Estate Planning Blog Articles

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What Is Family Business Succession Planning?

Many family-owned businesses have had to scramble to maintain ownership, when owners or heirs were struck by COVID-19. Lacking a succession plan may have led to disastrous results, or at best, less than optimal corporate structures and large tax bills. This difficult lesson is a wake-up call, says the article “Succession Planning for the Family-Owned Business—Keepin’ it ‘All in the Family’” from Bloomberg Tax.

Another factor putting family-owned businesses at risk is divorce. Contemplating the best way to transfer ownership to the next generation requires a candid examination of family dynamics and acknowledgment of outsiders (i.e., in-laws) and the possibility of divorce.

Before documents can be created, a number of issues need to be discussed:

Transfer timing. When will the ownership of the business transfer to the next generation? There are some who use life-events as prompts: births, marriages and/or the death of the owners.

How will the transfer take place? Corporate structures and estate planning tools provide many options limited only by the tax liabilities and wishes of the family. Be wary, since each decision for the structure may have unintended consequences. Short and long-term strategic planning is needed.

To whom will the business be transferred? Who will receive an ownership interest and what will be the rights of ownership? Will there be different levels of ownership, and will those levels depend upon the level of activity in the business? Will percentages be used, or shares, or another form?

In drafting a succession plan, it is wise to assume that the future owners will either marry or divorce—perhaps multiple times. The succession plan should address these issues to prevent an ex-spouse from becoming a shareholder, whose interest in the business needs to be bought out.

The operating agreement/partnership agreement should require all future owners to enter into a prenuptial agreement before marriage specifically excluding their interest in the family business from being distributed, valued, or deemed marital property subject to distribution, if there is a divorce.

An owner may even exact a penalty for a subsequent owner who fails to enter into a prenup prior to a marriage. The same corporate document should specifically bar an owner’s spouse from receiving an ownership interest under any circumstance.

A prenup is intended to remove the future value of the owner’s interest from the marital asset pool. This typically requires the owner to buy-out the future spouse’s legal claim to future value. This could be a costly issue, since the value of the future ownership interest cannot be predicted at the time of the marriage.

Many different strategies can be used to develop a succession plan that ideally works alongside the business owner’s estate plan. These are used to ensure that the business remains in the family and the family interests are protected.

Reference: Bloomberg Tax (April 5,2021) “Succession Planning for the Family-Owned Business—Keepin’ it ‘All in the Family’”

Should I Discuss Estate Planning with My Children?

US News & World Report’s recent article entitled “Discuss Your Estate Plan With Your Children” says that staying up-to-date with your estate plan and sharing your plans with your children could make a big impact on your legacy and what you’ll pay in estate taxes. Let’s look at why you should consider talking to your children about estate planning.

People frequently create an estate plan and name their child as the trustee or executor. However, they fail to discuss the role and what’s involved with them. Ask your kids if they’re comfortable acting as the executor, trustee, or power of attorney. Review what each of the roles involves and explain the responsibilities. The estate documents state some critical responsibilities but don’t provide all the details. Having your children involved in the process and getting their buy-in will be a big benefit in the future.

Share information about valuables stored in a fireproof safe or add their name to the safety deposit box. Tell them about your accounts at financial institutions and the titling of the various accounts, so that these accounts aren’t forgotten, and bills get paid when you’re not around.

Parents can get children involved with a meeting with their estate planning attorney to review the estate plan and pertinent duties of each child. If they have questions, an experienced estate planning attorney can answer them in the context of the overall estate plan.

If children are minors, invite the successor trustee to also be part of the meeting.

Explain what you own, what type of accounts you have and how they’re treated from a tax perspective.

Discussing your estate plan with your children provides a valuable opportunity to connect with your loved ones, even after you are gone. An individual’s attitudes about money says much about his or her values.

Sharing with your children what your money means to you, and why you are speaking with them about it, will help guide them in honoring your memory.

There are many personal reasons to discuss your estate plans with your children. While it’s a simple step, it’s not easy to have this conversation. However, the pandemic emphasized the need to not procrastinate when it comes to estate planning. It’s also provided an opportunity to discuss these estate plans with your children.

Reference: US News & World Report (Feb. 17, 2021) “Discuss Your Estate Plan With Your Children”

When do Medicaid Recipients have to Cash Stimulus Checks before Government Collects?

Medicaid enrollees are generally allowed to have only a limited amount of assets, outside of their primary residence, car and other essentials.

For singles, it’s typically about $2,000. Those who exceed that threshold could be deemed ineligible for the health insurance program for low-income Americans.

CNN’s recent article entitled “Nursing home residents have a little more time to spend stimulus checks before losing Medicaid” notes that the $1,200 stimulus payments that many people received last spring didn’t count as income under Medicaid rules.

