What Happens when Both Spouses Die at the Same Time?

There are any number of ways a person can inherit assets from another person. They may inherit assets from a trust, through a will or as a designated beneficiary of an insurance policy or retirement account. However, in each case, says Lake Country News in the article “Simultaneous and close together deaths,” the person inheriting the asset is living, while the person they inherited from has died.

What happens if spouses die either at the same exact time or at a time that is very close to each other? The answer, as with so many estate planning questions, is that it depends.

The first question is, did both decedents have estate planning documents in place? If so, what directions do the wills give? Are there trusts, and if so, who are the trustees? If they served as trustees for each other’s trusts, did they name a secondary trustee?

If assets were owned as joint tenancy with right of survivorship, the estate of each deceased tenant receives an equal share of the asset, unless it can be proven that a joint tenant survived the other.

Here’s an example: if a parent dies without a will, is survived by two children, but one of the two children dies only four days after the parent’s death, i.e., fewer than 120 hours, in California, the law presumes that the deceased child did not survive the mother. The sole surviving child receives the entire parent’s intestate estate.

A trust may provide for distributions to alternative beneficiaries, and accounts with pay-on-death beneficiaries can sometimes name contingent beneficiaries. This is another reason why it is wise to have primary and secondary beneficiaries on all accounts that permit secondary beneficiaries. Check to see if your accounts have this option, as not all accounts allow for secondary beneficiaries.

Keep in mind that a beneficiary who survives long enough to inherit might die before receiving complete distribution of his or her inheritance. In this case, that beneficiary’s share will pass through his or her estate plan. Unless there has been advance planning, the undistributed inheritance becomes part of the deceased beneficiary’s estate, where it will be distributed either according to the beneficiary’s will or according to the laws of intestacy of the decedent’s state of residence. In this case, the beneficiary’s estate may need to be probated to distribute the inheritance.

The legal and factual analysis associated with the distribution of a couple who died at the same time or in close proximity to each other varies from case to case. Speak with an experienced estate planning attorney to have an estate plan prepared to avoid your family having to unravel the knotty mess that is created when there is no trust, and no estate planning has been done.

Reference: Lake Country News (Aug. 10, 2019) “Simultaneous and close together deaths”

Where Should I Keep My Estate Plan?

Many people ask their attorney to hold the original documents of their estate plan. This prevents the plan from being misplaced at home and keeps it away from prying family members.

Forbes’ recent article, “Keeping Your Estate Planning Documents Safe,” explains that because of the expense of storage and the move to paperless offices, some estate planning attorneys are now having their clients hold the original documents.

This saves money for the attorney, but it leaves the client with the problem of where to put the originals.

If you need a safe and secure place for them, here are some options.

No safe deposit boxes. Avoid placing the original documents in a safe deposit box, because the authority to get into the box is inside the box! If you pass away or are incapacitated—and nobody has access to the safe deposit box—they’ll need a court order to get access. For them to get the court order, they need the documents inside the box. It’s like the chicken and the egg.

Get a fireproof safe. A fireproof safe is a great place to keep these important documents.

Make copies. Get a set of hard copies in another location that is easily accessible. You can now use the safe deposit box to hold a set of copies of your documents. Your attorney should also have a set of hard copies.

E-records. Your estate planning attorney should also have an electronic copy of your estate plan and should send you an electronic version of the documents to keep with your e-records.

Treat your copies like the originals, and don’t lose it, in case the originals are misplaced or destroyed. If the original documents somehow vanish, your family may still be able to use a set of copies. For instance, a photocopy of a will can be probated, once the executor has attested that she has made a diligent search to find the original which hasn’t turned up.

Remember that this isn’t a “one and done” task. You should review your documents every few years to make certain the people you’ve named in them are still alive and your intentions haven’t changed.

Reference: Forbes (August 16, 2019) “Keeping Your Estate Planning Documents Safe”

Can You Protect Your Home If You Need Medicaid?

Anyone who owns a home, whether a magnificent mansion or a modest ranch, worries about the possibility of losing the home because of long-term care. How can they keep the home for their spouse or even for their family, if they need to apply to Medicaid for long-term nursing care costs?

