King & Wood, P.A.

Do People Get Divorced after Age 65?

“A divorce almost always comes with emotional, personal and financial complications. However, a divorce late in life also adds a level of complexity to your estate and tax plan.”

Known as a “Gray” or “Silver” divorce, a couple who divorces in their 60s, 70s and beyond, faces different issues than a divorce earlier in life. Child custody and support are no longer an issue, but dividing up a lifetime of assets, while planning for long-term care in the midst of a divorce, can create its own complications, according to a recent article titled “How Silver Divorce adds a Wrinkle to your Estate Plan” from Westchester Business News.

Dividing Assets. With more assets, but little or no future earning capacity for either party, there’s more at stake in a silver divorce. How will retirement accounts be allocated, and will one spouse need to receive maintenance? A spouse may need to be kept on a life insurance or retirement account to protect them from poverty. Spouses with pensions need to investigate the rules for survivor benefits. It’s possible that a divorced spouse may not have access to survivor benefits, or one of the spouses doesn’t want the other to have access. This is all part of the negotiations.

Couples in their senior years are more likely to have comingled assets, including inheritances. This can create an issue, especially if the inherited assets have high value.

Taxing Matters. Transitioning from filing married jointly to filing single can have a big impact on annual income tax filing. The primary residence exclusion will also be impacted. This exclusion provides a tax exclusion from the sale of a primary residence of up to $250,000 for individuals filing single and $500,000 for those filing jointly.

The primary residence is often a couple’s largest asset, and if it was purchased 40 years ago at a lower cost than its present value, tax issues must be thoroughly evaluated. If the property is transferred to one of the spouses prior to the divorce, this may have a negative impact on the capital gains tax, if the property is sold. The $500,000 exclusion will drop to $250,000.

If the couple has a large estate exceeding their state’s estate tax exemption or the federal estate exemption, tax planning needs to change. The couple would lose the unlimited marital deduction, portability elections and the ability to utilize Disclaimer and Credit Shelter Trusts.

Planning for Long Term Care. If the couple has created a plan with their estate planning attorney for long-term care, it needs to be reviewed in light of the divorce. If the plan involved assets to be transferred to avoid the five-year look back period for Medicaid, those assets may be transferred to adult children or to an Irrevocable Medicaid Asset Protection Trust.

Estate Planning. Depending upon the state of residence, the final judgment of a divorce may revoke provisions and bequests in a Last Will and Testament—but it may not, so an estate planning attorney needs to be consulted. The same should be considered for the health care proxy, power of attorney or any similar documents.

Another fine point to be considered: divorces almost always take longer than anticipated. If one of the spouses should die or become incapacitated during the process, what would happen to the surviving spouse?

Reference: Westchester Business Journal (Oct. 4, 2021) “How Silver Divorce adds a Wrinkle to your Estate Plan”

What Is Family Business Succession Planning?

“Studies have shown that the number of family businesses owned by second generations and third generations dramatically decline for a number of reasons. One large reason is the lack of business succession planning for the family business.”

The importance of the family business in the U.S. can’t be overstated. Neither can the problems that occur as a direct result of a failure to plan for succession. Business succession planning is the development of a plan for determining when an owner will retire, what position in the company they will hold when they retire, who the eventual owners of the company will be and under what rules the new owners will operate, instructs a recent article, “Succession planning for family businesses” from The Times Reporter. An estate planning attorney plays a pivotal role in creating the plan, as the sale of the business will be a major factor in the family’s wealth and legacy.

• Start by determining who will buy the business. Will it be a long-standing employee, partners, or family members?
• Next, develop an advisory team of internal employees, your estate planning attorney, CPA, financial advisor and insurance agent.
• Have a financial evaluation of the business prepared by a qualified and accredited valuation professional.
• Consider taxes (income, estate and gift taxes) and income requirements to sustain the owner’s current lifestyle, if the business is being sold outright.
• Review estate planning strategies to reduce income and estate tax liabilities.
• Examine the financial impact of the sale on the family member, if a non-family member buys the business.
• Develop the structure of the sale.
• Create a timeline.
• Get started on all of the legal and financial documents.
• Meet with the family and/or the new owner on a regular basis to ensure a smooth transition.

