As it turns out, a lot. Love and marriage can be of supreme importance when the Veterans Administration (VA) is considering an application for death pension from a surviving spouse. It is true that marriage is one way to document a veteran’s dependent, and this would mean an additional $332 per month to a vet’s pension in 2016. But failure to document a veteran’s marriage would certainly not be an outright bar to pension. By contrast, in the case of a surviving spouse’s claim, if you cannot document that the marriage between the surviving spouse and the veteran was valid, you have no claim at all, regardless of how eligible the surviving spouse may be otherwise.
Let’s consider the VA’s definitions of a surviving spouse and marriage. Pursuant to 38 CFR §3.50, a surviving spouse is someone of the opposite sex whose marriage to the veteran was valid; who was the spouse of the veteran at the time of the veteran's death; who lived with the veteran continuously from the date of marriage to the date of the veteran's death; and who “has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person.” Marriage is defined in 38 CFR §3.1(j) as “a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued.” Despite these broad definitions, there are plenty of exceptions that complicate the issue of determining whether someone qualifies as a surviving spouse, particularly when you are dealing with multiple remarriages. A notable exception is that, despite the federal government’s recognition of same-sex marriages conflicting with the VA’s definition of a surviving spouse as being someone of the opposite sex, the VA will consider same-sex marriages as long as the marriage was valid per the terms of 38 CFR §3.1 (j) above.
Another exception is that, if there was a separation that was due to the misconduct of, or procured by, the veteran without the fault of the spouse, it is not required to meet the continuous cohabitation requirement. And you only need to provide a statement from the surviving spouse to document this situation in the absence of contradictory information. Furthermore, per 38 CFR §3.60, “for the purposes of determining entitlement to pension under 38 U.S.C. 1521, a person shall be considered as living with his or her spouse even though they reside apart unless they are estranged.” Therefore, separations due to one spouse being institutionalized and the other spouse living in the community are not considered breaks in continuous cohabitation.
You may also have to consider the dates and duration of any marriage to determine its validity. The section on marriage dates, 38 CFR §3.54, states, “Death pension may be paid to a surviving spouse who was married to the veteran: (1) One year or more prior to the veteran's death, or (2) For any period of time if a child was born of the marriage, or was born to them before the marriage, or (3) Prior to the applicable delimiting dates,” which are 10 years after the end of that veteran’s particular wartime service period. For example, if a vet passed away 364 days after the date of the marriage, the surviving spouse may still have a claim, if a child was born of the union or they were married within 10 years of the end of their wartime service period. There is even a section under 38 CFR §3.54 for those clients who have married the same veteran more than once on or after January 1, 1958. If that scenario should ever present itself, bear in mind that “the date of the original marriage will be used in determining whether the statutory requirement as to date of marriage has been met.”
Finally, even the requirement that the surviving spouse remain a faithful widow/er, and not remarry after the death of the veteran to stay eligible for death pension, has its exceptions. Title
38 CFR §3.55, which addresses reinstatement of benefits eligibility based upon terminated marital relationships, and which explains under what circumstances remarriage of a surviving spouse will not bar the furnishing of benefits to such surviving spouse, can be a daunting regulation to understand. The myriad dates you must consider not only for death pension, but for other types of benefits for which surviving spouses may qualify as well, can cause much confusion. However, to summarize briefly here, the only way for a surviving spouse who remarried to still be eligible for non-service-connected disability pension benefits would be if any remarriage was either:
Service-connected disability dependency and indemnity compensation (DIC), medical benefits, and even educational assistance is available for surviving spouses who remarried and terminated the remarriage during other time periods, but there is no non-service-connected pension for a surviving spouse who remarried unless that remarriage met one of the three criteria listed above.
The most important thing to document for all prior marriages of both a veteran and the spouse is their termination. This means having your client dig up death certificates with the cause of death explicitly stated, or divorce/annulment decrees, etc. This can be a difficult task when you have clients with multiple marriages, a circumstance that is becoming more common as people live longer lives. Documents of this nature, or other reminders of past marriages, may not be preserved or can be a touchy subject for even adult children to discuss with their parents. However, you must insist on this documentation, because if any of the previous marriages cannot be shown to have been terminated by death or divorce, the later marriage that could be the basis for a VA claim would not be valid.
If you would like to join our complimentary VA Tech School you can register here: https://attendee.gotowebinar.com/rt/3181521930337595395
In these ever changing times, it is critical to stay current with the laws, policies and practice of the Veterans Administration. VA Tech School monthly webinars provide education on the legal technical aspects of qualifying for the Improved Pension (with Aid and Attendance) for wartime veterans. The monthly webinars will be on the first Wednesday of each month at 12:00 p.m. Eastern Time.
Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Lawyers with Purpose; and Co-Founder of Veterans Advocate Group of America.
Many lawyers proclaim to have remarriage protection in their estate planning documents, but few are worthy of this claim. For most lawyers, having remarriage protection means removing a spouse’s right to benefit from a trust in the event the spouse remarries. Although this is a good start, it is wholly insufficient in determining the expansive abilities that one can have regarding remarriage protections.
