Category Archives: Estate Planning

What’s Mine is Yours – even if we move to Florida

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Wisconsin is one of a minority of states and U.S. territories that operates under a marital property (aka community property) regime. What this means for married couples is that each spouse owns an undivided one-half (1/2) interest in “marital property,” which, as a general rule, includes any and all property acquired during the marriage, with some exceptions. The marital property regime provides various estate planning and tax benefits to married couples, provided that the marital property characterization of real and personal property is maintained.

However, what happens to a couples’ marital property assets if they relocate to a common law state (one without a marital/community property regime), such as Florida?  Luckily, Florida is one of sixteen total states that have adopted the Uniform Disposition of Community Property Rights at Death Act. The Act creates a rebuttable presumption, with limited exceptions, that marital property brought from a community property state to a common law state will remain community property. The Act also permits individuals to exchange assets while maintaining the marital property characterization of assets that are received in return.

For states that have not adopted the Act, and as additional insurance for couples residing in those that have, married individuals can enter into a written agreement (e.g., a post-nuptial agreement, community property agreement, marital property agreement, etc.) that specifically dictates the character of their assets.

If you have any questions on this topic, please contact Lin Law LLC at (920) 393-1190.

Your Estate Plan is Not a Slow Cooker (don’t set it and forget it)

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One of the cardinal sins of estate planning is to “set and forget” your estate plan. Estate plans are not one size fits all, and should be reviewed and updated as circumstances change.

A common example is a married couple who implement an estate plan upon the birth of a child. They most likely appoint guardians for their minor child, and name close friends or family members (perhaps their parents or a sibling) as personal representative or trustee. Twenty years go by, and the couple fails to revisit their estate plan. Now, that child is no longer a minor, individuals named as personal representative or trustee may be deceased or no longer willing and able to serve, and our couple may no longer be married to each other! While Wisconsin law automatically revokes most dispositions of property and fiduciary designations in favor of a former spouse upon dissolution of marriage, it cannot create a completely new estate plan out of thin air.

Another example is an unmarried individual with no children who leaves his or her estate to a parent. If that unmarried individual later marries and has children, failure to update his or her preexisting estate plan and/or beneficiary designations may effectively disinherit said spouse and children. As with divorce, there are Wisconsin statutes intended to avoid this (presumably) unintentional result, but they are not a catch all and should not be relied upon to reform an out-of-date estate plan.

The moral of the story is that while you can “set it and forget it” with your Ronco® rotisserie oven or Crock-Pot® slow cooker, you should not do this with your estate plan. Creating an estate plan is only the beginning; your plan should be reviewed and updated periodically, especially after significant life events such as births, deaths, and divorces.

If you have any questions on this topic, please contact Lin Law LLC (920) 393-1190.

Yet Another Estate, Gift, and Generation Skipping Transfer Tax Senate Bill

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In an earlier post, “Dueling Estate, Gift, and Generation Skipping Transfer Tax Senate Bills,” we discussed two different Senate bills concerning the federal estate, gift, and generation skipping transfer (GST) tax rates and exemption amounts.  On June 25, 2019, Senator Chris Van Hollen (D-Md) introduced yet another bill, the “Strengthen Social Security by Taxing Dynastic Wealth Act.”  This bill would simultaneously reduce the federal estate, gift, and GST lifetime exemption amounts while increasing the applicable federal estate, gift, and GST tax rates.

The bill would reduce the lifetime exemption amounts to a basic estate tax and GST tax exemption of $3.5 million (the exemption amount in effect in 2009) and a gift tax exemption amount of $1 million.  Notably, this would appear to “de-unify” the gift tax exemption from the estate and GST tax exemption amounts.  In addition, the bill would increase the maximum estate tax rate from 40% to 45%.  Finally, the bill would divert estate tax revenue to the Social Security Trust Fund in an attempt to bolster the program’s depleted reserves.  The projected revenue generated by the bill would cover approximately one-fifth (1/5) of Social Security’s estimated long-term funding gap.

Like the previous two bills, this one is unlikely to become law.  However, the number of bills introduced in the last year should remind us that the applicable exemption and exclusion amounts are always subject to change, and that it’s important to periodically review your estate plan with the current exemption amount in mind.

If you have any questions on this topic, please contact Lin Law LLC at (920) 393-1190.

Creating an Estate Plan for Your Digital Assets (and what they are in the first place)

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In creating and implementing an estate plan, one category of assets is often neglected—digital assets. In addition to accumulating liquid assets and tangible personal property, we are increasingly accumulating more and more digital assets throughout our lifetimes. But what are digital assets? They can include:

  • Photographs and videos stored in an electronic format;
  • Playlists and digitally recorded music;
  • Social media accounts such as Twitter, Facebook, and Instagram;
  • Website domain names;
  • Other information and assets that are stored electronically, such as Bitcoin and other cryptocurrencies.

