your retirement funds to Roth IRAs in years prior to turning 70. The RMD rules do not apply to the Roth IRA owner, although you will pay taxes when you convert. The ideal time to convert would be after you retire and may be in a lower tax bracket. You can also, of course, start making withdrawals from tax-deferred accounts early, before you are required to do so, as long as you have reached at least age 59 ½.

Another technique is to make a qualified charitable distribution (QCD). Investors aged 70 ½ or older may transfer as much as $100,000 a year from an IRA directly to a charity without having it count as taxable income. A QCD can be used to meet part or all of of an RMD obligation (as long as it’s less than $100,000) and no income tax will be due on the withdrawal. 

Managing your RMDs can be a tricky proposition, particularly for those with multiple accounts. You want to avoid pushing yourself into a higher tax bracket, but you also don’t want to under-withdraw and face a 50 percent penalty, or miscalculate your year-end account balance because your account custodian wasn’t aware of current year recharacterizations and conversions. For these reasons, it’s a good idea to consult with a financial advisor or your elder law attorney well before crossing the threshold into RMD land.

New Rules Provide Protections for Retirement Savings

 

The Department of Labor has issued new rules aimed at helping those saving for retirement. The rules are intended to prevent financial advisors from steering their clients to bad investments by requiring advisers to act in the best interests of their clients.

Prompted by concern that many financial advisors have a sales incentive to recommend to their clients bad retirement investments with high fees and low returns because they get higher commissions or other incentives, in February 2015 President Obama directed the Department of Labor to draw up new rules that require financial advisors to act like fiduciaries. A fiduciary must provide the highest standard of care under the law.  Americans may lose as much as $17 billion every year because of bad financial advice from advisors with conflicts of interest, according to a report by the President's Council of Economic Advisors. 

The new rules require all financial professionals who offer advice related to retirement savings to provide recommendations that are in a client's best interest. Previously, financial advisors only had to recommend suitable investments, which meant they could push more expensive products. Now advisers cannot accept compensation or payments that would create a conflict unless they have an enforceable contract agreeing to put the client's interest first. Advisors must also disclose any conflicts they have and charge reasonable compensation.

The new rules do not solve every problem. They apply only to tax-advantaged retirement accounts like IRAs and 401(k)s and not other investments. In addition, with consent from the client, advisors can still charge a commission and engage in revenue sharing. Investors are still most likely to get the most straightforward advice from a financial advisor who receives a flat fee, rather than a commission.

The new rules go into effect in April 2017, but they won't be fully adopted until January 2018.

Lack of a Will Could Mean Chaos for Prince's Estate

 

The famed recording artist Prince died leaving an unknown fortune and possibly no will or estate plan to dictate what to do with that fortune. Prince's sister, Tyka Nelson, told the probate court in the Minnesota county where Prince lived that her brother did not have a will, which means his estate could be in court for years and exhaust millions of dollars in court fees and unnecessary taxes.  Ms. Nelson filed an emergency order for the appointment of a special administrator to protect Prince’s assets, even as those assets are swelling.

Prince owned several properties at his death as well as the rights to hundreds of songs; estimates put his estate's value at between $100 million and $300 million. It is possible a will may still be found, but under state law, if there is no estate plan in place, Prince's six siblings – one sister and five half-siblings -- will share his estate.  In Minnesota, half-siblings and full siblings are treated equally when it comes to inheritance.  

Ironically for someone who was known for his privacy, dying intestate -- without a will -- also means that Prince’s estate will be open to public scrutiny. In addition, if everything passes through probate, his estate will likely face a large estate tax bill that might have been at least partially avoided.

Moreover, Prince's estate may not be distributed as he may have wished. For example, Prince was a devout Jehovah’s Witness.  If he wanted to leave anything to the church or to another charity, those distributions will not be made without a written estate plan. In the absence of clear instructions, there are likely to be lawsuits over the distribution and administration of his estate. Prince also left a number of unreleased songs that he may not have wanted made public, but without other guidance, those songs along with his entire music catalog will now be under the control of the estate administrator.

You don't have to be worth millions to learn a lesson from Prince's apparent mistake. The only way to ensure that your assets get distributed the way you want is to create an estate plan. Not having an estate plan can similarly cost your heirs time and money in unwanted court battles and fees. Contact your attorney to make sure your estate plan is in place and up to date.

“Prince was a major star and a cultural influencer, but he was a human being,” Kenneth J. Abdo, an entertainment lawyer in Minneapolis, told the New York Times. “It comes down to taking care of business. If you don’t take care of it, you’re leaving a mess to the family or the courts.”