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Minneapolis Estate Planning and Probate Lawyer Blog

Wednesday, January 16, 2013

Common Question Wednesday: Should I Add Another Person (Partner or Child) to the Title of the House

Minneapolis attorney specializing in nontraditional estate planning answers the question of whether an individual should add his/her unmarried partner to the deed to a home

As an estate planning attorney specializing in nontraditional estates, I get a lot of questions specific to situations that may not normally be heard as often by one of my more "traditional estate planning" colleagues. I've decided to begin a new monthly post entitled "Common Question Day" to respond to some of these questions.

First up is the most common question I am asked by unmarried couples and seniors looking to make things easier on loved ones.

QUESTION: SHOULD I ADD SOMEONE TO THE DEED TO MY (OUR) HOUSE?

ANSWER:

While I hear this question most often from couples who are not legally married, the answer remains the same for anyone - outside of a legal spouse - considering whether to add another person(s) to a deed to the home. This means that the answer applies to parents considering adding a child, a person wanting to add a sibling or even a friend.

The short answer is that I do NOT recommend adding another person to the title to your home.  This is so for the reasons listed below:

     1.    Lender Consent. If the property is encumbered by a mortgage, the first issue to consider is whether adding another to the deed will violate the terms of your loan documents.

     2.    Liability and Asset Protection. Joining someone else as a co-owner of your property may expose that property to the claims of your co-owner's creditors.

     3.    Loss of Control. As the sole owner, you have absolute control over the property. For example, you alone have the right to decide whether to sell it, and at what price, whether to refinance, take out a home equity loan, and what improvements should be made. However, once another person acquires an ownership interest you will also need their consent in all these matters.

     4.    Gift Tax Consequences. Under the current IRS rules, a person can give away a fixed amount of money or property per person per year ($14,000 in 2013). Any gift exceeding this limit may require the donor to pay gift taxes. If you give an interest to another rather than selling the share at fair market value, it may trigger the requirement to file a gift tax return so you should consult with a tax professional.

     5.    Capital Gains. A transfer by deed during the donor's lifetime (instead of by a Will upon death) can have other adverse tax consequences. If you leave the land to someone in a Will, the heir receives a "step up" basis. This means that when the heir eventually sells the property, capital gains taxes are computed based on the value of the property at the date of your death--not when you originally purchased the property. Since land usually increases in value over time, the "step up" basis reduces capital gains taxes. However, if you make a gift of that same property during your lifetime, there is no "step up" basis; rather the basis will be the same as yours and can trigger increased taxes.

     6.    Medicaid Eligibility. Transfers of property may also affect Medicaid eligibility. This topic is much too complex to cover here, but suffice it to say that unless you make the transfer more than five years before filing your Medicaid application, you may be disqualified for Medicaid assistance.

If you are thinking “should I add someone to the deed to my house” please stop and consider the above and speak with an attorney and tax professional before making any changes to the title. An important question is, "What issues do I need to address before deciding whether to add someone to my deed?" It may not be possible to fully resolve all the potential problems associated with co-ownership of property, but a skillful legal professional can at least help avoid unpleasant surprises in the process.


Friday, December 28, 2012

Unique Estate Law: 2012 Wrap Up for a Nontraditional Law Firm

An Estate Planning Attorney Provides a Personal Review of 2012

The state of the firm

For Unique Estate Law 2012 was a fantastic year. The firm beat projections and I was able to assist more clients than ever before. I had referrals from a wide range of sources and a constant stream of clients coming through my website. I’ve done well enough to start advertising on a local radio station and in a local magazine. I have met many wonderful people and have given them guidance and peace of mind when facing an uncertain future.

Two major losses

But, for Chris Tymchuck, it was the worst year of my life.

Why was it such a bad year personally? In November both my Dad and Mom died within a week of each other. They were 66 and 64 respectively so it hadn’t occurred to the family that they might be gone so soon. While my father had battled cancer for 11 years he was in no worse shape in the end than in prior battles. And my Mom had never been sick a day in her life.

Why am I writing about this?

Why do I share such personal information on a law firm website? Because, it is a cautionary tale of what happens in a blended family when little or no preparation is done.

