Oconee Estate Planning Blog

Fraudsters Continue to Target Elderly

The National Council on Aging reports that seniors lose an estimated $3 billion to financial scams, which is the worst possible time in life to lose money. There’s simply no time to replace the money. Why scammers target the elderly is easy to understand, as reported in the article “Scam Alert: 4 Types of Fraud That Target the Elderly (and How to Beat Them)” from Kiplinger. People who are 50 years and older hold 83% of the wealth in America, and households headed by people 70 years and up have the highest median net worth. That is where the money is.

The other factor: seniors were raised to mind their manners. An older American may feel it’s rude to hang up on a fast-talking scammer, who will take advantage of their hesitation. Lonely seniors are also happy to talk with someone. Scammers also target widows or divorced older women, thinking they are more vulnerable.

Here are the most common types of scams today:

Imposter scams. The thief pretends to be someone you can trust to trick you into giving them your personal information like a password, access to a bank account or Social Security number. This category includes phone calls pretending to be from the Social Security Administration or the IRS. They often threaten arrest or legal action. Neither the IRS nor the SSA ever call people to ask for personal information. Hang up!

Medicare representative. A person calls claiming to be a representative from Medicare to get older people to provide personal information. Medicare won’t call to ask for your Social Security number or to obtain bank information to give you new benefits. Phone scammers are able to “spoof” their phone numbers—what may appear on your caller ID as a legitimate office is not actually a call coming from the agency. Before you give any information, hang up. If you have questions, call Medicare yourself.

Lottery and sweepstakes scams. These prey on the fear of running out of money during retirement. These scams happen by phone, email and snail mail, congratulating the recipient with news that they have won a huge lottery or sweepstakes, but the only way to access the prize is by paying a fee. The scammers might even send a paper check to cover the cost of the fee, but that check will bounce. Once you’ve sent the fee money, they’ll pocket it and be gone.

What can you do to protect yourself and your loved ones? Conversations between generations about money become even more important as we age. If an elderly parent talks up a new friend who is going to help them, a red flag should go up. If they are convinced that they are getting a great deal, or a windfall of money from a contest, talk with them about how realistic they are being. Make sure they know that the IRS, Medicare and Social Security does not call to ask for personal information.

For those who have not been able to see elderly parents because of the pandemic, this summer may reveal a lot of what has occurred in the last year. If you are concerned that they have been the victims of a scam, start by filing a report with their state’s attorney general office.

Reference: Kiplinger (June 10, 2021) “Scam Alert: 4 Types of Fraud That Target the Elderly (and How to Beat Them)”

Suggested Key Terms: Financial Scams, Imposters, Thieves, Windfalls, IRS, Medicare, Social Security, Pandemic, Elder Financial Abuse, Lottery, Sweepstakes

What Taxes are Due When Children Inherit Home?

The first issue to address is whether the will addresses how inheritance taxes will be paid, says nj.com recent article entitled “My adult kids inherited a home. What taxes are due?” The mortgage may say the estate itself will pay it before anything is paid out to beneficiaries, or it may not mention anything.

Iowa, Kentucky, Nebraska, New Jersey, and Pennsylvania are the only states that impose an inheritance tax, which is a tax on what you receive as the beneficiary of an estate.

Maryland is the one state that has both an inheritance tax and an estate tax. Its inheritance tax is up to 10%. As to the others, Nebraska’s inheritance tax can be as high as 18%. Kentucky and New Jersey both taxes inheritances at up to 16%. Iowa’s inheritance tax is up to 15%, as is Pennsylvania’s.

Spouses and certain other heirs are usually excluded by the state from paying inheritance taxes.

A child may have an issue if there’s not enough liquidity in the estate, separate from the house to pay the taxes. If the beneficiaries plan to keep the home, they’d need to take an additional mortgage.  They’d also need to find enough cash to pay the inheritance taxes due.

