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Utilizing “QTIP” Trusts for Families in Second Marriages

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Utilizing “QTIP” Trusts for Families in Second Marriages

Estate planning in second marriages can be especially complicated when trying to secure the well-being of loved ones from a previous marriage. Much of the complexity arises from rights granted to a surviving spouse. In Ohio, spouses (male or female) are entitled to dower and elective share rights that often create tension between children from a prior marriage and your second marriage partner.

However, most of these uncomfortable tensions can be avoided through careful estate planning, which often includes a QTIP (or, Qualified Terminable Interest Property Trust). Such an arrangement is especially effective in providing for children from a previous marriage.

Consider the following example:

Let’s say Michael dies while married to his second wife, Kathy. Michael loved Kathy, but out of concern that she might not take the well-being of his children from a previous marriage into account, he established a will that left most of his estate (worth about $12 million including a marital home) to his children. He did, however, bequeath his $100,000.00 IRA entirely to Kathy.

And here is where things become complicated…

Unfortunately, Kathy then dies a week later intestate (without a will), so Michael’s hard-won IRA is automatically transferred to Kathy’s closest relative – her idiot brother, Frank. Because Kathy was entitled to the marital home through Ohio’s spousal rights, the marital home also transfers to Frank. The kids end up with hardly anything. Had Michael properly planned, he could have protected his children’s inheritance, provided income for his wife, and saved considerably on taxes.

QTIP Trusts

In the example above, Michael could have provided for both his children and Kathy had he created a QTIP trust or proper will.  Qualified Terminable Interest Property Trusts are commonly referred to as a “Family Trust”, or “Marital Trust.”  A QTIP Trust subdivides into (A) marital and (B) family Trusts: the B Trust preserves the children’s interest by restricting the spouse’s access.  The remaining spouse receives income and a life estate that satisfies Ohio’s spousal rights.   After the second spouse dies, the children receive the remaining assets in the B Trust.

Consider another version of the above example:

Instead of ignoring Ohio’s marital election, Michael plans ahead and created a revocable living trust with a QTIP election.   Upon Michael’s death, his trust is sub-divided into an “A” and a “B” trust.  Here, $5.43 million of his estate is diverted to his B trust.  Kathy is the beneficiary of this B trust, with limited access and receives income from the trust.   Because this trust is under the federal estate tax limit, Kathy’s estate tax is $0.00.  Over the next 20 years, because of robust growth, the “B” trust is now $17 million.  Upon Kathy’s death, trust “B” passes to the Michael’s sons entirely estate tax free.

The remaining $6.57 million in assets are diverted to the “A” trust.  Kathy again has restricted access, but can use these funds for her health, maintenance and support.  When Kathy has expenses, she uses the “A” trust and saves the “B” trust only for dire necessities.  Upon her death, the “A” trust has been reduced (or eliminated) and the tax is minimal, if there is any at all.  The remaining balance of the “A” trust passes to Michael’s sons.

QTIP trusts are very popular for people in second marriages.  As you can see, the trust provides income for the remaining spouse, yet it preserves your children’s assets.

Prenuptial Agreements

A QTIP trust may not fit under certain circumstances.  In cases where there is a disproportionate estate among spouses, a prenuptial agreement may be considered.  Certain statutory rights of a decedent’s surviving spouse may be waived by a valid prenuptial agreement.  In other words, people may contract for anything in life.  This includes signing away your inheritance.

It’s important to remember that a prenuptial agreement may often bring tension among couples.  Also, although Ohio recognizes prenuptial agreements to be valid, the state also does not allow you disinherit your spouse.   In that regard, oftentimes antenuptial agreements are coupled with estate plans to provide some form of financial security for the surviving spouse.

Prenuptial agreements are valid and enforceable (1) if they have been entered into freely without fraud, duress, coercion, or overreaching; (2) if there was full disclosure, or full knowledge and understanding of the nature, value and extent of the prospective spouse’s property; and (3) if the terms do not promote or encourage divorce or profiteering by divorce.

