Paul O. Dillon, Attorney at Law

Supreme Court Considers Case on Estate Insurance Tax Treatment

The U.S. Supreme Court could soon rule on a case that would significantly impact succession plans for closely held businesses and put those plans at risk for higher taxes, as reported in a recent article from Bloomberg Tax, “High Court Signals Doubt Over Estate Insurance Tax Treatment.”

Thomas Connelly and his brother created a buy-sell agreement for their family business, Crown C Supply Co. In the agreement, whichever brother survived the other had the option to buy the other’s stock or required Crown to redeem the stock, using proceeds from the company's life insurance policies for both brothers. Michael passed away, and his brother followed the terms of the agreement.

The IRS’s position is that Michael’s redeemed stock is worth more than reported, since the company’s value increased when it received the insurance proceeds. According to the IRS, Michael’s redeemed 77% equity interest was valued at $5.3 million. The estate had reported a value of $2.3 million less, since it did not include the value of the insurance proceeds.

Thomas claims the company’s net worth did not increase because the insurance proceeds were offset by the agreement to redeem his brother’s shares.

An assistant to the Solicitor General asked the Court to distinguish between an obligation to outside creditors and the value to an equity interest holder. Redemption gives one shareholder cash in exchange for their assets, while the other is to maintain control of the company.

To date, at least three Circuit Courts have addressed the issue of whether life insurance proceeds used for a stock exemption increase the company’s value. Unfortunately, they don’t all agree. In legal circles, the expression is “Courts are split.”

For business owners with buy-sell agreements incorporating insurance policies, this decision could have significant ramifications for their estate plan. What had been a relatively straightforward estate planning tool may not be allowed after the Supreme Court releases its decision.

Should the Court rule against the estate, there are several alternative planning options. An experienced estate planning attorney can guide privately held businesses in structuring and funding their buy-sell agreements.

Reference: Bloomberg Tax (March 27, 2024) “High Court Signals Doubt Over Estate Insurance Tax Treatment”

Do Unified Credit Gift Tax Exclusions Work?

Most  people know they pay taxes on earnings and when money grows. However, there are also taxes when money or other assets are given away or passed to another after death. The unified tax credit is central to estate planning, says a recent article titled “What Are The Unified Credit’s Gift Tax Exclusions?” from yahoo!.

First, what is the Unified Tax Credit? Sometimes called the “unified transfer tax,” the unified tax credit combines two separate lifetime tax exemptions. The first is the gift tax exclusion, which concerns assets given to other individuals during your lifetime. The other is the estate tax exemption, which is the value of an estate not subject to taxes when it is inherited. Your estate or heirs will only pay taxes on the portion of assets exceeding this threshold.

The unified tax credit is an exemption applied both to taxable gifts given during your lifetime and the estate you plan to leave to others.

If you would rather gift with warm hands while living, you can pull from this unified credit and avoid paying additional taxes on monetary gifts in the year you gave them. However, if you’d rather keep your assets and distribute them after death, you can save the unified credit for after death. You can also use the unified tax credit to do a little of both.

The unified tax credit changes regularly, depending on estate and gift tax regulations. The gift and estate tax exemptions doubled in 2017, so the unified credit right now sits at $12.06 million per person in 2022. This will expire at the end of 2025, when credits will drop down to lower levels, unless new legislation passes.

Up to 2025, a married couple can give away as much as $24.12 million without having to pay additional taxes. The recipient of this generous gift would not have to pay additional taxes either. If you consider the rate of estate taxes—40%—optimizing this unified tax credit means a lot more money stays in your loved one’s pockets.

How does it work? Let’s say you have four children and each one is going to receive a taxable gift of $500,000. You can pull from your unified tax credit the same year you give these gifts. This way, there’s no need for you to pay gift taxes on the $2 million.

However, this generosity will reduce your lifetime unified credit from $12.06 million to $10.06 million. If you die and leave an estate worth $11.5 million, your heirs will need to pay estate taxes on the $1.44 million difference.

At current estate tax rates, roughly $700,000 would go to the IRS, or more, depending upon your state!

