King & Wood, P.A.

What Is a SLAT in Estate Planning?

If you have been thinking about making large gifts to take advantage of the current $11,700,000 lifetime federal estate tax exemption, you have probably been contemplating a spousal lifetime access trust, commonly known as a SLAT.”

A SLAT is a type of irrevocable trust that can only be used by married couples for the benefit of a spouse, children, or other beneficiaries. Is a SLAT right for your family? The recent article titled “Should a SLAT Be Part Of Your Estate Planning?” from Forbes examines when a SLAT works, and when it doesn’t.

A SLAT works well while your spouse is alive. They have access to it and the assets it contains, since they are the beneficiary. As of this writing, up to $11,700,000 of assets can be removed from a taxable estate using your federal estate tax exemption, while your spouse continues to have access to the assets.

Sounds like a win-win, doesn’t it? However, there are drawbacks. If your spouse dies, you lose access to the assets. They will pass to the remainder beneficiaries in the trust, typically children, but they can be other beneficiaries of your choice.

If you and your spouse divorce, the spouse is still a beneficiary of the SLAT. Ask your estate planning attorney if this is something they can build into the SLAT but be mindful that if the attorney is representing both spouses for estate planning, there will be ethical considerations that could get tricky.

What about a SLAT for each spouse? If you and your spouse both establish SLATs to benefit each other, you run the risk of the “reciprocal trust doctrine.” The IRS could take the position that the trusts cancel each other out, and rule that the only reason for the SLAT was to remove taxable assets from your estate.

The SLATs need to be different from each other in more than a few ways. Your estate planning attorney will need to develop this with you. A few ways to structure two SLATs:

• Create them at different times. The more time between their creation, the better.
• Consider establishing the trusts in different states.
• Have different trustees.
• Vary the distribution rules for the surviving spouse and the distribution rules upon the death of the second spouse. For instance, one spouse’s trust could hold the assets in lifetime trusts for the children, while the other spouse’s trust could terminate, and assets be distributed to the children when they reach age 40.

The SLAT is an especially useful way to address tax liability. If you have not maxed out lifetime gifts in 2020, now is the time to start this process. December 2025, when the federal estate tax exemption reverts back to $5 million, will be here faster than you think. If the country needs to find revenue quickly, that change may come even sooner. Tax reform that occurs in 2021 is not likely to be retroactive to January 1, 2021, but there are no guarantees.

Reference: Forbes (Feb. 16, 2021) “Should a SLAT Be Part Of Your Estate Planning?”

How Can I Upgrade My Estate Plan?

“Everyone’s heard the stories of celebrities who died without a proper estate plan in place. It’s been a hot topic in the last few years with Prince and Aretha Franklin serving as unfortunate faces of the phenomenon. However, it’s not just freewheeling entertainers.”

Forbes’ recent article, “4 Ways To Improve Your Estate Plan,” suggests that since most people want to plan for a good life and a good retirement, why not plan for a good end of life, too? Here are four ways you can refine your estate plan, protect your assets and create a degree of control and certainty for your family.

1. Beneficiary Designations. Many types of accounts go directly to heirs, without going through the probate process. This includes life insurance contracts, 401(k)s and IRAs. These accounts can be transferred through beneficiary designations. You should update and review these forms and designations every few years, especially after major life events like divorce, marriage or the birth or adoption of children or grandchildren.
2. Life Insurance. A main objective of life insurance is to protect against the loss of income, in the event of an individual’s untimely death. The most important time to have life insurance is while you’re working and supporting a family with your income. Life insurance can provide much needed cash flow and liquidity for estates that might be subject to estate taxes or that have lots of illiquid assets, like family businesses, farms, artwork or collectibles.
3. Consider a Trust. In some situations, creating a trust to shelter or control assets is a good idea. There are two main types of trusts: revocable and irrevocable. You can fund revocable trusts with assets and still use the assets now, without changing their income tax nature. This can be an effective way to pass on assets outside of probate and allow a trustee to manage assets for their beneficiaries. An irrevocable trust can be a way to provide protection from creditors, separate assets from the annual tax liability of the original owner and even help reduce estate taxes in some situations.
4. Charitable Giving. With charitable giving as part of an estate plan, you can make outright gifts to charities or set up a charitable remainder annuity trust (CRAT) to provide income to a surviving spouse, with the remainder going to the charity.

Your attorney will tell you that your estate plan is unique to your situation. A big part of an estate plan is about protecting your family, making sure assets pass smoothly to your designated heirs and eliminating stress for your loved ones.

Reference: Forbes (November 6, 2019) “4 Ways To Improve Your Estate Plan”

How Does a Life Estate Work?

“When you use a life estate, how does it work? What are the restrictions and who pays the property taxes and other expenses for the home?”

