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Top Reasons For Needing a Trust

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Top Reasons For Having a Trust

When creating an estate plan, the biggest mistake people make is thinking they need to be rich in order to have a trust – that is completely false.  If you’re not Warren Buffet, you may still have other non-monetary reasons for creating a trust like asset protection, control, tax savings, Medicaid planning, and/or litigation and creditor protection.   Even if your estate is worth less than $100,000, you may still be in an ideal situation to protect your nest egg and what you’ve spent a lifetime trying to build.

Although the situations of needing a trust are infinite, here are a few most common scenarios where you might benefit from creating a trust.  You can also take a one-minute trust questionnaire here, to find out more specifically whether a trust is right for you.

Second Marriages

With divorce rates over fifty percent, the most common reason for creating a trust is where an individual is in their second marriage.  In this scenario, there is nothing preventing the remaining spouse from disinheriting children from a prior marriage.  Consider this example: Husband and Wife are in their second marriage.  Wife has two kids from a prior marriage. Husband does not have kids except for step-children of current marriage.  Wife passes away and leaves everything to Husband, remainder to two kids.  Five years later, Husband meets a much younger Pamela Anderson and gets married.  Husband creates a new estate plan naming Pamela Anderson as primary beneficiary of his estate, remainder to two step-children.  Husband dies.   Pamela then creates a new estate plan, disinheriting children.

Famous Last Words, “I would never get remarried!”

As you can see, this is a very typical example of where some level of control and strategy is needed.  A trust in this example would solve the wife’s concerns entirely.  Here, Wife could have created what is known as a QTIP trust.  In a nut shell, the QTIP would give Husband income from Wife’s estate, plus five percent (5 %) of principal each year.  When Husband dies, the estate MUST be passed to children and cannot be passed to anyone else.  In essence, Wife is able to control her estate even after she’s passed.  She has also ensured her children will never be cut out of the estate, even if it were the unintentional result of Husband.  And if this were not a second marriage, a trust might still make sense for couples wanting to keep the estate within the family and avoid remarriage concerns.

Tax Savings for Children

Receiving an estate comes with taxable consequences.  Although federal estate taxes are not normally at issue, gains on an inheritance can be quite high for children resulting in higher taxes.  For example, a child receiving $100,000 in gains might be placed in a larger tax bracket of 39.9% because their inheritance placed them over the threshold.  The simple solution here is for the child to receive their inheritance over time, opposed to a lump sum. The trust itself will pay income taxes on gains and the children can enjoy a stream of payments over time.

Asset Protection

Depending on the type of trust created, a trust can protect both the creator (you) and beneficiary of trust.  The most common asset protection trust is used for children instead of the creator.  This type of trust is known as a “revocable living trust.” This type of trust gets its name because the creator can revoke, change, or modify, the trust at any time during his/her lifetime.   After the creator passes away, the estate is placed in an “irrevocable trust,” where the trust now cannot be changed.   In other words, the terms you’ve created in trust cannot be changed after you pass away.  Usually the trust maker will set forth terms that would pay children and/or beneficiaries payments over their lifetime.  So long as there is discretion given to the trustee (usually a trusted family member or attorney) the money remaining in trust cannot be attacked by creditors or litigation.  In other words, if a child ends up in a lawsuit, the trustee can cease payments to the child so that the money is protected from the lawsuit.  The same outcome would apply if the child ends up in bankruptcy or owes creditors.

Divorce

It’s well known that in a divorce, all assets are split 50/50.  It doesn’t matter whether one spouse cheated or did something horrible to the other.  Ohio courts will divide all assets accumulated during the marriage 50/50, including an inheritance.  So, if your child inherits $1 million dollars from your estate, and then subsequently gets divorced, the ex-spouse will receive $500,000 of your money.  Using the same example above, you can protect your child’s inheritance by creating a revocable living trust.   Here again, the trustee can turn off the income stream to prevent a disgruntled son-in-law from receiving his unearned share.

