IntroductionYou may have heard a phrase like, “70 is the new 50.” There are large numbers of seniors living into their 80s and 90s. Estate taxation and planning has become a bigger concern, especially for baby boomers. There is a wide range of laws regarding the elderly and disabled. The law of the elderly and disabled has become more complex in recent years. Lawyers and financial planners who specialize in elder law assist with matters affecting the autonomy of elderly people, personal and financial matters, matters regarding wills, trusts, healthcare directives, power of attorney, to name a few. As with most problems in the areas of estate and financial planning, advance planning can help resolve many of the financial and tax problems that the elderly and disabled may be faced with.
Estate is everything that is involved with one’s money and property. Estate planning will differ according to a person’s family needs and personal goals. There are several “tools” the elderly could use to address issues like: protecting assets; limiting estate taxes; making sure wishes of who will inherit the property and money are fulfilled; leaving an inheritance without giving up control and minimizing estate taxes; becoming incapacitated or seriously ill. Example:
After Elvis Presley died, his estate was worth over 10 million dollars but after probate, all that was left for the family was a little over 2 million which shows that no estate planning took place and the estate was taxed heavily. This paper will discuss some of the “tools” that help inplanning estate for the elderly in order to minimize estate taxation. Some of the “tools” discussed in this paper are: Power of Attorney; Trusts, Wills; Joint Ownership of Assets; Lifetime Gifts; Long-Term Care Insurance. Power of Attorney
Power of Attorney can be used as a tool in estate planning. “Power of Attorney” is a legal instrument which grants another person or entity the authority to act as one’s legal representative, thus binding together legal and financial decisions on one’s behalf. The two basic types of powers of attorney are: “general” power of attorney, which is unlimited in scope and duration, and allows the named individual to act as one’s legal representative in dealing with financial matters until such time as it is revoked. A general power of attorney is usually used to allow your agent to handle all affairs during a period of time when the person is unable to do so.
For example, if someone is traveling out of the country. It might be advisable to include a general power of attorney as part of an estate planning to protect the person in case the need to handle his financial affairs arises. “Specific” power of attorney sets limits upon the representative, and can restrict the scope of that person’s powers. For example, the person could be given the power to perform financial transactions from a specific checking account. Either type of power of attorney can specify a date after which the power of attorney will no longer be valid. Health Care Power of Attorney – allows the person to appoint a person or an agent to make health care decisions on their behalf if they become incapacitated.
This is a document that gives the designated person or agent the authority to make health care decisions on behalf of the elderly person if they become unconscious, mentally incompetent, or otherwise unable to make decisions. In many states wishes regarding whether to receive “life-sustaining procedures” if the person becomes permanently comatose or terminally ill can be addressed in the Health Care Power of Attorney document.
This will help the agent to know the person’s wishes as he or she makes decisions for them. Even if this is not included in the document, it should still be discussed with the agent, in order for the agent to understand wishes, values and preferences regarding health care. A Health Care Power of Attorney should not be confused with a living will, even though both are considered “Advance Health Care Directives”. This is because instructions are given on what shall happen in the event that the person becomes unable to make future health care decisions on his/her own. A Living Will only allows the person to express his/her wishes concerning life-sustaining procedures.
Health Care Power of Attorney becomes effective only when one does not have the capacity to give or withdraw informed consent regarding one’s health care. General, special or health care power of attorney that contains special durability provisions is a “durable” power of attorney. For example, if a person becomes mentally incompetent while already having a valid power of attorney document, a durability provision will allow this document to stay in effect. Such a document can be signed to prepare for the possibility of a client becoming mentally incompetent due to illness or an accident. In this scenario, the power of attorney would not go into effect unless a doctor certifies that the person is mentally incapacitated. It is important to select someone of trust to be an agent.
The durable power of attorney ends upon the death of the principal. In some states, if a spouse is the attorney-in-fact, a divorce will automatically terminate the durable power of attorney. In most cases, an agent is held responsible only for the misconduct that is intentional. Usually there is no financial incentive to serve as an agent, most serve without compensation. It is wise to appoint a successor agent since there is the possibility that the person or organization appointed may not be able to serve or will refuse to serve. Example: An elderly husband names his elderly wife as his agent. After signing the power of attorney document, they are both diagnosed as having Alzheimer’s disease.
The wife becomes mentally incompetent and cannot serve as her husband’s agent. The husband cannot sign a new power of attorney because he is also mentally incompetent. If a successor agent was named, he or she will take over. In order for a power of attorney document to be valid, the person must be mentally competent when the document is signed.