Life estates are used for a number of estate planning purposes. However, the most frequent strategy is to use a life estate where a parent transfers a home to a child and retains a life estate for themselves.

nj.com’s recent article, “How does a life estate work to transfer a home to a child?” explains that as a result of the transfer, the child becomes the owner of the home but the parent has certain rights and responsibilities.

The most critical right retained with a life estate, is the exclusive right to reside in the property. A child cannot force the parent to move out, and likewise, the child doesn’t have any right to live there. The child can live with their parent, but the deed doesn’t give the child the legal right to live there.

With a life estate, the parent must pay the property taxes and all the regular maintenance connected to the property. In addition, the life tenant is responsible for repairs—but not improvements.

This can be hard to determine, but typically the life tenant must maintain the property in the same condition, as when the life estate deed was signed. Therefore, if the parent moves out, and the property is rented, the parent has the right to receive all of the rents.

When the parent passes away, the life estate automatically ceases and the child now has all of the rights associated with the property.

As far as income tax, when the parent dies, the property receives a “step up” in basis to the date of death value. If the property is sold after the parent dies, the capital gain or loss is calculated by deducting the date of death value from the sales price. It’s a very important tax advantage, if the parent has owned the home for a long time and the property has a low basis.

Retaining the life estate can help the child avoid the capital gains tax more effectively than just transferring the property outright to the child.

However, in contrast, if the property is sold while the parent is still alive, part of the proceeds will be allocated to the parent and part will be allocated to the child.

Only the percentage that’s allocated to the parent will be excluded from income under the federal tax laws. The part that’s allocated to the child may be subject to capital gains taxation.

Every family’s situation is different, so it would be wise to speak with an estate planning attorney to explore whether or not a life estate would be the best situation for you and your family.

Reference: nj.com (July 12, 2019) “How does a life estate work to transfer a home to a child?”

What is a Life Estate?

“What, exactly, is a life estate? Does it have any value?”
The question of a life estate may arise, when adult children are discussing the possibility of moving a parent into an assisted-living facility and selling the family home.
The Spokesman-Review’s recent article asks: “Does a life estate have cash value?”
The article explains that a life estate is a form of co-ownership. A person’s interest in property is limited to his life, with the property passing to other recipients at his death. The person who holds the life estate is called a life tenant, and those who receive the property at the death of the life tenant are called remaindermen.
The life tenant and the remaindermen both have real interests in the property, but unlike other partnerships or other forms of co-ownership, the life tenant and remaindermen don’t have rights in the property at the same time. Only the life tenant has a current right to possession. The remaindermen’s interest doesn’t become activated, until the death of the life tenant.
A life estate is an actual form of ownership, rather than a right to use. The life tenant—in many cases the parent—“owns” the house until her death. The parent will need to pay the taxes and keep the property in reasonable condition. The life tenant could sell the property, but the buyer would only have rights until she dies. There would be few people who would ever buy the property. No lender would loan mom money against the property because their interest would go away when the life tenant died.
But there is a value to a life estate, and upon sale, the life tenant must be compensated for the sale of their interest. Life estates are valued using the age of the life tenant and the present fair market value of the property.
Although life estates typically end when the life tenant (or another specified person) dies, some specify conditions that can trigger termination. These would cause the life estate to be terminated, even though the life tenant is still alive and well. For example, a life estate may terminate, if the life tenant leaves the home for more than six months. The actual life estate document details any conditional limits that define when the life estate terminates.
Talk with an experienced estate planning attorney about whether a life estate makes sense for your situation, or if there are alternative strategies that would be better suited.
Reference: The Spokesman-Review (March 17, 2019) “Does a life estate have cash value?”

Here’s More Insight into Why Estate Planning is Critical

“You're never too young or too old, too rich or too poor to start estate planning.”

Fox 5 NY says in the article “Why estate planning is important regardless of your age or wealth” that this is great time to begin talking to your loved ones about estate planning, especially older relatives and parents.

The key to a successful discussion depends upon the right approach.

Try to always make suggestions, rather than demands. One great way to start the conversation with family members, is to mention what you're doing. You might say something like, “I just took care of my own estate planning. Have you done anything? Maybe we should talk about it.” That might get the conversation rolling.

Many people believe that, as they get older, they need a will. However, that’s just one piece of the puzzle: core estate planning includes a will, power of attorney, health care proxy and asset protection.

For most of us, the asset we most want to protect is our home. One of the best ways to do that is through an irrevocable trust. This trust may have tax advantages, could protect your home during a healthcare crisis and protect your home from your children's creditors.

You also need to find people you trust to help with finances and health care. A power of attorney is a legal document in which you grant a person the authority to handle finances on your behalf.

Similarly, a healthcare proxy is an individual who makes healthcare decisions, if you get sick or are in an accident and can't make decisions for yourself.

