Estate Planning Blog Articles

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Unraveling the Mystery of Trusts: What Your Estate Planning Attorney Wishes You Knew

Trusts are invaluable tools in estate planning when it comes to securing your financial future and ensuring that your assets are handled according to your wishes. However, the intricacies of trusts and their tax implications can feel like deciphering a complex legal code. Fear not; we’re here to demystify trusts and shed light on what your estate planning attorney wishes you knew. This article outlines trust basics, types of trusts for estate planning and tax implications for 2023 and 2024.

Trust Fundamentals: Understanding the Basics

Trusts are based on three elements: the legal document for the grantor/creator who funds the trust or transfers their assets, the trustee named to administer or manage the trust according to the terms and beneficiaries to receive the assets once the grantor is gone.

Trusts are a go-to tool in estate planning. They serve different purposes for estate owners planning, from college funds to keeping a beloved home in the family for generations. Let’s walk through the fundamental types of trusts based on SmartAsset’s article, Trust Tax Rates and Exemptions for 2023 and 2024.”

A trust can be revocable or irrevocable and is often used to avoid probate. The trust creator could also be the trustee and beneficiary to have access to and income from the trust. Revocable trusts are flexible and allow easy changes or cancellations. Irrevocable trusts are not easily changed or revoked but are most often used to exclude assets from an estate.

Simple Trust

This straightforward trust model holds income-producing assets. All earned income, such as dividends, is distributed to beneficiaries without tapping into the principal. The one caveat with a simple trust is income distribution at least once a year or annually.

Complex Trust

Offering more flexibility, a complex trust may retain some income, distribute principal and allocate some funds to charitable causes. The trust’s principal assets include real estate, investment-generating dividends, cars, bank account funds and jewelry.

Grantor Trust

With the grantor maintaining control, this trust allows for more hands-on management of assets and tax responsibilities.

What the Tax Terrain: 2023 vs. 2024 Means for Estate Planning

Trusts are not immune to paying taxes. Working with an estate planning attorney can help you implement the trust that best fits your intentions. Irrevocable trusts can shield assets from taxation. However, IRS rules are changing that.

Here’s a glimpse into the tax brackets for both 2023 and 2024:

  • 2023 tax brackets range from 10% to 37% for ordinary income and from 0% to 20% for long-term capital gains.
  • 2024 slight adjustments see brackets for ordinary income ranging from 10% to 37% and for long-term capital gains from 0% to 20%.

Understanding these tax nuances can empower you to make informed decisions regarding your trust’s financial management.

Key Takeaways:

  • Trust Basics: Trusts consist of a grantor, trustee, and beneficiary.
  • Trusts and Taxes: Trust income is subject to taxation, with rates varying based on the type of income and the tax year.
  • Types of Trusts: The most basic types of trusts are revocable, irrevocable, simple, complex and grantor.
  • Trust Creation: A seasoned estate lawyer can provide invaluable guidance, ensuring that your trust aligns with your long-term financial goals.

Conclusion

Embarking on the estate planning and trust management journey can be daunting. However, you don’t have to navigate these waters alone. Seek the guidance of a trusted estate planning lawyer to chart a course that safeguards your assets and secures your financial legacy for generations to come.

Reference: SmartAsset (Jan. 5, 2024) “Trust Tax Rates and Exemptions for 2023 and 2024.”

Estate Planning Checklist for 2024: A Comprehensive Guide

Estate planning is more than writing a will; it’s a plan to manage and distribute assets to your dependents. It documents your healthcare preferences, so a loved one decides on medical care according to your wishes. The National Council on Aging (NCOA) Adviser’s article, Estate Planning Guide and Checklist for 2024,” offers a comprehensive overview of what to consider when planning your estate. This blog post distills the key points from the article and provides an actionable checklist for 2024.

Understanding Estate Planning

Estate planning organizes your affairs to fulfill your wishes after you pass away. It encompasses decisions about money, property, medical care and dependent care. The process includes creating essential documents like wills, trusts, powers of attorney and living wills. Estate planning provides peace of mind that your wishes are known and respected, benefiting your loved ones.

