Read more about the article Do Heirs Have to Pay Debts from an Estate? – Annapolis and Towson Estate Planning

Do Heirs Have to Pay Debts from an Estate? – Annapolis and Towson Estate Planning

Part of estate planning is considering how future repayment of debts, both owed to the person and debts they are responsible for, will impact inheritances received by beneficiaries. A recent article from Lake County News, “Estate Planning: Debts and Estate Planning,” explains how the process works.

Assets passing to a beneficiary directly, outside of probate, are not typically subject to paying a decedent’s debts. These are life insurance proceeds, joint tenancy assets, Payable on Death (POD) and Transfer on Death (TOD), to name a few.

The estate plan must consider how much debt exists and how it might be paid. One approach is to purchase life insurance made payable to the trust estate.

A person may specifically gift real property, which would be subject to repaying an outstanding debt, like a mortgage.

If the beneficiary who would otherwise receive the residence takes it subject to repaying the secured debt, other assets in the estate would need to be reduced to pay the debt.

This should be addressed when the estate plan is created and must be expressly documented. If not addressed, the default rule is that any secured debt goes with the gift. It’s not likely to have been the plan. However, this is how the law works.

Third, parents and children may loan money between themselves. This is usually between parent and child.

Such family debts merit attention during estate planning. For example, parents may wish to loan money to a child to pay higher education costs, to buy a home, or to launch a business.

Upon the death of the parent, should any unpaid balance be repaid by the child to the parent’s estate, or should the child’s debt be forgiven? This must also be clearly stated in the will or trust, whatever is relevant.

If the parent wishes the child to pay the unpaid balance, the debt obligation and its payment history must be in writing and updated. The debt may be assigned to the parent’s trust and enforced by the successor trustee.

At death, the unpaid balance would need to be added back into the estate’s value to arrive at the correct gross value necessary to assess each share of the total estate.

The unpaid balance is usually subtracted from the debtor’s share.

Children might also be owed money from a parent. For example, the adult child might provide at-home personal care services to their parent, or money may be lent to help with the parent’s cost of living. The debt and repayment history also needs to be in writing and updated regularly.

Debt must be acknowledged, and the means of repaying the debt must be made clear. An estate planning attorney will help document and build repayment into the estate plan.

Contact us to review your estate plan with one of our experienced estate planning attorneys.

Reference: Lake Country News (April 29, 2023) “Estate Planning: Debts and Estate Planning”

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

Read more about the article Some Expenses are Paid by Estate and Some by Beneficiary – Annapolis and Towson Estate Planning

Some Expenses are Paid by Estate and Some by Beneficiary – Annapolis and Towson Estate Planning

Settling an estate can be complex and time-consuming—it all depends on how much “estate planning” was done. According to a recent article from Yahoo Finance titled “What Expenses Are Paid by the Estate vs. Beneficiary?” the executor is the person who creates an inventory of assets, determines which expenses need to be paid and distributes the remainder of the estate to the deceased’s beneficiaries. How does the executor know which monies are paid by the estate and which by the beneficiaries?

First, let’s establish what kind of expenses an estate pays. The main expenses of an estate include:

Outstanding debts. The executor has to notify creditors of the decedent’s death and the creditors then may make a claim against the estate. Because a person dies doesn’t mean their debts disappear—they become the debts of the estate.

Taxes. There are many different taxes to be paid when a person dies, including estate, inheritance and income tax. The federal estate tax is not an issue, unless the estate value exceeds the exemption limit of $12.92 million for 2023. Not all states have inheritance taxes, so check with a local estate planning attorney to learn if the beneficiaries will need to pay this tax. If the decedent has an outstanding property tax bill for real estate property, the estate will need to pay it to avoid a lien being placed on the property.

Fees. There are court fees to file documents including a will to start the probate process, to serve notice to creditors or record transfer of property with the local register of deeds. The executor is also entitled to collect a fee for their services.

Maintaining real estate property. If the estate includes real estate, it is likely there will be expenses for maintenance and upkeep until the property is either distributed to heirs or sold. There may also be costs involved in transporting property to heirs.