So let’s look at the key points. Typically, clients use trusts to benefit their spouse. Outright conveyances to spouses are common, but they do not provide any asset protection or remarriage protection. To ensure that assets are protected in a remarriage, one must plan appropriately in four core areas.
When designating trusts for clients of long-term marriages, most want to ensure that the intentions of the couple are carried out after the death of the first spouse, and are not adversely influenced. Although this is a common goal, it could be derailed when a new relationship enters the picture after the death of the first spouse. The goals and intentions of the surviving spouse are often altered significantly due to the fear of having lost their spouse and/or the introduction of a new relationship that can influence them. To ensure that the deceased spouse’s intentions are carried out, the Lawyers with Purpose Client-Centered Software (LWP-CCS) ensures remarriage protection at all three levels. Let’s examine each and how they apply to remarriage protection.
First is the spouse’s right to a beneficial interest. The surviving spouse often has a right to principle and/or income from the deceased spouse’s trust. That interest can come in the form of a family-type trust that benefits the spouse’s kids/non-family, or a common trust with other beneficiaries. So often, we see lawyers name just the spouse as the beneficiary of the family trust. Although this protects the spouse, it also unduly restricts them. A spouse who wants to benefit a child and use assets from the deceased spouse’s trust often has to take the distribution and then give it to the child. Instead, it is more practical to include the children and other descendants as benefits of the principal and income to a surviving spouse. This allows the surviving spouse, as trustee, to distribute or “sprinkle” the income or principal as they determine to accomplish the goals of the family. In contrast, if the surviving spouse gets unduly influenced by a new relationship, then one must be able to restrict that spouse’s right to income and principal under the deceased spouse’s trust. Remember, the surviving spouse has assets that are still available as provided by the original planning.
Another critical issue in remarriage planning is the definition of remarriage. Most trusts define remarriage as however remarriage is legal in the jurisdiction. This is another mistake. In today’s day and age, no one gets married anymore, but not getting married does not mean that a new “significant other” does not have significant influence over the surviving spouse. That’s why Lawyers with Purpose’s Client-Centered Software includes default remarriage language that identifies remarriage as any marriage legal in the jurisdiction or any relationship that results in cohabitation for one night. The software also allows attorneys to custom-tailor the definition of remarriage any way they choose. What’s critically important is what remarriage protections are triggered when the remarriage definition is met, first, upon remarriage under the definition, the ability to access principal or income can be restricted in the LWP-CCS software.
In addition, a deceased spouse’s trust can allow a spouse certain powers of appointment to ensure that the couple’s goals are continued after the death of the first spouse. When there is an outside influence or a remarriage (as defined by you), then you may also begin to restrict the surviving spouse’s power of appointment to ensure that the children are not penalized for failing to agree with the surviving spouse, and the power to make distributions that would go against the deceased spouse’s intentions.
Perhaps the most significant power that can be removed in the LWP-CCS remarriage protection software is the ability to remove a surviving spouse’s removal powers. Removal powers include the surviving spouse’s ability to remove a trustee and/or trust protector of the deceased spouse’s trust. Allowing removal powers after the influence of a new third party can adversely affect children or other beneficiaries who are acting as co-trustees, or trust protectors who were independent and in place to ensure the preservation of the deceased grantor’s intentions. Interestingly, the Lawyers with Purpose software allows not only the appointment of all these powers to a spouse, it also allows you as the attorney to cherry pick which powers, or any combination of them, are altered upon the remarriage of a spouse as you wish to create them with the client.
Again, this is what we call trust drafting. Too many times we have lawyers get comfortable and lazy with the simple provisions most would call “remarriage protection.” That’s why at Lawyers with Purpose our software supports your ability to be purposeful to your client’s plan.
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Dave Zumpano, Co-founder - Lawyers With Purpose
As the Lawyers with Purpose attorney trainer, I am often asked by transitioning attorneys or new members how I can justify helping people shelter money so that they could possibly one day receive Medicaid benefits, while still having funds available in trust. I often think as I respond, how could you not?
The Medicaid program was established in 1965. The original purpose of the program was to provide needed care for the indigent. In a 2011 House hearing on “Abuses of Medicaid Eligibility Rules,” Rep. Trey Gowdy argued that the extremely wealthy should not be on Medicaid. Medicaid is a program to alleviate impoverishment, so certainly this argument makes sense. One thing both Donald Trump and Hillary Clinton have in common is that neither should be in our offices asking how to get Medicaid benefits for long-term care.
But Rep. Gowdy went a step further, stating that “Income and asset tests are easy to circumvent and abuse. In fact, a cottage industry has arisen seeking to educate the wealthy on how to transfer or hide assets so taxpayers can pay for their long-term care.” When I read Mr. Gowdy’s quote, certainly I was not shocked. We, as a “cottage industry” of elder care attorneys, have already been pinned “pension poachers” by the Department of Veteran’s Affairs. So, it is not a stretch to hear that we are also being labeled in this way, even though we never break or abuse a law and certainly never ask our clients to do so.