Prenuptial agreement agreements are a great tool when coupled with a QTIP trust.  When combined together, the surviving spouse is provided income and preserved an estate for his or her lifetime.  In addition, the children’s inheritance is given extra protection in case of divorce.

Summary

QTIP trusts and prenuptial agreements are two of many ways to provide security for your spouse and children.   Through proper estate planning, you can provide a steady stream of income for your spouse and preserve your children’s inheritance.  It’s important to consider all options when preparing your estate plan.   For more information and or questions, contact attorney Dan Baron at Baron Law LLC – 216-573-3723.

 

 

 

 

 

 

How Will Trump’s Presidency Affect Your Trust?

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How will Trump’s Presidency Affect Your Trust?

With the impending inauguration of Donald Trump as our nation’s president, we would all be wise to prepare for a more conservative economic landscape that will likely include the elimination of some gift and estate taxes, lower overall rates, and new deductions. Particularly, if Trump moves forward to repeal the estate tax, many questions surface around the tax consequences within family trusts.

Whether you currently have or are thinking of establishing a trust, here are some important considerations going into the next year with our new president.

Federal Estate Tax

Trusts are an important estate planning tool for avoiding probate, protecting assets, and Medicaid planning.  For people with larger estates, trusts are also an effective way to save money on taxes. For example, commonly used A – B and QTIP trusts allow you to divide your estate into several sub-trusts to avoid the federal estate tax of forty percent (40%). However, Trump’s proposed repeal of the current federal estate tax could eliminate this estate tax entirely.  Thus, notwithstanding the other benefits of a trust, the new proposal would limit the need for a trust. This could mean savings upwards of $268 billion over the next ten years, collectively, for those with larger estates.

Marital Exemption

It’s important to keep in mind that Trump has no interest in changing the unlimited marital exemption that is currently in place.  For example, let’s assume Henry and Wilma have an estate worth $10 million.  Henry dies leaving Wilma the entire estate.  Even before Trump’s plans are proposed, the entire $10 million would pass to Wilma, estate tax free.  In other words, Wilma would receive the entire amount and not have to pay a 40% tax. Wilma avoids paying any tax because our current laws allow for your entire estate to pass tax free to your spouse.

Advantages of a Trust

Less than five percent of Americans would be affected by Trump’s estate tax proposal.  However, there are numerous non-tax related benefits for having a trust as part of your estate plan.  The biggest advantage is that trusts allow your loved ones to avoid probate.  Under Ohio law, an estate caught up in the probate process will likely be trapped there for a minimum of six months, and ultimately could take years to administer.  A trust eliminates the need to go through the probate court and keeps your estate private.

Other Types of Trusts and their Advantages

There are many different types of trusts that can be beneficial under specific circumstances. For example, a charitable trust is a unique tool used to establish your legacy with a charity while saving on your income taxes. Charitable trusts can effectively remove you from a higher income tax bracket and provides income over your lifetime.  Revocable and irrevocable trusts are another form that might help provide protection against creditors, Medicaid, and law suits.  And finally, special needs trusts might help protect your special needs child or family member.

In sum, regardless of the changes implemented by our new administration, establishing a trust remains an effective way to save time, money, and to avoid prolonged probate headaches for your loved ones. Furthermore, not only does a trust help avoid the probate process, it also protects your assets against opportunistic creditors and other litigative perils.  Most importantly, a trust ensures the right people inherit your legacy, and that nothing can be claimed by the State.

Join us for this FREE workshop to learn more about the benefits of trusts and other asset protection tools.

Update: This workshop is no longer available; therefore we have removed the link to the event workshop. 06/2019

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New Changes in Ohio’s Power of Attorney Laws

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If you’re an Ohio resident concerned with the medical care of a loved one, you should be familiar with Ohio’s laws regarding power of attorney.

A financial power of attorney, also known as a durable power of attorney, is a legal document an individual (the “principal”) can use to appoint someone (the “agent”) to act on his or her behalf.  This authority can be used for financial, business, and health matters.   Most often, this authority is used when an individual becomes unable to handle his or her own affairs.

