Special Needs Trusts: Estate Planning is more than Tax Planning

Estate planning involves more than avoiding probate and estate taxes. Probate can be avoided by using Revocable Living Trusts. Estate taxes are not a concern for most U.S. taxpayers with the gift and estate tax exemption now at $11.4 million per person. Because of “portability,” a husband and wife can either gift or pass upon death $22.8 without paying any gift or estate tax, regardless of how assets are titled among spouses. But there are many other reasons for a comprehensive estate plan. For example, parents who have a child with special needs want the child’s inheritance to be protected so that any available government assistance remains in place despite the child’s inheritance. The Department of Health and Human Services estimates that 15% of US minor children have special needs. Absent the proper trust, the special needs child’s inherited assets would negatively affect government assistance eligibility. The key to drafting a special needs trust is to avoid the typical “ascertainable standards” prevalent in standard trusts. These ascertainable standards are “health, education, maintenance and support” – words within the trust world, interpreted by courts and commentators, that provide distribution guidelines for trustees. A special needs trust would not use ascertainable standards. In contrast, the special needs trust terms must expressly prohibit distributions that would disqualify the beneficiary from receiving government support. The trustee must have sole and broad discretion to distribute all or none of the trust income and principal. Thus, selecting a trustee in any trust is critical, but even more so with a special needs trust.

Best Lawyers 2020

We are pleased to announce the 2020 Edition of The Best Lawyers in America© has named Sunny Cameron, Tim McEvoy and John Dedon as Best Lawyers. Best Lawyers has published their list for over three decades, earning the respect of the profession, the media, and the public as the most reliable, unbiased source of legal… Read »

Mr. Crummey: A Legend in Gift and Estate Tax

I have previously written about the $15,000 annual exclusion, and Irrevocable Life Insurance Trusts (“ILIT’S”). ILIT’S are created primarily to own life insurance and remove the death benefit from the insured’s taxable estate. To achieve the desired estate tax benefit, premiums must be paid by the Trustee on behalf of the ILIT as the policy… Read »

Using Irrevocable Trusts to Eliminate Estate Tax on Insurance

Irrevocable Trusts, “ILIT” – short for Irrevocable Life Insurance Trust – are created to own life insurance policies. The significant advantage of having insurance policies owned inside an ILIT is that the death proceeds are not included in the insured’s taxable estate upon his death. Further, the death proceeds are not taxable in the surviving… Read »

Asset Titling and Beneficiary Designations – As Important as Your Estate Documents

When individuals consider how assets pass upon death, they immediately think of Wills (and perhaps Revocable Trusts for probate avoidance). What often is not considered, and even misunderstood, is that even if individuals have executed valid Wills, their wishes may not be respected. Why – because those estate documents will not generally supersede asset titling… Read »

Don’t Forget the Basics: Annual Exclusion Gifts

The annual exclusion gift amount remains at $15,000 for 2019. The annual exclusion gift is the amount that you can give to any recipient during the calendar year without gift tax consequence. For example, in 2019, if husband and wife have two children, they each can give $15,000 to each child, total of $60,000. Upon… Read »