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Cleveland, Ohio estate planning attorney

Grantor vs Non-Grantor Trusts

Cleveland, Ohio estate planning attorney, Daniel A. Baron, offers information on the differences between and Grantor and a Non-Grantor Trusts and further considerations to as part of your Tax and Estate Plan:

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Understanding tax benefits and pitfalls of a trust and putting together a trust which is most beneficial for your personal situation is best left to an experienced trust attorney who can explain the differences in trusts and customize your Estate Plan.

Consequently, understand that the term used; Grantor Trust and Non-Grantor Trust are important.  These terms mean very different things but are both associated with tax implications.

The Grantor is the party who establishes the trust and maintains control while living and mentally capable.

Some examples of Grantor Trusts

  • Revocable Living Trust
  • Dynasty Trust
  • Grantor Retained Annuity Trust (GRAT)
  • Spousal Access Trusts
  • The majority of Irrevocable Trusts
  • Defective Grantor Trust (IDGT or DIGIT)

When setting up your trust as part of your Estate Planning, tax planning is an integral part of each and every plan and is as individual as you are.

Planning for Tax implications

How is the trust going to be taxed? Does the American Tax Relief Act of 2012 (ATRA) affect the taxes of your trust?  By setting up a Grantor Trust you can realize a number of tax advantages.  Some of these advantages are but not limited to:

  • Sell assets to the trust and not have to pay for the gains of the sale
  • Loan money to the trust – keeping in mind that the trust must pay the minimal IRS interest rate; however the income recognized from the interest is not taxable to you
  • The trusts income tax, paid by you (the Grantor), is not viewed as a gift to the trust

Plain and simple, the assets of the trust grows, which in turn benefits the beneficiaries without paying income tax. Essentially this is a tax free gift.

Non Grantor Trust

A Non-Grantor Trust is where the donor of the assets relinquishes all control within the trust. The donor of the trust funds is not a beneficiary or a trustee and has no input on how the funds are disbursed or controlled.  When the donor establishes a Non-Grantor Trust (aka irrevocable trust) they give up their rights to amend, revoke, or terminate the trust as this now becomes the functions of the trustee(s) either acting by themselves or with a Trust Protector.

Although the assets used to establish the trust were once owned by the donor, they are now owned by the trust. Any income being generated from the assets now is the sole responsibility of the trust.  As is with the Grantor Trust, any distribution to a beneficiary must now the proper IRS forms issued and provided to the recipient.

When a non-grantor trust is established it becomes a taxable entity and a Federal Employer Identification Number is issued. This also means that an income tax return needs to be filed on behalf of the trust each year.

Understanding tax benefits and pitfalls of a trust and putting together a trust which is most beneficial for your personal situation is best left to an attorney who can explain the differences in trusts and customize your Estate Plan. Contact Daniel A Baron of Baron Law Cleveland, Ohio at 1-216-573-3723.

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Incorporating Long Term Care to Avoid Accidents and Falling

Cleveland, Ohio estate planning and elder law attorney, Daniel A. Baron, offers the following information on Long Term Care and incorporating it into your Estate Planning:

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If you are over aged 65, a fall could leave you incapacitated or worse, it could be fatal. Having a Non-fatal fall could leave you unable to care for yourself for either a short period of time or a long period of time.  Should this happen, who is going to pay for your Long Term Care?

One in every three Americans falls each year. Falls for the elderly are the leading cause of non-fatal and fatal injuries for those aged 65 or older.

If you happen to fall you run the risk of:

  • Head Injuries
  • Broken Bones
  • Hip fractures
  • Significant loss of independence

If you should take a fall and you are over the age of 75 the chances of you being admitted to a skilled nursing facility are four times greater.

Even if you should fall and do not sustain a major injury, you become fearful of falling again and thus becoming less active. With this said, there are steps you can take to reduce your risk of falling.

Information Source – National Council on Aging

Six steps to Reduce Your Risk of Falling

In order to help your aging loved one, friend, or neighbor follow these steps to reduce their risk of falling.