A power of attorney must be signed by the “Principal” that is the person granting the authority. The Principal must be mentally competent at the time of the signing in order to make the document legally binding. If there is any question about the Principal’s mental competence, a physician may be asked to certify in writing that the person understands the document and the consequences of signing such. The document should be notarized which will make it harder for someone to challenge its validity. A properly set power of attorney will allow the elderly person to have their wishes carried out, thus minimizing losses to the estate. Trusts
A trust is a relationship between three parties where property is transferred by one party (the trustor) to be held by another party (the trustee) for the benefit of a third party (the beneficiary). A trustee may be either a natural person, or an entity, and there may be a single trustee or multiple co-trustees. There may be a single beneficiary or multiple beneficiaries.
The person transferring the property may himself be a beneficiary. Statutory law regulates the creation and administration of trusts in the United States. In August 2004, the National Conference of Commissioners on Uniform State Laws made an attempt to codify generally accepted common law principles in Anglo-American law regarding trusts into a uniform statutory code for the fifty states, called the Uniform Trust Code (UTC).
There are different types of trusts. If assets are transferred into a trust while the person is living the trust is called inter-vivos or living trust. If assets are transferred into a trust by one’s will this is known as a testamentary trust. Living trusts that can be changed or revoked by the trustor are called revocable while those that cannot be changed or revoked are called irrevocable.
A living trust allows the grantor, the person making the trust, to transfer all or part of his property to the trust so it does not have to pass through probate at his death and can instead be directly distributed to his beneficiaries. The elderly grantor can change the beneficiaries of the trust or terminate the trust while he is alive. A living trust may be written in such a way that it terminates upon the grantor’s death, at which time the trustee will distribute the trust property to the beneficiaries. To benefit the grantor’s spouse and/or children, a trust can be written to terminate at a later date after the death of the grantor.
The following are the advantages of a living trust as an estate planning technique for the elderly: (1) Eliminates probate. If the grantor owns real estate in more than one state it can be transferred to the living trust, eliminating the need for probate in different states; (2) Saves time. By avoiding probate, a living trust allows the property in the trust to be quickly transferred to the beneficiaries upon the grantor’s death; (3) Saves money. Without probate, living trust is usually less expensive to administer than a will. (4) Protects privacy. The contents of the living trust are not made public at the grantor’s death, since it is not probated; (5) Eliminates conservatorship.
A living trust allows a trustee to manage the assets of the trust for the grantor if the grantor becomes disabled; (6) Discourages contesting of a will. A living trust is more difficult to successfully contest. In estate planning for the elderly, other types of trusts can also be used. If the elderly wants to provide for a disabled child a special needs trust can be set up. This type of trust is created to hold and disburse property for the benefit of an individual with physical or mental disabilities. The disabled person is the beneficiary of the trust. Assets in such a trust would not be considered as beneficiary’s income in the eyes of SSI and Medicaid.
The assets in the special needs trust are generally protected from creditors. Upon the death of the beneficiary, the remaining property in the trust must be used to repay the state for its payments on behalf of the beneficiary. To reduce estate taxes, an irrevocable life insurance trust can be considered as yet another tool of estate planning for the elderly. Example: The elderly person can buy a life insurance policy and then transfer the policy and/or money to pay life insurance premiums to a trust for the benefit of his beneficiaries. The trust will have ownership of the life insurance policy thereby keeping the policy proceeds out of the person’s estate.
This would reduce the estate and therefore reduce estate taxes. Being an irrevocable life insurance trust, it cannot be changed or terminated by the trustor. The trustor will not have any right to the assets in the trust. If the insured dies within three years of transferring his policy to the trust, the death benefit will be included in his gross estate. My recommendation to the client would be to set up this type of trust in order to: (1)Take advantage of benefits like policy proceeds not included in probate; (2) Prevent creditors from making a claim against them; (3) Reduce estate taxes as policy proceeds are not included in the insured’s gross estate. Another trust type that could help the elderly reduce estate tax is the charitable remainder trust.
This type of irrevocable trust will allow the grantor or the grantor’s designated income beneficiaries to receive income either for a period of time or for life. Upon the death of the grantor or termination of the trust, the charity keeps the remainder property. Example: If an elderly person has no children or other heirs and needs to receive an income from his property while alive, a charitable remainder trust may be used as part of the estate plan. The benefits from such a trust are: (1) There are no capital gains taxes on appreciated property donated to the trust; (2) Designated income beneficiaries receive an income from the trust either for a period of years or for life;
(3) The property donated to the trust can be sold and reinvested; (4) The portion of the property donated to charity is tax deductible; (5) Reduction or elimination of estate taxes by removing the donated property from the estate; (6) Assets placed in trust pass directly to the charitable organization upon death and avoid probate. The charity that receives property from a charitable remainder trust must be approved by the Internal Revenue.