Selling a business to the next generation or a new owner is an emotional decision, which is at the heart of most business owner’s utter failure to create a plan. The sale forces them to confront the end of their role in the business, which they likely consider their life’s work. It also requires making decisions that involve family members that may be painful to confront.

The alternative is far worse for all concerned. If there is no plan, chances are the business will not survive. Without leadership and a clear path to the future, the owner may witness the destruction of their life’s work and a squandered legacy.

Speak with your estate planning attorney and your accountant, who will have had experience helping business owners create and execute a succession plan. Talking about such a plan with family members can often create an emotional response. Working with professionals who benefit from a lack of emotional connection to the business will help the process be less about feelings and more about business.

Reference: The Times Reporter (March 7, 2021) “Succession planning for family businesses”

Make Sure Your Estate Plan Protects Digital Assets

 

 

 

 

“Do you have accounts, records or information that are accessed using your mobile phone, through an internet connection, or by using a keyboard or through a touch-screen or tablet?”

 

Today’s estate plan needs to expressly declare an “agent” or a “fiduciary” to gain access and control of “digital assets” in case of incapacity or death. If your estate plan has not been updated in the last four or five years, it’s likely that your digital assets are unprotected, advises the article “Properly addressing digital assets on your estate plan” from Southern Nevada Business Weekly.
Digital assets have value not only to owners, but to family members, beneficiaries and heirs. Some assets have sentimental value, like videos and photos, while others, like business records, URLs and gaming accounts, have financial value. Failing to address these issues in an estate plan could result in your executor and heirs being denied access and control of digital assets during incapacity or death.
Here are some examples of digital assets:
· Email accounts–contain communications and history, including information about other digital assets.
· Social media accounts/apps: Facebook, Twitter, Pinterest, YouTube, TikTok, etc.
· Photo Sharing Accounts: Instagram, Shutterfly, Snapfish, Flickr, etc.
· Gaming and Gambling Accounts/Apps: DraftKings, Esports Entertainment
· E-Commerce Accounts/Apps: Amazon, PayPal, Etsy, PayPal, Venmo, etc.
· Financial Accounts/Apps: Banks, Scottrade, E*Trade
· Retail Accounts: Any store, online shopping that has a username and a password
· Security Information: Two factor authentication, mobile phone PIN/PW, facial recognition, etc.
Here’s a little-known fact: without the proper legal authority to access these assets, the “agent” or “fiduciary” could be committing a crime. The Consumer Fraud and Abuse Act provides that it is a federal crime to access a computer and obtain information without authorization or when exceeding authorized access.
Most states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA 2017). The Act contains specific language to be used in wills, trusts or power of attorney to name a “designated recipient” or “fiduciary” to access, control, transfer, or close digital assets upon incapacity or after death. RUFADDA also provides specific procedures for companies to disclose digital assets to a designated recipient or fiduciary.
If your estate planning assets do not address the issue of digital assets or do not use the specific language of RUFADDA, or generally if your estate planning documents were created before 2017, it’s time for a review that includes digital assets.
Even if all you have is a personal email account, you have digital assets to protect. It’s not a big problem to address them in your estate plan but can become a bigger program if they are neglected.
Reference: Southern Nevada Business Weekly (Sep. 17, 2020)“Properly addressing digital assets on your estate plan”

How Does the SECURE Act Change Your Estate Plan?

“These changes are so significant that every such plan holders should review their wishes and how their estate plans may be affected.”

The SECURE Act has made big changes to how IRA distributions occur after death. Anyone who owns an IRA, regardless of its size, needs to examine their retirement savings plan and their estate plan to see how these changes will have an impact. The article “SECURE Act New IRA Rules: Change Your Estate Plan” from Forbes explains what the changes are and the steps that need be taken.