You can use one person to do both or separate individuals for each role. You can opt for a family member or a trusted friend. However, either way it should probably be a younger person, who won't be dealing with the same aging issues as you.

You should also note that your will doesn't cover everything. Make certain that any beneficiaries designated in your retirement plans or life insurance and any additional names on joint bank accounts are current. The beneficiaries you appointed by a designation form will get the money in those accounts, no matter what it says in your will.

If all of this sounds a bit complex, don't worry because an experienced estate planning or elder law attorney can help you with all of the forms and all of your questions. Just understand these three things before you visit an elder law firm: your assets, whose names are on the accounts and your wishes.

Reference: Fox 5 NY (December 12, 2018) “Why estate planning is important regardless of your age or wealth”

How Do I Plan My Estate When Entering into a Second Marriage?

“How to plan for your estate when you're entering into a second marriage.”

Estate planning for spouses with children from a prior relationship can be difficult, as explained in an article from nj.com in the article “When you have kids, who should get inheritance from second marriage?” For example, if your new spouse leaves all of his assets to you outright, there’s no guarantee that his children will ever receive a dime. Even if you execute a will that gives his children an inheritance when you die, you could change the will at any time after your husband's death. The new will could cut his children out and leave everything to someone else, like your own kids. They could be children with the deceased spouse, or from a prior or later relationship, or a new spouse.

This can be a dilemma for the husband in this case. First, let’s look at whether he can unilaterally cut the new wife out of his will. As with most legal issues, the answer depends. However, New Jersey does have some laws to protect spouses from this situation.

In that state, the new wife may be able to claim an elective share. This entitles a surviving spouse to a third of the deceased spouse's estate—even if the deceased's will states that the survivor gets nothing. But this law is needs-based, so if she has her own property, either acquired independently or inherited from her spouse (including life insurance benefits) that’s more than the elective share amount, then she won’t be entitled to anything beyond what is provided under the will. That could be nothing.

New Jersey also has a law concerning an "omitted spouse." If your spouse executed a will before the marriage that leaves everything to his children but has no provisions for a future spouse, then the new wife would be entitled to a share of the deceased spouse's estate under the state’s intestacy laws. Those laws typically only apply, when someone dies without a will.  However, they would also apply in this situation. In that case, the new wife would be entitled to more than 50% of the husband's estate and his children would inherit the rest.

The husband has several ways to address the situation. The simplest is to leave some of his estate to the new wife and a portion to his children. Another solution is for the husband to include a trust for the new wife’s benefit in his will. This spousal trust would provide her with all of the income from the trust, as well as principal distributions necessary for her health, education, maintenance, and support, known as the ascertainable standard. She’s entitled to principal distributions to keep her standard of living at the same level it was before the husband's death. Anything left in the trust when she passes away, would go to the step-children. This trust typically includes the couple's home, so that the surviving spouse can stay there so long as she lives. The home can also be addressed by granting the survivor spouse a life estate deed.

A prenuptial agreement is another way to provide for step-children, especially when one or both spouses is wealthy.

Consult with an estate planning attorney to discuss these options. It's wise to begin before you get married. You and your spouse should examine the situation from both sides, so that you fully understand the others' feelings and goals.

Reference: nj.com (September 6, 2018) “When you have kids, who should get inheritance from second marriage?”

Do I Need Life Insurance in Retirement?

“If you're planning on relying solely on your Social Security check for retirement, you may want to reconsider. Here's why.”

As you look at your financial future, procrastinating can make things much tougher down the road. Here's how to get confident about your money.

USA Today’s recent article, “Financial planning: How to determine if you need life insurance in retirement,” notes that many older Americans wonder if they’ll need life insurance in retirement. They are concerned about whether their surviving spouse and loved ones will need the capital generated by the life insurance policy—the death benefit–to replace their income and to preserve assets.

The answer depends on the facts and circumstances. Some experts believe that if you planned well enough prior to retirement, you won’t need life insurance. You’ll have no debt, plenty of assets to replace the income lost due to your death and sufficient money to leave to heirs. That all sounds good in theory, but reality may be different.

Run the numbers. Examine your cash flow statement before and after the death of either spouse. If there’s more than enough income to cover the surviving spouse’s living expenses throughout retirement, then you might not need life insurance. However, if there’s not enough income, even after you calculate the amount the couple has saved and whether that can reliably provide for the surviving spouse—then you might need life insurance.

Life insurance can be used for other goals,  in addition to income replacement and paying off debt. It can be used for estate taxes, taxes due on inherited IRA distributions or taxes due on death-bed Roth conversions of qualified accounts, or for charitable planning.

A retiree with a large farm or business worth more than $22 million might want their heirs to use life insurance proceeds to pay estate taxes and to avoid selling the bequeathed asset.  They can also use required minimum distributions (RMDs) from IRAs to purchase life insurance that will provide a tax-free legacy to heirs, while designating a non-profit organization as the eventual beneficiary of the retirement account. This strategy allows a retiree to double the impact of their retirement account, while eliminating income taxes on the retirement savings.