In the example above, if the deed is transferred to a niece and nephew, the executor should hire a licensed real estate appraiser and pay for a date of death appraisal on the property. That appraisal will determine how much capital gains was exempted at the sister’s passing. It will also establish a new basis for capital gains purposes for the niece and nephew.

If the heirs simply do nothing and move into the house, the inheritance tax will come due. In New Jersey, it’s due eight months from the date of death.

If the inheritance tax isn’t paid, liability for the unpaid tax will attach to the executor personally, often in the form of a certificate of debt attached to some asset belonging to the executor, like his or her house.

To make sure this is handled correctly, consider speaking to an experienced estate planning attorney, who can walk you through the process.

Reference: nj.com (June 14, 2021) “My adult kids inherited a home. What taxes are due?”

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Will My Children Pay Taxes, If I Give Them My Home?

In a general warranty deed, a seller states that the transfer amount is one dollar and notarizes it. It is then sent to the county clerk. However, in this New Jersey example, the deed was sent back because a Seller’s Residency Certification form was required.

There is often confusion about the right method of transferring a deed and the potential consequences. When a home is transferred as a gift, property taxes may not be imposed, depending on state law. This is known as a homestead tax exemption for property taxes. The homestead exemption is generally a dollar amount or percentage of the property value that’s excluded, when calculating property taxes.

The amount or percentage depends on the state. Every state also has specific eligibility requirements for the exemption. In some states, every homeowner gets the tax exemption, while in other states, eligibility depends on income level, property value, age or if you’re disabled or a veteran.

Nj.com’s recent article entitled “Will changing this home’s deed cost us any money?” explains that in New Jersey, the Seller’s Residency Certificate addresses whether there should be income tax withheld, or whether an estimated tax payment should be made, in connection with the transfer.

In Georgia, to be granted a homestead exemption, an individual must occupy the home, and the home is considered their legal residence for all purposes. However, those away from their home because of health reasons will not be denied homestead exemption in the state.

When the transfer appears to be a gift in the New Jersey example, no withholding or estimated taxes should be required.

However, it’s important to understand that transfers of real property for consideration of less than $100 also shouldn’t trigger a realty transfer fee. If there’s a mortgage encumbering the property, and if you will assume that mortgage obligation, the amount of the outstanding mortgage balance would be treated as consideration.

However, if there is no mortgage encumbering the property and presuming that the transfer in the example above is from the mother-in-law to her daughter and her husband is a gift, there should be no realty transfer fee charged on the transfer.

Note in New Jersey, when the deed is re-record, it should include, in addition to the Seller’s Residency Certificate, an Affidavit of Consideration.

Reference: nj.com (April 24, 2021) “Will changing this home’s deed cost us any money?”

Suggested Key Terms: Elder Law Attorney, Disability, Financial Planning, Estate Tax, Gift Tax, Living Will, Advance Directive, Inheritance, Veterans’ Benefits, Homestead Tax Exemption, Seller’s Residency Certificate, Affidavit of Consideration

What Happens to My Mortgage When I Die?

State and federal laws determine what happens to a home and the mortgage when the owner dies, explains Forbes’ recent article entitled “What Happens To Your Mortgage Debt When You Die?” The owner also has a say, provided they do some basic estate planning—like creating a will or trust, designating beneficiaries and perhaps purchasing life insurance.

When you pass away, all of your liabilities and assets—including your house—become part of your estate, which then must be settled. If you have a will, you’ve named an executor to handle this. Part of this responsibility is to take inventory of everything you own and determine who gets what among heirs and creditors. However, if you die without a will or trust, state probate court will direct the court to appoint someone to settle your estate. It’s typically a spouse, an adult child, or closest relative. Whoever this person is, he or she must determine who is named on the deed, who holds the title to your home and whether you have created a living trust or transfer-on-death deed to keep your home out of probate. This can save your heirs money and can expedite the property’s transfer.