The unified tax credit doesn’t take into account or apply to annual gift exclusions. These annual exclusions allow you to give away even more money during your lifetime and it doesn’t count against your unified limit. As of 2022, taxpayers may give $16,000 per year to any individual as a tax-exempt gift. You can give $16,000 to as many people as you wish each year without being subject to gift taxes. This is a simple way to gift with warm hands without paying gift taxes or reducing the unified limit. The annual gift is per person, so if you are married, you and your spouse may give, $32,000 per year to as many people as you want and the gift is excluded.

Taxable gifts exceeding the annual gift exclusion amount must be properly documented and should be done in concert with your overall estate plan. They offer great tax advantages, and perhaps more importantly, provide the giver with the joy of seeing their wealth translate into a better life for their loved ones.

Reference: yahoo! (Nov. 18, 2022) “What Are The Unified Credit’s Gift Tax Exclusions?”

How Does a Business Owner Create an Exit Strategy?

Letting go of a business is not easy, says a recent article titled “Estate Planning Strategies for Business Owners Planning an Exit” from CEOWorld Magazine. Where the exit is to sell the business or retire, or the result of an unexpected events, its crucial to have an estate and succession plan.

When should you establish a plan? It should be early, perhaps even when you become a CEO. A long-term strategy is as important as short-term decisions. Not having an estate plan could mean your interest in the business goes through probate, which is both public and time consuming. The business may never recover from the distribution of assets and the exposure. No estate plan also means missed changes to leverage discount gifting or any other tax-reduction strategies.

Consider the following when talking with your estate planning attorney:

What is the exit strategy—to sell, be acquired or merged, have a family member take over, or sell to key employees?

How much money to do you need and want at the exit? Do you want to create a stream of income or a lump sum?

Do you have a charitable giving plan to reap tax advantages and support an organization with meaning to you? Structuring a gift far in advance avoids using a reduced fair market value and have it deemed as a cash gift.

Transferring the business to family members instead of selling to outside parties creates many different planning opportunities. With family members, emotions come into play, even though this is not always productive. If some offspring are not involved in the business, will they receive a share of the business? Do you want to equalize your inheritance? Assets can be divided by the use of trusts, for example.

You’ll want to work with an estate planning attorney with experience in creating a succession plan with a tax model. This is often overlooked in succession planning and can cause significant cash flow management issues as well as lost tax benefits.

Determine if you want to make gifts using business interests or sales proceeds early on and whether these gifts will go to family members or charities. The earlier the planning occurs, the more you can maximize the income and estate tax benefits.

Clarify your own retirement needs and goals. Business owners often fail to correctly calculate the expected investment income on after-tax proceeds from the sale of the business. Will it be sustainable enough for the lifestyle you want in retirement? If not, is there a way to structure the sale of the business to achieve your financial goal?

It’s never too late to plan for an exit strategy, and the earlier the planning, the higher the likelihood of a successful transition.

Reference: CEOWorld Magazine (Aug. 16, 2022) “Estate Planning Strategies for Business Owners Planning an Exit”

How Much Money Can a Well Spouse Keep If Medicaid is Needed?

Despite the intent of the law, allowing one spouse to remain in the family home and having enough income to live on when the other spouse needs Medicaid to pay for nursing home care does not happen automatically. According to the article “What a ‘Community’ spouse can keep” from The Bristol Press, protecting the community spouse is necessary if they are to maintain their prior standard of living.

The community spouse is entitled to have a minimum monthly maintenance needs allowance (MMNA), which changes every year. If the MMNA is $2,288.00, and the healthy spouse has an income of $1,000.00, Medicaid allows a diversion of the sick spouse’s income of the difference, or $1,288.00 per month to the healthy spouse. In most situations, this is not enough to maintain a home, pay bills and enjoy a well-deserved retirement.

An elder law lawyer can help protect assets for the community spouse. The family home is exempt, if it is in the name of the healthy spouse, although most states have a limit to the allowed value. If the sick spouse is approved for Medicaid, the healthy spouse may choose to sell the home and keep the proceeds or downsize to a smaller home.

The community spouse may keep up to $137,400.00 in investment assets in 2022. That’s considered one half of the couple’s total “countable” assets. If the couple’s investment exceeds this amount, there are a number of strategies used to protect the life savings, as long as they stay within the “spend down” rules. Money may be spent on house expenses or improvements. A new car could replace an old model.

