A New Year Means New Exemption Levels

Welcome to the New Year!  As with any new year, there are usually changes to a variety of important numbers for estate planning and elder law purposes.  This year the applicable exclusion amount from Federal estate tax is set at $11.18 million per person thanks to tax reformThe lifetime exclusion from gift tax is also $11.18 million per person and the exemption from generation skipping transfer tax is $11.18 million.  The annual exclusion from gift tax will be at least $14,000.

For local jurisdictions that have estate tax, the District of Columbia increased its estate tax exemption from $1,000,000 to $2,000,000 last year and this year has increased the threshold further to match the Federal exemption.  Maryland’s exemption from estate tax has increased to $4,000,000.  Virginia continues to have no state level estate or inheritance tax.

In the elder law field, the Medicaid spousal impoverishment numbers were released increasing the minimum community spouse resource allowance (CSRA) to $24,720 and the maximum CSRA to $123,600.  The maximum monthly maintenance needs allowance is now $3,090.00 while the minimum remains at $2,030.00.  The minimum home equity limit is now $572,000 and the maximum is $858,000, but be aware that local jurisdictions may apply these limits differently.

If you have questions regarding the new limits and how they may impact your estate planning, your should consult your professional advisor.  #estateplanning #taxplanning #elderlaw #taxreform #HappyNewYear @bgnthebgn

Valuation Discounting Regulations Await Final IRS & Treasury Report

A year ago Treasury proposed new regulations to Section 2704 of the Internal Revenue Code that would significantly reduce or eliminate the ability to use valuation discounting in certain transactions where business interests are transferred.  The proposed regulations would mean that the parties to those types of transactions could incur estate or gift tax.  Towards the end of last year, a public hearing on the regulations was held in which many expressed concerns about how these proposed regulations would impact small businesses and the like.  However, at the time the future of the regulations was unknown given the change of administration, 

Earlier this year, the President issued Executive Order 13789 in which the President instructed Treasury to review all “significant tax regulations” and identify those regulations that (a) impose an undue financial burden, (b) add undue complexity to our tax laws, and (c) exceed statutory authority of the IRS.  Treasury issued Notice 2017-38 in which the proposed regulations to Section 2704 were identified as meeting these criteria.  A comment period followed the issuance of the Order and has now closed.  During the comment period, a study was submitted by The S Corporation Association that showed the detrimental impact of such regulations should they be finalized.  A final report is due to the President within the next month that is to suggest possible reforms to the identified regulations ranging from modification to the regulations to a full appeal.  Until the future is certain, valuation discounting remains available.  #valuationdiscounts #2704regulations #businessvaluations #estateplanning #businessplanning @bgnthebgn

Five New Year’s Resolutions for Your Estate Plan

Happy New Year!  Very often the New Year brings all sorts of ‘changes’ for individuals, particularly after having spent any time with family members and friends over the holiday season.  Here is a quick list of five resolutions to consider for your estate plan.

  1. Is it time to update your plan?  If a plan is in place, when was the last time you reviewed it? Is it simply a binder of documents you received several year ago when you finished the estate planning process and you haven’t looked at since?  Have circumstances changed that are not captured in the documents?  Who are the fiduciaries (i.e., executor, trustee, healthcare power of attorney, financial power of attorney, guardian, etc.) listed?  Are the fiduciaries still capable of serving?  Does the plan do what you want it to do?  There have been a lot of changes to estate tax laws in recent years, is your plan from before 2013?  In some cases, does ‘updating’ your plan, actually mean finishing the process?  Or does it mean starting the process so that your theoretical plan is memorialized? 
  2.  Are there beneficiary designations?  When was the last time you checked beneficiary designations on life insurance, retirement accounts (i.e., 401(k), IRAs, 403(b), 457, etc.) and annuities?  What about any payable on death (POD) or transfer on death (TOD) designations you have on bank accounts or brokerage accounts…do those designations reflect your wishes?  For government employees, are beneficiary designations up-to-date on your Federal, state or local benefits? 
  3. Families come in all shapes and sizes -Family Fiduciaries.  Are you named as a fiduciary in any family member’s or friend’s plan?  Have you touched base with that person recently to see how they are doing both health-wise and financially?  Do you understand what your role is as the fiduciary?  Do you know the family member’s or friend’s goals and objectives?  Are you able to still serve, that is, are you distracted by a health event or financial crisis and perhaps you should not take the role?  Have you considered options for a care manager if you are caring for an elderly family member or friend? How about looking at assisted living or skilled nursing or home health aides, if the circumstances warrant such considerations? 
  4. Are you charitably inclined?  Do you have a charitable giving plan for this year? For future years? For at your death?  Have you researched your options including direct giving, donor advised funds, private foundations and/or charitable trusts?  Is there a planned gift that you would like to consider?  Is now the time to investigate annual giving? 
  5. Succession planning occurs at many levels.  Who will be in charge of any business whether it is a limited liability company, partnership or corporation?  Are shareholders’ agreements and operating agreements up-to-date?  And beyond a business interest, who will be in charge of your pets?  Are there monies set aside for their care?  What about digital assets?  Have you ensured a smooth transition of online accounts to a successor?  What about your tangible personal property?  Is there an inventory? Appraisals? Designated recipients?

