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Trusts, Estates and Succession

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Get Rid of That Old Will!

In 1994, Helen M. Weste executed a Last Will. She was single and had no children. The Will made three charitable bequests, left her personal property to a niece, and left the remainder of her estate to be divided in differing percentages among a sister along with eight nieces and nephews.

In 2002, Helen executed a new Will. This Will made a bequest to only one of the three charitable institutions, left her personal property to another niece along with 10% of her residuary estate, left a bequest to the niece who was to receive the personal property under the 1994 Will, and left 90% of the residuary estate to a neighbor she met on or about 1995.

Inexplicably, when Helen died on March 6, 2010, one of her nieces filed the 1994 Will for probate. As all of the named Executors had either died or renounced, she qualified to act as administrator. Over the next few years, she initiated the administration of the estate.

In October 2011, the neighbor filed an action to set aside the 1994 Will and have the 2002 Will admitted to probate. The administrator under the 1994 Will objected claiming that the 2002 Will was the product of undue influence and lack of testamentary capacity.

After reviewing the evidence presented by both sides, the Middlesex County probate judge set aside the 1994 Will and admitted the 2002 Will to probate among other forms of relief. The Appellate Division upheld this decision. (See In re Estate of Weste, No. A-0436-14T1, 2016 N.J. Super. Unpub. LEXIS 1450 (App. Div. June 24, 2016))

This case highlights the need to dispose of a prior Will when executing a new one. The law does provide for what are known as “After Discovered Wills” to be admitted to probate. However, there are two costs in doing so. First, an after discovered Will can only be admitted by a probate court action which, even if uncontested, is costly. Second, although it may not have happened in this matter, there is a substantial risk that part or all of the estate assets could be distributed to the wrong beneficiaries and in the wrong proportions, or both. If the assets have been distributed, it may be difficult, if not impossible, to collect from those who have received distributions to which they are not entitled.

Many assert that old Wills should be kept in the event a new Will is set aside in a Will contest. However, in this author’s opinion, that does not make much sense, as a new Will should not be executed if it seems clear that it should not be valid to begin with. Moreover, the reality is that the need to admit an after discovered Will can often be untimely. Thus, old Wills should be destroyed or, at the very least, marked with some notation that they have been superseded by a new Will.

Taxes First: Specific Bequest Cannot Be Used to Offset Promissory Note

Christopher C. Economaki, a widower, died on September 28, 2012. He was survived by his two daughters, Christine and Corinne. Christine was named as Executor of his estate.

Christopher’s Will poured over into a Trust. The Trust left a $215,000 bequest to Christine to adjust for a comparable annuity distribution to Corinne. The balance was to be divided in proportions among his daughters and Christine’s two children.

However, Christopher left virtually no distributable estate in probate estate or trust. Although he amassed millions of dollars of assets over his life, he made substantial gifts to his family after his wife died in 2008. Upon his death, his assets consisted primarily of an annuity worth $4,292,800 as well as several life insurance policies and an IRA of modest values. These assets passed to his daughters and Christine’s two children. The only significant asset to pass through his estate and trust was the obligation under a promissory note, with a 5 year term, executed by Christine and delivered to Christopher in April 2010 – coincidentally in the amount of $215,000.

Per Christine’s accountant, the various federal and state estate and gift taxes totaled $1,895,955. Because there was no liquid asset to pay the taxes, Christine proposed that the she and her sister contribute $731,982 each, and that her daughters contribute $192,995.50 each to pay these obligations. Corinne contributed $649,858 and Christine sued her for the balance of $82,024.

Corinne contended that estate assets should be the first source of funds to pay the taxes owed by the estate, and that repayment of the $215,000 loan by Christine would be this source. Christine argued that she forgave or canceled the note by waiving the specific bequest of $215,000 in the Trust. Both sides moved for summary judgment. The trial court agreed with Corinne and its decision was upheld by the Appellate Court (Riedl v. Economaki, 2016 N.J. Super. Unpub. LEXIS 2169 (App. Div. Sept. 30, 2016)).

