Discussing Estate Planning With Aging Parents

The parent-child relationship is pretty well defined. Children generally don’t advise their parents. It’s the other way around. However, this dynamic can shift as parents get older and children become adults. This becomes especially prevalent when considering estate planning and elder law issues.

As parents grow older, adult children may start to have certain questions about the way mom and dad have planned ahead for the eventualities of aging. Being aware of what plans have been made opens the door for a conversation about what planning is left to be considered to make sure their wishes are carried out as they’d like them to be.

What’s Next?

Once an adult child comes to the conclusion that a discussion is needed with aging parents, determining how to proceed can be difficult. It’s not easy to reverse roles and ask parents to provide their children with sensitive financial information. One way for a child to approach the subject would be to explain their own estate planning efforts. By telling parents what you have done and why, you can then ask them what they have done. The question would arise naturally and organically. You have just explained your estate plan to your parents, so they may feel compelled to explain their plan to you.

This interaction is in their best interests, and it’s not just a conversation about the eventual transfer of financial assets. There is the matter of long-term care to take into consideration. Most Americans will need assistance with their day-to-day needs at some point in time. You may in fact notice that your parents are starting to have trouble getting around. This is something that impacts the entire family because most of the living assistance received by senior citizens comes from family Members, friends and neighbors. When this is not possible, seniors often enter assisted-living facilities. Medicare does not pay for an extended stay in an assisted-living community or nursing home. These facilities are extremely expensive, and many seniors may not understand the extent of the financial burden.

Sense of Relief

Once you have expressed an interest in the planning efforts of your parents they may actually be quite relieved. You are demonstrating a high level of maturity as you tackle a difficult subject as a caring family member. As you gain an understanding of their existing plan you can make suggestions. Assisting them in finding a qualified estate planning attorney may be an integral part of this process.

When your parents are aware of the fact that you want to be of assistance as they enter into the later stages of their lives, a new type of relationship may develop. They will know they can count on you as their own capabilities wane, and this can strengthen the parent-child bond.

What the Proposed Treasury Regulations Mean For Deductions Under IRC §2053

As a practitioner who assists executors with completing and filing the Form 706 United States Estate (and Generation-Skipping Transfer) Tax Return (“Form 706”), Internal Revenue Code (“Code”) Section 2051 defines the taxable estate as the value of the gross estate less deductions taken under Code Sections 2053-2058.  Section 2053 deals with deductions for funeral expenses, administration expenses, claims against the estate, and unpaid mortgages, or any indebtedness in respect of, property includible in the value of the decedent’s gross estate.  The Internal Revenue Service (“IRS”) published final regulations for Code Section 2053 in 2009 (“2009 Regulations”) limiting the deduction for claims and expenses to the amounts actually paid in settlement or satisfaction of the item, with exceptions for ascertainable amounts, claims against the estate, and indebtedness.  The 2009 Regulations contained reservations for future guidance on the application of present-value principles in determining the amount of the deduction under Code Section 2053.  Among other items that include guidance on the deductibility of interest expense accruing on tax and penalties the estate owes, interest and expense accrued on certain loan obligations incurred by the estate, and amounts paid under a decedent’s personal guarantee, the recently promulgated proposed regulations (REG-130975-08) address proper use of present-value principles in determining the amount that an estate may deduct for funeral expenses, administration expenses, and certain claims.

The preamble to the proposed regulations makes clear that they sought to address the issue of the proper amount deductible under IRC 2053, especially in situations when the estate pays the obligation over time.  According to Section 20.2053-3(d)(2) of the proposed regulations, interest on a loan entered into by an estate to facilitate payment of the estate’s tax or the administration of the estate may be deductible if the following are true:  (1) the interest expense arises from an instrument or contractual arrangement that constitutes indebtedness under the applicable income tax regulations and principles of federal law; (2) the interest expense and loan are “bona fide in nature bases on all the facts and circumstances” and (3) the loan terms are “actually and necessarily incurred in the administration of the decedent’s estate.” The proposed regulations then expand on these concepts by including a list of eleven non-inclusive factors that collectively may support a finding that the requirements have been satisfied.

The preamble to the proposed regulations explains that estates often need additional time to pay every deductible claim and expense, but that most pay nearly all their ordinary expenses within the three-year period immediately following the decedent’s date of death, and thereby “strikes an appropriate balance between benefits and burdens” by setting the time during which the estate may deduct the entire value of a claim at three years.  The proposed regulations amend the 2009 Regulations and require the estate to discount to present value amounts paid after the third anniversary of the decedent’s death and refer to that time from the date of death to the third anniversary as the “grace period.”  While the proposed regulations make sense and may provide a more economically accurate deduction, they substantially undercut a previously significant payment tool for illiquid estates:  the Graegin note.

