Paul O. Dillon, Attorney at Law

Prepare for an Uncertain Taxing Future with Trusts

The potential sunsetting of current high gift and estate tax lifetime exemptions and proposed tax plans could dramatically reduce future estate tax exemptions. With these possibilities looming soon, taxpayers are turning to trusts, including Spousal Lifetime Access Trusts (SLATs), to make the most of the current tax exemptions. An article appearing in The National Law Review, “2025: SLATs on the Brink of a Rapid Rise in Popularity?” explains how these and other trusts may be used as an effective estate planning tool.

While SLATs are emerging as a highly popular strategy, other trusts to consider include:

• Grantor Retained Annuity Trust (GRAT), where asset appreciation is transferred to heirs with minimal gift tax. The grantor retains an annuity for a set period, and the remaining assets are passed on to beneficiaries.
• The Irrevocable Life Insurance Trust (ILIT) excludes life insurance proceeds from the taxable estate. The Trust owns and controls the life insurance policy, so the proceeds are not included in the estate.
• Charitable Remainder Trust (CRT) provides an income stream to both the grantor and the charity. At the end of the trust, the remainder goes to the charity. Note that this is an irrevocable trust.
• A Qualified Personal Residence Trust (QPRT) transfers a primary or vacation home out of the estate. The grantor retains the right to live in the home for a set period. After they die, the home passes to heirs, freezing its value and reducing the estate tax.

SLATs work by having one spouse—the donor spouse—transfer assets into an irrevocable trust for the benefit of the other spouse, known as the beneficiary spouse. The transfer uses the donor spouse’s lifetime exclusion amount, which removes the assets from the taxable estate, including any future appreciation. The beneficiary has access to the assets, and the donor spouse can use the assets via the beneficiary.

There are some pitfalls to be considered. If the couple divorces, the donor could lose access to the assets in the SLAT. While there is a way of preparing for this (identifying the beneficiary as “the person to whom the settlor is currently married” rather than naming a specific person), divorce proceedings could put the SLAT at risk. The donor spouse could also lose access, if the beneficiary spouse predeceases them.

A SLAT must be prepared by an experienced estate planning attorney. If the donor spouse retains certain powers over the trust, the SLAT's assets may be included in the donor spouse’s estate. Contributions are considered “completed gifts,” so if the gift exceeds the annual gift tax exclusion, it will reduce the donor spouse’s lifetime exemption.

If the SLAT is not drafted properly, it could result in the trusts being included in each other’s estate because of the Reciprocal Trust Doctrine. This allows a court to “uncross” the trust, usually at the IRS's request. The rule prohibits tax avoidance through interrelated trusts that place spouses in the same economic position as if they’d each created trusts naming themselves as beneficiaries.

Ask your estate planning attorney if there’s any reason not to take advantage of the current high tax exemptions. If there’s no downside, going forward before it’s too late is your best option.

Reference: The National Law Review (Aug. 25, 2024) “2025: SLATs on the Brink of a Rapid Rise in Popularity?”

Can I Bequeath the Family Home to My Children?

You may believe giving your home to your adult children is a generous move leading to happy memories. However, this isn’t always true. One story recounted in a recent article, “Inheriting a Home With Your Siblings? Here’s All That Can Go Wrong,” from Realtor.com, is an example of how badly this could go.

Three siblings were left their parent’s house when the second parent died. One sibling wanted to keep the house, while a second brother and a sister wanted to sell it and split the money. They had the property appraised, and the sibling who wanted the house bought out his sibling’s shares, paying them both a third of the house's current value. One brother blew his inheritance on a sports car, exotic vacations and an expensive nightlife. The sister bought a boat.

Fast-forward a few years, and real estate values skyrocketed. The brother who bought the house decided to sell it before moving away to be closer to his wife’s family. The house had tripled in value. His siblings now think he should share the profits he made, even though his siblings didn’t want the house. The rest of the family sides with the siblings, making matters harder for the brother.

Estate planning attorneys were asked for their opinions on the matter, and all agreed. He made the decision to buy the property when they didn’t want it, so he owned it free and clear. They aren’t entitled to share the profits. They certainly wouldn’t have shared the losses if the property value had gone down!

Other families fight about the contents of the house. This is why everyone needs an estate plan with a last will and testament clearly detailing how they want their estate, including personal possessions, to be distributed. Hoping the children “work things out” doesn’t end well for most families.

