Trusts, Estates and Succession

The Internal Revenue Service today urged taxpayers to resolve their significant tax debts to avoid putting their passports in jeopardy. They should contact the IRS now to avoid delays in their travel plans later.

Under the Fixing America’s Surface Transportation (FAST) Act, the IRS notifies the State Department (State) of taxpayers certified as owing a seriously delinquent tax debt, which is currently $52,000 or more. The law then requires State to deny their passport application or renewal. If a taxpayer currently has a valid passport, State may revoke the passport or limit a taxpayer’s ability to travel outside the United States.

When the IRS certifies a taxpayer to State as owing a seriously delinquent tax debt, the taxpayer receives a Notice CP508C from the IRS. The notice explains what steps the taxpayer needs to take to resolve the debt. IRS telephone assistors can help taxpayers resolve the debt. For example, they can help taxpayers set up a payment plan or make them aware of other payment options. Taxpayers should not delay because some resolutions take longer than others.

Don’t Delay!
It’s especially important for taxpayers with imminent travel plans who have had their passport applications denied by State to call the IRS promptly. The IRS can help taxpayers resolve their tax issues and expedite reversal of their certification to State. When expedited, the IRS can generally shorten the 30 days processing time by 14 to 21 days. For expedited reversal of their certification, taxpayers will need to inform the IRS that they have travel scheduled within 45 days or that they live abroad.

For expedited treatment, taxpayers must provide the following documents to the IRS: 

  • Proof of travel. This can be a flight itinerary, hotel reservation, cruise ticket, international car insurance or other document showing location and approximate date of travel or time-sensitive need for a passport.
  • Copy of letter from State denying their passport application or revoking their passport. State has sole authority to issue, limit, deny or revoke a passport.

The IRS may ask State to exercise its authority to revoke a taxpayer’s passport. For example, the IRS may recommend revocation if the IRS had reversed a taxpayer’s certification because of their promise to pay, and they failed to pay. The IRS may also ask State to revoke a passport if the taxpayer could use offshore activities or interests to resolve their debt but chooses not to.

Before contacting State about revoking a taxpayer’s passport, the IRS will send Letter 6152, Notice of Intent to Request U.S. Department of State Revoke Your Passport, to the taxpayer to let them know  what the IRS intends to do and give them another opportunity to resolve their debts. Taxpayers must call the IRS within 30 days from the date of the letter. Generally, the IRS will not recommend revoking a taxpayer’s passport if the taxpayer is making a good-faith attempt to resolve their tax debts.

Ways to Resolve Tax Issues
There are several ways taxpayers can avoid having the IRS notify State of their seriously delinquent tax debt. They include the following:

  • Paying the tax debt in full,
  • Paying the tax debt timely under an approved installment agreement,
  • Paying the tax debt timely under an accepted offer in compromise,
  • Paying the tax debt timely under the terms of a settlement agreement with the Department of Justice,
  • Having a pending collection due process appeal with a levy, or
  • Having collection suspended because a taxpayer has made an innocent spouse election or requested innocent spouse relief. 

Relief programs for unpaid taxes
Frequently, taxpayers qualify for one of several relief programs including the following:

  • Payment agreement. Taxpayers can ask for a payment plan with the IRS by filing Form 9465. Taxpayers can download this form from IRS.gov and mail it along with a tax return, bill or notice. Taxpayers who are eligible can use the Online Payment Agreement system to set up a monthly payment agreement. Using the Online Payment Agreement system is cheaper and can save time.
  • Offer in compromise. Some taxpayers may qualify for an offer in compromise, an agreement between a taxpayer and the IRS that settles the tax liability for less than the full amount owed. The IRS looks at the taxpayer’s income and assets to determine the taxpayer’s ability to pay. Taxpayers can use the Offer in Compromise Pre-Qualifier tool to help them determine whether they’re eligible for an offer in compromise.

Subject to change, the IRS also will not certify a taxpayer as owing a seriously delinquent tax debt or will reverse the certification for a taxpayer:

  • Who’s in bankruptcy,
  • Who’s identified by the IRS as a victim of tax-related identity theft,
  • Whose account the IRS has determined is currently not collectible due to hardship,
  • Who’s located within a federally declared disaster area,
  • Who has a request pending with the IRS for an installment agreement,
  • Who has a pending offer in compromise with the IRS, or
  • Who has an IRS accepted adjustment that will satisfy the debt in full.

