T Frank Law, PLLC

Estate Planning Blog

Estate Planning Blog

Estate Planning for Single People

While discussions of estate planning often focus on married couples, estate planning for a single person is just as important. Estate planning for single people can pose challenges, though, if there’s uncertainty about who to nominate to step in to make decisions on one’s behalf. But failing to create a coordinated plan can cause real problems.

This article by an investigative journalist in the NYTimes from last March details what happens to the estates of people in New York who die without wills. It also explains some of the benefits of being proactive.

What the article doesn’t touch on, however, is that while a will can make things easier on the people you leave behind, a health care proxy and durable power of attorney are arguably more important documents because they’re activated while you’re still alive. Please see my previous blog post on the importance of these documents.

Everyone should have these core documents in place, but there are additional issues of which to be aware. While a will can state who you want to make decisions about your estate upon death and how to distribute property, it also requires probate court involvement which can be time-consuming and expensive. The probate process in Massachusetts can last fifteen months or longer. For this reason, many people prefer planning with revocable living trusts. A living trust is a private document which is designed to avoid court involvement by nominating a successor trustee to step in to manage assets upon death or incapacity. In a difficult, emotional situation, trusts can provide some measure of relief to those you leave behind. To get a better idea about the benefits of avoiding probate, check out this Boston Globe article from last March. 

A living trust can be of further benefit if one’s family lives out of state, thus providing for a smooth transition of managing property. It can also be useful if you’d like to leave assets to nieces and nephews. Because minor children can’t legally manage property, a trust can nominate a successor trustee to manage assets for the benefit of children until they reach a certain age. The trust can also state what the funds should be applied to, as well as other limitations and protections, such as spendthrift language or special needs planning. In addition, you might even consider establishing a charitable trust!

While a durable power of attorney can be helpful to pay bills, file taxes, prosecute claims, along with many other benefits, in my experience, many financial institutions won’t honor a durable power of attorney drafted by a lawyer. These financial institutions often have their own forms. They are much more likely to honor a trust, however. For this reason, a living trust can be a much better way to plan for incapacity by allowing a successor trustee to access funds to continue to make mortgage payments, pay bills, and expend funds for one’s care and support.

Finally, I love drafting pet trusts. We know that not all family members are equipped to care for a pet. Because a pet would pass through a will like any other property, a pet trust is an effective vehicle to ensure one's pet is cared for. You can set aside funds and nominate a successor trustee to take care of the animal. Pet trust language can be included within a living trust.

Of course, trusts can reduce or eliminate estate taxes and provide “asset protection” advantages for those you leave behind, as well.

I’d be happy to review your situation and goals and discuss planning options with you. Email me at tim@tfranklaw.com today.

Buy-Sell Agreements: A Brief Overview

Small businesses are such an important part of our community, and I regularly field phone calls from business owners who are thinking about retirement, handing off the family business to their children, or taking steps to include their business as part of a comprehensive estate plan.

After years of hard work and dedication to a business, many owners wish to arrange for the future ownership of the business on their terms.

Enter the shareholder agreement, sometimes also known as a buy-sell agreement. These agreements reduce to writing how and under what conditions a business will be sold. Events that could trigger a sale include retirement, disability, bankruptcy, or death of an owner.

These agreements can take many forms, including whether the buyers and sellers have an obligation to purchase the business, or are given the option of buying or selling the business interest. For instance, an agreement can provide for a right of first refusal of the other owners, or that all parties must complete a sale transaction when the relevant conditions are met. The agreement can also provide for different options upon varying triggering events.

Another important consideration is whether the buy-sell agreement will be a cross-purchase agreement, meaning the remaining owners of the business purchase the interest, or whether the buy-sell agreement will be a redemption agreement, meaning the company is the purchaser of the ownership interest.

It’s also important to think about how the buy-out will be funded. Buy-sell agreements can be funded with installment notes, and they can also be funded with a life insurance policy. For improved liquidity, a life insurance policy can be purchased with an irrevocable life insurance trust.

I'd be happy to talk with you more about planning for the succession of your business. Please feel free to schedule a consultation on my booking page.

The Importance of a Health Care Proxy and Durable Power of Attorney

One misconception I hear a lot from younger folks I meet is they think they don’t need a will because they’re young and healthy. While they should still have a will because, well, the unexpected happens, a health care proxy and durable power of attorney are arguably more important documents.