Some of the changes include revising wills and trusts which include provisions creating conduit trusts that had been created to hold IRAs and preserve the stretch IRA benefit, while the IRA plan owner was still alive.

Existing conduit trusts may need to be modified before the owner’s death to address how the SECURE Act might undermine the intent of the trust.

Rethinking and possibly completely restructuring the planning for the IRA account may need to occur. This may mean making a charity the beneficiary of the account, and possibly using life insurance or other planning strategies to create a replacement for the value of the charitable donation.

Another alternative may be to pay the IRA balance to a Charitable Remainder Trust (CRT) on death that will stretch out the distributions to the beneficiary of the CRT over that beneficiary’s lifetime under the CRT rules. Paired with a life insurance trust, this might replace the assets that will ultimately pass to the charity under the CRT rules.

The biggest change in the SECURE Act being examined by estate planning and tax planning attorneys is the loss of the “stretch” IRA for beneficiaries inheriting IRAs after 2019. Most beneficiaries who inherit an IRA after 2019 will be required to completely withdraw all plan assets within ten years of the date of death.

One result of the change of this law will be to generate tax revenues. In the past, the ability to stretch an IRA out over many years, even decades, allowed families to pass wealth across generations with minimal taxes, while the IRAs continued to grow tax tree.

Another interesting change: No withdrawals need be made during that ten-year period, if that is the beneficiary’s wish. However, at the ten-year mark, ALL assets must be withdrawn, and taxes paid.

Under the prior law, the period in which the IRA assets needed to be distributed was based on whether the plan owner died before or after the RMD and the age of the beneficiary.

The deferral of withdrawals and income tax benefits encouraged many IRA owners to bequeath a large IRA balance completely to their heirs. Others, with larger IRAs, used a conduit trust to flow the RMDs to the beneficiary and protect the balance of the plan.

There are exceptions to the 10-year SECURE Act payout rule. Certain “eligible designated beneficiaries” are not required to follow the ten-year rule. They include the surviving spouse, chronically ill heirs and disabled heirs. Minor children are also considered eligible beneficiaries, but when they become legal adults, the ten year distribution rule applies to them. Therefore, by age 28 (ten years after attaining legal majority), they must take all assets from the IRA and pay the taxes as applicable.

The new law and its ramifications are under intense scrutiny by members of the estate planning and elder law bar because of these and other changes. Speak with your estate planning attorney to review your estate plan to ensure that your goals will be achieved in light of these changes.

Reference: Forbes (Dec. 25, 2019) “SECURE Act New IRA Rules: Change Your Estate Plan”

 

Is Estate Planning Really Such a Big Deal?

“Your obligations to your family or loved ones do not stop, even if you have already passed on. If your family, especially your children, are still heavily dependent on you, you can still provide for them through proper estate planning, even if you are no longer present.”

Delaying your estate planning is never a good idea, says The South Florida Reporter, in the new article entitled “Why Estate Planning Is So Important.” That’s because life can be full of unexpected moments and before you know it, it’s too late. Estate planning is for everyone, regardless of financial status, and especially if they have a family that is very dependent on them.

Estate planning is designed to protect your family from complications concerning your assets when you die. Many people believe that they don’t require estate planning. However, that’s not true. Estate planning is a way of making sure that all your assets will be properly taken care of by your family, if you’re no longer able to make your decisions due to incapacity or death.

Without estate planning, a court will name a person—usually a stranger—to handle your assets and finances when you die. This makes the probate process lengthy and stressful. To protect your assets after you die, you need to have an estate plan in advance. You also need to address possible state and federal taxes. Your estate plan is a way to decrease your tax burdens.

With a proper estate plan, your final wishes for your assets will be set out in a legal document. With a will or trust, all of your assets will be distributed to your beneficiaries, according to your final wishes.

This will also save your family from having to deal with the distribution of your assets, which can become very complicated without a will. There can also be family fights from the process of distributing assets without a will.