So, how do we plan for and protect our digital assets? First, create a list of any and all digital assets, including where to find them and how they are accessed. Second, make sure that this information is secure but accessible by your personal representative or trustee. Finally, ensure that your fiduciaries are authorized to access and use your digital assets by implementing an Authorization and Consent for Release of Electronic Information.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Dueling Estate, Gift, and Generation Skipping Transfer Tax Senate Bills

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Earlier this year, two very different bills relating to the federal estate, gift, and generation skipping transfer (GST) taxes were introduced in the United States Senate.

On January 17, 2019, Senator Tom Cotton (R-Ark.) introduced a bill that would reduce the federal estate, gift, and GST tax rates to a flat rate of 20%.  Under current law, these transfers are subject to a progressive tax rate that maxes out at 40% for transfers in excess of $1 million (subject to the federal lifetime exemption amount of $10 million, as adjusted for inflation).

Conversely, the “For the 99.8 Percent Act,” introduced by Senator Bernie Sanders (I-Vt.) on January 31, 2019, would reduce the federal estate, gift, and GST lifetime exemption amount to $3.5 million. The federal lifetime exemption amount is currently set at $10 million (adjusted for inflation to $11.4 million for 2019), and will decrease to $5 million when certain provisions of the Tax Cuts and Jobs Act of 2017 sunset on December 31, 2025.  In addition, the Act would raise the federal estate, gift, and GST tax rates to 45% for transfers of $3.5 million to $10 million, 50% for transfers of $10 million to $50 million, 55% on transfers of $50 million to $1 billion, and 77% on transfers in excess of $1 billion.

Although neither of these bills is likely to make it through both houses of Congress to become law, it is always worth keeping an eye on legislation that has the potential to impact your estate plan.

If you have any questions on this topic, please contact Lin Law LLC at (920) 393-1190.

 

New year, new estate plan?

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As we begin 2019, consider adding a review of your estate plan to your list of New Year’s resolutions. For most people, it is appropriate to review your estate plan every two to three years, or whenever a life-altering event occurs (e.g., marriage, divorce, a significant change in job or health, birth or adoption of a child).

In addition, the following are a few non-tax reasons to review your estate planning documents:

  • Children Need Powers of Attorney.  Any child of yours that has attained the age of 18 since you implemented your estate plan (especially those away at college) should have basic estate planning documents in place, especially financial and health care powers of attorney.
  • Outdated Estate Planning Documents.  Estate planning documents may have been prepared prior to a marriage or divorce or prior to the birth of your children. Individuals you have named as trustee, guardian, or power of attorney may no longer be appropriate under the present circumstances.
  • Specialized Planning / Asset Protection.  Each family has its own unique situation that may require specialized estate planning, such as a blended family situation, a desire to make sure the assets you leave to your beneficiaries are protected in asset protection trusts, or a beneficiary’s disability and the considerations it presents in leaving assets to that disabled beneficiary.

In connection with reviewing your estate plan, it is also important to review the beneficiaries named on your life insurance policies and retirement accounts, to ensure that they are coordinated with your existing estate plan documents. Beneficiary designations that are not consistent with your estate plan can result in distributions that are inconsistent with your desires or cause unintended tax consequences to your beneficiaries.

This year, consider reviewing your estate plan to ensure that it continues to meet your needs.

If you have any questions on this topic, please contact Attorney Evan Y. Lin or Attorney Emily E. Ames at (920) 393-1190.

Disclaimer: The information in this blog post is provided for general informational purposes only, and is not intended as legal advice from Lin Law LLC or the individual author.  Please consult an attorney licensed to practice law in your jurisdiction for information regarding your individual situation. 

Fireside Chats During the Holiday Season

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As the holidays approach and families gather together, topics like long-term care and estate planning are likely to be the last thing on your mind.  However, the holidays are the perfect opportunity to discuss these difficult issues with your loved ones.  For older relatives, it is important to discuss whether he or she has planned for future incapacity and/or assisted living or nursing home care needs.

In addition, if you and your older family members already have existing advance health care directives and powers of attorney for finance in place, the holidays are a good opportunity to ensure that your health care agents understand your wishes with regard to end of life care, and that your attorneys-in-fact have a good understanding of your finances, or that they know where to find that information if and when they need it.