In making its decision, the Court cited the language in the Trust which mandated that all taxes and debts be paid from the trust estate. The Court rejected Christine’s argument that such taxes should be apportioned, as the language of the trust prevails. The Court further held that if Christine had repaid the Note, $215,000 would be available to pay taxes prior to seeking contributions from other beneficiaries.

In making its decision, the Court rejected Christine’s argument that she could offset her debt to her father by waiving her specific bequest. As it strongly stated, the taxes, debts and administrative expenses of an estate must be paid before the enjoyment of any bequest. To try to offset the two was deemed an unacceptable manner of handling these obligations.

In all the Court’s decision is significant in two regards. First, it affirms that a will or trust containing language that mandates the manner in which estate taxes are paid can supersede the state statute that prorates these obligations in the absence of such language. Second, debts of estate beneficiaries are clearly assets of an estate, and they cannot be forgiven especially when such forbearance would thwart the rights of taxing authorities or creditors.

Special Alert: NJ Kills Estate Tax

On Friday, September 30, after two failed attempts, the third time was the charm for lawmakers from both sides of the aisle when they reached a deal, giving the NJ estate tax its own death sentence. Under the deal, on January 1, 2017, the exemption from this tax will increase from $675,000 to $2,000,000. On January 1, 2018, the New Jersey estate tax will be phased out completely. An official vote in the Assembly and Senate is anticipated for Wednesday, October 5, 2016. Lawmakers are confident that there is easily enough support for the deal to pass.

The phase out of the NJ estate tax was a concession in a larger bill to replenish the state’s Transportation Trust Fund. The bill will increase the tax on gasoline while lowering the sales tax from 7% to 6.875% in 2017 and to 6.625% in 2018. Other concessions were made for retirees, veterans and the working poor.

On its face, the elimination of the estate tax is cause for celebration. NJ is in the minority of states which impose such a tax and its exemption has been far lower than most states, which have exemptions in excess of $1,000,000. Moreover, the deal will eliminate the angst which families who pay a tax on money which has already been taxed during lifetime when it was earned.

On the other hand, the cost to eliminate this tax is enormous. New Jersey has a debt in excess of $10 billion dollars. Yet it is going to eliminate a source of revenue which can provide between $300 million to $500 million per year according to various research groups. Although it is hard to argue the idea of eliminating the tax, one can question doing so with such a large deficit and no plan to replace the revenue. The increased gas tax is earmarked for roads and bridges only.

To get a sense of the practical impact of this bill, let’s take a look at its real impact on the taxpayer. At this time, gas prices in New Jersey are slightly less than $2 per gallon. So if consumers buy 50 gallons of gas, and are currently paying $100, they will be paying an extra $11.50 at the pump. If consumers are spending $100 on goods subject to a sales tax, their tax will be reduced from $7.00 to $6.63 – a savings of 37 cents. Arguably, it is hard to find the tradeoff for the taxpayer here.

In the meantime, NJ has the fifth highest income tax burden with a top rate of 8.97%. When factoring in property and other taxes, the average burden to the taxpayer is 12.3% of income earned. This ranks New Jersey as the second worst state in which to live as to taxation. The increase in the gas tax will certainly not help this ranking.

Gifting Homes to Children Can Be Creating A Gift For the Government

Older adults are often concerned with preserving their homes from long term care costs. For many years, the solution has been to transfer their homes to one or more of their children. Doing so can be perilous for a number of practical reasons including the impact upon property in the event one of these children goes through a divorce, has issues with creditors, or predeceases their parents. On top of these concerns, one should be aware that giving a home to children can be beneficial to the government.

If a house is transferred outright to children, the government may be a beneficiary of this transfer for income tax purposes. Specifically, when a home is transferred outright, the children receive the transfer with what is known as a carryover basis. For example, Mom owns a home worth $400,000. She purchased it for $100,000 and put another $50,000 worth of improvements into the home over the years. Thus, the basis of the home is $150,000. If she transfers her home outright to her children, their basis for eventual capital gains taxation is $150,000. If the children sell the home for $400,000, they will have a capital gain of $250,000. Between federal and state capital tax rates, this may result in capital gains taxes of approximately $50,000. If Mom died owning the home, her basis would get stepped up to its value on her date of death. Thus, if the home is worth $400,000 on her date of death, the basis is stepped up from $150,000 to $400,000. If the home is sold for $400,000, there is no capital gain or capital gains tax.