For taxpayers serving in a combat zone who owe a seriously delinquent tax debt, the IRS postpones notifying the State Department of the delinquency and the taxpayer’s passport is not subject to denial during the time of service in a combat zone.

This is a reprint from an IRS writing.

You have decided you need to think about your estate planning.  You want to avoid making mistakes.  Of course, the BIGGEST mistake is to not have any estate planning in place. 

To help you feel more confident about your estate planning, here are some thoughts to consider:

  • Who will be your fiduciary – your executor, your agent under a power of attorney or health care directive, a trustee if you create a trust.  Who is best suited for this position?  Does the same person have to act for all?  While consistency is helpful, you must consider the decisions to be made.  The person who would be best for financial purposes may not be the best choice for your health care agent.  You should select individuals best suited for the duties and responsibilities they may have to carry out. 
  • Tax laws are ever changing as are personal circumstances.  While your documents that are several years old may be sufficient in some regards, they may be deficient in other regards.  Older Powers of Attorneys may not contain HIPAA language.  Older documents may not address digital assets.  Your beneficiaries may have had a life change – divorce, disability, etc.  If in doubt, have your documents reviewed to determine if they need to be updated. 
  • If a beneficiary is a minor, they would not be able to manage their inheritance.  Think about who should be named to manage their inheritance until they are older and what type of distribution scheme would you like for the minor to receive.
  • What will happen if you become disabled, incapacitated?  Who will take care of any minor children you may have? 
  • If you ignore tax consequences, the result could be additional taxes and thereby reduce the inheritance passing to your beneficiaries.
  • Creating joint ownership of your assets may not be the best action.  Joint ownership could result in tax consequences if the other owner should die before you.  If the other owner encountered financial problems, your jointly owned assets could be at risk.  If the joint owner were to become involved in a divorce situation, your assets could become frozen pending the conclusion of the divorce. 
  • You do not have to treat all beneficiaries the same.  Take into consideration where each beneficiary is in their life – are they good with finances, do they suffer from addiction, are they divorced, are they disabled and receiving governmental benefits?  You may need to consider these special circumstances with regard to distributions.
  • And last, but not least, don’t assume your family will work together after your passing.  After the passing of the second parent, it is not uncommon for deep-seated feelings to surface among siblings.  To the greatest extent possible, have your affairs in order to avoid as many situations as possible.

Americans are living longer. 

It is predicted that approximately 70% of individuals over the age of 65 will be unable to complete at least two of the activities of daily living.  By 2025 it is expected that for every 100 middle age individuals, there will be 253 seniors (definition given for “seniors” varied by age groups – for those in their 20’s and 30’s, it was 65 years or over; people in their 40’s and 50’s, it was late 60’s or 70’s and for those in their 60’s and 70’s it was those in their 80’s and 90’s – all relative to the age of who is defining “senior”). 

But here is an interesting statement:  40% of people needing long term care are adults between the ages of 18 and 64.  So, who needs long term care insurance?

Do you have long term care insurance?  Do you even know what it is?  Let’s consider this:

  • You are diagnosed with a very progressive illness that will likely require nursing care in the future.
  • You are getting older and don’t have family.  What is going to happen when you need care later in life? 

Nursing care can cost $500 or more per day.  WOW!  How will this care be paid?  Do you have assets to cover the cost?  What is your monthly income?  What will happen if your assets are depleted?  Maybe you have a family member who can help.  Perhaps you have life insurance that provides for withdrawals against the death benefit.  Medicare or Medicaid.  Or you have long term care insurance. 

So, what can long term care insurance (LTC) do?  It can help to meet the financial needs for your care.  The earlier in life that you obtain LTC insurance, the cheaper the premiums are.  The policy can be tailored for each individual to pay for a certain amount per day, for a certain period of time, in certain circumstances, with certain diagnoses.  There can be inflation clauses factored in. 

And, now you say, why do I need LTC insurance? Won’t Medicare or Medicaid help?  Sorry to disappoint you, but you can’t count on either of those programs.  There are limitations on the benefits they will pay.

