Can You Sue A Trust Directly?

December 13, 2021

If you have a trust, plan to create one or are the beneficiary of one, you’ll want to understand whether or not a trust can be sued. It’s not a simple yes/no, according to a recent article titled “Estate Planning: Can You Sue a Trust?” from Yahoo! Finance. Can you sue a trust directly? Generally, no, but you can sue the trustee of a trust. You can also sue beneficiaries of a trust.

Understanding when a lawsuit can be brought against a trust should be considered when creating an estate plan, a good reason to work with an experienced estate planning attorney.

A trust is a legal entity used to hold and manage assets on behalf of one or more beneficiaries. A trustee can be a person or business entity responsible for managing the trust and the assets it holds. Trusts can be revocable, meaning the person who created them (the grantor) can make changes, or irrevocable, meaning transfer of assets is permanent (for the most part).

Trusts are used to manage assets while the grantor is living and after they have died. There are many different types of trusts, from a Special Needs Trust (SNT) used to manage assets for a disabled person, or a CRT (Charitable Remainder Trust) used for charitable giving. For instance, a trust generally cannot be sued, but a trustee can.

A trust cannot always protect the grantor or beneficiaries from litigation. If a person has debt and creditors want to be paid, they can sue a revocable trust, as you have not given up much in the way of control using this type of trust—you still directly own the assets in the trust!

Irrevocable trusts provide more protection. Once assets are in the trust, the grantor has given up control of the assets. However, if the trust was created mainly to protect assets from creditors, a court could determine the trust was created fraudulently, and rule against the grantor, leaving all of the assets in the trust vulnerable to creditor lawsuits.

Here’s an example. If you transfer a car into a revocable living trust and cause an accident leading to the death or serious injury of another driver, the driver or their family could sue the trust for damages indirectly, by suing you as the trustee.

Trustees are bound as fiduciaries to manage the trust assets as directed by the grantor and for the best interest of the beneficiaries. The trustee can be sued if someone, typically a beneficiary, believes the trustee is not carrying out their duties. A beneficiary might sue a trustee, if they were supposed to receive a certain amount of money at a specific time, but the trustee has not distributed the funds. This is known as a “breach of fiduciary duty.”

Trustees are also prevented from self-dealing or using trust assets for their own benefit. If a beneficiary believes a trustee is taking money from the trust for their own benefit, they can sue the trustee.

While you can sue a trust directly, it is only under very specific circumstances. A trust can also be “contested,” which is different from suing. Contesting a trust occurs when someone believes the grantor was coerced or subjected to undue influence in creating the trust. It also happens if someone believes the trust or amendments to the trust were the result of elder financial abuse, or if it appears trust documents have been forged or fraudulently altered.

Before a trust can be contested, there needs to be a valid suspicion the trust is somehow in violation of your state’s estate planning laws. You also have to have legal standing to bring a claim. The court may or may not side with you, so there are no guarantees. If you would like to learn more about how trusts works, please visit our previous posts.

Reference: Yahoo! Finance (Nov. 17, 2021) “Estate Planning: Can You Sue a Trust?”

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Avoid Major Retirement Regrets

December 10, 2021

A 2019 survey by Global Atlantic Financial Group, which sells annuities, asked more than 4,000 Americans, pre-retirees and retirees, about their retirement savings. Of those surveyed, 55% said they had regrets. Let’s look at how you can avoid major retirement regrets. The top three were that they:

Did not save enough.
Relied too much on Social Security.
Did not pay down debt before retiring.

However, you can avoid some of this remorse, by taking steps now.

Failing to save enough. A recent survey found that 62% of respondents were confident about their current financial health. However, when people looked ahead to their retirement finances, that changed. Part of the issue is planning. Only 18% of the Fidelity survey respondents had a financial plan for retirement. Without planning, it’s hard to know if you have enough saved. See how much you’ll be spending in retirement. Go through your expenses and increase your savings. The most common financial surprises for retirees are inflation and unexpected medical costs.
Depending too much on Social Security. Rather than looking at Social Security as your main source of income in retirement, view it as one of several legs of a stool. Social Security isn’t designed to provide all the necessities of life. It is supplemental. It is not intended to be replacement income. Your planning should include other resources, including:

Tax-advantaged retirement plans
Pensions
Taxable investment accounts
Personal savings
A health savings account
Income from businesses or properties.

