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Wills and Estates Blog

What Happens To My Kids If I Become Incapacitated?

Monday, June 06, 2016

One of the overriding purposes driving people to create and establish an estate plan is to ensure their minor children are cared for and will continue to be provided for in case a tragedy befalls the family and one or both parents pass away.

Benefits of a Last Will and Testament

One of the great benefits of having a Last Will and Testament is the ability to appoint guardians for your minor children. However, your Will does not have any effect during your lifetime. It only becomes effective upon your death. What if the tragedy does not result in your death but merely incapacity or inability to provide for your minor children? (e.g., as a result of a car accident you are in a coma). Who is authorized to serve as guardian for your minor children and how can you ensure the right person is appointed? Several states including Maryland have developed a statutory mechanism that allows parents to plan for this very real tragedy and that mechanism is called a “standby guardian”.

The Future Care of Your Children

A standby guardianship allows parents to plan for the future care of children without terminating their own parental rights. A standby guardianship is similar to the nomination of a guardian for minor children under your Last Will and Testament, except that the standby guardianship may become effective during your lifetime. A parent may be diagnosed with a life threatening disease or an accident may change the parent’s situation drastically in an instant. By designating a standby guardian, parents ensure that their children are cared for by an individual(s) of their choosing. The standby guardianship allows the guardian(s) to take action in advance of petitioning the court for a court ordered appointment as guardian of the minor child.

How The Process Works

In order to designate a standby guardian, the parent must only execute a written designation that is (1) signed in the presence of two witnesses and (2) signed by the designated standby guardian. The designated standby guardian is appointed when a “triggering event” occurs. The triggering event may be the incapacity, death or written consent for the guardianship to commence. Once the triggering event occurs, the standby guardian’s authority begins. Thereafter, the standby guardian must petition the court to appoint the standby guardian as guardian of the minor child within 180 days. Parents can revoke the standby guardianship at any time prior to the filing of the petition by any means that demonstrates an intent to revoke the designation.

Best practices dictate that a parent with minor children should provide for guardianship of minor children through a will and also through a standby guardianship. While it is impossible to plan for every possible occurrence in an individual’s lifetime, planning for the care of your minor children can be simplified by including a standby guardianship in your estate plan. At Berman, Sobin, Gross, Feldman & Darby, LLP we include a standby guardianship as a part of our basic estate planning package for all clients with minor children.

By Patricia Zeleznik

Owning A Joint Checking Account With Your Child: A Road To Responsibility Or A Road to Disaster?

Tuesday, May 31, 2016

It is imperative that you weigh the pros and cons before opening a joint account with your child. Particularly, you must analyze your situation and your reasons for doing so. You will find that for many of these reasons there may be other options that do not change ownership but still carry out your goals and wishes.

Pros of Having a Joint Checking Account

  1. Convenience

    Your child can assist you with paying bills and looking out for your finances should you need assistance. In addition, for parents with a minor child, a joint account allows you to closely monitor your child’s spending and teach them how to manage finances.

  2. Avoid probate

    For many, the primary concern is having money that is readily available after death. Probate delays the ability to access your account immediately. However, the accounts could be made Transferable on Death or Paid on Death, which means that the account will automatically be transferred to the named beneficiary or paid to the named beneficiary. This is an attractive alternative for parents who have more than one child because the funds will be divided amongst all of your children without any legal delay of the probate administration process.

  3. Build Trust

    Having a joint account with your child can help build trust. It can give you both ease in knowing the other person is responsible with managing money.

Cons of Having a Joint Checking Account

  1. Unfettered Access

    As a joint owner, your child can withdraw your entire account balance at any time, for his own use, and he is not required to pay it back (at least without a court order). The only time you should ever open a joint account with someone is when you have absolute trust that they won’t take advantage of you. An irresponsible child could just wait until you make a big deposit and withdraw all of the money and close the account.

  2. Account is Subject to Creditors

    When you add your child to your bank account, the money in the account is considered an asset of you both. Thus, you are at risk of taking on your child’s personal liabilities. For instance, your child may have issues with a creditor and a judgment may be levied against him or your child files bankruptcy, now the joint account could be garnished or subject to scrutiny.

  3. Gift Tax Issues

    When a joint account is held with someone other than a spouse, there is a risk that you may be subject to gift tax. According to the IRS, you can give up to $14,000, per person, per year, to a person (other than your spouse) without having to file a gift tax return. Therefore, if you open a joint account with your child and your child withdraws money for his own benefit, you have made a gift to that child for the amount withdrawn that is subject to the filing of a gift tax return.