Control

No matter how they’re raised, it’s not uncommon for children to be irresponsible or need at least some level of guidance.  With a trust you can create payment terms so that children don’t blow their inheritance on impulsive purchases.  For example, many trusts stipulate that children may only use funds for “health, maintenance, education, and support” until they reach the age of X, thereafter payments made over time to protect against divorce, litigation, and creditors.   This method is very common and puts parents at ease even with responsible children.

You don’t have to be rich to protect what you’ve spent a lifetime trying to build.  To find out whether a trust is right for your family, take the one-minute trust questionnaire at www.DoIneedaTrust.com.  There are a number of different trusts available and the choices are infinite.  With every scenario, careful consideration of every trust planning strategy should be considered for the maximum asset protection and tax savings.  For more information, you can contact Dan A. Baron of Baron Law LLC at 216-573-3723.  Baron Law LLC is a Cleveland, Ohio area law firm focusing on estate planning and elder law.  Dan can also be reached at dan@baronlawcleveland.com

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When Should You Start Planning For Long Term Care?

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Cleveland, Ohio estate planning attorney, Daniel A. Baron, offers information on when you should start planning for Long Term Care and including this as part of your Estate Planning:

 

When should you start planning for Long Term Care? If you are under 50, the answer is – “there is no time like the present”.  Approximately 70% of today’s population will need some sort of Long Term Care sometime within their lifetime.

What you should know about planning for the future

When in later years and you are in need of skilled services or should you require rehabilitation services, Medicare pays for this type of long term care. Unfortunately, Medicare does not pay for any non-skilled assistance with your ADL’s (Activities of Daily Life) or IADL’s (Instrumental Activities of Daily Living) which tend to make up the majority of Long Term Care.

You should start thinking now about how you are going to pay for Long Term Care as it is much more expensive than you might think.

There are a number of ways you can use to pay for your long term care. Being 50 of under, this may be the best time in your life financially to start planning for long term care, rather than after you have had a serious illness or become disabled.

You may also consider securing an Advance Directive which informs your family and other loved ones how you would like your medical matters handles, should you become incapacitated and are no longer able to communicate your wishes of your medical care.

For more information on reviewing your goals for Long Term Care as part of your Estate Planning, contact Daniel A. Baron of Baron Law today at 216-573-3723.

Medicaid Planning

Applying for Medicaid? Here’s What You Need to Know About Activities of Daily Living vs. Instrumental Activities of Daily Living

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Cleveland, Ohio estate planning and elder law attorney, Daniel A. Baron, offers the following information on the definition of ADL’s and IADL’s and how to plan on Long Term Care as part of your Estate and Medicaid Plan: As we are all well aware, there is only one alternative to aging. If you are fortunate […]

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The Marital Deduction – What are the benefits?

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Cleveland, Ohio estate planning attorney, Daniel A. Baron, offers information on The Marital Deduction as well as other Tax Planning Advice and what to make part of your Estate Planning.

What are the benefits?

The most important deduction a married couple has is the The Marital Deduction.  The amount of assets which can be passed upon death from one spouse to the other is unlimited and is also used to defer ALL estate taxes until the surviving spouse passes.  Current tax laws allow one spouse to give the other spouse assets where there is little to no tax imposed upon the transfer of these assets.  No matter what the value of the assets which are being transferred, whether it is $50,000 or $50,000,000.

What if there is a divorce?

If you happen to be divorced from your spouse, you can still pass assets to the ex-spouse after you pass with little or no tax being imposed if it is stated in the divorce decree.

My spouse is not a U.S. Citizen – Do the same tax laws apply?

The Marital Deduction is unlimited as long as both spouses are U.S. Citizens. So what happens when one of the spouses is not a US Citizen?

Should the first spouse to pass away be a U.S. Citizen and the surviving spouse a noncitizen of the U.S., unfortunately the unlimited marital deduction for Federal Estate Taxes is not available.

