Articles Posted in Estate Planning

When we speak to clients who have elderly parents, grandparents, or friends, one of their biggest concerns is that their loved ones will be taken advantage of through financial abuse. Financial abuse is incredibly common among elder individuals, and the most important thing that others can do is closely monitor how and when their loved ones’ money is being spent. If friends and family keep a watchful eye, this can greatly reduce the odds that their loved ones will be subject to financial abuse from other less trusted individuals in their lives.

It is important to know what to look for when monitoring for possible financial elder abuse. An obvious red flag is a large or unexplained withdrawal or, even worse, a pattern of large or unexplained withdrawals. If your loved one’s bank account is fluctuating in a way that you know is not in alignment with their spending patterns, it is always better to investigate instead of leaving things to chance.

A rapid loss of money can also indicate possible financial elder abuse. Sometimes, we see elderly individuals who face unexplained taxes during tax season or a large number of complaints on FINRA’s broker check site. If your loved one has a broker who is difficult to contact or who has been exhibiting evasive behavior, this is also a sign to look into how that person’s money is being handled.

As an estate planning firm, we get questions from many clients and potential clients about where to start when thinking about beginning the estate planning process. The process can feel daunting, and more than anything, our clients want the peace of mind that their family members will be taken care of once they are gone. At McCulloch & Miller, we walk with you through every step of the estate planning process so that you can be confident that no stone will be left unturned.

The first and most overlooked part of the estate planning process is gathering the documents you already have in your possession. You might have, for example, insurance policy documents, titles and property deeds, proof of identity documents, and bank account statements that will be relevant to your estate planning needs. Some clients bring in a list of their digital logins and passwords, as well as beneficiary designations and funeral instructions. The exact number of documents will differ for everyone, but beginning the process of looking for what you already have can be incredibly helpful as you take the first step in your estate planning process.

Second, you will want to make a list of your assets so that an attorney can help you figure out where each part of your estate should go. A common misconception we see is that only the super-wealthy have to worry about dividing their assets, but this could not be further from the truth. Anyone who has property, bank accounts, a vehicle, investments, or ordinary goods will have to think about how they want those assets to be divided among the people they love.

At McCulloch & Miller, we specialize in estate planning for clients of all walks of life – those with families, those without; those with complicated assets, those without; those who are older and approaching the end of their lives, those who are not. More commonly, we are meeting with millennials that are looking to start their end-of-life planning and who want to make sure their loved ones would be protected if anything were to happen to them.

The Ins and Outs of Estate Planning for Millennials

Millennials are in an important position, as many have both young children and aging parents. Thus, they often identify as caretakers in multiple senses, and they might have more individuals to think about in developing their estate plans. Recently, a report published by Trust & Will reveals that more and more millennials are looking for ways to protect their assets in the long term. The report indicates that of the millennials surveyed, 34% were initially motivated to plan their estates because of young children and 11% were motivated because of a recent death in the family. Others cited recent increases in net worth, large purchases, or growing life responsibilities as reasons to get their affairs in order.

Most millennials surveyed opted for a will-based, instead of a trust-based, estate plan. Those with more in assets typically chose trusts over wills, but it’s not just the wealthiest individuals that are making estate plans in general. The report notes that individuals with all ranges of net worth are looking for ways to start their estate planning journey.

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At McCulloch & Miller, we often get questions from our clients about when it might be the right time to work on creating a living will. To answer this question, it is important to first understand what a living will entails and what effect it might have on you and your loved ones in the future. With this baseline of understanding, you can then make a decision about what is right for you, your circumstances, and your family members.

A living will provides information about what kind of medical care you want to get if you cannot express your wishes or you are reaching the end of your life. Oftentimes, this key information is never communicated to family members and friends; thus, when a loved one is no longer healthy enough to verbalize their needs, the people in their lives are left guessing about what they would have wanted.

Living wills generally take effect when a doctor (or sometimes two doctors, depending on the state) determines that a patient is either permanently incapacitated or unable to communicate. The doctor must put in writing that the patient is in this condition, and at that point, the family members resort to the individual’s living will to determine what kind of medical care they will receive.

When clients and prospective clients come to us for their estate planning needs, their first priority is often asking us to help them write their wills. What many clients don’t know, however, is that wills are only one option clients have at their disposal. Trusts are another tool that can create security throughout the estate planning process. Trusts come in many forms – some address specific needs, while others are general and help individuals avoid the probate process.

A common misconception we see is that trusts are only for the super-wealthy. Trusts can be utilized, however, by any individuals that have assets they don’t want to go through the probate process. Probate is a legal procedure through which assets owned in a decedent’s name are distributed by a court. The kinds of assets that go through probate are typically assets like bank accounts, homes, cars, art, and bank accounts. These assets don’t pass directly to a decedent’s spouse or heirs, so it is the court’s job to make sure they are distributed fairly. Using this kind of trust instead of a will means that assets owned by your trust will totally avoid the probate process and go directly to your loved ones.

When an individual creates a living trust, then, they can take more control of where these assets will end up. Assets held in a trust are also taxed differently than if they are owned outside of the trust. Trust planning can reduce estate taxes, creating yet another benefit that many clients do not know about.

In the final days of 2022, the U.S. Congress passed a federal law known as the SECURE Act 2.0. This law addresses retirement accounts and distributions throughout the country and was signed by the president in late December. While this law primarily affects how Americans manage their personal retirement accounts, the new mandates will also affect how revocable trusts and other financial instruments can be managed.