I would like to ask Mr. Gowdy, and all of those who paint us with the broad brush stroke of system abusers, if they actually have any idea who our typical clients are. I suspect that they do not. Because the reality is that very few multi-millionaires come into our offices seeking Medicaid benefits. No, they come in for tax planning, they come in for asset protection and they come in for family trust planning. The people who come through our doors because a spouse has just entered the nursing home and they have been asked to deplete their $250,000 in savings to pay $8,000 a month for care are not these “millionaires.” They are the hard-working, tax-paying middle class. And they are frightened, they are nervous and they know that they are quickly becoming the indigent.
Currently, long-term care beneficiaries represent about 7 percent of the Medicaid recipient population. However, they absorb about 19 percent of the Medicaid funds. Why? Because long-term care is astronomically expensive and there is no other public program available to help with the expense. It is also believed that the average pre-plan for couples who plan over five years prior to institutionalization is saving the married client between $240,000 and $750,000. These numbers decrease by over half when we look at crisis cases. When asking why they pre-planned for Medicaid eligibility, below are the answers I received from former clients.
From a former school teacher married to a Vietnam veteran: “My husband has dementia. He could be sick for a long time and I am only 68 years old.”
From a widow with an adult disabled child in her home: “My daughter has special needs and is wheelchair-bound and I need to have the money left over to care for her for the rest of her life.”
From a retired doctor and his wife, a teacher: “I paid taxes all my life and I continue to pay all that is required of me. I also donate time and money to those in need. My children work hard and I do not want to be a burden on them.”
From an auto mechanic with Parkinson’s and his wife, a retired bus driver: “My neighbor lost everything they worked for. I don’t want to die having lost everything I worked for my wife to have when she is alone.”
It is also worth noting that the “Abuses of Medicaid Eligibility Rules” hearing never grew into any proposed law changes. This is most likely because the officials from the state Medicaid agencies and the nursing care industry who were brought in to speak before the committee painted a completely different portrait of the “system abusers.” They told the stories that they see every day. They spoke of the middle class – scared, desperate, and struggling to pay for care – and the attorneys who help them manage the legalities of a complex system. They spoke of the reality, not the myth.
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Kimberly M. Brannon, Esq., Legal Technical & Software Trainer - Lawyers With Purpose
We as attorneys, and sometimes even our clients, hear so much about trust funding, but rarely is it truly understood. I would like to outline a few essentials when doing trust funding to ensure that the underlying estate plan works as intended.
The first key step in any trust funding strategy is to identify what type of estate plan the client is pursuing. A traditional revocable living trust is an estate plan wherein the client identifies who gets to benefit from the client's assets when the client is well, disabled, and after death. A critically important point to funding a revocable living trust is if all assets funded in the trust are still 100 percent available to creditors, predators, and long-term care costs of the grantor while alive. The assets can continue to be made available to the creditors and predators of the beneficiary after the death of the grantor without proper planning (more on that later). In the alternative, if a client has opted to do an irrevocable trust for asset protection and/or current or future benefits eligibility (we call these IPUG® trusts) then funding is much more important, because assets are not protected from third-party predators until funded, and they're not protected from long-term care costs until funded and any related penalty period for the conveyance of the trust has expired.
Therefore, funding in asset protection or benefits eligibility is significantly different. Finally, if the client has done a trust predominantly for estate tax planning to ensure that assets are not included in the grantor's taxable estate, or to minimize the taxes on them, funding takes on yet another unique importance. Finally, regardless of what type of planning, we also need to look at the types of assets we are funding. For example, funding a home has several options as well as funding an IRA or other tax-qualified assets. So examine the differences and determine how to fund properly.
The first questions we must ask are, what type of planning has the client done and what type of assets is the client funding? If a client has done a revocable living trust, then funding is important to ensure that the trustee actually has the authority over the client's assets to administer them in the manner that has been identified by the client in the trust. If funding is not completed or properly done, a "pow will" usually cleans up any missed items at death by ensuring that any assets not funded that go through probate name the trust as beneficiary. Unfortunately, if the client doesn’t die but instead becomes incapacitated, failure to fund a revocable trust has more dire consequences. In addition, failure to fund assets to the trust does not eliminate probate, one of the primary benefits of having a revocable living trust to ensure the plan is carried out without the excess costs, delays and frustrations of probate to the client’s family.
In stark contrast to revocable trust planning, when planning for asset protection or benefits eligibility, funding becomes the most critical element to which all protection occurs. For example, if an asset is funded into an irrevocable asset protection trust today, it is protected from any and all claims that arise after the funding. More definitive, if planning for benefits eligibility, the funding of the last asset becomes most critical, as all assets funded to a trust will be subject to Medicaid's review of that transfer for up to 60 months. At Lawyers with Purpose, we call this the "look forward™" period. When funding an irrevocable trust for benefits planning, the look forward on the final conveyed assets will trigger protection of the assets. For example, if a client has $500,000 to fund and only funds $450,000 of it, and two years later remembers to finally fund the last $50,000, the $450,000 conveyed initially will have a 60‑month look forward, but the $50,000 conveyed two years later will have its own separate 60-month look forward that will extend years beyond the expiration of the previous trust transfer. That is why it's essential when benefits eligibility planning that funding be done in a timely and effective manner to ensure that the look forward is minimized.