Key Documents in Estate Planning

  • Wills: A legal document that outlines how to distribute assets after your death.
  • Trusts: Contracts that allow a third party, or trustee, to hold property and other assets on behalf of a beneficiary.
  • Powers of Attorney: Legal documents that grant someone else the authority to make decisions on your behalf, in general or specific situations.
  • Living Wills: Documents that state your wishes regarding medical treatment when you cannot communicate your choices.

Key Takeaways

  • Common Estate Planning Documents: Wills, trusts, powers of attorney and living wills are fundamental to estate plans.
  • Everyone Needs a Will: Regardless of the size of your estate, a will is crucial to fulfill your wishes.
  • Update Your Estate Plan Regularly: Significant life events necessitate updating your estate plan to reflect your current wishes and circumstances.

Conclusion

Consider estate planning to be a critical process to protect your assets, provide for beneficiaries and have peace of mind for the future. Follow the NCOA Adviser’s comprehensive checklist to create your personalized estate plan.

Reference: NCOA Adviser (Aug 21, 2023): Estate Planning Guide and Checklist for 2024.

Update Your Estate Plan: Navigating Life’s Changes

When drafting a will and other estate planning documents, note that you probably should revisit them many times before they are needed.  Even if you have experienced no major life events recently, the people you previously chose to handle certain duties may no longer be your best option.  Thus, it is crucial to update your estate plan regularly. This article will guide you through revising your estate plan to reflect life’s inevitable changes.

Is it Important to Update Your Estate Plan?

Understanding Estate Plan Updates: An estate plan is more than a set of documents. It is a roadmap for your family’s future. However, as your life evolves, so should your estate plan. Regular reviews ensure that your estate plan aligns with your current circumstances and desires.

Life Changes and Your Estate Plan: Major life events, such as marriage, divorce, the birth of a new child, or even moving to a new state, necessitate reevaluating your estate plan. These events can significantly impact how you want your assets distributed and who you choose as beneficiaries or executors.

How Often to Review Your Estate Plan?

Regular Review is Key: Professionals often recommend reviewing your estate plan every three to five years. However, if you experience any major life change, it’s wise to revisit your plan sooner.

Changes in Law and Circumstances: Laws governing estates and taxes can change over time. Staying abreast of these changes and updating your plan accordingly is crucial to safeguarding your estate and beneficiaries.

What Triggers an Estate Plan Update?

Major Life Events: Significant life events like marriage, divorce, the birth of a new child or grandchild, or the death of a beneficiary are common reasons to update your estate plan. These events can drastically alter your estate planning needs.

Financial Changes: A significant change in assets, whether an increase or decrease, can impact your estate planning strategies. This might include changes in investments, real estate holdings, or business interests.

Updating Beneficiary Designations

Reviewing Beneficiary Choices: Beneficiary designations on life insurance policies, retirement plans and other financial accounts are crucial to your estate plan. Reviewing and updating these designations to reflect your current wishes is essential.

Considerations for New Family Members: Adding a new child or grandchild to your family is a joyous occasion that should prompt a review of your beneficiary designations. This ensures that they are included in your estate plan.

The Role of Trusts in Estate Planning

Understanding Living Trusts: A living trust can be vital to an estate plan, offering benefits like avoiding probate and maintaining privacy. Reviewing and possibly revising your trust to accommodate changes in your life is important.

Trustees and Successor Trustees: Choosing the right trustee and successor trustee is critical. Life changes might lead you to reconsider who you’ve appointed in these roles, ensuring that they align with your current circumstances.

Addressing Changes in State Laws

Moving to a New State: If you’ve moved to another state, updating your estate plan to comply with the new state’s laws is imperative. Estate and tax laws vary significantly from state to state.

State-Specific Considerations: Each state has unique provisions regarding powers of attorney, healthcare directives and other estate planning documents. A review with an estate planning attorney familiar with local laws is essential.

How to Update Your Estate Plan

Working with Professionals: Updating your estate plan can be complex. Working with an experienced estate planning attorney or financial planner ensures that your plan is comprehensive, up to date and reflects your wishes.