In addition, with the possible need to fund long-term care expenses in retirement, retirees might consider buying a permanent life insurance policy with a rider for long-term care. In other cases, insurance policies with a large death benefit can be a substitute for long-term care coverage for the beneficiary, the surviving spouse.

If you need life insurance in retirement, purchase pure insurance that doesn’t build cash value, a policy just guarantees that the insurance will pay off.

Reference: USA Today (May 2, 2018) “Financial planning: How to determine if you need life insurance in retirement”

Life Estate May be the Solution to Your Estate Planning Issues

“If you don't want to set up a trust, a life estate can solve some possibly lengthy and costly problems for your heirs.”

Kiplinger’s recent article, “An Overlooked Way to Pass Down Your Home Without Probate: The Life Estate,” explains that simply designating a beneficiary in your will or assuming your home will pass to your children might mean issues for your heirs. If you don’t want to create a trust, you may want to consider a life estate.

With this strategy, you (as the “life tenant”) retain the right to live in your home until your death.  The property is then automatically transferred to the “remaindermen,” or your designated heirs. This can be advantageous for individuals or for couples who want to be sure that both parties can remain in the home for their lifetimes.

You’ll need to execute and file a deed to the property that records your status as the “grantor,” your remaindermen’s status as “grantees” and a clause on the deed that stipulates that you retain a life estate in the home. You should then update your property insurance policy to reflect the addition of new owners. As the life tenant, you’re still responsible for paying the mortgage, taxes, insurance premiums and maintaining the property. But even though you’ll have all the responsibilities of a full owner, your control over your home is complete. Once you add remaindermen to your property’s deed, you cannot just remove them without their consent. You also can’t sell or mortgage your home without the agreement of the remaindermen.

One potential drawback to a life estate is that a life estate ties up your financial interests with that of your heirs. For example, their divorce or bankruptcy could impact the property with a lien. It is also important to note that giving away assets through a life estate, may impact the timing of Medicaid eligibility and result in gift taxes for your heirs.

In addition to ensuring that you’ll remain in your home, it can make it simpler for your heirs to manage the logistics of your property after you pass away. For instance, you can use a life estate to make sure that your home goes to your children from a previous marriage while also guaranteeing that your spouse can stay for his or her lifetime, if you die first.

When making these types of plans, talk to an experienced estate planning attorney to help find the options that are best for your family.

Reference: Kiplinger (May 2017) “An Overlooked Way to Pass Down Your Home Without Probate: The Life Estate”

Life Estate Questions Answered

“With a life estate, there are two types of property owners.”

A recent article in USA Today, “Estate planning: Consider a life estate deed,” explains that a life estate is a way to transfer real estate to your beneficiaries during your lifetime.  However, it still allows you to keep the right to use and/or live on the property for the rest of your life. This simple process has some tax advantages, and it’s a way to avoid probate on the real estate.

The life tenant has the exclusive right to use the property during his or her lifetime. In many cases, this is a joint life tenant, like a husband and wife. The life tenant must maintain the property and pay the taxes and insurance. The remainderman has the exclusive ownership rights and responsibilities after the life tenant(s) die. At that point, the full ownership automatically transfers to the remainderman—without any probate or court filings. At this point, there’s what’s known as a full step up in basis, which provides capital gain tax advantages to the remainderman.

If a property is sold when there is a life tenant, both the life tenant and the remainderman must approve the sale. If both parties agree to the sale, then the life tenant will get a percentage of the sale proceeds (based on the life tenant’s age) and the remainderman will receive a percentage of the proceeds.

It is important to note that there may be an issue for the life tenant, if he or she is receiving or planning to qualify for Medicaid benefits. An estate planning attorney can help plan the sale properly, so the proceeds may not need to be spent down on the cost of care.

Life estates were used in the past as a way to protect real estate from potential long-term care costs and to keep control over the real estate during one’s lifetime. After five years lapsed from the transfer date, prior to applying for Medicaid, the property was protected from the cost of care. When applying for Medicaid for long-term care costs, the state usually wouldn’t calculate a life estate as an available asset.

However, some states have passed laws providing that all life estates created on or after a certain date are thereafter subject to estate recovery. This means that upon the death of a person receiving Medicaid benefits, the state could recover a percentage of the value of the life estate property, with the percentage determined by the age of the Medicaid recipient at the time of death. In these states, a life estate deed wouldn’t be the best way to preserve real estate from the cost of potential long-term care.

Life estates aren’t the best solution for everyone. Talk with an experienced estate planning attorney to determine the best ways to achieve your goals.

Reference: USA Today (February 27, 2017) “Estate planning: Consider a life estate deed”