FLORIDA ESTATE PLANNING & PROBATE LAW BLOG
Serving clients throughout Sarasota, Manatee, Lee, Collier and Pinellas County Florida
BLOG.FL-ESTATEPLANNING.COM

WINDSOR'S IMPACT ON RETIREMENT PLANS FOR SAME SEX COUPLES

Under IRS Notice 2014-19, qualified retirement plan administrators must recognize same-sex spouses of legally married participants as of June 26, 2013. The retroactive date coincides with the date of the Supreme Court issued its decision in Windsor. Between June 26 and Sept. 16, 2013 (the date of Rev. Rul. 2013-17), plans are allowed to recognize only same-sex marriages of participants who are domiciled in a state that recognizes same-sex marriage.

In Windsor, the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA), P.L. 104-199, was unconstitutional. In August 2013, the IRS announced that same-sex couples who are legally married in jurisdictions that recognize their marriages will thus be treated as married for federal tax purposes, regardless of whether the jurisdiction they live in recognizes same-sex marriages.

LAST MINUTE IRA CONTRIBUTION TIPS

Last minute retirement benefits that you should utilize:

Contribute For Your Spouse: If you’re married and at least one spouse is employed (and you’re not earning above the IRS income thresholds), the working spouse can contribute to an IRA and one for their spouse.

Last Years Contribution: If you missed making an IRA contribution last year you have until April 15 to make a contribution for that year. You can effectively make 2 years worth of IRA contributions (both for the previous year and the current year) at the same time. 

Tax-Free Required IRA Distributions: A tax code provision allows an individual to “gift” from their IRA (up to $100,000) to a non-profit and have it satisfies their Required Minimum Distribution (RMD) for that year. They will also receive the added bonus that the distribution is tax-free to them.

Catch-Up: Individuals over age 50 can contribute more money to their IRA (and other retirement accounts), which is known as “catch-up” contributions. This allows for an additional contribution up to $1,000 more every year.


IRS RELIEF FOR MISSED PORTABILITY ELECTIONS

The IRS has provided relief for individuals who missed the opportunity to make a "portability election." Each individual may pass during their lifetime or at death the sum of $5,340,000 (in 2014) without incurring federal estate taxes.  Before 2011, individuals created estate plans to utilize the tax-free amounts of both spouses, through a trust for the surviving spouse. However, beginning on January 1, 2011, the estate tax law included a concept referred to in the planning community as "portability."

Portability is simply the process by which a surviving spouse can add the unused portion of his or her deceased spouse's tax-free amount to his or her own tax-free amount to offset or completely eliminate estate taxes which would otherwise be due and payable upon the surviving spouse' death. Unfortunately, the surviving spouse does not automatically receive his or her deceased spouse's unused estate-tax-free amount. In order to accomplish transfer of the deceased spouse's unused tax-free amount over to the surviving spouse, a "portability election" must be made on a timely filed federal estate tax return for the deceased spouse. This return requirement exists even though the deceased spouse's estate would not otherwise be required to file a return because his or her assets were valued at less than the filing threshold.

The law provides that a portability election must be made on a timely filed federal estate tax return (within 9 months after the deceased spouse's date of death). Until recently, if the deadline to make a portability election was inadvertently missed, the surviving spouse lost the election.

To correct this problem, the IRS has issued IRS Rev. Proc. 2014-18 to provide limited relief for those wishing to take advantage of the portability election at a deceased spouse's death and missed the filing deadline. To claim the relief individuals must satisfy the following requirements: (i)The deceased spouse must have died after December 31, 2010 and before 2014; (ii) The value of the deceased spouse's estate must have been less than the estate-tax-free amount for the year of death (i.e., $5,000,000 in 2011, $5,120,000 in 2012, and $5,250,000 in 2013); and (iii) A Form 706 – Federal Estate Tax return must be filed for the deceased spouse's estate on or before December 31, 2014.

IRS To Apply One-Rollover-Per-Year Limit on IRA Rollovers

The Internal Revenue Service (IRS) has issued new guidance in accordance with a recent tax court decision interpreting an Internal Revenue Code requirement allowing taxpayers to complete only one rollover per year from an Individual Retirement Account (IRA) into another IRA. Practitioners and the IRS previously interpreted this rule to apply separately to each IRA an individual owns. In Babraw v. Commissioner the tax court rejected this view and held that the one-rollover-per-year limit applies across all of a taxpayer’s IRA accounts.