There have been several changes that Ohio has adopted affecting these powers.  Effective March 22, 2012, Ohio adopted the Uniform Power of Attorney Act, or UPOAA.   UPOAA focuses on preventing financial elder abuse.  The law now includes a statutory form with language designed to help prevent agents from abusing their power.  Put simply, the law now demands power of attorneys to be more specific and provide specific “hot powers.”

Since this new law, third parties such as a financial institution are not required to honor a general power of attorneys.  Now, the law asks that a power of attorney include specifically which types of assets and accounts the agent is allowed to control.

A power of attorney created before March 22, 2012 will still be valid; however, ask an attorney to review it in light of the current law and consider using the 2012 statutory power of attorney form.   In sum, UPOAA prohibits agents from performing certain acts unless the power of attorney specifically authorizes them.  Because financial power of attorney documents give significant powers to another person, they should be granted only after careful consideration.

To learn more about drafting a power of attorney, contact the law office of Baron Law LLC.  You will speak directly with Cleveland, Ohio attorney, Dan Baron.  Call today at 216-573-3723 to learn more about how Baron Law can help create your estate plan and power of attorney.

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Is Probate Necessary?

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As an estate planning attorney, many people ask me if probate is really necessary. The short answer is no, and I often advise my Cleveland, Ohio estate planning clients to avoid probate if at all possible. But what is probate? And, why should it be avoided? Here’s a quick synopsis to answer these questions.

What is Probate?

Probate is the legal process required to transfer certain assets at a person’s death. Probate becomes mandatory and necessary when a person dies owning assets in his or her name that do not pass to a survivor or beneficiary by operation of law or contract. An example of one of these ‘contracts’ might be a payable on death account (“POD”) or beneficiary designation. Through probate, claims, expenses and taxes are paid and property is distributed.

The assets subject to probate administration are referred to as “probate assets” while assets that pass outside probate to a survivor or beneficiary by operation of law or contract are called “non-probate assets.”

Probate is not the same as tax. Both Probate and non-probate assets may be subject to income and/or wealth transfer tax at a person’s death.

A will enables a person to choose how his or her probate assets are to be distributed following death. Without a will, the Ohio Statute on Descent and Distribution (Ohio Rev. Code § 2105.06) dictates how a decedent’s assets will be distributed.

Reasons to Avoid Probate
I often tell my Cleveland, Ohio clients to avoid probate for several reasons. First, probate is public. For a number of reasons, you may not want others to now the value of your assets being transferred to your decedents. The creation of a trust or other instrument is private and can avoid the public display of your assets. Second, the probate process is often time consuming.   When dealing with the loss of a loved one, you don’t want to be caught up in court which is costly and often ends up prolonging the grieving process.  Next, there may reason for wanting to control your assets through a trust; moreover, creating asset protection.  Finally, there may also be certain tax advantages for avoiding probate by placing your assets in trust.

For most clients, I will often weight the pros and cons of creating a will versus a trust and explaining the benefits of avoiding probate.  Often it comes down to the cost versus the value of avoiding probate.  If you would like more information regarding probate, trusts, wills, or other estate planning tools, please contact my office at 216-276-4282.    Baron Law LLC provides estate planning advice for the Cleveland, Ohio area.    Call estate planning attorney Dan Baron today for a free consultation.

Is Annuity-Based Long-Term Care Right for You?

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Annuity-Based Long-Term Care and the Pension Protection Act of 2006

Medicaid and long-term care are unquestionably a hot topic.  Estate planning and Medicaid planning attorneys have long been waiting for an opportunity that would allow those wishing to enroll in Medicaid to shelter all or a portion of their savings – legally!  Cleveland, Ohio estate planning attorney Dan Baron offers the following information on long-term care and how the Pension Protection Act of 2006 has created one of these sought after opportunities.

In 2006, the President signed into law The Pension Protection Act of 2006 (the “Act”).  The act changed certain tax laws and allows for those owning annuity contracts to take advantage of certain tax savings.  In sum, the Act allows the cash value of annuity contracts to be used to pay premiums on long-term care contracts.  The payment of premiums in this way will reduce the cost basis of the annuity contract.  In addition, the Act allow annuity contracts without long-term care riders to be exchanged for contracts with such a rider in a tax-free transfer under Section 1035 of the Internal Revenue Code of 1986, as amended (IRC).

