How Low-Interest Rates Create Estate Planning Opportunities – Annapolis and Towson Estate Planning

One result of the global health crisis is that interest rates are lower now than they have been in many, many years. The April 2020 AFRs (Applicable Federal Rates), which are used to determine the least amount of interest that has to be charged for below-market loans and are often used for intrafamily lending, have decreased to 0.91 percent for loans less than 36 months, 0.99 percent for loans of 36 months or more and less than nine years, and 1.44 percent for loans of nine years or longer.

The article, titled “Estate Planning in a Low Interest Rate Environment,” from The National Law Review Journal, explains that for families where intrafamily lending has already occurred, these low rates provide a chance to amend the terms of current promissory notes to obtain these rates.

There are two opportunities presented:

  • The amount that the borrower needs to repay is reduced, thereby easing the burden on a borrower who has a cash flow problem.
  • If a parent has already lent money to a child who will eventually inherit assets from the parent, this lower interest rate will help to facilitate wealth transfer. The parent will receive lower payments under the note, minimizing the assets that are added back to the lender’s taxable estate.

Here are a few situations where these loans are typically used:

  • Parents extend a loan to adult child, who is going through a challenging financial period.
  • Parent lends money to a child with the understanding that the child will invest the money at a higher rate of return than the interest charged under the note, thus allowing growth to occur in the child’s estate rather than in the parent’s estate.
  • Complex estate planning, where a sale is made to an intentionally defective trust, where the seller’s goal is to freeze the value of the estate for a price at which the asset was sold on an installment basis. This allows future growth to take place outside of the seller’s taxable estate.

These intrafamily loans are usually part of sophisticated estate planning. Other methods include Grantor Retained Annuity Trusts (GRATs), or Charitable Lead Trusts (CLTs), which also become more attractive in a low interest rate environment.

With a GRAT, there is a transfer of assets to a trust, in which the settlor retains an annuity payment for a certain number of years. At the end of the term, the remaining assets pass to the trust beneficiaries with no estate tax implication. The CLT operates in a similar way, except that the payment for a specified number of years is made to a charity.

Speak with an experienced estate planning attorney about how your estate could benefit from the current low interest rate environment.

Reference: The National Law Review (April 13, 2020) “Estate Planning in a Low Interest Rate Environment”

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

Should I Create a Trust? – Annapolis and Towson Estate Planning

Just 40% of adults in the United States have any kind of estate planning documents in place. That leaves 60% of adults who don’t have their property and other assets protected in the event of death.

Without planning, their family and loved ones will have trouble trying to determine what to do next.

Frequently, when thinking of estate planning, we think of a will. However, there are other options. Creating a living trust may be a better option for you and your family, advises kake.com’s recent article entitled “What Are the Advantages of Creating a Living Trust for My Family?”

The article provides some of the major benefits of a living trust.

It can save your family money. When a person with a living trust passes, the trustee takes possession and control over the trust property, according to the instructions provided by the trustor. It can be less expensive, because there are no fees that may be incurred in probate. Everything also moves faster.

Protection of your privacy. A living trust is much more private, because it does not have to go through the probate court and will not become public record. In contrast, a will becomes public record, that anyone can request to view as a court record.

A trust is for more than death. A living trust can be invoked at other times before death. The creator can add specific stipulations and conditions to the living trust to designate when the trustee can take over the management of property and finances.

More difficult to challenge. A will can be contested in court, if a family member thinks that he or she is entitled to more of your assets than was outlined in the will. A judge can rule that your will is not valid, and the contesting family member can possibly get more than you intended. With a living trust, there is much less chance that this will happen.

Creating a living trust takes legal expertise, so work with an experienced estate planning attorney. You can then discuss an entire estate planning strategy.

Reference: kake.com (April 20, 2020) “What Are the Advantages of Creating a Living Trust for My Family?”