Some families like to have an estate sale company come in and sell the contents of the house and split the profits, while others flip a coin to see who gets what.

Another issue about personal possessions is items disappearing. Sometimes, aging parents decide to declutter without telling anyone. In other cases, a child or family member decides to take something without telling anyone.

How can you prevent your children from fighting over the house or its contents? Have a will made and discuss how to handle your unique situation with an estate planning attorney. Make sure the will includes clear directions as to whether or not the house should be sold or how the shares should be distributed. You could also add a provision stating that if one child buys the shares at fair market value, the transaction is final and the other siblings may not pursue any future gains after the sale.

Parents should never leave property to one child and expect the child to share the proceeds with any other siblings or family members. If property is left to one sibling, they have no legal requirement to share any portion of their inheritance. This happens more often than you’d think despite it being an easy situation to avoid.

As the example above illustrates, even buying out siblings’ shares can lead to problems. If the sibling buying out others' shares is also the executor or the trustee, the siblings and parents would be wise to meet with the estate planning attorney to clarify how this asset will be distributed and what their role will be. Executors who are also beneficiaries can find themselves at the centers of estate battles.

Families may think they don’t need to put things in writing. After all, they’re family. However, when it comes to inheritances, having everything in writing, property prepared by an experienced estate planning attorney and clearly understood by all, is the best you can do to prevent any estate battles among your loved ones.

Reference: Realtor.com (Sep. 14, 2024) “Inheriting a Home With Your Siblings? Here’s All That Can Go Wrong”

How Does Estate Planning Protect Couples with Big Age Gaps?

A decade-sized age gap doesn’t seem like much when you are 38 and he’s 57. However, as you get older, the age difference can lead to challenges, including those concerning estate planning and long-term care. There needs to be enough resources for the surviving spouse if the older spouse passes first, which isn’t always the case. According to a recent article, “Estate Planning for May—December Couples,” from Next Avenue, finances, wills and estate plans must consider the age difference.

The U.S. Census Bureau reports the average age gap in traditional marriages as 3.69 years. However, in some Western countries, about 8% of all traditional couples have an age gap of 10 years or more.

One couple had a nearly 20-year age gap when they sat down with an advisor. The husband had three grown children from a prior marriage and didn’t want to put his second wife’s financial security in jeopardy if he should die first. His will needed to be drafted so she would inherit the home outright, while also providing his three children with an equal share of remaining assets after a certain period.

Naming someone who is not also a beneficiary to be the executor of your estate may be especially helpful here. Someone who isn’t going to benefit from an inheritance may be more objective about how assets are distributed. During their years of practice with families of all types, experienced estate planning attorneys see all kinds of family situations, including couples in subsequent marriages with large age gaps. They can help navigate the best way for wealth to be distributed to protect both the younger spouse and any children from prior marriages.

A few essential tasks:

Review and update beneficiary designations on accounts like life insurance, retirement accounts and other assets.

Be clear in conversations about your intentions for personal property and document your wishes in your will. Family disputes over heirlooms, regardless of their value, can happen if you haven’t put those wishes in writing.

If the older spouse dies and the young one remarries, it’s possible the new spouse could inherit the older spouse’s assets unless good estate planning is done. The older spouse may consider leaving assets in a marital trust designed to benefit the surviving spouse. This way, the surviving spouse has access to funds as needed. However, upon the surviving spouse’s death, the assets go to the older spouse’s other beneficiaries.

Couples should always have a Power of Attorney, Health Care Power of Attorney and Living Wills created when working with an estate planning attorney. The medical power of attorney allows another person to make medical decisions in case of incapacity. A Living Will outlines what treatments you do or don’t want if you are terminally ill or injured. These documents vary by state and, just like your will, should be personalized to reflect your wishes.

Reference: Next Avenue (Sep. 5, 2024) “Estate Planning for May—December Couples”

Estate Planning Success Supported by Speaking with Heirs

Because we are reluctant to discuss wills, many families only learn what their loved ones want to happen with their property after funeral services, and grief has made everyone fragile. A recent article from Success, “Will Power: Why Transparency in Estate Planning Matters,” explains how family members can share their wishes with loved ones during difficult times.