The problem, reports The Mercury in a recent article “Protecting your house and Medicaid” is that people often come up with strategies on their own. And these strategies usually don’t work.

The first thought of someone who is confronted with the need to qualify for Medicaid is to immediately transfer ownership of the family home to another person. The idea is to take the home out of their countable assets. But unless the person who receives the house is an adult child, that transfer only leads to problems.

Medicaid’s basic premise is that if you can afford to pay for your own care, you should. Transfer of a home, let’s say one with a value of $400,000, means that a $400,000 gift has been given to someone. When you apply for Medicaid, there is a five-year lookback period. Any assets given away or transferred in that five-year period is considered to be an asset that was under your control. Medicaid will not pay for your care in that case.

There are some exceptions to the gifting rules, but this is not something to be navigated without the help of an experienced elder law estate planning attorney. Here are the exceptions:

Assets for your spouse. It’s understood that your spouse needs a place to live, and a transfer of the home to your spouse does not result in penalties under Medicaid rules. This usually means transfer from title as joint tenants with rights of survivorship or tenants by the entireties to the healthier wife or husband. It is also understood that a transfer to your spouse at home is not a disqualifying transfer. This is a common practice and part of Medicaid planning.

A disabled child. A parent may transfer a house to their disabled child on the theory that it is needed for self-support. It is not necessary for a child to lose a home, because a parent will be on Medicaid. This is a common mistake, and completely avoidable. Talk with an elder law attorney to learn more.

If a child is a caretaker. Sometimes an adult child moves into the parents’ home to care for the ailing parents. When a child moves in with the parents for a period of at least two years to care for them so they could stay at home and avoid going to a nursing home, or if the child has lived with their parents for longer than that and they need this care at home, then under federal law the home can be transferred to the child without penalty and the parent can go to a nursing home and receive care under Medicaid. Not knowing about this rule may sometimes lead the parents to transfer a house to someone else, and that is another very common mistake that causes adult children to be left without a home.

For a person who is single or a widow or widower who will never move home after moving into a Medicaid certified nursing home, the house may be sold, and planning can be done with the proceeds of the sale. Paying bills to maintain a vacant home for no reason and having the government take the home as a creditor through the estate recovery program does not make sense. Laws also vary significantly by state. An elder lawyer estate planning attorney can help navigate this complex and often overwhelming process.

Reference: The Mercury (July 31, 2019) “Protecting your house and Medicaid”

Elder Law Estate Planning for the Future

Seniors who are parents of adult children can make their children’s lives easier by making the effort to button-down major goals in elder law estate planning, advises Times Herald-Record in the article “Three ways for seniors to make things easier for their kids.” Those tasks are: 1) planning for disability; 2) protecting assets from long-term care or nursing home costs, and 3) minimizing costs and stress in passing assets to the next generation.

Here’s what you need to do, and how to do it.

Disability Planning

Disability planning includes signing advance directives. These are legal documents that are created while you still have all of your mental faculties. Naming people who will make decisions on your behalf if, and when, you become incapacitated gives those you love the ability to take care of you without having to apply for guardianship, conservatorship, or other legal proceedings. There are many names for these advance directives, which include financial powers of attorney, health care powers, health care proxies, and living wills.

Your agent named in the financial power of attorney will make all and any legal and financial decisions on your behalf. In addition, if you use a power of attorney that is specifically drafted for long term care and benefits planning, the agent will have unlimited gifting powers that may save about half of a single person’s assets from the cost of nursing home care.

The agent named in the health care directive can make medical decisions, and you can also have language that advises your agent about how you want your body to be taken care of in the event you are incapacitated. If you want to list these separately, you can also use a health care proxy to name the person who can make medical decisions, and use a living will, to convey your wishes for end-of-life care, including resuscitation and artificial feeding.

When advance directives are in place, you spare your family the need to have a judge appoint a legal guardian to manage your affairs. That saves time, money and keeps the judiciary out of your life. Your children can act on your behalf when they need to, during what will already be a very difficult time.

Protect Assets

Goal number two is protecting assets from the cost of long-term care. Losing the family home and retirement savings to unexpected nursing costs is devasting and could be minimized or avoided with the right planning. The first and best option is to purchase long-term care insurance. If you don’t have or can’t obtain a policy, the next best is the Medicaid Asset Protection Trust (MAPT) that can be used to protect assets in the trust from nursing home costs, after the assets have been in the trust for five years.