Final expenses. Unless the person has pre-paid for all of their funeral, burial, cremation, or internment costs, these are considered part of estate expenses. They are often paid out of the death benefit associated with the deceased person’s life insurance policy.

What expenses does the estate pay?

The estate pays outstanding debts, including credit cards, medical bills, or liens.

  • Appraisals needed to establish values of estate assets;
  • Repairs or maintenance for real estate
  • Fees paid to professionals associated with settling the estate, including executor, estate planning attorney, accountant, or real estate agent;
  • Taxes, including income tax, estate tax and property tax; and
  • Fees to obtain copies of death certificates.

The executor must keep detailed records of any expenses paid out of estate assets. The executor is the only person entitled by law to see the decedent’s financial records. However, beneficiaries have the right to review financial estate account records.

What does the beneficiary pay?

This depends on how the estate was structured and if any special provisions are included in the person’s will or trust. Generally, expect to pay:

  • Final expenses not covered by the estate;
  • Personal travel expenses;
  • Legal expenses, if you decide to contest the will; and
  • Property maintenance or transportation costs not covered by the estate.

Some of the expenses are deductible, and the executor must use IRS Form 1041 on any estate earning more than $600 in income or which has a nonresident alien as a beneficiary.

An estate planning attorney is needed to create a comprehensive estate plan addressing these and other issues in advance. If little or no planning was done before the decedent’s death, an estate planning attorney will also be an important resource in navigating through the estate’s settlement.  Contact us to review your estate plan with one of our experienced estate planning attorneys.

Reference: Yahoo finance (Dec. 29, 2022) “What Expenses Are Paid by the Estate vs. Beneficiary?”

 

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

What Is Included in an Estate Inventory? – Annapolis and Towson Estate Planning

The executor’s job includes gathering all of the assets, determining the value and ownership of real estate, securities, bank accounts and any other assets and filing a formal inventory with the probate court. Every state has its own rules, forms and deadline for the process, says a recent article from Yahoo! Finance titled “What Do I Need to Do to Prepare an Estate Inventory for Probate,” which recommends contacting a local estate planning attorney to get it right.

The inventory is used to determine the overall value of the estate. It’s also used to determine whether the estate is solvent, when compared to any claims of creditors for taxes, mortgages, or other debts. The inventory will also be used to calculate any estate or inheritance taxes owed by the estate to the state or federal government.

What is an estate asset? Anything anyone owned at the time of their death is the short answer. This includes:

  • Real estate: houses, condos, apartments, investment properties
  • Financial accounts: checking, savings, money market accounts
  • Investments: brokerage accounts, certificates of deposits, stocks, bonds
  • Retirement accounts: 401(k)s, HSAs, traditional IRAs, Roth IRAs, pensions
  • Wages: Unpaid wages, unpaid commissions, un-exercised stock options
  • Insurance policies: life insurance or annuities
  • Vehicles: cars, trucks, motorcycles, boats
  • Business interests: any business holdings or partnerships
  • Debts/judgments: any personal loans to people or money received through court judgments

Preparing an inventory for probate may take some time. If the decedent hasn’t created an inventory and shared it with the executor, which would be the ideal situation, the executor may spend a great deal of time searching through desk drawers and filing cabinets and going through the mail for paper financial statements, if they exist.

If the estate includes real property owned in several states, this process becomes even more complex, as each state will require a separate probate process.

The court will not accept a simple list of items. For example, an inventory entry for real property will need to include the address, legal description of the property, copy of the deed and a fair market appraisal of the property by a professional appraiser.

Once all the assets are identified, the executor may need to use a state-specific inventory form for probate inventories. When completed, the executor files it with the probate court. An experienced estate planning attorney will be familiar with the process and be able to speed the process along without the learning curve needed by an inexperienced layperson.

Deadlines for filing the inventory also vary by state. Some probate judges may allow extensions, while other may not.

The executor has a fiduciary responsibility to the beneficiaries of the estate to file the inventory without delay. The executor is also responsible for paying off any debts or taxes and overseeing the distribution of any remaining assets to beneficiaries. It’s a large task, and one that will benefit from the help of an experienced estate planning attorney.