People not used to dealing with large sums of money may not have plans for tax-efficient wealth transfer. This includes parents who have devoted their lives to saving for retirement and need a plan both to use their accumulated wealth and pass it on to the next generation. Without an estate plan, inheritances could be diminished or lost entirely to taxes.

For beneficiaries, knowing they may be receiving an inheritance should lead to advance planning. Inherited IRAs, for instance, need to be inherited and retitled correctly, or the entire amount could be subject to taxes. Anyone expecting to inherit assets should speak with an estate planning attorney to learn what steps they need to take beforehand.

Discussions about inheritances and last wishes are opportunities for families to connect on a deeper level than planning a Thanksgiving menu. Providing ample time to have these discussions can also allow families to work through any issues before it’s too late.

These are not easy conversations. They may not be possible for every family. Another option is to create a personal message via video or write a letter explaining your intentions. Whichever way you decide to communicate your wishes, it doesn’t need to be an overly long message. A simple explanation of what you’ve decided and why may be enough.

When you create an estate plan, start by inventorying all your assets, checking how they are titled and finding out which assets have beneficiary designations. Assets like life insurance policies, investment accounts and some bank accounts with beneficiary designations pass directly to beneficiaries and are not included in your probate estate. Check on beneficiary designations to make sure you’re not leaving a surprise present to a college pal you haven’t spoken to in three decades—unless you want them to receive a surprise.

Be especially careful if you decide not to give your heirs equal distributions. This can often lead to litigation against the estate, assets lost to legal fees and damaged family relationships. Your estate planning attorney will have strategies for how you might distribute your assets to be fair to all of your loved ones.

Surprises are good for birthday parties but bad for estate planning. Revealing a hidden secret in a will after you have passed will shadow your legacy.

If you haven’t updated your will in more than three or four years, now is a good time to tackle this task. Include your new, up to date will in a folder with other documents, including Power of Attorney, Living Will, Healthcare Proxy and other estate planning documents. Ensure that your executor knows where the folder is, so it can be accessed in case you become incapacitated or pass.

Having an estate plan created by an experienced estate planning attorney, who will be able to guide you through the process, is a gift to the family. You’ll enjoy the peace of mind of knowing you did the right thing.

Reference: Success (Sep. 12, 2024) “Will Power: Why Transparency in Estate Planning Matters”

Estate Planning for the Family Vacation Home

Many families enjoy owning a vacation home, where generations gather, and memories are made. The second home is part of the family’s legacy, and the hope is that it will continue over many years. Making this happen is the subject of a recent article, “Legal East: Legacy planning for your shore house,” from Daily Local News.

Let’s say the house is to be left to more than one heir. How will the expenses for maintenance be paid? How will the heirs devise a schedule for all owners to use the house? What would happen if the house needs major work and only one owner has the money to pay for it?

Discussing how to structure the ownership of the home with an experienced estate planning attorney is important, as there are many options. The home could be owned in a trust, as a business entity like an LLC, or owned outright by one or more family members. Determining which type of ownership to use becomes important as the owner's age.

If one of the vacation homeowners is elderly and needs long-term care, the home’s ownership may become problematic if they need to apply for Medicaid. Most people don’t think about this until they are faced with the problem. The vacation property will be a countable resource unless ownership is structured correctly before applying for Medicaid. Transferring ownership to a Medicaid Asset Protection Trust may make sense.

Another question is raised when considering applying for Medicaid: is there a primary residence, and is it exempt from being considered a countable asset? Most primary homes are, but this should also be explored with an estate planning attorney.

A Medicaid Asset Protection Trust is an irrevocable trust, but in this case, it’s created with certain features to allow someone to qualify for long-term benefits from Medicaid. A grantor establishes the trust, so the trust itself owns the home (or other assets placed in the trust), and the trustee manages the assets in the trust. The person creating the trust determines the trustee and successor trustees. In most cases, the trust terminates at the grantor's death, and the trust's assets are distributed to beneficiaries.

The MAPT is still subject to Medicaid’s five-year look-back. If the vacation home is transferred into the trust and an application is made to Medicaid within five years, the person won’t be eligible.

An elder law attorney can help you plan to protect your assets from the cost of long-term care through Medicaid, insurance, and trusts. Many strategies exist, but they all take some time to create and execute and need to be crafted for your unique situation.