Not paying off debt before you retire. For retirees on fixed incomes, debt makes it difficult to really enjoy retirement. Therefore, retire any debt you have before you stop working. You should systematically focus on one debt at a time, while making minimum payments on other debts. Get started by targeting the debt with the highest interest, or perhaps the one with the smallest balance. The goal is to be debt-free in retirement, so your financial resources can go toward helping you enjoy life. However, you shouldn’t concentrate too much on paying down debt and overlooking your retirement savings.

The best way to avoid major retirement regrets is planning. Start now and evaluate your situation. Then develop a retirement roadmap that helps you get from today to tomorrow. If you would like to learn more about retirement planning, please visit our previous posts.

Reference: Money Talks News (Oct. 13, 2019) “The 3 Biggest Regrets of Retirees — and How to Avoid Them”

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evaluate your estate planning during a divorce

Evaluate your planning during Divorce

December 9, 2021

Divorce is never easy. Adding the complexities of estate planning can make it harder. However, it still needs to be included during the divorce process, says a recent article entitled “How to Change Your Estate Plan During Divorce from the Waco Tribune-Herald. It is smart to evaluate your estate planning during a divorce.

Some of the key things to bear in mind during a divorce include:

Is your Last Will and Testament aligned with your pending divorce? The unexpected occurs, whether planning a relaxing vacation or a contentious divorce. If you were to die in the process, which usually takes a few years, who would inherit your worldly goods? Your ex? A trust created to take care of your children, with a trusted sibling as a trustee?

Are your beneficiary designations up to date? For the same reason, make sure that life insurance policies, retirement accounts and any financial accounts allowing you to name a beneficiary are current to reflect your pending or new marital status.

Certain changes may not be made until the divorce is finalized. For instance, there are laws concerning spouses and pension distribution. You might not be able to make a change until the divorce is finalized. If your divorce agreement includes maintaining life insurance for the support of minor children, you must keep your spouse (or whoever is the agreed-upon guardian) as the policy beneficiary.

Once the divorce decree is accepted by the court, the best path forward is to have a completely new will prepared. Making a patchwork estate plan of amendments can be more expensive and leave your estate more vulnerable after you have passed. A new will revokes the original document, including naming an executor and a guardian for minor children.

The will is far from the only document to be changed. Other documents to be created include health care directives and medical and financial powers of attorney. All of these are used to name people who will act on your behalf, in the event of incapacity.

It’s a good idea to update these documents during the divorce process. If you are in the middle of an ugly, emotionally charged divorce, the last person you want making life or death decisions as your health care proxy or being in charge of your finances is your soon-to-be ex.

Talk with your estate planning attorney about evaluating your planning during the divorce process. They will be able to make further recommendations to protect you, your children and your estate during and after the divorce. If you would like to read more about estate planning during and after divorce, please visit our previous posts.

Reference: Waco Tribune-Herald (Oct. 18, 2021) “How to Change Your Estate Plan During Divorce”

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Divert Assets to maintain Medicaid Eligibility

December 8, 2021

Medicaid is not just for poor and low-income seniors. With the right planning, assets can be protected for the next generation, while helping a person become eligible for help with long-term care costs. There are strategies to divert assets to maintain Medicaid eligibility.

Medicaid was created by Congress in 1965 to help with insurance coverage and protect seniors from the costs of medical care, regardless of their income, health status or past medical history, reports Kiplinger in a recent article “How to Restructure Your Assets to Qualify for Medicaid.” Medicaid was a state-managed, means-based program, with broad federal parameters that is run by the individual states. Eligibility criteria, coverage groups, services covered, administration and operating procedures are all managed by each state.

With the increasing cost and need for long-term care, Medicaid has become a life-saver for people who need long-term nursing home care costs and home health care costs not covered by Medicare.

If the household income exceeds your state’s Medicaid eligibility threshold, two commonly used trusts may be used to divert excess income to maintain program eligibility.

QITs, or Qualified Income Trusts. Also known as a “Miller Trust,” income is deposited into this irrevocable trust, which is controlled by a trustee. Restrictions on what the income in the trust may be used for are strict. Both the primary beneficiary and spouse are permitted a “needs allowance,” and the funds may be used for medical care costs and the cost of private health insurance premiums. However, the funds are owned by the trust, not the individual, so they do not count against Medicaid eligibility.

