Let’s Take Another Look at Your Living Trust
Some time ago, Congress made certain changes to the estate taxes. As a result of the changes, effective January, 2004, the tax free amount increased to $1,500,000. (Back in 1997 it was $600,000.) This allows a married couple to leave a minimum of $3,000,000 tax free.
Your Living Trust does not need to be changed to incorporate these changes.
However, there are other developments which might be appropriate to consider.
1) You might want to consider a Dynasty Living Trust. The advantage of using the generation skipping tax exemption is greater during the grantor’s lifetime. Once property is transferred to a dynasty Living Trust, all appreciation and accumulated income generated by the property until the grantor’s death will be exempt from estate tax as long as it remains in the Living Trust. Basically, this is a grown-up for Minors Living Trust.
2) Another more recent development is worth considering. Since after one spouse dies, the Survivor has full control of the Surviving Spouse's Living Trust, including the right to change the beneficiary (through the General Power of Appointment), it is important to insure that the children from the first marriage inherit their deserved portion.
This is what could happen. You die. Your Living Trust divides into two or three shares. Your wife, who has control of the Living Trust, spends your half of the estate, remarries, and leaves her half to the new spouse (not your intention). You may discuss this now with your spouse and decide that the assets you have acquired during your lifetime together belong to both of you. While you still want your spouse to be happy and maybe even remarry, you want your joint assets to be inherited by your children, not the new spouse.
It is possible with the standard A - B - C Living Trust held by most married couples, which allows the Survivor's half (the A Living Trust) to be changed, to incorporate an instruction that the A Living Trust (the Survivor’s half) will be locked. With this feature, the surviving spouse may spend everything, but whatever is not spent must be left to your family rather than the new spouse.
3) Because time has passed since your Living Trust was first written, formerly young children are not so young anymore, and the successors you selected to make your decisions may no longer be appropriate because they are too old. Please review these designations listed in your Living Trust and Powers of Attorney (financial and Health Care).
Furthermore, the inheritance age threshold designated for minor children at the time you made your Living Trust may no longer be appropriate. At the time, you were guessing about what these minors would be like, say, when they became 25 years old. Maybe you now think it is necessary to adjust that age restriction.
4) Be certain that the people you appointed still have their copies of your Health Care Power of Attorney. They should have a copy handy because in an emergency they may need to make medical decisions quickly.
5) Make it easy for the people you Living Trusted to deal with your financial matters.
1. Make sure they know where to find your advisors.
2. If you have your own business, make a plan to deal with your death, beginning with the first day after your death.
3. Make a list of investments (name of institution, account numbers) so your assets can be found. (Bank / stock accounts, retirement plans, life insurance, safe deposit box, etc.)
4. If all the information is in your computer, make sure that an appropriate Living Trustworthy person has access to the password.
6) Make sure that your assets which have any form of registration are properly titled in your Living Trust. These assets include bank accounts, stock, and real estate. Now is a good time to verify that all such assets are held properly.
You also will receive Forms 1099 showing interest or dividends received during the past year, and K-1s for Partnerships. Check each real property tax bill, Form 1099, and K-1 to ensure that it reads something along the lines of:
John and Mary Doe, Trustees of the Living Trust of John and Mary Doe, dated January 1, 2004.
There may be other property which should also be in the Living Trust but may not provide annual reporting, such as stock which does not pay dividends and, therefore, no 1099 is provided. You should also verify that Pension Plans, IRAs, and Life Insurance beneficiaries are properly designated.
Creditors (such as your mortgage holder and credit cards) do not need to know about the Living Trust. Only those holding your property should have notice.
If you inherited any property or received a substantial gift since formation of the Living Trust, you should consider its status and your plans for it. Likewise, the ramifications of a change in your marital status since formation of the Living Trust should be considered.
If you refinanced your property since doing the Living Trust, bought new property, or opened new investment accounts, you should verify that the property is back in the Living Trust. As a good idea to remove all uncertainty with regard to the current and up-to-date nature of the information in your Living Trust, you might want to sign a statement each year informing that all personal property is listed in the Living Trust.
