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 a Dynasty Trust?

“If you want to protect your family’s legacy from unnecessary taxes, divorce and creditors over the course of many generations, a dynasty trust could be your best friend.”

Don’t be put off by the term “dynasty.” Just as every person has an estate, even if they don’t live in a million-dollar home, every person who owns assets could potentially have a dynasty trust, even if they don’t rule a continent. If you have assets that you wish to pass to others, you need an estate plan and you may also benefit from a dynasty trust, says this recent article from Kiplinger, “A Smart Option for Transferring Wealth Through Generations: The Dynasty Trust.”

When parents die, assets are typically transferred to their descendants. In most cases, the assets are transferred directly to the heirs, unless a trust has been created. Estate taxes must be paid, usually from the assets in the estate. Inheritances are divided according to the will, after the taxes have been paid, and go directly to the beneficiary, who does what they want with the assets.

If you leave assets outright to heirs, when the beneficiary dies, the assets are subject to estate taxes again. If assets are left to grandchildren, they are likely to incur another type of taxes, called Generation Skipping Transfer Taxes (GSTT). If you want your children to have an inheritance, you’ll need to do estate planning to minimize estate tax liability.

If you own a Family Limited Partnership (FLP) or a Limited Liability Company (LLC), own real estate or have a large equity portfolio, you may have the ability to use gifting and wealth transfer plans to provide for your family in the future. You may be able to do this without losing control of the assets.

The “dynasty trust,” named because it was once used by families like the DuPont’s and Fords, is created to transfer wealth from generation to generation without being subject to various gift, estate and/or GSTT taxes for as long as the assets remain in the trust, depending upon appliable state laws. A dynasty trust can also be used to protect assets from creditors, divorcing spouses and others seeking to make a claim against the assets.

Many people use an Irrevocable Life Insurance Trust (ILIT) and transfer the assets free of the trust upon death. Most living trusts are transferred without benefit of being held within trusts.

A dynasty trust is usually created by the parents and can include any kind of asset—life insurance, securities, limited partnership interests, etc.—other than qualified retirement plans. The assets are held within the trust and when the grantor dies, the trust automatically subdivides into as many new trusts as the number of beneficiaries named in the trust. It’s also known as a “bloodline” trust.

Let’s say you have three children. The trust divides into three new trusts, dividing assets among the three. When those children die, the trust subdivides again for their children (grandchildren) in their own respective trusts and again, assets are divided into equal shares.

The trust offers broad powers for health, welfare, maintenance and support. The children can use the money as they wish, investing or taking it out. When created properly, the assets and growth are both protected from estate taxes. You’ll need a trustee and a co-trustee and an experienced estate planning attorney to draft and execute this plan.

Reference: Kiplinger (Oct. 2, 2021) “A Smart Option for Transferring Wealth Through Generations: The Dynasty Trust”

Is It Better Not to Have a Will?

“Estate planning is one of the most local areas of the law. It might be second only to criminal law in this respect. This means that the specific rules governing estate planning, testate inheritance and intestate transfers vary widely from state to state, and even sometimes between cities.”

When a person dies, estate and probate law govern how assets are distributed. If the person who has died has a properly prepared will, they have set up a “testate inheritance.” Their last will and testament will guide the distribution of their assets. If they die without a legitimate will, they have an “intestate estate,” as explained in a recent article titled “Testate vs. Intestate: Estate Planning” from Yahoo! Finance.

In an “intestate estate,” assets are distributed according to the laws of inheritance in the specific legal jurisdiction. The decedent’s wishes, or the wishes of their spouse or children, are not considered. The law is the sole determining power. You have no control over what happens to your assets.

Having a will prepared by an experienced estate planning attorney who is familiar with the law and your family’s situation is the best solution. The will must follow certain guidelines, including how many witnesses must be present for it to be executed property. A probate court reviews the will to ensure that it was prepared properly and if there are any doubts, the will can be deemed invalid.

Having a will drafted by an attorney makes it more likely to be deemed valid and enforced by the probate court. It also minimizes the likelihood of illegal or unenforceable provisions in the will.

