Karla McAlister

Does Anyone Need A Trust?

by Karla McAlister

Historically, tax planning was one of the suggested reasons for using trusts in estate planning.  In 2000 the federal estate tax exemption was $675,00.00.  So, after considering the value of a home, vehicles, life insurance and retirement benefits (all of which are typically subject to estate tax), many Oklahomans were surprised to learn they had an estate tax problem. There have been many adjustments to the estate tax exemption in the last 18 years and now we are at an historic high. In the past when the exemption was lower, it was critical to try to avoid the estate tax because of the very high tax rates; the federal estate tax topped out at 55% and the Oklahoma estate tax at 15% for collateral heirs.

With the federal estate exemption at $11,180,000.00 per person in 2018,  thanks to the Tax Cuts and Jobs Act passed in late 2017, and scheduled to increase to $11,400,000.00 in 2019, does anyone need a trust in their estate planning? 99% of Americans have estates less than this exemption.

This law is scheduled to sunset in 2026, such that the exemption (basic exclusion amount for federal estate tax) will revert to its pre-2018 level ($5,490,000 adjusted for inflation) in 2026. So, we are not guaranteed the higher exemption is permanent.  However, at present, given the large federal estate tax exemption and the repeal of the Oklahoma estate tax for persons dying after January 1, 2010,  the vast majority of Oklahomans no longer have an estate tax problem.

However, before one assumes they do not have any concern about estate taxes, present or future, it is important to take into account everything considered as part of your gross estate for estate tax purposes. Very generally, anything of economic value which you own or control is taxable at your death. And, this might also include economic value you have transferred to others during your lifetime. Your estate tax is then calculated on the value of your  taxable estate - what is left after mortgages, other debts, and the administrative costs of settling your estate are paid. You can also deduct money or property given to charities (charitable deduction) and the value of the property that goes to your spouse (marital deduction) because  those gifts are not subject to estate tax.  Assets that pass directly to a named beneficiary such as life insurance or payable on death bank accounts and retirement funds are part of your estate for estate tax purposes even though they are not a part of a probate estate for purposes of court administration.

Without estate tax incentives to use trusts in their estate planning, should people still consider the utility of trusts in their planning for their surviving spouses, children and grandchildren, other dependent family or friends, and charities?

Advantages of trusts for beneficiaries

a.    Control and benefit. One of the main advantages of retaining assets in a trust after a client dies is that the trust provisions can  establish dispositive arrangements lasting indefinitely  which can carry out the client’s very specific desires for their beneficiaries. They can name the initial and successor trustees and   grant creative powers to the trustees to carry out their wishes in the management of the trust assets for the benefit of the trust’s beneficiaries. The beneficiaries can also be given rights or powers such as the power to withdraw trust assets at specific ages.

b.     Probate Avoidance. Another advantage of holding assets in trust is to avoid court supervised estate administration (guardianship and/or probate) both for the original property owner and   for his or her beneficiaries if the beneficiaries are incapacitated or die while the trust is in place. 

c.     Protection from Creditors’ Claims.   A trust can be designed to protect a beneficiary’s inheritance from the claims of his or her creditors.

d.    Protection from claims of spouses and ex-spouses. Assets managed in trust for a beneficiary  can provide better protection from the claims of a beneficiary’s spouse than an outright distribution to the beneficiary. Furthermore, assets held in a trust created by a parent or grandparents for their descendants can be managed and used for their descendants’ benefit, avoiding the involvement in the management and enjoyment of the assets by persons who are only related to the parent or grandparent by marriage, such as the ex-spouse of a child with regard to the inheritance left for the child’s children.

