Richmond Virginia Estate Planning, Elder Law, And Asset Protection

Prince’s Estate Troubles Back in the Headlines

The Internal Revenue Service has said the executors of Prince’s estate made a serious mistake in their tax calculations, reducing its value by about $80 million, as reported in the article “IRS says Prince’s estate undervalued by 50%, triggering another dispute in settlement” from the Minneapolis Star Tribune.  Once again, Prince’s lack of an estate plan means a world of hurt for his family, including millions in taxes and penalties.

The tax discrepancy comes from the value of music publishing and recording interests, according to court documents. The IRS claims Prince’s estate owes $32.4 million in federal taxes, about double the tax bill as valued by Comerica, a financial services giant. That is a pricey difference, but it is not the only bad news for heirs.

The IRS has slapped the estate with a $6.4 million accuracy related penalty, to be paid by Prince’s estate, because of the sheer size of the undervaluation.

Estimates of Prince’s estate’s net worth have varied from $100 to $300 million, since the time of his death. There was no will and no estate plan when Prince died in 2016, creating one of the largest and most complicated probate court proceedings in Minnesota’s history.

Comerica and the law firm representing the financial institution maintain that the estate valuations are accurate. This past summer, Comerica sued the U.S. Tax Court in Washington, D.C., charging the agency with having many mistakes in its calculations.

The IRS believes the fair market value of Prince’s ownership of NPG Music Publishing should be $36.9 million, and not $21 million as calculated by the estate. The estate placed the value of his ownership of NPG Records at $19.5 million, and the IRS says it is actually worth $46.5 million.

With a case dragging on for more than four years, Prince’s six sibling heirs are increasingly unhappy. Prince’s heirs range in age from 50 to 80 and one brother has already died of heart disease in 2019. They have seen the estate shrink, as tens of millions of dollars are being paid to consultants and lawyers.

In the meantime, Primary Wave, a company that invests in music copyrights, has been very interested in the estate, and two of the siblings have already agreed to sell large portions of their rights to Primary Wave. The company recently spent a reported $100 million to purchase an 80% interest in Fleetwood Mac star Stevie Nick’s publishing rights, and Bob Dylan sold his song catalog to a different company for around $400 million.

Eventually, when the case does settle, the siblings will enact their own “transition plan” to the Carver County Probate court, according to recent court filings.

Reference: Star Tribune (Jan. 2, 2021)  “IRS says Prince’s estate undervalued by 50%, triggering another dispute in settlement”

 

Time to Decide

It Is Important to have a Digital Estate Plan

Just as you organize your physical possessions and financial accounts, you need to organize and plan for your digital estate now. Otherwise, according to the recent article “Why You Need a Digital Estate Plan and How to Make One” from Next Avenue, you will leave a giant mess for your family.

Virginia enacted the Uniform Fiduciary Access to Digital Assets Act in 2017, allowing an executor or administrator of an estate, the trustee of a living trust, the guardian and conservator of an incapacitated person, and the agent under a power of attorney, to manage a person’s  digital assets, including computer files, web domains, and even virtual currency. Nearly all states have already passed similar laws to give a person’s family or their executor the right to access and manage some of their digital assets after they die. However, if the digital platform does not allow an executor or anyone to access and manage accounts, the problem will not be easily resolved.

Facebook has created a “Legacy Contact” and Google has an “Inactive Account Manager,” but they only work if you take the time to go through the process in advance. Sharing passwords and instructions or setting up an online password manager may or may not solve the problem for the 200 other accounts. Why?

Increasing security means that many accounts require confirmation codes, typically sent to a mobile phone or email address, before an account may be accessed. If the phone or email is locked, then access will be impossible. Two-factor authentication makes it harder for digital criminals to access your accounts, but it also makes it difficult for heirs and executors. Some people have taken a step into the future to have their accounts opened via facial recognition. How then do you access accounts?

Not all digital accounts and services have the same requirements for access.

