Ask Liz Weston

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Estate planning

Q&A: Tax issues and trusts

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Dear Liz: You recently responded to a reader’s question about protecting an intended bequest. In the answer you wrote, “Assets in the trust get a step-up in tax basis when the first spouse dies, but not when the surviving spouse dies.” My understanding is that, in California and other states with community property laws, the basis of eligible inherited community property gets stepped up twice: once for the surviving spouse and then again for the person who becomes the final beneficiary of the asset. I thought that using a revocable trust does not affect this “double step-up.” A married couple whose principal estate asset at death is their jointly owned (and substantially appreciated) home may never explore the benefits of a trust if they believe that one-half of the anticipated step-up in basis will be lost. Might you clarify what the sentence in your column means?

Answer: The double step-up works somewhat differently from what you’re describing, and the trust in question is quite different.

A step-up in basis happens when someone dies and an inherited asset gets a new value for tax purposes. The asset is “stepped up” to the current market value, which means any appreciation that happened during the deceased owner’s lifetime is never taxed. (Basis also can be stepped down for assets that have declined in value.)

In most states, when one spouse dies, only half of a couple’s jointly owned assets gets a favorable step-up in tax basis to the current market value. The surviving spouse’s half doesn’t get a step up in value until he or she dies.

In community property states, however, both halves of the couple’s community property get the step up with the first death, said Los Angeles estate planning attorney Burton Mitchell. That’s what is known as the double step-up in basis. If the survivor dies owning the property, it gets yet another step-up in tax basis.

Now let’s move on to trusts. The double step-up in basis is not affected if you own property in a kind of revocable trust known as a living trust. Living trusts are designed to avoid the court process known as probate, and they can be changed during the creator’s lifetime (hence the term “revocable”).

The trust in question, however, was a bypass trust. The original letter writer asked how to make sure her son from her first marriage would receive an inheritance if she died before her current husband.

One of the options would be to create a bypass trust that gave the spouse income from her assets during his lifetime, with the assets transferring to the son at the spouse’s death. Such trusts can help ensure the assets actually get to the son someday and aren’t spent by the surviving spouse, or the surviving spouse’s next spouse. Among the disadvantages is the fact that assets placed in the bypass trust don’t get a step-up in tax basis when the surviving spouse dies.

Another type of trust to consider in this situation would be a qualified terminable interest property (QTIP) trust. Unlike the assets in a bypass trust, assets in a QTIP would be included in the deceased spouse’s estate, which means they would get a step up in basis when the survivor dies.

Clearly, this is a complex topic, so you’d be wise to get an experienced estate planning attorney’s advice.

Q&A: Living trust setup costs

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Dear Liz: A friend of mine contacted an estate planning attorney to do a living trust. The attorney gave her an estimate of $5,900 for this job. My friend is single, never married, no children, does not own property or a business. She has no complex financial situations. She does have a financial planner, who she works with on her investments and retirement funds. I am also thinking of doing a living trust with an attorney, and my situation is similar to my friend’s — very simple. However, I can’t afford $6,000 to do a trust or will. Is this a reasonable cost for a simple estate? It seems high to me; should it be more in the range of $2,500?

Answer: Your friend’s experience is why many people put off estate planning or opt for do-it-yourself solutions when they would really benefit from an experienced attorney’s advice.

Let’s start with this: Not everyone needs a living trust. Living trusts are designed to avoid probate, the court process used to settle estates. But probate isn’t a huge hassle in many states. Even in states where probate is notoriously slow and expensive, such as California, there are simplified processes for smaller estates. Plus, there are a number of ways other than a living trust to avoid probate, including pay-on-death designations for financial accounts and, in many states, transfer-on-death options for vehicles and real estate.

Living trusts have other advantages: They’re typically private, whereas wills must be made public after death. And living trusts usually include a relatively easy way to have someone else make decisions for you if you’re incapacitated. But you can set up something similar by creating powers of attorney for healthcare and finances. Those documents, plus a will, typically cost less than $1,000.

There are self-help legal options online that allow you to create estate plans yourself, and some give you access to attorneys for help. Ideally, though, you would find a lawyer who would charge a reasonable fee to review your situation, offer you personalized advice and draft the necessary documents for you. If you’re having trouble finding someone, ask a tax pro or financial planner for recommendations. If finances are a consideration, avoid law firms with big fancy offices in expensive urban centers and look for those with more modest overhead in outlying areas.