For estate tax planning, obviously the funding of assets becomes critical by use of the Crummey power if life insurance or any gift-discounting techniques are being used, since the funding must be used to pay the insurance premium and must specifically relate to any special valuations that are obtained at the time of funding.
Although funding is a critical element in each type of planning, what can complicate it further is the type of assets being funded. For example, let's consider funding a home. For a typical revocable living trust, the funding of the home ensures that there will be no probate on the home but still makes the home available to creditors (if not protected by some other state statute while tenancy by the entirety), or it can become a recoverable asset after death if Medicaid benefits are received. While the home is exempt for married and single applicants, it can be subject to estate recovery after death for all funds paid on behalf of the applicant during their lifetime. See my related article on Estate Recovery - What Can (And Can't) They Get. Finally, a recent case in Massachusetts suggests that having a trust that allows the grantor to reside in the house makes the entire value of the house an available resource in determining the client's eligibility for benefits. See my post on Nadeau v. Thorne - No Reason To Fear. This adds additional complications in funding, since attorneys may now choose to reserve a life estate in the deed rather than fund the entire property to the trust and risk its loss as an available resource. Finally, transferring a house or second home to a qualified personal residence trust is a gift-discounting technique often utilized by those subject to estate tax. Again, the funding of these properties into the trust, and the subsequent survival of the grantor during the term in which the interest is held, is essential to maximize the estate tax reduction.
The other major asset to be considered in funding is the IRA. The Supreme Court in Clark v. Rameker decided in June 2014 that IRAs are not protected for those who inherit them. There is an obvious exception for an IRA that names a spouse beneficiary, who then combines it with an existing IRA. While this ensures IRA protection from general creditors, an IRA is not exempt in determining one's eligibility for Medicaid, and therefore, leaving an IRA to a spouse can expose the entire IRA balance to the surviving spouse's nursing home costs. Federal Medicaid laws are absolute: an IRA is an available resource, unless it is annuitized. Although some states have liberalized the interpretation of annuitization (i.e. many states deem they were payouts of RMD to satisfy the annuity executor) it is not the federal law, but merely state policy, which could be changed at any time without notice. Over the last few years, several states have changed their policy, thus making assets that were presumed to have been protected immediately available for long-term care costs.
The naming of a beneficiary of an IRA and other qualified or beneficiary designated accounts to the trust is now essential to maintain the asset protection intended. For example, even for a young couple with no assets, a $250,000 life insurance policy that pays to the spouse at death could be a catastrophe, as young people often get remarried or make unwise decisions. One should be cautious and ensure that all or part of a life insurance policy for a young couple names a separate share trust under a will for the benefit of the minor children, so as to ensure that the surviving spouse does not squander the proceeds, and that they are used as intended by the client. Finally, as we look at trust funding, it is essential to have a key system in place to ensure that your funding is done in a timely and appropriate manner. How assets are funded, the timing of assets funding, and the beneficiary designation utilized in funding for after death, are essential to ensure that the underlying goals of the client are achieved.
To have learn more about the support and systems to fund clients' plans properly, contact Lawyers with Purpose now. If you want to learn more about who we are consider joining our FREE webinar this Thursday, April 21st. Discover how to build a thriving Estate, Elder and Asset Protection practice that attracts higher quality clients, generates an endless supply of referrals and continuous exposure in the community ... without working 80 hours a week or breaking the bank! Reserve your spot today, just click here now.
David J. Zumpano, Co-founder - Lawyers With Purpose
Many people commonly use Irrevocable Life Insurance Trusts (ILIT) to ensure that life insurance owned by an individual is not included in their taxable estate at death. While an ILIT is a useful trust, you could accomplish far more with a TAP™ trust. So let's review an ILIT and distinguish how a TAP enhances the benefits often sought by ILITs. An ILIT is an irrevocable trust wherein the grantor retains no rights to modify the trust, benefit from the trust or control the trust. Retention of any of these rights will trigger estate tax inclusion under Internal Revenue Code Sections 2036 through 2042. An Irrevocable Life Insurance Trust may be a non-grantor trust or grantor trust, depending upon the attorney's drafting choice.
Triggering a provision of Internal Revenue Code Sections 671 through 679 will cause the inclusion of all income from the ILIT to be included in the personal income tax return of the grantor. While the grantor retains no rights to modify, control, or benefit from the trust, the grantor may be taxed on its income if a grantor trust provision is triggered. The most common of these grantor trust provisions is to allow the grantor to substitute assets of equal value, or make loans to the grantor without adequate security. By choosing grantor trust status, it essentially serves as an additional gift without having to utilize the annual gift tax exclusion, because the income taxes are paid from the grantor, rather than the trust. As a result, those additional sums are retained in the trust, thus providing additional assets to the intended beneficiaries that otherwise would have been used to pay the taxes.