As a result, nursing home residents didn’t have to give the money over to the facilities where they live and could save it for their own use.

However, the funds are considered an asset after one year. That is a deadline that is rapidly drawing near for the first of the three relief payments Congress has authorized since the pandemic began.

Even so, another coronavirus provision that lawmakers approved last March prevents states from disenrolling residents from Medicaid during the public health emergency, which is currently set to end next month. However, it’s expected to be extended again.

This means that Medicaid recipients, including nursing home residents, don’t have to worry about spending the funds until the pandemic is over.

The same is true for the $600 checks many received from the December relief bill and the $1,400 payment that is being distributed from President Biden’s $1.9 trillion recovery package, but the time on those funds started more recently.

Just the same, people shouldn’t wait until the last minute to spend their stimulus funds. They can buy things they need and can also give the money to family or friends or make a charitable contribution. They just need to prove that the gift isn’t part of a strategy to give away assets to qualify for Medicaid.

“People should just be conscious of Medicaid asset limits and deal with it without trying to wait until the last month of the public health emergency,” said Eric Carlson, a directing attorney with Justice in Aging, a non-profit legal advocacy group. “There’s no particular benefit to cutting it close.”

Reference: CNN (March 30, 2021) “Nursing home residents have a little more time to spend stimulus checks before losing Medicaid”

Is the Pandemic Making Young People Think About Estate Planning?

A 2021 study from caring.com shows the coronavirus pandemic’s impact on estate planning and the change in viewpoints among specific groups. The survey generated responses from 2,500 Americans and is a continuing effort to create greater awareness and understanding about the estate planning process.

Insurance News Net’s recent article entitled “Study: Young Adults More Likely To Do Estate Planning Due To COVID-19” reports that, based on results from last year, the number of young adults with a will increased by 63%.

For the first time, adults under 35 are more likely to have a will than those ages 35-54. About 50% of all younger adults surveyed also said that COVID-19 prompted their interest in estate planning. Despite the growing interest among younger adults, most Americans still do not have a will. They fail to take any action, except for speaking to loved ones about estate planning. About ⅔ or 67% overall still don’t have a will.

Most of those who responded to the survey said that procrastination was the main reason for not having a will. However, the number of Americans who expressed a lack of understanding increased by 90% since 2017.

The survey also shows a significant increase among Hispanic and Black Americans with a will. The number of Hispanics with a will increased by 12% and by 6.2% among Blacks, since the 2020 report.

“In comparison to previous years, the 2021 study indicates that Americans see a greater need for estate planning due to the pandemic,” says caring.com CEO, Jim Rosenthal. “Unfortunately, many people haven’t begun the estate planning process – even with the increased availability of remote and online services.”

Income level is also a significant factor among people who do in estate planning. The survey’s respondents making under $40,000 a year were less likely to have a will.

The percentage of Americans with a will and annual income of $40,000 to $80,000 increased 6% to 39% in one year.

Caring.com has conducted its Wills and Estate Planning Study since 2015 to raise awareness of the importance of estate planning, especially among people who may not feel they have the money or know-how needed to create a will or living trust.

Reference: Insurance News Net (Feb. 23, 2021) “Study: Young Adults More Likely To Do Estate Planning Due To COVID-19”

What Does ‘Per Stirpes’ in a Will Mean?

Let’s say you had six brothers and sisters. All of your siblings were still living at the time your father made his will. However, three of your brothers died before your father passed away.

In that case, would the children of the deceased siblings be entitled to their fathers’ shares of their grandfather’s estate?

What if that wasn’t what the father intended when he wrote the will. Instead, the money was to be divided equally between his remaining living children. Who’s right?

Nj.com’s recent article entitled “My father died. Who will get the share meant for a dead beneficiary?” says that it really depends on how the will was written by the deceased, who’s also known as the testator.

A will may state, “I give, devise, and bequeath my residuary estate to those of my children who survive me, in equal shares, and the descendants of a deceased child of mine, to take their parent’s share per stirpes.”

Per stirpes in a will means that the share of a deceased child will pass to the children of that deceased child in equal shares, if any. However, if nothing is stated in the will, then every state has law that interprets a lapse of a will provision. These are known as “anti-lapse” statutes.

For example, the Kansas anti-lapse statute (K.S.A. 59-615), is operative only when:

  • The testator bequeaths or devises property to a beneficiary who’s a member of the class designated by the statute
  • The specified beneficiary predeceases the testator and leaves issue who survive the testator  and
  • The testator doesn’t revoke or change his or her will as to the predeceased beneficiary.

If you are a resident of Arizona, that state’s anti-lapse statute applies, if a beneficiary under your will predeceases you. The anti-lapse statute would apply if the predeceasing beneficiary were your grandparent, a descendant of your grandparent, or your stepchild, who have at least one child who survives you. Therefore, if the anti-lapse statute were to apply, the child who survives you would effectively take your beneficiary’s place, and inherit the gift instead of the beneficiary.

