Tenancy by the Entirety

The first major change of 2011 provided new options to married couples in how they own their home.  Tenancy by the entirety was a special protection available for the marital residence.

Normally, a person’s house is completely exposed to their creditors apart from a $15,000 homestead exemption.  But married couples can own their primary residence (and only their primary residence) in tenancy by the entirety.

Tenancy by the entirety works the same as joint tenancy, meaning that when one spouse dies the other spouse inherits the entire property.  But it also adds some major creditor protection.  A home held in tenancy by the entirety can’t be lost to creditors of only one spouse.

Of course, creditors try to find a reason (any reason!) to drag the other spouse into the picture.  Even so, it’s a very strong protection.

Prior to 2011, tenancy by the entirety was only available to married couples who owned their homes directly or via a land trust.  Owning a home directly exposes the home to probate.  Land trusts were a common solution to the probate problem, but that usually meant paying annual fees to a bank to maintain the land trust.

Starting January 1, 2011, tenancy by the entirety protection became available to couples who want to own their home in a traditional revocable living trust.  It’s not automatic and it does not apply to people who transferred their home into their trust prior to January 1, 2011.  The trust and the deed need to be drafted with tenancy by the entirety in mind.

The new statute provides a useful alternative for married couples who want to: (1) hold their home in tenancy by the entirety; (2) keep their estates out of probate; and (3) avoid paying a bank for an expensive land trust.

Civil Union Act

On June 1, 2011, the Illinois Religious Freedom Protection and Civil Union Act went into effect.  That law made Illinois just the sixth state in the nation to recognize civil unions for same-sex couples. Civil union partners have the right to be treated as a spouse under the Probate Act.  They can also hold their primary residence in tenancy by the entirety (previously granted only to married couples—singles and same-sex couples were out of luck!).

While the Civil Union Act provides certain safeguards, its benefits don’t extend to every aspect of estate planning.  And at best, it means that same-sex couples get the same bad “default” Illinois estate plan as traditional married couples.  So it is important for same-sex couples to have a comprehensive estate plan that addresses their property and health care.

To 2012…and Beyond!

Those are the major stories from 2011.  There’s more to come for 2012, and we’ll be sharing it with you as it happens.  We look forward to a great year of serving you!

A new version of the Illinois Power of Attorney Act went into effect July 1, 2011.  The law changed the rules and statutory form for the Power of Attorney for Property and the Power of Attorney for Health Care.

No doubt, you are probably thinking, “what happens to the powers of attorney I signed 1 (or 2, 5, 10) years ago?”  Don’t worry.  If you have existing powers of attorney, you are not required to rush out tomorrow and sign new ones.

Of course, if they’re more than a few years old, you may still want to get them updated.  Banks sometimes question outdated powers of attorney (those more than 3 years old).  And if you’re over the age of 55, you’ll definitely want to consider a power of attorney with long-term care and elder law provisions (the statutory form which most people have does not address these issues).

While there are many technical changes to the Power of Attorney for Property, the most noticeable change is the ability to name multiple people to act as your agents simultaneously under a Power of Attorney for Property.  Your panel of agents can then act on your behalf by majority vote if you become incapacitated.

The new Power of Attorney for Health Care also provides broader access by your agents to your health care information if they need to act under the power of attorney.  These changes were made necessary by the HIPAA privacy rules that were published in August, 2002.  If you have a separate HIPAA authorization as part of your estate plan (and you do if we drafted your plan), you may not need to update your Power of Attorney for Health Care.

From a legal standpoint, I would describe the changes as a “solid upgrade”.  Something to be aware of, but not likely creating any need for action on your part—unless you were sorely lacking in the power of attorney department to begin with!

In Part 2, we’ll fill you in on the rest of the changes from 2011 and look ahead at what to expect in 2012.

The Illinois estate tax rules have caught many people by surprise.  So much attention has been paid to the federal estate tax (which currently has a $5 million exemption) that many have forgotten that Illinois has an estate tax too.