If you qualify as disabled, you may be able to use a Pooled Income Trust. This is another irrevocable trust where your “surplus income” is deposited. Income is pooled together with the income of others. The trust is managed by a non-profit charitable organization, which acts as a trustee and makes monthly disbursements to pay expenses for the individuals participating in the trust. When you die, any remaining funds in the trust are used to help other disabled persons.

Meeting eligibility requirements are complicated and vary from state to state. An estate planning attorney in your state of residence will help guide you through the process, using his or her extensive knowledge of your state’s laws. Mistakes can be costly—and permanent.

For instance, your home’s value (up to a maximum amount) is exempt, as long as you still live there or will be able to return. Otherwise, most states require you to divert other income to $2,000 per person or $4,000 per married couple to qualify.

Transferring assets to other people, typically family members, is a risky strategy. There is a five-year look back period and if you’ve transferred assets, you may not be eligible for five years. If the person you transfer assets to has any personal financial issues, like creditors or divorce, they could lose your property.

Asset Protection Trusts, also known as Medicaid Trusts. You may transfer most or all of your assets into this trust, including your home, and maintain the right to live in your home. Upon your death, assets are transferred to beneficiaries, according to the trust documents.

Right of Spousal Transfers and Refusals. Assets transferred between spouses are not subject to the five-year look back period or any penalties. New York and Florida allow Spousal Refusal, where one spouse can legally refuse to provide support for a spouse, making them immediately eligible for Medicaid. The only hitch? Medicaid has the right to request the healthy spouse to contribute to a spouse who is receiving care but does not always take legal action to recover payment.

Talk with your estate planning attorney if you believe you or your spouse may require long-term care. Consider the requirements and rules of your state. Keep in mind that Medicaid gives you little or no choice about where you receive care. Planning in advance to divert assets to maintain Medicaid eligibility is the best means of protecting yourself and your spouse from the excessive costs of long term care. If you would like to learn more about Medicaid and how it works, please visit our previous posts.

Reference: Kiplinger (Nov. 7, 2021) “How to Restructure Your Assets to Qualify for Medicaid”

When should You Consult an Elder Law Attorney?

December 7, 2021

Elder law attorneys assist seniors or their family caregivers with legal issues and planning that related to the aging process. These attorneys frequently help with tax planning, disability planning, probate and administration of an estate, nursing home placement and many other legal issues. When should you consult an elder law attorney?

Forbes’ recent article entitled “Hiring an Elder Law Attorney,” explains that elder law attorneys are specialists who work with seniors or caregivers of aging family members on legal matters that older adults face as they age. Many specialize in Medicaid planning to help protect a person’s financial assets, when they have Alzheimer’s disease or another debilitating illness that may require long-term care. They can also usually draft estate documents, including a durable power of attorney for health and medical needs, and even a trust for an adult child with special needs.

As you get older, there are legal issues you, your spouse or your family caregivers face. These issues can also change. For instance, you should have powers of attorney for financial and health needs, in case you or your spouse become incapacitated. You might also need an elder law attorney to help transfer assets, if you or your spouse move into a nursing home to avoid spending your life savings on long-term care.

Elder law attorneys can help with a long list of legal matters seniors frequently face, including the following:

Preservation and transfer of assets
Accessing health care in a nursing home or other managed care environment and long-term care placements
Estate and disability planning
Medicare, Social Security and disability claims and appeals
Supplemental insurance and long-term health insurance claims and appeals
Elder abuse and fraud recovery
Conservatorships and guardianships
Housing discrimination and home equity conversions
Health and mental health law.

The matters listed above are all issues that should motivate you to consult an elder law attorney. Certified Elder Law attorney Melissa Donovan at Texas Trust Law can help! If you would like to learn more about elder law, please visit our previous posts.

Reference: Forbes (Oct. 4, 2021) “Hiring an Elder Law Attorney”

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Estate Planning for Young Adults

December 6, 2021

There are some basic estate planning needs for young adults once they reach 18. This 18^th birthday milestone legally notes the transition from minors to official adults, bringing with it major changes in legal status, says NJ Family’s recent article entitled “What You Need to Know (Legally and Medically) On Your Teen’s 18th Birthday.”

