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Understanding the Differences Between a Living Trust and an Irrevocable Trust

Trusts can be useful tools to protect your assets, save on estate taxes, or set aside money for a family member. But before you commit to adding a trust to your estate plan, make sure you understand the differences between revocable (also called “living”) and irrevocable trusts because each offers advantages and disadvantages, depending on their purpose. 

While the two main types of trusts differ in how they are structured and taxed, both types of trusts are tools for setting aside assets and distributing them according to specific wishes and instructions. They can protect one’s property, safeguard a family’s financial future, and provide tax-saving strategies.

Structure
As the name suggests, an irrevocable trust, once established, can’t be canceled or revoked. The person creating the trust, sometimes called the “grantor,” transfers assets into the trust and permanently gives up all claim to them. A trustee is appointed to carry out the instructions spelled out in the trust. No changes to the terms of the trust can be made without the consent of the trust’s beneficiaries.

In contrast, a living trust offers more flexibility. The grantor of a living trust still owns and controls the assets and can make changes at any time. A living trust also has a trustee, someone who would take over management of the trust if the owner is no longer capable of doing so.

Taxes
Both types of trusts offer tax advantages, although these differ in key ways. An irrevocable trust is considered a separate entity and must have its own tax returns filed annually under its tax ID number. Irrevocable trusts can incur additional costs if a CPA is needed for tax preparation. Because it is a trust and not an individual, the irrevocable trust can’t qualify for the various deductions and exemptions that individuals can claim on their returns. Also, higher rates apply at lower income levels. For example, an irrevocable trust is subject to the highest federal tax rate of 37 percent if its income exceeds $12,500, a much lower ceiling than for individuals.

Assets within a living trust are still considered the property of the trust owner. Any income earned from this trust is filed along with the owner’s other income. Also, the assets of the trust belong to the owner’s estate and are taxed accordingly on the owner’s death. For this reason, wealthy families may choose to transfer a portion of their assets into an irrevocable trust to keep the value of their estate below federal and state exemptions.

Protecting Assets in the Future
One key advantage of irrevocable trusts is that their assets are protected from lawsuits and creditors. A living trust offers no such protection, because the trust assets are still part of the owner’s property. 

A living trust is an option for someone who doesn’t need all the layers of protection but still wants to set up some provisions for the future.  A living trust works well to set aside assets in the event that the grantor becomes unable to manage his or her finances in the future, due to illness or old age. With a living trust, the grantor controls the property while he or she is competent, but a trustee can take over this function if the grantor loses this capacity.

If there are other considerations, such as estate tax planning, protection from creditors, or providing for a special needs family member, an irrevocable trust might be the better way to go. Your planner will have the best answers for your particular circumstances.

Keep in mind that this is general advice only and that specific situations may be treated differently. Contact your attorney for advice on how your specific situation will be handled using different types of trusts. 

Accounting for Gifts and Loans to Children in Your Estate Plan

No parents want their children to fight among themselves after they are gone. Sadly, conflicts often arise, especially when a parent has gifted or loaned money to one child and not others. However, a few key words in your estate plan can minimize the potential for conflict.

If you give money to one child, the other siblings may claim that the child should receive a reduced share of your estate.  You can forestall such disputes by making your intent clear in your estate planning documents. For example, the document could state that you are not making any adjustments based on gifts. This would make it clear to everyone that no one should receive a reduced share. Alternatively, you could specify the gifts that have been made and explain why one child is receiving a reduced share.

Loans are another problem. These can be addressed in a number of ways, depending on your intent. Verbal loans are difficult to prove, so consider including a provision in your estate planning documents stating that all verbal loans are a gift. If you have any outstanding verbal loans that you don't want to be a gift, then make sure you put these in writing. If you want the loan to be an advance against inheritance, this can also be specified in your estate planning documents. To avoid a child claiming the loan was forgiven, you can require that the forgiveness be in writing.

The important thing is to make sure your estate planning documents clearly convey your intent. Be sure to consult your attorney to ensure your documents provide the guidance you want regarding gifts and loans. 

Caregivers Are Getting Younger, Making Planning for Long-Term Care Even More Important

As baby boomers age, more and more millennials are becoming caregivers. Many are taking on this role while just getting started in their own lives, leading to difficult decisions about priorities. Proper planning can help them navigate this terrain. 

