Ask Liz Weston

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trust

Q&A: After creating a living trust, don’t forget to review it

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Dear Liz: My husband and I created a living trust about six years ago. How often do we need to review it with an attorney if we’ve had no major life changes?

Answer: You’re already overdue.

The standard advice is to have your attorney review your trust every three to five years or after major life events, including marriage, divorce, a birth, a death, a change in your financial status or a move across state lines. You also should review and update your schedule of assets to reflect accounts you’ve opened and closed in the intervening years.

Q&A: Why your estate plan might need a do-over

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Dear Liz: We had a living trust done in 2006. The lawyer recently died and his office mailed us a packet with the trust document in it. We want to make a few changes. Every lawyer wants to do the whole thing over and have us sign papers giving them powers.

Answer: Your estate plan is probably ready for a do-over.

Previous columns have mentioned that estate planning laws have changed significantly since 2010. Any estate document created before that point needs to be reviewed and updated. Your previous attorney can’t do the updating, and another lawyer might be wary of being held responsible for a document they didn’t draft.

That said, it’s not clear what “powers” you’re being asked to give. What these attorneys may want to do is have you create powers of attorney that would allow a trusted person to make financial and healthcare decisions should you become incapacitated. These documents are essential and a good reason to schedule an appointment with the attorney of your choice today.

This advice is well worth repeating: Do-it-yourself estate planning can create a mess for your heirs that could incur far more in legal fees than you would have spent getting expert, personalized advice in the first place.

Q&A: House transfer in a trust

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Dear Liz: My dad set up a living trust that included his house, which has a mortgage on it. The lender accepted the transfer of the home to the trust. Dad recently passed away so the house should transfer to my sister and myself. Can the lender trigger the due-on-sale clause? Or make me or my sister qualify for the mortgage?

Answer: A federal law known as the Garn-St. Germain Depository Institutions Act of 1982 details several situations in which lenders can’t enforce due-on-sale clauses, including when a home passes to a relative or joint tenant, said Jennifer Sawday, an estate planning attorney in Long Beach. The law applies to residential properties with four or fewer dwelling units.

You and your sister won’t have to qualify for a new loan but can continue making payments under the current mortgage terms. If you can’t afford the payments, you’ll need to consider other options, such as refinancing or selling the home.

Q&A: Changing tax law may have made home trust unnecessary

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Dear Liz: I was told my father’s house did not qualify for a step-up in tax basis at his death because he had put the house in a qualified personal residence trust (QPRT). With your recent column mentioning the step-up when a home is inherited, I’m wondering if I paid unnecessary taxes.

Answer: In at least one sense, you may have.

Qualified personal residence trusts were a popular technique when the estate tax exemption limit was much lower. (Currently the limit is $11.58 million per person, but 20 years ago it was $675,000.) Putting a home in this kind of trust essentially froze its value for estate tax purposes while allowing the person who created the trust to continue living there for a certain length of time. At the end of that period, ownership of the home was transferred to the heirs and the person who created the trust had the option of renting the home from those heirs.

If the house hadn’t been put in a trust, the heirs would get a new tax basis when the owner died. The basis would be “stepped up” to the home’s current value, so there would be no capital gains tax owed on all the appreciation that occurred during the owner’s lifetime.

When a home has been placed in a QPRT, on the other hand, there’s no step-up in tax basis when the trust creator dies because the home already belongs to the heirs. When the heirs sell the home, they typically have to pay capital gains taxes on the appreciation that happened during the trust creator’s lifetime.

People who created these trusts were gambling that the estate taxes they would avoid would be substantially greater than the income taxes the heirs might owe. When estate tax limits were raised, many lost that bet.

So you didn’t pay unnecessary taxes in the strictest sense — you had to pay the taxes by law because the house was given to you before your father died. But in the larger sense, the tax bill you paid could have been avoided if the home hadn’t been put in that type of trust. If your father’s estate wound up being below the estate tax limit in the year he died, then the trust provided little benefit.

Q&A: Their kids are spendthrifts. How do parents protect them with a trust?

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Dear Liz: My wife (71) and I (68) have been diligent savers our entire lives. We have accumulated IRA assets of approximately $2 million along with a house and other assets. Our total estate is under $10 million. We have two adult children in their 20s who did not inherit the saving gene. My question is: Does a trust exist that would maintain the IRA’s tax-deferred status, make required minimum distributions to our kids and include appropriate spendthrift provisions? Also, would the distributions be based on our life expectancies or on theirs?

Answer: Yes, you can create a spendthrift trust and name it as the beneficiary of your IRAs. Your children could be named beneficiaries of the trust. Required minimum distributions for inherited IRAs would be based on the elder child’s life expectancy. Your children would not be able to “invade” or tap the principal.

A spendthrift trust would not only prevent your kids from blowing through any money left in the IRAs. It also would prevent creditors from getting the money in case of bankruptcy. In many states, inherited IRAs are vulnerable to creditor claims.

Here’s the thing, though: This is a question you should be asking your estate planning attorney. If you don’t have one, you need to get one. People with small, simple estates may be able to get away with do-it-yourself planning, but yours is neither small nor simple. Trying to save money by using software or forms just isn’t a good idea. Whatever money you save may be wasted when your estate plan goes awry in ways you didn’t foresee, because you’re not an estate planning expert.

Trusts that name IRAs as beneficiaries, for example, must have special language to accomplish what you want, said Jennifer Sawday, an estate planning attorney in Long Beach. Without the right language, the IRA custodian might liquidate the IRA instead. That would trigger the taxes and lump sum payouts you’re trying to avoid.

Q&A: A ‘poor man’s trust’ may be a poor estate plan

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Dear Liz: I am 85 and my wife is 76. We have a house free of mortgage worth about $1 million. We have market investments above $4 million and life insurance of $1 million. We do not have a trust, just a will. Our financial advisor says that we do not need a trust because we have named both of our grown children as beneficiaries on all of our accounts and on the deed to our house. Please advise us if a trust is needed in our situation or if we are fine the way things are set up.

Answer: If your financial advisor is an estate-planning attorney, he or she may be correct. Otherwise, you’d be smart to seek out a lawyer experienced in these matters to review what you’ve done.

Naming beneficiaries on financial accounts, and on deeds in states that allow that, can allow those assets to pass to heirs without going through probate. So-called transfer-on-death accounts and deeds are sometimes called “the poor man’s trust.” You’re far from poor, though, and a living trust may be a better option for distributing your wealth because there are many ways the current arrangement could go wrong.

The surviving spouse, for example, could change the beneficiaries. You both may be of sound mind now, but there’s no guarantee you’ll remain so. Fraud experts can tell story after story of caregivers, relatives, friends, advisors and romantic interests persuading a vulnerable older person to change beneficiaries in favor of the interloper. A living trust that bypasses probate can include language to prevent your children from being completely disinherited.

Another potential problem: paying funeral costs and the expenses of settling the estate. If everything does go to the kids at the survivor’s death, the executor may have to go after them to return some of the money.

This column isn’t long enough to detail all the other ways transfer-on-death arrangements can misfire, so you’ll want to make an appointment with an experienced estate-planning attorney soon.