To avoid capital gains taxes while endeavoring to preserve a home from long term care costs, many have transferred their homes to their children, but not outright. Instead, they transfer their homes with a reservation that they have a life estate in the home. The life estate, in short, retains the parent’s right to continue to live in the home until death. Because of this retained right, the home is counted as part of a parent’s estate when he or she dies for estate and inheritance tax calculations. However, it allows for the property to receive the aforementioned step up in basis upon death. Because many individuals who seek to engage in long term care planning do not have estates which are subject to estate or inheritance taxes upon death, the decision to transfer a home with the reservation of a life estate has often seemed simple.

There have been some risks in this strategy. If a home is sold during lifetime, the property is sold at its carryover basis and is thus subject to capital gains tax. Also, the State imposes an economic value of a life estate and requires that same be paid over to the life tenant and spent on long term care costs in order to obtain or maintain eligibility for Medicaid benefits. If the house is held until the parent’s death, the step up in basis has been received and there has been no payment required from the house, as it has been historically deemed that a life estate has no value at death – until now.

Earlier this year, an Ohio appeals court ruled that a deceased Medicaid recipient’s life estate does not extinguish at death for the purposes of Medicaid estate recovery. (See Phillips v. McCarthy, 55 N.E.3d 20 (Ohio Ct. App. 2016)) Estate recovery is a concept whereby each State is to recover from any assets of a decedent up to the amount Medicaid paid for his or her care during his or her lifetime. In this case, Lawrence Hess transferred his home to his three daughters and reserved a life estate. Eventually, he required nursing care and Medicaid paid for this care for about one year prior to his death. After the State put a lien on his former home, his daughters filed an action to quiet title and discharge the lien.

The appellate court agreed that common law does not value a life estate upon death. It also noted that a life estate was not explicitly mentioned in the federal legislation which mandated that each State create estate recovery acts in order to be able to receive matching federal dollars in which to administer its Medicaid program. However, it asserted that States, not the federal government, set forth the law regarding real property. Thus, it noted that Ohio, in its estate recovery act, included “life estates” as property which may be recovered at death. Whether the calculation of that life estate is made at the time of the gift or the age at the time of death is unclear.

What is clear is that transferring a home – with or without the reservation of a life estate – may be problematic. Before making this transfer, one needs to weigh the potential long term care costs which he or she may be facing with the potential capital gains costs which may eventually be incurred, as well as the amount of the property which may be held for estate recovery. Although New Jersey and Pennsylvania may not be enforcing a lien on life estates at this time, neither was Ohio when Mr. Hess transferred his home to his daughters. The right to collect against a life estate was not implemented until Ohio’s estate recovery act was amended. Thus, caution needs to be exercised in property transfers for long term care planning.

Court Properly Added Beneficiary To Case Seeking Removal of SNT Trustees

Abbie Dorn, while delivering triplets in 2006, suffered catastrophic injuries and was left permanently disabled. A medical malpractice action yielded a settlement of $6,730,000. A Special Needs Trust was established, which was funded with an initial contribution of $910,275.20. The balance was funded by a $4,333,105 annuity, which was to provide periodic payments of $31,000 per month to the Trust to be paid for the rest of Abbie’s life. This monthly payment was to increase 3.5% per year.

Abbie was the sole beneficiary of the Trust. The children were the remainder beneficiaries. Her parents, Paul and Susan Cohen, were named as Trustees. Due to the fact that she was unable to secure daily visitation with her children, the Cohens relocated Abbie from California to their home in South Carolina.

In 2008, Abbie’s husband, Daniel, informed the Cohens that he wanted to divorce Abbie. A two part petition was filed. The first part, seeking dissolution of the marriage, was resolved quickly. The second part, involving the custody, support and maintenance of the three children ensued until 2011.

In 2010, Daniel filed an emergent application in the probate court in South Carolina seeking to remove the Cohens as Trustees of Abbie’s trust. He alleged that the Cohens had not obtained prior approval to incur counsel fees ($495,326.75 regarding the visitation proceedings) and that the Trust was to be used solely for medical care. The Cohens filed a petition of their own seeking ratification of their expenditures and reformation of some of the Trust’s terms.