One of the core elements of an ILIT is ensuring the use of Crummey powers. Crummey powers are based on the landmark case Crummey v. the Commissioner wherein the U.S. Tax Court held that granting someone the right to withdraw money funded to a trust immediately but limited to a short period of time (i.e. 30 days) was sufficient timing to deem the contribution a "present interest" and thereby trigger the annual gift tax exclusion for the contribution. A Crummey power is essential to ensure that the annual gift tax exclusions are utilized so as not to reduce the grantor's overall lifetime estate and gift tax exemption. One critical restriction under the current power, however, is that Section of the Internal Revenue Code limits the annual exclusion made to trusts to the greater of 5 percent of trust assets or $5,000. Therefore, it is essential to have a "hanging power" to ensure any contributions in excess of $5,000 or 5 percent are not deemed to be taxable gifts.
These hanging powers allow the Crummey beneficiary to continue to have the right to withdraw this excess amount, even beyond the 30-day period. For example, if a grantor contributes $42,000 to a trust for three Crummey beneficiaries and the $42,000 is the only asset of the trust and it was utilized to pay the insurance premium, then 5 percent of the trust assets only equals $2,000. Obviously, $5,000 would be greater, so $5,000 of each $14,000 contribution would be deemed to be a present interest gift and $9,000 of the contribution would "hang" until no contributions are made in a given year. At that time, an additional allocation of the annual gift would occur based on the $5,000 or 5 percent trust value limitation. Obviously, this could be problematic if these powers hang and one of your Crummey beneficiaries becomes subject to lawsuits, divorce or long-term care costs.
Another consideration with the Crummey power is to have straw Crummey beneficiaries. This is typically done by adding beneficiaries to the lifetime trust, which operates during the grantor's lifetime and provides the names of people who are not residuary beneficiaries. For example, one straw Crummey beneficiary might include spouses or other remote relatives who are willing to be a Crummey beneficiary, understanding that they are not likely to be an ultimate beneficiary. This allows additional payments each year to be contributed within the annual exclusion limit. Both ILITs and TAP trusts have Crummey provisions with hanging powers.
Neither ILITs nor TAPs are user friendly to individuals with estates less than $5,450,000, or $10,900,000 if married. These excessive restrictions need not be applied in circumstances where the total estate of the grantor plus the life insurance benefits does not exceed the estate tax limit. Obviously, the only other consideration would be if your state had an estate tax at a lower limit. If estate tax is a concern, a primary benefit of the TAP trust over the ILIT is that a TAP trust stands for Tax All Purpose trust, which means its intended benefit is far beyond the holding of life insurance. The TAP trust will typically hold life insurance policies, stocks, bonds, and other assets and/or business interests that the grantor would like to get passed on to the trust beneficiaries after death. This is especially helpful, as it will ensure that there are other assets in the trust other than the life insurance policy to accumulate assets of more than $280,000 to ensure that the entire Crummey contribution can be utilized each year with no hanging powers. In addition, the TAP trust has extensive provisions for lifetime and residuary trusts to the individuals or classes of people.
For example, sometimes a grantor will create a family-type trust that takes effect after death for the benefit of the surviving spouse and children, and upon the death of the surviving spouse, it provides separate residuary trusts for each child. Other times, clients may want to create a benefit for a class of their children for their lifetime, and at the death of the last child the balance is allocated to their then-surviving children in separate share trusts. TAP trusts are extremely flexible and powerful in ensuring that whatever assets are passed through them (life insurance, stocks, bonds, business interests, etc.) are passed on to their loved ones fully asset-protected in separate asset protection trusts or common trusts, depending on the client's goal. One of the critical distinctions in asset protection trusts after death is to ensure that the trustee is an independent trustee under Internal Revenue Code Section 672(c). One distinction to resolve the concern of naming the child beneficiary as the trustee without violating Section 672(c) is to ensure that you name a co-trustee who is adverse, a strategy far too few lawyers utilize. For example, after the death of a grantor, the surviving spouse can be the trustee with a co-trustee of one of their children. While this would be considered under the family attribution rules to be a controlled trustee, the adverse party interest ensures that the Internal Revenue Code distinctions are met. For example, if a child was a co-trustee with the spouse and approved a payment to the spouse during a family trust administration, that would be adverse to the child's residuary interest and thus satisfy the restrictions within 672(c).
The other exciting element of a TAP trust is the allowance of the spouse or trust protector to have a power of appointment to modify the beneficiaries within a class of people identified by the grantor. This can ensure that the family is able to adjust for changing circumstances after the death of the grantor to cover his or her overall planning intentions. One of the key distinctions of a TAP trust is also specific language that authorizes the accumulation of income but specifically requires the trustee to account separately for income that is accumulated and converted to principal, so as to ensure no portion of that is utilized to pay insurance premiums on the grantor. While the trust ensures that all the proper legal language is included, to be legally proper it is incumbent upon the attorney to educate the client to understand how to properly administer a trust so as not to violate that provision.