All that said, the amount your friend was quoted could make sense if she has a lot of money. Even without real estate investments, substantial wealth will require substantial estate planning, and that comes with a substantial price tag.

Q&A: Inherited IRA taxes

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Dear Liz: I have about $16,000 in a Roth IRA that I plan to leave to my daughter. When she collects this on my death, does she pay tax on the withdrawals?

Answer: No. She would have to pay taxes on withdrawals if the money were in a regular inherited IRA, but not if the money is in a Roth. She will be required to withdraw the money within 10 years, though. Congress eliminated the so-called “stretch IRA” for most inheritors, so non-spouse beneficiaries can no longer stretch withdrawals over their own lifetimes.

Q&A: Updating old trusts, estate plans

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Dear Liz: I am 97 with two sons and have a trust prepared in 1991, shortly before my husband died. You warned there can be problems with bypass trusts created in older estate plans. I suspect that’s what I have. The attorney who created my trust died years ago, so I asked my son to do the research. He found an attorney near where I live who told us we should terminate my existing trust. We’re told it would avoid capital gains and my sons would enjoy a stepped-up basis in the assets. The charge would be close to $5,000. If I do nothing, the assets transferred to my sons will have no stepped-up basis and will incur capital gains taxes. I am thinking of a second opinion.

Answer: A second opinion might be a good idea, but please don’t delay. Your sons could wind up paying a potentially large and unnecessary tax bill if you don’t take action soon.

As mentioned in previous columns, bypass trusts were a common feature in estate plans back when the exemption limit was much lower. Although the trusts still have their uses, they’re often not necessary and cause problems for survivors and heirs.

Estate plans should be revisited after a major life change, a revision in estate tax laws or five years, whichever comes first.

Q&A: Should this couple leave their estate to kids who don’t share their values?

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Dear Liz: My husband and I are in our 60s and have two grown children. There are no grandchildren, and it’s not looking like there will be any. Sadly, our children do not share our values. We don’t want to leave them our estate because it will end up being given or bequeathed to charities of their choice. They are doing well and don’t “need” the money. However, we also don’t want to “cut them out.” I was thinking about a charitable remainder trust so they could have income during their lifetimes and the assets will go to our charities when they die. Can it be funded with what is left when we die or do we have to put some or all of our assets in it now? Is our estate sizable enough for such a trust? Our assets total about $3 million. A less complicated solution would be to leave them the house and bequeath the cash to charity. What are your thoughts?

Answer: Consider going with the less complicated solution.

Charitable remainder trusts are typically created while you’re alive. You contribute assets to an irrevocable trust and get a tax deduction for the contribution plus an income stream for life. At your death, the charity keeps the remaining assets — the remainder. Because the trusts are irrevocable, you should have careful counseling from an accountant, financial planner, the charity and an attorney before you sign away your assets, said Jennifer Sawday, an estate planning attorney in Long Beach.

You could create a trust that at your death pays income to your children and then contributes the remainder to a charity when they die. Such a trust probably would have to be administered for decades, so you’d need a corporate or other institutional trustee — and those aren’t cheap.

Also, keep in mind that a lot of things could change between now and your deaths. The kids who don’t “need” the money could suffer reverses, or you could. Opinions also can change; they might come closer to your point of view, or you could decide that the issues that divide you are less important than the bond you share. An unchangeable trust may not be the best option in a world that’s constantly changing.

Q&A: Executor duties

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Dear Liz: My best friend made me her executor. She has no relatives. She has listed people to receive money, possessions and her house. She has left me money as well. Once everything is disbursed and bills paid, there will be leftover money. If she wants me to have it, what needs to be written in the trust?

Answer: Her will should include a phrase that disposes of her residuary estate. After listing specific bequests, she would include a phrase such as “the rest and residue of my estate goes to” followed by the name of the person she wants to have the remaining estate. This clause isn’t without its problems, however, since receiving the residuary estate could tempt you to stint the other beneficiaries. Keep in mind that as executor, you have a fiduciary duty to all the beneficiaries, which means you cannot put your own interests first.