Appointing the right trustee for your living trust provides peace of mind

A living trust is a cornerstone of many estate plans. During your life, you can serve as the trustee and manage the assets just as you would if you owned them outright. However, you must choose a trustee to oversee and administer the trust after your death (and during your lifetime, should you become unable to act as trustee).  Who should serve in that role?

Job description

The trustee must:

  • Manage all trust assets, perhaps including securities and business and real estate interests, until the assets are distributed,
  • Maintain detailed records and prepare transaction statements,
  • Handle collections, distributions and payments,
  • Ensure all tax returns are prepared and filed, and
  • Settle the trust.

In addition, the trustee must be available to respond to all inquiries from beneficiaries, which can be a time consuming and delicate task.

Trustee types to consider

You generally have two types of trustee to choose from. The first is an individual trustee. This person may be a family member or close friend, business advisor, accountant, or attorney. A family member or friend may seem like the natural choice because of the likelihood that he or she understands your wishes for your family’s future. It’s also likely that he or she will charge little or nothing in trustee fees.

But keep in mind that, ideally, a trustee should have financial knowledge, be familiar with taxes and accounting, and have good business sense. So it’s essential that individual trustees without professional expertise in managing trusts consult with accountants, attorneys and investment advisors to help them get the job done effectively.

The second type of trustee is a corporate trustee. This typically is a financial institution, bank trust department or trust company. A corporate trustee specializes in managing estates and trusts and generally is free of conflicts of interest, allowing it to carry out its duties impartially.  Some clients, however, do not like the perceived “coldness” or “outside” nature of using a corporate trustee.

A corporate trustee usually has direct access to investment advisors, tax planners and other financial experts. Most institutional trustees charge fees based on a percentage of the trust’s assets. An institutional trustee also can be beneficial because you don’t have to worry about whether the trustee will outlive you.

The hybrid option

In some cases, you can create a hybrid trustee by appointing an institution and an individual as co-trustees. The institution provides the professional experience and skills needed to effectively oversee the trust assets, while the individual is someone you’re fully confident will ensure that the trust acts in accordance with what your wishes for your family would be.  This is merely one option of several that can exist, including the use of a Trust Protector.

If you have questions about your trustee options, please contact us.

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Address your pet in your estate plan using a pet trust

If you’re an animal lover, a pet is a member of the family — sometimes even more so than flesh-and-blood. So you want to ensure that your beloved pet is cared for after you’re gone. One way to do so is to make provisions for your pet through a trust.

This legally sanctioned arrangement allows you to set aside funds for the animal’s care. After the pet dies, any remaining funds are distributed to whomever you choose as directed by the trust’s terms.

Pet trust in action

The basic guidelines are comparable to trusts for people. You, as the grantor, create the trust to take effect either during your lifetime or at death. Typically, a trustee will hold property for the benefit of your pet. Payments to a designated caregiver are made on a regular basis as determined by you in the trust document.

Include specific instructions

Because you know your pet better than anyone else, you may provide specific instructions for his or her care and maintenance (for example, a specific veterinarian or brand of food). The trust can also mandate periodic visits to the vet and other obligations should you become unable to care for the pet yourself. If you have questions on how to address your pet in your estate plan, please contact us.

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Who should be the guardian of your minor children?

If you have minor children, arguably the most important estate planning decision you have to make is choosing a guardian for them should the unthinkable occur. It’s critical to put much thought into this decision to ensure your children would be cared for as you wish in such a situation.

Evaluating potential candidates

Here are a few issues to consider when evaluating potential guardians:

  • Do they want to serve as guardians?
  • Does your estate plan provide sufficient resources so that caring for your children won’t cause an economic hardship?
  • Do they share your values and parenting philosophy?
  • If they’re married, is the marriage stable?
  • If they have children, do your children get along with them?
  • How old are they in relation to the children? A grandparent or other older person may not be the best choice to care for an infant or toddler, for example.
  • Are their homes large enough to make room for your children?

It used to the be case in Georgia that the wishes of the parents set forth in a Last Will and Testament were essentially “ironclad” and would be honored by the probate courts.  This all changed significantly in recent years where new laws were passed allowing the selection of the parents to be challenged after their death.  Accordingly, it is vitally important that you are clear on whom you want to serve, but even more important that you consider stating whom you do not want to serve.It’s a good idea to prepare a letter explaining the reasons you believe your appointees are best equipped to care for your children.