Reference: Daily Local News (Sep. 4, 2024) “Legal East: Legacy planning for your shore house”

How Divorce, Death and Timing Impacted the Results of Shannen Doherty’s Estate Plan

While there are some things we cannot control, having an estate plan in place and getting divorce documents finalized are two things we should do our level best to manage. The aptly titled article, “Shannen Doherty’s Estate: When Timing is Everything” from Wealth Management, explains how preparation matters.

Known for her roles in Beverly Hills 90210 and Charmed, Shannen Doherty passed away after battling breast cancer. She filed for an uncontested divorce from her husband, Kurt Iswarienko, one day before she died. He signed the agreement the very next day, making the divorce final.

The timing meant that Doherty’s assets were distributed according to the terms of the divorce settlement and her last will and testament. A finalized divorce meant Doherty regained control over assets, so they could be passed to beneficiaries according to the directions of her estate plan.

If her now ex-husband hadn’t signed the divorce papers, the outcome could have been very different.

When someone dies during an active divorce proceeding, the process of the divorce either stops or is changed. If the divorcing couple didn’t have an estate plan, the decedent’s estate would be treated as if there was no will, known as being “intestate.” In a community property state, the surviving spouse would have a claim on the estate.

In Doherty’s case, any residuals from her work earned while they were married would be considered community property. Litigation would be likely, as the two were engaged in a battle in the weeks before she died. Doherty was seeking temporary spousal support as the residual income from Charmed (via streaming services) would no longer be available after June 30, 2024, due to it being pulled from streaming. She accused Iswarienko of earning millions and withholding income information.

Had he not signed the divorce papers when he did, he could have had a claim for the estate, which included a $6 million home in Malibu.

In California, if a spouse dies in the middle of divorce proceedings, jurisdiction moves from family court to probate court. People in the process of divorcing should ask their estate planning attorney what their state’s laws are regarding this issue to be sure they protect their estate, regardless of their age and stage of life.

Preparation for the unexpected is another reason people are encouraged to have estate plans in place. Establishing trusts, having a last will and testament, Power of Attorney, Healthcare Proxy, Living Will and other documents are all needed to ensure that your wishes will be followed and your loved ones cared for.

Reference: Wealth Management (Aug. 13, 2024) “Shannen Doherty’s Estate: When Timing is Everything”

Changes to Estate Plans After the Death of a Spouse

The passing of a spouse is one of life’s most stressful events, topping the list of most mental health checklists for anxiety-creating experiences. Preparing for the inevitable passing of both members of a couple can provide some comfort, as it will eliminate some tasks during a difficult time. It’s important to build in answers to “what if’s” into an estate plan, advises a recent article from The Penny Hoarder, “How to Change Your Estate Plan After Your Spouse Dies.”

It’s easy to procrastinate estate planning. However, even if you have a will, as 1.3 million Americans do, you’re not finished. Regular updates of your estate plan to reflect new circumstances are necessary, especially upon the death of a spouse. It’s complicated to do this when grief is fresh. However, it becomes manageable by taking this task one step at a time.

Married couples typically create their estate plans together, with the understanding of one spouse outliving the other. Being realistic about who is likely to die first sounds a bit morbid. However, it should be taken into consideration. Males tend to have shorter lifespans, while people who live with chronic conditions, like diabetes, heart disease, or cancer, should keep the impact of their conditions in mind when making plans for the distant or not-so-distant future.

Powers of Attorney should be updated every few years. This is the person chosen to handle financial and legal affairs in case of incapacity. In most cases, this is assigned to a spouse, so it should be updated soon after the spouse passes. The power of attorney does not have to be an adult child but should be trusted, organized, and financially savvy.

Another document to be updated is the Healthcare Proxy, sometimes called a Medical Power of Attorney. An adult child living nearby, a trusted friend, or another relative needs to be named and the document executed in case you should become incapacitated. This way, someone can act on your behalf without going to court to obtain guardianship.

Wills and trusts need to be updated. With your spouse's passing, your estate may now be vulnerable to estate taxes on the state and federal levels. Who do you want to inherit your property from, and what’s the best way to pass assets on to the next generation? An experienced estate planning attorney will be needed to make this happen most efficiently and expeditiously.