OK, so we are back to LTC insurance, but what if you want to stay in your own home? What will LTC insurance provide?  Depending upon your policy, it can help to pay for in-home care.  Nursing care, home care – LTC can help cover the cost. 

What’s not to at least consider?  Perhaps you may not want coverage for yourself or you are too young. That’s not to say that you couldn’t purchase it to cover any anticipated expenses for care for your parents to preserve their assets. 

So much to think about.

Do you have a family member who needs help and you have hired someone who comes into the home periodically or who may even stay in the home full time? 

If the answer is yes, where are financial documents kept?  Who gets the mail?  If the aide or caregiver or helper – whatever title you give them – has access to the mail or if financial documents are accessible, BEWARE. 

But, why? 

I am not saying that people aren’t trustworthy.  However, you want to avoid any temptations for someone to take advantage of your loved one.  And, unfortunately, the reduction of temptation is not limited only to people you hire.  It can be a family member who is tempted to financially abuse the elderly.  We have seen it too many times with clients.

Elder abuse is on the rise and perhaps because the elderly can be very vulnerable.  Recent studies reveal that the number of boomers in their 60s with living parents has risen since 1998 to about 10 million.  Also, there is an estimated 5.7 million people living in America with Alzheimer’s.

Imagine these scenarios:

  • A home helper sees a financial statement showing a significant balance in the account.  They might be tempted to take the account information to see if they could tap into the account.  Or, perhaps they know where checks are kept and just happen to take a blank check.  Or because the older person might not remember, the home helper gets the older person to “lend” some extra cash that is in the home.  The possibilities are endless. 
  • A family member “needs” some financial assistance and they go to the elderly family member and tells their sob story and the elderly person gives money or property to the younger family member.
  • Either a family member or a home helper engages the elderly person in a conversation that leads to a change in the estate planning of the elder.  A ride is provided to the attorney’s office and the estate planning is changed to favor the younger family member or the home helper. 

These are all forms of elder abuse – abuse that is not physical or verbal, but fiscal.  So, you have a loved one who may be at a point where they need someone to look after their finances so that they aren’t abused, but what can you do?  Here are a few suggestions to consider:

  • Consider changing the mailing address for financial accounts. 
  • Don’t allow a checkbook to be accessible.
  • If the elderly person isn’t agreeable to giving up control of their checkbook, perhaps you can open a new account and only leave a small balance in the account in the control of the elderly person.  If Social Security or pensions are automatically deposited to this account, arrange for a monthly transfer to the new account so that the original account does not carry a big balance. 
  • If there is a financial advisor involved, share your concern about the decline of the elder and that you want to be aware if there is any suspicious activity or if there could be a hold placed on the account.
  • Lock down the credit of the elderly person.  We have seen credit cards being applied for using a deceased person’s information and the card was issued, so a new card could be issued to a living person.  Locking down credit can be done by contacting the credit reporting agencies.
  • Attempt to consolidate accounts so there are fewer accounts subject to possible abuse.
  • Automate payments for regular expenses. 

While there is no foolproof way to prevent theft from the elderly, being proactive as possible may be all that you can do.  The family member taking these proactive steps should be the agent under a Durable Power of Attorney so that they have the authority to take such action.   Or perhaps a trustee under a Revocable Trust of the elderly person. 

If you have this authority, establish a good relationship with a financial advisor.  The more precautions taken, the better for all concerned.  Assemble a team to look out for the elderly person – attorney, tax preparer, Power of Attorney agent for the elder, financial advisor.  Working as a team will help to protect the elder from potential financial abuse.  However, be careful that your actions cannot be construed as to your having influence upon the elder.  An attorney will most likely wish to speak directly with the elder to make their own evaluation as to what the elder’s capacity is by observing the elder’s ability to articulate reasoning in leading to a decision, the variability of their state of mind, their ability to understand the consequences of their decisions, fairness in their decision and irreversibility of their decisions.  It will be likely that the attorney will want to speak to the elder alone without a family member or friend in the room and to document the meeting.  By taking such measures, it could be helpful in the future should any issues arise.

Medicare and its more than 60 million beneficiaries are under attack from scammers who want to disrupt the program. Their primary aim is defrauding Medicare itself.  Billions of dollars were lost in 2017 due to fraud, abuse and improper billing. You ask – how can this happen?  Their schemes target beneficiaries directly, steal identities or enlist Medicare participants as unwitting accomplices. 

