Articles Posted in Estate Planning

A GRAT is a Grantor Retained Annuity Trust and is a special type of irrevocable trust that allows the settlor, or trust maker, to transfer assets to this trust and receive an annual annuity payment for a certain amount of years. When the term of the GRAT ends, the assets remaining in the GRAT are distributed to the trust beneficiaries.

So how does it work?

The amount of the annuity payment paid to the settlor during the GRAT is calculated by using an interest rate determined by the IRS called the section 7520 interest rate. The settlor can even set the annuity payment so that it will be exactly equal to the section 7520 interest rate, meaning that theoretically all of the assets that been transferred into the GRAT will be returned to the settlor in the form of annuity payments. Continue reading

Estate planning often focuses on married couples, but estate planning for a single person is equally as important. A single person often owns assets in their name individually, which means these assets must go through the probate process when the person dies. The big question then becomes whom do these assets pass to?   In addition, asset protection and Medicaid issues become more important to address with a single person than a married couple.

A single person like any other person can own many assets and have a desire to see those assets distributed to certain people. Some assets, such as life insurance and retirement plans, are distrusted at death according to the beneficiary designations. If a person dies without a will, his or her possessions are passed intestate according to the intestate laws of the state. For a single person, the state law usually provides that a single person’s assets are passed to his or her closest relatives. If there are no relatives then the assets are collected by the state. So estate planning is needed if a person wants a say in how his or her assets will distributed.

What documents does a single person need?

A will acts as the foundation of an estate plan and serves as the blueprint for how a person’s assets are distributed after death. A will allows this person to name a guardian for young children. A will also assign an executor to help guide beneficiaries through the probate process. The executor can be a trustworthy friend or family member. A will allows the testator, or will maker, to take his or her beneficiaries thoughts into account.

A durable power of attorney is a document that lets a person appoint someone to manage your day-to-day financial and personal affairs if that person becomes incapacitated. A married person will usually name the spouse. We recommend a single person name a trusted family member or friend with a strong financial background. A medical power of attorney allows a third person to make decisions regarding a person’s health care and treatment. This does not have to be the same person who has the financial power of attorney. The person named in a health care power of attorney should be someone who respects your health care wishes, such as a choice not to be on life support when the odds of recovery are not good.

A will or trust are  also great tools when planning for the distribution of your estate. With a will, you can direct whom will receive your assets through probate. A trust is a legal device that holds assets for one or more beneficiaries. A trust allows the beneficiaries to take the trust’s assets without going through the probate process.

While married couples can protect their assets by owning them a certain way, a single person does not have the ability to use Tenants by the entireties or have a spouse own their assets.  It may be necessary to have a properly drafted LLC or Florida Asset Protection trust to help protect assets from creditors.  In addition, the max non exempt assets a single person can have and be eligible for Medicaid is only $2000.  Using certain trusts and other planning techniques into a single person can control assets and make them exempt from creditors as well as Medicaid (there is a 5 year look back for Medicaid planning).

If you are single and currently do no have an estate plan, we urge you to contact our office at 904-685-1200.

When lawyers draft estate-planning documents they are made with current laws in mind. However, estate-planning laws have changed in some key ways over the last few decades. Here are 4 key dates that have changed estate-planning. If your documents created before these dates it may be time to update them.

HIPAA

The first date to look out for is April 14, 2003, which is when the privacy rules under the Health Insurance Portability and Accountability Act first took effect. Although HIPAA was enacted in 1996, its privacy regulations were not enacted until several years later on April 14, 2003.

This act brought about much stricter guidelines regarding the disclosure of a person’s health information to third parties without explicit permission. Now, only a few people are allowed to receive this information, which becomes a much bigger issue if the person becomes incapacitated, such as in Terri Schiavo’s case. Now, a durable power of attorney is needed to make important health care decisions for loved ones. If your will, revocable trust, durable power of attorney or health care power of attorney was executed before this date, your executor, trustee, or agent may not be able to effectively work with your medical care providers or insurers.

State estate taxes Continue reading

In Florida, courts are now permitted to judicially modify an irrevocable trust even when a trust is unambiguous.