Under the 2009 and 2011 Illinois estate tax rules (there was no Illinois estate tax in 2010), a person dying with an estate of $2.5 million would owe no federal taxes.  But their estate would have to write a $128,518 check to the Illinois Department of Revenue.  That big number often shocks people who think of their estates as “just a little bit over the $2.0 million limit.”

Good news arrived last week, though, for Illinois families.  On December 20, Governor Quinn signed a law raising the estate tax exclusion (the minimum estate size before Illinois estate taxes are due) from $2.0 million (currently) to $3.5 million for 2012 and $4.0 million for 2013 and beyond.

Too many times this year I’ve had clients ask whether they should consider moving to another state to avoid Illinois estate taxes.  By narrowing the gap between the Illinois and federal estate tax rules, fewer families will need to consider advanced planning techniques.

But…the good news from Illinois is tempered by the uncertainty behind the federal estate tax rules that is still hanging over everyone’s heads.  The federal estate tax exemption for 2012 is currently $5.0 million, but it drops back down to $1.0 million for 2013 and beyond.  Several proposals have been made in Congress for a permanent solution.  So stay tuned!

Our choice to use Macs was about more than just what software our computers were using.  It impacts how we do everything that we do.

In an interview with Business Week in May, 1998, Steve explained his philosophy:

“That’s been one of my mantras – focus and simplicity. Simple can be harder than complex: You have to work hard to get your thinking clean to make it simple. But it’s worth it in the end because once you get there, you can move mountains.”

And during an interview with Fortune magazine in 2000, Steve said:

“We don’t have good language to talk about this kind of thing,” Mr. Jobs replied. “In most people’s vocabularies, design means veneer. It’s interior decorating. It’s the fabric of the curtains and the sofa. But to me, nothing could be further from the meaning of design. Design is the fundamental soul of a man-made creation that ends up expressing itself in successive outer layers of the product or service. The iMac is not just the color or translucence or the shape of the shell. The essence of the iMac is to be the finest possible consumer computer in which each element plays together. … That is the furthest thing from veneer. It was at the core of the product the day we started. This is what customers pay us for — to sweat all these details so it’s easy and pleasant for them to use our computers. We’re supposed to be really good at this. That doesn’t mean we don’t listen to customers, but it’s hard for them to tell you what they want when they’ve never seen anything remotely like it.”

We have tried to bring that same sense of design to our practice.  Real design that makes things simpler and more understandable—not just decoration.  To “Think Different”.

The feedback we have received from our clients suggests we have been quite successful in that.

But we know that we have only scratched the surface.  And we say thanks to Steve Jobs for showing us just how deep that hole goes.

With the increase in life expectancies and rise in disabling conditions like Alzheimer’s disease, extended stays in long-term care facilities are more and more common.  And the result is thousands of seniors and their families facing what are often crippling long-term care bills.  What is so sad is that many families don’t know that help is available from Medicaid.

The Medicaid eligibility rules are tough, but it is not something you should think of as “only for the poor.”  Seniors frequently qualify for Medicaid while protecting thousands of dollars in assets for themselves, their spouses, or their families.  Smart planning makes all the difference because it helps pay for many “extras” that Medicaid and Medicare do not cover.  I am passionate about helping families escape from that feeling of hopelessness every time the long-term care bill comes.

The rules HFS announced are not the final rules.  There is still a period for public comment and changes.  But they do give us an inside look into the direction Illinois is heading with its implementation of the DRA guidelines.

There are a few important things to take away from the proposed rules:

• Crisis planning to protect assets and qualify for Medicaid will still be possible
• Advance Medicaid planning will become even more valuable to protect your hard-earned assets (best for people who are completely healthy but looking forward 6-10 years)
• Medicaid will be giving additional asset protection advantages to people who have long-term care insurance in place, making the insurance doubly useful (but it has to be the right kind of policy, not just any old policy will do!)

As the rules move through the process, I will keep you updated about any developments.  But consider this your “heads up” that changes are on the way!

The good news is that there’s still time to get an application in under the current Medicaid rules.  So if you know anyone who is in a long-term care facility or think may need assistance soon, tell them to call my office.  We may be able to help.