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

Would an Early Retirement and Early Social Security Be Smart? – Annapolis and Towson Estate Planning

For older employees who are laid off as a result of the pandemic, the idea of an early retirement and taking Social Security benefits early may seem like the best or only way forward. However, cautions Forbes in the article “Should You Take Social Security Earlier Than Planned If You’re Laid Off Due to COVID-19?,” this could be a big mistake with long-term repercussions.

In the recession that began in 2008, there were very few jobs for older workers. As a result, many had no choice but to take Social Security early. The problem is that taking benefits early means a smaller benefit.

In 2009, one year after the market took a nosedive, as many as 42.4 percent of 62-year-olds signed up for Social Security benefits. By comparison, in 2008, the number of 62-year-olds who took Social Security benefits was 37.6 percent.

You can start taking Social Security early and then stop it later. However, there are other options for those who are strapped for cash.

There is a new tool from the IRS that allows taxpayers to update their direct deposit information to get their stimulus payment faster and track when to expect it. There is also a separate tool for non-tax filers.

Apply for unemployment insurance. Yes, the online system is coping with huge demand, so it is going to take more than a little effort and patience. However, unemployment insurance is there for this very same purpose. Part of the economic stimulus package extends benefits to gig workers, freelancers and the self-employed, who are not usually eligible for unemployment.

Consider asking a family member for a loan, or a gift. Any individual is allowed to give someone else up to $15,000 a year with no tax consequences. Gifts that are larger require a gift tax return, but no tax is due. The amount is simply counted against the amount that any one person can give tax free during their lifetime. That amount is now over $11 million. By law, you can accept a loan from a family member up to $10,000 with no paperwork. After that amount, you will need a written loan agreement that states that interest will be charged – at least the minimum AFR—Applicable Federal Rate. An estate planning attorney can help you with this.

Tap retirement accounts—gently. The stimulus package eases the rules around retirement account loans and withdrawals for people who have been impacted by the COVID-19 downturn. The ten percent penalty for early withdrawals before age 59½ has been waived for 2020.

If you must take Social Security, you can do so starting at age 62. In normal times, the advice is to tap retirement accounts before taking Social Security, so that your benefits can continue to grow. The return on Social Security continues to be higher than equities, so this is still good advice.

Reference: Forbes (April 15, 2020) “Should You Take Social Security Earlier Than Planned If You’re Laid Off Due to COVID-19?”

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

Digital Assets Need to Be Protected In Estate Plans – Annapolis and Towson Estate Planning

Most people have an extensive network of digital relationships with retailers, financial institutions and even government agencies. Companies and institutions, from household utilities to grocery delivery services have invested millions in making it easier for consumers to do everything online—and the coronavirus has made our online lives take a giant leap. As a result, explains the article “Supporting Your Clients’ Digital Legacy” from Bloomberg Tax, practically all estates now include digital assets, a new class of assets that hold both financial and sentimental value.

In the last year, there has been a growing number of reports of the number of profiles of people who have died but whose pages are still alive on Facebook, Linked In and similar platforms. Taking down profiles, preserving photos and gaining access to URLs are all part of managing a digital footprint that needs to be planned for as part of an estate plan.

There are a number of laws that could impact a user’s digital estate during life and death. Depending upon the asset and how it is used, determines what happens to it after the owner dies. Fiduciary access laws outline what the executor or attorney is allowed to do with digital assets, and the law varies from one country to another. In the United States, almost all states have adopted a version of RUFADAA, the law created by the U.S. Uniform Law Commission. However, all digital assets are also subject to the Terms of Service Agreement (TOSAs) that we click on when signing up for a new app or software. The TOSA may not permit anyone but the account owner to gain access to the account or the assets in the account.

Digital assets are virtual and may be difficult to find without a paper trail. Leaving passwords for the fiduciary seems like the simple solution, but passwords do not convey user wishes. What if the executor tries to get into an account and is blocked? Unauthorized access, even with a password, is still violating the terms of the TOSAs.