True, there are a lot of questions and not a lot of answers here, but that is the planning process.  One has to begin with the questions to reach the answers.  Working with a professional advisor can both provide you with the guidance needed to navigate these questions and ensure that you complete the process.  #planyourjourney #lifeplanning #legacyplanning #estateplanning @bgnthebgn

A New Year Means New Exemptions from Estate Tax

Welcome to the New Year!  As with any new year, there are usually changes to a variety of important numbers for estate planning and elder law purposes.  This year the applicable exclusion amount from Federal estate tax is set at $5.49 million per person.  The lifetime exclusion from gift tax is also $5.49 million per person and the exemption from generation skipping transfer tax is $5.49 million.  The annual exclusion from gift tax remains at $14,000.  The annual exclusion for gifts to non-U.S. citizen spouses increased to $149,000.

For local jurisdictions that have estate tax, the District of Columbia increased its estate tax exemption from $1,000,000 to $2,000,000.  Maryland’s exemption from estate tax has increased to $3,000,000.  Virginia continues to have no state level estate or inheritance tax.

In the elder law field, the Medicaid spousal impoverishment numbers were released increasing the minimum community spouse resource allowance (CSRA) to $24,180 and the maximum CSRA to $120,900.  The maximum monthly maintenance needs allowance is now $3,022.50 while the minimum remains at $2,002.50.  The minimum home equity limit is now $560,000 and the maximum is $840,000, but be aware that local jurisdictions may apply these limits differently. 

If you have questions regarding the new limits and how they may impact your estate planning, your should consult your professional advisor.  #estateplanning #taxplanning #elderlaw @bgnthebgn

Facing a Tough Diagnosis – Four Lessons of Gene Wilder

flowers-2With Gene Wilder’s death, the family released a statement that revealed to the world that Gene Wilder had died due to complications from Alzheimer’s disease.  The family also stated that Wilder had not wanted to reveal his diagnosis earlier and risk “one less smile in the world.”  In releasing the statement as they did, the family has provided us with a few valuable lessons about planning. 

  1. What should ‘the public’ know?  From the statement, it seems clear that in receiving an irreversible diagnosis, Wilder’s family talked about how to handle the news both publicly and privately.  Families that have received terrible news of a terminal or debilitating illness are aware of the difficulties surrounding such information.  Questions about who should be notified are common as well as discussion regarding how much information should be disclosed.  In addition, the ‘public’ for each person is different.  This means for some only immediate family members while friends, neighbors and colleagues have a less detailed picture.  Immediate family may include certain close friends and may very specifically exclude others.  What about professional advisors?  How much information should they have?  Each of us has various circles and those circles have to be evaluated to determine who should know and what should be known, which is important to clarify to avoid confusion in the dissemination of information.
  2. What is the care plan?   Certainly from a medical perspective there is a prognosis and then treatment plans that are outlined with various degrees of outcomes and complications.  But what about the plan to care for minor children, if necessary?  Or a caregiver spouse or partner?  Who are or will be the caregivers?  Has respite care been discussed for those caregivers?  Are there modifications to a residence that are needed?  What about access to financial information? Should such access be limited or restricted?  Has there been discussion about involving a care manager?  These are just a few of the questions to consider to determining the plan of action.
  3. Your final moments.  Are friends and family present?  Is music played?  Is a spiritual leader, such as a priest, rabbi or pastor present?  Will the final moments be at home, wherever that may be at the time?  The final moments are not only for the person dying, but the family and friends who are part of that passing.  Discussions such as these are key in determining end of life care
  4. How to be remembered?  An earlier article outlined six questions to ask surrounding the details of how you want to be remembered.  Providing some information about wishes and desires regarding a funeral or service is a relief for family members because decision-making at this difficult is clouded by emotions and shouldn’t be overshadowed with the thought of “Is this really what was wanted?”