Let me start by saying that I am one of those moms who is very strict about sunscreen.  My kids do not go swimming or play outside for very long without a healthy coat of sunscreen.

But Jeff and I found ourselves on the beach on a very overcast day.  I know that clouds don’t prevent sunburns.  But we were also sitting under one of these:

…our very own tiki hut.  The thought of sunscreen entered my mind, but quickly left because we were “safe” under the tiki hut.

So there we sat — in the “shade” on a cloudy day — and read our legal books for hours and hours.  How did our little beach adventure turn out?

Sunburn.  Lots of it.  Jeff got the worst of it because he is very fair skinned.  But I didn’t escape scot free.

The tiki hut gave us a huge false sense of security.  We felt incredibly safe because we had taken some steps, even though they weren’t enough.  In a sense, the cloudy skies and tiki hut prevented us from taking the truly effective steps that we needed to take to protect ourselves.

I run into the same thing all the time when talking to people about their estate plans.

• The people who told me they got a Will to avoid probate (but a Will actually guarantees probate)
• The parents who were very proud that they named guardians in their Will (but had done nothing to address who would care for their kids on short notice or if they were injured but not killed)
• The adult children who took money from their elderly parent’s accounts to reimburse expenses they had incurred (but they hadn’t kept proper records so their parent’s eligibility for Medicaid long-term care coverage was put in danger)
• The people who tell me their estates won’t have to pay estate taxes (but they didn’t include the value of their life insurance policies when they added up their estate)
• And many other stories we hear…

Each of these people felt a false sense of security because they hadn’t been properly educated by their attorney (or had gotten documents without seeing an attorney at all, such as from Legal Zoom).  We are strong believers in education because good decisions are only possible by having the full picture.  That’s why we became National Preparedness Coalition Members.

If Jeff and I had the full picture, we wouldn’t have had to stay inside for three straight days of our “beach vacation” because of a serious sunburn.  But the stakes are much bigger in estate planning.

So, get a head start on National Preparedness Month.  Ask yourself, have you fully investigated what you need to do to protect yourself and your family?  Or are you living under a false sense of security?  If you have any questions about your plan, call me and let’s talk about it.

But don’t just think about your own family.  If you believe someone you know — a friend or family member — has a false sense of security, take the initiative to send them this email.  Tell them to get prepared — and get their plan checked out.

Or your spouse runs a business, and the bank required them to personally guarantee a loan.  Now, the business isn’t doing so well, and the bank is asking about other ways your spouse might come up with the money.  Is your home safe?

Or perhaps your spouse gets into trouble with their credit card spending, and bankruptcy seems like the only option for them.  You’re making enough to pay the monthly bills, including your mortgage.  But can the credit card companies really make you sell your home to cover your spouses charges?

In Illinois, the answer to both questions might be no … if you own your home as “tenants by the entirety.”

Don’t let the complicated name scare you off (and let’s just call it “entirety protection” to keep it simple).  Entirety protection is a really important protection for married couples, and one that is overlooked by many estate planning attorneys.

You don’t get entirety protection automatically.  But a new law signed last week by Governor Quinn makes it much easier to use a living trust and keep entirety protection for your home.

Why is entirety protection so important?  Well, it protects your home from claims made against either you or your spouse (but not from claims made against you both).  Without entirety protection, a creditor of your spouse could place a lien on your home and might even force you to sell your home to pay off the debt or claim.

Until now, there have been only two ways to get entirety protection:

1. Own your home together with your spouse, where the deed includes the words “tenancy by the entirety” or “tenants by the entireties”
2. Own your home in a land trust, where you and your spouse are the beneficiaries

But the new law allows for a third way to get entirety protection—using a traditional living trust.

The keys to entirety protection under the new law are a properly structured deed and living trust (or trusts, if you and your spouse each have your own trust).

If you already have a land trust, that’s great!  As long as your land trust states that your home is held in “tenancy by the entirety,” you don’t need to do anything.  The new law doesn’t change anything for you.

But if you’re not sure how your home is owned or whether it has entirety protection, I can tell you by taking a look at your deed and living trust or land trust.  There’s no fee for this service.  It’s my gift to you to make sure you don’t miss out on this invaluable protection for your home.