People need to plan for digital assets, just as they do any other asset. Here are some of the questions to consider:

  • What will happen to digital assets with financial value, like loyalty points, travel rewards, cryptocurrency, gaming tokens or the digital assets of a business?
  • Who will be able to get digital assets with sentimental value, like photos, videos and social media accounts?
  • What about privacy and cybersecurity concerns, and identity theft?

What will happen to your digital assets? Facebook and Google offer Legacy Contact and Inactive Manager, online tools they provide to designate third-party account access. Some, but not many, other online platforms have similar tools in place. The best way, for now, may be to make a list of all of your digital accounts and look through them for death or incapacity instructions. It may not be a complete solution, but it is at least a start.

Reference: Bloomberg Tax (April 10, 2020) “Supporting Your Clients’ Digital Legacy”

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

Am I Making One of the Five Common Estate Planning Mistakes? – Annapolis and Towson Estate Planning

You do not have to be super-wealthy to see the benefits from a well-prepared estate plan. However, you must make sure the plan is updated regularly, so these kinds of mistakes do not occur and hurt the people you love most, reports Kiplinger in its article entitled “Is Anything Wrong with Your Estate Plan? Here are 5 Common Mistakes.”

An estate plan contains legal documents that will provide clarity about how you would like your wishes executed, both during your life and after you die. There are three key documents:

  • A will
  • A durable power of attorney for financial matters
  • A health care power of attorney or similar document

In the last two of these documents, you appoint someone you trust to help make decisions involving your finances or health, in case you cannot while you are still living. Let us look at five common mistakes in estate planning:

# 1: No Estate Plan Whatsoever. A will has specific information about who will receive your money, property and other property. It is important for people, even with minimal assets. If you do not have a will, state law will determine who will receive your assets. Dying without a will (or “intestate”) entails your family going through a time-consuming and expensive process that can be avoided by simply having a will.

A will can also include several other important pieces of information that can have a significant impact on your heirs, such as naming a guardian for your minor children and an executor to carry out the business of closing your estate and distributing your assets. Without a will, these decisions will be made by a probate court.

# 2: Forgetting to Name or Naming the Wrong Beneficiaries. Some of your assets, like retirement accounts and life insurance policies, are not normally controlled by your will. They pass directly without probate to the beneficiaries you designate. To ensure that the intended person inherits these assets, a specific person or trust must be designated as the beneficiary for each account.

# 3: Wrong Joint Title. Married couples can own assets jointly, but they may not know that there are different types of joint ownership, such as the following:

  • Joint Tenants with Rights of Survivorship (JTWROS) means that, if one joint owner passes away, then the surviving joint owners (their spouse or partner) automatically inherits the deceased owner’s part of the asset. This transfer of ownership bypasses a will entirely.
  • Tenancy in Common (TIC) means that each joint owner has a separately transferrable share of the asset. Each owner’s will says who gets the share at their death.

# 4: Not Funding a Revocable Living Trust. A living trust lets you put assets in a trust with the ability to freely move assets in and out of it, while you are alive. At death, assets continue to be held in trust or are distributed to beneficiaries, which is set by the terms of the trust. The most common error made with a revocable living trust is failure to retitle or transfer ownership of assets to the trust. This critical task is often overlooked after the effort of drafting the trust document is done. A trust is of no use if it does not own any assets.

# 5: The Right Time to Name a Trust as a Beneficiary of an IRA. The new SECURE Act, which went into effect on January 1, 2020 gets rid of what is known as the stretch IRA. This allowed non-spouses who inherited retirement accounts to stretch out disbursements over their lifetimes. It let assets in retirement accounts continue their tax-deferred growth over many years. However, the new Act requires a full payout from the inherited IRA within 10 years of the death of the original account holder, in most cases, when a non-spouse individual is the beneficiary.

Therefore, it may not be a good idea to name a trust as the beneficiary of a retirement account. It is possible that either distributions from the IRA may not be allowed when a beneficiary would like to take one, or distributions will be forced to take place at a bad time and the beneficiary will be hit with unnecessary taxes. Talk to an experienced estate planning attorney and review your estate plans to make certain that the new SECURE Act provisions don’t create unintended consequences.

Reference: Kiplinger (Feb. 20, 2020) “Is Anything Wrong with Your Estate Plan? Here are 5 Common Mistakes”

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

What are Some Good Estate Planning Ideas in the Pandemic? – Annapolis and Towson Estate Planning

With the COVID-19 pandemic, many people are looking to execute estate plans they have delayed in finalizing and signing. Others are ready to get going on their estate plans that they should have started years ago.

Forbes’ recent article entitled “Eight Estate Planning Strategies In A COVID-19 World” lists some things you should know.

Most estate planning can be done at home. While you may be restricted from physically seeing your attorney, you can still create, update, or finalize your estate plan. Attorneys are working remotely and are available via email, telephone and video conferencing to help you.

Get your estate planning in order. The odds are you now have some time to consider the issues you have placed on the back burner for a long time. Leverage this time to address your estate planning.

New options for signing document. Many attorneys are approaching estate plan document signings on a case-by-case basis. You may be able to sign in the attorney’s office or at your home, while practicing social distancing and wearing gloves and masks. Some law firm are even offering drive-up will signings.

Some states now permit online notarization of certain types of documents.

These new laws allow for remote online notarization (RON), a process by which notarization is conducted via video conferencing. In this process, the signing party (the “principal”) must undergo an identity-proofing process that differs by state.

In most states, the principals are required to answer several personal questions. They also must show valid ID, which in many states, must be examined and verified by a third-party security service. Once the principal’s identity is confirmed, she signs the document with a digital signature. The remote online notary witnesses the document, by affixing an electronic seal as they stream the live, audio-visual conference.

Talk to an experienced estate planning attorney about how you should proceed with your estate planning, in light of this new (and hopefully temporary) reality.

At least, you can get all your documents organized and ready to sign when it is safe to venture outside.

Reference: Forbes (March 23, 2020) “Eight Estate Planning Strategies In A COVID-19 World”

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

Does Artwork Belong in a Charitable Remainder Trust? – Annapolis and Towson Estate Planning

A charitable remainder trust is a tax-exempt irrevocable trust that is created to decrease taxable income of people, by initially giving income to the beneficiaries of the trust for a set period of time and then donating the rest of the trust funds to a designated charity.

Financial Advisor’s recent article entitled “Putting Art Into Charitable Remainder Trusts” says that people who have valuable artwork or other collectibles that are hard to divide or that their kids do not want, can investigate a charitable remainder trust with an estate planning attorney as an option.

A Charitable Remainder Trust is designed to save asset owners taxes that they would have to pay, if they sold their artworks on the open market. CRTs are also designed so that when they expire, they allow philanthropically inclined individuals help their favorite charitable organizations.

Many people with higher net worth hold about a tenth of their wealth in art and collectibles.  Due to the nature of the assets, the value may be hard to split up among their heirs, or no one heir may want that specific piece of art. A charitable remainder trust gives the art or collectible owner a solution to that issue. The trust will reduce her taxable income, by first dispersing income to the trust beneficiaries for a certain period of time and then the remainder is donated to a charity.

It is important to note that art markets are quirky, and a CRT protects an owner from forcing her into a fire sale, when she or a trustee is trying to divide the estate.

For example, say the parents purchased a number of pieces of artwork on a European vacation and shipped them back to the United States. They have three children, but there is one piece of art that is more valuable than the others. As a result, there was no way to equitably divide the pieces. If they sold the pieces outright, there would be a 28% tax imposed.

However, the parents could instead place the artwork in a charitable remainder trust, get a tax deduction for part of the value, get income from the trust and then give a sum to a selected charity.

The asset can be held in the trust until one owner dies, until both parents pass, or for up to a certain number of years, based on how the trust is set up. Contact an estate planning attorney experienced in charitable planning strategies.

Reference: Financial Advisor (Feb. 21, 2020) “Putting Art Into Charitable Remainder Trusts”

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

Why Gifting during Volatile Markets Makes Sense – Annapolis and Towson Estate Planning

Gifting assets to a trust for children or grandchildren is often an important part of an estate plan. The recent article “Is Now a Good Time to Make a Gift?” from The National Law Review takes a close look into the strategy of placing non-cash assets into a trust, without exceeding the annual gift tax exclusion amount or the Federal Gift Tax Exemption. If those assets increase in value later, the increases will further enhance the gift for beneficiaries.

Taxes on gifts made to a trust to benefit children and grandchildren are based primarily on the value of the gift. Annual exclusion gifts, that is, transfers of assets or cash that do not exceed the annual gift tax exclusion, are currently set at $15,000 per recipient per year. A married couple may give up to $30,000 per person in any calendar year. Many annual exclusion gifts do not require a Federal Gift Tax Return (Form 709), although it would be wise to speak with an estate planning attorney to make sure that this applies to you, since every situation is different.

Annual exclusion gifts are one way to reduce the overall value of the estate, but they do not reduce the Federal Estate Tax Exemption of the person making the gift.

Gifts in excess of the annual exclusion amount may still avoid gift taxes, if the person making the gift applies their gift tax exemption by filing IRS Form 709. The gift tax exemption is unified with the estate tax exemption, at $11.58 million per person in 2020. Gifts that are bigger than the annual exclusion of $15,000 per year, reduce the $11.58 million exemption for purposes of both the gift tax and the estate tax.

For example, if a person were to make taxable gifts of $1.0 million to a child in 2020, their lifetime gift tax and estate tax exemption will be reduced to $10.58 million. If that person were to die in 2020 when the applicable estate tax exemption is $10.58 million, then only estate assets in excess of the exemption will be subject to estate tax.

Given the uncertainly of the gift and estate tax exemptions, management and timing of these gifts is particularly important. If no legislative action occurs, these generous estate and gift tax exemptions will sunset at the end of 2025. They will return to the 2010 level of $5.0 million, indexed for inflation.

The exemptions need to be carefully used and budgeted, because federal estate tax starts at 18% and rises to 40% on all amounts over the exemption. Like the exemption, these rate rates may be changed by future elections and/or tax law changes.

If you are concerned about an estate becoming taxable, the current decline in asset values makes this a good opportunity to transfer more of the estate into trust for beneficiaries. The transfers can decrease the impact of a reduction in the exemption amount, as well as any changes to the tax rates. The currently reduced value of stocks and many other investments may also present an opportunity to reduce future taxes.

The best way forward would be to have a conversation with an estate planning attorney to review your overall estate plan and how moving assets into trusts during a time of lowered value could benefit the estate and its beneficiaries.

Reference: The National Law Review (April 10, 2020) “Is Now a Good Time to Make a Gift?”

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

Distributing Inherited Assets in Many Accounts – Annapolis and Towson Estate Planning

This generous individual may be facing a number of legal and logistical hurdles, before assets in eight separate accounts can be passed to three relatives, says the article “Sorting through multiple inheritance accounts” from the Houston Chronicle. Does the heir need to speak with each of the investment companies? Would it make sense to combine all the assets into one account for the estate and then divide and distribute them from that one account?

If all the accounts were payable to this person upon the death of the brother, then the first thing is for the heir to contact each company and have all funds transferred to one account. It might be an already existing account in their name, or it may need to be a new account opened just for this purpose. The account could be at any of the brother’s investment firms, or it could be with a different firm.

If the accounts are not payable to the heir, but they are to be inherited as part of the brother’s estate, the estate must be probated before the funds can be claimed. In this case, it would be very helpful if the sole beneficiary is also the executor. This would put one person in charge of all of the work that needs to be done.

