Removing your House from your Trust

There are ways to remove your house from your trust, but work with an estate planning attorney to do so while preserving the trust benefits!

Occasionally clients ask for assistance in removing their house from their trust.  They do so to facilitate refinancing the house, the client wants to add a relative to the title, to ensure the home is considered a residence for Medicaid purposes or some other similar issue.  There are a number of issues to consider before doing so as the recent nj.com article entitled “I want to revoke a trust on my house. What do I do?”  points out.  Whether it is a good idea to remove your home from your trust and actually doing so will require the assistance of an experienced estate planning attorney.

The answer to a question about how to get a house out of your trust is going to be in the trust terms themselves. However, if the terms of the trust are silent, the answer may be found in the trust laws in the state statutes.  If answering the question in general terms, the primary concern is whether the trust is revocable or irrevocable.

The first step is to determine whether the trust is revocable.   Most clients use revocable trusts, so assuming it is a revocable trust, the trustor (person who set up the trust) has the right to remove the house from the trust.  The trustee (probably the same person) can execute a deed conveying the property from the trust to the trustor.  That takes the property out of the trust.

In the majority of cases, this will solve the problem.  Also, if the property was removed to refinance, you can safely convey it back to the trust once the refinance is done.  Similarly, if a client wants to add someone to title to change where the property goes at death, it is often better to just change the trust terms to leave the residence to the beneficiary.  This is often better for taxes as well.

If the trust is irrevocable, it means that the house can’t be removed from the trust unless the terms of the trust permit it.  There are exceptions, such as asking a Court’s permission to revoke the trust or remove the property, or in some cases, terminating the trust with agreement of the trustee and beneficiaries, but these are more difficult options and not guaranteed.

Next, let’s look at the reason why the home was initially put in a trust.  It is important to keep these ideas in mind as removing the property from the trust may negate important benefits.   See here for the benefits https://galligan-law.com/category/trusts/page/6/      There may be alternatives which accomplish the same goals as well.

If the purpose was to lower estate taxes, it may make sense to remove the house from the trust. This is especially the case if the property is in a state that doesn’t have state estate taxes.  Very few states still do.  An estate rarely meets the threshold for federal estate taxes, so clients actually save taxes by removing the property from trust.

If the property is owned by an irrevocable trust for asset protection in long-term care planning, it might make sense to keep the property in the trust.  However, if you are using a revocable trust and want to consider asset protection in long-term care planning, it is often better to keep the property in your name. This is because Medicaid may exempt your residence if you own it personally.  In our office, we prepare “Lady Bird deeds” for Texas residences which allow a client to own the residence personally, and transfer it to the trust automatically when they pass away.  This works with both asset protection planning and probate planning.

If the trust owned the property for probate avoidance, the property often will be put back into the trust or conveyed at death to the trust such as with the Lady Bird deed.

In sum, there are some reasons to remove property from a trust, but doing so should always involve an experienced estate planning to preserve the benefits of the trust and to ensure your goals are met.

Reference: nj.com (Feb. 4, 2020) “I want to revoke a trust on my house. What do I do?”

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How do I Help my Parents with Money Problems

Today many people are taking care of parents. Having a discussion and boundaries between parent and child, as well as seeking professional advice, can help.

According to a 2019 study by the Transamerica Center for Retirement Studies, 8% of Gen Xers and 3% of Boomers say supporting their parents is a top financial priority in their lives.  Similarly, a study from TD Ameritrade found that 13% of Americans are supporting a parent, including 19% of millennials.  With so many individuals taking care of parents, it is important both everyone to be prudent

Next Avenue’s recent article entitled “When Your Parents Need Financial Help” says that if this is a financial priority for you, try a respectful approach to see the extent of your parents’ money issues and what you might be able to do to help.

There is one financial issue that your parents may have. They may have failed to set aside money for long-term care, because of their debts.  Ideally they would start planning well before they are dependent, but there is no time like the present to address a problem.  For long-term care assistance, ask an elder law attorney for help. We can investigate your parents’ eligibility for Medicaid or other benefits to help pay for care.  This article has a much fuller overview on those issues.  https://galligan-law.com/long-term-care-whats-it-all-about/

However, before you jump in with both feet, consider your own money situation. Remember your own finances come first, because it you don’t, you risk your own finances by overcommitting. Therefore, if you can afford to help them, you have to establish boundaries. If you have siblings, bring them into the discussion and ask about sharing the responsibility. After you figure out to what extent you can afford to help financially, reach out to your parents — with care. You don’t want to come off as criticizing or judging them for making financial mistakes or bad financial decisions.

It’s important to begin the conversation early when taking care of parents, especially financially. You also may want to refer your parents to a financial planner or to a credit counselor. If housing is a major expense, it may be time for your parents to downsize to a more affordable home. You can also look into having them move in with you.  If not a topic of discussion, perhaps you’re able to review their expenses to see what they can cut and help them find ways to improve their financial situation. You should also look into federal, state, and local resources, like benefits for which your parents may be eligible.