If you and your family will be gathering together for the holidays, remember that the most difficult conversations are often the most important, and that when it comes to long-term care and estate planning, the earlier you begin planning, the better.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Disclaimer: The information in this blog post is provided for general informational purposes only, and is not intended as legal advice from Lin Law LLC or the individual author.  Please consult an attorney licensed to practice law in your jurisdiction for information regarding your individual situation. 

Up the river without a paddle – is one power of attorney as good as the next?

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Not all powers of attorney are created equal.  When planning for future incapacity, particularly if you anticipate requiring governmental benefits such as Medicaid, it is important that your financial power of attorney provide your agent(s) with all the powers he or she might need to provide for your elder law or special needs objectives.  These powers may include, but are not limited to, the ability to:

–          Create and fund revocable, irrevocable, or supplemental needs trusts;

–          Make gifts above the annual exclusion amount or to him or herself, if necessary;

–          Execute estate planning documents and other agreements, such as a caregiver agreement; and

–          Change beneficiary designations on life insurance policies and retirement assets.

If you are planning for your future incapacity, make sure that your power of attorney grants your agent the powers he or she will need to accomplish your elder law and special needs objectives, so that your agent does not find themselves up the river without a paddle.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Disclaimer: The information in this blog post is provided for general informational purposes only, and is not intended as legal advice from Lin Law LLC or the individual author.  Please consult an attorney licensed to practice law in your jurisdiction for information regarding your individual situation. 

What is guardianship and how do you avoid it?

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Guardianship is a court procedure in which an individual is appointed to make certain decisions for another person (the “ward”). The purpose of a guardianship is to protect or assist an individual who, due to mental incapacity, is unable to make decisions, defend him or herself against exploitation, or otherwise provide for his or her needs.

The proposed ward may require a guardian of the estate and/or a guardian of the person.  A guardian of the estate handles the ward’s financial matters, similar to a power of attorney for finances, whereas the guardian of the person handles day-to-day matters such as the ward’s living arrangements, medical care, etc.  In addition, the person petitioning the court to appoint a guardian for the proposed ward may request a temporary or permanent guardianship.  A temporary guardianship can generally be established within a few weeks and lasts for sixty days, with up to one sixty-day extension.  A permanent guardianship, on the other hand, remains in effect until removed by the court.  In order to establish a guardianship, the proposed ward must be found legally incompetent by two physicians or one physician and one psychologist.

The ultimate goal of a guardianship is to impose as few restrictions on the ward as possible (i.e., remove as few of the ward’s rights as possible), while also ensuring that his or her needs are being met.  However, even the most minimally restrictive guardianships results in the loss of some of the ward’s rights.  One way to prevent a guardianship from becoming necessary is to plan ahead and execute a Financial Durable Power of Attorney and Power of Attorney for Healthcare.  These documents will usually provide the principal’s power of attorney or health care agent with sufficient authority to protect or provide for the principal’s needs without petitioning the court to establish a guardianship, thereby avoiding the time and expense of a court proceeding.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and is not intended as legal advice from Lin Law LLC or the individual author.  Please consult an attorney licensed to practice law in your jurisdiction for information regarding your individual situation. 

Special Needs Trusts

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Are you planning to leave assets to a disabled beneficiary upon your death?  If so, consider establishing a special needs trust (“SNT,” also known as a supplemental needs trust) for your beneficiary’s benefit.

An SNT is an irrevocable trust (i.e., the trust cannot be revoked or amended) established for the benefit of a disabled individual and managed by a trustee.  Because the trust is not owned by the beneficiary, the trust assets can be used to provide for the disabled person’s needs over and above the essential primary care provided to the disabled person through public assistance programs such as Medicaid or SSI, without compromising his or her eligibility for those benefits.  SNTs are divided into two general categories, first-party or third-party, depending on who the trust is funded by.

First-party SNTs are, as you may expect, funded with the disabled person’s own assets.  A first-party SNT is established by the disabled person or on his or her behalf by a guardian, parent or grandparent, or the court.  While a first-party SNT is a good option for a disabled person who wants to preserve assets he or she already has, upon his or her death the State can recover against the disabled person’s estate for benefits paid during his or her lifetime, including recovery against non-probate assets.

Third-party SNTs, on the other hand, are created by a third-party’s Will or Revocable Trust for the benefit of the disabled person and funded upon the third-party’s death from the proceeds of the third-party’s estate.  There is no limitation on who may create a third-party SNT for the benefit of a disabled person, and upon the beneficiary’s death there is no estate recovery by the State.

While many SNTs are privately managed, they can also be created as a pooled and community trust (PACT) which is run by a nonprofit entity.  While each PACT beneficiary has a separate account, the assets of all participating beneficiaries are pooled for investment purposes.  PACTs, like private SNTs, can be either first- or third-party.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.