As always, I am here to help you and educate you — bringing you the latest developments in the law that affect your family.

Saying that Evan is local is an understatement.  He is not only from Naperville, but he is from our neighborhood.  He went to the same elementary school and middle school as our children now attend (and he went to the high school our children will go to, but I am really trying not to think about high school yet).

Last week we began wondering how much the stars got paid to appear on the show.  I had heard rumors that some of the stars (such as this season’s Pamela Anderson) went on the show primarily to make money.  So the obvious question was, “how much?”

Well, it wasn’t even ten minutes later and Jeff had found the answer.  During Season 8, the stars earned $125,000 just for appearing on the show.  The stars could also earn up to $240,000 more by making it to the finals.  And what about winning the whole competition?  The only reward for that appears to be the mirrored ball trophy.

How do we know all of these details?  Usually reality TV shows include a pretty tight non-disclosure agreement forbidding the participants from talking about the show and their contract.  That’s why we don’t hear much about how shows like Survivor and The Bachelor are actually produced.

But Season 8 on Dancing With The Stars was different because Olympic gymnast Shawn Johnson was one of the stars.  What made Shawn different from previous competitors is that she was a minor (she was 17 when she competed, having just turned 18 in January).

Shawn’s contract with Dancing With The Stars had to be approved by a judge because minors don’t have the same ability to enter into contracts as adults.  And the second that contract was filed with the court, it became a public record.

It’s the same deal with probate.  Far from avoiding probate, having a will actually guarantees probate (with the exception of some estates under $100,000).  Your will and a complete accounting of your assets will become part of the public record.

Now, it’s unlikely that reporters from TMZ are going to be digging through your court records after you pass away like they have done with Michael Jackson’s estate.  But you may have your own reasons for wanting to keep your family, friends, and neighbors from learning the details of your assets and what gifts you made.

That’s just one of the reasons why more and more people are turning to living trusts for their estate plans:  trusts are private.

If you have only a will, I encourage you to investigate the benefits offered by a living trust.

In the meantime, don’t forget to vote for Evan on Dancing With The Stars!

But more than just your house needs maintenance.  You would be well advised to review your estate plan at the same time.

Many of your assets are controlled by beneficiary forms.  Typically, these will be your retirement accounts (such as IRAs, 401(a), 401(k), and 403(b) accounts), life insurance policies, and any other accounts you have with a transfer on death (TOD) or payable on death (POD) designation.

When your beneficiary forms don’t keep up with changes in your life, it can cost you — and the people you love — lots of money.

Have you, or someone you know, gone through any of these major life changes since you last checked your beneficiary forms:

• Gotten married
• Gotten divorced
• Had a child
• Lost a husband or wife

Many people automatically think to update their estate plan when they have one of these major life events.  But the beneficiary forms often slip through the cracks.

I have read several stories in the news recently about money from a retirement account or life insurance policy going to the wrong people because beneficiary forms weren’t updated.

• If you have gotten divorced, is your ex-wife or ex-husband still the beneficiary of your life insurance?
• If you have gotten married, are your parents or siblings still the beneficiaries on your accounts?

It can be tough to predict what life changes will make you rethink your beneficiary forms.  So put it on your calendar.  Every year, get a copy of all of your beneficiary designations and make sure they reflect the life you now lead.

It’s time for spring cleaning!

As we clean out the garage and do yearly upkeep on our homes, we shouldn’t neglect our estate plans.  Proper maintenance is the key to the success of your living trust.  And just like your furnace has different needs than your air conditioner — so too does your retirement account have different needs than your checking account.

Retirement accounts — IRA, 401(k), and other employer-sponsored plans — aren’t just a great way to save for your retirement.  They’re also a great way to use the power of compound interest and tax-deferred growth (or tax-free growth for a Roth account) to turn thousands into millions.

I often compare a living trust to a bucket for holding money and assets.  But take a wrong turn — by using the wrong kind of bucket — and your heirs will stand by helplessly while the IRA custodian completely pays out the IRA and closes the account.