  4. Spouse’s Access

    If you and your child are injured and you are both left disabled but your child’s spouse has power of attorney, then your son-in-law or daughter-in-law now has access and control to the joint account. In addition, if your child is separated from his spouse, his spouse is now entitled to a portion of this jointly held bank account when their assets are divided up during the divorce.

  5. Estate Implications

    If your child is a joint owner of this account and it was your intention to leave the money in this account to all of your children equally when you pass away, your wish will not be followed. The title of the account triumphs your Last Will and Testament. If the account is held jointly with rights of survivorship, the funds in this account will pass directly to the surviving joint owner—your one child, not equally amongst all of your children.

  6. Sibling Rivalry

    If you have more than one child, the addition of one child as a joint owner on your bank account may cause the other child or children to feel slighted and elder financial abuse could be alleged.

For many of the pros of opening a joint account with your child, an alternative exists that far outweighs these pros. Your alternative could be to give your child Durable Power of Attorney (See:What is a Durable Power of Attorney Anyway?). This gives them legal authority to act on your behalf. More importantly, the account remains with you and if your child abuses their authority, they can be held accountable.

By Patricia Zeleznik

Transfers To Minors: Where Do I Start? What Should I Consider?

Wednesday, September 03, 2014

Two of the most commonly used methods of transferring money and assets to minors are a Uniform Transfer to Minors Act (UTMA) Account or a Trust. A UTMA Account is relatively simple to create and fairly inexpensive, but you cannot exercise any control over the assets. While a trust allows you to maintain a level of control, the expense may be substantial. Below are several pros and cons of each to consider before making your decision. Both mechanisms can be implemented during a parent’s lifetime or upon their death. If you want to provide a gift to a minor child or some other beneficiary that has not yet reached adulthood, depending on your personal goals for the gift a UTMA Account or Trust may be the perfect mechanism to achieve the desired result.

UTMA Account

Whether you are a parent, grandparent, aunt, uncle, or friend, you can use a UTMA Account to make a gift to a minor child. If you decide to use a UTMA Account, you will need to appoint a Custodian to manage the account. Once the account is opened, you can transfer whatever assets you like into the account. Once the assets are transferred, the child becomes the owner of the property. Your child will not be able to gain control of the property until he or she is 18 or 21 depending on the law in your state. Once your child reaches the specified age, he or she gains complete access and control of all assets that remain in the account without limitation. Prior to reaching the specified age, the custodian may use or expend the funds for the child’s benefit. For example, if you contribute $100,000 into a UTMA Account, the Custodian can expend the money for the child’s benefit for legitimate expenses prior to the child reaching the specified age or the Custodian can leave the money in the account until the child turns 18 or 21 and, at that moment, your child is entitled to the entire balance of the account. In each state, the rights and responsibilities of the custodian are specifically outlined by statute. A breach of these responsibilities (also known as “fiduciary duties”) will subject the custodian to personal liability for any mismanagement of the UTMA Account proceeds. Some states create additional duties such as providing an annual accounting, right of inspection, and other unique duties that a custodian must abide by.[1]

Pros

  • Simple and easy to set up. Similar to setting up an individual bank account, only requires that an adult be named as custodian until the child reaches the age of majority in your state (18 or 21).
  • The custodian’s powers are governed by statute and are very broad.
  • Generally, a custodian may make withdrawals from the account for the child’s benefit, so long as the expenses are legitimate. The custodian has a high degree of discretion for the use and expending of property for the child’s benefit without court approval.
  • The income earned in the UTMA Account is generally taxed at the child’s tax rate not your individual rate.

Cons

  • Once your child reaches the age of majority, the funds are legally his/hers.
  • Once the UTMA Custodianship terminates, your child will have immediate unfettered access to the assets and can expend the assets however he or she wishes. They can use the assets for ANY purpose (e.g., vacations, Ferrari’s).
  • As ownership transfers at the time of contribution, financing higher education can be negatively impacted as the assets in the UTMA will be considered during the financial aid analysis formula.
  • Once you have contributed money or assets, there is no getting them back.
  • Your child will have to file an annual tax return if the income generated from the account meets certain thresholds. Depending on the amount of income, the “kiddie tax”[2] may also apply.
  • The custodian has a high degree of discretion regarding use and expending property. Limitations on the use of the property is almost nonexistent. An irresponsible Custodian may exhaust the funds prior to your child reaching age 18 or 21.

Trust for a Minor

Trusts can be tailored to meet your specific needs. The trust may be intended to provide funds for your child during childhood, or simply a means of protecting the assets until your child reaches adulthood. Some trusts are used for specific purposes, such as education or medical expenses. The trust is created by a legally operative document (i.e. a will or a specific trust document). A Trustee will need to be appointed to manage and distribute assets of the trust in accordance with the trust document.