Enlist their support in taking simple steps to stay safe. For example:

  • Ask your aging loved one, friend, or neighbor if they have a concern about falling.
  • Although many older adults recognize the risk of falling exists, they do not believe it will happen to them, or if they fall they will not be hurt – even if they have fallen in the past.
  • A good place to start is by sharing NCOA’s “Debunking The Myths of Older Adult Falls”. If they show a concern about falling, dizziness, or balance suggest they discuss it with their Health Care provider who can assess their risk and suggest programs or services that could help

Discuss current health conditions

  • Ask your aging loved one, friend, or neighbor if they are experiencing problems managing their own health
  • Ask whether or not they are having trouble remembering to take their medications, or are they experiencing any side effects
  • Ask if it is getting more difficult for them to do things they used to do easily
  • Ask if they are taking advantage of ALL the preventative benefits now offered under Medicare such as the Annual Wellness visit. Encourage them to speak openly with their health care provider about ALL their concerns

Ask about their last eye checkup

  • If your aging loved one, friend, or neighbor wears glasses or contact lenses, make sure that their prescription is current and they are using their glasses or contact lenses as advised by their eye doctor
  • Keep in mind that wearing tint changes glasses or contact lenses can be hazardous when going from bright sun into darkened buildings and homes. A simple strategy is to change glasses upon the entry into a building OR stop until the tint has changed
  • Bifocals can also be problematic on stairs, so it is VERY important to be extra cautious on the stairs. For those already struggling with low vision, consult with a low-vision specialist for ways to make the most of their eyesight.

If you are noticing your aging loved one, friend, or neighbor is holding onto the walls, furniture or someone else while walking or if they have difficulty arising from a chair:

  • These are signs that it might be time to see a physical therapist
  • A trained physical therapist can help your loved one improve their balance, strength, and gait through exercise
  • They may also suggest that your loved one use a cane or walker. The physical therapist will also offer guidance on how to use these aids.  Make sure you heed their advice
  • Poorly fit aids can actually increase your risk of falling, so make sure that all aids are fitted correctly

Talk about their medications

  • If your aging loved one, friend, or neighbor is having difficulties managing their own medications or they are experience side effects, encourage them to discuss their concerns with their doctor or pharmacist
  • Suggest they review their medications each time they get a new prescription
  • Your loved one may find it useful to use a chart of some sort to keep track of their medications and their scheduling. Adding a time medication dispenser that can be refilled every week or month by a family member, friend or neighbor can promote peace of mind and ensure that medication is being taken as prescribed
  • Be aware if your aging loved one, friend, or neighbor is taking non-prescription medication that may contain sleep aids – including painkillers with “PM” in their names. These can contribute to balance issues and dizziness.  If your aging loved one is having sleeping difficulties encourage them to speak with their health care professional for different alternatives

Do a walk-through safety assessment of their home

There are many simple and inexpensive ways to make a home safer. For Professional Assistance, contact an Occupational Therapist.  Some examples for making your loved ones home safer:

  • Lighting: Increase lighting throughout the house especially at the top and bottom of stairs.  Ensure that lighting is readily available when they are getting up in the middle of the night
  • Stairs:  Make sure there are two secure railings on both sides of the staircase
  • Bathrooms:  Install Grab bars in the tub/shower area and near the toilet.  Make sure that grabs bars are installed in places where your loved one will be able to use them as intended.  Consider installing an ADA toilet which has a higher seat then standard toilets.  Perhaps having a shower chair would help as well as installing a hand held shower.

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

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QDOT – What is it and should I have one?

Cleveland, Ohio estate planning attorney, Daniel A. Baron, offers information on a Qualified Domestic Trust and the benefits realized from including this as part of your Tax and Estate Planning:

 

 

The specific goal of a Qualified Domestic Trust (or QDOT) is to defer Federal Estate Tax on assets which are transferred from a spouse who is a US Citizen upon their death to the other spouse who is not a citizen of the US. If your marriage consists of both a US Citizen and a non US Citizen and your assets are minimally several million which the non US Citizen spouse has the possibility of inheriting,  it would be wise for you to secure a Qualified Domestic Trust.

What are some of the tax issues for spouses who are not US Citizens?

In the absence of Qualified Domestic Trust the non-citizen spouse now has to pay Federal Estate Tax on any assets transferred from the US Citizen spouse into the non-citizen spouse’s name, just as any other party who inherits assets from any other person when they pass.