Review and Revise Documents: Revisiting your estate plan involves reviewing all documents, including wills, trusts, powers of attorney and healthcare directives. Revise your documents as soon as possible after a major life change.

Special Considerations for Business Owners

Business Succession Planning: For business owners, updating your estate plan might include reviewing your business succession plan. Ensuring a smooth business transition is a crucial part of estate planning.

Tax Planning and Asset Protection: Changes in your business situation might also impact your estate taxes and asset protection strategies. Regularly updating your estate plan can help minimize tax liabilities and protect assets.

Conclusion: The Importance of Keeping Your Estate Plan Current

Your estate plan is a dynamic document that should evolve as your life does. Regular updates ensure that your wishes are accurately reflected, and your loved ones are protected. Remember, an outdated estate plan can be as ineffective as having no plan.

If you’re ready to update your estate plan or have questions about how recent life changes might impact your estate, don’t hesitate to reach out. Schedule a consultation with us today to ensure that your estate plan meets your current needs and secures your legacy for the future.

What Should I Do to Get My Affairs in Order?

Estate planning is one of the most important tasks you can do for your family. It has many different steps. Using a checklist can help be sure your wishes are met and simplify the process for loved ones, according to an article from Forbes, “Estate Planning Checklist: Get Your Affairs In Order.” Every plan is different. However, there are several primary steps everyone needs to take to protect their future and secure their legacy.

Identifying What Needs to Happen to Protect Wealth: Asset protection is crucial to estate planning. One way to do this is to create a Medicaid protection plan. Nursing home care is expensive and not covered by Medicare or other medical insurance, except in very limited situations. Medicaid does cover custodial care in a nursing home. However, you need limited assets to qualify. A Medicaid plan helps ensure that you can access care while protecting wealth. Ask your estate planning attorney about a Medicaid Asset Protection Trust.

You may also need to protect assets against creditor claims, be sure an irresponsible heir doesn’t burn through any inheritance, or take steps to limit or avoid estate taxes. All of these can be accomplished with the help of an experienced estate planning attorney.

Consider Your Heirs and Their Needs: You may face unique circumstances impacting the people who inherit your wealth or your ability to provide for them. For instance, a direct inheritance could jeopardize their eligibility if your family includes a special needs individual who receives government benefits such as Supplemental Security Income (SSI) or Medicaid. You may need to have a Special Needs Trust (SNT) created.

Other issues to consider when creating your estate plan include leaving money or other assets to minor children not old enough to inherit or manage funds or leaving money to someone you don’t trust to manage it. By thinking about who you wish to provide for, you can make informed choices about the strategies and tools used to create your estate plan.

A Plan to Transfer Assets: Once you’ve clarified your heirs’ needs and any potential threats to your wealth, you’ll be better positioned to create an estate plan to facilitate the transfer of your property to the people or charities you want after death.

Your estate plan will likely include the following:

  • A last will and testament.
  • Pay-on-death accounts.
  • Jointly owned property.
  • Revocable Trusts.
  • Irrevocable Trusts.

Prepare for Incapacity: Preparing for possible incapacity should be a key part of your estate planning checklist. This includes:

  • Creating a durable power of attorney—to allow someone of your choosing to act on your behalf in managing assets and making decisions for you.
  • Naming a healthcare proxy—giving someone the power to make medical decisions for you.
  • Creating a living will—allowing you to convey your wishes for medical care regarding being kept alive by artificial means.

Address Other Issues: If you have minor children, your will is used to name a guardian. You may also mention your pets and designate a person to care for them and arrange financial support for their lifetime. You can also include instructions for your funeral, although the will may not be reviewed for a while after your passing. Talk with your estate planning attorney about how to best handle this in your jurisdiction.

Reference: Forbes (Dec. 25, 2023) “Estate Planning Checklist: Get Your Affairs In Order”

Which Is the Best to Way to Transfer Wealth, Trusts or Wills?