So, as you look at the distinctions between an ILIT and a TAP, it's important to note that everything an ILIT is is included in the TAP trust, but not everything in a TAP trust is included in an ILIT, so a TAP is a far more expansive trust that allows much more flexibility and use by a client. If you want to learn more about becoming a Lawyers with Purpose member to discover how the TAP trust can benefit you in your practice and, more importantly, benefit your clients consider joining our FREE webinar "The Four Essentials For A Profitable Practice" on Thursday, April 21st at 8EST. Click here to register now.
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David J. Zumpano, Co-founder - Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center
The recent Pfannenstiehl v. Pfannenstiehl case in Massachusetts is a pretty good indication that the use of ascertainable standards in asset protection planning is dangerous. While this may be news to you, the Lawyers with Purpose legal community has known this for some time and has changed its recommended planning strategy more than seven years ago on how to ensure asset protection is maintained.
When creating an irrevocable trust, some of the most important legal determinations made are the discretion granted to the trustee to make distributions to the beneficiaries. The two most common are "wholly discretionary" and "ascertainable standards." What is the difference? Traditionally when a trustee is allowed to make distributions pursuant to the health, education, maintenance and support of the beneficiary, that is traditionally identified as ascertainable standards, otherwise known as HEMS.
This standard was predominantly created through tax law cases where the question became whether the trustee garnered too much control or authority so as to include the assets of the trust in the taxable estate. The court cases resolved that as long as there were ascertainable standards, it would provide sufficient discretion so as not to have the adverse tax impact. So HEMS became the standard of discretion for trustees. Once again, it was a case of the tail wagging the dog. While estate tax planning was a concern in generations past, since 2001 with the passage of EGTRRA and the massive expansion of the estate tax exemption, the HEMS standard for estate tax purposes only applies to less than two out of 1,000 Americans. Why is it, then, that most lawyers still draft their trust for everyone according to the restrictions required for the two-tenths of 1 percent of Americans? The typical answer is, because that's the way they always did it.
At Lawyers with Purpose, we are absolutely present and future-oriented and always looking at the current laws, but more importantly, we consider the relevance of the laws to the needs of the clients. For example, I remember particularly a case where I drafted an irrevocable life insurance trust and granted powers to the spouse that could deem it to be includable in her estate. While this was not the best tax planning strategy for the client, I clearly reviewed all the rules with the client, explained the adverse consequences and the client's response was "I don't care about the tax impacts; I want my wife to have it." In such a case, I had the client sign an acknowledgment that he was made aware of the adverse consequence, but to any third party reviewing the trust, they were confident I committed malpractice. That's the challenge today: Lawyers want to impose their ways on clients. Our job is not to tell clients what to do; our job is to tell clients what they can do, the pros and the cons of each approach, and to let them make the decisions that best suit the needs of their family. Such is true with ascertainable standards.
It is LWP’s recommendation – and has been for many years – wholly discretionary powers are typically worded as that a wholly discretionary standard be used rather than ascertainable standards, “the trustee shall make distributions to any beneficiary in their sole and absolute discretion….” This assures that discretion is held wholly within the trustee and there is less risk of the trust being invaded by outside sources to ensure for the health, education, maintenance and support of the beneficiary. Can you imagine a court looking at a trust that a senior residing in a nursing home was the beneficiary of and the trust provided that that senior was the beneficiary and the trustee can make distributions for health, education, maintenance and support? How can the trustee not deem a distribution for the cost of that nursing home to be for their health or maintenance or support? It's an accident waiting to happen. In fact some states like Ohio have gone as far as to say that any trust that has ascertainable standards can be pierced to make medical payments in accordance with the health, education, maintenance and support provisions. Don't wait. Stop using ascertainable standards now and protect your clients from any undue risk of having their asset protection trust invaded.
If you would like to learn more about our estate planning drafting software and how it can support you in your estate or elder law practice, schedule a live software demo at: https://www.lawyerswithpurpose.com/Estate-Planning-Drafting-Software.php. Learn how you can (1) regain lost hours (2) train your team so you spend less time drafting (3) effective document prep for 99% of your estate planning clients (4) and much, much more....
David J. Zumpano, Co-founder - Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center
House Bill 4351 should be stopped!
For the past several years, bills have been introduced for Congressional approval that would impose a three-year look back, and penalties up to 10 years, for veterans and their spouses who give away their assets and then apply for a pension program designed for indigent wartime veterans. The bills were limited to addressing the concerns of deliberate impoverishment by veterans with the help of lawyers, financial advisors, and others. The bills never passed.
In January 2015, the Veterans Administration published proposed changes to the laws in the Federal Register that would change Title 38 of the Code of Federal Regulations. The VA included penalties for transfers of assets, and used very broad definitions of transfers (i.e. the purchase of an annuity), just like the previous bills that had been introduced. However, the VA went much further, proposing to (1) extend beyond its Congressional authority and (2) extend beyond the scope of the perceived needed changes.
Beyond VA Authority.