Reference: Yahoo! finance (Dec. 3, 2022) “What Do I Need to Do to Prepare an Estate Inventory for Probate”

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

Top 10 Success Tips for Estate Planning – Annapolis and Towson Estate Planning

Unless you’ve done the planning, assets may not be distributed according to your wishes and loved ones may not be taken care of after your death. These are just two reasons to make sure you have an estate plan, according to the recent article titled “Estate Planning 101: 10 Tips for Success” from the Maryland Reporter.

Create a list of your assets. This should include all of your property, real estate, liquid assets, investments and personal possessions. With this list, consider what you would like to happen to each item after your death. If you have many assets, this process will take longer—consider this a good thing. Don’t neglect digital assets. The goal of a careful detailed list is to avoid any room for interpretation—or misinterpretation—by the courts or by heirs.

Meet with an estate planning attorney to create wills and trusts. These documents dictate how your assets are distributed after your death. Without them, the laws of your state may be used to distribute assets. You also need a will to name an executor, the person responsible for carrying out your instructions.

Your will is also used to name a guardian, the person who will raise your children if they are orphaned minors.

Who is the named beneficiary on your life insurance policy? This is the person who will receive the death benefit from your policy upon your death. Will this person be the guardian of your minor children? Do you prefer to have the proceeds from the policy used to fund a trust for the benefit of your children? These are important decisions to be made and memorialized in your estate plan.

Make your wishes crystal clear. Legal documents are often challenged if they are not prepared by an experienced estate planning attorney or if they are vaguely worded. You want to be sure there are no ambiguities in your will or trust documents. Consider the use of “if, then” statements. For example, “If my husband predeceases me, then I leave my house to my children.”

Consider creating a letter of intent or instruction to supplement your will and trusts. Use this document to give more detailed information about your wishes, from funeral arrangements to who you want to receive a specific item. Note this document is not legally binding, but it may avoid confusion and can be used to support the instructions in your will.

Trusts may be more important than you think in estate planning. Trusts allow you to take assets out of your probate estate and have these assets managed by a trustee of your choice, who distributes assets directly to beneficiaries. You don’t have to have millions to benefit from a trust.

List your debts. This is not as much fun as listing assets, but still important for your executor and heirs. Mortgage payments, car payments, credit cards and personal loans are to be paid first out of estate accounts before funds can be distributed to heirs. Having this information will make your executor’s tasks easier.

Plan for digital assets. If you want your social media accounts to be deleted or emails available to a designated person after you die, you’ll need to start with a list of the accounts, usernames, passwords, whether the platform allows you to designate another person to have access to your accounts and how you want your digital assets handled after death. This plan should be in place in case of incapacity as well.

How will estate taxes be paid? Without tax planning properly done, your legacy could shrink considerably. In addition to federal estate taxes, some states have state estate taxes and inheritance taxes. Talk with your estate planning attorney to find out what your estate tax obligations will be and how to plan strategically to pay the taxes.

Plan for Long Term Care. The Department of Health and Human Services estimates that about 70% of Americans will need some type of long-term care during their lifetimes. Some options are private LTC insurance, government programs and self-funding.

The more planning done in advance, the more likely your loved ones will know what to do if you become incapacitated and know what you wanted when you die.  Contact us to begin working on your estate plan with one of our experienced estate planning attorneys today.

Resource: Maryland Reporter (Sep. 27, 2022) “Estate Planning 101: 10 Tips for Success”

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

Must I Pay for Spouse’s Debt If They Die? – Annapolis and Towson Estate Planning

Nj.com’s recent article entitled “Who has to pay medical bills when a spouse dies?” says that a creditor may pursue collection against a spouse for an expense incurred by the other spouse for “necessaries.” only where the financial resources of the spouse who incurred the expense are insufficient, unless both spouses agreed to pay the debt.

In situations where both spouses incurred the debt, or agreed to pay the debt, or one spouse guaranteed the debt of the other spouse, the creditor may go after either or both spouses.

However, if one spouse incurs a medical expense or other expense deemed necessary — including, in some cases, legal fees or clothing — the creditor must first look to the spouse who incurred the expense.

Note that only if the spouse’s assets are insufficient to pay may the creditor seek payment from the non-debtor spouse.