 It is also important to remember that if you do create an estate plan, you’ll need to update it every once in a while—especially if there’s a significant event that happened in your life, like a birth, a death, or a move. Your estate plan should be ever-changing, since your assets and your life can also change.

It’s vital that you work with an experienced estate planning attorney, who can help you draft the legal documents that will make certain your family is taken care of after you pass away.

Reference: South Florida Reporter (June 12, 2019) “Why Estate Planning Is So Important”

Please Welcome Megan Hance!

We are pleased to announce that Megan Hance has joined our firm as a closing specialist. Megan comes to us with an extensive banking background. She worked in commercial lending for a year and a half and residential lending for two years. In her free time, she likes spending time with her family. She also enjoyed reading, cooking, and as a native Ohioan, cheering on the Ohio State Buckeyes during college football season.

Welcome Caroline Palmer!

We are pleased to announce that Caroline Palmer has joined our firm as Front Desk Coordinator.  Caroline will administer our client intake and scheduling processes. 

Caroline is a 2019 graduate of Florida State University, where she completed a B.A. in History with a minor in English.  A native of Live Oak, Florida, Caroline enjoys taking her dog, Jack, to the park, spending time with family and friends, and travelling when she can.  Caroline plans to continue her education by pursuing a master’s degree in Library and Information Sciences.

 

Welcome to the firm, Caroline!

What are the “Must Have” Estate Planning Documents?

“Having these three legal documents in place can make a huge difference for your heirs.”

What do Aretha Franklin, Kurt Cobain, and Prince have in common? Aside from being famous and talented, each of these stars passed away without a will. All three had the money and attorneys to draft a proper estate plan, but for whatever reason, they didn't draft one. It’s a good lesson to not neglect your estate plan.

Motley Fool reports in the article, “3 Must-Have Estate Planning Documents To Get Done This Year,” that dying without a will creates numerous problems for your family. If there are no legal instructions in place, probate law dictates the distribution of your assets and selection of guardians for your minor children, which can cause problems. Regardless of your personal situation, you should think about creating these three important estate planning documents.

1. Will. A will is used to distribute your estate, according to your instructions. A will can say how much and what type of asset each heir will receive, to minimize family fighting after your death. If you have young children, you can designate guardians in your will to be in charge of their care. If you die without a will, the probate judge will order who becomes their guardian.

You also need a will to make charitable bequests, to expedite the probate court process and to reduce or eliminate estate taxes. When you draft your will, you'll appoint trusted people to serve as the executor and the trustee.

2. Living will. A living will can take effect while you are still alive. This is a legal document that sets out your instructions for medical treatment, if you become unable to communicate, such as whether or not you want to be placed on life support. A living will can relieve the emotional burden from your family of having to make difficult decisions.
3. Power of attorney. This legal document helps in the event you’re incapacitated or in the hospital in an unresponsive state. A power of attorney gives the individual you designate the authority to transact financial and legal matters on your behalf. Set up a power of attorney, before you need it. If you don’t and you're unable to make decisions, your family may have to petition the court to get those powers, which costs time and money.

Estate planning is a huge favor that you’re doing for your family. Get these three legal documents in place.

Reference: Motley Fool (February 18, 2019) “3 Must-Have Estate Planning Documents To Get Done This Year”

 

Have You Accomplished This Critical Task?

“There's one critical move that a large number of older Americans have yet to make: creating a will.”

Motley Fool’s article, “Nearly Half of Americans 55 and Over Are Making This Huge Financial Planning Mistake,” notes that almost 50% of Americans 55 and older don't have a will. If you're missing a will, it's critical to make the time to get this important document written, before something tragic happens and heirs are left in the lurch.

While creating a will might be uncomfortable, delaying won't keep you from having to contemplate your own mortality. Not creating a will places your family in a tough spot, if something happens and there’s no will.

Another reason that people put off writing their wills, is that they don't want to make their children uncomfortable by getting them involved in the process. Adult children are also frequently hesitant to start a dialog about parents’ estate planning. Nonetheless, those discussions are important to have.