The term “sandwich generation” was coined to refer to baby boomers who were taking care of their parents while also having young children of their own. Now millennials are moving into the sandwich generation at a younger age than their parents did. According to a study by the AARP, one in four family caregivers is part of the millennial generation (generally defined as being born between 1980 and 1996). And a study by Genworth found that the average age of caregivers in 2018 was 47, down from 53 in 2010. Gretchen Alkema, vice president of policy and communications at the SCAN Foundation, told the New York Times that the rise in younger caregivers may be because baby boomers had kids later in life than their predecessors and many are divorced, so they do not have a spouse to provide care. 

Younger caregivers have different challenges than older caregivers. They may have younger kids to manage and careers that are just beginning, rather than established. In addition, more millennial men are caregivers compared to previous generations. The AARP study found that millennials spend an average of 21 hours a week on caregiving, and one in four spend more than 20 hours per week. More than half (53 percent) also hold a full-time job in addition to their caregiving duties and 31 percent work part time. Younger caregivers are also less likely to discuss their caregiving duties with their employer than previous generations.

Managing caregiving duties, family, and employment is stressful. Having plans in place can help alleviate some of the stress, and the earlier you plan ahead the better. The following are resources you can use to put together a long-term care plan: 

  • Long-term care insurance can help lessen some of the costs of caregiving if it is purchased early enough. 
  • A geriatric care manager can help determine what care is needed and where to find resources. 
  • An elder law attorney can draft essential documents like a power of attorney and a health care proxy, as well as advise you on available benefits, such as Medicare, Medicaid, or Veteran’s Administration benefits. 
  • Adult day care can give caregivers a much-needed break. 

Having resources in place will help, but you also need to be mindful of when you need help. Recognize when you are being stretched too thin and consider your priorities. If possible, talk to your employer about flexible hours. Consult with other family members and do not be afraid to delegate tasks. Take care of yourself by eating well, exercising, and finding time to relax. For some tips on handling the caregiver/life balance, click here.

For an article on the unique caregiving challenges facing the women of Generation X, click here.

If Your Estate Plan Includes IRAs, a New Law Means It Is Time to Reevaluate

Both workers and retirees may need to rethink some of their estate planning in light of the newest spending bill. The Setting Every Community Up for Retirement Enhancement (SECURE) Act, part of the massive bill, makes major changes to retirement plan rules, including inherited plans. 

Passed in December 2019, the SECURE Act changes the law surrounding retirement plans in several ways, but the biggest change eliminates “stretch” IRAs. Under the previous law, if you named anyone other than a spouse as the beneficiary of your IRA (or other tax-favored retirement account, such as a 401(k)), that beneficiary could choose to take required minimum distributions (RMDs) over his or her lifetime and pass what was left on to future generations (called the “stretch” option). The required minimum distributions were calculated based on the beneficiary’s life expectancy. This allowed the money to grow tax-deferred over the course of the beneficiary’s life and to be passed on to his or her own beneficiaries. 

The SECURE Act requires that most non-spouse beneficiaries of an IRA withdraw all the money in the IRA within 10 years of the IRA holder’s death. In many cases, these withdrawals would take place during the beneficiary’s highest tax years, meaning that the elimination of the stretch IRA is effectively a tax increase on many Americans. This provision will apply to those who inherit IRAs starting on January 1, 2020.  

Spouses who inherit an IRA are still able to treat the IRA as their own (and take distributions over their lifetime), and the following non-spouse beneficiaries are also treated like spouses:
•    Disabled or chronically ill individuals
•    Individuals who are not more than 10 years younger than the account owner
•    Minor children. But once the child reaches the age of majority, he or she has 10 years to withdraw the money from the account.

Given these changes, those with retirement accounts need to immediately reevaluate their estate plans. 

Look at Disclaiming 
With regard to estates of certain people who died during 2019, there is a planning option for individuals who are inheriting a large IRA. Beneficiaries of large IRAs have the option of disclaiming them and allowing their beneficiaries to stretch their withdrawals. The disclaimer has to be done within nine months of the IRA owner’s death. Disclaimed property is treated as if the person inheriting it had actually died before the decedent. 