I was recently sharing my story with two clients and they said, “I can’t believe this is happening to you who spend your time making sure that people like us are ok and covered. You have to share your story with people so they understand that this can, and does, happen.” And they’re right.

I write this blog to assist clients and colleagues with things to consider when drafting estate plans for all types of families – both traditional and non-traditional – and the blog has paid off for me. I feel that, in keeping with the spirit in which I write I must use the lessons of 2012 to further education clients and colleagues through this medium. In short, to give back as the blog has given me so much.

Is it relevant to Unique Estate Law?

Why is my story relevant to this site? Because part of the reason that I specialize in non-traditional families is because I grew up in one – or several – and know the complications that come with being raised with in a complex web of interrelated (and sometimes not) people.

My parents divorced and each remarried and had kids with a subsequent spouse. In addition, my Mom remarried a third time and became a stepparent herself. So, that means I have a stepdad, stepmom, 3 half-brothers, a half-sister, a step brother and a step sister. That, of course, doesn’t include the “traditional” family members such as aunts, uncles and still-living grandparents. There are a lot of people to factor into planning, mourning and administering for someone.

I’ve spent the last couple of months grieving and assisting my family with working through the health care decisions, then memorials, estates and other issues associated with facing the illness and then death of parent. I plan to spend the next few posts discussing some of the lessons I’ve learned by being on the other side – education to practice so to speak – as my hope is to assist others to avoid some of the pitfalls we now face.

I can’t say that anything good has really come out of the losses I suffered this year but I will say that it confirmed my choice of profession. First, because I found relief in returning to work and assisting my clients and second because I feel that I use my law degree in the best possible way – to assist others to prepare for, and perhaps face, the worst times in their lives. For that I am grateful.


Thursday, December 6, 2012

How To Prepare for a Meeting with an Estate Planning Attorney

Preparing to Meet With an Estate Planning Attorney

A thorough and complete estate plan must take into account a significant amount of information about your assets, your family, your property, and your wishes during and after your life.  When you make your first appointment with an estate planning attorney, ask the attorney or the paralegal if they can provide a written list of important information and documents that you should bring to the meeting.  

Generally speaking, you should gather the following information before your first appointment with your estate planning lawyer.

Family Information
List the names, birth dates, death dates, and ages of all immediate family members, specifically current and former spouses, all children and stepchildren, and all grandchildren.

If you have any young or adult children with special needs, gather all information you have about their lifetime financial needs.

Property Information
For all real property you own or can reasonably expect to acquire, gather the property description, your ownership interest information, the address, market value, any outstanding mortgage balance, and the most recent tax assessment.

For any personal property of value (such as vehicles, jewelry, coins, antiques, stamps, and art), compile a list that includes a description, the physical location of each item, your ownership interest information, the market value, and any liens against the property.

Business Information
If you have an ownership interest in a business, make sure you have documents showing your ownership interest in the business, the business location, the names and contact information of other owners, and 2-3 years of past profit and loss statements.

Financial Information
Compile a list of all your financial accounts, including: checking accounts, savings accounts, investment accounts, stocks and bonds, and U.S. Treasury notes.  If any of these accounts currently have designated beneficiaries, bring that information as well.

Gather all retirement savings information, including 401(k) plans, 403(b) plans, IRAs, life insurance policies, Social Security statements, and pension information.  Make sure you have the account names, account numbers, current balances, outstanding loan balances, and currently named beneficiaries.

If any family members owe you debts, compile that information.

Questions to Think About
The following are some of the first questions your estate planning attorney will ask.  You are not required to have answers ready for all these questions, but because some of them are complex, it is a good idea to think through these issues before your appointment.

  • Who will be beneficiaries of your property?
  • Do you want to bequeath any specific items of property to specific individuals?
  • Is there anyone you do not want to be a beneficiary of any of your property?
  • Do you plan to make any bequests to any nonprofit organizations – university, church, charity, or other organization?
  • Do you know who you want to act as executor of your will?
  • Do you know who you want to act as trustee of any trusts you establish?
  • If you have minor children, who do you want to appoint as guardian?
  • Do you want to make arrangements for your health and financial well-being in the event you become unable to make decisions for yourself?
  • Do you have specific wishes for your funeral?
  • Are you a registered organ donor?