Adults—even your 18-year-old— is entitled to privacy rights. This means that anyone not given explicit rights via a power of attorney and HIPAA (the Health Insurance Portability and Accountability Act) release, among other important documents, can be denied info and access—even parents. Here’s what every family should have:

Power of Attorney. A power of attorney (POA) gives an agent (such as you as the parent) the authority to act on behalf of a principal (your adult child) in specific matters stated in the POA.

You can also have a POA for medical decisions and one for finances.

HIPAA Release. When kids become legal adults, they have a right to complete health privacy under HIPAA. That means no one can see their information without permission, even you!

Ask your child to sign a HIPAA release form (which is often included along with the medical power of attorney), to let their health providers share relevant information.

Wills. A simple Will is a good idea. It may also be a good time for you to review your estate plan to see how circumstances changed.

The wisest and safest way to get a credit card for your adult child is to add your child to your account. That way you can monitor transactions. Students also get an immediate bump in their credit score, which is important for renting apartments. However, the main point is to teach them skills and how to be responsible with money.

Talk with an experienced estate planning attorney about drafting all of the necessary estate planning for your newly-minted young adult. If you would like to read more about estate planning for young adults, please visit our previous posts.

Reference: NJ Family (Oct. 6, 2021) “What You Need to Know (Legally and Medically) On Your Teen’s 18th Birthday”

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Consider Gifting to Loved Ones before Tax changes

December 2, 2021

With all of the talk about changes to estate taxes, estate planning attorneys have been watching and waiting as changes were added, then removed, then changed again, in pending legislation. The passage of the infrastructure bill in early November may mark the start of a calmer period, but there are still estate planning moves to consider, says a recent article “Gift money now, before estate tax laws sunset in 2025” from The Press-Enterprise. It is wise to consider gifting to loved ones before tax changes arrive.

Gifts are used to decrease the taxes due on an estate but require thoughtful planning with an eye to avoiding any unintended consequences.

The first gift tax exemption is the annual exemption. Basically, anyone can give anyone else a gift of up to $15,000 every year. If giving together, spouses may gift $30,000 a year. After these amounts, the gift is subject to gift tax. However, there’s another exemption: the lifetime exemption.

For now, the estate and gift tax exemption is $11.7 million per person. Anyone can gift up to that amount during life or at death, or some combination, tax-free. The exemption amount is adjusted every year. If no changes to the law are made, this will increase to roughly $12,060,000 in 2022.

However, the current estate and gift tax exemption law sunsets in 2025. This will bring the exemption down from historically high levels to the prior level of $5 million. Even with an adjustment for inflation, this would make the exemption about $6.2 million. This will dramatically increase the number of estates required to pay federal estate taxes.

For households with net worth below $6 million for an individual and $12 million for a married couple, federal estate taxes may be less of a worry. However, there are state estate taxes, and some are tied to federal estate tax rates. Planning is necessary, especially as some in Congress would like to see those levels set even lower.

Let’s look at a fictional couple with a combined net worth of $30 million. Without any estate planning or gifting, if they live past 2025, they may have a taxable estate of $18 million: $30 million minus $12 million. At a taxable rate of 40%, their tax bill will be $7.2 million.

If the couple had gifted the maximum $23.4 million now under the current exemption, their taxable estate would be reduced to $6.6 million, with a tax bill of $2,520,000. Even if they were to die in a year when the exemption is lower than it was at the time of their gift, they’d save nearly $5 million in taxes.

There are a number of estate planning gifting techniques used to leverage giving, including some which provide income streams to the donor, while allowing the donor to maintain control of assets. These include:

Discounted Giving. When assets are transferred into an entity (commonly a limited partnership or limited liability company), a gift of a minority interest in the entity is generally given a discounted value, due to the lack of control and marketability.

Grantor Retained Annuity Trusts. The donor transfers assets to the trust and retains right to a payment over a period of time. At the end of that period, beneficiaries receive the assets and all of the appreciation. The donor pays income tax on the earnings of the assets in the trust, permitting another tax-free transfer of assets.

Intentionally Defective Grantor Trusts. A donor sets up a trust, makes a gift of assets and then sells other assets to the trust in exchange for a promissory note. If this is done correctly, there is a minimal gift, no gain on the sale for tax purposes, the donor pays the income tax and appreciation is moved to the next generation.