Guardians ad litem were appointed to represent the children, as they were minors. Appearances were filed by a court appointed attorney and a guardian ad litem for Abbie. Disputes arose over the nature and the extent of their involvement in these proceedings. Eventually, the trial court added Abbie as a named party to the action. Daniel objected, stating that he as Plaintiff had the sole authority to name defendants to a lawsuit.

The Court of Appeals of South Carolina affirmed the probate court’s ruling. (See Dorn v. Cohen, 2016 S.C. App. LEXIS 93 (S.C. Ct. App. Aug. 3, 2016)) In essence, the Court noted the ability to have intervening parties in a court action.

What is notable about this case is the assertion that a Special Needs Trust beneficiary should be part of an action about its administration. In order for a Special Needs Trust to be valid, it must meet a variety of criteria established by the federal government. This criteria includes that the beneficiary cannot be a trustee nor be able to make any demand from the trustees for payment. In short, the beneficiary cannot assert any control over the trust.

Yet the Court, I believe, properly asserted nevertheless that the voice of a beneficiary should be heard to the extent practical. Although the Cohens apparently had not benefitted personally from the Trust and had provided excellent care to Abbie, the Court felt that what the Cohens thought was in Abbie’s best interest may not be the same as what Abbie or an independent guardian ad litem would determine. The Court rebutted the position of Daniel that Abbie did not need to be named as a party to the action, as the dispute was over the use of the trust funds. The Court asserted that the beneficiary of a trust, even if not in control, should be a party, as said beneficiary is the object and reason for the trust. Thus, in the event one needs to file an action over the administration of a Special Needs Trust, it appears that it would be prudent to name the trust beneficiary as an interested party to insure that he or she has a reasonable voice as to how the trust is administered.

Will a Special Needs Trust Affect My Child’s Government Benefits?

“Will the trust affect my child’s benefits?” In over 25 years of practicing law, this question is constantly asked. The irony of the question is that the client is coming to the office with the understanding that they will be receiving an affirmative response to that concern.

The purpose of a special needs trust is twofold. First, for individuals who may suffer from any form of cognitive impairment, the trust is a proper vehicle to minimize the exposure of a disabled individual from the influence of predators. Second, yet primarily, it is to insure that the needs-based benefits to which the beneficiary is receiving are preserved. Although there are many technical requirements which need to be met in the drafting of a special needs trust, the key terminology is that the trust is to supplement, not replace needs-based government benefits.

The two primary forms of needs-based benefits are Supplemental Security Income (SSI) and Medicaid. In order to be eligible for these benefits, the recipient must meet two criteria. First, he or she must be unable to work to an extent that they could earn over a certain amount of income per month. (For 2016, this figure is $1,130 per month.) Second, the applicant for these benefits must not own countable (typically liquid assets) in excess of $2,000.

Recently, the judicial system clarified that Special Needs Trusts preserve eligibility for Section 8 housing. In Massachusetts, Kimberly DeCambre, an individual with a disability, was and is the beneficiary of a Special Needs Trust and $60,000 of distributions were made on her behalf over time. The Brookline Housing Authority, which oversees Section 8 housing in her area, declared that these distributions were to be deemed income to her and, thus, making her ineligible for the residential program. After an appeal from the District Court of Massachusetts, the United States Court of Appeals for the First Circuit ruled that neither the assets in a Special Needs Trust nor the distributions made therefrom could be counted as assets or income of the disabled beneficiary. The Court relied not only on Social Security concepts, but the exemptions set forth by the Department of Housing and Urban Development (HUD). The Court asserted that neither Congress nor HUD would intend to have a Special Needs Trust impact an individual’s eligibility for Section 8 benefits.

Thus, it continues to be clear that a Special Needs Trust is not only a viable but the best means to insure that an individual with disabilities can have a pool of assets set aside for him or her to enhance their quality of life while maintaining their eligibility for benefits that will provide them with income, health insurance, and housing.