The IRS announcement states that the agency will not apply its interpretation of Bobrow until January 1, 2015, and it expects to issue proposed regulations by that time. The once-per-year restriction does not apply to direct transfers from one IRA to another and applies only to distributions that are reinvested in an IRA within 60 days in accordance with rollover rules.

DOES MY ESTATE PLAN STILL REQUIRE A BYPASS TRUST

The American Taxpayer Relief Act of 2012 (ATRA) extended and made permanent a number of important tax code provisions that impact estate planning. The two biggest tax provisions made permanent were the federal estate tax exemption (with inflation indexing) and portability of a deceased spouse's unused exclusion amount. As a result of these changes, married couples can shelter up to $10.6M of net worth from the federal estate tax system.  The exemptions not only reduce the number of individuals subject to the estate tax in the future, but portability will render most uses for the bypass trusts irrelevant.

Prior to ATRA, the federal estate tax exemption (“Federal Exemption”) amount had risen from $600,000 in 1997 to $5.0M in 2011, with many bumps in the road.  Tax experts predicted that the Federal Exemption would be lowered, an easy way to raise federal tax revenue by taxing the wealthy. To combat the uncertainty with the Federal Exemption, wealthy couples utilized bypass trusts to set aside the deceased spouse’s federal exemption amount to ensure it was fully utilized. This provided the surviving spouse with only an entitlement to an income stream and discretionary principal for their lifetimes from the trusts. But the Federal Exemption was preserved in case Congress decided to subsequently lower the amount.

 After ATRA, the use of a Bypass Trust became an adverse tax strategy for many couples as a result of compressed trust income tax brackets and the loss of any step-up in basis at death. Today they are predominantly utilized to (i) shelter future growth from taxation for very high net worth couples; (ii) preserve the Generation Skipping Tax Exemption (“GST”), (iii) protect assets in the case of divorce or remarriage, and (iv) spendthrift protection of the surviving spouse.

If your estate planning documents contain an involuntary Bypass Trust provision and your net worth is less than $10M, you may want to revisit your estate plan with your attorney. Many estate planning practitioners today use a modified disclaimer, at the surviving spouse’s election, to achieve the same benefit.

THE IMPORTANCE OF SELECTING THE RIGHT PERSONAL REPRESENTATIVE

The selection of the PersonalRepresentative (Administrator or Executor) for your estate can be critical to how easily it is administered after your death.  It is not uncommon to nominate a family member, friend, trusted attorney or financial institution for the job. Ultimately it is their relationship with the beneficiaries that will matter in the end.

While it may seem like a good idea to nominate your children to jointly serve as your Personal Representative it may ultimately fail if they do not get along. The selection a family member, who does not maintain a relationship with the ultimate beneficiaries, is also bound for failure. While the selection of a financial institution, in hopes of avoiding family discord, may result in a fight over Personal Representative and legal fees. Unfortunately, none of these scenarios can insure a peaceful administration or avoiding fighting over administration fees and money.

The best advice is to discuss the subject with your beneficiaries and get their input on the matter. Being aware of a family dispute or conflict can avoid a probate battle at your death. It is important to understand that Florida law requires the Florida Probate Court to appoint the individual you have nominated, barring unforseen circumstances.


PROTECTING AGAINST LOST PROBATE ASSETS

It is common knowledge that over 60% of U.S. adults will die without a basic estate plan. However, what is not discussed is the fact that millions of Wills, Trusts and other end-of-life documents (Powerof Attorney, Health Care Surrogates, Living Wills and Pre-Need Guardianship Designations) go missing each year. Many of these documents are intentionally discarded or hidden by a disinherited family member or second marriage spouse unhappy with the inheritance they may be receiving, while some are merely accidently discarded.

To prevent this from occurring it is recommended that you not only create a list of all the estate planning documents you have executed but provide the nominated individuals (agent(s) under the power of attorney and health care surrogate) with both a copy of the documents and the name of the attorney holding the originals.  This can protect you and your estate from the documents being lost or a disgruntled family member from destroying them. 