Thus, as many of us remember Gene Wilder and the various roles he played in the movies, we can also pause to reflect on how we would face such tough diagnosis with our family, and when the time comes, be prepared to have the important conversations. #GeneWilder #incapacityplanning #estateplanning #advancemedicaldirective #livingwill @bgnthebgn

The Increase of Crowdfunding in Estate Planning

Crowdfunding seems to be everywhere, but does it have a place in estate planning?  Wikipedia defines crowdfunding as “the practice of funding a project or venture by raising monetary contributions from a large number of people…”  Thus, it seems that in the beginning crowdfunding was a form of venture capitalism with the public at large.  Websites like Kickstarter and GoFundMe allowed for individuals to present an idea and raise capital to get the project off the ground.  However, in relatively recent history, crowdfunding has taken on a prominent role in response to any tragedy.  Now it seems that if there is a sudden illness or death, crowdfunding appears to help defray costs.  But for those both using or donating through a crowdfunding website, there are a few questions to consider.

Are there any tax consequences to a donation? – In general, giving to a fund that benefits an individual is not a taxable gift so long as you stay below certain thresholds.  An individual can give up to $14,000.00 per year to each of any number of different people under current law without incurring any gift tax consequences.  Typically in crowdfunding, the fund is set up and smaller contributions are requested or simply contributions of any amount, big or small, are accepted, so hitting that threshold is not an issue.  Also, keep in mind that your contribution to such a fund is typically not tax deductible.  If the contribution is not to a public charity or other qualified tax-exempt organization, then you are not otherwise allowed to deduct your contribution from your personal income taxes.

Are there fees associated with crowdfunding? –  The answer is it depends on the site being used to support the fund.  Kickstarter applies a 5% fee and then there are processing fees of approximately 3-5% if the campaign is successful.  GoFundMe charges a 5% fee and then approximately an additional 3% processing fee.  The fees are charged against each contribution.  The donor or person contributing is not charged the fees, but the person receiving the funds does not receive 100% of the monies contributed.  Thus, if I give $100 to a GoFundMe fund to help pay for costs associated with the illness of a friend’s child, my friend will only see $92 of my gift.   This reality then begs the question as to whether it is simply better to write a check directly to my friend.  That way my friend receives $100.  Of course the theory behind crowdfunding is that if everyone else is contributing then you will want to do so as well, and therefore, perhaps the fees are worth it if in the end more monies are raised.

How do you determine that the request is legitimate? – You need to be careful that you are going to the actual fund page.  Spoof pages can pop up or emails that look legitimate can arrive in your inbox. You may click through and donate not realizing that you are not donating to the actual cause or person that you intended.  Thus, you should take care to ensure that the URL for the fund that you are using is from a source you know and trust.

Overall, it appears that recently during times of hardship and tragedy, crowdfunding has become a way that people can express their sympathy and/or support for others.  I would expect that any monies received are welcomed and appreciated, but may not be enough.  Furthermore, crowdfunding is not a substitute for financial and estate planning where questions relating to life insurance, disability insurance, retirement assets, fiduciaries, guardianship and the like are discussed and analyzed to ensure that in the event of the unexpected, covering expenses does not create additional stress.  So the question to ask yourself is, what preparations have you made for the unexpected?  #crowdfunding #estateplanning @gofundme @kickstarter @bgnthebgn

Elder Law Update – Changes to Laws Impacting Virginia’s Seniors and the Disabled

On July 1st (unless otherwise noted) a number of new laws took effect in Virginia that may have an impact on you.  Below is a summary of a few key pieces of legislation of which you should be aware.