Naming others

It’s also important to choose a backup guardian. Why? If your first choice dies or is unable or unwilling to serve for some other reason, a court will appoint a guardian, and you likely wish to provide some guidance on that as well.

Your estate plan should list anyone you wish to prevent from raising your children. Contact us for more information regarding estate planning for parents with minor children.

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Tax reform and estate planning: What’s on the table

As Congress and President Trump pursue their stated goal of passing sweeping new tax legislation before the end of the year, many taxpayers are wondering how such legislation will affect them. One area of particular interest is estate planning; specifically, the future of gift, estate and generation-skipping transfer (GST) taxes.

Potential estate tax law changes are emerging

Under current law, the combined federal gift and estate tax exemption, and the GST tax exemption, is $5.49 million. The top tax rate for all three taxes is 40%. The annual gift tax exclusion is $14,000. That means you can reduce your taxable estate by making tax-free gifts of up to $14,000 per year to an unlimited number of people without tapping your lifetime gift and estate tax exemption.

The U.S. House version of the Tax Cuts and Jobs Act that passed on November 16 increases the exemptions to $10 million (adjusted annually for inflation) and repeals the estate tax after 2024. It also terminates the GST tax at that time. Under the bill, the annual gift tax exclusion stays in place (at $15,000 for 2018 due to inflation indexing), and after 2024 the gift tax is retained but the rate falls to 35%.

The Senate’s version of the bill (as initially approved by the Senate Finance Committee) would also double the exemption for gift and estate taxes. It doesn’t address the GST tax, though, and makes no mention of repealing the estate tax. The full Senate will be addressing the bill after the Thanksgiving recess.

All eyes are on Congress

With the disparity between the House and Senate approaches to the estate tax, some prognosticators doubt a final reconciled bill will include an estate tax repeal. And it’s worth noting that the tax has been repealed in the past, only to be resurrected when party control subsequently changed hands in Washington.

At this point, the question of whether any tax bill will pass is still up in the air. But we can help you chart the best course to accomplish your estate planning goals under current and future tax provisions.

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Make the holidays bright for you and your loved ones with annual exclusion gifts

As the holiday season quickly approaches, gift giving will be top of mind. While gifts of electronics, toys and clothes are nice, making tax-free gifts of cash using your annual exclusion is beneficial for both you and your family.

Even in a potentially changing estate tax environment, making annual exclusion gifts before year end can still benefit your estate plan.

Understanding the annual exclusion

The 2017 gift tax annual exclusion allows you to give up to $14,000 per recipient tax-free without using up any of your $5.49 million lifetime gift tax exemption. If you and your spouse “split” the gift, you can give $28,000 per recipient. The gifts are also generally excluded from the generation-skipping transfer tax, which typically applies to transfers to grandchildren and others more than one generation below you.

The gifted assets are removed from your taxable estate, which can be especially advantageous if you expect them to appreciate. That’s because the future appreciation can also avoid gift and estate taxes.

Making gifts in 2017 and beyond

Be aware that time is running out to make annual exclusion gifts this year: December 31 is the deadline. It’s also important to know that next year the exclusion amount increases for the first time since 2013, to $15,000 ($30,000 for split gifts). And the inflation-adjusted gift and estate tax exemption is currently scheduled to increase to $5.6 million in 2018.

It’s also important to keep an eye on Congress. With both the U.S. House of Representatives and U.S. Senate now having released their tax reform bills, more details regarding the potential future of the estate tax have emerged. But what, if any, estate tax law changes are ultimately passed remains to be seen. Even if the estate tax is repealed, it likely won’t be permanent. And current proposals retain the gift tax. So making 2017 annual exclusion gifts can still be a tax-smart move.

In the meantime, we can help you determine how to make the most of your 2017 gift tax annual exclusion and keep you abreast of the latest regarding new estate tax laws.