 

What happens when no Qualified Domestic Trust exists and the spouse who is the

US Citizen passes away first?

If the surviving spouse is a non-citizen of the US, then as stated previously, Federal Estate Taxes will need to be paid on any assets which transfer to the surviving spouse. The surviving spouse would not have the unlimited Marital Deduction as it is should both spouses be US Citizens.  Paying the Federal Estate Taxes is the government’s way of collecting taxes so that the non-citizen spouse does not take all the assets back to their native country and avoid paying the necessary taxes.

There are two avenues which could be taken to avoid paying any inheritance tax:

  • Become a US Citizen
  • Set up a Qualified Domestic Trust

There are a number of requirements however set forth for set up a Qualified Domestic Trust after the spouse who is a US Citizen passes away, but it can be done. If your family situation is such that one spouse is a US Citizen and the other is not and has no intention of becoming one, it would be most advantageous for you to contact an Estate Planning Attorney to set up a Qualified Domestic Trust while you are both still living and of sound mind.

For more information on setting up a Qualified Domestic Trust as part of your Estate and Tax Planning, contact Daniel A. Baron of Baron Law to maximize your Federal Estate Tax savings upon your passing at 216-573-3723.

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What is a Trust Protector?

Cleveland, Ohio estate planning attorney, Daniel A. Baron, offers information on a Trust Protector and their Role and benefits realized as part of your Comprehensive Estate Plan:

Who is a Trust Protector?

As it sounds, a Trust Protector is appointed to oversee the assets in the trust and to protect against the trustees so that they do not give into temptation and embezzle from the trust or squander the assets of the trust with unnecessary fees or legal issues.

Having a Trust Protector typically was only used with the upper echelons of society but some may say that if there is a trust, there should be a Trust Protector.   It is wise to appoint a Trust Protector especially in cases that the trust will be a long term trust such as:

  • Trust for your spouse so that they will live a certain lifestyle after you pass
  • Your children, grandchildren, or other heirs, that need to reach a goal in life prior to releasing the funds of the trust
  • Charitable goals – what is your legacy

Upon setting up a trust and should the trust have more than one trustee, there is a possibility of issues coming up which are believed to not be in the best interest of the trust. Having a Trust Protector can potentially quash any conflicts which may arise.  In addition, a Trust Protector can be very beneficial in other instances where conflict may arise.

Can I appoint anyone to be my Trust Protector?

You can appoint anyone you would like to protect your trust. Some ideas may be:

  • Someone who is close to your family
  • A Certified Public Accountant (CPA)
  • An attorney
  • Corporate Entity or Bank
  • Financial Planner CFP

What are the duties of a Trust Protector and Why would I need one?

Additional duties of a Trust Protector are, but not limited to:

  • If the trustee or trustees are performing in such a manner that is not advantageous to the beneficiaries of the trust OR are being unresponsive, the Trust Protector has the authority to remove the trustee and replace them if necessary.
  • Should any disputes or conflicts arise between the trustees, the Trust Protector’s Role is to resolve the disputes.
  • If there is a change of status with any of the beneficiaries, it would be the Trust Protector’s responsibility to update the trust accordingly.
  • Should there be any new beneficiaries which needed to be added, the Trust Protector would make the necessary changes to the Trust.
  • The Trust Protector also has VETO power of any financial / investment decisions which may not be in the best interest of the trust and it’s beneficiaries.
  • If the laws governing trusts change, the Trust Protector has the ability to amend the trust if the changes are advantageous to the trust.
  • The Trust Protector can manage the amount of money the trustees can spend by setting a dollar amount and/or requiring two signatures on a check before it can be released. The dollar amount will be predetermined upon the penning of the trust so that all the trustees and the Trust Protector are aware of this stipulation.
  • The Trust Protector has the ability to dissolve the trust for specific reasons such as;

 

  • There are no more funds in the trust as they have been released to the heirs as set forth in the trust and will

 

  • The goals of the heirs have been met and all the funds are released therefore leaving no assets in the trust

It is wise to put in writing what role you would like the Trust Protector to have handling your assets. To start a discussion  on your personalized comprehensive estate plan, including; living wills, trusts, power of attorney, or a pour-over will, or further questions on a Trust Protector, contact Daniel A. Baron of Baron Law.  Baron Law provides estate planning services for the greater Cleveland, Ohio area.  Contact us today at 216-573-3723.