Advantages of trusts for persons creating trusts

a.    Incapacity Planning. If the creator of the trust (often referred to as the Settlor) is ever incapacitated by an illness or injury, the successor trustee(s) chosen by the Settlor can manage the trust for  the Settlor’s benefit without the expense and complication of a court supervised guardianship. The Trustee can pay expenses and manage the assets without any court approval or accountings.

b.    Complicated Family. Family can get complicated, even dysfunctional. If you have more than one marriage and children from each marriage, or a blended family where you and your spouse both have children from prior marriages, or your children have step-children, you may need special provisions  to address the special needs and your particular wishes in these situations. Additionally, if there is a disabled beneficiary or a beneficiary who has drug or alcohol issues or who simply cannot manage money well, then a trust  can be an effective mechanism to specifically plan for these ongoing circumstances and complications.

c.     Probate Avoidance. The Trustee can administer the trust at the death of the Settlor without any court intervention. It is usually much quicker, more private and less expensive than probate. There is not a filing of a list of assets or the provisions for distribution of a trust in public records as there is in probate.

d.    Trustee. If you have unique assets, you can appoint a trustee who is skilled in the management of those unique assets.  Examples would be collectibles such as artwork, patents, intellectual property, farming and ranching interests, or oil and gas.

Disadvantages of trusts

a.    Costs. There are ongoing costs for maintaining a trust, if the beneficiaries do not receive the assets outright. There may be trustee fees and accounting fees for tax returns and accountings. The Trust income and principal can be used to pay for these additional expenses as related to trust administration.

b.    Complexity. The trustee must be involved in the management of the trust assets and the administration of the provisions of the trust for the beneficiaries until it is completely distributed, which adds a layer of extra administration.

Even without the incentive of saving estate tax, the majority of our clients choose to use trusts in their planning in order to avoid probate, plan for incapacity and make specific provisions to ensure their wishes for the best interest of their beneficiaries will be achieved. It is our goal to help each client understand the pros and cons in order to make the best decision for their situation.

Inheritance of Digital Assets

by Karla McAlister

We live in a changing world, a seminar I attended this summer alerted me to an area I had not really encountered in estate planning because it is such a new issue. It was a wakeup call for me personally and I believe our clients will also benefit from considering these issues regarding the management and disposition of digital assets. A practical example is when I was contacted by the children of a client because they were unable to access bank accounts for their parent. The parent is now incapacitated and only used online banking, but she could not remember her password and the children could not locate a written list of passwords. They wanted to know if I had a list. Unfortunately, I did not have any information in my file.

Although there is no official definition of “digital asset” yet, you can think of it as any information stored electronically, either online or on an electronic device. This includes text, images, multimedia, travel rewards and points, domain names, games, music, digital books, home security, online storage accounts personal property stored in digital format and also includes words, passwords, characters, codes or contractual rights to access that digital content which is stored online or offline. There are online corporations such as Google, Apple, Microsoft and Facebook and blogs, personal websites, online banking and other online accounts.  With the average person having twenty-five online accounts, digital inheritance has become a complex issue. They may be sensitive such as banking and medical information or shared such as social media or contacts in forums.

Two thirds of all digital content is created by individuals, not businesses or organizations. Your “digital assets” increase each time you open a new account, send an email, snap a picture, book a flight, make a purchase or post a comment. Fifty one percent of adults use their bank’s website for banking transactions and seventy-six percent of adults in the United States have a social network site. It has become normal to store data electronically in smartphones, computers and the “cloud” and to conduct transactions electronically. These assets may have monetary value and sentimental value to you and your family.

There are several ways to plan for management of digital assets upon incapacity or death. First, keep a complete list of passwords, online user accounts and other digital assets and update the list often. You should include security questions and answers to ensure fiduciary access as well. A printed copy should be kept in a safe location. You should consider including specific instructions in your estate planning documents regarding management of the digital assets at your death or incapacity. The third-party providers will want explicit provisions to allow your fiduciary to have access to your digital account.

