Conservatorship...Why It Is So Important

There is an issue lurking in our futures that can profoundly effect each one of us. It’s called Conservatorship. Conservatorship happens when we are no longer able to care for or make responsible decisions for ourselves. This could be due to a serious accident or illness that effects our reasoning powers...or it might be caused by Dementia or Alzheimer’s Disease causing us to depend on another person for our care. In other words, we are no longer legally competent to be responsible for ourselves. 

The process of Conservatorship is a legal one that must be decided by a Conservatorship Court. A judge reviews your case and considers all the petitions for your care and makes a decision on who will take care of you and be in charge, in most cases, of your money. This is the process even if you are married. Your spouse does not necessarily get automatic conservatorship. In fact, anyone can petition the court to be your “Conservator of the person”. 

When this decision has not been made by you in advance by nominating who you want to be your Conservator, it is left up to the court to make that decision. All things are considered and even if your spouse does get custody of your care they still have to make financial accountings to the court on how your spouse spent money for your care and they are accountable to the court until you die. 

This decision should not be put off. In making the decision regarding your Conservator you should consider carefully who you believe will attend to your care with the greatest love and consideration for your comfort...they are, after all, in charge of you. They will decide if you go into a residence or assisted care facility or stay at home. They will decide and be responsible for facilitating your medical care. They will, in most cases, be in charge of your money and how it is spent for your care. 

Life presents situations that don’t necessarily bode well for you if they are not considered carefully in advance. Remember that people, dare I say, family members, become very concerned about how much of your money they will get when you die. Sorry folks, I see it every day and it often happens in the happiest of families. Situations where there are previous spouses and perhaps children by those previous marriages, family abuse of the elderly, discord with the present spouse, disagreements and bitterness between children and children of former spouses...all these can come into play in a profound way and at a time when you are powerless to do anything about it unless you have planned in advance. 

Fortunately there is something you can do. Preparing a Living Trust and nominating a Conservator for yourself in advance of the need for one can solve the entire problem. Pick the most loving person you know who would be willing to serve in that capacity. In most cases it is a loving spouse. In many cases it is a grown child or children. Mine is my three daughters whom I adore...after my wonderful wife is unable to serve. 

If you have not attended to this important matter I urge you to take action for your sake and for the sake of your family. Contact Heritage at 888-437-8778.  You can read more on this subject by going to the Conservatorhip section of the Heritage website at www.heritagelivingtrust.com

www.heritagetrustfunding.com

www.heritagelivingtrust.com

Until Next Time...

Peace of Mind

Nothing compares with the feeling of having all your final arrangements done. Knowing your family is taken care of in those situations where they are most vulnerable and least able to emotionally deal with the complications of these matters at your death.

Being turned away at the bank when they need cash or not being able to cash out stocks and bonds because Probate has them locked up can be devastating. The average Probate is from 6 months to 2 years depending on the complexity of the estate and there is absolutely nothing you can do until the probate court gives the clearance. You can’t withdraw savings, you can’t cash in stocks or bonds...and I have seen stock values take a nose dive while families watched their stock assets become virtually worthless because of Probate delays. 

It takes so little time and such little effort to avoid all of that heartache. It’s the perfect solution because you can establish the scenario you want. Almost anything is possible when it comes to whom and how you leave your assets. By taking action now to make the proper arrangements you can save your family untold difficulties after you are gone. Hear that again. You will be gone and your family will be the ones dealing with it. 

We offer the opportunity to discuss your arrangements at no cost to you. Now is the time... There is no rational justification for delay. Give us a call and start the process. You will feel such Peace of Mind for just getting it taken care of. 

For more information call: 866.927.8552 for a recorded information call

Or 888-437-8778 to speak with a live consultant

Until Next Time....

Joint Tenancy and Capital Gains

One of the comments I often hear from Seniors is “I will put my children on my mortgage as joint tenant with me so they will get it without Probate when I die". Well, it is true that Probate can be avoided that way but it raises all kinds of other problems. Consider this....

Joint Tenancy with your children can be dangerous. You should be careful when trying to avoid Probate by sharing ownership of your assets with your children as joint tenants. Setting up Joint Tenancy with your children cannot avoid taxes that were originally due, because the practice is so common that this situation is one of the first loop holes looked at by the Internal Revenue Service. Entering into Joint Tenancy with children to avoid Probate creates a whole new set of problems.

    1. The children's share of the property becomes subject to the children's creditors, including people who win lawsuits and legal judgments against them. In Joint Tenancy you could lose your home to a lawsuit against your child.

    2. The children have an equal right to the enjoyment of the property and although unthinkable, your children could take your property from you. 

They may move in or create such untenable conditions that the parents are forced to move out or sell the property. If one of the children were unable to pay his or her debts or were involved in an accident, for example, and incurred a lawsuit or judgment rendered against him or her, the parents' assets held in Joint Tenancy with the child would be subject to the child's creditors. Therefore, the parents could well lose their home (or other assets) in order to satisfy their child's creditors or judgments.

Joint Tenancy does not totally eliminate probate

Joint Tenancy does not entirely eliminate the process of probate. Even though Joint Tenancy can avoid probate on the first spouse to die, the entire estate must go through Probate upon the death of the second spouse. Having the entire estate go through probate upon the death of the second spouse is one of the strongest arguments against Joint Tenancy. At best, Joint Tenancy simply delays the inevitable probate cost on the second to die. It seems logical that, if probate is eventually certain (when the assets are held in Joint Tenancy) and if there is a better way to avoid probate entirely...and there definitely is a better way, then the time to act is now and a Living Trust is the answer.