These strategies may continue to be scrutinized as Congress searches for funding sources, but in the meantime, they are still available and may be appropriate for your estate. Speak with an experienced estate planning attorney to see if these or other strategies should be put into place. It is time to seriously consider gifting to loved ones before estate tax changes arrive. If you would like to learn more about gifting, and other charitable options in estate planning, please visit our previous posts.

Reference: The Press-Enterprise (Nov. 7, 2021) “Gift money now, before estate tax laws sunset in 2025”

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Cryptocurrency should be Considered in Estate Plans

December 1, 2021

Cryptocurrency accounts are not like any traditional investment accounts. However, their growing prevalence and value means cryptocurrency should be considered in more and more estate plans, especially when they take an enormous leap in value. These accounts are more vulnerable, according to the recent article “Millennial Money: What happens to your crypto if you die?” from The Indiana Gazette, and in most cases, there’s no way to name a beneficiary for your crypto accounts.

If you store your cryptocurrency on a physical device at home and a few friends know your key—the crypto password that grants access to a crypto wallet—one of those friends could very easily wander into your home and steal your crypto without you even noticing.

On the flip side, if you don’t share your key with anyone and become incapacitated or die, your crypto assets could be lost forever. Knowing how to store these assets safely and communicate your wishes for loved ones is extremely important, more so than for traditional assets.

How is crypto stored? Crypto “wallets” are digital wallets, managed on an app or a website, or kept on a thumb drive (also known as a memory stick). How you store crypto depends in part on how you intend to use it.

A “Hot Wallet” is used to buy and sell crypto. They are usually free and convenient but may not be as secure as other methods because they are always connected to the internet.

“Cold Wallets” are used to store crypto for a longer period of time, like a deep freezer.

The Hot Wallet is more like a checking account, with money moving in and out. The Cold Wallet is like a savings account, where money is kept for a longer period of time. You can have both, just as you probably have both a checking and savings account.

Whoever holds the “keys” to the wallets—whoever has custody of the password, which is a series of randomly generated numbers and letters—has access to your cryptocurrency. It might be just you, a third-party crypto exchange, or a hybrid of the two. Consider the third-party exchange a temporary and risky solution, as you don’t have control of the keys and exchanges do get hacked.

Naming a beneficiary in your will and adding a document to your estate plan containing an inventory of cryptocurrency and any passwords, PINs, keys and instructions to find your cold wallet is part of an estate plan addressing this new digital asset class.

Do not under any circumstances include any of the crypto information in your will. This document becomes part of the public record when filed in court and giving this information is the same as sharing your checking, saving and investment account information with the general public.

Some platforms, like Coinbase, have a process in place for next of kin, when an owner dies. Others do not, so it’s up to the crypto owner to make plans, if they want assets to be preserved and passed to another family member.

Cryptocurrency should be considered in your estate plans if you plan to trade heavily in it. Preparing for cryptocurrency is much the same as preparing for the rest of your planning. Keep the plan updated, especially after big life events, like marriage, divorce, birth, or death. Keep instructions up to date, so the executor and beneficiaries know what to do. Bear in mind that crypto wallets need occasional updates, like every other kind of digital platform. If you would like to learn more about cryptocurrency and estate planning, please visit our previous posts.

Reference: The Indiana Gazette (Nov. 7, 2021) “Millennial Money: What happens to your crypto if you die?”

Common Errors with Medicare Enrollment

November 30, 2021

Money Talks News recent article entitled “5 Things Most Seniors Get Wrong About Medicare” reports that recently, the insurance website MedicareAdvantage.com surveyed more than 1,000 Medicare beneficiaries and found that they share common errors with Medicare enrollment. The researchers said that this ignorance can mean seniors wasting money and forfeiting benefits. Here are the errors most seniors make with Medicare enrollment, and how such things really work.

Premiums, deductibles, and coinsurance. Many survey respondents were unable to correctly define these terms:

Deductible: 59.7%
Coinsurance: 55.5%
Premium: 56.1%

A deductible is the amount you pay out-of-pocket for care before your insurance kicks in. Coinsurance is what you often pay for services after you’ve met the deductible — for example, a common coinsurance requirement is 20% of service costs. Your premium is the amount you pay each month for coverage.