However, the taxes can be deferred by setting up a Qualified Domestic Trust (AKA QDOT), and having the assets pass through this specialized trust.

Should you own real property, consider adding this to the trust as the taxes will be deferred until the noncitizen spouse passes away.

For more information on The Marital Deduction and implementing other tax savings ideas as part of your Estate and Tax Planning, contact Daniel A. Baron of Baron Law to maximize tax savings upon your passing.  Contact us today at 216-573-3723.

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Creating a Business Succession Plan – Cross Purchase Agreements

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Creating a Business Succession Plan – Cross Purchase Agreements

Whether you’re planning for retirement or tragedy, having a business succession plan is imperative for business owners.  Big business or small, planning for the financial stability of your partners and employees can mean the difference between business as usual and leaving your spouse bankrupt.   Moreover, understanding the value of your business can affect your decision to sell, retire, or leave a legacy.  Cleveland, Ohio estate and business planning attorney Dan Baron has the following remarks to help you secure your financial future.

One way to create a succession plan is through a “cross purchase agreement.” Two concepts stand at the root of all cross-purchase buy-sell agreements: protection and fairness. A surviving business owner wants to be protected from interference by outsiders when a co-owner dies. Concurrently, a business owner wants to assure fair treatment of his or her heirs in the event of death.

Step One – Choose a Successor

Unless you’re selling your business – where you would normally sell to the highest bidder – picking a successor isn’t easy.  Many factors determine whether a succession plan is necessary and sometimes it can be as easy as passing the business down through a family member.  When choosing a successor, there may be several partners or family members from which the owner will have to choose, each with various strengths and weaknesses to be weighed and evaluated.  In this case, lasting resentment by some or all of those not chosen may result, no matter what choice is ultimately made.  Outside of a family business, partners who do not need or want a successor may simply sell their portion of the business to their partners in a buy-sell agreement. Talk with a Cleveland, Ohio estate planning or business succession attorney to learn more.

Step Two – Evaluate the Value of the Business

As mentioned, your succession plan may be as simple as selling it off.  But no matter whom the intended successor may be business owners must establish a set dollar value for the business, or their share of it. This can be done via appraisal by a certified public accountant (CPA) or by an arbitrary agreement between all partners involved.  Tax attorneys and business succession attorneys may also assist in the business evaluation process.  Estate planning lawyers and accountants use various metrics for evaluation business including sales, stock value, liquidity, profits, reoccurring contracts, EBITDA (Earnings before Interest, tax, depreciation, and amortization), cash flow, and more.   In addition, your estate planning attorney may evaluate your business using a number of other methods including asset based or income based evaluations.  For corporations, where the portion of the company consists solely of shares of publicly traded stock, the valuation of the owner’s interest may be determined by the stock’s current market value.

Step Three – Cross Purchase Agreements

A cross-purchase agreement is a tool used by business owners to assure that “business as usual” continues if co-owner dies. Like an entity or stock redemption agreement, the cross-purchase buy-sell agreement stipulates that:

  • A deceased owner’s estate must sell the business interest to surviving owners, and
  • The surviving owners will buy that interest.

There are no exceptions—the estate must sell and the survivors must buy.

Creating a cross purchase agreement is commonly used a usually starts with creating a life insurance policy. Once a set dollar value has been determined for the business, life insurance is purchased on all partners in the business. Then, in the event that a partner passes on before ending his relationship with his partners, the death benefit proceeds will be used to buy out the deceased partner’s share of the business and distribute it equally among the remaining partners.

A cross purchase agreement is structured so that each partner buys and owns a policy on each of the other partners in the business.  Each partner functions as both owner and beneficiary on the same policy, with each other partner being the insured; therefore, when one partner dies, the face value of each policy on the deceased partner is paid out to the remaining partners, who will then use the policy proceeds to buy the deceased partner’s share of the business at a previously agreed-upon price.