It is also important to know that each spouse holding his or her assets in separate names doesn’t avoid responsibility for the debtor spouse’s medical bills, if the debtor spouse’s assets are insufficient to pay such bills.

Signing a pre-marital or post-marital agreement, in which each spouse agrees to be responsible for his or her own medical expenses, also doesn’t prevent a creditor from pursuing payment against the non-debtor spouse if the debtor spouse, or the debtor spouse’s estate, lacks the ability to pay.

Spouses also may not be able to avoid a creditor seeking reimbursement with respect to `necessaries’ merely by separating.

Before paying any creditors for a deceased person, please contact our office to speak with one of our attorneys.

Reference: nj.com (Aug. 3, 2022) “Who has to pay medical bills when a spouse dies?”

 

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

Do You have to Go through Probate when Someone Dies? – Annapolis and Towson Estate Planning

Probate involves assets, debts and distribution. The administration of a probate estate involves gathering all assets owned by the decedent, all claims owed to the decedent and the payments of all liabilities owed by the decedent or the estate of the decedent and the distribution of remaining assets to beneficiaries. If this sounds complicated, that is because it is, according to the article “The probate talk: Administrators, creditors and beneficiaries need to know” from The Dallas Morning News.

The admission of a decedent’s will to probate may be challenged for up to two years from the date it was admitted to probate. Many people dismiss this concern, because they believe they have done everything they could to avoid probate, from assigning beneficiary designations to creating trusts. Those are necessary steps in estate planning, but there are some possibilities that executors and beneficiaries need to know.

Any creditor can open a probate estate and sue to pull assets back into the estate. A disappointed heir can sue the executor/administrator and claim that designations and transfers were made when the decedent was incapacitated, unduly influenced or the victim of fraud.

It is very important that the administrator handles estate matters with meticulous attention to detail, documenting every transaction, maintaining scrupulous records and steering clear of anything that might even appear to be self-dealing. The administrator has a fiduciary duty to keep the beneficiaries of the estate reasonably informed of the process, act promptly and diligently administer and settle the estate.

The administrator must also be in a position to account for all revenue received, money spent and assets sold. The estate’s property must not be mixed in any way with the administrator’s own property or funds or business interests.

The administrator may not engage in any self-dealing. No matter how easily it may be to justify making a transaction, buying any of the estate’s assets for their own benefit or using their own accounts to temporarily hold money, is not permitted.

The administrator must obtain a separate tax identification number from the IRS, known as an EIN, for the probate estate. This is the identification number used to open an estate bank account to hold the estate’s cash and any investment grade assets. The account has to be properly named, on behalf of the probate estate. Anything that is cash must pass through the estate account, and every single receipt and disbursement should be documented. There is no room for fuzzy accounting in an estate administration, as any estate planning lawyer will advise.

Distributions do not get made, until all creditors are paid. This may not win the administrator any popularity contests, but it is required. No creditors are paid until the taxes are paid—the last year’s taxes for the last year the decedent was alive, and the estate taxes. The administrator may be held personally liable, if money is paid out to creditors or beneficiaries and there is not enough money in the estate to pay taxes.

If the estate contains multiple properties in different states, probate must be done in all of those different states. If it is a large complex estate, an estate planning attorney will be a valuable resource in helping to avoid pitfalls, minor or major.

Reference: The Dallas Morning News (May 16, 2021) “The probate talk: Administrators, creditors and beneficiaries need to know”

 

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

A Millennial’s Guide for Investing – Annapolis and Towson Estate Planning

Bankrate recently created a guide to investing for Millennials. The Millennial Generation is not only concerned about the ability to retire when they choose, but also outliving their retirement savings.

Many millennials carry a great weight of debt, most of which tends to be student loan debt. The large debt ratio of this generation plays a major role in why they are unable or afraid to invest. It is important to keep in mind that avoiding riskier investments will not help build your retirement faster.

Bankrate reports in their recent article  “Time on your side: A guide to millennial investing” why it is so beneficial for millennials to invest early on. The article also provides a guide on how to go about investing, even if you think this is not in your current budget.