Medicare fraud usually involves rogue health care providers or medical suppliers who bill the program for services, equipment or medication that they don’t actually provide, or else inflate the cost of those items. Some will even falsify a patient’s diagnosis to justify unnecessary tests, surgeries and other procedures or write prescriptions for patients they’ve never examined. Others use genuine patient information obtained through identity theft to create fake claims.

Here are some ways that fraudsters exploit the Medicare system:

  • Telemarketers Calls to participants with offers of free state-of-the-art braces to relieve joint pain. When received, only ordinary ankle or knee wraps (or nothing at all) is in the package, but Medicare gets a bill for thousands of dollars.
  • Disreputable home health care agencies try to sign people up for services that Medicare pays for but that they never receive.
  • Phony prescriptions or ordering unnecessary tests and procedures are another avenue of fraud.
  • Fraudsters telephoning people or being present at health fairs with offers of DNA tests to uncover cancer risks claiming Medicare will pay for the tests.  In reality, Medicare pays for genetic testing in only very limited circumstances.  So, the end result is the individual gets a hefty bill for the test.
  • Obtaining your Medicare number could result in Medicare being billed for phony prescriptions or unnecessary medical services.  This could result in denial of coverage for services in the future.

So, what should you look out for? 

  • Receiving robocalls offering free medical services or equipment if you provide your Medicare number. 
  • Advertisement for free services specifically for Medicare patients.
  • A health care provider claiming to be able to get Medicare to pay for services not normally covered.
  • Your Medicare Summary Notices listing claims from providers from whom you did not receive services.

What should you do?

  • Don’t accept offers for free medical services in exchange for your Medicare number.
  • Only share your Medicare number with trusted health care providers.
  • Keep track of medical appointments and services on a calendar and keep receipts.
  • Review your Medical Summary Notices.

And, whatever you do,

  • DON’T give personal information to anyone who calls out of the blue and claims to be from Medicare, even if your caller ID shows an actual Medicare phone number. Scammers use caller ID spoofing to mask their location.
  • DON’T talk to anyone who knocks on your door or approaches you in person and claims to represent Medicare or to be selling Medicare-covered supplies.
  • DON’T accept money or gifts to use the services of a medical provider or device supplier. Some swindlers use kickbacks and bribes to obtain Medicare information for phony claims.
  • DON’T be swayed by high-pressure tactics, such as a telemarketer’s threat that Medicare will declare you ineligible unless you accept the offer of a “free” brace quickly.
  • DON’T consent if someone asks to bill you for a DNA test or other service in the event Medicare declines to pay for it.

Families have changed throughout the years due to divorces, second marriages, blended families, same sex marriages, single parents, cohabitating couples, multinational couples, couples with different religious beliefs, age gaps between couples – all which can require special considerations in doing your estate planning. 

You may have one or more of these considerations to be factored into your estate planning.  Why are these important? 

When there is a second or subsequent marriage, there could be assets brought into the marriage by each spouse or there could be children from one or both spouses and possibly a child from the current marriage.  How will these assets be treated when one spouse dies?  How are the children to be considered upon the death of one spouse? 

If a couple is cohabitating, they may jointly acquire assets.  How the assets are titled will have an impact of ownership upon the death of one of the parties.  Is there a cohabitation agreement? 

What will happen when one of the couple dies? Is there a child or children born in the relationship?

When there is an age gap with spouses, there can be a wealth gap.  How will the assets of each be considered?  Will they be separately held and distributed separately or will they be combined into joint ownership?  How will the assets be distributed if the richer spouse dies first? What if the residence is owned by the first to die spouse?

Multinational/multicultural couples could have an adventurous life as there could be opportunities to travel between two countries.  But, what is the country of residence?  Are assets owned in both countries?  What will be the tax consequences be upon the death of one spouse? 

Supplemental needs trust planning when there is a beneficiary who is disabled requires special consideration.  Government benefits should be considered so as not to jeopardize the same.  What is the prognosis for the beneficiary and the anticipated needs? 

Religious diversity can be an important consideration.  How are the children to be raised if one parent dies before the children are adults?  What are the feelings with regard to charitable contributions?  What are the religious beliefs with regard to health care decisions?  Are there medical restrictions like blood transfusions, surgery, organ transplants?  Funerals and burials? Are the spouses agreeable to respect the other’s beliefs?

