When to Avoid Naming a Trust as Beneficiary of Your Retirement Plan

Naming a trust as a beneficiary of your retirement plan can be a good idea in some circumstances, but it can be dangerous if you are worried about creditors coming after your estate. 

There are a lot of good reasons to name a trust as beneficiary of a retirement plan, whether it is a 401(k), a 403(b), or an IRA. If the IRA beneficiaries are young, disabled, or for other reasons shouldn't be managing the asset themselves, the trust provides that management. People in a second marriage or relationship may want their spouse or partner to benefit from the funds, but not be able to deplete them entirely, and trusts provide protection from the beneficiary’s creditors. However, the trust may not protect your retirement funds from your own creditors.

Creditor Protection for Retirement Plans

IRAs enjoy substantial creditor protection during your life. If you get sued, your IRA will be subject to claim, but you can protect it by declaring bankruptcy. Under the federal bankruptcy code, the first $1,362,800 of retirement assets are protected from having to be paid to creditors. Most cases settle, so you can generally get this protection without having to go through the bankruptcy process, but it's there if necessary.

But Only During Life

However, that protection ends at death. It does not apply to inherited IRAs, those you leave to others or that you have inherited from others. Inherited IRAs are subject to creditor claims. However, your heirs are not liable for your debts. So, if your retirement plans pass directly to them, the plan assets will be protected from your debts.

By way of example, let's assume an individual dies owing $400,000 to various creditors, with a total estate of $500,000 divided between a house with a market value of $250,000, savings of $100,000, and retirement plans holding $150,000. If the retirement plans are paid directly to this individual’s heirs, they will not be subject to the person's debts. The rest of the assets will have to go to pay off debts, leaving nothing in the estate for the heirs, but also leaving the creditors short $50,000.

Revocable Trusts Subject to Claim

But what if the IRAs were payable to the individual's revocable trust? Then they very well may be subject to claim. If there are not enough funds in the decedent's probate estate to pay his or her debts, states often allow the creditors to go after a revocable trust. In at least one case in Kansas, which like 34 other states and the District of Columbia has adopted the Uniform Trust Code, the court ruled that this right of creditors to go after the decedent's revocable trust applied to an IRA payable to the trust. There's no reason to think that other courts would not come to a similar conclusion.

Conclusion

So, if your debts exceed your non-retirement plan assets, don't make your retirement plan payable to your revocable trust. Either make it payable directly to beneficiaries or, if a trust is necessary, to an irrevocable trust. If your assets far exceed your debts, or possible lawsuit claims against you or your estate, then don't worry about any of the above.

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Elise Lampert, Esq.

Law Office of Elise Lampert

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How Long Does an Executor’s Job Take?

Being the executor of an estate can be a time-consuming job, depending on the size and complexity of the estate. While a simple estate can take a few months and not require a huge time commitment, if there are problems, the job can drag on for years. 

An executor is the person responsible for managing the administration of a deceased individual's estate. Although the time and effort involved will vary with the size of the estate, even if you are the executor of a small estate you will have important duties that must be performed correctly or you may be liable to the estate or the beneficiaries.

The first thing an executor should do is to consult with an attorney to learn the deadlines in the state where the decedent lived. To start the probate process, the executor must file the will for probate. Some states have strict time limits on how long after a decedent dies the executor has to file the will with the court, while others have no time limits. In addition, there may be deadlines for the executor to prepare a list of all of the deceased's assets and file this inventory with the court. It is important that the executor to understand what is required and when. 

How much actual time an executor will have to devote to the job can range widely. Settling an estate takes an average of 16 months, according the software company EstateExec, and the settlement process requires an average of roughly 570 hours of work on the part of the executor. Average compensation for executors was $18,000. 

While executors must adhere to deadlines set by the state, other factors can make the estate administration go faster or slower. The following are the issues that can add or subtract time:

• Debts. The executor must notify potential creditors about the decedent’s death. Usually, the executor must inform all known creditors by letter and publish a notice in a local paper for unknown creditors. Each state gives creditors a certain amount of time, which can range from a few months to a year, to file claims against the estate. The executor must wait for the deadline to pass and then settle all the debts before distributing assets to the beneficiaries of the estate. 