For example, assume that Robert died on September 1, 2019, leaving a $1 million IRA to his wife, Stacy. The contingent beneficiaries are their three children. Stacy could choose to disclaim the IRA (or a portion of it) so that it passes directly to her three children. They then could stretch the withdrawals over their life expectancies, postponing the bulk of their withdrawals until they are older and presumably retired and subject to lower tax brackets. Stacy has to execute her disclaimer by March 31st so that it's within nine months of Robert's death. The window for this option will continue to narrow until it closes completely on October 1, 2020.

Review Your Conduit Trust 
Your estate plan may have been designed to have your retirement plans pass into trust for the benefit of your spouse, your children, or others. If your spouse is the only beneficiary, your trust is fine because the SECURE Act did not change any of the rules for spouses inheriting IRAs. But the rules did change for just about everyone else in a way that could affect how the trust would work. 

Under the previous rules, so-called “conduit” trusts were set up to pay out RMDs to the beneficiaries. Under the new law, RMDs are not required but the IRA must be completely withdrawn by the end of the 10th year after the owner's death, and if it's held by a conduit trust, it must be completely distributed to the trust beneficiaries. If you created the trust to protect assets in the event of divorce or bankruptcy, or simply so they will be professionally managed, the new rules could undermine the purpose of the trust by distributing all of the assets out of the trust. If your IRA names a trust as a beneficiary, you should review the trust with your estate planning attorney.

Check Your Special Needs Trust
Special needs trusts, unlike most other trusts, are usually drafted as so-called “accumulation” trusts. Unlike conduit trusts, accumulation trusts do not require that the RMDs be distributed. Instead, they can be retained by the trust and distributed as the trustees deem appropriate. Automatically distributing RMDs could undermine eligibility for public benefits the disabled beneficiary may be receiving. 

Under the new law, disabled beneficiaries are deemed “eligible designated beneficiaries” and fall under an exception that permits them to continue to stretch withdrawals under the old inherited IRA age-based schedule. But the trust will only qualify for this treatment if the disabled individual is the only beneficiary of the trust during his or her life. If the trust also permits distributions to a spouse or children, it won't qualify and the IRA will have to be completely withdrawn under the 10-year rule. 

One of the problems with the 10-year rule for accumulation trusts, as opposed to conduit trusts, is that the withdrawn funds if held by the trust will pay taxes at trust tax rates, which are much higher than individual tax rates in most cases. As a result, if your estate plan includes a special needs trust that could be a beneficiary of your retirement plan assets, it's important to review the trust with your estate planning attorney.

To read the legislation, click here. For more on the new law, click here and here.

Medicaid Protections for the Healthy Spouse

Medicaid law provides special protections for the spouses of Medicaid applicants to make sure the spouses have the minimum support needed to continue to live in the community while their husband or wife is receiving long-term care benefits, usually in a nursing home.

The so-called “spousal protections” work this way: if the Medicaid applicant is married, the countable assets of both the community spouse and the institutionalized spouse are totaled as of the date of “institutionalization,” the day on which the ill spouse enters either a hospital or a long-term care facility in which he or she then stays for at least 30 days. (This is sometimes called the “snapshot” date because Medicaid is taking a picture of the couple's assets as of this date.)

In order to be eligible for Medicaid benefits a nursing home resident may have no more than $2,000 in assets (an amount may be somewhat higher in some states). In general, the community spouse may keep one-half of the couple's total “countable” assets up to a maximum of $128,640 (in 2020). Called the “community spouse resource allowance,” this is the most that a state may allow a community spouse to retain without a hearing or a court order. The least that a state may allow a community spouse to retain is $25,728 (in 2020).

Example: If a couple has $100,000 in countable assets on the date the applicant enters a nursing home, he or she will be eligible for Medicaid once the couple's assets have been reduced to a combined figure of $52,000 — $2,000 for the applicant and $50,000 for the community spouse.

Some states, however, are more generous toward the community spouse. In these states, the community spouse may keep up to $128,640 (in 2020), regardless of whether or not this represents half the couple's assets. For example, if the couple had $100,000 in countable assets on the “snapshot” date, the community spouse could keep the entire amount, instead of being limited to half.