Example: How a Cross-Purchase Agreement Works

Let’s say for example that there are three partners who each own equal shares of a business worth $3 million, so each partner\’s share is valued at $1 million.  The partners are getting older and want to ensure that the business is passed on smoothly in the event one of them dies. Thus, they enter into a cross-purchase agreement. The agreement requires that each partner take out a $500,000 policy on each of the other two partners. Now, if one of the partners dies, the other two partners will each be paid $500,000, which they must use to buy out the deceased partner\’s share of the business.

One limitation to be noted here is that, for a business with a large number of partners (five to 10 partners or more), it becomes impractical for each partner to maintain separate policies on each of the others. There can also be substantial inequity between partners in terms of underwriting and, as a result, the cost of each policy.

Cross purchase agreements are just one of many ways to ensure a business’s legacy.  For more information on estate planning or business succession, contact Cleveland, Ohio attorney Daniel A. Baron at Baron Law.  Contact a lawyer today by calling 216-573-3723.  You will speak directly with an Ohio attorney who can help you with all your estate planning needs.

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What is a Charitable Remainder Trust?

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Unique Estate Planning Methods to Secure a Lifetime of Income, Save Taxes, & Benefit the Community

Most people planning for their retirement have a misconception that charitable giving is only for the wealthy.  However, there are several estate planning tools that can benefit your favorite charity while also earning you steady stream of income.  One of these tools is known as a charitable trust remainder, or “CRT.”  A CRT lets you convert a highly appreciated asset like stock or real estate into a lifetime of income. It reduces your income taxes now and may also reduce your estate taxes when you die. When the assets are sold, creators of the CRT escape the ever-daunting capital gains tax.  But best of all, a charitable remainder trust allows you help one or more of your favorite charities.

How does a CRT work?

Creators of a charitable remainder trust transfer an appreciated asset into an irrevocable trust.  It’s important to have assets that appreciate in value in order for a CRT to work effectively.  Assets that have little or no appreciation may be better off going into a charitable lead trust or charitable remainder annuity trust.  In any event, when you transfer an appreciating asset into the charitable remainder trust, it removes the asset from your estate.  Thus, no estate taxes will be due on it when you die.  Most importantly, you also receive an immediate charitable income tax deduction.

After the trust is created, the Trustee sells the asset at full market value.  Again, after the sale you will not pay capital gains tax.  The money is then reinvested and the proceeds from the reinvestment go to you for the rest of your life.  When you die, the remaining trust assets go to the charity(ies) you have chosen.  Hence the name charitable remainder trust.

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Example Using a Charitable Remainder Trust

Let’s say for example that Gail Giver (age 63) purchased some stock for $100,000.  It is now worth $500,000.  She would like to sell it and generate some retirement income.  If she transfers the stock to a CRT, Gail can take an immediate charitable income tax deduction of $90,357. Because she is in a 35% tax bracket, this will reduce their current federal income taxes by $31,625.

The trust is exempt from capital gains tax so when the trustee sells the stock for the full $500,000, all of the money is available for reinvestment.  Assume that the assets will accumulate 5% of annual growth and Gail is expected to live for another 26 years.   Using this information, that produces $25,000 in annual income which, before taxes, will total $650,000 over Gail’s lifetime. And because the assets are in an irrevocable trust, they are protected from creditors.

Example Not Using Charitable Remainder Trust

What would happen if Gail sold the assets and reinvested them herself? If Gail sells the same $500,000 in stock, she would have a gain of $400,000 (current value less cost) and would have to pay $60,000 in federal capital gains tax (15% of $400,000).  That would leave her with $440,000.

If she re-invested and earned a 5% return, that produces $22,000 in annual income.  Using the same life expectancy and 5% annual income as mentioned before, this would give her a total lifetime income (before taxes) of $572,000.   However, because Gail Giver still owns the assets in her name, there is no protection from creditors.  Looking back, without the use of a CRT, she loses $78,000 in income than if she had created a charitable remainder trust.