Another method is the use of a Single Premium Immediate Annuity, sometimes referred to as a Medicaid Annuity Trust. The well spouse can purchase this and protect their life savings. However, if the well spouse dies before the sick spouse, the balance of the annuity will need to be paid to Medicaid to reimburse it for expenses paid for the care of the sick spouse.

One positive note: personal property is not considered a countable asset. Things like home furnishings, decorations, jewelry, etc., and any personal property will not be counted. Embarking on a spending spree with an eye to reselling personal property to raise cash is not a good idea, since few items maintain their value after the initial purchase.

Planning should be done in advance, when both spouses are well and healthy, because Medicaid strictly enforces the five-year look back rule. Any assets transferred within five years of a Medicaid application will make the sick spouse ineligible for Medicaid coverage, and healthcare expenses will have to be paid out of pocket.

Reference: The Bristol Press (July 29, 2022) “What a ‘Community’ spouse can keep”

Should You Consider a Reverse Mortgage?

A loan of last resort for many years has gotten an upgrade. Stories of borrowers who faced foreclosure and surviving spouses evicted from their own homes are decreasing, as the new reverse mortgage often does what they were originally intended to do: provide financial help for retired homeowners who want to stay in their homes.

Home equity conversion mortgages (HECMs) are insured by the Federal Housing Administration and overseen by the Department of Housing and Urban development, explains a recent article from The Wall Street Journal titled “The New Math of Reverse Mortgages for Retirees.” There are limits on how much borrowers can take, so seniors don’t have the option to take wildly inappropriate large lump sums. There are protections from defaults if the house value sinks to less than the loan amount and provisions to protect a surviving spouse’s right to stay in the home after the death of the borrower.

HECMs are a tiny part of the financing options available to seniors who need to take equity from their homes in later years. Some downsides to the reverse mortgage remain, particularly the high upfront fees. However, the reverse mortgage burden is mainly on heirs, who will not inherit the equity or the home, unless they want to pay back the loan.

For seniors who are concerned about outliving their savings and want to stay at home until the very end of life, a reverse mortgage may be a worthwhile strategy. The cash can be a way to pay for long-term care and other unexpected expenses.

Another benefit: disbursed funds aren’t taxed, since they are considered a loan advance. Distributions from traditional IRAs and 401(k)s are taxed as ordinary income.

According to a trade association, HECMs make up 95% of the reverse mortgage market. There are about 580,000 totaling about $113.5 billion. However, a 2019 study from the Brookings Institute found less than 2% of homeowners age 62 and older hold a reverse mortgage of any kind.

A simplified version of how it works: to qualify for an HECM, borrowers must be age 62 and older, owners and occupants of the home and have the financial ability to maintain the home, including paying property taxes, insurance, and if relevant, homeowner association fees.

HECMs must be obtained through an approved FHA-approved lender and borrowers must buy FHA mortgage insurance and attend an information session with an HUD-counselor. The amount to borrow is determined by the appraised property value, how much is owed on the primary mortgage, the borrower’s age and current interest rates.

The borrower has an option of a payment plan with an adjustable interest rate or a fixed rate. If they choose the fixed rate, they must take the lump-sum disbursement option. This decision may have an impact on eligibility for government benefits, so it needs to be discussed with an elder law attorney.

For the adjustable interest rate, disbursements are made at will and the untouched amount can continue to grow at the variable interest rate. The loan is received as a line of credit, letting the borrower take distributions as needed or as “tenure,” monthly payments for the life of the loan. Other options include monthly payments for another specified term or a combination of these options. Depending on the loan, the recipient can change their payment plan to other options at any time, as long as funds are available.

The risk to the lump-sum payment is simple. In the past, seniors took out lump-sum payments, spent the money quickly and then were without funds to pay household expenses, like insurance and property tax.

Today’s HECM attempts to reduce this risk by limiting the amount to be borrowed. The FHA also performs assessments of loan applicants. Ultimately, the homeowner must use the funds well and wisely to serve their intended purpose.

Reference: The Wall Street Journal (June 3, 2022) “The New Math of Reverse Mortgages for Retirees”

What Happens Financially when a Spouse Dies?