To that end, it is equally as important to create a list of your assets and a copy of an account statement. This can prevent a bank account (pay-on-death account) or life insurance policy beneficiary from failing to collect the funds at your death. Statistics reflect that $4.9 billion in unclaimed assets are turned over to the government annually with only $1.7 billion in assets ever reclaimed. In addition, more than $1 billion in life insurance is unclaimed annually.

Potential Problems with Your Florida Revocable Trust

Every client should review his or her Florida Revocable Trusts at least every five (5) years. This will ensure it is up-to-date with current Florida the law, Federal Estate tax exemption amounts, and meet your goals.

Do you have the right successor trustees? Typically you will be the trustee of your own revocable trust with your spouse as co-trustee (if you're married). Trusts should name one or more successors in the event the original trustee or trustees are unable to serve. Make sure that you still want the successors you originally named. Also, do you want them to come on and begin acting as trustee now? And if you and your spouse are co-trustees, do you want the successor or successors to step in when the first of you becomes incapacitated or passes away, or not until neither of you can serve.


Who can remove trustees?
 While you are alive you can always change the current and successor trustees of your Florida Revocable Trust. However, do you want anyone else to have this authority after you are incapacitated or deceased.


Can the surviving spouse change the beneficiaries and ultimate distribution of trust assets after you have passed away?
 Many trusts give surviving spouses a power to redirect trust assets at their death. This can be important to provide for flexibility to respond to changes in family circumstances. However, this typically doesn't make sense in second marriage situations.


Does your trust protect your children and grandchildren from lawsuits and divorce?
 You have the ability of drafting your trust to continue for your children's lives to provide creditor and divorce protection.


Have you funded your trust?
 Most Florida trust documents don't accomplish all that was intended because the decedent died with their assets still titled in their names. Avoid probate, protect your assets from guardianship reach, and make sure that the estate tax protections in your trust operate as planned through retitling assets in the name of the trust.


Who is named as beneficiary of your retirement plans and other investments?
 Often clients spend hours with their attorneys crafting an estate plan to match their goals and then circumvent it through naming individuals as beneficiaries of retirement plans and investment accounts. Make sure these are all coordinated to accomplish your objectives.


At what age will children and grandchildren receive their inheritance? 
Most trusts provide that funds will remain in trust until those inheriting reach a certain age, often 21. However, your Florida Trust can be drafted to establish any age you choose and even permit them to withdraw a portion of the trust at set ages (one-half at 25 and the balance at 30, or a third each at 25, 30 and 35). This doesn't mean that they can't benefit from the trust assets in the meantime, but that distribution decisions are made by the trustees until children and grandchildren have more financial experience.


Does your trust have provisions providing for maximum tax deferral if it is named the beneficiary of a retirement plan?
 While you may choose to have your retirement plans go directly to your heirs, the simplest approach, or your trust. However, if it is going to your Florida Revocable Trust it must have special provisions to stretch out the annual required distributions for as long as possible.


Is your trust up-to-date for estate tax purposes?
 Congress and many states have changed the estate tax laws several times in recent years. If your trust is more than five years old, or if you lived in a state other than Florida when it was drafted, it should be reviewed by an estate planning attorney to make certain it is still current.

SAD STORY FROM AZ ON WHY YOU SHOULD AVOID GUARDIANSHIP - IF YOU CAN?

The elderly widow wasn’t asking for much. Just a little protection so she could live out her life as she’d planned. So that she could go out to lunch with friends or buy a new hat or new teeth. Instead, Marie Long was protected right into the poorhouse. In just four years, the woman who came into Probate Court with $1.3 million in assets was left penniless, her life savings sucked up by the very people appointed to watch over her — all as the judge looked on. Or away, more likely.


As a result of what happened to Marie Long, laws were changed and reforms were enacted in the hope of better protecting the most vulnerable among us.
All that is, except for Marie.

Now, at long last — and with no thanks to the courts —Marie Long, at 92, has a little of her own back. “She should have enough to live a decent life,” her longtime attorney, Jon Kitchel, told me. I first met Marie in October 2009, not long after she was moved into a Phoenix nursing home that accepts welfare clients. She was soft-spoken and at a loss for words as to how she had come to such a fate.