If you’re the sole owner and don’t have a living trust or transfer-on-death deed, but you made a will and want to transfer your home to an heir, here’s what would happen next.

If your will names an heir to your home, that person will not have to take over your mortgage, provided they aren’t co-borrowers or co-signers on your loan. However, federal law does allow your heirs to take over the mortgage. If you leave your mortgaged home to your son, for example, the mortgage servicer must honor his request to become the new mortgagee (the borrower). He doesn’t have to qualify and demonstrate an ability to repay the loan. This rule covering the assumption of a mortgage also applies after the death of a spouse, although many spouses are often co-borrowers on a mortgage and co-owners of a home already. Despite the fact that most mortgages have a due-on-sale clause that normally requires the mortgage to be repaid in full when the property’s ownership changes, it doesn’t apply when an heir takes over.

However, the lender still can foreclose, if the assumed heir stops making payments. You can provide funds, by leaving your heir other assets or by naming them as a beneficiary on a life insurance policy.

If you die with other debts that can’t be repaid from your estate, state law may require the executor to sell your house to help repay those debts. If the proceeds from selling the home are more than the debts owed, the individual(s) who inherits your house will get the excess. Life insurance can help repay your debts at death, so your heir can inherit your home.

Note that your estate doesn’t have to pay off your mortgage. Since your mortgage is secured by your home, the mortgage servicer can foreclose and sell the home to get back the money owed.

If you’re an heir or an executor of an estate (or both), you’ll need to deal with the house and the mortgage when the homeowner dies. You can do any of the following:

• Keep making mortgage payments
• Pay off the mortgage
• Refinance the mortgage
• Sell the home; or
• Let the lender foreclose.

Reference: Forbes (April 20, 2021) “What Happens To Your Mortgage Debt When You Die?”

Suggested Key Terms: Elder Law Attorney, Estate Planning, Probate Court, Financial Planning, Inheritance, Transfer-On-Death Deed (TOD), Life Insurance

Do QTIP Trusts Help avoid Estate Taxes?

Using a QTIP trust allows one spouse to create a trust to benefit the surviving spouse, while providing the surviving spouse with up to nine months to decide how to treat the gift for tax purposes, explains a recent article “How Certain Trusts Soften The Blow Of Estate Tax Increases” from Financial Advisor. This flexibility is just one reason for this trust’s popularity. However, while the QTIP election can be made on the 2021 gift tax return, which is filed in 2022, the choice as to how much of the transfer will be subject to tax can be made in 2022.

The current estate and gift tax exemption of $11.7 per individual is slated to sunset in 2025, but the current legislative mood may curtail that legislation sooner. Right now, flexibility is paramount.

The surviving spouse is named as the primary beneficiary of the trust and must be the only beneficiary of the trust during the lifetime of the surviving spouse, in terms of both receiving income or principal from the trust.

If the decision is made to treat the trust as a QTIP trust, a gift to the trust is eligible for the marital deduction and is not taxable. It does not use up any of the donor’s gift tax exclusion. That flexibility to make a transfer today and decide later whether it uses any lifetime exemption is something most people don’t know about. A QTIP can also protect the recipient spouse and the principal from any creditors.

There are conditions and limitations to this strategy. If the QTIP election is not made, all net trust income must be distributed to the beneficiary spouse. There’s also no flexibility for the trust income to be accumulated or distributed directly to descendants.

The property over which the QTIP election is made is included in the estate of the surviving spouse.

The election can be made over the entire asset or only a portion of the asset transferred to the trust. The option to apply only a portion of the transfer makes it more tax efficient. For generation skipping-trust purposes, an election can be made to use the transferor spouse’s GST exemption when the decision about the QTIP election is made.

QTIPs are not the solution for everyone, but they may be the best option for many people while the people in Washington, D.C. determine the immediate future of the estate tax.