Have a Trust

The third thing that will make your adult children’s lives easier, is to have a trust that dictates where you want your assets to go after you die. A trust lets you leave assets to the family as you want, with the least amount of court costs, legal fees, taxes and family battles over inheritances. It also allows for the estate to be settled quicker, which will in turn also be easier for your children. Work with an experienced estate planning attorney to have a trust created.

Think of estate planning as part of your legacy of taking care of your family, ensuring that your hard-earned assets are passed to the next generation. You can’t avoid your own death or that of your spouse, but you can prepare so those you love are helped by thoughtful and proper planning.

Reference: Times Herald-Record (July 13, 2019) “Three ways for seniors to make things easier for their kids”

Why Estate Planning is Essential for Small Business Owners

For the entrepreneurial-minded person, nothing beats the excitement of having a vision for a business and then making that dream come true. However, have you ever wondered what will happen to that business after you are gone?

A comprehensive estate plan says Bakersfield.com, in the recent article “Estate planning tips for small business owners,” provides a plan that can protect your life’s work.

It makes sense. You’ve likely spent decades building your business throughout your working life. You’re proud of what you have accomplished, and you should be. You should then protect it with a well-thought-out plan. Your estate planning attorney will be able to help you design a plan for your business and your personal life that considers three questions. For business owners, the answers to these three questions are usually intertwined.

1) Can you avoid taxes?

Reviewing the tax consequences of your personal and business assets as part of your estate plan is the best way to minimize the tax exposure of your estate. This review should also include considerations that come up when trying to facilitate an organized sale or succession plan for your business. You can’t completely avoid taxes, but good planning will help them from being excessive.

There are a number of IRS sections that can help, and your estate planning attorney will know them. For example, Internal Revenue Code (IRC) Section 6166 gives your loved ones more time to pay the tax by having it paid in ten annual installments. Another provision, IRC Section 303, lets your family redeem stock with few tax penalties. Talk with your attorney and CPA to find out if your business is eligible for either of these strategies. Create a plan and talk about it in detail with survivors to help them navigate the transition.

2) Do you have a buy-sell agreement in place?

This is critical, particularly if more than one person owns the business. The buy-sell agreement dictates how a partnership or LLC is distributed upon the death or incapacity of one of the owners. Without an agreement, family members may be stuck owning a company they don’t want or don’t know anything about. Alternatively, your former partners may find themselves partnered with people with whom they never intended to go into business.

The buy-sell agreement creates a plan for what happens when an owner passes. Frequently, the terms state that the shares of the company must be bought out by the other owners at a fair market price. The agreement can even establish a sale price, so family members will know exactly what they can expect to receive from the sale. In addition, a buy-sell agreement can be used to block certain individuals from taking a role in the business. For many family businesses, that’s enough of a reason to make sure to have a buy-sell agreement.

3) Should you purchase a life insurance policy?

Maybe you want the business to die with you. Some small businesses provide a stable income for the owner, but there’s no plan for the business to be passed to another family member or to survive the passing of the owner. If that is your situation, then you should consider having a life insurance policy so that your family can continue to have income after your death.

In the event you want the business to continue for your partners, but not for your family, a life insurance policy can also be used to help partners with the capital they’ll need to purchase your shares, if that is how your buy-sell agreement has been set up.

As a small business owner and a family breadwinner, you want to be sure your family and your business are prepared for your passing. Talk with your estate planning attorney to make sure both are protected.

Reference: Bakersfield.com (July 15, 2019) “Estate planning tips for small business owners”

Use This Checklist When Visiting Assisted Living Facilities

When you are trying to find an assisted living community for yourself or a loved one, you need to do your homework to find at least three candidates that meet all the needs of the future resident. After you have narrowed your search down to those facilities, you should visit each one with the person who will be living there. Know what you want to look for before you visit the first center, so you will get all the information you need from every facility.

It is easy to get overwhelmed in the process of finding the right assisted the living community. To help you in this quest, use this checklist when visiting assisted living facilities.

