Where there’s a will…

… there’s a way (or so they say). And, in fact, it’s true – almost everyone should have a will. Even if you have a trust. And even if you are young, of modest means, and perfectly happy with the state’s “default” plan for distribution of your property. Here’s why:

What if you have a fully-funded trust, but are killed by a drunk driver, or by medical malpractice? Your estate (NOT your trust!) could become the plaintiff in a multi-million dollar lawsuit, or the recipient of a large settlement or insurance payout. Even if you have a trust, those proceeds would be coming to YOU – and hence, to your estate – not your trust. This is just one example of why the ‘pour-over’ will is an important part of a trust plan.

Or what if you learn that you were named as a beneficiary of someone else’s estate, such as a distant relative or long-lost friend? And then, by a twist of fate, (more…)

Published in: on July 20, 2014 at 11:06 pm  Leave a Comment  

‘Worm Food or Crispy Critter’ Revisited

One of my first posts on here, a few years ago, discussed the issue of legal responsibility and authority for disposition of one’s remains. My conclusion was that the rules and governing law here in Hawaii were less than crystal clear, but that some general principles from other states’ laws, and general common law, might be applicable.

Well, Hawaii has recently enacted new legislation in this area (apparently becoming the 49th state to do so), so now we (and the courts and funeral homes) have clear legal guidance for dealing with potential disputes in this important and emotionally-charged realm. The statute lays out who has the legal priority to make the necessary decisions regarding disposition of a deceased individual’s remains, and – more importantly – also provides a legislatively-sanctioned form that YOU can use to both name an individual of your choice to make such decisions (in lieu of the default priority list, which might give the power to someone you would not elect) and to indicate any specific wishes you may have regarding disposition.

We have the form available and will be happy to help you to complete it. If you are already a client of ours, we will help you make this important addition to your existing estate plan for a nominal charge. (If you are enrolled in our Maintenance Program, the service is FREE. Yet another reason why the Maintenance Program is the best deal in town.)  If you are not already a client, give us a call and we’ll be happy to help you with all of your estate planning needs.

Published in: on October 25, 2013 at 1:12 am  Leave a Comment  

A Trap for the Unwary

A tax trap, that is. If you (1) are married, (2) have a small or moderate-sized estate (under $10 million), and (3) created a trust-based estate plan at any time in the past several decades, chances are that plan could end up costing your children or other beneficiaries a LOT in unnecessary taxes after you die.  Now, this probably does not apply to you if you live in one of a handful of states that imposes a state estate tax with a low exemption amount (CT, DC, ME, MD, MA, MN, NJ, NY, OR, RI, and TN all have exemption amounts for 2013 that are $2 million or less), in which case your planning has probably been designed to minimize those taxes, as well as the Federal estate taxes, and that may save you more in the long run.  But if you live in one of the many states that has no state estate tax (a list of states with an estate tax can be found here), or has an exemption greater than the value of your estate, keep reading to find out why your plan may be in need of a critical update. (more…)

Published in: on June 29, 2013 at 4:57 am  Leave a Comment  

Five Things to Consider Now

The end of the year approaches, and pretty soon we’ll all be busy with entertaining, shopping, and other holiday pursuits. So now’s the time to think about things that you might want to set in motion to provide a little fiscal relief for the rest of 2012 and 2013.

1. Look at your income for 2012. Is this a slow year? If so, think about things that you might have been putting off or avoiding because of their negative tax consequences. If your income is low this year, or you have a lot of deductions, maybe now is the time to take the tax hit from converting some IRA funds to Roth-IRA status, or withdrawing them entirely (if  you would be needing those funds in the near future anyway). If your income is looking low for 2012, consider shifting some deductions into 2013, by putting off expenditures until after the first of the year. Conversely, if it’s looking high for the year, think about additional deductions you might be able to squeeze into 2012, by purchasing items or pre-paying for rent or services in November or December.

2. Consider using the huge estate and gift unified tax exemption that is going to expire at the end of this year. If your estate is over $5 million, or likely to be that large when you die, then now is the time to shift some of those funds out of your estate to your children or other beneficiaries. You don’t have to give them a big check – you can place the funds into irrevocable trusts, that will protect the assets and allow them to be prudently managed, with not only their current value but all future appreciation out of your estate permanently.