Losing a beloved spouse is one of the most stressful events in life, so it’s one we tend not to talk about. However, planning for life after the passing of a spouse needs to be done, as it is an eventuality. According to a recent article from AARP Magazine, “The Financial Penalty of Losing Your Spouse,” the best time to plan for this is before your spouse dies.

You’ll have the most options while your spouse is still living. Estate plans, wills, trusts, and beneficiary designations can still be updated, as long as your spouse has legal capacity. You can make sure you’ll still have access to savings, retirement, and investment accounts. Create a list of assets, including information needed to access digital accounts.

Make sure that your credit cards will be available. Many surviving spouses only learn after a death whether credit cards are in the spouse’s name or their own name.

Get help from professionals. Review your new status with your estate planning attorney, CPA and financial advisor. This includes which accounts need to be moved and which need to be renamed. Can you afford to maintain your home? An experienced professional who works regularly with widows or widowers can provide help, if you are open to asking.

A warning note: Be careful about new “friends.” Widows are key targets of scammers, and thieves are very good at scamming vulnerable people.

Be strategic about Social Security. If both partners were drawing benefits, the surviving spouse may elect the higher benefit going forward. If you haven’t claimed yet, you have options. You can take either a survivor’s benefit based on your spouse’s work history, or the retirement benefit based on your own work history. You will be able to switch to the higher benefit, if it ends up being higher, later on.

Be careful about your spouse’s 401(k) and IRA. If you’re in your 50s, you are allowed to roll your spouse’s 401(k) or IRA into your own account. However, don’t rush to move the 401(k). You can make a withdrawal from a late spouse’s 401(k) without penalty. However, it will be taxable as ordinary income. If you move the 401(k) to a rollover IRA, you’ll have to pay taxes plus a 10% penalty on any withdrawals taken from the IRA before you reach 59 ½. Your estate planning attorney can help with these accounts.

Use any advantages available to you. The IRS will still let you file jointly in the year of your spouse’s death. Tax rates are better for married filers than for singles. Any taxable withdrawals you’ll need to take from 401(k)s or IRAs may be taxed at a lower rate during this year. You may decide to use the money to create a rollover Roth IRA or to put some funds into a non-tax deferred account.

Don’t rush to do anything you don’t have to do. Selling your home, writing large checks to children, or moving are all things you should not do right now. Decisions made in the fog of grief are often regretted later on. Take your time to mourn, adjust to your admittedly unwanted new life and give yourself time for this major adjustment.

Reference: AARP Magazine (May 13, 2022) “The Financial Penalty of Losing Your Spouse”

How to Handle Digital Assets in a Will

Now that cryptocurrency has become almost commonplace, it is necessary to incorporate it into estate plans and their administration, according to the article “Estate planners want to keep the crypt out of cryptocurrency” from Roll Call.

One advantage of using cryptocurrencies in estate planning is the ease of transference—if all parties know how crypto works. Unlike a traditional bank, which typically requires executors to produce an original death certificate and other documents to take control of accounts in the estate, cryptocurrency only requires the fiduciary to have passcodes to gain access to accounts.

The passcode is a complex, multicharacter code appearing to be a long string of unrelated numbers and letters. It is stored in a digital wallet, which can only be accessed through the use of the 64-digit passcode, also known as a key.

While the passcode is simple, it is also very vulnerable. If the key is lost, there is no way to retrieve it. The executor must know not just where the key is physically located if it has been written down on paper, or if it is kept in a digital wallet, but how to access the digital wallet. There are also different kinds of digital wallets.

People do not usually share their passwords with others. However, in the case of crypto, consider storing it in a safe but accessible location and telling a trusted person where it may be found.

People who own cryptocurrency need to give someone access info. If someone is named an executor at one point in your life and they have the information about digital assets, then at some point you change the executor, there is no way to guarantee the former executor might not access the account.

How do you protect digital assets? Using “cold storage,” an account passcode is stored and concealed on a USB drive or similar device, allowing the information to be shared without the user needing to learn the passcode to access the account. The cold storage USB drive can be given from one fiduciary to the successor fiduciary without either knowing the passcode.

Many bills have been introduced in Congress addressing cryptocurrency and blockchain policies. The IRS has issued a number of notices and publications regarding taxes on digital currency transactions. Crypto is no longer an “invisible” asset.