During your initial consultation, your estate planning attorney will review your family and financial situation, discuss your wishes, answer your questions and suggest strategies to protect your family, wealth and legacy.  It is my practice at this point to also provide you with a flat-fee quote for the best plan to fit the needs of your family.  This fee includes all of the listed documents and any communications/meetings with me.  It is important to me that you know the exact fee for your custom-drafted plan up front so there are no surprises later!
 

Call now to set up  your initial consultation.


Monday, November 26, 2012

Estate Planning: Leaving Assets to a ‘Troubled’ Heir

A Minnesota Estate Planning Attorney Discusses Complex Estate Planning Techniques

If you have a child who is addicted to drugs or alcohol, or who is financially irresponsible, you already know the heartbreak associated with trying to help that child make healthy decisions.  Perhaps your other adult children are living independent lives, but this child still turns to you to bail him out – either figuratively or literally – of trouble.

If these are your circumstances, you are probably already worrying about how to continue to help your child once you are gone.  You predict that your child will misuse any lump sum of money left to him or her via your will.  You don’t want to completely cut this child out of your estate plan, but at the same time, you don’t want to enable destructive behavior or throw good money after bad.

Trusts are an estate planning tool you can use to provide an inheritance to a worrisome heir while maintaining control over how, when, where, and why the heir accesses the funds.  This type of trust is sometimes called a spendthrift trust.  

As with all trusts, you designate a trustee who controls the funds that will be left to the heir.  This trustee can be an independent third party (there are companies that specialize in this type of work) or a member of the family.  It is often wise to opt for a third party as a trustee, to prevent accusations among family members about favoritism.

The trust can specify the exact circumstances under which money will be disbursed to the heir.  Or, more simply, the trust can specify that the trustee has complete and sole discretion to disburse funds when the heir applies for money.  Most parents in these circumstances discover that they wish to impose their own incentives and restrictions, rather than rely on the judgment of an unknown third party.

The types of conditions or incentives that can be used with a trust include:

  • Drug or alcohol testing before funds are released
  • Payments directly to landlords, colleges, etc., rather than payment to the heir
  • Disbursement of a specified lump sum if the heir graduates from university or keeps the same job for a certain time period
  • Payment only to a drug or alcohol rehab center if the child is in an active period of addiction
  • Disbursement of a lump sum if the child remains drug free
  • Payments that match the child’s earned income

If you are considering writing this type of complex trust, it is advisable to seek assistance from a qualified and experienced estate planning attorney who can help you devise a plan that best accomplishes your wishes with respect to your child.
 


Monday, November 26, 2012

The ‘Sandwich Generation’ – Taking Care of Your Kids While Taking Care of Your Parents

The ‘Sandwich Generation’ – Taking Care of Your Kids While Taking Care of Your Parents

“The sandwich generation” is the term given to adults who are raising children and simultaneously caring for elderly or infirm parents.  Your children are one piece of “bread,” your parents are the other piece of “bread,” and you are “sandwiched” into the middle.
Caring for parents at the same time as you care for your children, your spouse and your job is exhausting and will stretch every resource you have.  And what about caring for yourself? Not surprisingly, most sandwich generation caregivers let self-care fall to the bottom of the priorities list which may impair your ability to care for others.

Following are several tips for sandwich generation caregivers.