Talk to an experienced estate planning attorney if you have questions about wills and per stirpes designations.

Reference: nj.com (March 25, 2021) “My father died. Who will get the share meant for a dead beneficiary?”

Does Bacon Cause Dementia?

A recent study suggests there is a connection between eating 25 grams of processed meat per day and a 44% higher risk of dementia. That’s about a single rasher or strip of bacon.

Medical News Today’s recent article entitled “Dementia: 25 grams of processed meat per day may raise relative risk” reports that this research also found a link between eating unprocessed red meats, like beef, pork, and veal, and reduced risks of all-cause dementia.

A gene variant known as the APOE ε4 allele, which increases a person’s risk of dementia by 3–6 times, didn’t appear to affect the relationship between diet and the condition. Those with dementia have difficulties with their memory, attention, thinking and reasoning that interfere with everyday life. These cognitive difficulties aren’t part of the typical aging process.

According to the Centers for Disease Control and Prevention (CDC), in 2014, about five million adults in the U.S. had dementia, but the CDC estimates this number may be close to 14 million by 2060. And the World Health Organization (WHO) reported that there are around 50 million dementia cases globally, with around 10 million new cases being diagnosed annually.

This new study from scientists at the University of Leeds in the U.K. suggests there is a relationship between eating processed meat in particular and an increased risk of developing dementia. This includes sausage, bacon, salami and corned beef.

However, the research also showed that red meat may have a protective effect against dementia.

The scientists analyzed data from the UK Biobank, a database of genetic and health information from around half a million volunteers in the U.K. aged 40–69 years. The participants completed a dietary questionnaire and completed 24-hour dietary assessments. This let the researchers estimate the total amount of meat each participant regularly consumed and how much of each type they ate.

The database also let them identify which participants had the gene variant APOE ε4 allele, which is known to increase a person’s risk of dementia. The researchers then used hospital and mortality records to identify subsequent cases of dementia from all causes, Alzheimer’s disease and vascular dementia during the follow-up period of approximately eight years.

Of the 493,888 participants, 2,896 had all-cause dementia. These included 1,006 cases of Alzheimer’s disease and 490 cases of vascular dementia.

To estimate the role of meat consumption, the researchers had to account for a wide range of other factors that are known to affect a person’s likelihood of having dementia, such as age, gender, ethnicity, education and socioeconomic status. They also considered lifestyle factors, such as smoking, physical activity and consumption of fruits and vegetables, fish, tea, coffee and alcohol. After the adjustments, the scientists at the University of Leeds found that each additional 25g portion of processed meat eaten per day was associated with a 44% increase in the risk of dementia from all causes. This intake was also associated with a 52% increased risk of Alzheimer’s disease.

However, each additional 50g portion of unprocessed meat eaten per day was linked to a 19% reduction in the risk of all-cause dementia and a 30% reduced risk of Alzheimer’s disease. The results for unprocessed poultry and total meat consumption were not statistically significant, the scientists said.

“Worldwide, the prevalence of dementia is increasing, and diet as a modifiable factor could play a role,” says Huifeng Zhang, a Ph.D. student at the School of Food Science and Nutrition at the University of Leeds, who was the lead researcher of the new study.

“Our research adds to the growing body of evidence linking processed meat consumption to increased risk of a range of nontransmissible diseases,” she added.

Reference: Medical News Today (March 29, 2021) “Dementia: 25 grams of processed meat per day may raise relative risk”

Court Victory for Adults Caring for Parents at Home

A New Jersey Appellate Division recently reaffirmed the state’s regulation that allows older adults to transfer their homes to adult caregiver children without Medicaid penalty, reports an article titled “Major Victory for Adults Who Provide Home Care for Parents” from The National Law Review. The regulation permits the home to be transferred with no Medicaid penalty, when the adult child has provided care to the parent for a period of two years. This allows the parents to remain at home under the care of their children, delaying the need to enter a long-term care facility.

New Jersey Medicaid has tried to narrow this rule for many years, claiming that the regulation only applies to caregivers who did not work outside of the home. This decision, along with other cases, recognizes that caregivers qualify if they meet the requirements of the regulation, regardless of whether they work outside of the home.

The court held that the language of the regulations requires only that:

  • The adult child must live with the parent for two years, prior to the parent moving into a nursing facility.
  • The child provided special care that allowed the parent to live at home when the parent would otherwise need to move out of their own home and into a nursing care facility.
  • The care provided by the adult child was more than personal support activities and was essential for the health and safety of the parent.