There are many Americans who are moving forward with making gifts using the current gift tax exclusion, using spousal lifetime access trusts (SLATs). However, the QTIP elections remain a way to hedge against the risk of being on the hook for a substantial gift tax, if there is a reduction in the federal estate tax exemptions.

Speak with an estate planning attorney to learn if a QTIP or another type of trust is appropriate for you. Note that these are complex planning strategies, and they must work in tandem with the rest of your estate plan.

Reference: Financial Advisor (May 24, 2021) “How Certain Trusts Soften The Blow Of Estate Tax Increases”

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Why Is Estate Planning So Important?

“Estate planning” will be your family’s guidebook once you have passed away. The Big Easy Magazine’s recent article entitled “Estate Planning Is Essential and Here’s Why” explains that estate planning is similar to writing a last will. HOwever, writing one is not limited to what happens to your house, car, possessions, or other assets after you pass away. It also entails the question of who will take care of your minor children, if they are left without a parent, as well as your instructions for burial and other items.

If you fail to leave specific instructions, the state’s intestacy laws will apply at your death, meaning that the court will decide who gets what. There is no guarantee this will be in your best interest. Let’s look at the consequences of not writing your will:

• If you prefer cremation or a traditional burial, your family may not know and decide based on their preferences or convenience.
• Your properties will be managed by someone you do not necessarily trust, if you do not name an executor to your will.
• Some of your loved ones may not get an inheritance if there is no will. State law may not carry out your intentions, and some people may be left out.
• Your favorite charity may not receive donations. For those committed to leaving a legacy, your organization of choice should be listed in the will.
• The court will assign guardians for your minor children, and social services will appoint a guardian. You can avoid this, by naming a trusted person in your will.

Aside from avoiding these consequences, estate planning can also save your family a lot of headaches and expense. A detailed will with your instructions will alleviate the stress and provide them with comfort, while they recover emotionally from their loss. Here are the top reasons why you need to plan these things:

• You can avoid inheritance taxes and federal estate taxes with proper estate planning.
• You can name who will care for you, if you are unable to make your own decisions because of illnesses, infirmity, or old age. With a power of attorney, you can name someone you trust to manage your finances.
• If your minor children are orphaned, you can name someone you trust to be their guardian in your will.
• Some family members are greedy, so you can exclude them from your will. With an estate plan created by an experienced estate planning attorney, you can ensure that the people you love will receive what you intend.

Estate planning is essential to securing a comfortable life for your loved ones. Work with an experienced estate planning attorney to set things up correctly.

Reference: The Big Easy Magazine (May 17, 2021) “Estate Planning Is Essential and Here’s Why”

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What Is Elder Law?

With medical advancements, the average age of both males and females has increased incredibly.  The issue of a growing age population is also deemed to be an issue legally. That is why there are elder law attorneys.

Recently Heard’s recent article entitled “What Are the Major Categories That Make Up Elder Law?” explains that the practice of elder law has three major categories:

• Estate planning and administration, including tax issues
• Medicaid, disability, and long-term care issues; and
• Guardianship, conservatorship, and commitment issues.

Estate Planning and Administration. Estate planning is the process of knowing who gets what. With a will in place, you can make certain that the process is completed smoothly. You can be relieved to know that your estate will be distributed as you intended. Work with an experienced estate planning attorney to help with all the legalities, including taxes.

Medicaid, Disability, and Long-Term Care Issues. Elder law evolved as a special area of practice because of the aging population. As people grow older, they have more medically-related issues. Medicaid is a state-funded program that supports those with little or no income. The disability and long-term care issues are plans for those who need around-the-clock care. Elder law attorneys help coordinate all aspects of elder care, such as Medicare eligibility, special trust creation and choosing long-term care options.

Guardianship, Conservatorship, and Commitment Matters. This category is fairly straightforward. When a person ages, a disability or mental impairment may mean that he or she cannot act rationally or make decisions on his or her own. A court may appoint an individual to serve as the guardian over the person or as the conservator the estate, when it determines that it is required. The most common form of disability requiring conservatorship is Alzheimer’s, and a court may appoint an attorney to be the conservator, if there is no appropriate relative available.