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What Recourse Do I Have if My Power of Attorney is Stealing From Me?

Cleveland, Ohio estate planning attorney, Daniel A. Baron, offers the following helpful answers to Powers of Attorney:

Can the Power of Attorney be used by the agent to take my money or property without my permission?

Unfortunately, you can run the risk that the agent you choose to give your Power of Attorney could abuse the power by spending your money or taking your money without your knowledge or worse without your permission. Because the agent can use the Power of Attorney to access your bank account and sell your property, it is prudent  that you not give your Power of Attorney to anyone you do not trust.  If you happen to have an unscrupulous agent, it can be very challenging to get back funds or property taken by the agent, because the agent usually has no money left to return as they have used it all for their benefit.  The person acting as your Power of Attorney has the power to sell your property, or mortgage it.  It cannot be stressed enough that you chose your Power of Attorney very wisely.

 

If I think someone is using my Power of Attorney to steal from me, what can I do?

If you are suspicious that your agent is abusing their powers, revoke the Power of Attorney immediately.

Next, without delay, notify all banks, brokerage firms, or other financial institutions in which you have money that you have revoked the Power of Attorney.

Finally, go to the probate court. You may either by yourself or through an attorney.  Demand that the agent you suspect of absconding with your funds file a detailed account showing how your money was spent. A filing fee will need to be paid by you and you may need to possibly pay the agent for the cost of preparing the accounting documentation. Next, the court will hold a hearing at which time you can challenge the any or all of the information given in the detailed accounting. Ultimately, if the court finds the agent took your money without your authorization, you can sue the agent and/or possibly press criminal charges.

 

Can I revoke my Power of Attorney?

The Power of Attorney cannot be used unless the agent has it or it, or at least a copy and either you or they have given to banks, financial institutions, or others so that they think you want the agent to act on your behalf. If you have not given the Power of Attorney to anyone, you can revoke it by destroying the document.

If the eventuality the Power of Attorney has been given to the agent, an institution, or has already been recorded, you should execute immediately a revocation of the Power of Attorney that is witnessed and acknowledged in the same manner as the first Power of Attorney. Then; just as you distributed the Power of Attorney initially, you will need to furnish a copy of the Revocation to the banks, brokerage firm, or any other financial institution, and anyone else that may have a copy of the original Power of Attorney form that they know the Power of Attorney is no longer valid.

A Power of Attorney is only one of the many parts to a comprehensive estate plan. For information regarding living wills, trusts, power of attorney, or a pour-over will, or further questions on Powers of Attorney, contact Daniel A. Baron of Baron Law today at 216-573-3723.

 

Living Will

Do I need a Living Will?

Cleveland, Ohio estate planning attorney, Daniel A. Baron, offers the following regarding living wills:

Before you can answer this question you must first understand what a Living will is and what purpose it serves.

A Living Will is one form of Advance Directive which clearly defines your wishes for medical care should the following occur:

A Living Will clearly states your health care intentions.  This document allows you to make decisions while still cognitive such as:

  • Whether or not you wish to be put on life support, even if for a very short time
  • Would you would like to receive pain medication of any kind
  • Is it you desire to have any nutrition available by means of a feeding tube

The Living Will document also allows you to list any further specific instructions for your care if you become fully incapacitated.

Another form to consider securing in conjunction with a Living Will is a Health Care Proxy which is a specific Power of Attorney. A Health Care Power of Attorney authorizes a specific person you have chosen to act on your behalf to make all medical decisions (or to make sure that your medical wishes in your Living Will that you have set forth are followed), in the eventuality that you are no longer able to make these decisions yourself.

It might be in your best interested to have both a Living Will and a Power of Attorney which will set forth comprehensive guidance when it comes to your medical care in the end stages of life.

Things to consider when completing these documents:

  • Who do I want and trust to make my health care decisions when I am no longer capable of making them on my own?
  • What kind of medical treatment DO I or DON’T I want?
  • How comfortable do I want to be when my life’s journey is coming to an end?
  • How do I want people to treat me?
  • What do I want my loved ones to know?