Here’s an example of how the Act’s changes might benefit someone considering long-term care insurance.   Let’s say that Kathy, age 70, lives in Cleveland.  Her children live out of state but are concerned with a recent diagnosis of diabetes, along with a history of heart disease.   Because of these illnesses, she was not a good candidate for traditional long-term care insurance.  However, by taking advantage of an annuity based long-term care strategy that takes advantage of the Pension Protection Act, Kathy could likely be insured.

Look at the illustration below.  Kathy can take her $140,000 fixed annuity with a cost basis of only $40,000 (i.e. the amount she actually deposited) and using the tax-free exchange from his existing fixed annuity to a new annuity that complied with the Act’s rules, Kathy’s $140,000 fixed annuity could continue to earn interest.  However, if she needed long-term care to pay for home care, assisted living, or skilled care, she now had a long-term care pool of money equal to $420,000.

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  • Kathy retains her $140,000 in cash value plus an additional $280,000 for a total of $420,000 for long-term care.
  • Her benefits may be used for home care, assisted living, and skilled care.
  • She pays no annual premiums
  • As her annuity grows, so does her LTC. (assuming she does not use her LTC benefits)

There are many annuity based long-term care packages available.  It’s best to consult with an attorney or Medicaid specialist who can help you choose the right plan.  For more information, or to speak with Cleveland estate planning and Medicaid planning attorney Dan Baron, contact our office at Baron Law LLC.  Baron Law LLC is a Cleveland, Ohio law firm dedicated to helping those in need of elder care, estate planning, and Medicaid planning.  Contact attorney Dan Baron today at 216-276-4282.

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Medicaid Planning – Important Considerations When Choosing a Long-Term Care Plan

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Medicaid Planning – Important Considerations When Choosing a Long-Term Care Plan

It’s no surprise that Medicaid planning has been a widely discussed topic considering the overwhelming cost of nursing home care.  For example, the average daily cost of care in the Midwest is approximately $135 per-day.   In Ohio, this same care is around $203.00 per-day. Put another way, your long term care plan must account for $6090.00 per-month.

As an estate planning attorney, I’m often asked whether it’s worth purchasing long-term care insurance. Unfortunately, the answer is specific to each individual’s goals, needs, assets, and more.   However, there are several important considerations everyone should know.   Medicaid planning and elder law are key to estate planning.  At a minimum, those planning for their financial and physical health, should consider the following when choosing a long-term care plan.

Ratings

The financial ratings of a long-term care plan are important when considering purchasing the insurance.  Every company is different and each have different ratings.  The recommendation is to choose a company with an AM BEST rating of A+ or better.  In addition, the assets of the insurance company should be in the billions.  In essence, you want the insurance company to have a high rating and be financially sound.  For more information on ratings, visit:http://www.ambest.com/home/default.aspx

Discounts

There are a number of discounts available when considering your insurance plan.  Some long-term care insurers will allow for group discounts through employers.  Senior clubs and other organizations can also offer discounts from 5%-10% on long-term care.  In addition, some companies will actually allow for a 30%-50% discount when both spouses purchase long-term care.  Good health discounts may also be given when the applicant is in excellent health which range from 10%-15%.  It’s important to realize that not all companies permit these types of discounts and its best to consult with an estate planning or Medicaid planning attorney.   Moreover, each company has its own underwriting guidelines which may change the above mentioned averages.

Tax Considerations

There are several tax considerations when thinking about long-term care insurance.  At the federal level, premiums for long-term care insurance fall into the ‘medical expense’ category.  So, if the premium (or the premium plus other medical expense) is over 7.5% of the adjusted gross income, part of that premium is tax deductible.   Additionally, business owners can deduct the full cost of long-term care insurance protection for themselves and designate individuals, including spouses.