The Graegin note was named after the case in which it was first recognized as valid, Estate of Graegin v. Commissioner, T.C. Memo 1988-477.  A Graegin loan has a set interest rate, the taxpayer may elect a fixed term of years, and the note prohibits prepayment of principal or interest.  Because of the fixed and determinable amount of the interest payment, the Graegin Court and numerous other cases that followed allowed a dollar-for-dollar estate tax deduction for the payment of interest, including future interest.  There was no limit on the term of the note which meant that the estate could receive an upfront deduction for interest that it wasn’t going to pay for several years.  This technique allowed executors of estates faced with a liquidity problem to use a properly structured Graegin note to borrow the cash necessary to pay the estate tax or otherwise administer the estate.  The technique usually also had the added benefits of allowing the family to keep more assets, eliminating a fire sale to raise funds quickly, and reducing the size of the taxable estate.

Prior to the proposed regulations, the power of using a Graegin note was that the estate could deduct the full amount, dollar-for-dollar of the interest paid in the future over the term of the loan on Form 706; no present-value reduction was necessary.  For example, if an estate borrowed $10 million at 5% interest on a 10-year note, the estate could structure the loan to defer all principal payments and interest until year 10 at which time the estate would make a balloon payment.  On Form 706 the estate could deduct that $5 million future interest payment ($10 million borrowed * .05 interest rate * 10 years), thereby further reducing the taxable estate and saving the estate an additional $2 million ($5 million * .40 tax rate).  In many ways, the Graegin loan was a home run.  Of course, the transaction had to have economic substance which included documenting the estate’s need for liquidity, providing detail regarding the structure of the note, calculating the interest due, and confirming that the note conformed to market standards.

While these proposed regulations have yet to become final, it seems that the Graegin note is destined to go the way of Blockbuster video stores.  The present value and interest limitations contained in the proposed regulations restrict the amount deductible under a Graegin arrangement, if allowed at all.  There may a small window during which the estates can continue to benefit from the use of a Graegin structure, but it’s closing fast.  Note that the proposed regulations will apply to the estates of decedents dying on or after the date the final regulations are published in the Federal Register.

Three Tips For Avoiding Funeral Planning Problems

Few baby boomers are prepared for their own funerals. Even though humans have a 100% mortality rate, less than 30% of adults do advance funeral planning. But here’s a secret: you don’t have to spend your children’s inheritance on a funeral. Here are some helpful tips about advanced funeral planning.

I’m always encouraging people to plan for this guaranteed inevitability. While I had put my wishes on file with a funeral home and got a price quote back in 2015, I didn’t pay for those arrangements at the time. In 2022, I finally decided to go ahead with finalizing and paying for my cremation.

What do you need to know before you go to a funeral home to pre-plan for your own eventual demise? We’ll cover these three tips …

Tip #1 – Know Your Preferences
Tip #2 – Preplanning Isn’t the Same as Prepaying

Tip #3 – You Don’t Have to Pay Everything Upfront

Tip #1 – Know Your Preferences

Before going to plan your arrangements, be educated about what you want and how to get it! If you want green burial or an outside-the-box send-off, be prepared to advocate for your choices.

Do your research before visiting the funeral home!

Tip #2 – Preplanning Isn’t the Same as Prepaying

You can put your vital information and choices on file with a funeral and not prepay. It’s good to have the details for a death certificate and your choices already noted. As a preneed salesperson pointed out to me, however, the cost of goods and services will increase over the years.

If you prepay with an insurance policy, it guarantees and “locks in” today’s prices for the costs that the funeral home controls. This includes their service fees, casket and embalming costs, memorial printing packages, and so forth. However, outside costs like obituaries, motorcycle escorts for funeral processions, and taxes are not guaranteed. Those will continue to go up.

When the funeral plans are finalized, tweaks made to the plans can result in money being returned to the family, or more money may need to be paid.

Tip #3 – You Don’t Have to Pay Everything Upfront

When you make funeral arrangements in advance, in most states, you don’t give your money directly to the funeral home. You buy an insurance policy that you own, with the funeral home as the beneficiary. Some states have funeral trust funds to keep consumers’ money safe. With insurance or a trust fund, if the funeral home goes out of business or is sold to another company, don’t lose your money.

When making preneed financing arrangements with insurance, you may be offered payment options, stretching from three to 20 years. If you are healthy and die before paying off the policy, it will cover the entire cost. If you have health issues, you may be issued a graded policy which will only cover the amount of money you’ve paid toward the policy. The rest would have to be paid upon the death of the insured.