Having a Living Will is only one part to a comprehensive estate plan.  For information regarding living wills, trusts, power of attorney, or a pour-over will, contact Dan Baron of Baron Law to make an appointment at 216-573-3723.

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Testamentary Trusts

Cleveland, Ohio Estate Planning Attorney Dan A. Baron offers the following on Testamentary Trusts.

Testamentary trusts are a great way to plan and safeguard your assets for minor children.  In other uses testamentary trusts can be used for beneficiaries with addictions or disabilities.   Unlike most trusts, testamentary trusts are incorporated into your last will and testament and are funded only after the creator’s death.   The biggest reason people use testamentary trusts is because they are able to control their assets after they die.

For example, if Mom and Dad die in a car accident leaving behind two young children, they would not want their $500,000 estate being left in the hands of nine and ten-year old.    Instead, Mom and Dad create a last will and testament and incorporate language that appoints a guardian for the children and trustee of their testamentary trust.   The trust parameters outlined for the Trustee to follow often include broad language like “to provide for the health, education, and well-being of my children.”   The trustee controls the money and then distributes it to the children as they need it.  Most often, the remaining balance left in the trust is distributed to the children once they reach the age of 25.

It’s important to remember that unlike most trusts, testamentary trusts do not avoid probate.  Instead, testamentary trusts are created after the probate process is complete.  Assets left from probate fund the trust and the trustee is then responsible for carrying out the wishes of the deceased.  Once the assets are in trust, they are protected from creditors and litigation.  However, there is no asset protection for the creators before death.

To learn more about testamentary trusts and how they might be beneficial for your estate plan, contact Baron Law LLC today at 216-573-3723.  You will speak directly with an attorney who can assist you.

 

The information contained in this article is provided solely for convenience purposes only and all users thereof should be guided accordingly. This article is not meant to provide legal advice. If you wish to receive a legal opinion or tax advice on the matter(s) in this report please contact our office and we will speak with you directly. 

 

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Difference Between a Trustee and Executor Within a Testamentary Trust

Cleveland, Ohio Estate Planning Dan A. Baron Explains the Difference Between an Executor and Trustee:

Estate planning can be complicated and sometimes difficult to bear when charged with the responsibility as executor or trustee of an estate. If you have minor children, then you probably have set up some form of testamentary trust coupled with your will and power of attorney. Within these estate planning documents, there are designated executors and trustees that have been carefully selected to administer your estate after you pass. It’s important to talk with your executor and trustee and let them know their responsibilities after your’re gone. Below is a quick summary of the difference between executor and trustee of a testamentary trust.

The Executor’s responsibility is to liquidate or otherwise gather all estate assets, pay any outstanding bills and then transfer assets from the name of the decedent to the beneficiaries named in the Will (most often the decedent’s children). They also make any necessary filings with the court and attend any court hearings. Most Executor’s elect to use an attorney to help them with this so the process runs smoothly. Once all assets are in the name of the beneficiary, the Executor’s job is done. The complexity of the estate will determine how long the Executor is needed.

In comparison, a Trustee receives the assets from the Executor and then, with court approval, invests the trust assets in savings account, investment accounts, or whatever they deem appropriate. Most importantly, the Trustee manages the funds and makes distributions to the trust beneficiary (usually children) when needed (i.e. to pay school tuition, living expenses, doctor bills, etc.). Most clients set a maturity age of 25. When the children reach the age of 25, the trustee distributes the balance of the trust funds and that particular child’s trust is terminated. The Trustee will be required every two years to make reports to the court as to the value of the trust. As you can imagine, the length of time the Trustee will be needed will depend upon the age of the children.

If you would like to learn more about the responsibilities and an executor and trustee, or have questions, contact our office at 216-276-4282. You will speak directly with an Cleveland, Ohio estate planning attorney who can help you set up a trust, will, power of attorney, medicaid planning, and more. If you would like to attend one of our FREE seminars, please visit this link.

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Springing and Durable Power of Attorney – What’s the Difference?

Springing and Durable Power of Attorney – What’s the Difference?