Debts become problematic. If you owned a home and had unpaid property taxes or a mortgage and gave the house to someone in your will, they must pay the property taxes and either take over the mortgage or get a new mortgage and pay off the prior mortgage before taking ownership of the property. Otherwise, the executor may sell the home, pay the debts and give any remaining money to the heir.

Liabilities reduce inheritances. If someone has a $50,000 debt and very kindly left you $100,000, you’ll only receive $50,000 because the debt must be satisfied before assets are distributed. If the debt is higher than the value of the estate, heirs receive nothing.

Note that a person may use their will to distribute debts in any way they wish. Family members erroneously believe they are “entitled” by their blood relationship to receive an inheritance. This is not true. Anything you own is yours to give in any manner you wish—if you have a will prepared.

Another common problem: estates having fewer assets than expected. Let’s say someone gives a donation of $500,000 to a local charity, but their entire estate is only worth $100,000. In that case, the $100,000 is distributed in a pro-rata basis according to the terms of the will. The generous gift will not be so generous.

If there is no will, the probate code governs distribution of assets, usually based on kinship. Close relatives inherit before distant relatives. The order is typically (but not always, local laws vary) the spouse, children, parents of the decedent, siblings of the decedent, grandparents of the decedent, then nieces, nephews, aunts, uncles and first cousins.

Another reason to have a will: estranged or unidentified heirs. Settling an estate includes notifying all and any potential heirs of a death and they may have legal rights to an inheritance even if they have never met the decedent. Lacking a will, an estate is more vulnerable to challenges from relatives. Relying on state probate law to distribute assets is hurtful to those you love, since it creates a world of trouble for them.

Reference: Yahoo! Finance (Sep. 22, 2021) “Testate vs. Intestate: Estate Planning”

Estate Planning Meets Tax Planning

“By being very selective about who receives which type of money—whether Traditional or Roth IRAs, after-tax brokerage accounts, life insurance, etc.—you can dramatically cut the share that goes to the IRS and increase the amount going to your family.”

Not keeping a close eye on tax implications, often costs families tens of thousands of dollars or more, according to a recent article from Forbes, “Who Gets What—A Guide To Tax-Savvy Charitable Bequests.” The smartest solution for donations or inheritances is to consider your wishes, then use a laser-focus on the tax implications to each future recipient.

After the SECURE Act destroyed the stretch IRA strategy, heirs now have to pay income taxes on the IRA they receive within ten years of your passing. An inherited Roth IRA has an advantage in that it can continue to grow for ten more years after your death, and then be withdrawn tax free. After-tax dollars and life insurance proceeds are generally not subject to income taxes. However, all of these different inheritances will have tax consequences for your beneficiary.

What if your beneficiary is a tax-exempt charity?

Charities recognized by the IRS as being tax exempt don’t care what form your donation takes. They don’t have to pay taxes on any donations. Bequests of traditional IRAs, Roth IRAs, after-tax dollars, or life insurance are all equally welcome.

However, your heirs will face different tax implications, depending upon the type of assets they receive.

Let’s say you want to leave $100,000 to charity after you and your spouse die. You both have traditional IRAs and some after-tax dollars. For this example, let’s say your child is in the 24% tax bracket. Most estate plans instruct charitable bequests be made from after-tax funds, which are usually in the will or given through a revocable trust. Remember, your will cannot control the disposition of the IRAs or retirement plans, unless it is the designated beneficiary.

By naming a charity as a beneficiary in a will or trust, the money will be after-tax. The charity gets $100,000.

If you leave $100,000 to the charity through a traditional IRA and/or your retirement plan beneficiary designation, the charity still gets $100,000.

If your heirs received that amount, they’d have to pay taxes on it—in this example, $24,000. If they live in a state that taxes inherited IRAs or if they are in a higher tax bracket, their share of the $100,000 is even less. However, you have options.

Here’s one way to accomplish this. Let’s say you leave $100,000 to charity through your IRA beneficiary designations and $100,000 to your heirs through a will or revocable trust. The charity receives $100,000 and pays no tax. Your heirs also receive $100,000 and pay no federal tax.