From a national perspective, 26 states offer  some form of deduction or tax credit for long-term care insurance premiums.  In Ohio, there is a deduction for polity premiums.  However, it is absolutely paramount to consult with a Medicaid planning attorney, tax advisor, or financial planner when making these tax considerations.  The tax laws change constantly and the it’s important to understand your options fully.

Tax Qualified Plans vs. Non-Tax Qualified Plans

There are two types of long-term care insurance plans: (1) Tax qualified plans and (2) Non-tax qualified plans.  Tax qualified plans follow the federal HIPAA law (Health Insurance Portability and Accountability Act).   Under this plan, the insured must need assistance with two of the six daily activities necessary for daily living.  These activities include:

  • Bathing
  • Dressing
  • Eating
  • Toileting
  • Continence
  • Transferring

In order to be eligible, the individual must need assistance for a period of 90 days or greater.   These criteria help protect consumers by designating long-term care for those who truly need it.  However, the benefits received are not considered taxable income.   Tax qualified plans are guaranteed renewable.  This means that your coverage can never be cancelled, as long as you pay your premiums.

Non-tax qualified plans allow the consumer to access benefits more quickly.   Here, the insured only needs to fall under one of the above mentioned activities of daily living.  If you speak with a Medicaid planning attorney, you’ll find that these plans are a bit more expensive than tax qualified plans.   (Side note: Cleveland, Ohio Medicaid planning attorneys have been in great debate on the pros and cons of each plan but sticking with a tax-qualified plan is currently my recommendation).

There are numerous other considerations to discuss with your estate planning or Medicaid Planning attorney when thinking about long-term care insurance.  For more information, or to speak with a Cleveland, Ohio Medicaid planning attorney, contact Dan Baron at Baron Law LLC.   Contact Dan at 216-573-3723 today to set up a free consultation.  Dan is a Cleveland, Ohio attorney practicing in the areas of estate planning, Medicaid planning, and business law.

 

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Client Review
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Daniel Baron reviewed our Trust, Wills and HPOA. He provided good feedback as to what needed updating and any necessary additions to the documents. We didn’t have a FPOA which thanks to him we now have. He was able answer any questions we had and proved to be very flexible to accommodate our schedules when it came time to meet. I would recommend him to anyone looking to do Estate Planning

– Tom

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Salary Negotiations

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The Cavaliers have finally cashed in, the curse is broken, and Cleveland is rejoicing! Many Cleveland businesses are experiencing record profits, and with the Republican National Convention around the corner, the boom is expected to continue.

You’ve been working long hours, picking up the slack, and you’d like to cash in on your efforts. How do you go about asking for a raise?

1. Timing is everything.
• Don’t wait for your next annual performance review (unless it’s just around the corner).
• Do capitalize on the success of a project or period of additional responsibility.
• Don’t ask if the company is making cutbacks or laying people off.

2. Do your homework.
• Research your market value based on position, performance, and education.
• Gather data on the overall job market by talking to a headhunter or an online jobs site.
• Collect information on your performance—sales increases, customer testimonials, growth, etc.

3. Plan your conversation.
• Practice your pitch with a friend who can be tough and push back.
• Talk to your boss about upcoming challenges for the company (preferably prior to the salary negotiation) so you can discuss solutions to these challenges and how you can deliver.
• Schedule a meeting with your boss, letting him or her know that you want to talk about your career growth.

4. Stay calm.
• Don’t allow emotions into the conversation
• Use silence as a tool. Lay out your case and then pause to give your boss time to process.
• Don’t ramble on if there isn’t an immediate response.
• Be clear and specific, but not aggressive.
• Don’t give your boss a sob story of not being able to survive on what you’re making.

5. End positively
• Whatever the boss’ response, be positive. Express thanks for his or her time.
• Ask questions about what you can do in the future to be considered for a raise in the future.
• If possible, rephrase the question. If you realize that your request is not being received favorably, change the word raise to “salary adjustment” which implies market value instead of extra money.

This blog is intended for educational purposes only. It gives general information and not specific legal advice. This advice is not specific to Ohio or Cleveland. For specific legal advice, contact Baron Law at 216.573.3723 or dan@baronlawcleveland.com to speak with an attorney.