After a spouse passes, you’ll also want to review beneficiaries on life insurance, retirement accounts and any accounts with a named beneficiary. If these documents have contingency beneficiaries who receive the assets, you'll be in good shape if the primary beneficiary has died. However, do you know for sure the accounts are structured this way? Reviewing all these accounts is surely a good idea.

It may be time for the estate to include a trust. The most significant change occurring when a spouse dies is the surviving spouse is now legally considered single. All states have laws about how much assets may be owned to qualify for Medicaid. This number is dramatically lower for a single person than for a married couple. The surviving spouse may need to put their assets into a trust to exempt some assets that would otherwise need to be spent down before qualifying for Medicaid.

This is also the time to review end-of-life documents, including a Living Will and other medical directives.

There’s no way to make the loss of a spouse easy. However, taking these steps to protect the surviving spouse and their heirs will provide some peace of mind.

Reference: The Penny Hoarder (Sep. 5, 2024) “How to Change Your Estate Plan After Your Spouse Dies”

Charitable Giving Trusts Protect Assets and Create a Legacy of Giving

James Gandolfini was beloved for his role as Tony Soprano in the HBO show The Sopranos. His early death revealed a lack of estate planning and some painful lessons for his real-life family. Gandolfini left a $70 million estate and about 80% of it was not protected from estate taxes. A recent article from Investing Daily, “How to Avoid The Estate Planning Mistakes of James Gandolfini (aka Tony Soprano),” explains two of the many options Gandolfini didn’t take advantage of.

A Charitable Lead Trust, or CLT, serves several purposes. It provides a stream of income for a certain amount of time to a charitable organization. At the end of the period, the property in the trust goes to the donor or the beneficiary. When the gift is made under a CLT, the grantor immediately gets a federal income tax deduction equal to the present value of the future income stream. It should be noted that taxes do have to be paid every year by the donor on the value of the income interest paid to the charity.

You can create a CLT during your lifetime or establish it upon your death by stipulating it in your will. By establishing the CLT at death, an estate tax deduction is created. The CLT serves to reduce estate taxes and supports a charity you care about.

A similar trust is known as a Charitable Remainder Trust or CRUT. This type of trust increases the income stream while lowering taxes. With a CRUT, you are donating to charity.  However, you earn income from the donated assets during your lifetime. The objective is to sell a major appreciated asset without paying capital gains taxes on the profits. The donor funds the CRUT, and the charity receiving the asset is the charitable beneficiary. The charity must be an IRS-approved charity to gain these benefits.

The CRUT’s trustee can be the donor, the charity, an independent trust manager, or any person designed by the donor. Anyone receiving income from the asset under the terms of the CRUIT is known as an income beneficiary.

The trust document must name the trustee, the charitable beneficiary, the percentage to be paid to income beneficiaries and all the terms of the trust. The trust document also must specify the annual percentage paid by the donor, an amount between 5% and 50%. The annual percentage is required to give at least 10% of the amount transferred to the CRUT.

The trust can be funded with any kind of asset. The trustee then sells the assets, reinvesting the proceeds into a financial instrument owned by the trust. The term can be for the life of the donor or the life of a donor plus someone else. The CRUT can also be set by years, up to 20 years.

CRUTs and CLTs require the knowledge of an experienced estate planning attorney to be sure that they meet all the necessary guidelines to achieve their goals. For many people, these are excellent tools to create a family legacy of giving, while enjoying tax benefits and growing assets.

Reference: Investing Daily (Sep. 11, 2024) “How to Avoid The Estate Planning Mistakes of James Gandolfini (aka Tony Soprano)”

End-of-Year Estate Planning Preparations Start Now

Once summer winds down, estate planning attorneys start thinking about end-of-year to-do lists. There’s a lot to consider, especially this year. A recent article from Forbes asks the question: “2024 Year End Estate Planning: Are You Ready?”

Pre-2026 planning needs to happen sooner than later. When the federal estate exemption is cut in half, it will be too late to act. Estate planning attorneys are recommending that their clients address this before 2024 ends. Your situation may be best served with a Spousal Lifetime Access Trust (SLAT). Avoiding IRS scrutiny by leaving time between various transfers funding accounts if both spouses have SLATs. Not enough time may make a SLAT strategy vulnerable to IRS scrutiny because of the Reciprocal Tax Doctrine—trusts being too similar can be undone. It is best to have this done in 2024.