Generally, the trustee manages the assets for your child until some specified age or event triggers the trust to terminate and the trustee then distributes all of the assets. A single trust can have multiple beneficiaries.

By using a trust, you can dictate specific uses of the contributed property, specific events that entitle your child to distributions, and various other conditions as you see fit. The use of a trust allows you to make substantial contributions of assets to minor children without the fear that the funds will be mismanaged by your minor child due to immaturity. For instance, if you wanted to leave your child $100,000, you can limit how that money is distributed to your child or when your child can gain unfettered access to the money. The trustee has similar fiduciary responsibilities to that of the custodian. By using a trust, you can create a Trust Protector. The Trust Protector oversees the trustee’s actions of the trustee and ensure the trust funds are not mishandled. If the Trustee performs any action not authorized under the trust, the Trust Protector may remove the Trustee and appoint a successor. If any harm has resulted as a result of some unauthorized transaction, the Trust Protector or the beneficiaries of the Trust may file a lawsuit seeking court intervention.

Pros

  • You, as the creator of the trust, control how the assets are to be handled. Thus you can be creative regarding how the funds are distributed. For example, you can limit the child to receiving distributions of 1/3 the principal and interest at age 25, 30, and 35 or limiting a portion of the distribution to be contingent upon graduation from college, graduate school or professional school. Recall that when using the UTMA Account, your only option for distribution is age 18 or 21.
  • Depending on your wishes, a trust allows you to dictate what actions a Trustee can and cannot take regarding the use of assets and distributions to the beneficiaries.
  • Depending on the size of your family, you can create several trusts (one for each child) or a single trust that allows the trustee to manage and distribute funds based on the individual needs of each child.
  • The assets can be protected from threats of bankruptcy, future lawsuits, and divorce.

Cons

  • The creation of the trust requires very specific language and should be drafted by an attorney.
  • The creation and maintenance can involve substantial legal fees.
  • Trustee must file an annual tax return for the trust. If the trust generates income and the trustee does not distribute the income to the beneficiaries, the Trust could be taxed at the highest rate of 39.6% depending on the amount of income generated.[3]
  • The trustee may have to produce the trust document or will to banks and other institutions before the bank will allow the trustee to take action.
  • Absent the inclusion of a Trust Protector, the beneficiaries of the trust must bring a lawsuit against the trustee in the event he or she mishandles the trust funds.

Final Thoughts

In deciding which option is best for your situation, you should take note of not only the initial costs but also what you wish to achieve. If you intend to provide your child with a substantial amount of money and assets, a UTMA Account may not be the best option as the child will have unfettered access once he or she reaches the specified age (usually 18 or 21). On the other hand, if you simply wish to provide your child with a small transfer of assets (down payment on a car or starter home), a trust may not be the best option as the administrative costs may outweigh the benefit.

By Jeffrey K. Gordon

What Is So “Special” About A Special Needs Trust?

Thursday, November 29, 2012

The Problem. You have a disabled child who is currently receiving need-based public assistance such as Supplemental Security Income (SSI) and Medicaid. Your child is receiving those benefits because he or she is disabled and because he or she does not havesufficient income and resources. As a parent, you want to make sure that your child is provided for after your death. This is especially true in the case of a disabled child. Your plan to provide for your disabled child probably includes a life insurance policy in addition to assets you have accumulated over your life time. But what happens to your child’s eligibility for SSI and Medicaid if they suddenly receive a significant amount of money in the form of inheritance and life insurance proceeds. The answer is that your child will lose the monthly SSI check and, more importantly, health insurance coverage through Medicaid. Is there a way to provide for your disabled child after your death without endangering their public disability benefits?

The Solution. The Special Needs Trust (SNT) is the answer. If your Will and beneficiary designations direct the assets into a properly drafted SNT, your disabled child will continue to receive their SSI and Medicaid coverage.

To understand how this works, first we need to discuss trusts in general. A trust is just an agreement between a grantor (the one with the money or property) and a trustee in which the trustee agrees to accept and hold money (or other property) for the benefit of someone else. Commonly parents, instead of giving assets to a minor, will give assets to a trustee who will hold the property or money for the minor until the minor reaches an appropriate age. Until the child reaches that age, the trustee will be tasked with using the money for the minor’s benefit. (See Avoid Naming Your Minor Children As Beneficiaries )

A SNT is a special type of trust created by statute. 42 U.S.C. §1396p(d)(4). If the requirements of the statute are followed, any money (or other property) put into the SNT will not be considered an available resource to a disabled beneficiary. Thus, the trust property will not cause the disabled beneficiary to lose their SSI and Medicaid.