Historically, courts held the belief that the intent of the settlor, the person who creates a trust, should only be determined from the actual language of the trust document. This belief led courts to only modify a trust when the trust’s purpose, or provisions within the trust, were found to be ambiguous. If no ambiguity was found the court was unable to consider any other evidence of the settlor’s intent, and the beneficiaries were stuck with whatever the trust says on its face. In Florida, this changed when Florida adopted the Florida Trust code in 2007.

Florida’s Trust code is modeled on the Uniform Trust Code (UTC). The UTC deals with modifications in a number of sections that Florida has mostly adopted. For instance, UTC § 412 allows a court to modify or terminate a trust when the following circumstances occur:

  1. The trust’s purpose no longer exists, unanticipated circumstances have occurred.
  2. A modification or termination will further the purpose of the trust
  3. The trust’s existing terms would be impracticable, wasteful, or would impair the trust’s administration.

In Florida, the Florida Trust Code is still the controlling law when it comes to a Florida court’s ability to modify a trust. The Florida Trust code has many statutes that correlate directly to similar UTC provisions.   Here are a few of the more commonly used Florida modification statutes.

Fla. Stat. § 736.04113

This statute allows a court to modify an irrevocable trust when modification is not inconsistent with the trust’s purpose.   A trustee or qualified beneficiary may petition a court to modify a trust when circumstances have occurred that were not anticipated by the settlor. Under this law, a court may modify the trust or even change the terms of the trust distribution. Courts are also allowed to consider extrinsic evidence at its discretion. This means a party can present evidence of the settlor’s intent with other documents besides the trust.

A good example of when this statute might be used occurs is when a trust is created to support a family member who is not expected to survive. Another example might be a trust created for a child who has special needs and later recovers or a trust created for someone who is expected to be disabled, but is later denied for disability so they do not need the trust provisions. If the circumstances change, it may be possible to change the terms of the trust to deal with the new situation.

Fla. Stat. § 736.04114

This statute allows a court to modify an irrevocable trust with federal tax provisions by defining who the beneficiaries are and the amount of their respective shares. This Florida code also works directly with 736.0416, which allows a court to modify the terms of a trust that was created to achieve the settlor’s tax purposes. Therefore, when estate taxes change or other circumstances occur, a court is allowed to modify or terminate a trust created for tax purposes. This Florida law relates directly to UTC § 416.

Many estate-planning attorneys feel these types of modifications will become more common as the estate and gift tax exemptions continue to grow larger. Only a few years ago, the tax emptions were much lower and trusts were often created to limit the tax burden on the estate. Now these trusts may actually save more money if they are modified under the existing tax laws. These statutes allow a court in Florida to modify the trusts that were created with this tax limiting purpose in mind.

Fla. Stat. § 736.04115

This statute allows a court to modify a trust when compliance with trust terms is not in the best interest of the beneficiaries. This statute also allows the court to weight extrinsic evidence relevant to the proposed modification. The extent a court will modify a trust for the beneficiaries in a manner that conforms as close as possible to the settlor’s intent. This statute will be used when a beneficiary wishes to modify or terminate a trust, even if that modification would directly conflict with the settlor’s intent.

A good example of when this statute has been used occurred in a case where the beneficiaries were in agreement to allow a corporate trustee to resign without liability. The trust contained a mandatory corporate-trustee clause, which would not allow the corporate trustee to resign without breaching his fiduciary duties to the trust. Looking at the facts of the case, the court felt the corporate trustee had substantially administered the trust and it would be in the best interest of the beneficiaries to modify this clause.

An irrevocable trust is a powerful tool in the estate-planning world, however unforeseen circumstances may require the trust to be modified or terminated in order to still be lucrative to the beneficiaries. Modifications have been known to save estates a fortune, and the Florida Trust codes have made it easier than ever to receive a judicial modification. For more information on how a modification can serve your estate planning needs, contact the Law Office of David Goldman PLLC.

In Florida, the Florida Probate Code and the Florida Trust code govern the administration of estates and trusts.   These codes establish the rules and procedures for all probate matters such as the administration of a will. The Florida Legislature has recently amended the Florida Probate Codes.

Attorneys Fees and Costs

Both the probate and trust codes provide that an attorney who has provided services to an estate or trust may be awarded reasonable compensation. The latest update to the codes has been in response to inconsistent application of these laws which used to require there be a finding of “bad faith, wrongdoing, or frivolousness” in order to award a party attorney’s fees and costs. The codes have now eliminated this vague language and have enumerated a list of factors that a court should use when deciding to award attorneys’ fees in a case.   These considerations allow a court to even direct, in its discretion, from which part of the estate or trust attorney’s fees and costs may be paid.