  1. First impressions count. Pay close attention to your initial thoughts and feelings about the center as you approach and enter. Your instincts often pick up on “micro-symptoms” that can indicate a problem, even before you notice the issue itself.
  2. Try to see down the road. Visualize yourself or your loved one actually living at the assisted living community. Ask yourself if you would be happy there. Pay attention to whether you feel comfortable or anxious. Evaluate whether the staff and other residents are friendly and inviting.
  3. Use Smell-a-vision. When you walk through the building, pay attention to the smells. You should not be able to detect any unpleasant odors. Strong “cover-up” scents are also a warning that the place likely has cleanliness issues.
  4. Look for dirt, dust, and grime in the obvious locations and places, like the baseboards and windows. You might be surprised at how many expensive assisted living centers cut corners on cleaning costs.
  5. Watch the staff in action, particularly when they are interacting with the residents. Pay attention to their facial expressions and tone of voice to see if they love their jobs or are merely going through the motions. You should also observe the body language of the residents when they receive care from the staff. Look for any signs of fear, hostility, or resentment. Keep looking until you find a place where both the residents and the staff are happy, warm and friendly.
  6. The proof is in the pudding. Good food is one of the highlights for many people who reside in assisted living. Visit during mealtime and arrange to eat a meal there. Find out if the meals are both nutritious and tasty. Get a copy of the monthly menus to check for variety. Find out the center’s policy for when a resident cannot come to the dining room.
  7. Explore both the outdoor areas and the indoor facilities. Make sure that your loved one would be safe when enjoying some fresh air outside. Look to see if there are adequate sitting areas and tables.
  8. Talk to and observe the current residents. You can find out valuable information from the people who already live at the center. Without making them feel uncomfortable, notice whether the residents are well-groomed and wearing clean clothes. Sit and visit with some residents. Let them know you are considering this community for yourself or a loved one. Ask for their advice. Find out if they have to wait a long time for personal care or other services. If so, the facility is likely under-staffed.

References: A Place for Mom. “Tips for Touring Assisted Living Communities.” (accessed August 7, 2019) https://www.aplaceformom.com/planning-and-advice/articles/tips-for-touring-assisted-living

What is the Latest With the Fight Over John Steinbeck’s Estate?

A three-judge panel of the Ninth U.S. Circuit Court of Appeals will be in Anchorage, Alaska to hear arguments in an appeal by the estate of Steinbeck’s late son Thomas over a 2017 jury verdict that took place in California. There, a federal jury awarded the author’s stepdaughter Waverly Scott Kaffaga $13 million. She claimed that Steinbeck’s son and daughter-in-law, Gail Steinbeck, hampered motion picture adaptations of his iconic works. A jury in Los Angeles was asked to decide if Thomas and Gail Steinbeck interfered with deals and should pay. Kaffaga sued her stepbrother, his widow, Gail, and their company.

AP News published a story last week, “Judges to hear appeal in lawsuit over John Steinbeck works,” reporting that Attorney Matthew Dowd, who represents the Thomas Steinbeck estate, said part of the appeal claims that the 1983 agreement was in violation of a 1976 change to copyright law that gave artists or their blood relatives the right to terminate copyright deals. The appeal also disputes the jury award, maintaining it was not supported by “substantial evidence.”

Kaffaga, who is the executor for the estate of her mother, Elaine Steinbeck, the author’s widow and third wife, had alleged that long-running litigation over the author’s estate kept her from making the most of his work, when big names like Steven Spielberg and Jennifer Lawrence wanted to bring the classics, “The Grapes of Wrath” and “East of Eden,” back to the screen. Kaffaga said the movie deals instead fell apart over the years.

Kaffaga claimed that Thomas secretly signed a $650,000 deal with DreamWorks to be an executive producer on a remake of “The Grapes of Wrath,” that originally starred Henry Fonda and won two Oscars. She also said that Gail learned of projects that Kaffaga was involved in and threatened moviemakers, arguing she and her husband possessed the legal rights to the novels. Attorney Dowd said Thomas, who died in 2016, conveyed his intention to exercise those rights, prompting Kaffaga to claim a contract breach. He said Thomas was within his right to do so under the 1976 “termination rights” clause.