Here is a way to think about your digital estate: what is the level of importance for each account? If it were deleted and all contents removed, how would it impact your life? Is it a “single sign on,” where credentials are needed to log into other accounts? Are there payment methods attached to the account, like automatic withdrawals or credit cards?

Many accounts may be dormant, like an old email address you stopped using ten years ago. However, what about the important accounts that are central to the business of your life, like checking and savings accounts, or personal email?

Tech giants like Google, Amazon, Microsoft, and Apple have made their way into many aspects of our lives. If you have a library of ebooks, or an online gaming presence with digital assets, would you wish to maintain those assets? Think about all the autopayment accounts that you have—and how much money your estate would lose if those accounts could not be shut down.

Once you have identified all of your important accounts, examine them one by one to see what if they have a legacy process. Then start thinking about what you would like to happen to the accounts and their contents, in case of your incapacity or death. Having a digital estate plan today is not futuristic at all—it’s how we live, and our estate plans should be updated accordingly.

Your estate planning attorney will know what your state’s laws are for digital assets, just as they do for more traditional assets.

Last word: do not include your usernames or passwords in your will. A will becomes a public document upon probate, and this information must be protected from identity thieves if the accounts are to remain secure.

Reference: Next Avenue (Jan. 1, 2021) “Why You Need a Digital Estate Plan and How to Make One”

 

You've got a lot to protect.

Do We Need Estate Planning?

Estate planning is not just about making a will, nor is it just for rich people who live in mansions. Estate planning is best described in the title of this article “Estate planning is an important strategy for arranging financial affairs and protecting heirs—here are five reasons why everyone needs an estate plan” from Business Insider. Estate planning is a plan for the future, for you, your spouse and those you love.

There are a number of reasons for estate planning:

  • Avoiding paying more federal and state taxes than necessary
  • Ensuring that assets are distributed as you want
  • Naming the people you choose for your own care, if you become incapacitated; and/or
  • Naming the people you choose to care for your minor children, if you and your spouse left them orphaned.

If that sounds like a lot to accomplish, it is. However, with the help of a trusted estate planning attorney, an estate plan can provide you with the peace of mind that comes with having all of the above.

If those decisions and designations are not made by you while you are alive and legally competent, the state law and the courts will determine who will get your assets, raise your children and how much your estate will pay in death taxes to state and federal governments. You can avoid that with an estate plan.

Here are the five key things about estate planning:

It’s more than a will. The estate plan includes creating Durable Powers of Attorney to appoint individuals who will make medical and/or financial decisions, if you are not able to do so. The estate plan also contains Medical Directives to communicate your wishes about what kind of care you do or do not want, if you are so sick you cannot do so for yourself. The estate plan is where you can create Trusts to control how property passes from one person or one generation to the next.

Estate planning saves time, money, and angst. If you have a surviving spouse, they are usually the ones who serve as your executor. However, if you do not and if you do not have an estate plan, the court names a public administrator to distribute assets according to state law. While this is happening, no one can access your assets. There’s a lot of paperwork and a lot of legal fees. With a will, you name an executor who will take care of and gain access to most, if not all, of your assets and administer them according to your instructions.

Estate planning includes being sure that investment and retirement accounts with a beneficiary designation have been completed. If you don’t name a beneficiary, the asset goes through the probate court. If you fail to update your beneficiary designations, your ex or a person from your past may end up with your biggest assets.

Estate planning is also tax planning. While federal taxes only impact the very wealthy right now, that is likely to change in the future. States also have estate taxes and inheritance taxes of their own, at considerably lower exemption levels than federal taxes. If you wish your heirs to receive more of your money than the government, tax planning should be part of your estate plan.

The estate plan is also used to protect minor children. No one expects to die prematurely, and no one expects that two spouses with young children will die. However, it does happen, and if there is no will in place, then the court makes all the decisions: who will raise your children, and where, how their upbringing will be financed, or, if there are no available family members, if the children should become wards of the state and enter the foster care system. That’s probably not what you want.

The estate plan includes the identification of the person(s) you want to raise your children, and who will be in charge of the assets left in trust for the children, like proceeds from a life insurance policy. This can be the same person, but often the financial and child-rearing roles are divided between two trustworthy people. Naming an alternate for each position is also a good idea, just in case the primary people cannot serve.