Comparison of Income after Sale

Without CRT       With CRT

Current Value of Stock                  $ 500,000             $ 500,000

Capital Gains Tax*                           – 60,000                0

Balance To Re-Invest                      $ 440,000             $ 500,000

5% Annual Income                          $ 22,000                $ 25,000

Total Lifetime Income                    $ 572,000             $ 650,000

Tax Deduction Benefit**              $ 0                          $ 31,625

*15% federal capital gains tax only.

(State capital gains tax may also apply.)

**$90,357 charitable income tax deduction times 35% income tax rate.

Are there other options? Of course!  Another charitable estate planning tool is called the charitable lead trust, or CLT.  A CLT is the reverse of a CRT.  This revocable trust provides income to a charity for a set number of years, after which the remainder passes to the donor’s heirs or beneficiaries.  The CLT is a good choice for those who don’t need a lifetime of income from certain assets.  The trust is often structured to get an income tax deduction equal to the fair market value of the property transferred, with the remaining interest valued at zero to eliminate a taxable gift.  Contact an estate planning attorney to learn more about charitable lead trusts.

Finally there is also a trust called the pooled income fund (PIF).  Pooled income funds are trusts maintained by public charities. The trust is set up by donors who contribute to the fund.  Just like a CRT, the donor receives income during his or her lifetime.  After the donor’s death, control over the funds goes to the charity. The biggest benefit to a PIF is that contributions qualify for charitable income deductions as well as gift and estate tax deductions.  Talk with an estate planning attorney to learn more.

As you can see, there are a number of different ways to give to your favorite charity while also planning for a secure retirement. This blog is meant for information purposes only and should not be construed as legal advice.  Contact an estate planning attorney at Baron Law, LLC for a free consultation.  Baron Law, LLC is your Cleveland, Ohio estate planning attorney. Contact Cleveland, Ohio attorney Dan Baron today at 216-573-3723

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Building a Charitable Contribution in your Estate Plan

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Estate Planning Charitable Donations

Have you ever considered incorporating a charitable donation into your estate plan?   Aside from the tax benefits, including charitable giving into your estate plan is a wonderful way to extend your legacy and show your generosity.  And contrary to public belief, charitable giving in your estate plan is not just for the very wealthy.   Through an estate planning attorney, there are several good ways to provide for your family while also giving to your favorite causes.

  1. Charitable Contributions through Your Will

The easiest and least complicated way to include a charitable contribution in your estate plan is through your will.  The amount you charitably contribute won’t reduce your income taxes, but it may decrease your taxable estate.  In addition, this may potentially increase the amount you’ll be able to leave to your heirs.  Talk with an estate planning attorney to learn more.

  1. Charitable Contributions through Your Retirement

You can also contribute to your favorite charity by donating a portion of your retirement account. Donating a retirement account is tax-effective and pretty straightforward.   A donor must simply designate the charity as the beneficiary on your account to receive the tax benefit.  Charities are exempt from both income and estate taxes.  Thus, the charity can receive 100% of the account’s value while your children or heirs receive their portion of the estate through non-retirement assets.  Consult with an estate planning attorney to learn more.

  1. Split-interest gift

Another way to make a charitable contribution is through a split-interest gift.  Through a split interest gift, you can donate assets to a charity but may also retain some of the benefits of holding those assets.  Here, the donor opens and funds a trust in the charity’s name and receives a charitable income tax deduction at the time of transfer.  Just like with other trusts, here the donor retains some rights to the property and may be able to avoid capital gains on the assets transferred.  Talk with an estate planning attorney to learn more about split-interest gifts.