According to Bankrate, before making your investment you should evaluate how much you are able to invest. Here are a few steps to follow:

Calculate your total debt: First, figure out how much income you have coming in monthly and how much money is coming out. Some things to consider are rent or a house payment, monthly loan payments, monthly credit card payments, and factor in other debts or payments that must be made monthly. Paying off even a small credit card can help alleviate some debt and provide you with money to put towards your investment.

Determine your financial risk level: Keep in mind that there will always be ups and downs in the stock market. With this being said, if you have a short-term goal that you have been saving for, you may want to start by investing conservatively.

Educate yourself on stark market basics: Bonds, brokerage account, ETFs or exchange-traded funds, mutual funds, and stocks are all terms that you should educate yourself on. The article published by Bankrate is a good starting point for these investing terms.

One thing to keep in mind is the importance of staying up to date on financial news. General stock market news can be found on any major news source. Before you get started with your investing, determine your short-term and long-term goals.

Reference: Bankrate (February 20, 2020) “Time on your side: A guide to millennial investing”

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

Should I Use a Home Equity Loan to Float my Retirement? – Annapolis and Towson Estate Planning

Many retirees—and those nearing retirement—have put much of their savings in traditional IRAs or 401(k)s, which are tax-deferred methods for accumulating wealth. In addition, taxpayers may decide to use other tax-deferred accounts to avoid interest, dividends, and capital gains from spilling into their tax returns. These strategies can help taxpayers decrease income and taxes.

However, Kiplinger’s recent article, “How You Can ‘TAP’ into Home Equity to Help Keep Your Retirement Stable,” says that once we “turn on the faucet” and withdraw money from these tax-deferred accounts, additional income will have to be claimed on our tax returns. Instead, retirees can make moves that will help them reduce taxes. A lesser-known tool to look at for tax-free income is a home equity line of credit, or HELOC, on your home.

Let’s examine two scenarios in which a HELOC may make sense in retirement:

An IRA drawdown. Let’s say that a typical married retired couple wants to stay in the 12% tax bracket as joint filers. They can withdraw up to $78,950 of taxable income from their IRAs to stay in this bracket in 2019. That amount goes up to $103,350, after adding the standard deduction of $24,400. Then, for any additional funds they may need during the year, they can use a HELOC. For example, if they take $15,000 out, they will actually receive $15,000 tax-free. However, if they take the same amount from their IRA, it would move them into the 22% tax bracket. As a result, they’d owe $3,300 in federal taxes, in addition to any state or local income taxes. Therefore, they only receive about $10,000 after taxes from their IRA withdrawal. The HELOC is tax-free, and the interest rate charged on a HELOC is generally low at this point. Depending on your purpose for the money, that interest may be tax deductible, and repayments can be planned over a multiyear term to be covered by future IRA distributions or other investment income. This spreads out the tax impact to continuously stay under tax bracket thresholds, keeping as much of your money in your hands as possible.

Emergency money. Unexpected expenses can arise, and if you don’t have funds available in a checking or savings account, the emotion of a stressful emergency may drive you to make impulsive (and costly) financial decisions. Instead of using a high-interest credit card or cashing out investments, a HELOC can be a wise move. Note that there are some HELOC disadvantages. The interest rate is variable, which means the monthly payment can be unpredictable, especially during times of rising interest rates.

There are other ways to use the equity in your home to create cash flow in retirement, but a HELOC may be best for some retirees, based on its flexibility for scenarios, such as future downsizing or the potential need for the cost of assisted living facilities down the road. A HELOC can be a very useful tool for a proactive and comprehensive cash-flow plan in retirement.

Reference: Kiplinger (October 8, 2019) “How You Can ‘TAP’ into Home Equity to Help Keep Your Retirement Stable”

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

The Medicaid Medically Needy “Spend-Down Program” – What You Need to Know – Annapolis and Towson Estate Planning

If you’ve been denied Medicaid benefits because you have too many assets or too high an income, don’t give up. There are available programs that may enable you to qualify for Medicaid benefits, despite this setback. Each state may offer different programs, and the Affordable Care Act (ACA) has added new ways to obtain coverage. This article addresses the “spend down program” offered in every state.