Even when everyone in the family grows up and gets along, settling an estate can bring back old sibling battles. It is even more likely if there are large sums of money or valuable property at stake. This makes having a well-prepared estate plan necessary and making those plans clear to family members long before they are needed.

A recent article from The Motley Fool, “Living Trust vs. Will: Which Is The Best Way to Pass Inheritance to Your Family?” explores how best to prepare for the future.

A will, also known as a last will and testament, instructs the executor of your estate how to distribute assets to heirs after your death.

A trust allows you to transfer assets at any time—including while you are still living—however you want, whenever you want. A trustee is the person named in the trust who is responsible for administering the trust. You can protect your children from mismanaging their inheritance with a good trustee and a properly prepared trust.

One of the biggest differences between a will and a trust is that the will takes effect only after you die.It also usually requires review and approval by a probate court. A trust is funded while you are living and does not go through the probate process.

Many people use both a will and a trust for their estate plans.

The will is best created by an experienced estate planning attorney who knows the estate and tax laws of your state. Wills are also used to name your executor and appoint a guardian for minor children. If your children are young, you want this in your will. Remember that when wills go through probate, they become part of the public record. As a result, anyone who wants to can read your will.

Trusts fall into two main categories—revocable and irrevocable. The difference is as it sounds; the grantor can change the revocable trust after it’s created. Irrevocable trusts can’t be changed once established, although some states permit what is known as “decanting”—pouring the contents from one trust into another. Your estate planning attorney will know if your state permits this.

One benefit of a trust is privacy. The trust doesn’t go through probate, so no one but the trustee and, depending on the trust, the beneficiaries, know what is in it. Assets in the trust are also distributed as directed in the trust, so they go directly to beneficiaries. There is no court involvement.

In addition, when assets are placed in the trust, they are owned by the trust and not the person who created the trust (the grantor).

Whether you are beginning to plan your estate or updating an existing plan, your estate planning attorney will help you understand your options, so you can create a plan best suited for you and your family.

Reference: The Motley Fool (July 7, 2023) “Living Trust vs. Will: Which Is The Best Way to Pass Inheritance to Your Family?”

Should You have a Pet Trust Created?

The infamous Leona Helmsley was the subject of as many headlines after her death as when she was alive, mainly because she left millions in trust for her dog, “Trouble.” However, you don’t have to have millions to want to protect your faithful pet’s future in the event of your passing, according to a recent article, “Pet Trusts Are Worth the ‘Trouble’” from Wealth Management.

Pets are legally considered the personal property of their owner, in the same way, one owns a house or a car. If no planning has been done, your heirs can inherit the ownership of your pet. However, they won’t be required to care for your pet. Instead, they can take the pet to a local shelter or, as often happens, abandon it. However, there are steps you can take to protect your animal companion.

Ask two friends or relatives if they would be willing to serve as emergency and/or long-term caretakers. Provide them with contact information for your veterinarian, discuss your wishes about what should happen to your pet and make sure they have each other’s contact information. Have a frank discussion of how expenses will be covered and stay in touch with them. Circumstances can change over time; if they move, have a health issue, or can’t manage the care of your pet, you’ll want to know about it.

Planning for pets has both legal and financial considerations. A pet trust may be created as part of a living trust or as a stand-alone trust. The named trustee has access to funds, and the language of the trust includes directions as to how funds should be used for your pet and how to distribute any remaining funds upon the death of your pet. Pet trusts are now valid in all states.

Note that a verbal agreement to care for your pet may not be legally enforceable. Therefore, you may prefer to use a pet trust. While you can put a provision in your will for the care of your pet, unlike a trust arrangement, there is no continuing obligation for the executor under a will to ensure the pet’s well-being once the estate administration is completed. Instead, you’ll have to count on the moral commitment of the caregiver to take care of your pet.

Planning for your protection shows why a pet trust is a good idea. For example, your Power of Attorney names an agent to act on your behalf in the event of your own physical or mental incapacity. It is possible to include specific funds in a Power of Attorney to maintain and support companion animals. However, this terminates on your death. A trust remains in effect for as long as the terms dictate, whether you are incapacitated or deceased.