3. Update your estate plan, if it hasn’t been done lately. With the extreme uncertainty over what the estate and gift tax laws will look like for 2013, you want to be sure that your planning is flexible enough to adapt to changing laws and rules, and still provide the best results for you and your family.

4. Plan to have a ‘heart-to-heart’ with your family. Why not take time over the holidays, when everyone is together and in a relaxed frame of mind, to discuss your estate planning with family members? It can be a difficult subject to broach, but a pleasant family gathering can be the perfect time to spend a little time explaining to your children the steps you’ve taken to ensure that things go smoothly if something should happen to you. Everyone’s catching up, so make sure they’re caught up on this aspect of your life too. (One way to bring up the subject is to tell your adult children that you’ve made plans for them, and ask if they’ve done the same for their families. Children can use this approach with their parents as well.)

5. Read up on the new 3.8% ‘surtax’ on certain kinds of investment income, and determine the effect it will have on your overall tax bill. Consider whether shifting some of your assets to a different investment vehicle, or converting some assets to a Roth IRA, might eliminate or reduce the ‘bite’ of that extra tax. Here’s one article that provides some ideas, to get you started.

Published in: on October 23, 2012 at 8:48 pm  Leave a Comment  

Zombie Tax – Update

Good news on the “Zombie Tax” front. This summer, the Legislature passed a new law changing the Hawaii death tax laws. Honestly, I haven’t read the law in its entirety (watch this space for a more in-depth update), but basically it changed the amount that can be passed free of Hawaii state estate tax from a fixed, $3.5 million, to a figure that tracks the Federal exemption (which is now $5.12 million, set to return to $1 million on January 1, 2013). So while the Zombie Tax is still (un)dead, at least it is a little easier to figure out, and plan for – you will either have a taxable estate (under both Federal and State law) or you won’t.

Unless you are in a civil union, of course – in which case you can’t claim the unlimited Federal marital deduction, but can claim an unlimited marital deduction for the purpose of calculating the Hawaii estate tax. Hopefully they’ll fix that soon, too – I heard that DOMA was just declared unconstitutional by the Second Circuit, looks like it’s headed to SCOTUS.

Published in: on October 22, 2012 at 4:45 am  Leave a Comment  

The Best of Both Worlds

When setting up a trust-based estate plan, married couples* in Hawaii have always had to decide what to do about their real property that was held in the special tenancy known as “Tenancy by the Entirety,” or “T-by-E” for short. That was because T-by-E property enjoys special protections, including protection from either spouse’s individual creditors. So if a couple owns property in this manner, and just one of them gets sued or incurs a debt, the creditor cannot place a lien on the T-by-E property, or force it to be sold to pay the debt. There are other special properties of T-by-E ownership as well, and together these properties generally make T-by-E the preferred form of property ownership for most married (or civil union) couples. In fact, in Hawaii, ALL kinds of property – even personal property – can be held as a Tenancy by the Entirety.

But in order to put such property into a trust, and gain all of the benefits that trust planning provides (avoidance of probate, privacy, planning to use both spouse’s tax exemptions fully, providing a smooth transition in the event of death or incapacity), the owners had to give up the benefits conferred by the “T-by-E” tenancy. So couples owning T-by-E property have always had to choose between keeping their property in T-by-E (and risking a probate if they should die at the same time, or if the survivor should die before transferring the property into his or her trust, or creating a ‘Transfer on Death Deed’), and putting it into their trust(s) and losing the special benefits of T-by-E ownership.

But now they no longer have to make such a choice. And if you are in this situation, and previously set up a trust but elected not to put your home or other T-by-E property into your trust (or separate trusts), it’s time to reconsider that choice.

Why the change? Because this summer, our State Legislature passed a new law, which allows T-by-E property to be placed into the owners’ joint revocable trust (or, if they have separate trusts, 50% into each spouse’s or parther’s trust), and KEEP all of the protections afforded by the T-by-E form of ownership. To get the benefit of this new law, certain formalities must be complied with. If you put your property into a trust before July 2012, then you will have to transfer it BACK to your names as a “Tenancy by the Entirety,” and then put it back into the trust, to regain the protections of T-by-E. (But that’s not difficult; both deeds can  be prepared at the same time.) It may be necessary to change the name of your trust, and there is certain language that must be included in the deed in order for the new law to apply.

So, if you have a trust, or have been thinking about getting one, and also own real property here in Hawaii (or in one of the other states that recognizes the T-by-E form of ownership), it is definitely worth looking into this new law that allows you to now have “the best of both worlds.”