It may be an issue of diminishing capacity and worth discussing with your parents’ doctors.  I once had a client who almost overnight spent thousands of dollars on QVC.  She spent because it was on TV and had no concept of how much she purchased or how much she spent.  Having family involved before hand may help eliminate or reduce those issues.

After you’ve delved into all the resources, and you’re also ready to help your parents financially, make sure you incorporate all of this into your own financial plan. Instead of handing your parents cash or a check to pay outstanding bills, pay the bills yourself. This will allow you to be certain that the money is actually used for the bill, rather than something else.  You can best accomplish this as the agent for your parents under a power of attorney or as trustee of their living trust.

Many people taking care of parents also choose to provide for their parents in their estate plans. It is very common to do so, but if you do, consider leaving assets to your parents in a trust, such as a supplemental needs trust.  That way, they receive the benefit of the money while protecting assets, preserving Medicaid eligibility and avoiding many of the problems this article is addressing.

Ensure that your parents know that you have their best interests at heart, when assisting them with long-term care. Be respectful of your parents and tell them you’re not trying to take over.  Taking care of parents doesn’t have to be a fight, it should be about everyone helping each other.

Reference: Next Avenue (Jan. 30, 2020) “When Your Parents Need Financial Help”

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How the SECURE Act Impacts Your Estate Plan

The SECURE Act made major changes to beneficiary distributions you should consider in your estate plan.

The SECURE Act has made big changes to how certain retirement plans, such as IRAs, 401(k)s, and 403(b)s, distribute after death. Anyone who owns such a retirement plan, regardless of its size, needs to examine their retirement savings plan and their estate plan to see how these changes will have an impact. The article “SECURE Act New IRA Rules: Change Your Estate Plan” from Forbes explains what the changes are and the steps that need be taken.  Our firm has mentioned the SECURE Act in past blogs, such as here:  https://galligan-law.com/proposed-ira-rules-and-their-effect-on-stretch-iras/ on Kevin’s Korner and will address the impact of these changes in the future, but today I wanted to focus on some key issues as mentioned in the article.

First, the SECURE Act means changes to some existing estate plans, especially ones including provisions creating conduit trusts that had been created to hold retirement plan death benefits and preserve the stretch benefit, while the retirement plan owner was still alive.  Existing conduit trusts may need to be modified before the owner’s death to address how the SECURE Act might undermine the intent of the trust or to evaluate possible plans.

This first change will apply to many, many clients.  A typical client who may be affected by the SECURE Act is a parent creating a trust for their children’s inheritance.  These types of trusts typically serve to provide creditor or divorce protection for their beneficiaries while maximizing the tax benefits of stretching the retirement.  Now that the stretch benefit may not apply to a beneficiary, it may make sense to alter the trust to maximize asset protection instead of the tax savings that are no longer available.  If you have this situation, you definitely want to review your plan.

Another potential strategy for clients who are including charities in their estate plan be making a charity the beneficiary of the retirement account, and possibly using life insurance or other planning strategies to create a replacement for the value of the charitable donation to heirs.

One more creative alternative is to pay the retirement account balance to a Charitable Remainder Trust (CRT) on death that will stretch out the distributions to the beneficiary of the CRT over that beneficiary’s lifetime under the CRT rules. Paired with a life insurance trust, this might replace the assets that will ultimately pass to the charity under the CRT rules.  This is a more complex strategy, but may be effective for charitably minded clients.

The biggest change in the SECURE Act being examined by estate planning and tax planning attorneys is the loss of the stretch treatment for beneficiaries inheriting retirement plans after 2019. Most beneficiaries who inherit a retirement account after 2019 will be required to completely withdraw all plan assets within ten years of the date of death.

One result of the change of this law will be to generate tax revenues. In the past, the ability to stretch retirement payments out over many years, even decades, allowed families to pass wealth across generations with minimal taxes, while the retirement account continued to grow tax free.

Another interesting change: No withdrawals need be made during that ten-year period, if that is the beneficiary’s wish. However, at the ten-year mark, ALL assets must be withdrawn, and taxes paid.

Under the prior law, the period in which the retirement assets needed to be distributed was based on whether the plan owner died before or after the RMD and the age of the beneficiary.

The deferral of withdrawals and income tax benefits encouraged many retirement account owners to bequeath a large retirement balance completely to their heirs. Others, with larger retirement accounts, used a conduit trust to flow the RMDs to the beneficiary and protect the balance of the plan.

There are exceptions to the 10-year SECURE Act payout rule. Certain “eligible designated beneficiaries” are not required to follow the ten-year rule. They include the surviving spouse, chronically ill heirs, disabled heirs and some individuals not less than 10 years younger than the account owner. Minor children are also considered eligible beneficiaries, but when they become legal adults, the ten year distribution rule applies to them. Therefore, by age 28 (ten years after attaining legal majority), they must take all assets from the retirement plan and pay the taxes as applicable.

The new law and its ramifications are under intense scrutiny by members of the estate planning and elder law bar because of these and other changes. If you believe these changes affect you, contact our office at 713-522-9220 to review your estate plan to ensure that your goals will be achieved in light of these changes.

Reference: Forbes (Dec. 25, 2019) “SECURE Act New IRA Rules: Change Your Estate Plan”

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