However, financing charges over time will add to the total cost of the funeral arrangements, negating your preplanning cost-saving efforts. Payments of a few hundred dollars a month can add thousands to the overall cost. We were offered the option to pay the balance in 90 days, same as cash.

Should you move to another market, your insurance policy is portable. The money can be used to pay another funeral home, although you lose the benefit of “locking in” today’s prices with the original funeral home. If your money is held in a state’s funeral trust fund, you should be able to get your money back with interest.

In Conclusion:

While I have advocated preplanning your funeral for years, I finally took my own advice and committed funding for myself. If I can do this and live to talk about it, you can too.

The moral here is that you can be prepared for your own funeral without having to spend your children’s inheritance. You can reduce stress and conflict, save money, and help your loved ones hold a “good goodbye.”

If you’re serious about taking care of business (like Elvis), visit several funeral homes and shop BEFORE you drop.

Pondering Portability

According to Internal Revenue Code (“Code”) Section 6018, if the gross estate of an individual exceeds the basic exclusion amount in effect under Code Section 2010(c), then the executor shall file the Form 706 United States Estate (and Generation-Skipping Transfer) Tax Return (“Form 706”). In 2022, the Code set the basic exclusion amount at $12.06 million. Although a gross estate may not exceed the applicable exclusion amount, the executor may want to file Form 706 for another reason. If the decedent was married at death, then their executor may want to file Form 706 to take advantage of portability.

In 2010, President Barack Obama signed the Tax Relief Unemployment Insurance Reauthorization and Job Creation Act (“TRUIRJCA”) into law introducing the concept of portability, among other things. Portability allows the surviving spouse to take into account the decedent spouse’s Deceased Spousal Unused Exclusion (“DSUE”) amount in addition to their own applicable exclusion either during their lifetime or upon death. The Form 706 TRUIRJCA contained a sunset provision that would have terminated portability at the end of 2012. President Obama changed that and made portability permanent when he signed the American Taxpayer Relief Act into law in early 2013. An executor elected portability by filing a Form 706. An executor has nine months from the date of death with an automatic six-month extension to file the Form 706. If an estate was not required to file Form 706, then the Internal Revenue Service (“IRS”) had the discretion to extend the time for filing Form 706. Executors wishing to ask the IRS to exercise its discretion did so by obtaining a Private Letter Ruling (“PLR”). In part because of the significant amount of PLRs requested in this area, the IRS issued Revenue Procedure 2017-34.

In Revenue Procedure 2017-34, the IRS granted a blanket two-year extension to elect portability to any estate not otherwise required to file a Form 706. Thus, an executor had additional time to file Form 706 for the sole purpose of electing portability. If the executor missed that date, then the executed needed to obtain a PLR to seek portability. Once again, due to the numerous PLR requests for this relief, the IRS issued Revenue Procedure 2022-32 on July 8, 2022. In Revenue Procedure 2022-32 the IRS extended the time during which an executor may file a Form 706 to elect portability from two years to five years without obtaining a PLR. Of note, the executor needs to ensure that Form 706 has the following language at the top of page 1 “FILED PURSUANT TO REV. PROC. 2022-32 TO ELECT PORTABILITY UNDER § 2010(c)(5)(A).” This extended time will serve executors well and provides additional time to consider whether it makes sense for a particular estate to file Form 706 for portability. This will become increasingly important for executors of estates with decedents dying before January 1, 2026, at which time the provisions of the Tax Cuts and Jobs Act of 2017 which temporarily doubled the exclusion amount from $5 million to $10 million, as adjusted for inflation, is set to sunset.

Let’s review an example to see how portability works in practice. Assume that Bert and Ernie are married, have a net worth of $30 million, and hold all their assets as tenants by the entirety. If Bert dies leaving his entire applicable exclusion amount of $12 million (note that we assume the 2022 applicable exclusion amount of $12.06 million but rounded down for purposes of this example) unused and his executor fails to take advantage of portability, then his estate will avail itself of the unlimited estate tax marital deduction and have no federal estate tax liability. Clearly, Bert’s estate has suffered no economic loss. Of course, upon Ernie’s death a few years later when the applicable exclusion amount has risen to $13 million, Ernie’s estate will have an estate tax liability of $6.8 million ($30 million taxable estate – $13 million applicable exclusion * .40 tax rate). If, instead, Bert’s executor had elected portability, then Bert’s executor would have filed Form 706 to port Bert’s unused applicable exclusion amount of $12 million. Upon Ernie’s later death, Ernie’s estate would have had an estate tax liability of $2 million ($30 million taxable estate – $12 million DSUE – $13 million applicable exclusion * .40 tax rate). Obviously, portability produced much lower tax liability for Ernie’s estate.