Under the pension program for wartime veterans, the claimant must meet an income and asset standard. With regard to income, the VA deducts from gross income all permissible medical expenses. Home healthcare is a permissible medical expense. But the VA proposed to limit the deduction to the average cost of home healthcare based on a national average set two years prior to the proposed changes, which would be $21 per hour. The law is clear that if a medical expense is deductible, then the entire amount must be deducted, and a change of this nature is in violation of the Congressional right.
Beyond the Scope
The purpose of the bills introduced into Congress and the purpose of the proposed changes to the VA regulations is to prevent people from divesting themselves of assets, which they otherwise could use for themselves to pay for care, in order to qualify for tax-free income from the VA to pay for their care. The VA exceeded the purpose of these bills when they included in the proposed changes a limitation on the lot coverage for veteran’s home place. The home place and a reasonable lot area have always been exempt by the VA when applying for pension. A reasonable lot area has always been defined as the same or similar in size to those in the same community or neighborhood. Rather than keeping the long-standing laws, the VA wants to count any property value that exceeds two acres. This makes no sense under the purpose of the law changes to keep people from divesting themselves of assets. First, a 900-square-foot condo in New York City may be worth well over $1,000,000, but it would be an exempt resource under the proposed changes. Whereas, a house sitting on five acres in south Georgia would be a countable resource, even if its value is only $150,000. Moreover, the veterans may have been living in the house for 10, 20, 30 years or more and had no intention of ever filing for the VA pension when they bought the house. Thus, the change in the law has nothing to do with the perceived abuses of people trying to save their assets and qualify for benefits.
Congress has apparently given up on trying to pass a bill that specifically details a look back and penalties for wartime veterans who give money away to qualify for the pension. After all, this is an election year and that would not look very good.
Nonetheless, a few members have found a sneaky way to get the VA’s proposed changes passed by Congress without Congress necessarily knowing what they are actually passing. House Resolution 4351, submitted in the House of Representatives on January 8, was sponsored by Rep. Matt Cartwright of Pennsylvania and co-sponsored by Rep. Sanford Bishop of Georgia, Rep. Sheila Jackson Lee of Texas and Rep. Walter Jones of North Carolina. It has been referred to the Committee on Veteran’s Affairs.
Its stated goal is “To protect individuals who are eligible for increased pension under laws administered by the Secretary of Veterans Affairs on the basis of need of regular aid and attendance from dishonest, predatory, or otherwise unlawful practices, and for other purposes.” The act would be titled, “Veterans Care Financial Protection Act of 2016.”
This sounds really good, because Congress is professing to protect veterans from financial predators. Second, the act does nothing more than mandate that the secretary of the VA work with the heads of federal agencies, states, and such experts as the secretary considers appropriate to “develop and implement Federal and State standards to protect individuals from dishonest, predatory, or otherwise unlawful practices.” The VA would then have 180 days to submit the standards to the Committee on Veterans’ Affairs of the Senate and of the House of Representatives. If this resolution passes, the VA can just hand over the proposed changes in the laws as the standards. The resolution does not say what the two committees are to do once they receive the standards from the VA.
The VA plans to finalize proposed changes (with modifications) by early summer. What is unclear is whether a passage of this “blind” resolution would immediately sanctify any changes the VA has made, or if the changes cannot take effect until after the two committees have taken some action of approval. What is clear is that advocates and veterans must once again push to make your political leaders, specifically those in the two Veterans’ Affairs committees, aware of these damaging changes that have no bearing on the purpose of the proposed changes – limiting home healthcare to an outdated national average and limiting the home place lot coverage to two acres instead of a reasonable lot for the area.
If you would like to know more about the VA Proposed 3 Year Lookback and Other Law Changes join our FREE WEBINAR on Wednesday, March 16th at 4EST. Click here to reserve your spot today.
Victoria L. Collier, Co-Founder, Lawyers with Purpose, LLC; Certified Elder Law Attorney through the National Elder Law Foundation; Fellow of the National Academy of Elder Law Attorneys; Founder and Managing Attorney of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Veterans Advocates Group of America; Entrepreneur; Author; and nationally renowned Presenter.
There's a constant battle between lawyers as to who should be trustee of an irrevocable asset protection trust. The primary school of thought is that it should never be the grantor, and some schools of thought believe it should never be the beneficiary. At Lawyers with Purpose, we disagree with both of those positions, but we recognize the concerns and rely on sound principles of asset protection law in making the final determinations.
Let's first discuss the question of whether the grantor should be trustee. Many practitioners believe that allowing the grantor to be trustee makes the assets of an irrevocable trust available to the grantor's creditors. Such a proposition is ludicrous. The challenge with most lawyers is that they do not allow the grantor to be trustee of his or her irrevocable trust. When pushed to explain why, they typically assume that's the way it was always done. Few dig further to see why it was done that way. So let's examine why grantors were not traditionally named trustee. The most adverse impact is that, if the grantor is trustee, they're deemed to retain enough control to have the assets of the trust included in their taxable estate when they die. For many generations, this was the death knell? of an asset protection trust. But in the last 15 years it's become irrelevant because of the rise of the estate tax exemption. Today only two in a thousand Americans have a taxable estate, so preventing the grantor from being trustee because of a potential inclusion of the trust asset in the estate of the grantor is not relevant to 99.8 percent of Americans. So why hold them to that standard?