• Location. The location of the executor and the beneficiaries can affect the time it takes to settle the estate. If the executor does not live in the same state as the decedent and the beneficiaries, it can take more time to send documents back and forth. 

• Assets. The more complicated the assets, the longer it will take the executor to sort everything out. If the estate consists of just a house and bank account, things will go more quickly than if the estate consists of multiple bank accounts, stocks, brokerage accounts, valuables, and/or a family business. 

• Contested Estate. If the beneficiaries are fighting amongst themselves or with the executor, the probate process is going to take longer. One way an unhappy family member can hold up probate is by contesting the will, based on mental incapacity, undue influence, fraud, or allegations that it wasn’t executed properly. A beneficiary can also prolong the process by challenging the executor’s actions. 

Every family situation is unique, so there is no set time that an executor can expect to work. If you are named as an executor, check with an attorney in the decedent’s state to find out what to expect. 

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Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

What Is Undue Influence?

Saying that there has been "undue influence" is often used as a reason to contest a will or estate plan, but what does it mean?

Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his or her wishes and to the benefit of the influencer or the influencer's friends. The pressure can take the form of deception, harassment, threats, or isolation. Often the influencer separates the individual from their loved ones in order to coerce. The elderly and infirm can be especially susceptible to undue influence.

To prove a loved one was subject to undue influence in drafting an estate plan, you have to show that the loved one disposed of his or her property in a way that was unexpected under the circumstances, that he or she is susceptible to undue influence (because of illness, age, frailty, or a special relationship with the influencer), and that the person who exerted the influence had the opportunity to do so.

Generally, the burden of proving undue influence is on the person asserting undue influence. However, if the alleged influencer had a fiduciary relationship with your loved one, the burden may be on the influencer to prove that there was no undue influence. People who have a fiduciary relationship can include a child, a spouse, or an agent under a power of attorney.

When drawing up a will or estate plan, it is important to avoid even the appearance of undue influence. For example, if you are planning on leaving everything to your daughter who is also your primary caregiver, your other children may argue that your daughter took advantage of her position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn't even drive or accompany you to the attorney's office. You can also get a formal assessment of your mental capabilities performed by a medical professional before you draft estate planning documents.

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Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

Things to Remember at Tax Time

Tax day, which is Tuesday, April 19 in 2022, is approaching and it is time to begin crossing T's and dotting I's in preparation for paying taxes. As tax time draws near, you want to make sure you file all the proper forms and take all deductions you're entitled to.

Following are some things to keep in mind as you prepare your tax form.

• Gifts. Did you give away any money this year? The gift tax can be very confusing. If you gave away more than $15,000 in 2021, you will have to file a Form 709, the gift tax return. This does not necessarily mean you will owe taxes on the money, however. 

• Medical Expenses. Many types of medical expenses are tax deductible, from hospital stays to hearing aids. To claim the deduction, your medical expenses have to be more than 7.5 percent of your adjusted gross income. This includes all out-of-pocket costs for prescriptions (including deductibles and co-pays) and Medicare Part B and Part C and Part D premiums. (Medicare Part B premiums are usually deducted out of your Social Security benefits, so be sure to check your 1099 for the amount.) You can only deduct medical expenses you paid during the year, regardless of when the services were provided, and medical expenses are not deductible if they are reimbursable by insurance.  

• Parental Deduction. If you are caring for your mother or father, you may be able to claim your parent as a dependent on your income taxes. This would allow you to claim the $500 tax credit for any non-child depedents. 

• Long-Term Care Insurance Premiums. Premiums for "qualified" long-term care policies are treated as an unreimbursed medical expense. Long-term care insurance premiums are deductible for the taxpayer, his or her spouse and other dependents. 

• Social Security Benefits. Although Social Security benefits are generally not taxable, people with substantial income in addition to their Social Security may pay taxes on their benefits. If you file a federal tax return as an individual and your "combined income," including one half of your Social Security benefits and nontaxable interest income is between $25,000 and $34,000, 50 percent of your Social Security benefits will be considered taxable. If your combined income is above $34,000, 85 percent of your Social Security benefits is subject to income tax. 