Estate planning, finally, also takes care of you while you are living, with a power of attorney and healthcare proxy. That way someone you know, and trust can step in, if you are unable to take care of your legal and financial affairs.

Once your estate plan is in place, remember that it is like your home: it needs to be updated every three or four years, or when there are big changes to tax law or in your life.

Reference: Business Insider (Jan. 14, 2021) “Estate planning is an important strategy for arranging financial affairs and protecting heirs—here are five reasons why everyone needs an estate plan”

 

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Wealthy Women Face Challenges in Estate and Tax Planning

Election cycles often mean changes to estate and tax planning strategies around estate planning, charitable donations and capital gains, but that’s not the only challenge facing wealthy women now, says a recent article “For Wealthy Women, Tax and Estate Planning is Weak Link” from Think Advisor. Preparing for big changes, from presidential elections to death or divorce, is all too often a surprise, even for accomplished and financially successful women.

Statistically, women do outlive men, so there needs to be a plan for the unexpected. As attitudes shift and more women build their own wealth, they are less likely to stay in unsatisfying marriages. Although the overall rate of divorce in America is declining, the number of “gray” divorces is increasing. So now is a good time to review.

One essential step in planning for high net worth women is to consider what assets they will need to continue their current lifestyles, and what assets would be at risk, in case of death or divorce.

Some assets are not available to singles, like the Spousal Lifetime Access Trust, an irrevocable trust available to couples but not to singles. For those considering divorce who have a SLAT agreement, speak with your estate planning attorney, as the SLAT may include a provision that terminates spousal trust rights upon divorce. Women should not assume that these or other assets will be available to them in case of a divorce.

There are also future costs associated with losing a spouse. If women do not have long-term care insurance, it should be purchased, if she still qualifies. These policies become more expensive as time goes by, so the 40s and 50s are the ideal time to invest in them.

Timing and tax policy changes from a new administration make this a good time to begin planning for any changes that may come in the next year. Women with substantial net worth should be making plans for gifting and trusts now. The gift tax lifetime exemption remains at $11.7 million, but even if there is no legislative action, on January 1, 2026, this will return to $5 million.

Dramatic changes in asset valuation resulting from the pandemic may make this a good time to transfer shares to children and grandchildren, including real estate holdings and closely held family businesses.

The effects of COVID-19 have provided a global lesson in preparing for the unexpected. Among many other issues has been a huge backlog in most surrogate courts. Even families who had an estate plan in place, found their estate planning hampered by waiting for courts to appoint executors.

In many cases, surviving spouses (mostly women) found themselves unable to move an estate plan forward, gain access to assets, even to pay household bills. Families who have been lucky enough to escape the impact of COVID-19 so far, should take the opportunity to plan for the unexpected, including the creation of a revocable trust, so the trustee can swiftly access assets and start managing right away, rather than waiting for courts to clear.

Reference: Think Advisor (Jan. 6, 2021) “For Wealthy Women, Tax and Estate Planning is Weak Link”

Suggested Key Terms: High Net Worth Women, Wealthy, Capital Gains, Charitable Donations, Estate Planning Lawyer, Tax, SLAT, Irrevocable Trust, Trustee, Executor, Surviving Spouse, COVID-19, Surrogate Courts

Do I Assume My Parents’ Timeshare when They Die?

You’ve seen the commercials and heard the stories. A timeshare can be great, but there can be trouble in paradise. Ridding yourself of a timeshare contract can be difficult. Frequently, heirs of a timeshare owner don’t want to take on the liability and the responsibility.

Nj.com’s recent article entitled “Can I leave a timeshare to the timeshare company in my will?” explains that as a general rule, unless it’s in an attempt to defraud creditors, a beneficiary may always renounce or disclaim a bequest made to him or her in a will.

However, if you write a provision in your will, it doesn’t mean that it’s legal, needs to be followed, or can be carried out.