Out-of-pocket spending limits. One thing about most health insurance plans is that they restrict the amount you’re expected to pay out of pocket. However, when talking about original Medicare, nearly three-quarters (73.7%) of survey respondents don’t realize they could be hit with an unlimited amount of coinsurance bills for Part A and Part B coverage. It’s a big reason why Medicare supplement plans are so important, if you’re choosing original Medicare. Many Medicare Advantage plans — also known as Medicare Part C — come with out-of-pocket limits. After you reach this limit, you pay nothing for the Part A and Part B care that is included in your plan.
Part D’s late enrollment penalty. Only a fifth (20%) of Medicare beneficiaries knew that there’s a penalty if you sign up late for Part D prescription coverage. After your initial Medicare enrollment period ends, you may owe a penalty if there’s a period of 63 or more consecutive days when you don’t have Medicare drug coverage or other equivalent prescription drug coverage. If you have a penalty, you’ll have to pay it for as long as you have Medicare drug coverage.
The fall open enrollment period. Every year, the federal government schedules an open enrollment period when you can make changes to your existing coverage. This period always starts on October 15 and goes until December 7. However, 59.7% of Medicare beneficiaries didn’t know the start date, and half of that percentage falsely thought open enrollment starts after October 15.
Virtual services covered because of the pandemic. Since the COVID-19 pandemic, virtual health care has become more widely available. As a result, the federal government now permits Medicare to cover some of these services. However, a large percentage of beneficiaries are unaware of that fact. Here are the percentages of survey respondents who didn’t know that the following services now are covered:

Virtual e-visits with a physical therapist: 81.9%
Virtual telehealth visits for preventative health screenings: 56.6%
Virtual telehealth visits for mental health counseling: 54.1%

Working with an experienced Elder Law attorney who can help you avoid these common errors with Medicare enrollment, and allow you the full benefits you have earned and deserve. If you would like to read more about Medicare benefits and how to enroll, please visit our previous posts.

Reference: Money Talks News (Nov. 3, 2021) “5 Things Most Seniors Get Wrong About Medicare”

Even College Kids Need Estate Planning

November 29, 2021

Even college kids need estate planning. The topic of estate planning is frequently overlooked in the craze to get kids to college.

When your child leaves home, it’s important to understand that legally you may not hold the same rights in your relationship that you did for the first 18 years of your child’s life.

Wealth Advisor’s article entitled “Estate Planning Documents Every College Student Should Have in Place” says that it’s crucial to have these discussions as soon as possible with your college student about the plans they should put into place before going out on their own or heading to college. An experienced estate planning attorney can give counsel on the issues concerning your child’s physical health and financial well-being.

When your child turns 18, you’re no longer your child’s legal guardian. Therefore, issues pertaining to his or her health can’t be disclosed to you without your child’s consent. For instance, if your child is in an accident and becomes temporarily incapacitated, you couldn’t make any medical decisions or even give consent. As a result, you’d likely be denied access to his or her medical information. Ask your child to complete a HIPAA release. This is a medical form that names the people allowed to get information about an individual’s medical status, when care is needed. If you’re not named on their HIPAA release, it’s a major challenge to obtain any medical updates about your adult child, including information like whether they have been admitted to a hospital.

In addition, your child also needs to determine the individual who will manage their healthcare decisions, if they’re unable to do so on their own. This is done by designating a healthcare proxy or agent. Without this document, the decision about who makes choices regarding your child’s medical matters may be uncertain.

Your child should ensure his or her financial matters are addressed if he or she can’t see to them, either due to mental incapacity or physical limitations, such as studying abroad. Ask that you or another trusted relative or friend be named agent under your child’s financial power of attorney, so that you can help with managing things like financial aid, banking and tax matters. While they may feel they are invincible, even college kids need estate planning. If you would like to learn more about planning for young adults, please visit our previous posts.

Reference: Wealth Advisor (Sep. 24, 2021) “Estate Planning Documents Every College Student Should Have in Place”

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Blog Articles

Can You Sue A Trust Directly?

Avoid Major Retirement Regrets

Evaluate your planning during Divorce

Divert Assets to maintain Medicaid Eligibility

Estate Planning for Young Adults

Consider Gifting to Loved Ones before Tax changes

Cryptocurrency should be Considered in Estate Plans

Common Errors with Medicare Enrollment

Even College Kids Need Estate Planning

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