In the same action, a judge ruled the couple breached a contract between Kaffaga’s late mother, Thomas Steinbeck, and his late brother, John Steinbeck IV. The brothers’ mother was the author’s second wife, Gwyndolyn Conger.

“We would like the court to rule that the 1983 Agreement violates the statute and, therefore, cannot prevent the heirs from exercising their termination rights,” Dowd said. “Relatedly, we are asking for a new trial and that the damages awards be vacated because they are too speculative and there is no legal basis for awarding punitive damages under California law.”

Kaffaga’s attorney, Susan Kohlmann, argues on appeal that several courts have already upheld the contract as legally binding. The agreement, which resolved earlier litigation, gives Elaine’s estate the “exclusive power and authority to control the exploitation and termination” of some of Steinbeck’s works, in exchange for the sons getting a greater piece of domestic royalties.

Even so, the attorney wrote that “Appellants again seek to hijack this lawsuit and use it as a mechanism to relitigate the issue of the validity of the 1983 agreement, by arguing that it is an ‘agreement to the contrary’ under the Copyright Act.”

“The District Court properly excluded such argument, evidence, and testimony that sought to undermine the holdings of multiple courts confirming the validity of the 1983 agreement,” they argued.

The lawsuit comes after decades of fighting and litigation between Thomas and Kaffaga’s mother over control of the author’s works. Thomas lost most of the court battles, including a lawsuit he and the daughter of his late brother, John Steinbeck IV, brought that made Kaffaga countersue in the case being appealed.

Reference: AP News (August 5, 2019) “Judges to hear appeal in lawsuit over John Steinbeck works”

You’ve Received an Inheritance. Now What?

Inheriting money puts a whole new spin on your outlook on money, says The Kansas City Star in its article “Coming into some money? Be wise with it.”

The first thing you should look at is, do you have debts? Make a list of your debt balances and their interest rates. If the interest rate is high, pay it off. If it’s low, you may be better off investing the funds.

Next, check on your emergency fund. If you don’t have three to six months’ worth of living expenses on hand, use your inheritance to ramp up that fund. Yes, you can use credit cards sometimes. However, having at least two months’ worth of living expenses in cash is critical and can make a big difference when an unexpected circumstance arises.

The third step is to contribute the most you can to a health savings account (HSA), particularly if your employer does not contribute to it and if you have a qualifying health plan. That’s $3,500 if you are single, $7,000 for families and an additional $1,000 if you are over 55. This gets you a nice tax deduction and withdrawals are tax-free, as long as they are used for qualified medical expenses.

If you still have money left over after these three big categories have been addressed, then it might be time to “tax-shift” your portfolio.

Let’s say you regularly contribute $3,000 to a 401(k). If you can, increase that amount by $22,000, to the maximum, if you’re 50 and older. Since your paycheck decreases, so does your tax. If your tax rate is currently 22%, you’ll only need to add $17,160 from your inherited account to reach the same spendable dollars. The tax-deferred account in your portfolio will grow faster, while the current taxable account shrinks.

Another thing to think about is whether to commingle funds with your significant other or not. You can spend it on joint assets now, maybe to pay down your house. Let’s say you and your spouse have a retirement portfolio. The inheritance may also help you to retire earlier. An alternative is to save the inheritance and keep it in a separate account with only your name on it, in which case it remains your asset alone in case of a divorce. Most states will consider this money a non-marital asset, and not subject to division between divorcing parties.

One smart way to use the inheritance is as a way to avoid tapping into retirement accounts for a longer period of time. Withdrawals from IRAs are taxable. If you’re not worried about commingling funds or investment gains, then use the inherited account to minimize the tax losses from retirement accounts. Most people don’t have enough saved to keep spending during retirement as they did while working. Skip the spending spree that often follows an inheritance and enjoy the money over an extended period of time.

Receiving an inheritance is one of the times when a review of your estate plan becomes a wise move. A new financial position may require more tax planning and more legacy planning.

Reference: The Kansas City Star (June 27, 2019) “Coming into some money? Be wise with it”

A Poem About Personal Effects

I want to thank my mother for sharing this poem with me, it does a wonderful job of capturing the reasons we value certain personal effects over others.