• Home Sale Exclusion. Married couples can exclude from income up to $500,000 in profit on the sale of a home ($250,000 for single individuals). If a surviving spouse sells the home, he or she can still claim the exclusion as long as the house was sold no more than two years after the spouse's death. 

• Elderly or Disabled Tax Credit. Some low-income elderly or disabled individuals are entitled to a special tax credit. To be eligible, you must meet income limits. For more information, click here.

• Earned Income Tax Credit. Previously primarily available to people with young children, for 2021 working seniors without dependents may qualify for this important credit.  For more, click here.  

• Tax Refunds. Getting a federal tax refund should not affect your Medicaid or Social Security benefits. For a year after recieving a tax refund from the federal government, the refund will not be considered income or resources for SSI or Medicaid purposes. You can also transfer the refund within a year without incurring a penalty. 

The IRS's Tax Counseling for the Elderly (TCE) Program offers free tax help to taxpayers who are 60 and older. For more information, click here. The IRS also publishes a Tax Guide For Seniors.

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Elise Lampert, Esq.

Law Office of Elise Lampert

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Phone: (818) 905-0601 / Email: elise@elampertlaw.com

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When a Social Security Recipient Dies, Survivors May Be Eligible for Benefits

When loved ones pass away, there are lots of considerations, including what happens to their Social Security. The decedent’s payments need to be stopped, but survivor’s benefits may be available to the spouse or, in certain cases, children. 

Social Security benefits stop at death. If a loved one who was receiving Social Security dies, you need to notify the Social Security Administration as soon as possible. Often the funeral home does this as one of its services, but if not, you can notify Social Security by calling 1-800-772-1213 or contacting your local Social Security office. Benefits are not paid for the month the recipient dies and are not prorated. So, even if the recipient dies in the middle or end of the month, Social Security will not pay any benefits for that month. If the Social Security Administration is not notified on time and makes a payment, that payment will have to be returned. 

Death Benefit

Regardless of age or eligibility for survivor’s benefits, surviving spouses are entitled to a one-time lump-sum payment of $255 if they were living with the decedent or collecting benefits on the decedent’s record. If there is no surviving spouse, the payment can be made to a child who qualifies for benefits on the decedent’s record. 

Survivor’s Benefits

In addition to the lump-sum death benefit, certain family members may be eligible to receive monthly survivor’s benefits, including the following:

• A widow or widower age 60 or older (age 50 or older if they have a disability).

• A surviving divorced spouse, under certain circumstances.

• A widow or widower at any age who is caring for the deceased’s child who is under age 16 or has a disability and is receiving child’s benefits.

• An unmarried child of the deceased who is younger than age 18 (or up to age 19 if they are a full-time student in an elementary or secondary school) or age 18 or older with a disability that began before age 22.

• Parents, age 62 or older, who were dependent on the deceased for at least half of their support.

If the spouse has reached full retirement age when the decedent died, then the spouse begins receiving the decedent’s actual benefits. This is true even if the decedent and spouse were divorced, so long as they had been married for at least 10 years. 

While a spouse can claim survivor's benefits as early as age 60, the benefits will be permanently reduced. If the surviving spouse claims benefits between age 60 and full retirement age, he or she receives a reduced percentage of the decedent’s benefits. At age 60, the spouse will receive 71.5 percent of the actual benefits. If the spouse waits to collect, this percentage increases each year until the spouse reaches full retirement age, at which point he or she can receive 100 percent of the actual benefits. A surviving spouse who is age 50 to 59 also receives 71.5 percent of the actual benefits. Spouses caring for a child and the decedent’s dependents receive 75 percent of the decedent’s actual benefit. Dependent parents receive 75 percent each or 82.5 percent if there is only one parent.

If a surviving spouse, including a divorced spouse, remarries before turning age 60, then the spouse is no longer eligible for benefits unless the new marriage ends. Spouses who remarry after age 60 are still eligible for survivor’s benefits. 

For more information about Social Security survivor’s benefits, click here.