As an example, a beneficiary designation on a bank account or certificate of deposit (CD) to your brother Dirk would take precedence over a specific bequest in your will that the same account or CD goes to your brother Chris. In that instant, the bank will pay the bank account or CD to your brother Dirk—no matter what your will says.

Likewise, with shares in a closely held business. If there is a contract between the shareholders dictating what happens to shares of the business if someone dies, that agreement will also override a provision in your will.

A timeshare is a contract. That means the terms of that contract control what happens. Your will doesn’t.

If the will doesn’t contradict the contract, like bequeathing the timeshare to a third-party who will continue to pay the contract obligations, both documents can co-exist.

A timeshare owner can’t avoid contractual obligations by just giving back the unit back to the corporation, unless that’s permitted in the contract.

The timeshare company isn’t required to take back a timeshare unit whether it is returned by the terms of the will or by the executor in administrating the estate, unless the signed timeshare agreement provides for this, or terms of the return are negotiated.

Reference: nj.com (Dec. 24, 2020) “Can I leave a timeshare to the timeshare company in my will?”

 

How to Plan for ‘Black Sheep’ Kid in Will

Every family has unique circumstances as far as wealth, financial planning and plans for the future. Therefore, it is critical that you consider your individual beneficiaries’ circumstances, when it comes to estate planning.

Kiplinger’s recent article entitled “Estate Planning for ‘Black Sheep’ Beneficiaries” explains that this may take the shape of child with a substance abuse issue, a lack of financial acumen and responsibility, or a mental illness. You also may want to reward certain behaviors in the future. All these situations can be addressed thoughtfully and effectively in your estate planning documents with the help of an experienced estate planning attorney. Let’s dispel some of the common myths surrounding these issues:

Myth #1: You are required to split your estate evenly among your children. Disinheriting a beneficiary happens a lot. It can occur for a variety of reasons that have nothing to do with disapproval of a potential beneficiary’s lifestyle choices. Regardless of the reason for disinheriting completely or making unequal distributions, it’s best to discuss this in your estate documents or in a separate letter. Give the reasons for your decision to head off any possible claim against the estate or even just hard feelings among family members.

Myth #2: Once you’ve disinherited your black sheep, it’s irreversible. Not so. You should review your estate planning choices regularly because situations change (hopefully for the better), and you can revise your estate plan to provide incentives for your beneficiary to continue making progress.

Myth #3: You have no control of the issue after you pass away. While there’s no direct control after you die, you can, however, make specific instructions in your trust to reward and motivate your black sheep to behave in a certain fashion. You can also treat the share of inheritance for one beneficiary differently than others. Therefore, a financially responsible child may be allowed to access such a share of the estate in one lump sum; but you create a trust for the second child who has issues.

Myth #4: Trusts are huge hassle. Certain trusts permit you to name a person to help your beneficiary manage their inheritance. This can be a family member or friend, as well as a professional trustee who will assume the administrative responsibilities of a trust.

Don’t avoid the subject of estate planning. Work with an experienced estate planning attorney and discuss the options available.

Reference: Kiplinger (Dec. 8, 2020) “Estate Planning for ‘Black Sheep’ Beneficiaries”

What Should I Know about Reverse Mortgage Scams?

A reverse mortgage is a loan that gives seniors access to the equity they have built up in their home (it is the property’s current value, less any outstanding loans or liens) without having to sell it. Most reverse mortgage are not scams. Lenders can be reputable and fair, and reverse mortgages can be appropriate if you know about the risks. With a reverse mortgage, the borrower gets in effect, a tax-free advance on their equity, as a line of credit, fixed monthly payments, or a lump sum. For many reverse mortgages, you must use the proceeds to pay off your existing mortgage. The remainder of the loan comes due when the owner moves, sells the house, or passes away.

As AARP’s recent article entitled “Reverse Mortgage Scams” explains, reverse mortgages are available to homeowners age 62 and over. Reverse mortgages are complicated, and they can be risky. Scammers try to take advantage of this complexity to entice older homeowners into fraudulent deals. They market reverse mortgages to seniors as “investment seminars” and as the solution for financial issues. These fraudsters also claim that they provide “free” income or a way to delay filing for Social Security.