The income of the community spouse is not counted in determining the Medicaid applicant’s eligibility. Only income in the applicant’s name is counted. Thus, even if the community spouse is still working and earning, say, $5,000 a month, she will not have to contribute to the cost of caring for her spouse in a nursing home if he is covered by Medicaid. In some states, however, if the community spouse’s income exceeds certain levels, he or she does have to make a monetary contribution towards the cost of the institutionalized spouse’s care. The community spouse’s income is not considered in determining eligibility, but there is a subsequent contribution requirement.

But what if most of the couple's income is in the name of the institutionalized spouse and the community spouse's income is not enough to live on? In such cases, the community spouse is entitled to some or all of the monthly income of the institutionalized spouse. How much the community spouse is entitled to depends on what the Medicaid agency determines to be a minimum income level for the community spouse. This figure, known as the minimum monthly maintenance needs allowance or MMMNA, is calculated for each community spouse according to a complicated formula based on his or her housing costs. The MMMNA may range from a low of $2,113.75 to a high of $3,216 a month (in 2020). If the community spouse's own income falls below his or her MMMNA, the shortfall is made up from the nursing home spouse's income.

Example: Joe Smith and his wife Sally Brown have a joint income of $3,000 a month, $1,700 of which is in Mr. Smith's name and $700 is in Ms. Brown's name. Mr. Smith enters a nursing home and applies for Medicaid. The Medicaid agency determines that Ms. Brown's MMMNA is $2,200 (based on her housing costs). Since Ms. Brown's own income is only $700 a month, the Medicaid agency allocates $1,500 of Mr. Smith's income to her support. Since Mr. Smith also may keep a $60-a-month personal needs allowance, his obligation to pay the nursing home is only $140 a month ($1,700 – $1,500 – $60 = $140).

In exceptional circumstances, community spouses may seek an increase in their MMMNAs either by appealing to the state Medicaid agency or by obtaining a court order of spousal support.

Contact your attorney to find out what you can do to make sure your spouse has enough income to live on. 

 

 

Medicare Now Covers Outpatient Treatment for Opioid Addiction

Recognizing the huge problems caused by opioid addiction in the United States, Medicare is adding a new outpatient opioid treatment benefit, paying for methadone and related treatment in certain facilities. 

Under a new rule taking effect in January 2020, Medicare will now provide payment to opioid treatment programs (OTPs), also known as methadone clinics, as part of Medicare Part B. OTPs are the only locations where people addicted to opioids can receive methadone as part of their treatment. 

Under the new OTP benefit, Medicare covers:

  • U.S. Food and Drug Administration (FDA)-approved opioid treatment medications (such as methadone)
  • Dispensing and administration of the treatment medications (if applicable)
  • Substance use counseling
  • Individual and group therapy
  • Toxicology testing
  • Intake activities
  • Periodic assessments

For beneficiaries who are eligible for both Medicare and Medicaid, Medicaid paid for methadone treatment. Now, once the OTP is enrolled in Medicare, Medicare will become the primary payer for these beneficiaries. Medicaid should continue to cover the service during the transition. Medicare Advantage plans should also allow coverage of OTPs that are not in their network while they assist beneficiaries in transitioning to an in-network OTP. 

For a fact sheet from Justice in Aging, click here.

Understanding Revocable Trusts

Revocable trusts are an effective way to avoid probate and provide for asset management in the event of incapacity. In addition, revocable trusts–sometimes called “living” trusts–are incredibly flexible and can achieve many other goals, including tax, long-term care, and asset-protection planning. 

A trust is a legal arrangement through which one person holds legal title to property for another person. As the creator of a revocable trust, you are called the “grantor” or the “donor.” While you are alive, you are a beneficiary of the trust and can also serve as either the sole trustee or as one of a number of co-trustees. The trustees manage the assets in the trust, which can include real estate, bank accounts, investments, and tangible property (such as fine art) under the terms set forth in the trust document. 

Whatever you place into trust during your life will pass to your beneficiaries at your death without going through probate, avoiding the cost, delay and publicity of probate. In addition, in the event of incapacity, a co-trustee can step in and manage the trust property without any fuss. While you can also accomplish this through a durable power of attorney, banks and other financial institutions are much more comfortable with trusts. They have been known to reject durable powers of attorney that are more than a few years old or to require that the drafting attorney certify that the power of attorney has not been revoked. 