*This article also applies to civil union partners (who enjoy all of the legal rights of married couples in Hawaii), and those in “reciprocal beneficiary” relationships.

Published in: on October 22, 2012 at 4:21 am  Leave a Comment  

Hot Off the Presses: 2 New Laws

Hope you are all enjoying this lovely Memorial Day weekend. I am, thanks in part to having just learned about two new laws that have been sent to the Governor for signing. Each of these laws, if passed, will make our planning here in Hawaii much easier.

The first of the two actually solves a common dilemma for married couples (and reciprocal beneficiaries) – whether to continue to hold property as “Tenants by the Entirety,” keeping the creditor protection provided by that type of tenancy, or to put the property into a revocable trust, losing the T-by-E characteristics but obtaining the advantages of the trust. If this law passes, then it will no longer be necessary to choose; a couple will be able to put their “T by E” property into their trust (or even separate trusts), and still keep the creditor protection afforded by the Tenancy by the Entirety form of ownership.  (There are a few ‘hoops’ that have to be ‘jumped through’, however, so it is critical that this be accomplished with the assistance of a knowledgeable attorney – among other things, the trust(s) must be named properly, and there must be special language in the property deed.)

Couples who have already placed their property into trust(s) will probably have to re-deed it back into Tenancy by the Entirety, possibly rename their trust(s), and then put the property back into the trust(s), to get the benefit of the new law. Still, it will be great to have this extra option in our planning toolbox here in Hawaii.

The other new statute is yet another “second try” law, a phenomenon that seems to be getting more common. First there was the Asset Protection Trust law, which was horrible when first passed in 2010, and then not-so-bad after the Legislature fixed it up in 2011. Now we have “Hawaii Estate Tax, Version 2.0,” which seems to fix some of the more complicated and difficult-to-implement (not to mention plan for) aspects of the Hawaii Estate Tax (referred to in a previous post as the ‘Zombie Tax’). Although I have only perused it VERY briefly, and much more study is necessary, its major thrust seems to be bringing the Hawaii exemption in line with the Federal Estate Tax exemption, so that we will once again not be a “decoupled” state. This will make planning easier, as the trust provisions that help married couples eliminate tax on the death of the first spouse will no longer have to take into account a Hawaii exemption that could be lower or higher than the Federal exemption.

Now, if we could just get some certainty and stability in the Federal Estate Tax laws, we might be able to relax a little about all this tax nonsense and focus on what’s really important – helping people pass on their legacies, memories, and values to the younger generations.

 

Published in: on May 27, 2012 at 8:57 pm  Leave a Comment  

The Zombie Tax

Years ago, Hawaii had an estate tax, but it was a “pickup” tax – the amount of the tax was offset by an equal credit against Federal tax, so it was not “felt” by the heirs as a separate tax. Then, the credit was eliminated, and the tax went with it.  But in 2010, it rose from the dead, like a zombie, and while it’s not hungry for brains, it IS hungry for a nice, juicy piece of the estate you were hoping to leave to your kids and other beneficiaries.  Here are a few tidbits about this ‘zombie tax':

- The tax ‘kicks in’ when your total estate (which includes all of the property and assets you leave behind, including your retirement accounts and often the full proceeds of life insurance payable on your death) is valued at $3.5 million or more.

- Although Hawaii has no gift tax, due to a quirk in the way the law is written, your heirs may still end up paying Hawaii estate tax on your lifetime gifts, after you die. So you may have to include those gifts when determining whether the tax will apply to your estate.

- The Federal estate tax now has an exemption of $5 million per person (until 12/31/2012).So, you may not have an estate that is taxable by the IRS, but it may still be taxed by the state of Hawaii.

- Although (until 12/31/2012, if not extended) you may be able to use your deceased spouse’s unused FEDERAL exemption (that is, if he or she used less than the full $5 million exemption when he or she died, before you), there is no such “portability” of the Hawaii exemption. So if a couple does not plan properly, some of their total $7 million Hawaii exemption ($3.5 mil/spouse) could be wasted, and tax paid unnecessarily.

- If you (and your spouse together, if you’re married) have property worth more than $3.5 million, and you have will(s) or trust(s) that were prepared before 2010, your heirs may end up having to pay a hefty Hawaii estate tax if you don’t have your documents REVIEWED and UPDATED to plan for this ‘zombie’ tax.