There is a push for a Revised Uniform Fiduciary Access to Digital Assets Act (RUFADA) which has been adopted in thirty-five states, but it has not been adopted in Oklahoma. The goal of RUFADA is to respect a user’s intent reflected in online account options and dispositive documents.  One of the biggest hurdles for fiduciaries is that most digital accounts are bound by terms-of-service agreements and these terms of agreement (which most people do not read) determine what happens to an account upon the death of its owner.  Some terms of agreement prohibit a user from allowing anyone else  to access his or her account. Facebook’s terms-of-service agreement prohibits sharing passwords with anyone. Yahoo! terms-of-service provide that accounts are non-transferable, and the account terminates upon the user’s death and the receipt of a copy of the death certificate and the content is permanently deleted, which may not be what the family or owner intends. RUFADA states that users may consent to the disclosure of their digital assets and it will override any terms-of-agreement.

However, there may be electronically stored information a client does not want to share with family members or beneficiaries and those wishes should likewise be included and addressed in your planning. Specific directions may be made to delete private data.

With new technologies and innovation comes new complexities and considerations in your estate planning.  Hopefully, this article will help jump start your effort to help your loved ones by addressing these issues in your planning

Do You Need an Advance Directive

by Karla McAlister

An Associated Press-LifeGoesStrong.com poll found that sixty –four percent of boomers - born between 1946 and 1964 – say they don’t have a health care proxy or living will. Many people stated they feel healthy and that death and dying is not on their minds. However, the reality of death is inevitable for all of us and none of us have a crystal ball to tell us when or how we will die. Thinking about aging and possible end of life situations allows you to decide what types of care should be provided to you or withheld if you are unable to make and communicate your own decisions at that future point in time.  Documenting your wishes concerning end of life care is a comforting gift for your family as they may need to make those decisions in the future for you and, if so, they will be a able to do so with the assurance they are carrying out your wishes. It lessens the anxiety, possible guilt and potential conflict between family members if you have told your family your wishes and your decisions are stated clearly in an Advance Directive for Healthcare. 

Oklahoma's Advance Directive for Healthcare allows you, if you are 18 years of age or older, to inform physicians and others of your wishes concerning life-sustaining treatment. This document evidences the patient’s exercise of their constitutional right of self-determination, allowing them to state when they believe enough medical intervention has occurred and they want to be allowed to die. If a patient authorizes or directs the withholding or withdrawal of life sustaining treatment such as resuscitation and use of respirators, it does not prevent healthcare professionals from providing the patient pain relief and other forms of comfort care (palliative care).  And, if the patient is no longer taking nutrition and hydration (eating and drinking), the Oklahoma law requires separate, explicit decisions concerning withholding or withdrawing artificial administration of food and water (nutrition and/or hydration provided intravenously). Each person can decide if they would want those treatments provided or withdrawn.  The Directive does not become operative unless you are diagnosed by two physicians to be in a terminal condition, a persistently unconscious condition, or an end-stage condition and, then, only if you are unable to make and communicate these decisions for yourself. The Advance Directive can also be used to donate one’s body or specified organs for transplantation, research or education.

The Advance Directive also allows you to appoint a Health Care Proxy to make decisions in your behalf. With the advances in healthcare it is possible to keep a dying person alive for days, weeks, months or even years with medical intervention. After you complete an Advance Directive, you may revoke it in whole or in part at any time and in any manner. A revocation is effective upon your communication to your attending physician or other care provider or a witness to the revocation. We advise clients to give copies of the Advance Directive to the persons they appoint as proxies and also to their doctors. The signed, original Advance Directive needs to be kept with your important documents but a copy should be handy to provide to a healthcare provider if you have a sudden health crisis. Your family should know where to quickly locate the document.  In order to assist our clients and their families in times of health emergencies, we recommend our clients inform us of the location of all their important legal documents, including their Advance Directive, so that we are prepared to assist their family and surrogate decision makers at those times. 

If you signed a Directive to Physicians or other Advance Directive for Healthcare under Oklahoma law prior to 2006, we recommend you consider executing the new Advance Directive because of additional options under the existing law. When we assist people with their estate planning we often prepare an Advance Directive for Healthcare and we also recommend a Healthcare Power of Attorney; the former deals with the end of life decisions as explained above and the latter is used to deal more generally with health and personal care decisions which might arise at any point in one’s life due to injury or illness and, in those situations, to delegate authority to an appointed agent to make those decisions for you if you do not have the capacity to do so for yourself.

