Allows for more meaningful estate planning
By Nancy Burner, Esq.
As the federal and New York State estate tax exemptions continue to increase over time, clients are less concerned with the tax consequences of their estates and more concerned with protecting the beneficiaries from outside invaders, like divorcing spouses, creditors and long term care expenses.
As a result, the wills and trusts we draft today are geared toward protecting those heirs. It may be time to review your estate plan in view of the changes in the estate tax laws and the general evolution of trust law itself.
A major shift is in how we transfer assets to beneficiaries. Many clients in the past would create trusts that distributed assets to children at specific time intervals, i.e. upon turning the age of 25, 30, and 35. While this is still an option, it does not provide the maximum level of protection for the beneficiary.
By creating trusts that we refer to as “descendants’ trusts,” the beneficiary can have creditor protection, protection from divorcing spouses, Medicaid protection and protection against estate taxes when the assets are passed on to the beneficiary’s heirs.
This trust can be drafted with different options. The beneficiary can be their own trustee, co-trustee at a stated age and then their own trustee at a later age, or have a co-trustee indefinitely. The beneficiary can be entitled to the income of the trust and can distribute principal to themselves for health, education, maintenance and support. If the beneficiary needs principal for any other reason, they can appoint a friendly, independent trustee to authorize principal distributions. The trust can state where the assets will go on the death of the beneficiary without the beneficiary having discretion over the disposition at their own death.
Alternatively, the beneficiary can have a “limited power of appointment,” which allows them to designate where the trust assets will go upon their death. The limited power of appointment will state that the beneficiary can designate in a will, trust or separate instrument, the group of people that the assets can be given to upon their death.
For example, a father creates a trust and states that upon his death the assets are put into two descendants’ trusts, one for each of his children. The trust can state that each child has the power to appoint the assets to their spouses, descendants, and/or charities. In certain circumstances, a larger group of persons may be designated as the group to which the assets can be appointed.
Another change clients are making in their estate plans relates to the trust structure when leaving assets to a spouse. When the estate tax exemption for New York State was $1 million, a typical middle class couple on Long Island could easily have a taxable estate because of the high value of their home.
For these people, it was extremely important to create a credit shelter or bypass trusts to save estate taxes at the death of the second spouse. Luckily, with the increasing exemption at $3,125,000 in 2015 and $4,187,500 in 2016, this is less of a concern, but many clients have documents from before 2014 that may be obsolete.
Furthermore, the will or trust can add “trigger” supplemental needs trusts that can protect the beneficiary if he or she needs long term care. With many of my clients living well into their 90s, their children may be in their 60s and 70s when the parent dies. The may have done their own asset protection planning only to inherit more assets from a parent that are not protected. By creating descendants’ trusts in their documents, this problem can easily be solved.
Nancy Burner, Esq. has practiced elder law and estate planning for 25 years.