The items above are not meant to scare you, but to spark thoughts that might need decisions.  When you meet with an attorney for your estate planning, don’t hesitate to bring up all matters of concern.  Failure to do so will impede your estate planning to address special considerations. 

In this final blog about Medicare, we will discuss some highlights regarding prescription drug coverage. 

  • Check your plan for Part D as to covered prescription drugs and which are formulary and non-formulary.  Each plan has lists of drugs fitting into each category.  If your drugs are not on the approved list, you may have to process an exception, pay a higher cost or file an appeal. 
  • Also consider whether you can visit a local pharmacy or if you are required to use mail order.  There are also preferred and non-preferred pharmacies to be considered. 
  • Finally, know your options with regard to name brand vs. generic drugs.

If you have a very limited income, there is assistance which may be available to you to help with your health costs.  These programs include:

Medicare Savings Programs (MSPs) help pay the monthly Part B premium and may help with Medicare cost sharing, depending on the program (there are three types of MSPs). Contact your SHIP at www.shiptacenter.org to learn if you are eligible for an MSP.

Extra Help is a federal program that helps pay for some to most of the costs of Medicare Part D prescription drug coverage. Contact the Social Security Administration at 800-772-1213 or visit www.ssa.gov to learn if you are eligible for Extra Help and to start an application. 

State Pharmaceutical Assistance Programs (SPAPs) are offered in some states to help eligible individuals pay for prescriptions. Contact your SHIP at www.shiptacenter.org to learn if there is an SPAP in your state.

Do your homework before turning 65 to know your options with regard to Medicare.  Avoid costly mistakes.  Healthcare coverage can be overwhelming and very confusing.

Last week, we talked about enrollment periods and what happens if you fail to enroll at a specified time.  This week, we will discuss the different types of Medicare.   

There is confusion with original Medicare and Medicare Advantage plans.  When you are eligible for Medicare, you have a choice which is dependent upon your health care needs, insurance your doctors accept (yes, not all doctors accept Medicare), where you live, whether you travel often and your financial situation. 

Original Medicare is the traditional program offered directly through the federal government. It comprises Part A, which covers hospital costs, and Part B, which covers doctor visits and other outpatient services. The vast majority of doctors in the country take this insurance. To help pay for your out-of-pocket costs, you can buy a Medigap policy, which has its own separate monthly premium. Original Medicare does not include Part D (prescription drug coverage), so you must sign up for a stand-alone Part D plan if you do not have other drug coverage. Original Medicare does not have a limit on your annual out-of-pocket costs.

Medicare Advantage is a private insurance alternative to original Medicare. These plans provide Part A, Part B and usually Part D benefits. They may also offer certain benefits that original Medicare does not cover, such as dental or vision care, and they may also have different costs and rules than original Medicare. For example, a Medicare Advantage plan can require you to get a referral from a primary care physician before it will cover care from a specialist. And, Medicare Advantage plans generally have a network of providers in your geographic area and may not cover care if you see an out-of-network provider (except in emergencies). Medicare Advantage plans have an annual out-of-pocket limit, and you cannot buy a Medigap policy when you are enrolled in Medicare Advantage.

Medigap insurance is supplemental health insurance that works with original Medicare.  Without a Medigap policy, you will have to pay part or some of the out-of-pocket costs not covered by Medicare.  These include Part A hospital deductible or the 20 percent coinsurance in Part B.  There are many different Medigap plans, the premiums for which vary from company to company.

What happens if you don’t buy a Medigap policy during your open enrollment period?  If you suffer from any preexisting conditions, you cannot be denied coverage and you must be offered a plan at the best available rate.  Buying a plan outside of this window could result in your being refused a policy or being denied coverage for existing health problems.  (Some states have rules governing Medigap policies, so if you made this mistake, check with your State Health Insurance Assistance Program at www.shiptacenter.org for more information. 