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Update your estate plan to reflect your second marriage

If you’re in a second marriage or planning another trip down the aisle, it’s vital to review and revise your estate plan. You probably want to think through how and if to provide for your current spouse and not inadvertently benefit your former spouse (especially with respect to beneficiary designated accounts). And if you have children from each marriage, juggling their interests can be a challenge. Let’s take a look at a few planning tips.

Take inventory

Have you updated your will, trusts and beneficiary designations to name your current spouse where desired? Bear in mind that the terms of your divorce may require you to retain your former spouse as beneficiary of certain pension plans or retirement accounts.

Next, assess your financial situation and think about how you want to provide for various family members. For example, do you want to provide for all children equally? Will you favor biological children over stepchildren?

Also, are children from your first marriage significantly older than children from your second marriage? If so, their needs likely will be different. For example, if children from the first marriage are college age, in the short term they may need more financial support than children from your current marriage. On the other hand, if your older children are financially independent adults, they may need less help than your younger children.

Use trusts

Trusts generally avoid probate, so your assets can be distributed efficiently. However, if you leave your wealth to your current spouse outright, there’s nothing to prevent him or her from spending it all or leaving it to a new spouse, effectively disinheriting your children. To avoid this result, you can design a trust that provides income for your current spouse while preserving the principal for your children.

Trusts are particularly valuable if your children from a previous marriage are minors. Generally, if you leave assets to minors outright, they must be held in a conservatorship until the children reach the age of majority. It’s likely that your former spouse will be appointed conservator, gaining control over your wealth. Even though your former spouse will be obligated to act in your children’s best interests and will be supervised by a court, he or she will have considerable discretion over how your assets are invested and used.

To avoid this situation, consider establishing trusts for the benefit of your minor children. That way, a trustee of your choosing will manage the assets and control distributions to or on behalf of your children.

If you’re preparing for a second trip down the aisle or have recently wed for a second time, contact us for help reviewing and, if necessary, revising your estate plan.

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The write stuff: A letter of instructions

When you draft an estate plan, the centerpiece is your will or living trust. Such a document determines who gets what, where, when and how, as well as tying up the loose ends of your estate. A valid will or living trust can be supplemented by other legally binding documents, such as trusts (or additional trusts), powers of attorney and health care directives.

But there’s still a place at the table for a document that has absolutely no legal authority: a “letter of instructions” to your heirs. This informal letter can provide valuable guidance and act as a road map to the rest of your estate.

Taking inventory

Begin your letter of instructions by stating the location of your will or living trust. Then create an inventory of all your assets and include their location, any account numbers and relevant contact information. This may include, but isn’t necessarily limited to, checking and savings accounts, 401(k) plans and IRAs, health insurance policies, business insurance, life and disability income insurance, stocks, bonds, mutual funds and other investments, and any tangible assets your heirs may not readily find.

The contact information should include the names, phone numbers and addresses (including emails) of the professionals handling your financial accounts and paperwork, such as an attorney, CPA, banker, life insurance agent and stockbroker. Also, list the beneficiaries of retirement plans, IRAs and insurance policies and their contact information.

Guidance for personal preferences

A letter of instructions is more than just a listing of assets and their locations. Typically, it will include other items of a personal nature, such as funeral, burial or cremation arrangements, accounting of fees paid for cemetery plots or mausoleums, the names, addresses and telephone numbers of people and organizations to be notified upon death, and specific instructions for handling personal and financial affairs after you’re gone.

The letter can also expand on instructions in a living will or other health care directive. For example, it might provide additional details about the decision for being taken off life support systems. It may also cover charitable contributions you wish to be made after death or the manner in which property should be donated to charity.

Putting pen to paper

As you’re writing your letter, bear in mind that there are no legal requirements backing it. And just like a will or living trust, the letter should be updated periodically to reflect significant changes in your life. Finally, keep the letter in a safe place where the people whom you want to read it can easily find it.

There is no set format to such a “letter;” in fact, we have seen very successful versions of this be in spreadsheets or book form.  One excellent version was compiled/authored by Erik Dewey who makes his “Big Book of Everything” available online in an Excel spreadsheet format.  Mr. Dewey’s spreadsheet is one of the most comprehensive “letters of instruction” that we have come across, and we are pleased to share the link with you here: http://www.erikdewey.com/bigbookmkIIIa.zip.