Key Features of a Special Needs Trust

  1. Beneficiary has no right to demand assets

    The disabled beneficiary can have no right to demand any income or principal from the trust. This is the key feature. If the disabled beneficiary could demand payment, then the money in the trust would beavailableto the disabled beneficiary and thus the entire amount of the trust would be used to disqualify the person for SSI and Medicaid.

    Thus in a SNT, the trustee must have complete discretion to use the money as they see fit. The disabled beneficiary can ask for whatever they want but the trustee has the ultimate authority whether not to expend the trust income or principal.

  2. Trust funds cannot be used for basic necessities

    The second key feature of a SNT is that the trustee cannot use the trust assets to pay for services being provided for by public assistance. The monthly SSI check is for the basic necessities of clothing, food and shelter. Thus the trust cannot be used for clothing, food or shelter. Then what can we do with the trust? The answer is everything else. The trust could be used to pay for a car, a computer, a vacation, etc. Think of the trust as a tool to enhance the quality of the disabled beneficiary’s life. It is not a mechanism to pay for their basic needs which are, theoretically, being taken care of by SSI and Medicaid.

Different Types of Special Needs Trusts

  1. Self Settled

    A self settled SNT is one in which the disabled person’s own money (or money to which the disabled person is entitled) is being used to fund the trust. Examples of self settled SNTs are where the trust is funded with:

    • a recovery in a personal injury lawsuit,
    • a settlement of a workers’ compensation claim, or
    • an inheritance.

    In each of these examples, the disabled person is entitled to the funds being used to create the trust.

    There are two disadvantages to this type of SNT. First, it typically will require approval. In Maryland, the trust has to be approved by the State Attorney General and, most likely, a circuit court. This is expensive and time consuming. The second disadvantage occurs at the death of the disabled beneficiary. If the disabled beneficiary had used Medicaid at any point during their life, Medicaid will have to be paid back out of the remaining trust assets before any money can be distributed to heirs. This is referred to as a payback provision.

    Unfortunately, the self settled SNT is the only real option for personal injury recoveries and workers’ compensation settlements. This is not the case with inheritances. If the parent (or any other person) plans ahead, they can create a third party SNT prior to death and avoid both the approval process and payback.

  2. Third Party

    In contrast with a self settled trust, a third party trust is funded with money coming from somebody else – not the disabled person. The most common third party SNT is when a parent creates a SNT for their disabled child. They money is the parent’s money, not the child’s money. The third party SNT is preferred over a self settled SNT for two reasons. First, approval is not required. So, for instance, a parent could draft a SNT into their Will and it never has to be approved by anyone. Second, there is no payback required. The terms of the SNT will determine who gets the remaining trust assets at the disabled beneficiary’s death.

  3. Pooled

    In a pooled SNT, a non profit organization (NPO) has already drafted a SNT and had it approved by the appropriate state officials. Disabled persons can then join the SNT. The NPO keeps a separate account for each beneficiary but pools the money together for investment purposes. The NPO serves as the trustee. The pooled SNT has some distinct advantages. First, there is no need to get the trust approved. This can save significant time and expense. Second, the NPO handles all of the investment and generally earns a better rate of return because the assets are pooled. Third, the NPO’s trustees are well versed in SNT law and understand what types of expenses can and cannot be paid to ensure that the disabled person remains on SSI and Medicaid.

In conclusion, any parent of a disabled child should seriously consider creating an SNT to protect your child’s right to future public assistance. Once the SNT is established you would then just make sure that all assets go to the SNT at your death instead of to your disabled child directly. So in your Will, you need to direct your assets to the SNT, not the disabled child. For all the non probate assets (life insurance, 401ks, etc), you need to remove your disabled child as the beneficiary and instead designate the SNT.

By David Galinis

6 Reasons Not To Put Your Child’s Name On The Deed To Your House

Friday, December 09, 2011

Instead of drafting a Will, many people just put their child’s name on the deed to their house. Their goal is to make things easier for their child by eliminating the need to go through probate. If the house is the only asset, this can be an effective way to avoid probate. (If there are other assets besides the house which they still own in their sole name – their child will still have to go through probate.) In Maryland, though, probate is not a particularly daunting or expensive procedure. In my opinion, the disadvantages of putting your child’s name on the deed far outweigh the advantage of avoiding probate.

  1. Loss of Control

    When your child’s name goes on the deed, your child becomes the legal co-owner of the house. Should you at some point want to sell the house and move to Florida, your child must agree. If they don’t agree, you cannot sell. No Del Boca Vista for you!