Some ways to provide split-interest gifts include:

  • Charitable remainder trust (CRT): A CRT is an irrevocable trust that provides either a fixed payment or a fixed percentage to the donor (or other beneficiary) every year.  The term of the trust can for the life of the donor or a set number of years.   At a minimum, the donor must take annual payments from the trust no less than 5% but no more than 50% of the property’s fair market value.  At the end of the term, the remainder goes to the designated charity.  To maximize payments during the lifetime of the donor, the trust should appreciate value while receiving payments in the form of a percentage.   In contrast, if the trust will not appreciate in value, you’re better off receiving a fixed payment each year. Consult with an estate planning attorney to learn more.
  • Charitable lead trust (CLT): A CLT is the reverse of a CRT.  This revocable trust provides income to a charity for a set number of years, after which the remainder passes to the donor’s heirs or beneficiaries.  The CLT is a good choice for those who don’t need a lifetime of income from certain assets.  The trust is often structured to get an income tax deduction equal to the fair market value of the property transferred, with the remaining interest valued at zero to eliminate a taxable gift.  Contact an estate planning attorney to learn more about charitable lead trusts.
  • Pooled income fund (PIF):  Pooled income funds are trusts maintained by public charities. The trust is set up by donors who contribute to the fund.  Just like a CRT, the donor receives income during his or her lifetime.  After the donor’s death, control over the funds goes to the charity. The biggest benefit to a PIF is that contributions qualify for charitable income deductions as well as gift and estate tax deductions.  Talk with an estate planning attorney to learn more.

Charitable Giving is not just for the Wealthy.

There is a misconception that charitable giving is just for the wealthy; however, this is far from true.  Many people give to their alma mater or local church.  The amount does not need to be in the tens of thousands.  In fact, many people give smaller amounts by simply adding the charity in their will.  This blog is not meant to provide legal advice and is for informational purporses only.  For more information regarding wills, trusts, or charitable giving, contact Cleveland, Ohio law firm Baron Law, LLC.  Baron Law is your estate planning law firm in Cleveland, Ohio.  Call today for a free consultation at 216-573-3723.

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What is the Difference Between a Trust and a Will?

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This blog will help you understand some of the core differences between a will and trust, but it is not intended to provide legal advice.  If you’re planning for your estate, contact Dan Baron at Baron Law LLC. Call and speak directly with an attorney at 216-573-3723.

Most people have heard the terms “will” and “trust,” but not everyone knows the unique differences between the two.  Both trusts and wills are useful estate planning tools, but can serve different purposes.  Most importantly, both can work together to create a complete estate plan.

The main difference between a will and trust is that only a will passes through probate.  (Visit here for additional information on understanding probate).  Generally, probate is a process that involves the court who oversees the administration of the will and ensures the will is valid. The court will also administer the property making sure it gets distributed the way the deceased wanted.   Thus, an authenticated will will pass through probate while a trust most likely will not.  Courts do not need to oversee the distribution of a trust, which can sometimes save time and money.  In addition, many people favor a trust because they can be very private.  On the contrary, a will can sometimes become public record.

A trust is a legal arrangement where one person (or an institution, such as a bank or law firm), called a “trustee,” holds legal title to property for another person, called a “beneficiary.”  A trust usually has two types of beneficiaries — one set that receives income from the trust during their lives and another set that receives whatever is left over after the first set of beneficiaries dies.

Another difference between a will and a trust is that a living will goes into effect only after you pass, while a trust takes effect as soon as it is created.  Through probate, a will determines who will receive your property at your death and it appoints a legal representative to carry out your wishes.  This person is called the trustee.   In comparison, a trust may be used to distribute property before death, at death or afterwards.  A will covers any property that is only in your name when you die. It does not cover property held in joint tenancy or in a trust.

Both wills and trusts each have their advantages and disadvantages.   For example, a will allows you to name a guardian for children and to specify funeral arrangements, while a trust does not. On the other hand, a trust can be used to plan for disability or to provide savings on taxes. (See elderlawanswers.com for more information).

Hopefully this blog has helped you understand some of the differences between a trust and a will.  If you are planning for your estate, or would like additional information, contact Dan Baron at Baron Law LLC.   Call today at 216-573-3723. You will speak directly with an attorney who can help you decide whether a will or trust is best for your estate planning needs.