Medicaid Spend-Down Program – The Basics

To qualify for Medicaid benefits, your income and assets may not exceed a certain amount set by law. If these items do exceed the legal limits, you may still qualify after a spend-down period. The medically needy spend-down program helps individuals over the age of 65, and some younger individuals with disabilities. To be eligible for this program, you must not be receiving public financial assistance.

Exempt & Non-Exempt Assets

It is not necessary to sell off everything you own to qualify for the spend-down program. You may keep a certain amount of “exempt assets,” such as the home you live in, your car (used for transportation), household furniture, clothes, jewelry and other personal items. None of these assets affect your eligibility, regardless of their value (unless you have high equity, say $1 million in an asset, in which case you may need to spend that down).

Non-exempt assets, on the other hand, do affect your eligibility for the spend-down program. These assets include bank accounts, stocks, investments, and cash over $2,000 for an individual or $3,000 for a married couple.

Amount of Income You Can Have to Apply

It does not matter how much income you have when you apply. The more income you have, though, the more medical expenses you must incur before your coverage can start. The way you spend down this income is by spending it on medical expenses, until you reach the income requirements for Medicaid. Interestingly, you just need to incur medical costs. You don’t have to actually pay them.

In addition, you can pay down accrued debt to spend down your income. Therefore, paying down credit card bills, car payments, or mortgage debt can count towards your spend down. Another tactic you can use, is to pay excess monthly amounts on old medical bills.

Seeking Professional Assistance

Medicaid programs are different in each state, and the laws change frequently. If done wrong, you could end up incurring penalties instead of obtaining benefits. It may be a good idea to enlist the help of a Medicaid specialist or elder law attorney to walk you through the process in a way that will avoid these types of penalties.

Resources:

National Council on Aging. “Benefits Checkup” (Accessed November 28, 2019) https://www.benefitscheckup.org/fact-sheets/factsheet_medicaid_la_medicaid_spend_down/#/

U.S. News and World Report. “How a Medicaid Spend Down Works.” (Accessed 28, 2019) https://money.usnews.com/money/retirement/baby-boomers/articles/how-a-medicaid-spend-down-works

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

What Debts Must Be Paid Before and After Probate? – Annapolis and Towson Estate Planning

Everything that must be addressed in settling an estate becomes more complicated when there is no will and no estate planning has taken place before the person dies. Debts are a particular area of concern for the estate and the executor. What has to be paid and who gets paid first? These are explained in the article “Dealing with Debts and Mortgages in Probate” from The Balance.

Probate is the process of gaining court approval of the estate and paying off final bills and expenses before property can be transferred to beneficiaries. Dealing with the debts of a deceased person can be started before probate officially begins.

Start by making a list of all of the decedent’s liabilities and look for the following bills or statements:

  • Mortgages
  • Reverse mortgages
  • Home equity loans
  • Lines of credit
  • Condo fees
  • Property taxes
  • Federal and state income taxes
  • Car and boat loans
  • Personal loans
  • Loans against life insurance policies
  • Loans against retirement accounts
  • Credit card bills
  • Utility bills
  • Cell phone bills

Next, divide those items into two categories: those that will be ongoing during probate—consider them administrative expenses—and those that can be paid off after the probate estate is opened. These are considered “final bills.” Administrative bills include things like mortgages, condo fees, property taxes and utility bills. They must be kept current. Final bills include income taxes, personal loans, credit card bills, cell phone bills and loans against retirement accounts and/or life insurance policies.

The executors and heirs should not pay any bills out of their own pockets. The executor deals with all of these liabilities in the process of settling the estate.

For some of the liabilities, heirs may have a decision to make about whether to keep the assets with loans. If the beneficiary wants to keep the house or a car, they may, but they have to keep paying down the debt. Otherwise, these payments should be made only by the estate.

The executor decides what bills to pay and which assets should be liquidated to pay final bills.

A far better plan for your beneficiaries is to create a comprehensive estate plan that includes a will that details how you want your assets distributed and addresses what your wishes are. If you want to leave a house to a loved one, your estate planning attorney will be able to explain how to make that happen while minimizing taxes on your estate.

Reference: The Balance (March 21, 2019) “Dealing with Debts and Mortgages in Probate”

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys