Monday, August 25, 2008

Guardianship of Children With Special Needs

Two good posts coming from Leanna Hamill in Massachusetts and Tredway, Lumsdaine & Doyle in California on planning for children with special needs. Among the excellent suggestions are the following:
Special Needs Trust - allowing parents, grandparents and guardians to provide funds for a special needs child without disrupting eligibility for government aid.
Exploring the qualifications of the child’s guardian. Specifically, are they located close enough to qualified medical personnel? Can they handle (or are they knowledgeable) about the particularities of caring for your child?
Have you left enough financial and other resources to care for the child? Everything from remodeling a house to make it wheelchair accessible to paying for the guardian to stay home full-time should be considered.

Thursday, August 14, 2008

Estate Planning in New Jersey

Estate Planning in New Jersey
You can save a lot of money and potential chaos and hard feelings among those closest to you by preplanning how you want your assets managed when you are incapacitated, and how your property will be divided at your death.


Powers of Attorney
In New Jersey, you can sign a durable power of attorney to appoint someone to handle your assets if you become incapacitated. At a minimum, a power of attorney should include the power to:

Manage and transfer all assets
Deal with the IRS
Make gifts on your behalf
Create and amend any trusts you set up
You don't need to transfer any assets at the time you sign a power of attorney, but it's a good idea to keep the person you've chosen informed about your ongoing financial matters.

You can also appoint a Durable Power of Attorney for Health Care to make health care decisions for you when you're unable to do so yourself. This person can provide informed consent for treatment, or even refuse treatment for you.

Dying Without a Will
If you die without a will (known as dying "intestate") in New Jersey, your assets will be divided amongst your immediate family. If you do not have children or parents, your estate will go to your spouse. If you have a spouse and children, your spouse gets the first $50,000 plus one-half of the balance of your estate. The remainder will go to your children. If you have a spouse and parents but no children, your spouse also gets the first $50,000 plus one-half of the balance of your estate.

If you do not have a spouse, your children will receive your estate. If you do not have a spouse or children, your parents will receive your estate.

Alternatives to a Will
Wills eventually become public after your death, with the details of what you owned and how much it was worth available to anyone curious enough to read the court file. As a result, many people look for more private ways to transfer their assets.

In New Jersey, alternatives to making a will include:

Life insurance policies or trusts
Gifting cash or other assets before your death
"Transfer On Death" ("TOD") or "Payable On Death" ("POD") bank accounts
Holding assets by joint tenancy with right of survivorship ("JTROS"), with the assets transferring automatically to the other joint tenant at the time of death
Holding assets through a tenancy in common, with each tenant having a divided interest in the property which can be independently sold
Retirement plans and Individual Retirement Accounts ("IRAs")
"Revocable living trusts" (sometimes called "grantor trusts"), giving all your assets to a trustee for management before your death
Making a Will
In New Jersey, you can make a valid will if you are at least 18 years old and of sound mind. The will must be in writing and signed by you or by another at your direction and in your presence. Two or more competent witnesses must witness your signature.

A lawyer who does a lot of estate planning can explain the consequences of some of the most basic choices you must make, such as whether property you want to leave to your minor children should be put into a trust at your death. For that reason, it makes sense to consult with a New Jersey estate planning lawyer and have him or her draft your will, so that you don't make costly mistakes or accidentally not accomplish what you intended.

Providing For Young Children
There are many kinds of trusts, but the most common is one you would set up for your minor children or incapacitated adult relatives for their care after you are gone and until they are old enough or well enough to take care of themselves. A parent can name a trustee to be in control of the finances and decide whether to sell or keep property, and manage assets such as real estate. The trustee, usually a family member or trusted friend, can be paid an hourly rate or a set monthly amount for their services out of the trust assets.

You will probably also want to name a guardian for your children, someone who would have physical custody of and take care of your children on a daily basis should you or your spouse be unable to do so.

Probate
"Probate" is the public process of:

Filing and validating a will in court
Paying all the debts and taxes of the deceased person
Dividing up the assets according to the will or New Jersey law
If you have no debts and no "titled property" such as real estate or vehicles to pass along to heirs, there may be no need for probate.

Probate lawyers generally charge by the hour, and they make sure everything gets processed according to the law.

Thursday, August 7, 2008

Naming Your Executor

You should name an executor in your will. In order to decide who is best to carry out this position, you need to know what responsibilities the position has.