Reference: Recently Heard (May 26, 2021) “What Are the Major Categories That Make Up Elder Law?”

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Do You have to Go through Probate when Someone Dies?

Probate involves assets, debts and distribution. The administration of a probate estate involves gathering all assets owned by the decedent, all claims owed to the decedent and the payments of all liabilities owed by the decedent or the estate of the decedent and the distribution of remaining assets to beneficiaries. If this sounds complicated, that’s because it is, according to the article “The probate talk: Administrators, creditors and beneficiaries need to know” from The Dallas Morning News.

The admission of a decedent’s will to probate may be challenged for up to two years from the date it was admitted to probate. Many people dismiss this concern, because they believe they have done everything they could to avoid probate, from assigning beneficiary designations to creating trusts. Those are necessary steps in estate planning, but there are some possibilities that executors and beneficiaries need to know.

Any creditor can open a probate estate and sue to pull assets back into the estate. A disappointed heir can sue the executor/administrator and claim that designations and transfers were made when the decedent was incapacitated, unduly influenced or the victim of fraud.

It’s very important that the administrator handles estate matters with meticulous attention to detail, documenting every transaction, maintaining scrupulous records and steering clear of anything that might even appear to be self-dealing. The administrator has a fiduciary duty to keep the beneficiaries of the estate reasonably informed of the process, act promptly and diligently administer and settle the estate.

The administrator must also be in a position to account for all revenue received, money spent and assets sold. The estate’s property must not be mixed in any way with the administrator’s own property or funds or business interests.

The administrator may not engage in any self-dealing. No matter how easily it may be to justify making a transaction, buying any of the estate’s assets for their own benefit or using their own accounts to temporarily hold money, is not permitted.

The administrator must obtain a separate tax identification number from the IRS, known as an EIN, for the probate estate. This is the identification number used to open an estate bank account to hold the estate’s cash and any investment grade assets. The account has to be properly named, on behalf of the probate estate. Anything that is cash must pass through the estate account, and every single receipt and disbursement should be documented. There’s no room for fuzzy accounting in an estate administration, as any estate planning lawyer will advise.

Distributions don’t get made, until all creditors are paid. This may not win the administrator any popularity contests, but it is required. No creditors are paid until the taxes are paid—the last year’s taxes for the last year the decedent was alive, and the estate taxes. The administrator may be held personally liable, if money is paid out to creditors or beneficiaries and there’s not enough money in the estate to pay taxes.

If the estate contains multiple properties in different states, probate must be done in all of those different states. If it is a large complex estate, an estate planning attorney will be a valuable resource in helping to avoid pitfalls, minor or major.

Reference: The Dallas Morning News (May 16, 2021) “The probate talk: Administrators, creditors and beneficiaries need to know”

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How Do I Get Brain Power?

The search for effective treatments and a cure for Alzheimer’s disease and other memory disorders has been difficult. There are 33 investigational drugs that have made it to the final stage of experimental testing, and each has failed. Remarkably, doctors are treating Alzheimer’s symptoms with the same medications they have had since 2003.

AARP’s recent article entitled “7 Things to Do After 50 for a Healthier Brain” say that, as treatment research struggles, data on prevention is continuing to be complied and is very helpful. Many studies show that it’s possible to decrease the risk of dementia as we age with more than medication. Let’s look at seven habits that can boost your brain health in your 50s and beyond.