A simple switch of who gets what saves your heirs $24,000 in taxes. That’s a welcome savings for your heirs, while the charity receives the same amount you wanted.

When considering who gets what in your estate plan, consider how the bequests are being given and what the tax implications will be. Talk with your estate planning attorney about structuring your estate plan with an eye to tax planning.

Reference: Forbes (Jan. 26, 2021) “Who Gets What—A Guide To Tax-Savvy Charitable Bequests”

Prince’s Estate Troubles Back in the Headlines

“The IRS determined that Prince's estate is worth $163.2 million, well above the $82.3 million valuation submitted by Comerica Bank & Trust, the estate's administrator.”

The Internal Revenue Service has said the executors of Prince’s estate made a serious mistake in their calculations, reducing its value by about $80 million, as reported in the article “IRS says Prince’s estate undervalued by 50%, triggering another dispute in settlement” from the Star Tribune.

The discrepancy comes from the value of music publishing and recording interests, according to court documents. The IRS claims Prince’s estate owes $32.4 million in federal taxes, about double the tax bill as valued by Comerica, a financial services giant. That is a pricey difference, but it is not the only bad news for heirs.

The IRS has slapped the estate with a $6.4 million accuracy related penalty, to be paid by Prince’s estate, because of the sheer size of the undervaluation.

Estimates of Prince’s estate’s net worth have varied from $100 to $300 million, since the time of his death. There was no will and no estate plan when Prince died in 2016, creating one of the largest and most complicated probate court proceedings in Minnesota’s history.

Comerica and the law firm representing the financial institution maintain that the estate valuations are accurate. This past summer, Comerica sued the U.S. Tax Court in Washington, D.C., charging the agency with having many mistakes in its calculations.

The IRS believes the fair market value of Prince’s ownership of NPG Music Publishing should be $36.9 million, and not $21 million as calculated by the estate. The estate placed the value of his ownership of NPG Records at $19.5 million, and the IRS says it is actually worth $46.5 million.

With a case dragging on for more than four years, Prince’s six sibling heirs are increasingly unhappy. Prince’s heirs range in age from 50 to 80 and one brother has already died of heart disease in 2019. They have seen the estate shrink, as tens of millions of dollars are being paid to consultants and lawyers.

In the meantime, Primary Wave, a company that invests in music copyrights, has been very interested in the estate, and two of the siblings have already agreed to sell large portions of their rights to Primary Wave. The company recently spent a reported $100 million to purchase an 80% interest in Fleetwood Mac star Stevie Nick’s publishing rights, and Bob Dylan sold his song catalog to a different company for around $400 million.

Eventually, when the case does settle, the siblings will enact their own “transition plan” to the Carver County Probate court, according to recent court filings.

Reference: Star Tribune (Jan. 2, 2021)  “IRS says Prince’s estate undervalued by 50%, triggering another dispute in settlement”

 

Should You Update Your Will When You Move?

“State-by-state differences in matters around taxes, inheritance, marital property and more make a thorough review imperative.”

In the excitement of a move from one state to another, people often forget that their estate plan may no longer be valid. That is because each state has its own laws about estate planning, according to a recent article “Moving to a new state? If so, make sure those estate plans have been updated” from CNBC. Once you’ve moved to a new state, you’ll want to find a local estate planning attorney to help.

A surprising 4.7 million Americans moved out of their home states last year, and while they may have had checklists including the obvious—driver’s license, finding a physician, and a new barber—finding a new estate planning attorney to update their estate plan may not have been at the top of the list. Or even the middle.

Many think a will that worked in one state is automatically valid in another, but that is not true. Other documents may not be valid, including power of attorney, living will or advance directive, health care proxy and any other estate planning documents.

The time immediately after a move is the right time to review documents for another reason: if your POA agent is now 1,400 miles away, is it realistic for that person to have that role? You probably need to find someone else. The same goes for your healthcare Power of Attorney.