Wills, trusts and estate plans are not just for wealthy people. If you own anything, including a home, a car and any bank accounts, you need an estate plan and that includes a will.

If you don't have a will, you won't have the opportunity to direct the way in which your property is distributed. Instead, the laws of probate will instruct how your investments and belongings are disbursed after your death.

Once you have that will created, keep it in a safe place—no, not in a shoebox under your bed. Instead, buy a fireproof safe and store it there. In addition, give your children or loved ones access, so they're able to locate your will in the event that it’s required.

It’s common to get advice that you should store your will in a safe deposit box at your bank. That works if your children or other trusted people in your life are permitted access to it. However, if you're the only account holder on that safe deposit box, your family may need to go through some legal machinations to get into it. When you enlist the help of an estate planning attorney to create your estate planning documents, she should also retain a copy of it on record. That's another great benefit to having an attorney create your will, rather than going it alone.

Creating a will can be unpleasant business, but it’s not something you should put off. Having that document in place will give you peace of mind—you’ll know that your wishes will be executed as you desire. That's reason enough to stop delaying and get going.

Reference: Motley Fool (February 16, 2019) “Nearly Half of Americans 55 and Over Are Making This Huge Financial Planning Mistake”

What Do I Do First After the Death of My Spouse?

“Take care to avoid these mistakes after the death of a spouse…”

There is no doubt that the stress can be all-consuming, when a spouse passes away. It's not a good time to make financial decisions. You should also avoid making any major changes for at least a year, if you’re able. Allow your emotions to settle, prior to doing anything that could drastically impact your taxes and finances.

U.S. News & World Report recently published an article, “Don't Make These Mistakes When Your Spouse Passes Away,” that warns us to take care to avoid these mistakes after the death of a spouse:

Taxes. Your tax-filing status will change after a spouse passes away. That could move you into a higher tax bracket or cause you to lose tax breaks. You can’t file married filing jointly and no longer have two exemptions.

Social Security and Annuity Income. You may also lose your deceased partner's Social Security income. Widows and widowers can claim a Social Security survivor's payment that’s equal to the amount the higher earning spouse received. However, there will now be just one Social Security check coming in, not two. In some instances, pension or annuity payments might also cease. You may see significant changes to income.

Unplanned Withdrawals from Tax-Deferred Accounts. Many people seek to make up lost income, by taking retirement account withdrawals. However, a mistake can trigger both taxes and penalties. Income tax is due on each traditional 401(k) or IRA withdrawal, because when you withdraw tax-deferred money, there are tax consequences. When you make a withdrawal from a spouse's IRA, taxes are due. If you’re not 59½ or older, you could also pay a 10% early withdrawal penalty. Surviving spouses should try to minimize taxes on retirement account withdrawals to help the money last as long as possible.

Paying Taxes on Retirement Account Withdrawals Too Early. A surviving spouse can transfer tax-deferred retirement account assets into his or her name. That frequently lets a person further delay taxation. If you are under 70½, you can defer taxes into the future.

Paying a 10% Early Withdrawal Penalty. If the surviving spouse isn’t yet 59½ and needs some of the money in a retirement account, you can transfer the money into an inherited spousal IRA. If you need money, the IRS will let you take distributions. You’ll have to pay taxes, but you avoid the 10% penalty.

Required Minimum Distributions (RMDs). Distributions from retirement accounts are required after age 70½—even in the year when the spouse passes away. If the decedent was in payout mode and past 70½, make certain that between the decedent and beneficiary, you still take the required minimum distribution. If you forget, there’s a possible penalty of up to 50% of what you should have taken.

Advice. It’s not easy or practical to delve into your finances, right after losing a loved one. Don’t make any big money moves without advice. Remember to also incorporate tax planning with your estate planning, and work with an experienced estate planning attorney.

Reference: U.S. News & World Report (February 15, 2019) “Don't Make These Mistakes When Your Spouse Passes Away”