A team of crooks may include unethical mortgage brokers or financial advisers, who work with corrupt appraisers, attorneys and loan officers. They present an inflated appraisal of a home’s value to the senior. This inflates the equity and the potential loan, then they try to get the owner to take out a reverse mortgage. The team will do the paperwork, close the loan and come up with an excuse to get the money or even take title to the house.

These fraudsters might try to sell you on a purported can’t-miss investment or financial product. Some scammers prey on financially strapped homeowners, saying that a reverse mortgage can help them avoid foreclosure or get out of debt. They will charge fees up to thousands of dollars to provide info about reverse mortgages that is actually available for free from the federal government.

Other convoluted cons use reverse mortgages as a way to conceal property flipping. These scammers will buy a rundown house and crate bogus documents to make the dump look more valuable. They’ll find a senior to purchase it using a type of reverse mortgage that can be put toward a home purchase, or offer it as a “free home,” in which they transfer the title for little or no money, if the target agrees to get a reverse mortgage. When the deal’s settled, the crooks take the loan money and the victims are left with the shack.

The best advice? If it sounds too good to be true, it probably isn’t. Talk to an elder lawyer if you aren’t sure.

Here are some warning signs. Watch out for a broker or lender who uses high-pressure tactics to try to talk you into a reverse mortgage. You should also avoid a salesperson who says the loan is safe because it is insured by the Federal Housing Administration (the FHA does insure some reverse mortgages, but that coverage does not protect the borrower only the lender in a default). It is also important to be beware, if they don’t disclose the fees, conditions and risks that are associated with a reverse mortgage, including the possible loss of your home, which serves as collateral.

Reference: AARP (December 2020) “Reverse Mortgage Scams”

 

Who Makes Money from Charlie and the Chocolate Factory?

The heartwarming drama is fictional, even though the two writers did once meet, says UK’s The Express in its recent article entitled “Roald Dahl inheritance: Who is raking in fortunes made from Dahl books & films?” Let’s find out who gets the income from Roald Dahl’s estate.

Roald was a mere lad and Beatrix was in her 60s, when the two authors briefly met one another. Dahl’s books and films are classics and are constantly being revamped and reimagined 30 years after his death.

But with Roald no longer around, who gets the money from his books and films? Roald died in 1990 at age 74 and was believed to have a net worth of $10 million.

The lion’s share of his income from films, books and merchandise is managed by his estate.

The latest data from Roald Dahl’s estate shows annual pre-tax profits of about $17 million in 2018.

This income is from television and film deals, theatrical performances, royalties, fancy-dress costumes and a line of baby toiletries.

On a personal note, a Broadway production of Charlie and the Chocolate Factory, based on Roald Dahl’s 1950’s British novel, opened in New York’s Lunt-Fontanne Theater in 2017, replacing my daughter’s Broadway debut show, Finding Neverland.  The musical, Matilda, also based on a Dahl book, was running a block away. (But I digress!)

After Roald’s death, his widow Felicity inherited the majority of the $3.75 million he left in his will. This is worth nearly $6.75 million in today’s dollars.

Every year, fans commemorate Roald Dahl Day to celebrate his stories and their characters. Held on the anniversary of his birth—September 13—his books, films and characters are celebrated.

The author spent four hours every day writing stories from his garden shed. In all, Roald wrote at least 36 books, including James and the Giant Peach, Matilda, The Twits and Fantastic Mr. Fox. His works continue to be popular for film and stage adaptations.

A new version of The Witches, starring Anne Hathaway, was released earlier this year, while Hollywood stars including Johnny Depp, Mark Rylance and Danny DeVito have all appeared in film versions of his stories.

Reference: The Express (UK) (Dec. 12, 2020) “Roald Dahl inheritance: Who is raking in fortunes made from Dahl books & films?”