Section 51.5-44.1 – It is a now a Class 4 misdemeanor to misrepresent your dog as a service dog to gain access to public areas with the animal.

SB 553 – Requires the Board of Health to promulgate regulations relating to audio and visual monitoring of residents in a nursing home by July 1, 2017.  The regulations are to address privacy, notice, disclosure, liability, responsibility for equipment, costs and security, among other items.

Section 63.2-1806 – An assisted living facility is not required to provide or allow hospice care at the facility so long as this is disclosed to the resident prior to admission and is otherwise allowed by Federal law.

Section 64.2-2019 – A guardian of an adult incapacitated person is not permitted to ‘unreasonably restrict’ an incapacitated person’s ability to communicate with, visit, or interact with others with whom they have had an ‘established relationship’.

Sections 37.2-817, 37.2-837 and 37.2-838 – A person being discharged from involuntary admission in general or to mandatory outpatient treatment who does not have an advance medical directive must now be provided with a written explanation of the process for executing an advance medical directive and a form of an advance medical directive.

Sections 64.2-2011 and 64.2-2014 – The Department of Medical Assistance Services must now be notified of guardianship appointments, modifications and terminations.

Sections 64.2-2001 and 64.2-2009 – In a petition for a guardianship and/or conservatorship of an incapacitated individual who has not reached age 18, the statute clarifies that the court may enter an order for such guardianship/conservatorship appointing a guardian or conservator prior to age 18, but the court order should state whether the order is effective immediately or when the person turns 18.

Section 63.2-1605 – When investigating financial exploitation of an individual age 6o or older, if the department of social services or adult protective services believes there is ongoing exploitation totaling more than $50,000, then the police are required to be told so an investigation can ensue.

Section 8.01-220.2 – The principal residence held by tenants by the entireties (i.e., ownership between spouses) cannot be used to pay for one spouse’s debt incurred for emergency medical care unless the property is refinanced or transferred to new owners.

Section 23-38.81ABLE savings accounts are excluded as countable resources for means-tested public benefits. (Effective October 1, 2016.)

#elderlaw #guardianship #Virginialaw #incapacityplanning #specialneeds @bgnthebgn

 

Maryland Enacts Fiduciary Access to Digital Assets Act

On October 1, 2016, Maryland’s Fiduciary Access to Digital Assets Act will come into effect, thereby giving a fiduciary (i.e., personal representative, guardian, agent or trustee) or a designated recipient (i.e., a person named using an online tool) the ability to request access to a person’s digital assets in certain circumstances.  Digital Assets is defined as “an electronic record in which an individual has a right or interest.”  The Act allows an individual to direct whether their digital content is disclosed, to whom and to what extent.  This authority can be granted through an online tool provided by the custodian (e.g., Google has Inactive Account Manager or Facebook has Legacy Contact) or through an individual’s will, trust or power of attorney.  Access may still be subject to the terms of service agreement and gives the custodian of such information (e.g., Google) some discretion as to the breadth of the disclosure and the ability to charge an administrative fee.  If a request is made, the Act requires that a custodian comply no later than 60 days from the receipt of the request, including receipt of all the ancillary documentation associated with the request as detailed under the statute.

So, next steps for you?  When creating accounts be sure to look for whether the website requires you to complete an online tool.  You may want to opt out of using the online tool so that you can better control your wishes through your estate planning documents.  Furthermore, if you reside in Maryland, you should review and update your estate planning documents to ensure that access to digital assets has been addressed in accordance with your wishes.  Finally, you should create and store in a secure location a list of all your digital assets, including your credentials, so that your nominated fiduciaries know what assets to access during any period of incapacity and upon death. #estateplanning #estateadministration #digitalassets #MFADAA @bgnthebgn

Revised Elective Share Statute in Virginia

Beginning with the estates of decedents dying on or after January 1, 2017, the elective share statute to be applied in Virginia will be significantly changed.  Under current law, a surviving spouse has the right to claim one-third (1/3) of a decedent’s estate if the decedent left surviving children or descendants, or one-half (1/2) of the decedent’s estate if the decedent had no surviving children or descendants.  These calculations were based solely on the assets (or augmented estate) of the decedent.

