The Cherry Tree Law Firm

With the recent news its hard not to wonder how some one so famous could have neglected something so important. But really, its easy to understand, do you have a will? Do your parents? The inherit pessimism involved in estate planning seems to create its own form of optimism that estate planning can be put off for tomorrow. But as we all know there are two certainties in life- and although we know the due date for taxes we don’t know the due date for death.

In my Blog I have previously detailed a number of reasons to create an estate plan but still, its hard for people to start the process. So, I will tell you a secret- a will is easy to write. In my office we have one free consult, then the next appointment is to review and often sign your documents. A will is also relatively inexpensive at $150-$175 per person for most of our clients.

Of course there are lots of other planning tools you can use,(which I will tell you about during our appointment) but if you can’t quite make it over that hurdle, at least make a will.  Although most of us will not experience the drama and litigation that is likely to unfold over Prince’s estate, most of us value the estate we have worked to save. Make sure your money is not wasted and your family is protected by taking the next step – make a plan.
(See; 10 Reasons to Create an Estate Plan Now. Posted on March 6, 2015 by Kara Daley, On Planning for Minor Children, Posted on March 27, 2015 by Kara Daley, Why Do I Need a Stand Alone IRA Trust?, Posted on February 18, 2016 by Kara Daley)

“I already have an revocable living trust, why do I want yet another trust? ” This is a common response I hear from clients and professionals at mention of these trusts. However, there are two very good reasons for this trust: Protection and Stretch-out.

PROTECTION: Clients may be unaware that although an IRA is a protected asset when the client is the owner, those protections evaporate once the IRA passes to a child or other individual beneficiary and can also be eroded upon inheritance by a spouse. The lack of protection leaves the IRA vulnerable to a child’s spouse in a divorce, makes the IRA available to be taken by a child’s creditors or bankruptcy court, allows the child themselves to cash in the IRA for their immediate (and often unwise) use, and can create eligibility issues for disabled or elderly beneficiaries who rely on government benefits such as Medicaid or Social Security.

STRETCH-OUT: An IRA trust ensures that the asset will be stretched out and payments made in the proper time ensuring allowing the IRA to continue to accumulate interest and grow in value. Many of today’s IRA are only one facet of a clients current retirement plan but in the future often become a child’s only source of retirement funds making it more important than ever to conserve the growth potential.

For more information on these trusts, please view the detailed description set out under our estate planning page.

When a special needs planner meets with the family of a person with special needs, the planner will often ask the family what federal disability benefit their loved one receives.  In many cases, the family will tell the planner that their relative receives some kind of cash benefit, but they frequently don’t know if that benefit is a Supplemental Security Income (SSI) benefit or a Social Security Disability Insurance (SSDI) benefit.  In some cases, even the person receiving the benefit might not know what type of benefit it is.  But there are a couple of tricks for determining the type of disability benefit, short of finding the disability award letter or contacting the Social Security Administration directly.

First, the amount of the benefit is a clue.  The federal SSI benefit is capped at $733 per month (in 2016), with some states supplementing this with an additional smaller payment.  So if the beneficiary is receiving a monthly distribution of $1,000 or more, you know for sure that the beneficiary is receiving SSDI, which can have higher cash payments, not SSI.

Often, the beneficiary’s cash award is not higher than the maximum SSI benefit, so this first method won’t work.  In this case, the family needs to look at the date of the benefit payment in order to determine the type of benefit being received.  If the benefit is deposited on the first of the month (or on the banking day before the first of the month if the first of the month falls on a Saturday, Sunday or holiday), then the beneficiary is receiving SSI.  If the benefit is deposited on the third day of the month, then the beneficiary is receiving SSI and SSDI.  Finally, if the benefit is deposited on the second, third or fourth Wednesday of the month, then the beneficiary is receiving SSDI.

Although these tricks will help your special needs planner with an initial evaluation of your family member’s needs, please keep in mind they do not define the benefits with certainty.  It is always important to get your hands on the Social Security Administration’s actual award letter in order to give the planner an accurate picture of how the disability benefit is calculated.