Another option is to make arrangements with a humane society or animal rescue group to take possession and care of your pet. This may require making a specific donation to the group and having confidence that the organization will be operational as long as your pet lives.

Speak with your estate planning attorney about your state’s rules on pet trusts and plan for yourself and your beloved animal companion. You’ll then rest easy knowing you are both protected.

Reference: Wealth Management (April 14, 2023) “Pet Trusts Are Worth the ‘Trouble’”

Protecting Assets with a Trust vs. Limited Liability Company

While trusts and Limited Liability Companies (LLCs) are very different legal vehicles, they are both used by business owners to protect assets. Understanding their differences, strengths and weaknesses will help determine which is best for your situation, as explained by the article “Trust Vs. LLC 2023: What Is The Difference?” from Business Report.

A trust is a fiduciary agreement placing assets under the control of a third-party trustee to manage assets, so they may be managed and passed to beneficiaries. Trusts are commonly used when transferring family assets to avoid probate.

A family home could be placed in a trust to avoid estate taxes on the owner’s death, if the goal is to pass the home on to the children. The trustee manages the home as an asset until the transfer takes place.

There are several different types of trusts:

A revocable trust is controlled by the grantor, the person setting up the trust, as long as they are mentally competent. This flexibility allows the grantor to hold ownership interest, including real estate, in a separate vehicle without committing to the trust permanently.

The grantor cannot change an irrevocable trust, nor can the grantor be a trustee. Once the assets are placed in the irrevocable trust, the terms of the trust may not be changed, with extremely limited exceptions.

A testamentary trust is created after probate under the provisions of a last will and testament to protect business assets, rental property and other personal and business assets. Nevertheless, it only becomes active when the trust’s creator dies.

There are several roles in trusts. The grantor or settlor is the person who creates the trust. The trustee is the person who manages the assets in the trust and is in charge of any distribution. A successor trustee is a backup to the original trustee who manages assets, if the original trustee dies or becomes incapacitated. Finally, the beneficiaries are the people who receive assets when the terms of the trust are satisfied.

An LLC is a business entity commonly used for personal asset protection and business purposes. A multi-or single-member LLC could be created to own your home or business, to separate your personal property and business property, reduce potential legal liability and achieve a simplified management structure with liability protection.

The most significant advantage of a trust is avoiding the time-consuming process of probate, so beneficiaries may receive their inheritance faster. Assets in a trust may also prevent or reduce estate taxes. Trusts also keep your assets and filing documents private. Unlike a will, which becomes part of the public record and is available for anyone who asks, trust documents remain private.

LLCs and trusts are created on the state level. While LLCs are business entities designed for actively run businesses, trusts are essentially pass-through entities for inheritances and to pass dividends directly to beneficiaries while retaining control.

Your estate planning attorney will be able to judge whether you need a trust or an LLC. If you own a small business, it may already be an LLC. However, there are likely other asset protection vehicles your estate planning attorney can discuss with you.

Reference: Business Report (April 14, 2023) “Trust Vs. LLC 2023: What Is The Difference?”

What Is an Estate Planning Checkup?

The start of the year is the time to review and revisit your estate plan. Just like going to the doctor and dentist for regular exams, it’s basic self-care. A recent article from Kiplinger, “Need an Estate Planning Checkup? Now is the Perfect Time,” advises having an annual checkup with your estate planning attorney before anything goes wrong.

Estate planning is about people. It ensures that loved ones will be protected when we are no longer here. It names someone we trust to administer our estate and follow our wishes. It also ensures that no one is left out or no one is wrongfully included.

After the holiday season of family gatherings is a good time to review the family situation. Children have grown into adulthood. Perhaps they’ve married and had children. What we planned to leave for them as minors may be different now. If your family suffered a loss last year, it may be time to reallocate funds or change beneficiaries.

This is the time to evaluate who you have named as an executor or entrusted with powers of attorney. They may have had their own health issues, suffered memory loss, or undergone their own life changes. These should also be reviewed when creating a new will or trust.