Healthcare powers of attorney and other medical directives vary from state to state. What if the medical providers in your new state don’t recognize and won’t accept a medical POA from another state? If your documents are not accepted, your agent may not be able to make the decisions you had empowered them to make. Your family may need to go to court to confirm the validity of your documents. That is not something you want to force upon your family during a health crisis.

Certain states do not allow non-residents to serve as executors. Only three states allow a non-resident executor, and then only if they are directly related to you. Other states impose other restrictions, including requiring the non-resident to post a bond to protect your estate or appointing an in-state agent.

When people consider moving to another state, it’s often to lower their taxes. However, establishing a new state as your domicile and getting the tax benefit depends on many factors. Those factors include where you work, are registered to vote and what state issued your driver’s license. Also important is: the address on your estate planning documents. If your estate planning documents have your old address while you are trying to establish a new state of residence, you could run into an expensive tax snag.

Speak with your new estate planning attorney about how your assets are titled, including your trusts. Certain types of titling are not recognized in different states. Community property, tenants by the entirety and joint tenancy, with or without right of survivorship, are all treated differently in different states.

Estate taxes also differ from state to state. While federal estate tax only applies to decedents with estates valued at more than $23.4 million (for 2021), state estate taxes, inheritance taxes and gift taxes are imposed at lower levels. Most states do not impose estate taxes on transfers to a surviving spouse, but you’ll want to know what the future will bring beforehand.

An estate planning attorney in your new home state will help you navigate the difference between your old estate plan and the one that will work in your new state.

Reference: CNBC (Dec. 14, 2020) “Moving to a new state? If so, make sure those estate plans have been updated”

What Happens When a Will Is Challenged?

“Sometimes beneficiaries end up not receiving their assets. Beneficiaries often lose out because the estate planning wasn’t done properly, but sometimes another family member contests the decedent’s will.”

What happens when estate planning doesn’t go according to plan? A last will and testament is a legally binding contract that determines who will get a person’s assets. However, according to the article “Can you prevent someone from challenging your will?” in the Augusta Free Press, it is possible for someone to bring a legal challenge.

Most will contests are centered around five key reasons:

• The deceased had a more recent will.
• The will was not signed voluntarily.
• The deceased was incapacitated, when she signed the will.
• The will was not signed in front of the right number of witnesses.
• The will was signed under some kind of duress or mental impairment.

What is the best way to lessen the chances of someone challenging your will? Take certain steps when the will is created, including:

Be sure your will is created by an estate planning attorney. Just writing your wishes on a piece of paper and signing and dating the paper is not the way to go. Certain qualifications must be met, which they vary by state. In some states, one witness is enough for a will to be properly executed. In others, there must be two and they can’t be beneficiaries.

The will must state the names of the intended beneficiaries. If you want someone specific to be excluded, you’ll have to state their name and that you want them to be excluded. A will should also name a guardian, if your children are minors.  It should also contain the name of an alternate executor, in case the primary executor predeceases you or cannot serve.

What about video wills? First, make a proper paper will. If you feel the need to be creative, make a video. In many states, a video will is not considered to be valid. A video can also become confusing, especially if what you say in the paper will is not exactly the same as what’s in the video. Discrepancies can lead to will contests.

Don’t count on those free templates. Downloading a form from a website seems like a simple solution, but some of the templates online are not up to date. They also might not reflect the laws in your state. If you own property, or your estate is complex, a downloaded form could create confusion and lead to family battles.

Tell your executor where your will is kept. If no one can find your will, people you may have wanted to exclude from your estate will have a better chance of succeeding in a will challenge. You should also tell your executor about any trusts, insurance policies and any assets that are not listed in the will.

Don’t expect that everything will go as you planned. Prepare for things to go sideways, to protect your loved ones. It is costly, time-consuming and stressful to bring an estate challenge, but the same is true on the receiving end. If you want your beneficiaries to receive the assets you intend for them, a good estate planning attorney is the right way to go.

Reference: Augusta Free Press (July 12, 2020) “Can you prevent someone from challenging your will?”