In addition to policies and regulations, litigation concerning estates and cryptocurrency is still relatively new to the judiciary. Planning for these assets to ensure they are passed to the next generation securely is very important as their use and value continues to grow.

Reference: Roll Call (Feb. 22, 2022) “Estate planners want to keep the crypt out of cryptocurrency”

What Is the HEMS Standard?

The HEMS standard is used to inform trustees as to how and when funds should be released to a beneficiary, according to a recent article from Yahoo! News, “What is the HEMS Standard in Estate Planning.” Using HEMS language in a trust gives the trustee more control over how assets are distributed and spent. If a beneficiary is young and not financial savvy, this becomes extremely important to protecting both the beneficiary and the assets in the trust. Your estate planning attorney can set up a trust to include this feature.

When a trust includes HEMS language, the assets may only be used for specific needs. Health, education or living expenses can include college tuition, mortgage, and rent payments, medical care and health insurance premiums.

Medical treatment may include eye exams, dental care, health insurance, prescription drugs and some elective procedures.

Education may include college housing, tuition, technology needed for college, studying abroad and career training.

Maintenance and Support includes reasonable comforts, like paying for a gym membership, vacations and gifts for family members.

The HEMS language provides guidance for the trustee. However, ultimately the trustee is vested with the discretionary power to decide whether the assets are being used according to the directions of the trust.

Sometimes beneficiary requests are straightforward, like college tuition or health insurance bills. However, maintenance and support need to be considered in the context of the family’s wealth. If the family and the beneficiary are used to a lifestyle that includes three or four luxurious vacations every year, a request for funds used for a ski trip to Spain may not be out of line. For another family and trust, this would be a ludicrous request.

Having HEMS language in the trust limits distribution. It has greater value, if the trustee is also a beneficiary, lessening the chances of the trust diminishing for non-essentials or to fund a lavish lifestyle.

Giving the trustee HEMS language narrows their discretionary authority enough to help them do a better job of managing assets and may limit challenges by beneficiaries.

HEMS language can be as broad or narrow as the grantor wishes. Just as a trust is crafted to meet the specific directions of the grantor for beneficiaries, the HEMS language can be created to establish a trust where the assets may only be used to pay for college tuition or career training.

Reference: Yahoo! News (Jan. 7, 2022) “What is the HEMS Standard in Estate Planning”

What are the Advantages of Putting an Estate in a Modern Directed Trust?

Many families use their estate, gift and generation-skipping transfer tax exemptions to fund a flexible modern trust for non-tax reasons, explains an article “Trust Planning in Unprecedented Times” from Wealth Management. Future uncertainty is one of the reasons, which seems keenly appropriate today.

Passing family values as well as wealth to future generations is an important part of estate planning for many families. A directed trust can accomplish both goals, through the participation of family members and advisors in the directed trust’s distribution committee (DC). The DC decides how trust income and principal will be distributed and directs the administrative trustee accordingly.

Any distribution over and above the health, education, maintenance and support of beneficiaries needs to be considered from a tax-sensitive perspective, but the DC has the flexibility to make these decisions.

These modern directed trusts can also be created to allow for charitable purposes. Donations to charity from a non-charitable modern directed trusts lets the family express its social responsibility, while obtaining unlimited income tax deductions to the trust.

There are instances where knowledge of a trust is kept from beneficiaries or other family members, if they lack the financial maturity or don’t understand or comply with family values. Other reasons to keep a trust quiet are asset protection, divorce, ID theft and similar issues. In many modern trust states, the trust can remain quiet, even after the grantor has died or becomes incapacitated.

Modern directed trusts provide protection against divorce. Often the trust’s main protection is the use of a spendthrift provision, which prevents the assignment of a beneficiaries’ interests in an irrevocable trust before the interest is distributed. There are exceptions to the spendthrift clause, and alimony is one of them. In recent cases, courts have disregarded the spendthrift clause when exceptions are involved, especially in cases of divorce.

Litigation can be a problem for trusts. Modern trusts provide excellent asset protection when trust discretionary interests are not defined as property or an enforcement right. Many trusts have clauses providing a court to award legal fees and costs to the winning party. The trustee may be reimbursed for attorney’s fees if the plaintiff loses, a significant discouragement for embarking on litigation against a modern trust.