  • Hold an all-family meeting regarding your parents. Involve your parents, your parents’ siblings, and your own siblings in a detailed conversation about the present and future.  If you can, make joint decisions about issues like who can physically care for your parents, who can contribute financially and how much, and who should have legal authority over your parents’ finances and health care decisions if they become unable to make decisions for themselves.  Your parents need to share all their financial and health care information with you in order for the family to make informed decisions.  Once you have that information, you can make a long-term financial plan.
  • Hold another all-family meeting with your children and your parents.  If you are physically or financially taking care of your parents, talk about this honestly with your children.  Involve your parents in the conversation as well.  Talk – in an age-appropriate way – about the changes that your children will experience, both positive and challenging.
  • Prioritize privacy.  With multiple family members living under one roof, privacy – for children, parents, and grandparents – is a must.  If it is not be feasible for every family member to have his or her own room, then find other ways to give everyone some guaranteed privacy.  “The living room is just for Grandma and Grandpa after dinner.”  “Our teenage daughter gets the downstairs bathroom for as long as she needs in the mornings.”
  • Make family plans.  There are joys associated with having three generations under one roof.  Make the effort to get everyone together for outings and meals.  Perhaps each generation can choose an outing once a month.
  • Make a financial plan, and don’t forget yourself.  Are your children headed to college?  Are you hoping to move your parents into an assisted living facility?  How does your retirement fund look?  If you are caring for your parents, your financial plan will almost certainly have to be revised.  Don’t leave yourself and your spouse out of the equation.  Make sure to set aside some funds for your own retirement while saving for college and elder health care.
  • Revise your estate plan documents as necessary.  If you had named your parents guardians of your children in case of your death, you may need to find other guardians.  You may need to set up trusts for your parents as well as for your children.  If your parent was your power of attorney, you may have to designate a different person to act on your behalf.
  • Seek out and accept help.  Help for the elderly is well organized in the United States.  Here are a few governmental and nonprofit resources:
    • www.benefitscheckup.org – Hosted by the National Council on Aging, this website is a one-stop shop for determining which federal, state and local benefits your parents may qualify for
    • www.eldercare.gov – Sponsored by the U.S. Administration on Aging
    • www.caremanager.org  -- National Association of Professional Geriatric Care Managers
    • www.nadsa.org – National Adult Day Services Association

Monday, November 5, 2012

Minnesota Transfer on Death Deed, Part 4:Can You Cancel a Transfer on Death Deed After It's Filed?

 


In this series of posts, we've been discussing transferring a home via a transfer on death deed.  You own property in your name alone and want to be sure that it goes to the beneficiary of your choice without the expense and delay of probate.  So, after reading these informative blog posts, you decide to use a Transfer on Death Deed (“TODD”) to achieve this purpose.

But what happens if you change your mind after you have executed and filed the deed with the county?  Can you cancel or change the TODD?

Yes. The Deed does not do anything to your rights over the property during your lifetime.  It only takes affect upon your death.  Therefore, nothing is set in stone until after death.  You may, at any time, change the beneficiary or cancel the deed altogether. But, you MUST file the transfer on death deed revocation prior to your death.

Wednesday, October 31, 2012

Tax Saving Plan: Year End Gifts

Year End Gifts

If you’re like most people, you want to make sure you and your loved ones pay the least amount of tax possible. Many use year-end gift giving as a way to transfer wealth to younger generations and also reduce the overall potential estate tax that will be due upon their death. Below are some steps you can take to make gifts to your heirs without triggering any gift tax liability. Some of these techniques may also reduce your own income tax liability.

A combination of estate and gift tax exemptions can be used to significantly reduce the overall tax liability of your estate. Upon your death, federal estate tax may be owed. A portion of your estate is exempt from the tax. That exemption amount is set by Congress and can change from year to year. For deaths that occur in 2012, the exemption amount is $5 million and the value of an estate in excess of that amount is subject to estate tax. Beware: That will likely change in 2013 as the current law expires.

Many taxpayers make annual gifts to loved ones during their lifetimes, to reduce the overall value of the estate so that it does not exceed the exemption amount in effect at the time of death. It is important to consider that gifts made during your lifetime are subject to a gift tax (equal to the estate tax). However, certain gifts or transfers are not subject to the gift tax, enabling you to make tax-free gifts that benefit your loved ones and reduce the overall taxable value of your estate upon your death.

The annual gift tax exclusion allows each individual to make annual gifts of up to $13,000 to each recipient. There is no limit to the number of recipients who may each receive up to $13,000 totally tax-free. Married couples may gift up to $26,000 to each recipient without triggering any tax liability. This annual exclusion expires on December 31 of each year, and larger gifts may be made by splitting it up into two payments. By making a payment in December and one the following January, you can take advantage of the gift tax exclusion for both years. Keeping annual gifts below $13,000 per recipient ensures that no gift tax return must be filed, and that there is no reduction in the estate tax exemption amount available upon your death.