  2. Inheritance by Others

    If your child dies before you, depending on the way the deed is worded, your child’s ownership interest in the house could pass to their heirs. You could end up owning the house with your son-in-law. Definitely no Del Boca Vista for you!

  3. Exposure to Creditors

    Because your child is now a joint owner of your house, your house is also your child’s asset. Your house is now exposed to your child’s creditors. If your child runs into tax problems, a tax lien could be filed against your house. If your child declares bankruptcy, your house may have to be sold. If your child is sued as a result of a motor vehicle accident, your house could be attached.

  4. Taxable Gift

    Putting your child’s name on the deed may seem like a simple transaction, but it is legally a gift of half the value of your house. If your house is worth more than $26,000, a federal gift tax return is required to be filed.

  5. Capital Gains Tax

    When you put your child’s name on the deed, the child is considered to have acquired their half of the house at half of the same price you paid for the house. Let’s say that the house you paid $100,000 for 30 years ago is now worth $500,000. (Now that’s wishful thinking!) Your child now owns half the house and is considered to have acquired it for $50,000. After you die, if your child sells the house for $500,000, the child will have to pay capital gains tax on the half of the house they acquired before you died. In this scenario your child would owe capital gains tax on $200,000. (This assumes the house is not your child’s primary residence.)

    Conversely, when your child inherits the house after your death, they take the property at your date of death value. Even though you only paid $100,000 for your $500,000 house, your child is considered to have acquired the property for $500,000. Thus, if your child then sells the property for $500,000, there is no capital gains tax.

  6. Medicaid Penalty

    Medicaid is a quasi state/federal program that will pay for nursing home care for individuals without sufficient resources. In the application process, Medicaid looks for whether the individual has given money away in an attempt to become eligible for benefits. Putting your child’s name on your deed is considered a gift and as such may trigger a period of ineligibility for Medicaid benefits.

By David Galinis

Avoid Naming Your Minor Children As Beneficiaries

Friday, June 03, 2011

Beneficiary designations can be an effective tool to avoid probate, if used appropriately. (See Beneficiaries Instead of Probate: Use Caution). Assets can go quickly and directly to loved ones after your death. However, there are certain types of beneficiaries that should be avoided. First and foremost – no minor beneficiaries!

I recently represented a widowed mother of three minor children. Her husband had named as beneficiaries on his life insurance policy his wife (50%) and his three minor children (50%). After his death, my client contacted the insurance company and provided the death certificate and requested payout of the insurance proceeds. However, because half of the proceeds were going to minor children – the insurance company required that a guardianship of the property of the minors be established prior to the issuance of the checks.Additionally, the insurance company even refused to pay the 50% due to the wife until the guardianships for the minors had been established. This created a nearly 6-month delay in her receipt of the life insurance proceeds!

Minors cannot legally own property. They are legally incompetent. Therefore, if a minor is receiving assets as a beneficiary – a guardianship of the property must be created. Establishing a guardianship is time consuming and costly. In Maryland, it usually takes about six months to set up a guardianship. You can expect to pay anywhere from $2,500 to $5,000 in initial attorney’s fees and this amount does not include the yearly accountings required by the court.

In my client’s case, guardianships for the minor children was clearly not what the deceased husband would have wanted. Not only were the children’s life insurance proceeds reduced by attorney’s fees, but now my client, the mother, is required to provide yearly accountings to the court with regards to her children’s life insurance proceeds.

The necessity for a guardianship could have been avoided with proper estate planning advice. In this scenario, I would have advised the husband to name his wife as 100% beneficiary of the life insurance proceeds. The wife could then have managed the entire amount of the proceeds for the benefit of the family without any sort of court intervention. The husband may have wanted to name the children as contingent beneficiaries in the event his wife had predeceased him or died under the same circumstances. If that were the case, I would have recommended naming a trustee or custodian for the minors in the beneficiary designation.

Most states have adopted the Uniform Transfers to Minors Act (UTMA). This act allows you to transfer money to someone you designate as the custodian for a minor. The custodian holds the property until the minor reaches age 18 or 21. Prior to reaching adulthood, the custodian can use the property for the benefit of the minor.

The UTMA has one major disadvantage in that it ends at either 18 or 21. Many people believe that a 21 year old is not responsible enough to have unfettered access to what may be a substantial some of money. The alternative to the UTMA is to create a trust for the benefit of the children. The trust would name a “trustee” instead of a “custodian.” The advantage of a trust is that the terms of the trust are completely customizable – where the statute is not. So for instance if you want half of the money to be given to the children at age 25 and the other half at 30, you can draft the trust to do just that. The disadvantage to the trust is the legal fees associated in drafting the trust document.

By David Galinis

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