In the past, qualifying to transfer a home to an adult caregiver child was met by a huge obstacle: the caregiver was required to either provide all care to the parents or pay for any care from their own pockets. This argument has now been firmly rejected in the decision A.M. v. Monmouth County Board of Social Services.

The court held that there was nothing in the regulation requiring the child to be the only provider of care, and the question of who paid for additional care was completely irrelevant legally.

It is now clear that as long as the child personally provides essential care without which the parent would need to live in a nursing facility, then the fact that additional caregivers may be needed does not preclude the ability to transfer the home to the adult child.

The decision is a huge shift, and one that elder law estate planning attorneys have fought over for years, as there have been increasingly stricter interpretation of the rule by New Jersey Medicaid.

While Medicaid is a federal program, each state has the legal right to set its own eligibility requirements. This New Jersey Appellate Court decision is expected to have an influence over other states’ decisions in similar circumstances. Since every state is different, adult children should speak with an elder law estate planning attorney about how the law of their parent’s state of residence would apply if they were facing this situation.

Reference: The National Law Review (March 22, 2021) “Major Victory for Adults Who Provide Home Care for Parents”

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Why Is Family of a Texas Governor Fighting over His Estate?

Dolph Briscoe Jr. was a Texas rancher and businessman and was the 41st Governor of Texas between 1973 and 1979. His oldest child, Janey Briscoe Marmion, established the foundation with her father to honor her only child, Kate, who died in 2008 at the age of 20.

The Uvalde Leader-News’ recent article entitled “Briscoe family lawsuit targets Marmion’s will” reports that Marmion’s original will filed in 2011 directed her assets to be placed in a revocable trust.

The foundation was to have received income from half of her wealth for 22 years. The rest was directed to the children of her brother Chip Briscoe and those of her sister Cele Carpenter of Dallas.

However, a second will executed by Marmion in 2014 and admitted to probate in the County Court in December 2018— a month and a day after her death—calls for three trusts, including two child’s trusts created by her father and a generation-skipping trust (GST). A GST is a type of trust agreement in which the contributed assets are transferred to the grantor’s grandchildren, “skipping” the next generation (the grantor’s children).

Marmion created the Janey Marmion Briscoe GST Trust, dated November 1, 2012, in which she gave a third of her assets to the foundation and the other two-thirds to be divided equally between Chip Briscoe’s sons.

Carpenter’s three children filed suit in Dallas and in Uvalde County last year challenging the validity of the 2014 will and contesting the probate.

Their complaint alleges that Marmion intended to include the three as beneficiaries, in addition to Chip’s two sons, and that the situation creates a disproportionate inheritance in favor of the Briscoe men.

The amount in question is more than $500 million, since the former Texas governor’s estate was estimated by Forbes to be worth as much as $1.3 billion in 2015. Governor Briscoe died in Uvalde in 2010 at the age of 87.

Reference: Uvalde (TX) Leader-News (March 11, 2021) “Briscoe family lawsuit targets Marmion’s will”

What Is Plan for Social Security Recipients, Who Haven’t Received Stimulus Money?

Democratic leaders on the House Ways and Means Committee are calling for the IRS and Social Security Administration to step up their efforts to get the funds to recipients of Social Security who have not received their stimulus money.

Congressional Democrats, including Representative Richard Neal of Massachusetts, who serves as chair of the House Ways and Means Committee, sent a letter to the IRS and Social Security Administration on Monday calling for “immediate attention to this urgent matter.”

Other committee leaders who signed the letter include Representatives John Larson, D-Conn.; Bill Pascrell Jr., D-N.J.; and Danny Davis, D-Ill.

CNBC’s recent article “Lawmakers call for prompt payment of $1,400 stimulus checks to Social Security beneficiaries” reports that delays have been reported in sending $1,400 stimulus checks to Social Security, Supplemental Security Income, Railroad Retirement Board and Veterans Affairs beneficiaries who don’t typically file tax returns.

“The American Rescue Plan was intended to provide much-needed economic stimulus and assistance to people across the country — immediately — and we are counting on your agencies to ensure that beneficiaries are not left behind in the seamless delivery of those payments,” the lawmakers wrote.

“Some of our most vulnerable seniors and persons with disabilities, including veterans who served our country with honor, are unable to pay for basic necessities while they wait for their overdue payments,” the lawmakers said.

The IRS has not given a timeline for those payments, according to the letter.

To date, the IRS has sent out about 90 million of the third stimulus checks, which amount to up to $1,400 per person, provided people meet certain income thresholds and other qualifications.

A second batch of those $1,400 checks is due to arrive via direct deposit as soon as Wednesday, while more payments have also been sent by mail as a paper check or prepaid debit card.

Reference: CNBC (March 23, 2021) “Lawmakers call for prompt payment of $1,400 stimulus checks to Social Security beneficiaries”