The executor’s job is to start the probate process with the court, gather all of your assets, pay your debts, last expenses, and taxes, and distribute whatever is left over to the persons named in your will. Additionally, your executor will notify Social Security, pension providers, insurers, financial institutions, and other entities of your death. If you have antiques or valuable collections (coins, stamps, collectibles), your executor will need to hire an appraiser to get a value for these items. If anyone owes you money, the executor must collect that debt. At the end of the distribution, the executor must be able to give an accounting to all of your beneficiaries that your wishes, as expressed in your will, were carried out.

The executor owes fiduciary duties to anyone who has an interest in the estate, and the executor must act in the best interests of the estate. For example, if an executor mismanages the estate assets, he or she can be held personally liable and may have to repay the estate for any losses.

The executor for a New Jersey estate is entitled to a fee for services performed. Under New Jersey law, the executor of an estate is generally entitled to the following commissions:

6% on all estate income;
5% of the estate up to $200,000;
3.5% on excess above $200,000 up to $1,000,000;
2% on excess over $1,000,000 or such other percentage as the Superior Court may determine.

There are different rules for commissions when there is more than one executor, or when the executor has rendered unusual or extraordinary services. In some cases family members may choose not to accept (waive) fees. However, a decision to waive fees should be made only after the legal (who will get the money) and tax (what is the cost of the lost deduction) issues are considered.

Tuesday, August 5, 2008

Family Limited Partnerships, or more commonly now, Family Limited Liability Companies, are great vehicles for management & protection of family assets

Family Limited Partnerships, or more commonly now, Family Limited Liability Companies, are great vehicles for management and protection of family businesses, real estate, and investments. They also can be used to facilitate gifting, since interests in the entity given to junior family members typically qualify for minority interest and lack of marketability discounts. These discounts can provide powerful leveraging.
However, to stand up to IRS scrutiny, it is important the FLP or FLLC be properly formed and administered. See the below checklist to help determine if your family entity meets the necessary criteria.
1. Were timely and properly filed papers filed to set up an FLP under appropriate state law?
2. Has the planning team carefully documented the significant non-tax benefits to the client to justify the creation and maintenance of FLP? (i.e., Are there demonstrable bona fide business/investment purposes in both the formation and operation and is there economic substance to the entity?)
3. Have we obtained the appraisal of a full time accredited, independent, and experienced (preferably court-tested) valuation professional who created a studiously crafted individual report (rather than a “fill in blanks” quickie) based on the specific FLP’s facts? (And were realistic and justifiable assumptions used in developing the valuation discounts – and did the expert document the reasons for the types and amounts of discounts?)
4. Have we avoided co-mingling of funds and continued treatment by the client of money in the FLP as “his/her own money”?
5. Have we made sure that there has in fact been a significant change in the administration and management of the client’s assets – and can prove that there was much more than merely a name change and a different wrapper around the assets?
6. Have we supervised the transfer of assets to the FLP account in a timely and business-like manner?
7. Did we hold and keep passive or personal assets that are not appropriate to a business or investment enterprise out of the FLP?
8. Did we set up the FLP while our client was young/healthy/competent (or was the entity formed by a very old and very ill person – on or practically on his/her deathbed or was our client incompetent at the time we set up the FLP?)
9. Did our client retain sufficient assets to maintain his/her standard of living without the need to rely on FLP assets (or did our client place all or essentially all of his/her assets into FLP leaving no visible and adequate means of support other than the FLP’s assets)?
10. Were we careful to advise parties in writing that they could have no expectation or understanding that – directly or indirectly – status prior to creation of FLP would remain (i.e. “It’s still Pop’s money” or “All of this will continue to be available to pay Mom’s bills and meet her financial needs and expenses”? Did Dad always get what he asked for or what he wanted or needed from the FLP? Did Mom expect that her children would provide support for her – through the FLP? Were Mom’s and Pop’s taxes (income or estate) and related expenses paid by the FLP?
11. Were we careful to place only business or investment assets into FLP and keep personal assets – such as the family home (particularly our client’s personal residence) out of the FLP? Did we insist our client had to either leave a residence that he/she placed into FLP or actually pay the entity (not accrue) a fair and arms’ length rent? Has the client actually paid rent in a timely manner? Have we retained documentation?
12. Does this FLP really represent more than a mere change in title and more than a recycling of value? What have we done to prove it?
13. Did the FLP initially – and does it continue – to meet the appropriate state’s definition of an FLP?
14. Are general partners really and actively involved in business?
15. Have we actually changed investment strategy – after securities were contributed?
16. Did our client give up the right to replace or remove the general partner?
17. Did our client (and his/her spouse) give up the right (directly or indirectly) unilaterally to decide when, how much, and to whom distributions from FLP would go?
18. Does the FLP conduct formal meetings and observe business formalities?
19. Are there meaningful negotiations and bargaining between the general partners?
20. Do adult children actively represent their own interests – or did they do just what Mom and Pop tell them to do?
21. Did we get our “timing” right? Have we made sure that our capital contribution was first credited to the senior member’s (parent’s) capital account and then, a discrete time later, followed by a gift of the partnership interest to the children?