Although portability has many benefits as demonstrated in the example above, it has some pitfalls. First, portability does not apply to the Generation-Skipping Transfer Tax Exemption which allows the transferor to avoid taxation on distributions to the next generation. Second, portability carries over only the applicable exclusion of the decedent upon death and does not account for any appreciation of the assets in the surviving spouse’s estate. Third, most states that impose a state estate tax do not have statutes that allow for the portability of the state estate tax exclusion amount. Finally, planning to use portability generally means that the surviving spouse receives the assets outright, which gives the surviving spouse the opportunity to distribute assets in a way not contemplated by the decedent spouse when the decedent spouse created the plan.

As this article demonstrates, extending the time during which an executor may elect portability gives the executor wide latitude to consider whether portability works best for the estate. The passage of Revenue Procedure 2022-32 provides extra time for me to help clients who had no obligation to file Form 706, but who may have missed the original two-year deadline for electing portability.

Death and Your Digital Footprint

Most individuals understand the need to dispose of their tangible and intangible assets upon their death and use either a Will or Trust to accomplish that. Although it’s clear that these documents govern the disposition of tangible and intangible assets, it’s not as clear that a personal representative or trustee can use the provisions of these documents to obtain access to digital assets. Thankfully, companies that host digital platforms have begun to address this issue. In mid-December, Apple released iOS 15.2 introducing the concept of the “Legacy Contact” setting. While this release may have flown under the radar for some, it certainly garnered attention in the Estate Planning world. The technology giant finally joined Google and Meta (formerly known as Facebook) in providing a way for designated parties to access the digital content of an account holder after death.

For those who are unfamiliar with the concept of a Legacy Contact, anyone who uses the Meta Platform (which includes Facebook and Instagram), a Google account, or an iPhone can select one or more individuals (Apple allows up to five and Google allows up to ten) to access those accounts and the digital content therein after death. Each organization has enacted different protocols regarding how much control the owner has over who can download their data or access the profile after death. For example, Apple takes an “all or nothing approach” essentially allowing the Legacy Contact to access everything including messages, files, and photographs if they have the access key. Google, however, employs a more selective approach and provides the account holder with options to tailor what gets shared after a period of inactivity, even going so far as to authorize a complete wipe of the account after a certain amount of time. Facebook grants the Legacy Contact permission to memorialize the account or delete it entirely after the user’s death. Generally, the Legacy Contact tools do not require the owner to share account credentials or passwords with the Legacy Contacts during life, nonetheless, the owner should exercise caution when choosing designees.

Most digital accounts contain the Legacy Contact set-up under “Account Information,” “Settings,” or “Inactive Account.” As with the individuals named in your Estate Planning documents, each user of such accounts needs to consider who should be named, in what capacity, and how much access you want to give that person if you have the option to limit access. Remember that not every digital platform empowers a user to choose what information gets shared so it’s important to review the policies and procedures for all of your digital platforms and remember that the individual selected may still need to provide requested documentation or proof of their identity. Of course, you can always provide access during life, but that creates a different issue of shared access while you are alive and actively using the account.

In addition to setting up Legacy Contacts, account owners have the option to store their login information in password manager applications. These applications such as LastPass and 1Password store current login information, generate unique passwords for all accounts linked to the service and grant the account owner the power to designate individuals who should have access after death. Of course, this requires advance action prior to death. 1Password has shared “vaults” that permit the designated individual to have access to the shared folder. In addition, users may print an “emergency kit” that includes log-in information and a QR code. The chosen individuals use the QR code to access 1Password’s website where they can log in to your account using the information provided in the kit. This gives the selected individuals access to any account stored in 1Password. Much like Apple, Google, and Facebook, LastPass allows the account owner to designate a list of trusted individuals and set a wait time. Once the owner designates the trusted individuals, LastPass invites each to create their own account. The trusted individuals may request emergency access to the owner’s account. If alive, the owner has the set wait time to approve or deny access. This method requires no death certificate or proof of death for access and accordingly is useful at death and during incapacity.

As companies continue to evolve and replace passwords with fingerprints, face scans, and device passcodes, they will need to develop and implement new back-end identity and authentication policies. You can set up access in your apps and device settings. It’s also important to share your phone passcode because many accounts require two-factor authentication, which requires the input of a code generated in apps or sent via text message. Even with the progress in technology, it’s still possible to use the old-fashioned approach of jotting down a list of accounts and passwords on paper and storing the list in a safe place with your other important documents. Whatever method you use, it’s vital to undertake the task of enabling the tools while you are alive to save your loved ones’ aggravation after your death. No matter the password-storage method you use, make it easy for your trusted contacts to know what accounts you have and how to log in. Without this access, the loved ones left behind would lose the information, photos, and other priceless keepsakes contained in these accounts.