Early Eligibility For Social Security: A Potential Benefit For Spouses Who Care For Children With Disabilities

Parents who care for children with disabilities almost invariably incur additional financial challenges than others. They often pay for additional medical bills while their children are growing up. Upon attaining the age of 18, many children with disabilities are eligible for Supplemental Security Income (SSI) and Medicaid. Although these benefits are helpful, SSI payments often do not meet the financial needs for these children and their parents continue to supplement their living and medical expenses throughout their adult years.

One little known provision to assist these families comes in the form of early Social Security benefits for the spouses of retirees. Specifically, if a child has manifested a disability before attaining the age of 22, both of his or her parents may be eligible for Social Security benefits – even if one has not reached retirement age. The Social Security Administration provides that when one parent begins receiving social security benefits, his or her spouse may be able to receive their own social security benefits even if they have not attained retirement age if that spouse is providing care for that disabled child at home.

Here’s an example: John and Jane have been married for 30 years. They have a daughter, Molly, who is 25 years old who was diagnosed with Down’s syndrome at birth. After a long career in the construction industry, John retires at the age of 66 and begins receiving his Social Security benefits. Jane, who has been caring for Molly at home for the past four years, had worked beforehand for a number of years for the local school district. She is currently 58.

Because Jane is not yet 62, she is not yet eligible for Social Security. However, because she is caring for Molly at home, she can receive this benefit. Care is recognized by the Social Security Administration in two situations. For a child with mental disabilities, it is defined as exercising control and responsibility over the child. For a child with physical disabilities, it is defined as performing services for the child.

There is a catch to this provision however. The amount of Social Security benefits received by a family has a cap and there can be a reduction in any SSI payment received by the child. However, in many instances, the additional payment received by the spouse will offset this reduction.

Powers of Attorney: Practical Tips for Executing, Using and Revoking

By Thomas D. Begley, III, Esq.
Co-Authored by Brittany A. Verga, Esq.

Although most people initially think that a Will is the cornerstone of estate planning, it is often asserted that the most important document is a power of attorney. A power of attorney is a document in which one individual vests authority in another to act on his or her behalf. Unfortunately, many problems arise in the preparation and use of this document. This blog will share some practical tips to help avoid these issues and insure that a power of attorney is a useful tool in the event of an individual’s disability.

1. What type of power of attorney? Everyone should have what is known as a general durable power of attorney. The person who executes the power of attorney is known as the principal. The person who is given authority to act on behalf of the principal is known as the agent (or the attorney-in-fact).

The document should be extremely thorough. For many years, a power of attorney only needed to be a few pages. However, over the past few decades, financial institutions, government agencies and medical providers will not accept a power of attorney unless the actions which an agent wishes to perform are specifically set forth in the document itself. Many financial advisors communicate that their companies reject one-third to one-half of the powers of attorney that they review. A qualified estate planning attorney should be engaged to make sure the power of attorney is drafted properly. Although there are forms on the internet, remember the old adage: “You get what you pay for.”

2. Who should be my agent? One of the fastest growing forms of probate litigation over the past twenty years has been fiduciary abuse and neglect. Although there is no guarantee that a power of attorney will not be abused, the chances can be minimized. Unfortunately, many individuals select their agent for a power of attorney based on their age, gender, proximity or a desire to not hurt someone’s feelings. The cases of fiduciary abuse and neglect almost always arise from this absurd form of decision making. Agents should be selected based on two primary factors: (a) integrity and (b) common sense.

3. What types of powers of attorney should I execute? At the very least, an individual should execute a general durable power of attorney to handle financial and personal matters and a health care power of attorney to assist in the handling of medical decisions. The two should not be combined. Doctors and medical staff do not want to root through the financial provisions of a lengthy document to find the provisions that apply to health care. In addition, the individual who is best suited to handle financial decisions may not be the best person to handle medical issues, and vice versa.

Although lawyers have different practices, some also add a real estate power of attorney and a banking power of attorney. Those powers should be included in the general durable power of attorney. However, many banks prefer a shorter specific document. In addition, the recording fees in states like New Jersey make it more practical to have a shorter power of attorney recorded for the sale, purchase or financing of a home.