1. Keep your blood pressure under control. Things that promote heart health also promote brain health. However, heart and brain health are linked not only by lifestyle factors but also by genetics, cholesterol metabolism and the health and integrity of the cardiovascular system. Blood pressure management can be achieved with a well-balanced diet, exercise and medication.
2. Exercise regularly. In addition to increasing blood flow to the brain, exercise — particularly running — can be great for brain health. That’s because it generates the release of a protein called brain-derived neurotrophic factor (BDNF). BDNF promotes the growth of the cells that send and receive signals from the brain (neurons). BDNF also increases the connections between neurons, and sustains them in the face of environmental and other challenges.
3. Eat a heart-healthy diet. This is a regimen that monitors cholesterol and promotes normal insulin activity. Both can decrease the risk of dementia. A Mediterranean-style diet is recommended. It’s full of vegetables, fish and heart-healthy fats. The MIND diet also combines the Mediterranean diet with the American Heart Association’s DASH diet. It is rich in neuroprotective foods (nuts, berries, green leafy vegetables, fish and olive oil).
4. Watch your weight. Obesity is a well-established risk factor for dementia. Neurons, like all cells, use glucose for their energy source. However, they are unable to take it up without normal insulin function. Excess body weight (especially in the belly), not exercising, smoking and short sleep make it more difficult for insulin to move into cells. This results in insulin resistance, which is a precursor to type 2 diabetes. People with that condition have roughly a 60% increased risk of developing dementia. Losing weight is the best way to prevent, or even reverse, insulin resistance.
5. Learn new things. Brains are meant to be active. Try things like crossword puzzles and sudoku for brain exercises, but make sure they’re challenging.
6. Get good sleep. Chronic short sleep — particularly in midlife — can damage the brain. Lack of sleep interferes with the brain’s nightly cleaning cycle, since in deep sleep, neurons produce less beta amyloid and tau (proteins at the heart of Alzheimer’s) and secrete more of them as waste. Obstructive sleep apnea (OSA), which is a temporary cessation of breath, followed by gasping, is a common problem. It’s been linked to cognitive impairment and structural changes in the brain. It is also linked to obesity, increasing age and poor muscle tone. These are some excellent reasons to lose weight and exercise.
7. Manage your stress. Stress isn’t just a state of mind—but a state of body. Stress exerts powerful physical changes in the brain and has direct adverse effects on health, including blood sugar, blood pressure and abdominal obesity. It’s also a very serious disruptor of sleep.

Reference: AARP (May 18, 2021) “7 Things to Do After 50 for a Healthier Brain”

Suggested Key Terms: Financial Abuse, Elder Care, Dementia, Alzheimer’s Disease, Senior Health

Tell Me again Why Estate Planning Is So Important

The Legal Reader’s recent article entitled “The Importance of Estate Planning” explains that estate planning is not just for the rich.

If you don’t have a comprehensive estate plan, it could mean headaches for your family left to manage things after you die, and it can be expensive and have long-lasting impact.

Here are four reasons why estate planning is critical, and you need the help of an experienced estate planning attorney.

Estate plan beneficiaries. Middle-class families must plan in the event something happens to the bread earner. You might be only leaving behind one second home, but if you don’t decide who is to receive it, things might become complicated. The main purpose of estate planning is to allocate heirs to the assets. If you have no estate plan when you die, the court decides who gets the assets.

Protection for minor children. If you have small children, you must prepare for the worst. To be certain that your children receive proper care if they are orphaned, you must name their guardians in your last will. If you don’t, the court will do it!

It can save on taxes. Estate planning can protect your loved ones from the IRS. A critical aspect of estate planning is the process of transferring assets to the heirs to generate the smallest tax burden for them. Estate planning can minimize estate taxes and state inheritance taxes.

Avoid fighting and headaches in the family. No one wants fighting when a loved one dies. There might be siblings who might think they deserve much more than the other children. The other siblings might also believe that they should be given the charge for financial matters, despite the fact that they aren’t good with debts and finances. These types of disagreements can get ugly and lead to court. Estate planning will help in creating individualized plans.

Work with an experienced estate planning attorney and see how estate planning can help your specific situation.

Reference: The Legal Reader (May 10, 2021) “The Importance of Estate Planning”

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