Trust Funding

by Karla McAlister

If you have a revocable trust as part of your personal estate planning, with an objective of avoiding court-supervised estate administration at your death (probate), this is your annual reminder that if you have not attended to the funding of your revocable trust your estate may have to go through court-supervised probate following your death.  

When we meet with our estate planning clients to sign their estate planning documents, we discuss the plan which their documents will carry out at the time of their future death.  We discuss trust funding with our clients who have chosen to use a revocable trust, informing them of the mechanics for changing ownership of appropriate assets to trust ownership (as well as alternative methods for succession of ownership) and reminding them we will help if they want our assistance with asset ownership changes, beneficiary designations, ownership succession documents for business interests, etc. Even so, each year we have clients who die and, as their family begins to take care of the necessary legal and tax matters following their death, the family is dismayed to find there is an asset which is not in the trust and for which no alternative arrangements have been made for the transfer of ownership without court-supervised administration.  

We can be as involved as you want us to be. Many choose to complete their own transfers and transfer on death arrangements in order to avoid the cost associated with the attorney being involved. That is terrific if you follow through and actually complete the transfers.  Sometimes clients transfer what they own currently but forget to implement similar ownership and transfer on death arrangements as the composition of their assets change over time, including the acquisition of new assets by purchase, gift or inheritance. We recommend you examine your financial statement annually and confirm the ownership of each asset. We have found it very effective to work with our clients’ tax accountants to use the process of preparing their annual income tax returns as a convenient time to prepare or update a personal balance sheet and confirm ownership of all assets. 

You may recall that probate is the court-supervised administration for the estate of a deceased person. Most of the probates we are currently handling are for people who were not our estate planning clients. Some of them did have a trust yet simply failed to transfer an asset to the trust.  A number of them are for people with Oklahoma mineral interests (what many in Oklahoma refer to as “royalty”) that were still titled in the name of the now deceased owner.  To be properly transferred in trust, title to minerals must be transferred by mineral deeds.  Whether or not minerals are producing now, it is worth the effort to find the original deed or probate decree whereby ownership of the minerals was first acquired and use that information to prepare appropriate legal documents (deed, assignment, etc. depending upon the nature of the interest owned) to transfer title to the trust. The other option is to let your family deal with them after you die, which may entail a time consuming and costly probate.  Another common issue is a bank or brokerage account which was never put into the trust. It is perfectly acceptable to leave one account out of the trust, either checking or savings, and at times it may actually be helpful. However, you must make sure appropriate alternative arrangements are made for transfer of ownership at your death (alternative arrangements such as payable on death designations, joint and survivor ownership, etc.). Otherwise the bank may appropriately require your family to initiate a “probate” in the district court in order for the bank to be able to work with a court-appointed legal representative. It is a shame to have to file a probate for a small account with a bank or other financial institution.  Another common mistake is overlooking beneficiary designations and/or successor owner arrangements for IRA’s, pensions and profit-sharing plans, annuities, life insurance and other death benefits. If a beneficiary is not named, it is generally assumed such financial interests are payable to the “the estate of” the deceased owner, which requires a probate and may also have unintended adverse tax consequences.

Regarding the issue of banking, it has come to our attention that many banks are extremely uncooperative about receiving checks written as payable to an individual for deposit into the trust account of the payee after the payee’s death.  For example, Mom dies and she has everything in her Trust, including all bank accounts. Son is successor trustee and he is closing down Mom’s home. He gets rebates and refund checks from various utilities and other vendors for account deposits and the unearned portion of other payments made by Mom prior to her death. The rebate and refund checks are all made out to Mom. The bank refuses to deposit them or cash them because they are not made out to the Trust of Mom, which is the owner of the account with the bank. The vendors that wrote the checks refuse to reissue to the Trust because the Trust did not make the initial deposit or other payment; Mom was the customer. Sometimes we have been able to convince the vendor to issue their check to the trustee or convince the bank to go ahead and deposit the check made payable to Mom.  However, to avoid this unintended problem you might leave one small account in your name to take care of such issues after death. However, if you do, make sure such an account is payable on your death (POD) asdiscussed above and do not close it out until all such “stray” deposits have been received and deposited.