Contact us if you have questions about a letter of instructions.

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A charitable remainder trust can provide a multitude of benefits

If you’re charitably inclined but concerned about having sufficient income to meet your needs, a charitable remainder trust (CRT) may be the answer. A CRT allows you to support a favorite charity while potentially boosting your cash flow, shrinking the size of your taxable estate, reducing or deferring income taxes, and enjoying investment planning advantages.

How does a CRT work?

You contribute stock or other assets to an irrevocable trust that provides you — and, if you desire, your spouse — with an income stream for life or for a term of up to 20 years. (You can name a noncharitable beneficiary other than yourself or your spouse, but there may be gift tax implications.) At the end of the trust term, the remaining trust assets are distributed to one or more charities you’ve selected.

When you fund the trust, you can claim a charitable income tax deduction equal to the present value of the remainder interest (subject to applicable limits on charitable deductions). Your annual payouts from the trust can be based on a fixed percentage of the trust’s initial value — known as a charitable remainder annuity trust (CRAT). Or they can be based on a fixed percentage of the trust’s value recalculated annually — known as a charitable remainder unitrust (CRUT).

Generally, CRUTs are preferable for two reasons. First, the annual revaluation of the trust assets allows payouts to increase if the trust assets grow, which can allow your income stream to keep up with inflation. Second, you can make additional contributions to CRUTs, but not to CRATs.

The fixed percentage — called the unitrust amount — can range from 5% to 50%. A higher rate increases the income stream, but it also reduces the value of the remainder interest and, therefore, the charitable deduction. Also, to pass muster with the IRS, the present value of the remainder interest must be at least 10% of the initial value of the trust assets.

The determination of whether the remainder interest meets the 10% requirement is made at the time the assets are transferred — it’s an actuarial calculation based on the trust’s terms. If the ultimate distribution to charity is less than 10% of the amount transferred, there’s no adverse tax impact related to the contribution.

Handle with care

If the estate tax is repealed as part of tax reform as has been proposed, CRTs would become less beneficial from an estate tax perspective. But they could still help the charitably inclined achieve their goals. CRTs require careful planning and solid investment guidance to ensure that they meet your needs. Before taking action, discuss your options with us.

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A dynasty trust keeps on giving long into the future

With a properly executed estate plan, your wealth can be enjoyed by your children and even their children. But did you know that by using a dynasty trust you can extend the estate tax benefits for several generations, and perhaps indefinitely? A dynasty trust can protect your wealth from gift, estate and generation-skipping transfer (GST) taxes and help you leave a lasting legacy.

Dynasty trust in action

Transfers that skip a generation — such as gifts or bequests to grandchildren or other individuals two or more generations below you, as well as certain trust distributions — are generally considered to be GSTs and subject to the GST tax (on top of any applicable gift or estate tax). However, you can make GSTs up to the $5.49 million (in 2017) GST exemption free of GST tax.

Your contributions to a dynasty trust will be considered taxable gifts, but you can minimize or avoid gift taxes by applying your lifetime gift tax exemption — also $5.49 million in 2017.

After you fund the trust, the assets can grow and compound indefinitely. The trust makes distributions to your children, grandchildren and future descendants according to criteria you establish. So long as your beneficiaries don’t gain control over the trust, the undistributed assets will bypass their taxable estates.

Enhancing the benefits

To increase the benefit to future generations, you can structure the trust as a grantor trust so that you pay any taxes on the trust’s income. The assets will then be free to grow without being eroded by taxes (at least during your lifetime).

Also consider further leveraging your GST tax exemption by funding the dynasty trust with life insurance policies or property that’s expected to appreciate significantly in value. So long as your exemptions cover the value of your contributions, any future growth will be sheltered from GST tax, as well as gift and estate tax.

Is a dynasty trust right for you?

If establishing a lasting legacy is an estate planning goal, a dynasty trust may be the right vehicle for you. Even if an estate and GST tax repeal is passed as part of the GOP’s proposed tax reform legislation, the repeal might be only temporary. So this planning technique could still make sense. Before you take action, consult with us, because a dynasty trust can be complicated to set up. We’ll also keep you apprised of any legislative news regarding an estate and GST tax repeal.

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