When you start a new job you may be offered a range of employee benefits, from retirement accounts to life insurance. If you are the parent of a minor child or child with special needs, the decisions you make about these benefits could have dramatic future consequences. Here are a few issues to consider when it comes time to make those important employee benefit elections. (Of course, if you made different choices, there is always time to change your plan.)

Don’t name a child with special needs as a direct beneficiary of a retirement account

When you first set up an IRA or 401(k), you have to name primary and contingent beneficiaries to receive the funds in the account. Your first thought may be to name your spouse or partner as the primary beneficiary and your children as the contingent beneficiaries. If one of your children has special needs, this decision could be disastrous for several reasons. First, if your child is receiving government benefits, a sudden influx of income from an inherited retirement account could disqualify your child from those benefits. Second, retirement accounts will eventually pay out a set amount of money per year to the designated beneficiaries – this amount may be more than a person with special needs can or should handle on his own. One resolution to this dilemma is to set up a special needs trust to hold and distribute the retirement funds.

Evaluate how much life insurance you may need and designate the appropriate beneficiary

Many companies offer basic life insurance coverage with the option to purchase additional insurance at a discount. As discussed above, naming a child with special needs as the beneficiary of a large life insurance policy could create havoc for the child later on. However, life insurance does provide a great planning opportunity for parents of children who may require significant care because the death benefit can be used to fund a special needs trust with a significant amount of money. If your company offers additional insurance, it may be prudent to purchase it and name a special needs trust as the beneficiary. If you are concerned about being “fair” to your children without special needs when it comes to inheritance, you may opt to balance their inheritance by leave them a different asset such as your retirement accounts while using a life insurance policy to take care of your child with special needs.

Long-term disability insurance may be worth it

When you have a family to care for, you always need to give serious consideration to what your family’s financial position would be if you lost your job due to disability. Many companies allow employees to purchase long-term disability insurance and some offer it for free. If you are the primary wage earner and you don’t have substantial savings to care for your family, then it may make sense to sign up for disability insurance so that your family will be protected.

Whether you are staring a new job or you have employee benefits package in place, it may be helpful to go over your benefits with your attorney.  With careful planning you may ensure a more secure future for your family.

The answer depends on whether the trust allows disbursements for utilities. If it does, you may be allowed to make the payment but you need to consider the disbursement’s impact on the beneficiary’s government benefits such as SSI, Medicaid, or Section 8 housing. For example, if the beneficiary receives SSI , the payment of utilities can reduce his/her SSI benefit by a maximum of $264.33 in 2015.  However, there are times when the loss of $264.33 is easily compensated by the trust’s payment of a larger bill.  Furthermore, some things that we consider utilities (such as phone service or cable tv) may not be counted as utilities by the government.  Therefore, its important to discuss the matter with a qualified special needs attorney.

In addition to the general concerns of estate planning, families with minor children have additional reasons for creating a formal estate plan.

First, parents want their children to be cared for by designated family members or close friends and need to make the court aware of their wishes.  Because children are not property, parents cannot designate a person to inherit their minor children, rather they must nominate a suitable guardian who in the event of the death of both parents will need to petition the court for guardianship.  This nomination is commonly made in the parent’s will.

Second, the parents should plan how assets inherited by the children will be properly safeguarded.  Assets can include: real estate, vehicles, cash and investments accounts as well as the commonly overlooked proceeds from life insurance policies.  While children are minors (under 18) funds over $12,000 cannot be legally distributed to them or even to an informal custodian to hold for them until they reach the age of majority.  Rather, a legal conservatorship authorized by the court would need to be established.  This can be costly, time consuming and limiting.  Conservatorship funds are often locked by the court so that no distribution can be made without the court’s explicit permission.  However, when the child turns 18, he or she can immediately take control of the funds and spend them in any manner the child wishes.