If you own property in another State it is very important to have a post-mortem ownership succession strategy in place, whether the strategy is to transfer title to the out of state property into your trust or implementation of an alternative ownership succession strategy. If you do not integrate out of state property in the current implementation of your estate plan, upon your death it may be necessary to have a probate in another jurisdiction to clear the title to the out of state property for the control and benefit of your intended beneficiaries.

If a probate is needed, it is not the end of the world. After over twenty-five years serving clients out of our Edmond law firm and with a staff of professionals having over one-hundred years of cumulative experience, we are both prepared and pleased to help clients complete whatever post-mortem procedures are necessary, as efficiently as possible. We do give this annual warning to those who have thought ahead and have completed estate planning documents with the goal of avoiding probate. Do not fail to attend to the proper funding of your trust, otherwise your loved ones may be surprised when a probate is required.  

Food for Thought

by Lloyd and Karla McAlister

In this holiday season, much thought is given to food.  Here is some food for thought, for the good health of your personal estate planning ... and with no calories!

 

1.    Proper funding of a revocable trust.  Primarily the tool of the wealthy in the past, revocable trusts have become a common document in many personal estate plans today.  Revocable trusts can be crafted to accomplish many planning objectives.  However, avoiding the need for a court to appoint and oversee a guardian to manage ones financial affairs in the event of incapacity and avoiding the court supervised administration of ones estate after death, called probate, are by far the most frequent reasons for having a revocable trust in ones estate plan.  If you have a revocable trust for the purpose of avoiding the need for guardianship and/or probate, you should review every asset in which you have any interest to confirm each and every asset is properly integrated in your overall plan through ownership and/or pay on death provisions.  Although most assets can and should properly be owned by your revocable trust, there are very important exceptions.  So you should review your estate plan at least annually in order to confirm every asset is properly integrated in your plan to accomplish all your planning objectives, both non-tax objectives, such as probate avoidance, and tax objectives.  An annual review might be done at years end, with each newyear serving as a reminder for that review, or in conjunction with the preparation of ones annual income tax returns when you are handling your financial information for tax purposes anyway.

 

2.    Beneficiary designations, payable on death (POD) and transfer on death (TOD) accounts.  It is common for certain types of assets to pass from the owner to the person(s) of their choice at the owners death by a contractual designation, rather than by the owners Will or trust.  For example, life insurance and certain types of retirement benefits often pass to beneficiaries designated by the owner.  It is, therefore, critical for you to review any such arrangements in light of your overall estate plan to be certain those assets and benefits will pass in the event of your death to the person(s) or charities you intend.  Since a well drafted Will or trust can consider and provide for many contingent events, such as the unexpected death of the person(s) you intend to be the beneficiaries of your estate, it may be preferable to have such assets arranged so that the provisions of your Will or trust will control the disposition rather than relying upon beneficiary designations and payable/transfer on death arrangements.

 

3.    Deaths, including the unexpected death of a beneficiary.  In planning ones estate, thoughtful consideration is given to formulating a plan which is to be carried out in the event of your death.  However, all too often estate plans fail to consider the death of another person which can be critical to the success of your plan, your beneficiary.  What if the person(s) and/or charities you intend to benefit are deceased or incapacitated (or no longer in existence, as to charity) at the time of your death?  Or, what if they are alive at your death, but suffer death or incapacity (or legally dissolve, as to a charity) shortly after your death?  All too often a person will designate their spouse or adult child(ren) to receive some or all of their property, only to have one or more of those persons die or become incapacitated at points in time which were unexpected and cause unintended results such as a probate where probate was intended to be avoided, or estate taxes which could have been avoided, or property passing to persons who were not intended to benefit (such as unintended benefit or control passing to the spouse or even the ex-spouse of a child).  You should give careful thought to the possibility of your intended beneficiaries not being in existence, as you anticipate, at your death and, if that were the case, how you would prefer for your estate plan to operate in those alternative events.