Gifted property forfeits stepped-up valuation

Another reason for parents not going into Joint Tenancy with one or more of their children is that they effectively gift to them that share of the parents' asset. When the child receives the parents' share of the asset as a gift, the value of the share is received at the parents' original cost basis, thus losing the tax benefit of stepped-up valuation.

Avoiding capital gains in Joint Tenancy

When real estate or other property is purchased, its purchase price is considered to be its "basis". When that real estate or property is finally sold, its sale price is its true market value, and the gain between its purchase price (basis) and its sale price is the portion of its value that you pay Capital Gains Tax on. In a situation where a married couple owns a home in Joint Tenancy and one spouse dies, the surviving spouse is deemed to own one-half of the value of the property. The deceased spouse owns the other half of the value of the property, and if there is a Capital Gain subject to Capital Gains taxes, the estate of the deceased must pay Capital Gains tax on its half of the gain. A home purchased many years before which has appreciated by $200,000 or $300,000 can incur a sizable Capital Gains tax if it is not in a Living Trust.

Example: If a home were purchased by a couple in 1960 for $50,000 and today its fair market value is $300,000, there would be a taxable gain of $250,000 if it were sold today. Since the deceased spouse's estate takes one-half of the property value, $25,000 (one-half the original purchase price) and $125,000 (one-half of the gain at death) is attributed to the deceased's estate. Capital Gains Tax becomes due and payable in the amount of 18-20 percent of the $125,000 Capital Gain, or $25,000 in taxes at the sale of the home. Taxes could be more if the home is not sold for some time and the gain increases. Conversely, taxes would be less if the gain in the value of the house decreased before its sale.

Joint Tenancy & Capital Gains Taxes

A Living Trust eliminates these problems completely, "stepping up the cost basis" on the home. That is to say, the basis on the home is "stepped up" to the current market value at the time of death and the gain is wiped out; therefore, there are no Capital Gains Taxes on the home. This works only where one of the spouses dies. Of course, Probate is completely avoided in the process, making Joint Tenancy completely unnecessary. By simply making the Living Trust the owner of the property, Probate is eliminated and all Capital Gains and Gift Taxes are completely eliminated at death.

Doesn’t it make sense to just avoid all of those potential problems and solve the problem now while you can. The staff at Heritage would be happy to discuss this further with you. Just give us a call at 888-437-8778 toll free. 

You can access more information on the Living Trust by visiting the Heritage website at

www.heritagelivingtrust.com

Until Next Time....

Limited Reach of the Estate Tax

With the increase of the unified credit equivalent amount to $5.25 million and its indexing for inflation, clearly there will be a lot less fewer estates subject to estate tax than when exemptions were lower. The Congressional Research Service issued a report on February 15, 2013 that estimates the number of estates that will be subject to the tax, and these figures are REALLY LOW. They also apply an interesting “how many taxable estates are expected in a given state” analysis.

The conclusions of the report are:

a. The estate tax will affect less than 0.2% of decedents over the next decade.

b. The estate tax is concentrated among high income taxpayers: 96% is paid by the top quintile, 93% by the top 5%, 72% by the top 1%, and 42% by the top 0.1%.

c. About 0.2% of estates with half or more of their assets in businesses will be subject to the estate tax.

d. About 65 farm estates (or approximately one per state) are projected to be subject to the estate tax, and constitute 1.8% of taxable estates. Less than a fourth (0.4%) is projected to have inadequate liquidity to pay estate taxes. Less than 1% (0.8%) of farm operator estates are projected to pay the tax.

e. About 94 estates (about two per state) with half their assets in small business and who expect their heirs to continue in the business are projected to be subject to 
the estate tax; they constitute 2.5% of total estates. Less than a half (1.1%) are projected to have inadequate liquidity to pay estate taxes.

The Estate and Gift Tax Provisions of the American Taxpayer Relief Act of 2012, Congressional Research Service, February 15, 2013

The Attorney Who Defends Himself Is A Fool

Actually the headline should read, “The attorney who defends himself has a fool for a client”. Its an old saying and it happens to be true. When you are confined to just one perspective that exists only in your own head you lack the knowledge and objectivity of an unbiased perspective. You are also working within the limitations of your own knowledge about Trusts...which could be considerable...and very dangerous.

I am often confronted by people with questions relating to why they can’t do a Living Trust for themselves at a minimal cost. Saving money to create a trust is missing the point altogether. Would you do a surgical operation on yourself to save money?...the notion is absurd. Sure you can purchase software that will create the documents or buy the document forms that can be filled out, and feel your way through the process but why take the chance of being wrong on important issues when your very financial future and the financial well-being of your family is at stake. An, “Oops!” on something this important is tantamount to packing your own parachute and forgetting to attach the ripcord. Let the professionals do it. They get paid to know the details and do it right. 

A Living Trust is a dynamic document. When your life situations change you need to change your trust. When your relationships with those close to you change or a new child or grandchild is born, you need to change your Trust. If a trust is not constructed properly to meet your personal life situation and specific wishes you run the risk of making errors that can effect you and your family in a potentially devastating way. The question is...would you trust the welfare of your family to what you know about trusts right now? You need expert help now and in the future to keep your plans and wishes on track. 

Attorneys who do trusts count on the need to review your trust annually and manage the funding of your assets. Its a major income stream for them...an ongoing cost for you. Heritage makes no charge for help and support or changes that need to be made to your trust, for the life of your Trust. 

Bottom line...bite the bullet...have your trust professionally prepared and have someone you can call when you need help. If you do it yourself you will eventually end up in an attorneys office anyway getting help...at great cost to you.

I invite you to the Heritage website to view a video presentation. You will find Heritage receptive to your calls and all phone consultations are free. 888-437-8778