Saturday, August 2, 2008

What is a Stretch IRA?

Trusts in General - A trust is a legal relationship that exists when one person or an entity (the Trustee) holds title to money or property for the benefit of one or more people (the Beneficiaries). The terms of the relationship are decided by the person providing money to the trust (the Grantor), and are usually in writing.

Stretch IRA – The term Stretch IRA refers to a plan, following the death of the IRA holder, to withdraw only the minimum amount allowed by law. This amount is known as the required minimum distribution. The resulting benefit of this plan is that the assets inside the IRA can continue to grow tax-deferred over the lifetime of the named beneficiaries. Either a traditional IRA or a ROTH IRA may be stretched.

Design of a “Stretch IRA Trust” - A “Stretch IRA Trust” is a flow-through trust designed to guarantee the extension of payouts of your IRA for as long as possible after your death. This is accomplished by allowing the trustee of the Stretch IRA Trust to take out the required minimum distribution, absent emergency. The trust is specially created for the sole purpose of being named as the Designated Beneficiary of an IRA. The reason a special trust is needed is because the provisions of most trusts will not qualify as a flow-through trust. In contrast, should a non-qualified trust be named as the Designated Beneficiary, all the income tax would be due in year one and there would be no further opportunity for tax deferred growth – the worst outcome possible.

What are the Benefits of a Stretch IRA Trust?

Guarantees Deferred Payout of IRA – A plan to stretch out an IRA is merely a plan until the person you name as your beneficiary decides to withdraw the entire amount, creating a huge income tax. Naming a Stretch IRA Trust as the beneficiary of your IRA will ensure that your loved ones defer the built in tax for as long as possible. This is especially useful for young or irresponsible children/grandchildren.

Allows for Control of Assets After You Die – You can set the terms of an IRA Stretch Trust so that your heirs receive money over time, rather than in a lump sum. You can also control where the money goes at the death of the beneficiary if the beneficiary should die before all the money is distributed.

Asset Protection - A trust can protect your money from creditors and make it less likely your heirs will fritter away their inheritance.

Allows for Post-mortem Planning – It is difficult to do much planning with IRAs, but in the event your children do not need the money, creating a trust structure will permit your children to transfer the IRA to their heirs, via disclaimer, without fear that the money will be squandered.

Avoids Over-funding of Spouse for Estate Tax Purposes - A trust structure can both provide income for a surviving spouse and allow both spouses to make proper use of their tax exemptions, thereby minimizing federal and state estate taxes upon the second to die.

Who Should Consider an IRA Stretch Trust?

Individuals with Significant IRAs or ROTH IRAs - Individuals with substantial wealth trapped in their IRA or ROTH IRA may benefit from a Stretch IRA Trust as a way to guarantee that income taxes are reduced, the assets continue to grow on a tax deferred basis, the assets are protected from creditors, and your wealth is preserved. This is particularly helpful for individuals who have young or irresponsible children/grandchildren.

Couples in a Second Marriage – An IRA which names a second spouse as a beneficiary, rather than children of the first marriage, can frequently lead to unintended results - like the money going to the children of your spouse rather than to your children! Giving the money to your spouse in trust will ensure that the money is available for spouse, but also provide for any remainder to go to the people you truly wish to benefit.

What Is Involved In Creating an IRA Stretch Trust?

Hiring an Attorney – When choosing an attorney to prepare your IRA Stretch Trust, you should choose an attorney who is knowledgeable in estate planning, retirement planning, current tax law and asset protection law.

Choosing a Trustee – You can hire either a corporate trustee or an individual trustee. Many people simply have their spouse or a relative act as trustee. You may also have a corporate fiduciary and another person act as co-trustees.

Cost - The cost of an IRA Stretch Trust varies from practitioner to practitioner as well as each client’s needs. How complicated you wish to make the trust and how many beneficiaries you wish to name may also be a factor in the cost. Nevertheless the cost will almost always be far less than the anticipated savings.

Beneficiary Designation Forms – Whether you create an IRA Stretch Trust or plan to stretch an IRA without a trust, it is imperative that you correctly fill out the beneficiary designation forms associated with your IRA to avoid one or more of your loved ones from being inadvertently left out or to avoid paying unnecessary taxes.

Maintenance – An IRA Stretch Trust generally requires no maintenance until after the death of the IRA holder.