Annual gifts may also be made in the form of contributions to a §529 College Savings Plan. These, too, are subject to the $13,000 annual gift tax exclusion. Additionally, such contributions may afford the giver with a state tax deduction.

Payment of a beneficiary’s medical expenses is also excluded from the gift tax. There is no limit to the amount of medical expense payments that may be excluded from tax. To qualify, the payment must be made directly to the health care provider and must be the type of expenses that would qualify for an income tax deduction.

If you have a large estate that may be subject to taxes upon your death, making annual gifts during your lifetime can be a simple way to reduce the size of your estate while avoiding negative tax consequences.


Monday, October 29, 2012

Minnesota Transfer on Death Deed, Part 3: How Do You Get One?

Twin Cities Estate Planning Attorney Explains the Steps Necessary to Use a Minnesota Transfer on Death Deed

If you are a property owner and wish to use a transfer on death deed (“TODD”) to transfer that property without the hassle of probate, you must

  1. Choose a beneficiary or beneficiaries
  2. Execute a valid deed that expressly states that it is effective only upon your death
  3. Record the deed in the county in which the property is located prior to your death.
  4. Pay the filing fee.

A few things to note.  If the property is jointly owned then all owners must sign the deed.  And as #3 above states, it is not enough to execute the deed - you must also record it with the proper county before your death.


Monday, October 22, 2012

Minnesota Transfer on Death Deed, Part 2: Why Should I Get One?

A Minneapolis Attorney Explains How to Get a Valid Transfer on Death Deed

In my series on the use of the Minnesota Transfer on Death Deed, I've been explaining the benefits of using the TODD. It is a simple - and relatively inexpensive - process to draft and record a transfer on death deed.  If you are still asking "Why should I get one?" let me provide you with a couple of real world examples of the use of a Transfer on Death Deed.

Hypothetical #1

I have a gay couple, Jeff and Nathan, as clients who have been together for 5 years and came to see me about protecting each other in case of tragedy. Jeff owns their home alone as he bought it before he got together with Nathan. Jeff is, of course, concerned that Nathan get the home if anything happens to him.

Can't Jeff Just Add Nathan to the Title of the Home?

Yes. This is a common answer given to people like Jeff, especially by nonlawyer advisors. BUT JEFF MUST EXERCISE CAUTION: If Jeff puts Nathan on the deed to the home, he has given him a gift, which can have current tax implications. Also, Nathan loses the beneficial tax treatment - called a "step up" - received upon inheriting an asset. The tax imlications of this method are covered in other posts but suffice it to say that gifting the home could cause Nathan and Jeff money and hassle.

Another issue no client ever wants to consider? What if Jeff and Nathan break up? Now they still jointly own the home so must deal with it in their dissolution. Does one buy the other out or are they forced to sell the home and split the proceeds?

What about a will?

But, if Jeff merely states in his will that Nathan will get the home, Nathan will be forced to incur the expense, and suffer the delay, of going through the probate process. 

What is the solution?

You guessed it. By properly executing and filing a Minnesota Transfer on Death Deed, Jeff can state that, upon his death, the home is to go outright to Nathan. Because the transfer does not happen until after Jeff's death, there is no gift during his life so no worries about gift tax issues. And, Nathan inherits the home so receives the full benefit of the step up in basis for the value of the home - allowing him to avoid increase captial gains taxes. Last, Nathan will not need to open the probate to get the deed to their home in his own name. Again, the Transfer on Death Deed will save Jeff and Nathan hassle and money both during life and after death.

Hypothetical #2

Susan and Emily have been together for together for 15 years and own their home jointly. Susan has a 22-year-old daughter, Stephanie, from a prior relationship and whom Emily has not adopted. They are first concerned with caring for each other if someone happens to one of them. Because the home is jointly owned, if one dies, the other will become the full owner. But, what happens at the death of both of them? Who will get the home?

Because they've been together so long, Emily feels that Stephanie is like a daughter to her as well. She never adopted her because there is still another parent in the picture. But, it is important to her that their home eventually go to Stephanie. Of course, Susan agrees with that so how do we get the home to Stephanie at the death of both clients?