Courts will now award attorney’s fees and costs whenever the court finds it just and proper, and will consider:

  • What impact an assessment will have on the value of each beneficiary’s portion of the estate.
  • The total amount of costs and fees taken from someone’s part of the estate.
  • The extent to which a beneficiary whose part of the estate is to be assessed actively participated in the proceeding.
  • The potential harm to a person’s estate
  • The merits of the claims, defenses, or objections that were asserted by someone who’s part of the estate is to be assessed
  • Whether the person assessed was the prevailing party
  • Whether the person to be assessed unjustly caused an increase in the costs and attorney fees that were incurred by the attorney.
  • Any other relevant facts or circumstances.

New laws for Attorneys acting as Fiduciaries

An attorney serving as a personal representative who provides legal services, administering an estate is permitted to receive compensation for both the personal representative services and for his or her legal services. An attorney can only receive compensation for serving as a fiduciary if the attorney discloses the fee in writing before the will or trust is signed. Failure to obtain written consent will not affect the validity of the will, but it will prohibit the fiduciary from obtaining compensation.

Personal Representatives liable for attorney’s fees if not qualified

A personal representative is a person or entity assigned by a court to administer an estate. In Florida, a personal representative is required to be 18 years old, a resident of Florida, and has full mental capacity. The latest amendment will require personal representatives who are not qualified at the time of appointment to resign. Further, the personal representative may be personally liable for attorney’s fees and costs incurred in the removal proceedings. This will depend on if the representative should have known of facts that would have required him or her to file and serve notice of disqualification.

For more information on the latest changes to Florida’s Probate and Trust codes, see the latest Senate analysis from 2015

The rules that surround our retirement plan accounts and IRA’s can be tricky, especially when it comes to determining an individual’s required minimum distributions, or RMDs.

RMDs are the minimum amounts that a retirement plan account owner must withdraw as required by the federal government. Generally, a person is required to take RMDs from an IRA or retirement plan account in the year when he or she reaches age 70 ½ or later. If the retirement plan is an IRA or the account owner is a five percent owner of the business sponsoring the retirement plan, the RMDs must start once the account holder is age 70 ½ regardless of whether he or she is retired.

The rules for minimum distributions can be confusing, but a person’s RMD for any year is the account balance as of the end of the preceding calendar year divided by a distribution period from the IRS “Uniform Lifetime Table.” This is the way most people will calculate their RMD. However, if a spouse is the sole beneficiary of an IRA, and is more than 10 years younger, the Joint Life and Last Survivor Expectancy table must be used. A person is also allowed to take penalty-free distributions from their IRA or retirement account plans at age 59 ½.

One reason we urge clients with retirement account plans to prepare for RMDs is the large tax penalty the owner must pay if he or she makes an error. If the account owner fails to withdraw the RMD, fails to withdraw the full amount of the RMD, or fails to take a RMD prior to December 31, the owner is taxed 50 percent of the amount not withdrawn.

Different rules apply to the beneficiary of a retirement plan account or IRA when the owner of these accounts dies before RMDs have begun. Usually, the entire amount of the owner’s benefit must be distributed to the beneficiary who is an individual either:

  1. Within 5 years of the owner’s death, or
  2. Over the life of the beneficiary starting no later than one year following the owner’s death.

RMD rules do not apply to the original Roth IRA owner, but the rules do apply to beneficiaries who inherit an IRA. A spouse is allowed to move the assets to his or her own Roth IRA instead of taking an inherited Roth IRA to avoid RMDs. Roth accounts in 401(k) and 403(b) plans are subject to RMD requirements.

Another rule to remember is that if a person has multiple retirement plans, the RMDs must be calculated separately for each plan. There is an exception for some IRAs. If a person has more than one IRA, whether a traditional, SEP, or simple IRA, he or she can add the RMDs and take the combined distribution amount from any one or more of the IRAs.

RMDs also are used to calculate your income and can be used to disqualify you from certain benefits.  Some individuals can benefit from taking larger distributions at lower tax rates and you should consider this and discuss it with your CPA, financial planner, and estate planning lawyer.