While a will can make things easier for your family if you unexpectedly pass away, a durable power of attorney and health care proxy are arguably more important because these documents are activated when you’re still alive.

I often encourage folks to look at it this way: Do you have health insurance, car insurance, renter’s or homeowner’s insurance? Chances are you do.

Well, a health care proxy and durable power of attorney are akin to legal insurance in the event you become incapacitated, whether in a car or bike accident, illness, or even a strong allergic reaction.

Every competent adult has the right to appoint a health care agent, which agent can step in in the event an attending physician determines the person lacks the capacity to make or communicate health care decisions. Without a health care proxy in place, the hospital might have to retain an attorney to petition for guardianship of the person through the probate court. Depending on the type of treatment sought by the hospital, the incapacitated person will be appointed an attorney by the court. This could essentially result in strangers litigating one’s health care matters in open court.

Similarly, a person can designate an agent in a durable power of attorney, called an attorney-in-fact, to act for the person’s benefit in financial and legal matters in the event the person becomes disabled or incapacitated. A durable power of attorney document can be quite limited or very broad. The durable power of attorney can ensure continuity in paying bills and handling personal business, as well as assisting with planning and preventing loss of funds. Like the health care proxy above, it can avoid the need to go to court for appointment of a guardian or conservator.

I draft health care proxies and durable powers of attorney as part of a “core” estate plan. I also include HIPAA authorizations in both documents because if you want your health care providers to share information with your loved ones, providing advance permission can make the process much smoother.

Call my office today at 617-702-2449 to schedule a consultation. I’d be happy to talk with you about getting your planning in order.

Common Massachusetts Estate Tax Planning Methods

As you may know, if you are a resident of Massachusetts and die with more than $1 million in your “taxable estate,” then you owe a Massachusetts estate tax. Unlike the federal estate tax, which has a current threshold of $5.49 million and taxes at a 40% rate over the threshold, Massachusetts taxes the entire amount above $40,000 if over the $1 million exemption. The Massachusetts tax rate is based on a sliding scale from .8% to 16%.

Considering real estate, life insurance death benefits, and retirement accounts, many people are over the $1 million exemption. Fortunately, there are planning tools that can reduce and often eliminate the Massachusetts estate tax.

For a couple who have, say, $3 million, here is a common planning mechanism:

Living Trust with Marital Trust and Credit Shelter Trust:

The couple splits their assets evenly - each spouse with $1.5 million - and holds them in living revocable trusts with estate tax planning provisions. Spouse 1 dies and leaves $1 million in a credit shelter trust and $500,000 in a marital deduction trust. The marital share of $500,000 passes to the surviving spouse in trust and qualifies for the estate tax marital deduction. The $1 million credit shelter trust is not over the $1 million exemption, meaning no estate tax is due. Both trusts are available for Spouse 2’s benefit. If Spouse 2 then dies, Spouse 2 has $1.5 million in Spouse 2's own trust and the $500,000 in the marital trust. Because Spouse 2's taxable estate is $2 million, Spouse 2 is $1 million over the exemption and owes estate tax of around $100,000.

Without planning, their Massachusetts estate tax would have been about 80% greater.

Another benefit of this approach is that the credit shelter trust protects assets from unsecured creditors. These benefits should be considered alongside the desirable degree of the surviving spouse's control over assets, and whether it would make sense for the couple to hold their assets evenly. 

This approach might not be best for younger families who’d want more control for the surviving spouse, however. In that case, a disclaimer plan might be better, where a back-up trust - with credit shelter trust provisions - is drafted in order to provide flexibility and the appearance of simplicity (this plan puts the burden on the survivor to effect a tax plan and requires careful counseling while settling the first spouse’s estate). A client might also be best advised to plan for the next several years and understand future revisions to the plan will be necessary.

Charitable giving, and/or annual exclusion gifting are also great ways to reduce one's taxable estate.

As you can see, plans vary greatly depending on circumstances and goals. There are also more sophisticated planning mechanisms, but for most of us, the methods above are the ones to discuss with your Massachusetts estate planning attorney.

Recent SJC Decision Highlights Pitfalls of MassHealth Long-Term Care Planning

On May 30, 2017, the Massachusetts Supreme Judicial Court issued its long-anticipated decision in Daley v. Secretary of the Executive Office of Health and Human Services and Nadeau v. Director of the Office of Medicaid, which were consolidated on appeal. These cases focused on MassHealth’s claim that the right to live in a house owned by an irrevocable trust made it “countable” for the purposes of qualifying for Medicaid in Massachusetts.