Also, review your estate plan yearly to make sure that you still trust the people you have chosen to act on your behalf after your death.
Your Living Trust does not need to be changed to incorporate these changes.
However, there are other developments which might be appropriate to consider.
1) You might want to consider a Dynasty Living Trust. The advantage of using the generation skipping tax exemption is greater during the grantor’s lifetime. Once property is transferred to a dynasty Living Trust, all appreciation and accumulated income generated by the property until the grantor’s death will be exempt from estate tax as long as it remains in the Living Trust. Basically, this is a grown-up for Minors Living Trust.
2) Another more recent development is worth considering. Since after one spouse dies, the Survivor has full control of the Surviving Spouse's Living Trust, including the right to change the beneficiary (through the General Power of Appointment), it is important to insure that the children from the first marriage inherit their deserved portion.
This is what could happen. You die. Your Living Trust divides into two or three shares. Your wife, who has control of the Living Trust, spends your half of the estate, remarries, and leaves her half to the new spouse (not your intention). You may discuss this now with your spouse and decide that the assets you have acquired during your lifetime together belong to both of you. While you still want your spouse to be happy and maybe even remarry, you want your joint assets to be inherited by your children, not the new spouse.
It is possible with the standard A - B - C Living Trust held by most married couples, which allows the Survivor's half (the A Living Trust) to be changed, to incorporate an instruction that the A Living Trust (the Survivor’s half) will be locked. With this feature, the surviving spouse may spend everything, but whatever is not spent must be left to your family rather than the new spouse.
3) Because time has passed since your Living Trust was first written, formerly young children are not so young anymore, and the successors you selected to make your decisions may no longer be appropriate because they are too old. Please review these designations listed in your Living Trust and Powers of Attorney (financial and Health Care).
Furthermore, the inheritance age threshold designated for minor children at the time you made your Living Trust may no longer be appropriate. At the time, you were guessing about what these minors would be like, say, when they became 25 years old. Maybe you now think it is necessary to adjust that age restriction.
4) Be certain that the people you appointed still have their copies of your Health Care Power of Attorney. They should have a copy handy because in an emergency they may need to make medical decisions quickly.
5) Make it easy for the people you Living Trusted to deal with your financial matters.
1. Make sure they know where to find your advisors.
2. If you have your own business, make a plan to deal with your death, beginning with the first day after your death.
3. Make a list of investments (name of institution, account numbers) so your assets can be found. (Bank / stock accounts, retirement plans, life insurance, safe deposit box, etc.)
4. If all the information is in your computer, make sure that an appropriate Living Trustworthy person has access to the password.
6) Make sure that your assets which have any form of registration are properly titled in your Living Trust. These assets include bank accounts, stock, and real estate. Now is a good time to verify that all such assets are held properly.
You also will receive Forms 1099 showing interest or dividends received during the past year, and K-1s for Partnerships. Check each real property tax bill, Form 1099, and K-1 to ensure that it reads something along the lines of:
John and Mary Doe, Trustees of the Living Trust of John and Mary Doe, dated January 1, 2004.
There may be other property which should also be in the Living Trust but may not provide annual reporting, such as stock which does not pay dividends and, therefore, no 1099 is provided. You should also verify that Pension Plans, IRAs, and Life Insurance beneficiaries are properly designated.
Creditors (such as your mortgage holder and credit cards) do not need to know about the Living Trust. Only those holding your property should have notice.
If you inherited any property or received a substantial gift since formation of the Living Trust, you should consider its status and your plans for it. Likewise, the ramifications of a change in your marital status since formation of the Living Trust should be considered.
If you refinanced your property since doing the Living Trust, bought new property, or opened new investment accounts, you should verify that the property is back in the Living Trust. As a good idea to remove all uncertainty with regard to the current and up-to-date nature of the information in your Living Trust, you might want to sign a statement each year informing that all personal property is listed in the Living Trust.
Also, review your estate plan yearly to make sure that you still trust the people you have chosen to act on your behalf after your death.
posted by Legal Helpmate at 12:25 PM
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