This means the charity must be a Sec. 501(c) 3 tax exempt organization (2). A power of appointment trust can also reduce estate taxes for the elderly. This is a marital deduction trust which gives the surviving spouse the authority to choose the final beneficiaries of the trust. Upon the first spouse’s death, the surviving spouse receives a general power of appointment which gives him/her the power to decide how to distribute the property. The surviving spouse can bequeath the property to his/ her children, creditors, or a charity. This is not a good fit for someone that wants to control how his/ her estate is distributed. This type of trust is revocable until the death of the first spouse.
The benefits of such a trust are: (1) Surviving spouse will have income for life from the trust; (2) Property in the trust avoids probate upon the death of the donor that created the trust; (3) Property in the trust qualifies for the marital deduction and is not subject to estate tax upon the death of the first spouse, as long as the surviving spouse is a U.S. citizen. My recommendation to the spouse that establishes the power of appointment trust will be to determine the level of authority to be given the surviving spouse.
The donor should consider the ability of his/ her spouse to manage trust assets, the property placed in trust, federal and state estate and gift taxes to which the parties may be subject. The spouse can name another person or entity as a trustee, preventing the surviving spouse from having any authority in managing trust assets.
The Qualified Personal Residence Trust (QPRT) is another estate planning tool used to reduce estate taxes. The grantor’s residence or vacation home is transferred into the trust. The transfer of the residence to the trust constitutes a complete gift. The deferred gift reduces the gift tax cost, the longer the term of the trust the smaller the taxable gift. If the grantor dies before the term of the trust then the house will be included in the estate under Code Section 2036(3). The gift is valued at the fair market value of the residence, less the value of the retained interest.
Code section 7520(4) values the remainder interest using the term of the trust, the life expectancy of the grantor and the SEC 7520(4) rate in effect for the month of the transfer. The longer the term of the trust and the higher the SEC 7520(4) rate, the lower the value of the gift. The age of the grantor also matters due to a greater likelihood that he/ she may die during the term of the retained interest. The regulations under Code section 2702(5) allow two types of qualified trusts: Personal Residence Trusts and Qualified Personal Residence Trusts (“QPRTs”). Benefits of a QPRT are: (1) Flexibility.
The original home owned by the trust can be sold during the trust term and a new home purchased; (2) If the property is sold during the term and is not replaced, the trust can be converted to a grantor retained annuity trust under which a cash annuity is paid to the grantor for the remainder of the trust term; (3) A QPRT allows a person to remove their home from the estate with reduced tax cost and still enjoy the home for a substantial period of time. Example:
A 60-year-old person transfers a home that has a value of $500,000 to a 10-year trust. If the individual survives 10 years, the residence will no longer be subject to estate tax in the individual’s estate even if the property is worth $900,000 after 10 years. However, if the trustor dies during the QPRT term and the home is worth $900,000, the full value of the house which is the $900,000 would be includible in his/her taxable estate.
Crummey Trust. This type of trust is also used to help the elderly taxpayer reduce estate taxes. Crummey Trusts are named after a taxpayer who was part of a court case Crummey v. Commissioner, 397 F. 2d 82 (9th Cir. 1968) (6). This is an irrevocable trust used by the donor to make gifts via his/her annual gift tax exclusion. The advantage of the crummey trust is that the property gifted can remain in the trust after the beneficiary reaches the age of 21 provided the property is not withdrawn during the right of withdrawal period.
This allows trust assets to be held in the trust until the beneficiary is older and more mature. The elderly taxpayer will be able to derive the following benefits from the Crummey Trust: (1) The assets gifted to a Crummey Trust reduce the size of the donor’s taxable estate and thus minimize estate taxes; (2) A parent/grandparent can make tax-free gifts to a Crummey Trust for the benefit of a child/grandchild up to the amount of the annual gift tax exclusion; (3) The donor has control over the timing of distributions of gifts that are not withdrawn during the initial right of withdrawal period.