Under the new law, a surviving spouse will have the right to claim a percentage of one-half (1/2) of the value of the marital property included in the augmented estate.  What does this mean?  First, the marital property consists of the following: (a) a decedent’s net probate estate, (b) a decedent’s non-probate transfers to others, (c) a decedent’s non-probate transfers to the surviving spouse, and (d) a surviving spouse’s property and non-probate transfers to others.  (Yes, you read correctly.  A surviving spouse’s assets are now included in the calculation.) 

Of the total value of the marital property portion of the augmented estate, the surviving spouse may be able to claim up to fifty percent (50%).  The determination of whether the surviving spouse can claim the full 50% depends on the length of marriage.  Thus, if a couple is married for 5 years, then the surviving spouse could claim 30% of the 50% elective share available or 15% of the augmented estate. 

Furthermore, under current law, certain statutory allowances are available to a surviving spouse who claims the elective share.  Those statutory allowances include the family allowance and exempt property allowance, but specifically exclude the homestead allowance.  Under the new law, a surviving spouse could claim all three allowances and still make a claim for the elective share. 

Finally, current law has no explicit process by which an incapacitated surviving spouse can make his or her claim.  Under the new law, an incapacitated surviving spouse, by way of his or her conservator or agent under a durable power of attorney, will have the ability to claim an elective share.    In addition, any elective share amount that is awarded to an incapacitated surviving spouse must be set aside in a testamentary trust and administered for the surviving spouse’s needs.  At the surviving spouse’s death, provided he or she has not regained capacity and terminated the trust, any remaining assets in the testamentary trust will be distributed in accordance with any residuary clause of the predeceased spouse’s will or to the predeceased spouse’s heirs by intestacy.  Effectively, in that situation, the elective share will not benefit the heirs of the surviving spouse.

So, how does this change impact you?  If you are considering getting married and plan on entering into a pre-nuptial agreement, or are already married and looking to enter into a post-marital agreement, the right to the elective share can be waived.  But, you should first understand the right you are waiving.  Second, if you are the conservator or agent under a power of attorney of an incapacitated individual whose spouse died leaving him or her very little, then the elective share may be a viable option depending on the length of the marriage. 

Third, in subsequent marriages, the families (i.e., children) of the first marriage are generally concerned with the distribution of their parent’s assets, particularly if the new spouse is the surviving spouse.  Now the length of the marriage is factored into the equation and the amount available to a surviving spouse is as low as 3% for less than 1 year of marriage (or 1.5% of the augmented estate).  This is a huge difference from the one-third (1/3) share available under current law and may alleviate concerns about financial exploitation. 

Thus, this change appears to be in response to shifting attitudes towards marriage, that is, marriage is an economic partnership and is less about avoiding spousal impoverishment.  And the changes to the elective share statute help bring Virginia up-to-date with the current dynamics of marital relationships.    However, as with any new law, only time will tell what tweaks may need to be made as the law is implemented and to determine whether there are any unintended consequences as a result of the changes.  #estateplanning #electiveshare #incapacityplanning #estateadministration @bgnthebgn

New Department of Labor Rules May Impact Your Retirement Accounts

Recently, the Department of Labor issued new rules that may impact your relationship with your financial advisor as it relates to your individual retirement accounts.  The rules are an attempt to require investment advisors who provide retirement investment advice to put a client’s best interest first translating to the parties signing a ‘best interest contract‘.  The effort to create these new rules began in 2010 with proposed rules issued last year, and after a period for comments, the new rules being issued now.  Implementation of the rules will be staged over the next couple of years with compliance required by January 1, 2018.   

So, what does this mean to an individual investor?  The ultimate impact is still being determined, but it does mean that individuals should reach out to their investment advisors to determine how their relationship may change, if at all, and whether fees will be impacted.  And how does such news correlate to estate planning?  Since almost every estate plan involves disposing of financial assets, and for most individuals that means passing on retirement assets, having your financial plan in order and understanding your rights as an investor is part of the process of structuring your estate plan so that your plan will meet your goals and objectives. #DOLnewrules #retirement #money #bestinterestcontract