The SECURE Act 2.0 is based on an acronym meaning Setting Every Community Up for Retirement Enhancement. According to an analysis published by a professional legal publication, a primary feature of the act is an adjustment of the minimum retirement age to begin making mandatory distributions from a 401(k) or traditional IRA account. Under the new law, retirees are permitted to wait until they turn 73 years old to begin withdrawing funds from their retirement accounts without an additional penalty. This change puts more control in the hands of retirees, permitting them to keep earning interest on their money for longer.

Another feature of the SECURE Act 2.0 is to increase the allowable amount of “catch-up” contributions to 401(k) and other accounts. Under the new scheme, people between the ages of 60 and 63 who deposited less than the maximum allowable amount earlier in life will be permitted to deposit at least $10,000 per year to their accounts, up to the maximum allowable amount. This change in the law will allow the aging population to invest money they earned or received later in life into their retirement accounts for later use without tax penalties.

There are many terms in the field of estate planning that have become ubiquitous in the field, however, their meaning is often misunderstood. Trustee, beneficiary, executor, and fiduciary are some of these terms. The personal term “fiduciary” comes from the type of duty that a fiduciary owes to a beneficiary in a trust or financial management decision. This “fiduciary duty” is generally based upon a relationship or contract between a beneficiary and a fiduciary, or trustee.

The fiduciary duty is built upon a contractual relationship whereupon the fiduciary agrees to accept responsibility for the duty to manage the beneficiaries assets in the best interest of the beneficiary. An example of a fiduciary in the field of estate planning is the relationship between the trustee and the beneficiaries of a trust. A trustee is a person or entity (often a bank or law practice) that takes legal ownership of the trust assets and manages them in a way to benefit the beneficiaries and honors the trust. This management may include investing money, purchasing or selling assets, paying taxes, and managing legal or financial issues and disputes.

Fiduciary duties related to trusts and estate planning may involve specific obligations. The fiduciary has a duty of care to diligently inform themselves of the details of the trust assets in order to exercise sound judgment to protect the interests of the beneficiaries. Furthermore, fiduciaries owe beneficiaries a duty of loyalty, which includes removing themselves from decision-making that could pose a conflict of interest. Another duty of a fiduciary is to act legally and in good faith. A fiduciary should not break the law or behave unethically when handling the beneficiaries’ assets, especially if such dealings collaterally benefit the fiduciary. Finally, a fiduciary owes beneficiaries a duty of confidentiality. The fiduciary should not release the identity or any information about beneficiaries without a mandate or good cause.

We have long expressed the importance of estate planning for everyone, regardless of status or income. One substantial step in estate planning is having a clear will that avoids dispute or probate issues. For most people, a will turns out to be a relatively straightforward document with little contention. For celebrities who commit certain estate planning mistakes, however, a will—or lack thereof—can become a public news story and topic of gossip. Some intriguing and even hard-to-believe celebrity will stories can show the importance of having a solid estate plan—even for people whose probate drama won’t be in the news.

Larry King’s Secret Will

Television and radio personality Larry King recently passed away in 2021, and his death prompted substantial court drama over his estate. He had a secret handwritten will—also known as a holographic will, which is not a will delivered by hologram!—which was allegedly written in 2019. His family did not find the will until he passed away. The handwritten will was contentious because, at one point, it left 20% of his estate to his children and the rest to his wife, whom he was still married to but estranged from. The two were going through a divorce, but it was not finalized at the time of his death. At some point, he crossed out this 20% figure and left all 100% to his children, disinheriting his wife. This handwritten change makes it difficult to verify on what date the change was made and whether or not King actually made the change himself. King’s estranged wife and his son eventually settled confidentially to avoid the legal battle after challenges and disputes.

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Many people familiar with Texas estate planning have heard of the “executor” of an estate. It is colloquially understood that an executor is a person assigned by a trustee to manage their final wishes and financial matters after the death of the trustee. Being chosen as the executor of an estate should be seen as an honor, as the selection demonstrates that the trustee has faith and confidence in the abilities and integrity of the chosen executor. Although the privilege of being selected as an executor is certainly a compliment, the responsibilities of executorship are often far more significant than a chosen executor may expect. A recently published article in a financial services trade journal discusses an executor’s duties.

The primary role of the executor is to ensure that the final wishes of the trustee are carried out in the best way possible. This includes both financial and other wishes, such as funeral arrangements, obituary, and the division of sentimental items. When a trustee has prepared a will, the executor is required to use that document as a guide to distributing the estate of the trustee. An executor’s duties may be extremely simple when the estate has little value or few beneficiaries.

High-value estates with more beneficiaries or complex financial assets (trusts, real estate holdings, stocks and options, businesses, annuities, etc.) may be more complicated for the executor. If the estate beneficiaries do not get along with one another or the executor and challenge the division in court, the work of the executor can include retaining counsel on behalf of the estate and working diligently to effect the trustee’s wishes to the best of their good-faith understanding of the will.

As control of the federal government changes, sometimes every two years, the tax laws often change as well. Recently, new tax laws have gone into effect, which may significantly affect many Texans’ management of their assets and estate. A recently released legal trade publication discusses some of the recent tax changes and how they may affect your estate planning.

The most significant changes to tax law that involves estate planning involve adjustment of the estate tax and the gift tax. As of 2023, the combined exemption amount from the gift and estate taxes has increased by nearly $ 1 million. With the new tax numbers, single persons are now entitled to give or pass on to their heirs up to $12,920,000 without incurring any estate or gift tax burden. A married couple can exempt $25,840,000 in this same manner.

This change may affect how some Texans construct and manage their estate because trusts, non-liquid holdings, and other financial measures may not be necessary to reduce the tax burden of your heirs upon your death. The exemption is the highest it has ever been and is set to reduce in 2026. With proper advice and counsel, Texans with significant assets may be able to arrange a “lifetime gift” to an heir, locking in the favorable tax exemption while it is part of the law.

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