4. How many powers of attorney should I execute? Many individuals run into an obstacle when they only have one original power of attorney to use. A title company may need to record the original for a real estate closing, which will leave the agent unable to handle other financial matters of the principal until the power of attorney is recorded and returned. In addition to having different types of powers of attorney to address this situation, it is practical to execute three sets. I maintain one set for my clients and provide them with two. On many occasions over the years, for example, I have received calls from an agent who rushed to the hospital to address a medical crisis of his principal, but inadvertently forgot to bring the health care power of attorney. When we receive these calls, we are able to calm the agent’s concerns by sending over our original.

5. Where should I keep my power of attorney? Simply, these documents should be kept at a place in your home where your agent can find them when needed. They should not be kept in a safe deposit box. (For example, if the principal is rushed to the hospital on a weekend night, the box will not be accessible.) Unless the principal is elderly and in immediate need of assistance, it should not be given to the agent, as it should not be accessible to use until needed.

6. What if I change my power of attorney? The execution of a new power of attorney does not automatically revoke the old power of attorney. However, a power of attorney should include language stating that execution of the same revokes any and all prior powers of attorney. You should destroy the old power of attorney and any copies. If the agent has one, he or she should be notified that it is revoked and that the original should be returned to you to be destroyed. In the event that there is a new agent, any financial institution which may be relying on the power of attorney should be provided with written notification stating that the old power of attorney has been revoked.

Court Establishes That Special Needs Trust Is Set In Stone

In 2010, Claude Newsome, who was already legally blind due to macular degeneration, became a quadriplegic as a result of an automobile accident.  After a personal injury action was filed on his behalf, he received a settlement which netted nearly $4 million.  His attorney recommended that he establish a special needs trust with these funds.  In light of apparent undue influence from his agent under a power of attorney, Newsome rejected this recommendation and stated that he wanted his money paid outright to him.  In a management conference approving the settlement, Newsome’s attorney conveyed his concerns that Newsome may be subject to exploitation.  As a result, the Court, without Newsome’s participation, established a special needs trust and appointed an independent bank as trustee.

Within a year, Newsome hired a new attorney who sought to have the bank terminate the trust and pay the funds outright to Newsome stating that the trust was unnecessary.  After the bank went to court seeking directions, Newsome, through his new attorney, filed an application to terminate the trust.  In Newsome v. National Casualty Company (5th Cir., No. 15-30573, Aug. 11, 2016), the Fifth Circuit Court of Appeals rejected this application.  It did so by noting that the dissolution of the trust should have been made as part of an appeal from the order establishing it.  As Newsome had other counsel at the time the trust was established who did not file such an appeal in a timely fashion, the Court of Appeals found no reason to set aside the trust.  It particularly made this holding in response to the claim that establishing the trust was an error.  The Court stated that an error was nevertheless not going to be set aside if the concern for same was not brought to the court in the time period in which an appeal could have been filed.  Although not stated outright, some language in this decision seemed to affirm the need for a trust for Newsome.

The takeaway from this case is that special needs trusts will be protected once established.  In doing so, the case calls for a careful analysis of the need for a trust and selection of a trustee prior to its establishment.  Although not uniformly followed by all courts, the case demonstrates that a court, on its own accord, may set up a protective arrangement for those whom it feels may warrant special care.

 

Tax Loophole For Family Businesses Targeted For Closure

The United States Treasury Department has proposed new regulations which would substantially curb the ability of family owned businesses to transfer wealth from one generation to the next.

For many years, families have been able to lawfully transfer interests in their business to the next generation through entities including Limited Liability Companies, Family Limited Partnerships and Corporations. Specifically, in each of these entities, control is retained by the older generation while economic interests have been transferred to the younger generation.

Because control has been retained by the older generation, the value of the interests transferred has been able to be discounted substantially on the theories that the interests transferred are not controlling interests and are virtually unmarketable. Thus, for example, a majority owner of a corporation could transfer $100,000 of shares to his or her children but claim that lack of marketability and lack of control discount the value of same by 20% which, in turn, would allow the owner to claim that the gift was worth only $80,000. This allows $20,000 to be transferred outside of gift and estate tax exposure.

Proposed REG-163113-02 would restrict these types of transfers. A hearing on these regulations is scheduled for December 1, 2016. Thus, any business owner who is considering this form of gifting may wish to do so prior to this date.

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