Personal effects are one of those areas of estate planning that can be difficult for clients to quantify.  How do you convey the value of possessions you treasure?  How do you ensure that the person you leave it to will treasure it as much as you do?

Personal Effects
by Raymond Burns

The lawyer told him to write a letter
to accompany the will, to prevent
potential discord over artifacts
valued only for their sentiment.

His wife treasures a watercolor by
her father; grandmama’s spoon stirs
their oatmeal every morning. Some
days, he wears his father’s favorite tie.

He tries to think of things that
could be tokens of his days:
binoculars that transport
bluebirds through his cataracts

a frayed fishing vest with
pockets full of feathers brightly
tied, the little fly rod he can still
manipulate in forest thickets,

a sharp-tined garden fork,
heft and handle fit for him,
a springy spruce kayak paddle,
a retired leather satchel.

He writes his awkward note,
trying to dispense with grace
some well-worn clutter easily
discarded in another generation.

But what he wishes to bequeath
are items never owned: a Chopin
etude wafting from his wife’s piano
on the scent of morning coffee

seedling peas poking into April,
monarch caterpillars infesting
milkweed leaves, a light brown
doe alert in purple asters

a full moon rising in October,
hunting-hat orange in ebony sky,
sunlit autumn afternoons that flutter
through the heart like falling leaves.

Resource: The Writer’s Almanac, July 17, 2019. https://newslettercollector.com/newsletter/the-writer-s-almanac-for-wednesday-july-17-2019/

 

Details of the New SECURE Act

You may have heard some talk about the new SECURE Act. But what are the details and how does it impact you?

The SECURE Act proposes a number of changes to retirement savings. These include changes to parts of IRAs and 401(k)s. Although it is still under review, the Act is expected to be passed in some form after revisions. Some of the changes that the Act makes look to be common sense, like broadening access to IRAs and 401(k)s, as well as including updating the rules to reflect that retirement is now a longer period of life. However, with these changes come potential limitations with stretch IRAs.

Forbes asks in its recent article “Are Concerns Over Stretch IRAs And The SECURE Act Justified?” In general, an IRA is a tax-wrapper for your investments. While the investments stay in the IRA, you do not have to pay any tax on income made from those investments. A traditional IRA is where your contributions can be made tax-free for the time being, with tax due upon withdrawal. Alternatively, you can contribute after-tax dollars and have your distributions be tax-free if you use a Roth IRA. The SECURE act isn’t changing this fundamental process during the lifetime of the person who contributed to the IRA. Instead, it is altering what happens when that person, still has an IRA balance at death.

If you’ve ever spoken with someone who inherited an IRA, you have probably heard of the Stretch IRA. A Stretch IRA can be a great estate planning tool. Here’s how it works: you give the IRA to a young beneficiary in your family. The tax shield function of the IRA is then “stretched,” for what can be decades because the length of the IRA will now extend to the end of the beneficiary’s lifetime. This is important because the longer the IRA lasts, the more your investments can continue to grow. In a sense, this will protect that growth from taxes for a longer period of time.

However, the SECURE Act could change that: instead of IRA funds being spread and distributed to the beneficiary over the lifetime of the beneficiary, they’d be spread and distributed over a much shorter period. Based on the provisions of the SECURE Act as it stands, that period will likely be 10 years. That’s a big change for estate planning because a beneficiary will now have to withdraw that investment within a shorter period of time, be taxed on that income sooner, and lose out on the benefits of letting the investments grow for longer.

It’s good to keep in mind, though, that for a person who uses their own IRA throughout retirement and uses it up or passes it to their spouse as an inheritance—the SECURE Act changes almost nothing. In fact, IRAs are slightly improved for these individuals due to the new ability to continue to contribute after age 70½ and other small improvements. Therefore, most typical IRA holders will be unaffected or benefit to some degree. For many people, the bulk of IRA funds will be used in retirement and the Stretch IRA is less relevant. If you are planning to use the IRA as a distribution for your children or other people to inherit, however, talk to a tax advisor or attorney to understand how the SECURE Act will impact your estate plan.

Reference: Forbes (July 16, 2019) “Are Concerns Over Stretch IRAs And The SECURE Act Justified?”