- Properly drafted documents can help you to avoid any tax (even the zombie tax) when the first spouse dies, and to use both exemptions fully, to avoid paying any unnecessary tax.

- There are ways to avoid or minimize the taxes paid (both Federal and State), even you have a very large estate.

So, if you have not had your documents reviewed by an experienced estate planner in the past two years, you should do it now – or the Zombie Tax may devour your estate!

Published in: on August 15, 2011 at 7:35 am  Leave a Comment  

Hawaii Asset-Protection Trusts, Rev. 2.0

Well, despite having royally screwed it up the first time, it seems the state legislature has finally put together asset-protection trust legislation for Hawaii that is not altogether horrible. Although not quite in the league of Nevada, Alaska or South Dakota, Hawaii’s new domestic asset protection trust will no doubt be appealing to many who would like to have some home-grown protection for their local real property, and perhaps for other assets as well.

The new, improved “Permitted Transfers in Trust Act,” effective July 1, 2011, provides a welcome alternative for Hawaii residents, and non-resident owners of Hawaii real property, who are looking to shelter some of their assets from future creditors. Unlike the prior version of the law (which had much in common with many “1.0” versions of software, i.e., lots of bugs), the new law allows real estate to be put into a Hawaii asset-protection trust; eliminates the requirement that the trust property comprise no more than 25% of the settlor’s net worth; and – most significantly – repeals the 1% tax imposed on transfers into these trusts, which had rendered the prior law “dead on arrival”.

The new law allows the creation of an irrevocable trust, the corpus of which will, after two years, be protected from all new claims against the settlor except for  specified exceptions: alimony or child support; property division on divorce, IF the transfer into trust was made during the marriage or in some cases, within 30 days prior to it; personal injury or property damage claims arising from acts that occurred before the transfer into trust; debts secured (expressly or impliedly, not exactly sure how that will be interpreted) by trust property; and tax liabilities.

The settlor may retain significant powers and rights, including the power to veto distributions, to serve as investment advisor, to replace a trustee or advisor, a testamentary limited power of appointment, the right to all income (or to a unitrust amount not to exceed 5% annually), and the right to distributions in the discretion of the trustee, without losing the desired creditor protection.

Even if creditor protection is not required or desired, a trust that conforms to the statute may be of perpetual duration – thus, obtaining all of the benefits of a trust structure for multiple generations (i.e., a dynasty trust).  Specific allowance is made for the necessary provisions of a QPRT or GRAT, so that those types of trusts can also take advantage of the benefits conferred by the new statute. And, property held by a married couple as ‘tenants by the entirety’ will not lose the benefits of that tenancy when it is put into one of these trusts.

If you are concerned about the vulnerability of your property – including what we all hold so dear, that “little piece of Hawaii” that is our home or our living, in the form of business or rental property – to potential, future claims of creditors, OR if you would like to create a permanent legacy for your family in the form of a dynasty trust, that can carry the benefits of your hard work or good fortune through many generations, you might want to consider setting up a Hawaii asset-protection trust.   It is never too soon to get that two-year ‘statute of limitations’ running!

Published in: on August 15, 2011 at 7:09 am  Leave a Comment  

Is the IRS your favorite charity?

(… or, How to save some of those pesky taxes on IRA conversions, while also benefiting the charities of your choice.)

If you converted some or all of your IRA accounts to Roth IRAs in 2010, or plan to do so this year or in the future, you will be looking at a hefty add-on to your income tax bill in the near future. If you converted in 2010, and accepted the default of deferring the income recognition to 2011 and 2012, you may not have been thinking about those checks you will have to write to the IRS in 2012 and 2013.  But alas, time marches ceaselessly forward, and you’ll soon be feeling that deferred pain.

So, what if I told you that instead of paying all that cash over to the IRS, you could donate a chunk of it to your favorite charity instead?  That you could send it to the Red Cross to help with the Japan relief efforts, to the SPCA to save little puppies and kittens, to an organization that fights cancer, AIDS, or another nasty disease? Now maybe with our deficit being what it is, you might feel OK about sending your check to the IRS. But if you’d rather support your church, school or another tax-exempt charity over the next several years, while getting a hefty income tax deduction now to offset that pesky Roth income, read on. (more…)

Published in: on June 27, 2011 at 10:59 pm  Leave a Comment  
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