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Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

Incentive Trusts: Ensuring That an Inheritance Will Be Well Spent

Many parents or grandparents with sizable amounts of money to pass on to their heirs are apprehensive about the effect it many have on their children or grandchildren. In some instances, they fear that the recipients will misspend the funds on drugs, fancy cars or failing businesses. In other cases, the fear is simply that their children will lose their drive to achieve and overcome barriers that may present themselves if there's no financial necessity to do so.  

At the same time, these parents and grandparents want to provide a safety net to their heirs and enhance their lives in an increasingly insecure financial system. Often, they do so by leaving funds for their descendants in a trust that distributes the funds at certain ages – say, one-third at age 25, one-third at age 30 and the rest at age 35.  But some parents set up what are known as “incentive trusts,” which get very specific in their instructions to trustees to ensure that the trust funds support what the trust's creators view as positive behavior and discourage unproductive activities.  Such trusts may pay the costs of certain activities, like a college education or advanced degree, or provide rewards for achieving various milestones.  Others may withhold distributions when the beneficiary engages in certain negative behaviors or activities, such as drug use or excessive spending.

Here are some ways incentive trusts might be structured:

1. Rewards for degrees. Cash amounts that descendants receive on achieving specified educational milestones.

2. Matching earnings. The trustee would be instructed to match on a dollar-for-dollar basis the child’s earnings from employment, or, if lavish spending is the concern, the child’s savings.

3. Paying for education. Especially with the high cost of private universities today, grandparents often set up funds to help pay for education. Some funds are more expansive than others in terms of what they will cover. Just undergraduate degrees, or also graduate programs? Only for higher education, or also for learning a craft or a trade? Will the fund pay for private school before college? Will it cover educational programs during the summer, including travel overseas? Room and board, or just tuition? Some of the answers will be determined by the size of the fund and how far it needs to stretch.

4. Creating a charitable foundation or donor-advised fund. To encourage charitable giving among descendants, an estate plan could require heirs to give away a certain amount every year to a private foundation or to a donor-advised fund.

5. Subsidizing public service career or Peace Corps. We live in an increasingly financially insecure world that often forces people to take or stick with careers they don't find fulfilling or don't feel further the public good. Parents or grandparents could fund trusts that don't match all earnings, but just those they feel make the world a better place. This may be hard to define and will, of course, be different from fund to fund. It may include working for any not-for-profit -- though some are quite well funded -- or teaching or political organizing for certain causes.

6. Distribution upon marriage or having a child.

7. Matching the downpayment for a house.

8. Reward for a period of time being alcohol- or drug-free.

Through these incentive trusts, parents and grandparents hope that their money will go to causes they support. On the one hand, this approach can multiply the benefit of what they pass on. On the other, it may seem to some that the deceased is trying to continue to exercise control much too long after they are gone. Often the older generations split the difference, giving some funds outright to their descendants and leaving the rest in trust.

However, an incentive trust must be carefully constructed, both to ensure that its terms are clear and that it does not violate any constitutional or public policy law or standard. For example, in one case that ended up in the courts, grandparents set up a trust that withheld funds from any grandchildren who married outside the Jewish faith. Two Illinois courts ruled that the clause disinheriting the grandchildren was invalid because it was against public policy by placing a significant limitation on the grandchildren's freedom to marry.

If you are interested in creating an incentive trust, speak to your elder law or estate planning attorney.   

For two articles by WealthManagement.com that go into detail about the objectives that may be achieved with an incentive trust and the critical elements of incentive trust design, click here and here. 

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Elise Lampert, Esq.

Law Office of Elise Lampert 

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 So.............., When The Pool Boy Ends Up With Grandma’s House, Call me!

What Is Financial Elder Abuse?

Financial elder abuse involves taking advantage of older people and unfairly benefiting from their monetary resources. Family members, business associates, caregivers, and strangers sometimes financially abuse elders by taking advantage of their trust. Tactics involved in financial elder abuse include the unauthorized use of an older person’s assets, gaining power of attorney by way of trickery, or engaging in fraud.