Instead, a parent may opt to create a testamentary trust.  This is a trust created in a will that come into effect only if the parent(s) pass away.  The trust can hold a child’s funds until any age set by the parents.  Parents will often choose to have the funds held until the child is past the age of majority and is likely to have completed college or graduate school.  However, the trustee (appointed by the parents) has access to the trust assets and can pay for whatever the parents deem appropriate which often includes: health, education, maintenance, and distribution of funds to pay for a wedding, establish a business, buy a house or even to the guardian to offset the cost of care.  The parents control the rules of the trust and determine how their child’s future will be managed.

A will can be a relatively easy document to create.  For a free estate planning consultation with attorney, Kara Daley, please call: (541) 738-2445.

Through Survivor Benefit Plans (SBPs) members of the military can elect to defer a portion of their retirement pay so that when they pass away a surviving spouse or dependent child will receive up to 55 percent of their retirement payments.  However, up until now, military members had to name individuals as the beneficiaries of these SBPs.  This rule created a dilemma for the parents of children with special needs.  On the one hand, the retiree could name a child with special needs as the beneficiary of his SBP and that child would receive much-needed income and monetary support.  However, receipt of the SBP funds could compromise the beneficiary’s ability to receive means-tested benefits like Supplemental Security Income (SSI) or Medicaid

With the passage of the National Defense Authorization Act of 2015, Congress has, for the first time, allowed military members to name Special Needs Trusts as beneficiaries of Survivor Benefit Plans (SBP).  This means that military families will finally be able to direct SBPs to their children with special needs without compromising the children’s ability to access government disability and medical benefits.  Although the bill is a great first step, military retirees now need to contact their estate planning attorney to make use of these new planning options for their children with special needs.

“Never leave that till tomorrow which you can do today.” – Benjamin Franklin

Many people think that estate plans are for someone else, not them. They may rationalize that they are too young or don’t have enough money to reap the tax benefits of a plan. But as the following list makes clear, estate planning is for everyone, regardless of age or net worth.

1. Loss of capacity. What if you become incompetent and unable to manage your own affairs? Without a plan the courts will select the person to manage your affairs. With a plan, you pick that person through a power of attorney and perhaps a trust.

2. Minor children. Who will raise your children if you die? Without a plan, a court will make that decision. With a plan, you are able to nominate the guardian of your choice and advise the court of persons not suitable to care for the children.

3. Dying without a will. Who will inherit your assets? Without a plan, your assets pass to your heirs according to your state’s laws of intestacy (dying without a will). Your family members (and perhaps not the ones you would choose) will receive your assets without benefit of your direction or of trust protection. With a plan, you decide who gets your assets, and when and how they receive them.

4. Blended families. What if your family is the result of multiple marriages? Without a plan, children from different marriages may not be treated as you would wish. With a plan, you determine what goes to your current spouse and when/what your children will receive from you.

5. Children with special needs. Without a plan, a child with special needs risks being disqualified from receiving Medicaid or SSI benefits, and may have to use his or her inheritance to pay for care. With a plan, you can set up a Supplemental Needs Trust that will allow the child to remain eligible for government benefits while using the trust assets to pay for non-covered expenses.

6. Keeping assets in the family. Would you prefer that your assets stay in your own family? Without a plan, your child’s spouse may wind up with your money if your child passes away prematurely. If your child divorces his or her current spouse, half of your assets could go to the spouse. With a plan, you can set up a trust that ensures that your assets will stay in your family and, for example, pass to your grandchildren.

7. Financial security. Will your spouse and children be able to survive financially? Without a plan and the income replacement provided by life insurance, your family may be unable to maintain its current living standard. With a plan, life insurance can mean that your family will enjoy financial security.

8. Retirement accounts. Do you have an IRA or similar retirement account? Without a plan, your designated beneficiary for the retirement account funds may not reflect your current wishes and may result in burdensome tax consequences for your heirs (although the rules regarding the designation of a beneficiary have been eased considerably). With a plan, you can choose the optimal beneficiary.

9. Business ownership. Do you own a business? Without a plan, you don’t name a successor, thus risking that your family could lose control of the business. With a plan, you choose who will own and control the business after you are gone.

10. Avoiding probate. Without a plan, your estate may be subject to delays and excess fees (depending on the state), and your assets will be a matter of public record. With a plan, you can structure things so that probate can be avoided entirely.