Marie had no children to look after her in her old age. Her daughter died of cancer long ago at age 16. The following year, her 20-year-old son was killed in Vietnam. When her husband, Cliff, died in 2003, Marie was in good financial shape. But a stroke in 2005 and a family dispute over where and how she would live landed Marie under the “protection” of Maricopa County’s Probate Court.

By 2009, her $1.3 million estate was gone, much of it sucked up by attorneys and fiduciaries under the not-so-watchful eye of then-Commissioner Lindsay Ellis. Ellis ruled that those attorneys and fiduciaries were justified in helping themselves to more than $1 million of Marie’s money. She lambasted Marie’s lawyers — Kitchel, Pat Gitre and Marie’s nephew Dan Raynak, people who for years volunteered their services to help Marie as her accounts dwindled.

Ellis wrote that their “venomous” attacks challenging the six-figure bills forced the fiduciaries and lawyers on the other side to defend themselves. With Marie’s money, naturally. Later, we learned that Ellis, through her judicial assistant, sent advance copies of her ruling to select attorneys — the ones who wound up with Marie’s money. Two courts found that Ellis acted unethically, but that, they wrote, didn’t mean she was biased. The Arizona Court of Appeals called what happened to Marie “inexcusable.” Then, it did nothing to fix it.

Instead, the courts left the bulk of Ellis’ ruling intact, approving $840,000 of the fees and ordering a retrial on the remaining bills. The biggest remaining question: Was the law firm justified in collecting $230,000 from Marie in 2009? In recent weeks, awaiting court approval of their fees the parties reached a confidential settlement with Marie. It’s believed to be the second such settlement in the case, the first involving the now-defunct Sun Valley Group, which collected $430,000 from Marie.

Kitchel said he couldn’t tell me how much of Marie’s money has been refunded. But it will be enough, he says, to get her off welfare and give her financial independence. “She’s going to be just fine,” he told me. Not only will she be just fine, but others should be, as well. As a result of public attention to Marie’s experiences, vulnerable people are better protected when they go to Probate Court. It’s now easier for wards to get rid of fiduciaries they don’t like. For years, fiduciaries basically ran Probate Court, and if you tried to fire them, they got to spend a good chunk of your money fending you off.

In addition, Kitchel says, court accountants are no longer rubber-stamping the accounts but looking for padded billings. Judges are now looking out for the long-term sustainability of estates. “The attitude has changed, and I think that the courts are pretty sensitive to the light being shined on them,” Kitchel said. “I think that they’re doing things differently now and people are more sensitive than they were in the past, sensitive to how much is being charged to the cases.” Sensitive, finally, to little old ladies like Marie. A one-time millionaire who can now, after four years of probate-induced poverty, buy herself lunch.

If you don't think this can happen to you in 
Sarasota or Manatee County Florida you are sadly mistaken. This case further emphasizes the need to have your assets titled in the name of a Revocable Trust to avoid anyone, except the Trustee, from gaining access to the funds.

Article republished from the Arizona Republic newspaper

 

TIME FOR AN UPDATE TO YOUR FLORIDA ESTATE PLAN?

A commonly asked question is how often should I review my Florida estate plan? So why would your Florida estate plan need a makeover? The answer is that your Florida estate plan is a living document that changes with events impacting your life  and should be adapted to meet your current situation. The bottom line is that it should reflect your current situation. In the event that something should happen to you, an out-of-date estate plan can cause contention and strife among beneficiaries. When deciding whether your estate plan needs a makeover, ask yourself the following questions:

  • Did you recently move to a new house, city or state?
  • Since creating your estate plan have you sold or bought any real estate or other property? 
  • Did a loved one pass away?
    • How is your health? Has it declined substantially since the creation of your estate plan?
  • Since your last will was signed, have you had any children?
  • Have you recently been married?
  • Have any of your children become recently married?
  • Have you recently become a grandparent?
  • Has contention developed with you and anyone close to you? Specifically, persons you named as the personal representative, executor or beneficiaries of your estate?

Even a minor change in your circumstances can affect the legacy you leave behind to your loved ones. Everyone who creates an estate plan should make habit of performing an annual estate plan checkup.