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Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd., Suite 900

Beverly Hills, CA 90212

Tel. 818-905-0601

Email:elise@elampertlaw.com

www.eliselampert.com

 

Why You May Need a Trust in Addition to a Power of Attorney

While everyone should have a durable power of attorney that appoints someone to act for them if they become incapacitated, in some circumstances it is not enough. In these cases, a revocable trust can help. 

A durable power of attorney allows you to appoint someone you trust to step in for you to handle financial and legal matters if you become incapacitated. We all are at risk of incapacity from illness or injury, whether temporary or permanent. Of course, this risk rises as we get older. Without someone in place to handle legal and financial matters, bills can go unpaid, contracts can't be signed, homes can't be refinanced, leases can't be terminated, investments go unmonitored and unadjusted, and families often fight over who is in charge. The remedy of seeking court-appointed conservatorship is expensive, cumbersome, and time-consuming. It's best that you pick your own person or people for this role.

Nevertheless, however important taking this step can be, it's not always enough. There are two reasons for this: financial institutions often don’t honor older powers of attorney and agents sometimes don't step in until it's too late. Both problems can be remedied through the use of a revocable trust.

Powers of Attorney Can Be Rejected

Financial institutions often reject older powers of attorney, claiming that they can't know whether the document has been revoked since first signed. Sometimes the institution will require the drafting attorney to attest to the fact that the document hasn't been revoked, even though the attorney may not have met with the client for many years and, of course, can't know everything the client did during that time.

Financial institutions are uncomfortable honoring powers of attorney because they do not want to be held liable for any malfeasance by the agent appointed under the document. In the opinion of most estate planning attorneys, such institutional rejection is contrary to law, but there is no good remedy when this occurs since any lawsuit against the likes of Bank of America or Fidelity will be expensive and time consuming.

Fortunately, there are three ways to avoid this institutional intransigence:

• Refresh your documents periodically. Financial institutions are more accepting of newer documents than older ones, so it's a good idea to execute new durable powers of attorney every five years. Of course, this is perverse. If the power of attorney is being used because of your incapacity due to dementia, you are more likely to have been experiencing cognitive challenges a year prior to its use than ten years earlier.

• Use the financial institution's forms. Most banks and investment companies have developed their own durable power of attorney forms that they are more comfortable accepting than general ones you may have found online or the one your attorney prepared. Contact each financial institution where you have an account and ask whether it has a durable power of attorney form. You'll still need a general durable power of attorney, since the financial institution's form only governs accounts held at that institution, but using its form should prevent any problems with its acceptance.

• Create a revocable trust. Financial institutions seem to accept revocable trusts more readily than durable powers of attorney. Revocable trusts have the added advantage that you can appoint a co-trustee to serve with you, so that if you become incapacitated, the co-trustee can step in and act.

A Trust Provides Financial Protection

As we age, we all become increasingly susceptible to making financial mistakes and falling victim to scammers. Having a financial advocate in place can help avoid both. An important step is to name an agent under a durable power of attorney. However, such agents often don't step in until it's too late and the senior has already lost a significant amount of money.

A co-trustee on a revocable trust, however, is already named on the accounts in trust. Even if the co-trustee doesn't take an active role, he or she can monitor the accounts to make sure nothing untoward is occurring. Further, when it's necessary to step in, the co-trustee can do so immediately and seamlessly. In contrast, an agent under a durable power of attorney must present credentials to the financial institutions and go through the institution’s vetting procedure, delaying access to accounts and prohibiting the agent from protecting the accounts or being able to pay bills on behalf of the grantor.

Conclusion

For these reasons, revocable trusts often work better than durable powers of attorney. However, two caveats are in order: First, trusts only control the accounts actually held by them. So, for the trust to work, you must retitle your accounts into your trust.

Second, even if you have a revocable trust, you still need a durable power of attorney. This is for two reasons: First, you may not have transferred all your accounts into the trust and will need to give your agent control over those accounts and the ability to transfer them into the trust. Second, the trust only governs financial matters. Your agent under your durable power of attorney can also handle legal ones on your behalf, including signing your income tax returns.

Contact you attorney to find out if a revocable trust is right for you. 

Contact us

Elise Lampert, Esq,

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com