What would your heirs end up with?  No compound interest.  No tax-deferred growth.  And a giant tax bill from Uncle Sam.

This problem is actually more common than you might think.  But before we dig into how your IRA might be broken, let’s take a look at how it’s supposed to work.

Stretch Your IRA Distributions

The IRS allows an inherited IRA account to be distributed over the life of the beneficiary.  This is called “stretch out” of distributions, or a Stretch IRA.  So if you pass away leaving your IRA to your 35 year old son, the IRS uses his life expectancy to calculate minimum distributions — not yours!

Some living trusts aren’t designed to work with retirement accounts and don’t support stretch out of any kind.  These trusts force an IRA into the Five Year Rule.  That means the IRA must be completely paid out by the end of the fifth year after the owner’s death.

But some institutions don’t even give you that long.  You may be forced to take a single distribution, paying all the taxes in a single year (say hello to the 35% tax bracket if you inherited a sizable IRA). This happened to a recent client of mine.  Her father’s IRA was distributed in one large payment because the living trust didn’t meet the IRS stretch out rules.

It makes sense that the later you pay taxes, the better off you will be. Let’s take a look at an example to see just how much better is a stretch IRA than falling under the Five Year Rule.

See the Stretch in Action

Imagine you leave a $100,000 IRA to Angela, your 30-year-old daughter or granddaughter.  Angela has a professional job, putting her squarely in the 28% income tax bracket.

Angela invests the IRA in growth mutual funds.  It’s tough to predict what the stock market will do (just look at the past two years for evidence of that).  But we will assume that, over the long term, the IRA earns a 5% annual return, adjusted for inflation.  History suggests that Angela might be able to achieve a 7% return, but let’s be conservative.

The IRA With a Lump Sum Distribution

Let’s assume that Angela received her inherited IRA from a living trust just like the one my client’s father had.  Angela receives $72,000 from the original $100,000 IRA after taxes.  If Angela invests that money and never spends a cent, she could expect to have $239,643 when she retires at 65 (under the above assumptions).

That sounds pretty good.  And keep in mind that we adjusted for inflation.  If we hadn’t, the final figure would have been much higher. So the $240k figure is in today’s money, shopping at today’s prices.

The Stretch IRA is going to have to be pretty good to beat that.  Let’s see how it does…

The IRA with Stretch Out Distributions

If Angela is able to stretch out her distributions, she won’t have to pay any taxes up front.  She will have to take small distributions each year that are required by the IRS (called Required Minimum Distributions, or RMDs).  Over the next 35 years, those distributions will add up to $190,698 after taxes.

But even after all the distributions, Angela would still have $138,423 remaining in her trust (after taxes, if she took it as a lump sum payment at age 65).

The total value of Angela’s IRA over the 35 year period is $329,121.

You read that right.  The Stretch IRA beat the lump sum distribution by almost 73%.

The lump sum distribution performed respectably, getting Angela a nearly 240% return on her investment.

But would you turn down an extra 90% profit? I didn’t think so.

Now, of course, this is just an example.  But they show the tremendous growth potential of an IRA when it remains intact and is allowed to grow for decades.

Imagine fully funding the retirement of your grandchildren — before they have even graduated from college.  That’s what a stretch IRA can do for your family.

Securing Your IRA Stretch Out

By now you might be thinking, “Ok, Natalia — just tell me what I should look for on my beneficiary form.”  Unfortunately, it’s not that simple.  Two things will determine whether your IRA can be stretched out or will fall under the Five Year Rule:

1. How your beneficiary form is filled out
2. The terms of your revocable living trust

You will probably need the help of an attorney to sort this out — particularly if your living trust is the beneficiary of your retirement account.  One wrong step could cost your children hundreds of thousands of dollars over their lifetime.

If you have a large IRA (over $100k) and are concerned about stretch out, you might consider a Retirement Plan Trust.   It works in many ways like a living trust, but it is specifically designed to meet the IRS stretch out rules for retirement accounts.

Call our office if you would like to discuss stretching out your retirement accounts or want to learn more about the Retirement Plan Trust.