(4) There are no restrictions on the types of property that can be used to fund a Crummey Trust. Example: In 2011 a husband and wife could add up to $78,000 to a Crummey Trust that would benefit their three children without making a taxable gift. 2 x 3 x $13,000 = $78,000. One way the contributions would qualify for the annual gift tax exclusion is to give the children the right to withdraw principal from the trust only during the first month of each calendar year.
My suggestion to the elderly parents would be to fund the trust with a life insurance policy that benefits the children. The parents can make contributions to the trust each year to cover the insurance premiums. These contributions will be sheltered from gift tax by the annual gift tax exclusion. Also, because the trust is the owner of the insurance policy, the proceeds of the policy will not be subject to estate tax. Trusts used in estate planning for the elderly help assure that wishes of donors are fulfilled as well as estate taxes reduced. Wills
A will is also a tool of estate planning that the elderly can use. A will is a legal document where the person making the will (the testator) indicates how he would like to distribute the property owned by him at his death. A joint will is when two people such as a married couple, sign a single document, where both testators usually leave everything to the other. The surviving testator is generally prevented from revising, revoking or making a new will after the death of the first testator. A joint will is not recommended since it can lead to costly estate litigation, probate delays and financial difficulties for the surviving spouse or other heirs.
When a living trust is part of an estate plan, all assets are usually transferred to the living trust. A pour-over will is made to cover any assets of the grantor that were not properly transferred into the living trust. Example: If the grantor purchased a condominium a few years after making a livingtrust and titled it in his own name rather than in the name of the living trust, the condominium would pass according to the terms of his pour-over will.
The pour-over ensures that property is distributed according to the grantor’s wishes even if it passes outside the living trust. A pour-over will is subject to probate. When working on a will the law needs to be taken into consideration as there are limitations on disinheriting a spouse, or limitations on the amount an individual can give to charity. The will should address issues of tangible property, legacies, real estate, business interests, payment of death taxes, and payment of debts among others.
Funeral arrangements are best left out of the will and may be on a separate paper or left for the family to decide. Another issue the owner of the estate needs to think about when working on a will is family income during administration. It takes some time for the income to be received from a trust or an estate, so the will can provide for the spouse to receive a legacy of an amount of income upon the death of the testator. It is also best if tangible personal property is in a separate will provision, otherwise it will be included in the estate and taxes would have to be paid on it.
A will should be reviewed periodically as the testator may desire to change beneficiaries, or property situation may change. A testator may change or revoke their will as often as they desire provided they do not become of unsound mind or are under undue influence. The will may be rewritten, or an amendment called a codicil may be attached at the end of the will. If a codicil is used, it must be executed with the same formal procedure as the will. The witnesses do not have to be the same. Every will should state that it is the last will of the testator.
Joint Ownership of Assets Joint ownership of property can be a useful tool in estate planning, especially for the elderly. Joint ownership facilitates the process of deciding what rights each owner has and what happens to the property when one of the co-owners passes away. There are three basic types of joint ownership: joint tenancy, tenancy in common, and community property. Joint tenancy could have the right of survivorship. The right of survivorship allows property ownership to be automatically transferred to the surviving owner(s) when one owner passes away.
This allows the property to avoid the probate process. Joint tenancy decreases the amount of time and money spent handling the estate and dividing bequeathed assets. Even if there is a will leaving the property to someone other than the co-owner, joint tenancy laws prevail and the property ownership will be transferred to the surviving co-owner.
A joint tenancy can end in several ways. If a joint tenant sells his/her interest in the property, the buyer becomes a tenant in common. In a tenancy in common type of ownership, each owner has an interest in their part of the property as well as the right to access and use the whole. Unlike a joint tenancy, an interest held as a tenancy in common can be devised in a will to a successor. If one owner sells his share the ownership of the other owners would not be altered.
A tenancy by the entirety conveys the right of survivorship to the co-tenants. Unlike a joint tenancy, neither tenant can break the tenancy by the entirety by selling their portion of the property; besides, creditors of one of the tenants cannot collect against the property. States that recognize this form of joint ownership have created several different varieties, primarily regarding the types of actions a tenant by the entirety can take with regard to the property without their spouse’s consent. If property is purchased by co-tenants, any disproportional contribution may result in a gift from the high contributor to the low contributor.