The secret to making revocable trusts work is to fund them. This means retitling assets, whether real estate, bank accounts, or investment accounts, in the name of the trust. All too often, attorneys draw up estate-planning documents, advise clients to fund their trusts, and then nothing happens. Trusts have no relation to assets that are not retitled. However, if you execute a “pour-over” will along with your trust, saying that at your death all of your assets will be distributed to your trust, your wishes as to the ultimate distribution of your estate will be carried out. You just won’t avoid probate and will not have as strong protection in case of incapacity. 

To place bank and investment accounts into your trust, you need to retitle them as follows: “[your name and co-trustee’s name] as Trustees of [trust name] Revocable Trust created by agreement dated [date].” Depending on the institution, you might be able to change the name on an existing account. Otherwise you will need to open a new account in the name of the trust and then transfer the funds. The financial institution will probably require a copy of the trust, or at least of the first page and the signature page, as well as signatures of all the trustees. As long as you are serving as your own trustee or co-trustee, you can use your Social Security number for the trust. If you are not a trustee, the trust will have to obtain a separate tax identification number and file a separate 1041 tax return each year. You will still be taxed on all of the income and the trust will pay no separate tax.
 
You will need to execute a deed and a trustee’s certificate to transfer real estate into the trust. If you intend to refinance your property or take out a line of credit, do so before deeding the real estate into your trust. In most instances, banks and other lenders require that you remove the property from the trust and put it back in your name before signing any new mortgage papers. Depending on your state, you might also need to redo a homestead declaration after transferring property into a revocable trust.

The following are some of the issues revocable trust documents cover, as well as decisions you might need to make:

  • When does the successor trustee take over? When all of the original co-trustees stop serving—whether due to incapacity, death or resignation—or when one of them stops serving?
  • How do you define the incapacity of a trustee?
  • What can the trust invest in?
  • May it pay the debts of your estate?
  • If there’s an absence of trustees for any reason and you are not available, who appoints the new trustee? Do you want to require that new trustees have any particular qualifications?
  • Do you want to give anyone else the right to remove trustees?
  • What accounts or statements, if any, must the trustee provide to beneficiaries?
  • Do you want distributions to be made to beneficiaries under age 18, or just made on their behalf? Would you prefer the trustee to continue managing the funds until your children or other beneficiaries reach, say 25 or 30? You can also provide for partial distributions at various ages.
  • What powers should the trustees have?

These and more issues need to be decided for all trusts. More complex trusts designed for tax and asset protection purposes present even more choices and get even longer and more complex. To draft a revocable trust, consult with your attorney. 

Feds Release 2020 Guidelines Used to Protect the Spouses of Medicaid Applicants

The Centers for Medicare & Medicaid Services (CMS) has released the 2020 federal guidelines for how much money the spouses of institutionalized Medicaid recipients may keep, as well as related Medicaid figures.

In 2020, the spouse of a Medicaid recipient living in a nursing home (called the “community spouse”) may keep as much as $128,640 without jeopardizing the Medicaid eligibility of the spouse who is receiving long-term care. Known as the community spouse resource allowance or CSRA, this is the most that a state may allow a community spouse to retain without a hearing or a court order. While some states set a lower maximum, the least that a state may allow a community spouse to retain in 2020 will be $25,728.

Meanwhile, the maximum monthly maintenance needs allowance (MMMNA) for 2020 will be $3,216. This is the most in monthly income that a community spouse is allowed to have if her own income is not enough to live on and she must take some or all of the institutionalized spouse's income. The minimum monthly maintenance needs allowance for the lower 48 states remains $2,113.75 ($2,641.25 for Alaska and $2,432.50 for Hawaii) until July 1, 2020.

In determining how much income a particular community spouse is allowed to retain, states must abide by this upper and lower range. Bear in mind that these figures apply only if the community spouse needs to take income from the institutionalized spouse. According to Medicaid law, the community spouse may keep all her own income, even if it exceeds the maximum monthly maintenance needs allowance.

The new spousal impoverishment numbers (except for the minimum monthly maintenance needs allowance) take effect on January 1, 2020.

For a more complete explanation of the community spouse resource allowance and the monthly maintenance needs allowance, click here.

Home Equity Limits:

In 2020, a Medicaid applicant’s principal residence will not be counted as an asset by Medicaid if the applicant's equity interest in the home is less than $595,000, with the states having the option of raising this limit to $893,000.

For more on Medicaid’s home equity limit, click here.

 

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