To provide some background: without any planning, if an elder requires nursing home level care, they must use substantially all their assets to pay for that care. Once they deplete their resources, they can apply for MassHealth. If a married couple did not plan ahead and own a home, that home is not a “countable” asset so long as its value does not exceed an annually adjusted limit (currently $ 828,000). However, MassHealth will place a lien on the home and force a sale after both spouses have died.

To avoid such a lien, many elders place their homes in irrevocable (Medicaid-qualifying) trusts. MassHealth has recently challenged such trusts.

The good news is that it seems the SJC rejected MassHealth’s argument that specific provisions relating to “use and occupancy” of the house make it a “countable” asset for long-term care eligibility.

However, in the Nadeau case the SJC ruled that the right to use and occupancy of the house was akin to receiving fair market value rental income from the house. This may affect how much an applicant is required to contribute to the payment of long-term care. If the Medicaid applicant is not renting the house, but the fair market value rental income is imputed from the right to use the home, the trustee might have to either sell or rent out the home in order to generate income to contribute for the applicant's care. This could create an entire class of nursing home resident landlords.

The Daley case differs in that the Daley Trust did not own the home in fee simple; the Daleys retained a life estate and deeded only the remainder interest in their home to the trust. Because the trust did not have a property interest in the home during the Daleys lifetime, the court held that the right to use and occupancy could not be deemed akin to fair market value rental income. The court did seem to suggest, though, that the life estate itself has value, and although MassHealth does not currently consider a life estate in an applicant’s name a countable asset, the court left the question open.

Both the Nadeau and Daley Trusts allowed the trustees to pay any income tax liability arising from income distributions to the grantors from the principal of the trusts. The SJC asked MassHealth to calculate whether and how much of the trust would be countable based on these provisions.

The Nadeau Trust had another potential pitfall, which allowed the granting of trust property to non-profits. The court pointed out that one quarter of nursing homes are non-profits.
These trusts likely complied with the law at the time, but because this area of law is evolving, older Medicaid qualifying trusts should be reviewed to ensure compliance with current law. Given the financial strain of Medicaid and the increased scrutiny, it’s important for elders and their families to work with advisers who focus in this field of law because these issues can be eliminated or mitigated with proper planning.

Please feel free to contact my office to learn more.

Retirement Account Trusts

Generally, if you are married, it's often best to name your spouse as a designated beneficiary of your retirement account. This would allow your spouse to "roll-over" your retirement accounts into their own and also avoid probate. 

Issues can arise by naming a revocable living trust as the beneficiary of a retirement account. Tax Code and Treasury Regulations require the trustee of a standard revocable trust to withdraw the entire balance of a retirement account within five (5) years of the owner's death. This would have significant income tax implications.

By naming individual beneficiaries of retirement accounts, the beneficiary can withdraw money from the account over their lifetime according to life expectancy. By spreading out distributions, they can minimize income tax. Dangers arise, however, when a person withdraws a lump sum, either intentionally or inadvertently, resulting in a huge tax bill. The beneficiary could also lose the money to lawsuits, creditors, divorce, addiction, or a "spend down" for government benefits relating to disability. A surviving spouse should carefully assess the financial know-how and credit risks of next of kin.

Retirement account trusts or IRA Trusts allow one to have it both ways. IRA Trusts ensure that clients' beneficiaries stretch out their required minimum IRA distributions, thereby providing maximum benefit and potentially allowing for compounding many years free of income-tax. In addition, an IRA trust allows the option to give a "Trust Protector" the right to elect between minimum required distributions ("MRD") on an annual basis or to have a full discretionary "accumulation trust," where the trustee can hold the MRD inside the trust if the beneficiary has asset protection concerns.

Election by the "Trust Protector" must be made by September 30th of the year following the death of the retirement account owner. The election could also result in a shorter stretch because the age of the oldest possible beneficiary must be used (the "Trust Protector" may be given power to limit such possible beneficiaries to minimize this issue, however). Having the option to elect between minimum required distributions from the IRA Trust and holding the minimum required distributions inside the trust provides flexibility to consider all factors at the time of death (e.g. creditor problems, disability), up to the election deadline.

If done properly, even a modest retirement account can accumulate millions of dollars when stretched out over the lives of next of kin.