Property values have probably changed over the years. Real estate acquired decades ago may have appreciated far more than anticipated. If the intent is to leave equal shares of assets to beneficiaries, the new value of the property needs to be considered.

Depending on your assets, you may need to engage an expert to provide current valuations for real property, artwork and any other high-value assets. If you expect to see significant changes in the coming year, from selling property or making other adjustments, don’t wait until next year to order a new valuation. The more current your numbers, the better your estate plan.

Tax laws have changed a great deal in recent years. An experienced estate planning attorney will allow you to maximize the estate that you leave. Estate tax and gift taxes have been adjusted for inflation, so you may be able to leave larger gifts to children and grandchildren.

Your estate plan checkup should include a review of recent tax law changes, and a look at the legal environment for the coming year. Discuss how aggressive you want to be with your estate planning. The same goes for life changes which may have legal consequences. All of this needs to be discussed in a candid manner with your estate planning attorney.

You may leave your meeting with a to-do list, or you may find your estate plan still works. Either way, you’ll feel better after your estate plan checkup.

Reference: Kiplinger (Jan. 30, 2023) “Need an Estate Planning Checkup? Now is the Perfect Time”

What Is Needed in Estate Plan Besides a Will?

Having a will is especially important if you have young children, says FedWeek’s recent article entitled “Estate Planning Doesn’t Stop with Making a Will.”  In your will, you can nominate guardians, who would raise your children in the event neither you nor your spouse is able to do so.

When designating a guardian, try to be practical.

Remember, your closest relatives—like your brother and his wife—may not necessarily be the best choice.

And keep in mind that you’re acting in the best interests of your children.

Be sure to obtain the consent of your guardians before nominating them in your will.

Also make sure there’s sufficient life insurance in place, so the guardians can comfortably afford to raise your children.

Your estate planning isn’t complete at this point. Here are some of the other components to consider:

  • Placing assets in trust will help your heirs avoid the hassle and expense of probate.
  • Power of Attorney. This lets a person you name act on your behalf. A “durable” power will remain in effect, even if you become incompetent.
  • Life insurance, retirement accounts and payable-on-death bank accounts will pass to the people you designate on beneficiary forms and won’t pass through probate.
  • Health care proxy. This authorizes a designated agent to make medical decisions for you, if you can’t make them yourself.
  • Living will. This document says whether you want life-sustaining efforts at life’s end.

Be sure to review all of these documents every few years to make certain they’re up to date and reflect your current wishes.

Reference: FedWeek (Dec. 28, 2022) “Estate Planning Doesn’t Stop with Making a Will”

Is Estate Planning and Writing Will the Same Thing?

An estate plan is a broader plan for your assets that may apply during your life as well as after your death. A will states where your assets will pass after you die, who will be the guardian of your minor children and other directions. A will is often part of an estate plan, but an estate plan covers much more.

Yahoo’s recent article entitled “How Is Estate Planning Different From Will Planning?” says that if you’re thinking about writing your will or creating an estate plan, it can be a good idea to speak with an experienced estate planning attorney.

A will is a legal document that describes the way you want your assets transferred after your death. It can also state your wishes when it comes to how your minor children will be cared after your death. Wills also nominate an executor who’s in charge of carrying out the actions in your will.

Without a will, your heirs may spend significant time, money and energy trying to determine how to divide up your assets through the probate court. When you die intestate, the succession laws where you reside determine how your property is divided.

Estate planning is much broader and more complex than writing a will. A will is a single tool, and an estate plan involves multiple tools, such as powers of attorney, advance directives and trusts.

Estate planning may include thinking through topics even beyond legal documents, like deciding who has the power to make healthcare decisions on your behalf while you’re alive, in addition to deciding how your assets will be distributed after your death.

Therefore, wills are part of an estate plan. However, an estate plan is more than just a will.

A will is just a first step when it comes to creating an estate plan. To leave your family in the best position after your death, create a comprehensive estate plan, so your assets can end up where you want them.

Reference: Yahoo (Oct. 20, 2022) “How Is Estate Planning Different From Will Planning?”