 

Estate Planning Is Best When Personalized

Just as a custom-tailored suit fits better than one off the rack, a custom-tailored estate plan works better for families. Making sure assets pass to the right person is more likely to occur when documents are created just for you, advises the article “Tailoring estate to specific needs leads to better plans” from the Cleveland Jewish News.

The most obvious example is a family with a special needs member. Generic estate planning documents typically will not suit that family’s estate planning.

Every state has its own laws about distributing property and money owned by a person at their death, in cases where people don’t have a will. Relying on state law instead of a will is a risky move that can lead to people you may not even know inheriting your entire estate.

In the absence of an estate plan in Virginia, the Circuit Court makes decisions about who will administer the estate and the distribution of property. Without a named executor, the court will appoint a local attorney to take on this responsibility. An appointed attorney who has never met the decedent and doesn’t know the family won’t have the insights to follow the decedent’s wishes.

The same risks can occur with online will templates. Their use often results in families needing to retain an estate planning attorney to fix the mistakes caused by their use. Online wills may not be valid in your state or may lead to unintended consequences. Saving a few dollars now could end up costing your family thousands to clean up the mess.

Estate plans are different for each person because every person and every family are different. Estate plan templates may not account for any of your wishes.

Generic plans are very limited. An estate plan custom created for you takes into consideration your family dynamics, how your individual beneficiaries will be treated and expresses your wishes for your family after you have passed.

Generic estate plans also don’t reflect the complicated families of today. Some people have family members they do not want to inherit anything. Disinheriting someone successfully is not as easy as leaving them out of the will or leaving them a small token amount.

Ensuring that your wishes are followed and that your will is not easily challenged takes the special skills of an experienced estate planning attorney.

Reference: Cleveland Jewish News (Dec. 9, 2020) “Tailoring estate to specific needs leads to better plans”

 

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How Can Blended Families Use Estate Planning to Protect All of the Siblings?

If two adult children in a blended family receive a lot more financial help from their parent and stepparents than other children, there may be expectations that the parent’s estate plan will structured to address any unequal distributions. This unique circumstance requires a unique solution, as explained in the article “Estate Planning: A Trust Can Be Used to Protect Blended Families” from Colorado’s The Daily Sentinel. Blended families in which adult children and stepchildren have grandchildren also require unique estate planning.

Blended families face the question of what happens if one parent dies and the surviving step parent remarries. If the deceased spouse’s estate was given to the surviving step parent, will those assets be used to benefit the deceased spouse’s children, or will the new spouse and their children be the sole beneficiaries?

In a perfect world, all children would be treated equally, and assets would flow to the right heirs.  However, that does not always happen. There are many cases where the best of intentions is clear to all, but the death of the first spouse in a blended marriage change everything.

Other events occur that change how the deceased’s estate is distributed. If the surviving step-spouse suffers from Alzheimer’s or experiences another serious disease, their judgement may become impaired.

All of these are risks that can be avoided, if proper estate planning is done by both parents while they are still well and living. Chief among these is a trust,  because a simple will can never provide the level of control of assets needed in this situation. Don’t leave this to chance—there’s no way to know how things will work out.

A trust can be created, so the spouse will have access to assets while they are living. When they pass, the remainder of the trust can be distributed to the childr

If a family that has helped out two children more than others, as mentioned above, the relationships between the siblings that took time to establish need to be addressed, while the parents are still living. This can be done with a gifting strategy, where children who felt their needs were being overlooked may receive gifts of any size that might be appropriate, to stem any feelings of resentment. Life insurance may be one tool to bring about an equalization.

That is not to say that parents need to use their estate to satisfy their children’s expectations. However, in the case of the family above, it is a reasonable solution for that particular family and their dynamics.

A good estate plan addresses the parent’s needs and takes the children’s needs into consideration. Every parent needs to address their children’s unique needs and be able to distinguish their needs from wants. A gifting strategy, trusts and other estate planning tools can be explored in a consultation with an experienced estate planning attorney, who creates estate plans specific to the unique needs of each family.

Reference: The Daily Sentinel (Dec. 16, 2020) “Estate Planning: A Trust Can Be Used to Protect Blended Families”

 

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