Understanding Undue Influence . . . Part II

Some clients worry that certain beneficiaries will challenge their Estate Plan after death. Sometimes it’s because they have structured their plan to favor one beneficiary over another. Other times, it’s because they have left assets in a trust and named an individual other than the beneficiary of the trust to serve as Trustee of the trust. Occasionally, it’s because they have disinherited their family members in favor of a charity or individuals to whom they are unrelated. No matter the reason, clients have options to protect their carefully constructed Estate Plans. Qualified Estate Planning practitioners often recommend inserting provisions designed to lower the chance of a post-death challenge by a disgruntled beneficiary. The first part in this two-part series, Part I explored undue influence, the most common challenge to an Estate Plan, along with many of the typical scenarios in which beneficiaries raise the issue. This second part will provide practical advice for preventing challenges to an Estate Plan.

Including a “no-contest” clause as part of your Estate Plan represents one of the easiest ways to prevent an attack against the plan. In basic terms, a no-contest clause, sometimes also referred to as an “in terrorem” clause, provides that if a beneficiary challenges the plan unsuccessfully, that beneficiary forfeits any gift to which they would have otherwise been entitled under the plan. This means that for the no-contest clause to have the desired effect of chilling litigation and potential challenges, the testator needs to spend time considering how much to leave the beneficiary they expect to challenge the Estate Plan. There’s no deterrent for someone who has nothing to lose.

Let’s review an example to illustrate this principle. Assume that Betty has $6 million and three children, Blanche, Dorothy, and Sophia. Sophia stopped talking to Betty several years ago and for that reason, Betty has decided to leave her estate to Blanche and Dorothy. If Betty leaves nothing to Sophia, Sophia could challenge the plan, even if Betty’s plan included language that specifically disinherited Sophia. While Sophia may lose the challenge, the stress and turmoil could fracture her relationship with her sisters and delay the distribution of Betty’s estate. If Betty decided to leave $100,000 to Sophia, perhaps that amount along with the inclusion of a no-contest clause in her plan would deter Sophia from initiating litigation. If she decided against challenging the plan, Sophia would receive her $100,000 and each of Blanche and Dorothy would take $2,950,000. This would also preserve family harmony and prevent the financial and emotional drain of a protracted dispute. If instead, Sophia decided to challenge the Estate Plan and lost, then she would lose the $100,000 altogether and risk irrevocable damage to her relationship with her sisters.

As the above example demonstrates, the use of an in terrorem clause in a Will or Trust protects the intentions of the testator or grantor from attack by the disgruntled beneficiary by completely disinheriting the beneficiary who challenges the terms of a Will or Trust. These clauses do not work the same in every state and some states impose additional requirements before disinheriting the beneficiary. It’s important to understand the enforceability of these clauses in the various states. For example, neither Florida nor Indiana recognizes in terrorem clauses, but all other states acknowledge the use of the no-contest clause in varying degrees. About half of the states that enforce the no-contest clause require probable cause on the part of the beneficiary to initiate the lawsuit which adds another layer of protection for the plan. Most states construe a no-contest clause strictly and narrowly and will enforce a no-contest clause only when the beneficiary’s conduct falls into a category prohibited by the no-contest clause.

Even in those states that recognize an in terrorem clause, if your Estate Plan deviates from equal treatment of all beneficiaries of the same relation to you, then it’s best to let your family and loved ones know of your plans and the underlying reasoning for its structure. While they may not agree with your decision, advance knowledge of the plan and time to digest the consequences of that plan while you are alive may prevent litigation after your death. Couple this with inclusion of an in terrorem clause and you may have significantly decreased the chance of future challenges. Remember that leaving a token amount to a beneficiary may not be enough to deter a beneficiary determined to overturn your plan. Instead, you should ensure that the in terrorem clause has teeth by including a modest gift to ensure that forfeiture of that amount would disappoint the beneficiary should they choose to challenge the plan. The harsh result of forfeiture of the gift or bequest under a Will or Trust helps to protect the plan. Even in states like Florida and Indiana that do not recognize the validity of no contest clauses, inclusion of the clause in an Estate Plan may chill litigation and ensure that the testator or grantor’s intended plan of distribution stands. No matter your jurisdiction, it’s vital to understand these complex and evolving rules and I will help you understand how inclusion of this clause along with other provisions safeguards your plan.