Regardless of who wins the presidential election, you need to get your estate planning in place. Even if you don’t go forward with big changes to your estate plan, having everything prepared in advance will provide more opportunities. You don’t lose anything by taking steps now to retitle assets to facilitate planning. Grantor trusts are always a good option.

If you wait until after the election, you may find yourself in a long line of last-minute decision-makers. An inexpensive trust can be created with a family trustee and trust protector. If it’s necessary, the jurisdiction can be moved in the future. If gift or transfer documents are properly prepared, you could even sign them as late as December 31, 2024. However, these steps can only occur if everything’s set up in advance.

2024 saw a Supreme Court decision with implications for business owners known as “Connelly.” If a business entity bought insurance on the lives of the owners intended to fund a buy-out if the insureds die, the value of the life insurance must now be included in the value of the business. Pre-Connelly, business owners also used LLCs to purchase life insurance to keep the value of the insurance policy out of the value of the business. This appears to now be subject to the same rules. If you are a business owner, review insurance policy ownership and buyout arrangements to be sure that valuations are correct and address the implications of the Connelly case.

Another Supreme Court Case, “Loper,” overruled how government agencies, like the Treasury and the IRS, may interpret statutes. Unless a law expressly states that the agency should issue guidance on the law, the courts no longer are required to give weight to what the IRS (or other government agency) has decided and can make decisions regarding ambiguous laws independently. This is still being figured out by the courts and attorneys. However, it would be wise to have your estate planning attorney review planning decisions if any might be scrutinized.

Final regulations for the SECURE Act have been issued by the Treasury, applying generally to calendar years beginning on or after January 1, 2025. This involves retirement plan rules, using trusts to hold retirement plan benefits for minors and other related issues. Your estate planning attorney will be able to explain whether any of these regulations impact your own estate plan.

The best way to be sure that your estate plan still achieves your goals is to meet with your estate planning attorney to review your plan. It may be fine. However, it’s best to find out if any changes need to be made before time runs out.

Reference: Forbes (September 10, 2024) “2024 Year End Estate Planning: Are You Ready?”

Estate Planning Lessons From Warren Buffett

As one of the creators of The Giving Pledge, encouraging wealthy people to give away most of their wealth to charitable causes, Warren Buffett’s estate plan isn’t like other billionaires’ estate plans. There are many takeaways for people of all different wealth levels, according to a recent article, “What Clients Can Learn from Warren Buffett’s Estate Plan” from Wealth Management.

Buffett says he’s changed his will several times after seeing how his children matured over the years. Building flexibility into an estate plan is important. It’s hard to tell which child will end up with a better financial situation, or which is more financially responsible. In addition, any time there is a significant life event, like divorce, moving to a new state, a new child in the family or marriage, estate planning documents should be reviewed, especially state-specific ones.

Buffett is celebrated for leading a relatively ordinary lifestyle, living in the same house, and driving the same car for many years. In a newsletter, he declared to Berkshire Hathaway shareholders his estate would be an open book, a simple last will and testament to be filed at the Douglas County Courthouse. The courthouse will no doubt be flooded by requests for the document, as it will become part of the public record once it’s filed.

Many families choose to use trusts to keep their bequests private, lighten their tax burden and facilitate wealth distribution.

A change to his estate plan will end his donations to the Bill & Melinda Gates Foundation. Buffett has given more than $40 billion to the foundation in the last fifteen years. His donations will cease when he dies. Buffet has put his three children in charge of a charitable trust. They will decide what causes to fund and how much to allocate.

For people of more modest means, charitable giving may include Donor Advised Funds or planned giving. You can also donate time and effort to nonprofits in your community.

Buffett praises his children’s ability to make good decisions, trusting them to carry out the family’s philanthropic goals while leaving room for them to deal with future changes in the tax laws and regulations governing nonprofits. His plan for the three of them to make unanimous decisions may lead to some wrinkles in the plan. However, he believes their shared values will overcome any disagreements.

Many estate planning attorneys recommend that parents objectively examine how their children interact before making them co-executors or joint owners of property. This may work well in some families.  However, for others, it may create obstacles. In some cases, it’s useful to hold a family meeting with the estate planning attorney to identify future issues.

Reference: Wealth Management (September 4, 2024) “What Clients Can Learn from Warren Buffett’s Estate Plan”