Ask Liz Weston

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Q&A

Q&A: Bypass the bypass trust

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Dear Liz: You mentioned in a recent column that people should check estate plans created before 2010 because they might contain bypass trusts that are no longer needed. The classic AB Trust, although not necessary now for the estate tax exemption for most people, still can be useful if one spouse wants to ensure her half of the estate goes as she desires if she is the first to die.

Answer: Possibly, but people should make the decision proactively by having their estate plan reviewed and discussing their options with an experienced attorney, since these trusts have some significant disadvantages.

Bypass, or AB, trusts were a routine part of estate planning even for middle-income couples when the estate tax exemption limit was just $675,000. When the first spouse died, a portion of the couple’s assets went into an irrevocable trust that would avoid estate taxes when the surviving spouse died. Because the trust was irrevocable, the surviving spouse couldn’t change its terms and had limited access to the assets.

Also, assets in the irrevocable trust don’t get a step up in tax basis when the survivor dies. That means the ultimate beneficiaries could wind up paying higher capital gains rates when they sell the assets. When the estate tax exemption limit was low, couples were gambling that the estate tax savings would outweigh the future capital gains cost.

Today, far fewer families have to worry about estate taxes. The exemption limit for 2022 is over $12 million per person and over $24 million per couple. Even after the current limit sunsets in 2025, individuals would be able to exempt over $6 million and couples over $12 million from estate taxes. Estate tax exemptions are also now “portable,” which accomplishes much of what the AB trust was designed to do in ensuring the exemption of the first to die wasn’t “wasted.” Now the amount of the exemption limit that isn’t used by the first spouse to die can be transferred to the survivor’s estate.

Bypass trusts are still routinely used for wealthier people and those who live in states with low estate tax exemption limits, but for many people this estate planning tool has outlived its usefulness.

Q&A: Reporting caregivers’ pay to the IRS

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Dear Liz: We have a gardener, pool man and caregivers. We pay the gardener, pool man and some of the caregivers directly, while we pay an agency for the other caregivers. Do we have an obligation to report payments to the IRS?

Answer: As an individual taxpayer, you typically don’t have to report payments to businesses. Your gardener and pool cleaner probably either are self-employed or work for a company that takes care of reporting requirements for its workers. Likewise, the caregiving agency should handle reporting requirements for its employees.

The caregivers you pay directly, however, are generally considered your household employees. That means you may be responsible for reporting their wages to the IRS and paying their employment taxes. That responsibility kicks in if a caregiver receives at least $1,000 in any calendar quarter or at least $2,400 per calendar year for 2022 (or $2,300 per calendar year for 2021), says Mark Luscombe, principal analyst for Wolters Kluwer Tax & Accounting. IRS Publication 926, Household Employer’s Tax Guide, has details.

Q&A: Taxes on trust’s income

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Dear Liz: My father passed away last year leaving an estate that will make us comfortable through the foreseeable future. His holdings are mostly securities that are traded either on the NYSE or the Nasdaq. From our investments, we currently have non-earned income of between $75,000 and $100,000 annually without any other income. After estate taxes are paid for my father’s estate, the annual yield (mostly dividends) will be in the $225,000 to $250,000 range. My question for you is should we keep my father’s holdings within his trust and let the trust pay the taxes on the income, or should we take the income and pay the taxes ourselves?

Answer: Tax rates on trusts are notoriously high. If you have a choice, you probably would want to pay the taxes yourself rather than letting the trust do so. The question is whether you have a choice, and that will be determined by the wording of your father’s trust, Los Angeles estate planning attorney Burton Mitchell says.

Speaking of estate planning attorneys, you need to hire one, along with a tax pro and a fee-only financial planner, so you can get solid, personalized advice on questions like this. You already had substantial income, and you just inherited an estate worth multiple millions, so you’re long past the point when doing it yourself makes sense.

Q&A: How to protect your identity beyond a credit freeze

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Dear Liz: I volunteer for an organization that does background checks every two years. A recent check found my name and Social Security number was used in Texas from 2019 to 2021. I have never been to Texas. What can I do to find out how this happened, and how to protect my Social Security number? I have already frozen my account with the three main credit bureaus.

Answer: You may never know exactly how this happened, but you can make an educated guess.

Most Americans’ Social Security numbers have been exposed in one database breach or another, including the massive Equifax breach in 2017 that exposed the personal information of nearly 150 million people. As a result, Social Security numbers are sold by criminals on the dark web for just a few dollars.

Because Social Security numbers have become all-purpose identifiers — something they were never intended to be, by the way — criminals can use a purloined number to get jobs, steal your tax refunds, receive medical care and apply for credit, among other misuses. They also could pretend to be you if they’re ever arrested, something known as criminal identity theft.

Freezing your credit reports will help prevent someone from opening new credit accounts. Credit freezes typically won’t help with the many other types of identity theft, however.

If you haven’t already done so, create a personal account on Social Security’s site to check your earnings record. If what you see doesn’t match your own records, contact the Social Security Administration by calling (800) 772-1213. If someone used your Social Security number to work or get your text refund, contact the IRS at irs.gov/identity-theft-central or by calling (800) 908-4490.

You also can report the fraud to the Federal Trade Commission at IdentityTheft.gov, a site that will create a recovery plan to help you navigate the next steps.

Q&A: Did this child get ripped off?

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Dear Liz: My niece’s father remarried when she was a child. Her father and her stepmother bought a house as community property in California. Ten years later, her father died. Not long after that, her stepmother died. The stepmother had no children, and my niece was the only child of her father’s. The stepmother’s niece took the house and sold it, and kept all the proceeds. Was my niece entitled to any of the proceeds?

Answer: Your niece needs to consult an experienced attorney, because the answer depends on a number of factors.

Estate planning attorney Jennifer Sawday of Long Beach points to California Probate Code Section 6402.5, which could give your niece priority over other heirs for the property’s proceeds — but only if the facts line up. If the stepmother died no later than 15 years after the father, didn’t remarry, didn’t have children, didn’t put the home in a trust and didn’t make a will after the father died, then the California probate court could consider your niece an heir, Sawday says.

That’s a whole lot of ifs, and your niece will need expert advice to proceed.

Q&A: House sale implications for retiree

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Dear Liz: I’m 67, divorced since 1992 and retired with a good government pension, a retirement investment fund, some stocks and cash savings. I plan to sell my home of 33 years soon for a hefty profit and buy a smaller home. I owe $100,000 on the mortgage. I worry about a significant increase in payments to Medicare and tax obligations to the IRS. What financial advice do you have for me? This is my first time selling and buying a property on my own.

Answer: Now would be a great time to consult a tax professional about your options. You can exempt as much as $250,000 of home sale profit, but gains beyond that would incur capital gains taxes and could increase your Medicare premiums.

The amount you owe on your mortgage doesn’t affect the tax you owe on a home sale, but other expenses might. For example, you may be able to reduce your taxable profit if you kept good records of the amounts spent on home improvements. What you spent on maintenance and repairs over the years won’t help, but any work that improved the value of your home may be added to what you paid for the home to increase your tax basis. This basis is what’s subtracted from the sale price to help determine your taxable profit. Certain expenses you incurred to buy your home, such as closing costs, and to sell it, such as real estate commissions, also can help reduce the taxable portion.

IRS Publication 523 goes into detail about how to calculate home sale profit, but an enrolled agent (you can get referrals from the National Assn. of Enrolled Agents) or a CPA could be extremely helpful in advising you about these calculations.