When planning for retirement and your estate plan, it’s important to understand how your power of attorney works.  Generally, there are two kinds: springing and durable power of attorney.  A springing power of attorney takes affect if you become incapacitated.  In comparison, a durable power of attorney becomes effective as soon as you sign the document, and continues to be effective if you are incapacitated.

Having control with a power of attorney is a big deal.  The person holding this power may have the ability to control your financial assets, medical decision, and more.  For example, a giving someone financial power of attorney powers gives them the right to make financial decisions on your behalf.  This person might trade stocks, cash in annuities, or transfer assets.  If this person has durable power of attorney, they can make these decisions even if you are not incapacitated.   State laws differ on the particulars of power of attorney, and some financial institutions may require their own versions.

With a springing power of attorney, it’s important to clarify exactly what triggers someone taking over your abilities to make decisions.  Typically, it’s when the principal becomes disabled or mentally incompetent.  However, it could be used in a variety of situations.  For example, someone in the military might create a springing power of attorney form to be prepared for the possibility of being deployed overseas or disabled, which would give a relative powers to handle financial affairs in these specific situations only.

Who determines when someone is mentally incompetent or incapacitated?  This question varies state to state.  However, in general there is usually a formal procedure that your attorney can create.  It’s smart to note in your legal document exactly what the principal considers “incapacitated” to mean.  Often times, people who create a power of attorney form include language that requires a doctor’s certification or mental incompetence or incapacitation.

For more information regarding power of attorney and other estate planning methods, contact Cleveland estate planning attorney Dan Baron at Baron Law LLC.  Baron Law is a Cleveland, Ohio area law firm practicing in estate planning, business, and family law.  Contact Dan Baron today for a free consultation at 216-573-3723.

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What is a Trust?

Cleveland, Ohio Trust Attorney

What is a trust?  What is the difference between a revocable trust and an irrevocable trust?  Why might my estate plan include either one?

Simply put, a trust helps manage your assets and provides clarity for the future.  A trust is a tool that may be used to achieve your financial goals.  There are different types of trusts for specific situations, from special needs trusts for family members with disabilities to charitable trusts that allow charitable giving while maintaining income as needed.  Trusts also fall into the categories of revocable (or living) trusts and irrevocable trusts.

Differences between a revocable and irrevocable trust

  1. Changes or modifications

An irrevocable trust generally cannot be changed or modified under any circumstances, whereas a revocable trust can be modified or revoked at the discretion of the Grantor.  However, the Grantor may maintain a special power of appointment in an irrevocable trust giving him or her the freedom to modify the beneficiaries without changing the benefits.

  1. Property ownership and asset protection

Assets placed in an irrevocable trust no longer belong to the Grantor.  The trust has its own identity.  The Grantor may still use assets for his or her benefit as specified in the trust, but he or she does not own the assets (much like leasing). Creditors cannot claim assets from the Grantor in this case, as the Grantor does not own the assets.

In a revocable trust, the Grantor retains complete ownership of the property.

  1. Estate taxes

As seen above, in an irrevocable trust, the Grantor no longer owns the property.  Thus, it is not included in the value of property at the time of death.  A revocable trust does not change ownership, and thus the value of the property would be included at the time of death. However, keep in mind the unlimited marital exclusion.  Surviving spouses may effectively pass their estate, tax free, to their spouse.  In addition, the 2016 estate tax exclusion is $5.34 million.

  1. Trustees

With an irrevocable trust, the Trustee should be an independent person chosen by the Grantor.  The Trustee should not be a family member, as this could create conflict.  However, with a revocable trust, the Grantor most often serves as the Trustee, maintaining control over the assets in the trust.

  1. Income tax effects

With an irrevocable trust, the trust is its own entity and typically has its own tax identification number and is responsible to file a 1041.  For a revocable trust, the Grantor still owns the assets and files everything on their 1040.

As seen above, the main purpose of an irrevocable trust is to protect assets.  The main purpose of a revocable trust is to avoid probate, simplifying the transfer of assets.  Determining the reason for the trust will allow the Grantor to make an informed decision about what type of trust is best for his or her situation.

And as with all legal and financial planning, laws change, so a consultation with an attorney is advised before creating a trust or any estate plan.  For more information, or to speak with an expert, contact Baron Law LLC at 216-573-3723 or email Dan@baronlawcleveland.com.