The IRS offers a worksheet that can be used to calculate someone’s RMD, located here http://www.irs.gov/Retirement-Plans/Plan-Participant,-Employee/Retirement-Topics-Required-Minimum-Distributions-%28RMDs%29   Calculating RMDs can an a tricky process to figure out even with guides like this. We recommend you start developing a financial strategy for these required minimum distributions now to ensure your estate is in order and all beneficiary designations are taken care of. Contact the Law Office of David Goldman PLLC today at 904-685-1200 to plan for your RMDs.

Naming a trust as a beneficiary of life insurance policy can have a huge benefit for people with large estates that are not taxable. It is also a great way to protect the insurance proceeds from future creditors and to help beneficiaries better manage their assets

There are a few common types of trusts that can serve as the owner or beneficiary of a life insurance policy. These trustees might include: an irrevocable life insurance trust, a living trust, a special needs trust and a spendthrift trust.

Irrevocable Life Insurance Trust

This type of trust, often referred to as ILIT, is used to irrevocably purchase insurance on the life of the grantor of the trust. This means the trust will have actual ownership of the policy, rather than the person the policy is for. This is done usually to avoid the taxing of life insurance proceeds at death under the Federal estate tax.  Since the person does not actually own the life insurance policy, the proceeds are not subject to estate tax or included in that person’s estate when he or she dies.

Once a person with an ILIT dies, the insurance proceeds will be deposited into the ILIT. Usually, an ILIT is set up to provide for the other spouse during his or her lifetime, and the balance passes to the children or other named beneficiaries.

ILITs are typically used to save money on estate taxes by ensuring the life insurance proceeds would not be included in the insured person’s estate.   In 2002, the estate tax exemption was only $1 million. Since 2013, Congress has raised the estate tax exemption has been raised to $5.43 million, and $10.86 for married couples.  This much higher exemption means a large number of estates are no longer facing estate taxes. However, those with larger estates can still benefit greatly from the use of an ILIT. In addition, some families are still using ILITs incase the estate tax exception is lowered in the future.

Living Trusts Continue reading

The U.S. Supreme Court recently ruled that an inherited IRA is not a “retirement account” for purposes of protection under the Bankruptcy code. This now means that inherited IRAs are available to satisfy creditor’s claims in order to pay off debt.

The court characterized an inherited IRA as money that is set aside for the original owner’s retirement rather than money set aside for a designated beneficiary’s retirement. The court reached this conclusion using three elements to differentiate an inherited IRA from a participant-owned IRA:

  1. The beneficiary of an inherited IRA cannot make additional contributions to the account, while an IRA owner can.
  2. The beneficiary of an inherited IRA must take required minimum distributions from the account regardless of how far away the beneficiary is from actually retiring, while an IRA owner can defer distributions at least until age 70 1/2.
  3. The beneficiary of an inherited IRA can withdraw all of the funds at any time and for any purpose without a penalty, while an IRA owner must generally wait until age 59 1/2 to take penalty free distributions.

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Asset protection was previously out of reach for most Americans.  Thanks to a new trust called the IPUG™ Trust, Asset Protection is affordable for the average family.  In the past many families created trusts to avoid estate tax, but with the recent increases in the Federal estate tax exemptions, many use trusts to manage assets, avoid probate, and protect assets from creditors.

The iPug™ Trust not only provides advantageous tax benefits, but it also provides asset protection, while retaining Grantor control,” explains David J. Zumpano, CPA, ESQ., President and Founder of MPS and creator of the iPug™ Trust. “iPug™ Planning will  apply to 99.5% of Americans.”

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Estate Planning for Digital Assets is becoming a more important part of our estate planning.  While most online accounts simply expire when you die, Facebook has recently incorporated some changes to your account so you can specify what happens when you die.

Until recently, loved ones of the deceased only had two choices:

  1. Keep the wall public so everyone could continue to post messages and thoughts on the wall, or
  2. Request to have the page “memorialized,” which meant the profile was no longer searchable or visible to those who were not already friends of the individual.

What Facebook did not allow to happen was for someone to manage the profile of the deceased owner without  having the password.  That just changed with the Facebook Legacy Contact feature.  A Facebook user can now choose a “legacy contact.”  The Legacy Contact can manage your account  or delete the account after you pass away.

Facebook’s Updated Options and Release Stated:

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