A revocable joint tenancy does not result in a gift unless one joint tenant withdraws in excess of their contribution. Examples include joint bank accounts and U.S. savings bonds. Joint ownership avoids probate. Probate assets are those assets which are only owned by the decedent and which have no provision for automatic distribution at death. Example: a bank account only in the name of a decedent is a probate asset, but a bank account held jointly with rights of survivorship is not a probate asset. By avoiding probate, the estate is reduced thus reducing estate taxes. Lifetime Gifts
A lifetime gift is another tool that the elderly may use in reducing estate taxes. Lifetime gifts provide tax advantages to the donor. Some of the advantages are: (1) No gift tax on $13,000 a year per donee. This also applies to gifts made on the deathbed. (2) Gift-splitting with the spouse which doubles the tax amounts that can be given. (3) Income splitting allows gifts of income-producing properties substantial income tax savings.
(4) No gift tax is payable until the unified credit is exhausted. (5) Charitable gifts are deductible from income as well as excluded from the gross estate. (6) A gift of little property to a spouse ensures that the spouse’s unified credit is not wasted if the spouse predeceases the donor. Each year, a person can give up to the annual exclusion amount, and married couples can combine their annual exclusion amounts without having to pay gift tax.
The annual exclusion amount is the maximum yearly amount a person can give and still be exempt from federal gift tax. The annual exclusion is adjusted for inflation. For 2011 the amount is $13,000. Amounts gifted over the annual exclusion limit are accumulated and are limited by a lifetime maximum amount over the annual exclusion. If more than the annual exclusion amount is given to one person in a single year a gift tax return would have to be filed. Gift taxes are still not paid unless a very large amount was given.
The rules allow a substantial amount to be given during one’s lifetime without ever paying a gift tax. As of 2011 the amount is $5,000,000. This amount is not exhausted, until all gifts to one person in one year exceed the annual exclusion amount. Example: If a donor makes a $15,000 gift in 2011, only $2,000 of the lifetime limit is used. Any amount used out of the lifetime gift tax exclusion counts toward the estate tax exclusion, which is also $5,000,000 for 2011.
This means that if $350,000 is used toward the limit by making lifetime gifts, the amount that can pass through to the estate free of the estate tax is reduced by $350,000. This means that the lifetime limit should not be ignored even if the donor is certain that his lifetime gifts will never add up to that amount. It is important to structure a plan for the gifts around the annual exclusion amount and exclusions for educational and medical expenses if possible. Long-term care Insurance
The elderly taxpayer is often concerned about what might happen in the event of death, incapacity. Long term care can help. Proper planning can make a big difference. Too often, however people wait until it’s too late and health problems make premiums too high. One great advantage of this insurance is that most policies now cover home care, assisted living care, and nursing home care.
The ideal time to buy long term care insurance is when a person reaches 50s and 60s. The amount of insurance to purchase is also a concern. This would depend on the facility and how much care may be needed. The duration, for which care is needed, is also an issue. The general rule with this is five years. This would allow most people to transfer most or all of their assets to their children or into trust.
Medicaid penalizes such transfers by imposing a five year period of ineligibility. If five years of long-term care insurance coverage is purchased, assets could be transferred to children or into a trust, medical care can be paid for with insurance over five years and then, with assets spent down, the person would qualify for Medicaid coverage. Certain rules criminalize Medicaid planning. However, attorney General Janet Reno agreed that the law was unconstitutional because it violated the First Amendment right of free speech in New York State Bar association v. Janet Reno, et al.
Premiums for “qualified” long-term care policies will be treated as a medical expense and will be deductible to the extent that they, along with other unreimbursed medical expenses exceed 7.5 percent of the insured’s adjusted gross income, Code Section 213(d)(10)(7). For self-employed people the rules are a little different. Benefits from reimbursement policies, which pay for the actual services a beneficiary receives, as well as benefits from per diem policies, which pay a predetermined amount each day are not included in income. The exception is amounts that exceed the beneficiary’s total qualified long-term care expenses or $300 per day in 2011, whichever is greater.
Things to look for when buying long term care insurance are: What is covered-e.g. will cover home health and assisted living care; what is the trigger for qualifying for coverage-e.g. need for assistance in two or three activities of daily living (dressing, toileting, eating, bathing); inflation riders-e.g. provide that the daily benefit increases by 6 percent a year; elimination period-this is the period of time the insured must wait before the policy will kick in. The policy holder will have to pay long-term care expenses while they wait. The amount of personal savings as well as the amount or premiums one can afford should be considered when determining this. Generally the longer the elimination period the lower the premiums would be. Conclusion
In conclusion, it can be said that advance estate planning can alleviate, if not completely solve many financial difficulties confronting the elderly.Elderly Estate Planning is important in minimizing estate taxes and leaving family assets intact.
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Footnotes1. Uniform Trust Code (UTC). Avail