 

4.    Family harmony and the family fiduciary.  Each of the five legal documents in a basic estate plan include the appointment of a fiduciary (Will - personal representative; trust - trustee; power of attorney - agent; advance directive - proxy).  The appointed fiduciary is delegated the legal authority to carry out the duties assigned to them, such as a trustee managing trust assets or a healthcare agent giving instructions to medical personnel.  Although family members, such as a spouse, parent or adult children, are logical candidates due to the intimacy of the relationship and their personal interest in the responsibilities to be undertaken, you should be mindful of the potential for family disharmony which can result from appointing family members.  It might make sense to involve a corporate fiduciary (a corporation whose business it is to handle such fiduciary matters, for a fee) or trusted friends who have the professional skills to handle such responsibilities with objectivity, either along with family members or alone.  In instances where family members are clearly the preference, which will undoubtedly continue to be the majority, careful consideration should be given to making those decisions and structuring such arrangements in the way which is believed will foster family harmony and not fuel the flames of conflict and disharmony.  Since there is no one way which is best, and people and circumstances change over time, you should review the fiduciaries named in your documents at least annually in order to determine whether any changes need to be made, either with the persons named or the guidelines for their performance of the delegated duties.

Estate Planning Toolkit

by Karla McAlister

Only about half of Americans have a Will according to a recent Forbes magazine article. Most people procrastinate because they do not want to actually think about what will happen when they die. It is important to plan and to make decisions or the state will make the decisions for you. State law directs how your assets are distributed if you die without a Will.  The distribution depends on whether you are married or single and whether you have children. The distribution, according to state law may not be anything you would have chosen but it is what your family must deal with if you have not planned.  It is especially important if you have minor children to make plans for the preservation of your assets to care for them. Provisions for a contingent trust for your children can be included in a Will or in a separate revocable trust document. 

 There are many different planning options and the proper option depends on your family situation, your assets and the complexity of your particular wishes.  Taking the time to work through and complete a planning questionnaire helps ensure accurate advice about the options for your situation. Sometimes the right answer is a revocable trust which avoids probateand provides detailed instruction for the trustee to manage your assets for your family. Other times the proper planning may be a transfer on death deed and placing payable on death beneficiaries on your bank accounts.  

Planning gives peace of mind:

  • By specifying who gets what—especially items with emotional significance—you head off disputes.
  • By choosing an executor and trustee if you use a trust to administer your estate, you put someone you trust in charge.
  • By naming a guardian for your young children (under 18), you make it possible for the person you choose to raise your children if for some reason you and the other parent couldn’t. If you don’t make your preference known in your will (or in other legally effective document) a judge would have to choose a guardian without any knowledge of your wishes.

 

Your life insurance and retirement accounts, traditional IRA, Roth IRA, and 401K are distributed upon your death according to the beneficiary designation, not by the provisions of your Will or Trust. The law is complicated and it is important to discuss those beneficiary designations with an experienced advisor.
 

In addition to the basic estate planning tools of a Will and Trust, a Durable Power of Attorney, which names a person who can act in your behalf regarding your property, is a valuable document. This tool gives the agent the power to act on your behalf if you are incapacitated and need assistance or if you are unavailable to act.  If you have a Durable Power of Attorney you will probably avoid the need to have a Guardian appointed if you unable to handle your own affairs. This avoids the cost and time associated with guardianship proceedings. 
 

A Healthcare Power of Attorney allows the agent named to make healthcare decisions for you, if you cannot make them. It is useful if you are injured or incapacitated and unable to make healthcare decisions. An additional healthcare document is the Advance Directive for Healthcare that gives instructions to your physicians on end of life matters. It also names a proxy who can make decisions if you are not able to make them.  It is essential in all of these documents to name people you trust as the agents, proxies, trustees, and personal representatives. They have great power but it also gives you great flexibility and avoids court supervisions of your affairs.