COVID-19 has reframed how often people think about their mortality, which has fueled interest in creating trusts to protect family assets and heirlooms. A “purpose trust” doesn’t have beneficiaries, but is created to care, protect and preserve an asset, either for an extended period of time or even perpetuity. Assets typically placed in a purpose trust include gravesites, antiques, art, jewelry, royalties, digital assets, land, property, buildings and vacation homes.

The uncertain times in which we live call for unprecedented estate planning. Modern directed trusts are a way to preserve wealth across generations with flexibility. Regardless of what changes to federal estate, gift or generation skipping trusts may come in the future, trusts make sense.

Reference: Wealth Management (Jan. 10, 2022) “Trust Planning in Unprecedented Times”

What are the Negatives of Investing in Cryptocurrency?

When Matthew Mellon died suddenly in 2018, he was worth almost $200 million. He owned nine sports cars, a watch worth more than most American’s annual income and left one daughter the priceless collection of Mellon family silver. However, he also left an estate mess for heirs, according to a recent article “How a cryptocurrency fortune crippled a deceased billionaire’s estate” from the daily dot.

Aside from the sports cars, watch and the family silver, most of Mellon’s assets, estimated at more than $193 million, were in a cryptocurrency known as XRP, managed by the company Ripple. One court document noted the cryptocurrency made up 97% of the entire estate. Mellon’s estate disaster was unlike most situations when assets can’t be accounted for. His multi-million cryptocurrency assets were secured by digital keys in a digital wallet. No one in the family knew where any of this was.

The online community and attorneys assumed the XRP assets were lost forever. However, there were a few twists to the story.

Matthew Mellon was a member of two powerful banking families, the Mellons and the Drexels. He reportedly inherited $25 million as a young man and served as chair of the New York Republican Party Finance Committee, to which he’d made a six-figure donation. He was married to Tamara Mellon, founder of the Jimmy Choo shoe brand. The marriage was one of two, both ending in divorce.

His investment in cryptocurrency began with a $2 million investment in XRP in late 2017, after testing the cryptocurrency concept with Bitcoin. He became a global “ambassador” for XRP. According to Forbes, at one point his investment was worth nearly $1 billion, but the rally ended, and the currency depreciated rapidly during 2018.

The family was doubtful about his involvement in XRP because Mellon struggled with substance abuse. The day he died of a heart attack, was the day he was scheduled to check into a drug rehabilitation facility to treat an OxyContin addition.

Left behind after his death were two ex-wives, three young children and an outdated will. There was no mention of the estimated $193 million in XRP. The keys to the cryptocurrency were allegedly kept on devices under other people’s names in locations across the country. This secrecy led estate lawyers scrambling to gain control of his XRP, which fluctuated up and down by as much as 30% in the weeks after his death. Every day they did not have the ability to sell, increased the risk of not being able to liquidate his biggest asset.

Based on his relationship with Ripple, his attorneys were able to get in contact with the right people at the company and gain access to his XRP. However, this does not happen for regular people, no matter how much the cryptocurrency is worth.

Gaining access to the digital currency was just the start. Mellon had an agreement with Ripple that he could only sell off a small amount of XRP daily. The attorneys were able to negotiate a slightly higher number but could not move fast enough to generate the cash needed to pay off the estate’s debts. This made sense for Ripple—a big sell-off would have an extremely negative impact on XRP’s value, just as wide-scale dumping of a stock would cut its value.

Mellon was also years behind on income tax returns, and the IRS wanted a piece of his multi-million dollar estate. In addition, two dozen entities, mostly private individuals, claimed he owed them money, ranging from a few hundred to nearly six million. There was a posthumous sexual harassment claim filed against him by a housekeeper. The estate paid $60 million in federal estate tax, and debts were settled in January 2021, almost three years after his death because of the inability to sell the cryptocurrency.

Most people don’t lead such a complicated personal or financial life. However, in this case, an updated will would have spared the family all the drama and stress of a high-stakes estate disaster. Proper estate planning could have protected the estate from a big tax bite and kept the Mellon’s family business private.

Reference: daily dot (Dec. 23, 2021) “How a cryptocurrency fortune crippled a deceased billionaire’s estate”