However, the person eventually will become the owner of all eight accounts. Once everything is in the heir’s name, then the assets can be distributed to the three relatives. There are some tax issues that must be addressed.

First, if the estate is large enough, it may owe federal estate taxes, which will diminish the size of the estate. The limit, if the brother died in 2020, is $11.58 million. If he died in an earlier year, the exemption will be considerably lower, and the estate and the executor may already be late in making federal tax payments. Penalties may apply, so a conversation with an estate planning attorney should take place as soon as possible.

If the brother lived in another state, there may be state estate or inheritance taxes owed to that state. While Texas does not have a state estate or inheritance tax, other states, like Pennsylvania, do. A consultation with an estate planning attorney can also answer this question.

When gifts are ultimately made to the three relatives, the first $15,000 given to each of them during a calendar year will be treated as a non-taxable gift. However, if any of the gifts exceed $15,000, the person will be using up their own $11.58 million exemption from gift and estate taxes. A gift tax return will need to be filed to report the gifts. If the heir is married, those numbers will likely double.

It may be possible to disclaim the inheritance, with the assets passing to the three relatives to whom the heir wishes to make these gifts. An experienced estate planning attorney will be able to work through the details to determine the best way to proceed with receiving and distributing the assets. Depending upon the size of the estate, there will be tax consequences that must be considered.

Reference: Houston Chronicle (March 24, 2020) “Sorting through multiple inheritance accounts”

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

Relocating for Retirement, Family … or Taxes? – Annapolis and Towson Estate Planning

When the current health crisis finally passes, many people will have spent time considering what they want to do with their remaining years. That may include relocating. For some people, taxes are a real reason to move to a new state, but some states are more tax-friendly than others, says the article “Best States to Die In…For Taxes” from Tucson.com.

No matter where you live, you have to pay federal estate taxes. However, there are eighteen states in the U.S. that require citizens to pay either estate taxes or inheritance taxes or both. The estate taxes are subtracted from an estate before its assets are distributed to heirs. Inheritance taxes are paid by heirs of the deceased, and it does not matter if the heirs live in another state.

Here are the six states with inheritance taxes: Iowa, Kentucky, Maryland, Nebraska, New Jersey, and Pennsylvania. The good news is that spouses are exempt from having to pay any inheritance taxes, and in New Jersey, it also applies to domestic partners. In some states, children and grandchildren are exempt, but not in Nebraska or Pennsylvania.

For people who live in Nebraska, immediate relatives must pay a 1% tax on inheritance amounts that are more than $40,000. In Pennsylvania, tax rates start at 4.5% for children and lineal heirs. Nebraska has the highest top inheritance tax rate of all the estates at 18%. The others range from 10% to 16%.

Each state has certain exemptions, based on the amount of the inheritance and the heir’s relationship to the deceased. If you receive an inheritance from someone who lives in one of the inheritance tax states, speak with an estate planning attorney, so that you know what tax is due. State law categorizes heirs into types for the purposes of assigning exemptions and tax rates, and these vary by state.

The worst state to die in from an inheritance tax and estate tax perspective is Maryland, which imposes a 16% tax on inheritance above $5 million for persons who died in calendar year 2019. Until recently, New Jersey had a scaled estate tax that ranged from 0.8% to 16.0% on estates over $675,000, but the state no longer imposes any estate tax on the estate of decedents, who die on or after January 1, 2018.

Many inheritances pass through to spouses and children. The exemptions are generally fairly generous, so many people may not run into this issue with estate or inheritance taxes. However, if your estate includes a home within an expensive real estate market, your family may be in for some surprise taxes.

Meet with an estate planning attorney to learn what your state’s estate and inheritance tax rates are, and plan for the future. If you are in a high tax state, relocating may not be a bad idea. Your heirs will appreciate your planning.

Reference: Tucson.com (March 27, 2020) “Best States to Die In…For Taxes”

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