Even though you have Medicare, you may be required to pay substantial out-of-pocket costs.  You have monthly Medicare premiums for each Medicare Part B and D coverages.  If you are receiving Social Security, these premiums will be deducted from your monthly benefits.  If you enroll in a Medicare Advantage (MA) plan or a Part D plan, you may also owe a monthly premium, depending on the plan you select.  You may have a deductible before Medicare begins payment.  Often times, Medigap policies will cover Medicare deductibles.  You may have a copayment for services.  NOTE:  If you have original Medicare, make certain your health care provider accepts Medicare and takes the assignment – meaning that the provider is willing to accept the amount on Medicare’s fee schedule.  If the provider is not participating in Medicare, they could charge up to 15 percent more than Medicare’s approved rate. 

What happens if you choose a Medicare Advantage plan that doesn’t include your health care providers?  We are all familiar with networks in medical insurances.  So, you need to be familiar with in-network providers and facilities or out-of-network providers.  You need to be diligent with checking with your providers if you decide to enroll in a Medicare Advantage plan as to what the cost of services will be for out-of-network services. 

CONTINUED NEXT WEEK.

Medicare open enrollment is upon us.  It can be a daunting time with choices to be made.  Choosing the best Medicare options that will work best for you can be complicated. This is the first of a three-part series which will help you avoid some common Medicare mistakes.

  • That magical birthday of 65 is approaching.  Do you have to do anything or does Medicare happen automatically?  Unfortunately, you will have to enroll during what is called your initial enrollment period.  The initial enrollment period begins three months before the month in which you turn 65 until three months after.  If you fail to sign up during your initial enrollment period, there is a general enrollment period from January 1 through March 31 each year.  But, if you enroll in January, February or March, your coverage doesn’t begin until July which impacts your monthly premiums for Medicare Part B which covers doctor visits and other outpatient service. 
  • There is often confusion about the special enrollment period.  If you are 65 or older, when you no longer are working and thus don’t have health insurance coverage, or when you no longer have insurance coverage through your spouse, you need to sign up for Medicare.  There is a special enrollment period that lets you sign up without being assessed a late enrollment penalty.  This special enrollment period is only available when you are no longer covered by job-based insurance or for eight months after you no longer have job-based insurance.  (Retiree health insurance of COBRA is not considered job-based coverage.) 
  • There is often a misunderstanding about insurance coverage when you are employed when you turn 65.  Some employers can designate Medicare as your primary health coverage when you turn 65 so you need to check with your human resources department or benefit department on this item.  Just because you are employed when turning 65 does not mean you should ignore Medicare enrollment.    You need to determine whether Medicare or your job-related insurance is primary.
  • Delaying your enrollment in Part B will cost you.  Your monthly Part B premium could be 10 percent higher if you don’t have job-based insurance. 
  • For every 12 months you delay in signing up for Part D (prescription drug costs), your premiums could be 1 percent higher.  If you have job-based prescription drug coverage but lose the same, you will have a two-month special enrollment period to sign up for Part D without a penalty. 

TO BE CONTINUED NEXT WEEK.

When you say “estate planning”, many people think of going to an attorney and having their Last Will and Testament prepared.  But, is this all that meets the definition of “estate planning”?  Oh no — far from it. 

First of all, the term “estate planning” is the production of documents far beyond a Will.  At a minimum, a Durable Power of Attorney and a Health Care Directive/Living Will is prepared.  To those documents, there may be a Trust or two depending upon the situation. 

Next, the attorney is not the only party to be involved with the process. A financial advisor can be a very important member of your estate planning team.  Also, your tax preparer may be vital in helping to assist in your planning.  Each of these professionals knows you in a different way and, collaboratively, they can offer the best estate plan for you. 

You may be thinking, do all of these people need to be involved with my estate planning?  The attorney will be the professional responsible for drafting the documents.  In New Jersey, only an attorney is authorized to draft a Last Will and Testament for another individual.  But, the attorney won’t have your financial information and the details of the wealth you have accumulated.  Your tax preparer can assist with certain tax-related discussions.  Each of your team members is proficient in their particular area.  Collaboratively, they will be able to assist in implementing your wishes in the best possible way.  You may have a business to be considered.  You may have a certain situation within your family such as a disabled child or grandchild, or a child who may not have a stable marriage or may have financial problems.  Your financial advisor may have information regarding retirement-type accounts or insurance. 

Each of these team members will work in your best interest.  One of them alone would not necessarily have the whole picture of you, but together they can fit the puzzle pieces together to create the best estate plan for you.

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