Use a Will?

This solution creates the same issues as in hypothetical #1. But, it also has another one. Susan can't use the will to state what will happen to the home at her death as she owns it jointly with Emily. And her will can't really control what happens to her property after it's been inherited by another, in this case Emily.

Does a Transfer on Death Deed Help?

Somewhat. It will avoid an issue if, upon Susan's death, Emily neglects to draft a will and her estate is transferred through the laws of intestacy (no will). Because Stephanie is not legally related to Emily, she will not inherit through intestacy. It will also help if Emily's will leaves everything to her sister as a Transfer on Death Deed takes priority over the will so Emily will still get the house.

But, it does not help if Susan dies and Emily decides to revoke the Transfer on Death Deed. The TODD's are fully revokable by the suriving grantor even for property owned jointly where both owners executed and filed a valid deed prior to the death of the first owner. 

So, the Transfer on Death Deed doesn not provide a guarantee that the home will go to Stephanie should Susan die first.

If that is a concern, perhaps the clients should discuss getting a trust.

These are just a couple of examples where a Transfer on Death Deed may provide a fast and inexpensive solution to two different issues related to a personal residence. The next post will provide the short list of requirements to comply with the law on getting a Minnesota Transfer on Death Deed.


Wednesday, October 17, 2012

Minnesota Transfer on Death Deed, Part 4: Can You Change Your Mind?

We've been discussing the benefits of using a Minnesota Transfer on Death Deed to transfer your home to another person at your death. You own property in your name alone and want to be sure that it goes to the beneficiary of your choice without the expense and delay of probate.  So, you decide to use a Transfer on Death Deed (“TODD”) to achieve this purpose.

Can you cancel a Minnesota Transfer on Death Deed?

Yes. The Deed does not do anything to your rights over the property during your lifetime.  It only takes affect upon your death.  Therefore, nothing is set in stone until after death.  You may, at any time, change the beneficiary or cancel the deed altogether.


Monday, October 15, 2012

Minnesota Transfer on Death Deed: Should I Use it To Transfer My House?

Minnesota Estate Planning Attorney Discusses the Benefits of Using a Transfer on Death Deed to Transfer a Home

Minnesota has a unique tool to for use in avoiding probate known as a Transfer on Death Deed (“TODD”). In 2008 Minnesota’s legislature passed a law that allows the owner of real estate to execute a deed naming a beneficiary who, upon the current owner’s death, will succeed to ownership of that property.
 
There are several benefits to using a Transfer on Death Deed to transfer real property to someone.
  1. You Retain Your Ownership Interests.  The property is not transferred until the your death.  So, you retain full ownership of the property during your life. So, you may choose to remain living in the home, sell it, borrow against it or give it away without restriction.
  2. Your Home Is Still Protected. The finanacial obligations of the beneficiary will not affect your rights to the property. This is because the beneificary does NOT have any "present interest" in the property so if he/she has any legal actions such as bankruptcy, lawsuits, or divorce that are brought against the beneficiary won’t affect the property. This offers you a lot of protection in leaving the property to someone who may not be the best at managing money as a creditor may NOT file a lien against property subject to a transfer on death deed.
  3. Your Heirs Will Avoid Probate For That Home. Again, this is probably the main reason why people choose a Transfer on Death Deed.  The real estate won’t be subject to the costs and time of court probate proceedings- the beneficiary simply submits an affidavit and death certificate with the county recorder. This allows the home to transfer to the beneficiary quickly and inexpensively. It allows avoids the "ease of contest" often found in probate procedures.
  4. You Can Revoke It.  This means that you can change or delete the beneficiaries named in the document, even without their consent.  Names can be deleted or added as the you sees fit.  Or, you can revoke the entire document and dispose of the property in another manner (e.g. sell it or put it into a trust).
  5. You Have Not Given a Gift. Because you are not giving the beneficiary a present interest in the home, there is no gift. This avoids issues with having to file a gift tax return or potential problems if you end up needing medicaid (medical assistance) in the future.
As these come up quite often in my practice, whether between partners or parents and children, I will address the different aspects of Transfer on Death Deeds in a series of future posts.

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