The next major argument is a theory that if the grantor has control of the trust, then he could direct it back to himself. Well, that depends. What does the trust say? If the trust says that the grantor is not a beneficiary, or similarly the grantor is not a principal beneficiary but is entitled to the income, does that mean that the grantor as trustee all of a sudden gains a super power to violate the terms of the trust and give himself the principal when it's not allowed for? Hardly. In fact, there is consistent case law throughout all of the states, including cases that lead all the way up to the Supreme Court, that supports the notion that a grantor as trustee has all of the same fiduciary obligations as any other trustee and by no means has authority to act outside the powers granted to trustee. I specifically refer you to my Law Review article, "The Irrevocable Pure Grantor Trust: The Estate Planning Landscape Has Changed" in the Syracuse Law Review. In this article, I go through in‑depth review of all of the case law nationwide, and I'm excited to say that it is sound law that a grantor can be a trustee without risking the assets to the creditors of the grantor. One caveat, however, is if the grantor does retain the right to the income, then absolutely the income will be available to the creditors of the grantor.
So are there circumstances when the grantor as trustee's trust is invaded? Absolutely, but in every single case the invasion was not due to the grantor being the trustee, but rather was due to the pattern of behavior by a grantor trustee who violated regularly the terms of the trust in favor of themselves, and the trust was thereafter deemed a sham. In such cases, I concur with any court that makes that decision based on people who try to defraud the system. Irrevocable trusts must be managed in an arm's length manner, and as lawyers we do not plan for someone to become fraudulent. They are fraudulent to their own peril. But a properly drawn trust when the trustee is the grantor in no way, shape or form creates any risk of loss of asset protection if the terms of the trust are followed, as they are required to be in every case whether the grantor is trustee or not.
So at Lawyers with Purpose we encourage our members to do good legal work based on sound law, not fear, conjecture or because that's the way it's always been done. In the end, the client wins. It is silly to deny thousands of clients that we serve the ability to manage and control their own assets for the benefit of their families, just because some rogue case in some rogue state from some vile fact pattern allowed the court to invade against the intentions of the grantor. Protect your clients. Teach your clients. Share with your clients how these work. They are very safe and a great planning tool.
If you want to learn more about Lawyers With Purpose you can find all the information about becoming a member by clicking here to download our Membership Brochure.
David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center
The recent Massachusetts decision in Nadeau v. Thorne considering a primary residence held in a Grantor trust as an available resource and thereby disqualifying the Medicaid applicant has the Medicaid industry in turmoil. A careful review, however, will calm any fears that this in anyway changes what we have always known about Medicaid.
It is common that cases that come out of Massachusetts create ripples through America because of what appear to be extreme applications of Medicaid law. While we cannot ignore the Massachusetts courts, we must instead understand the theory in which they are able to make decisions such as these. First, Medicaid is federal law and, in accordance with USC 1396D, sets out all of the relevant laws related to Medicaid benefits. However, the federal Medicaid laws explicitly state that all interpretations of the law will be determined at the state level. That is where the leeway is granted for states to make decisions that would that otherwise appear extreme.
In the Nadeau case, the Court relies specifically on Massachusetts statute Section 130 Code Mass Regs 520.023(C)(1). The statute treats an applicant's "former home" that was deeded into an irrevocable trust differently from other assets. What's interesting about this case is nowhere does it discuss the exemption of the primary residence in determining the applicant's eligibility. It could be asserted therefore that under this specific Massachusetts regulation any primary residence deeded to a trust loses its residential exemption status for the applicant. Whether we agree with that or not is not our call, as the State of Massachusetts has the authority to interpret the federal regulations in this manner. So the Nadeau case in front of us really has little to no application outside of Massachusetts other than to force the rest of us to understand the context of the contextual authority of the individual state Medicaid agency.
A second element of this case is that the court was ready, willing and quickly abrogated interpretation of the federal Medicaid laws to the Medicaid department rather than to the court. Specifically stating, "this court must also give due weight to the expertise technical, competent and specialized knowledge of the agency as well as to the discretionary authority conferred upon it". The court relies on the former Doherty decision to reassert its authority that if applicant does not occupy their home then their home is available. Again the significant issue here is that it really does relate to the federal statute which says any right of the applicant to benefit in any way shall be deemed available to the maximum amount that the applicant can benefit. In this case the court took the use of the house and extended that to assess the full value of the home as countable. That's a stretch but nonetheless, regardless of this court's decision, Medicaid planning still allows one to place a house into an irrevocable trust as a viable planning technique. While most organizations will scream and yell and say no I propose three options in light of this case.
First, outside of Massachusetts one should feel relatively confident that they can continue to transfer a home to an irrevocable trust and reserve the right to live there in the trust without concern. What's unique in the Nadeau case is that there is a specific Massachusetts statute and case precedent which includes the home and does not provide as exemption under the federal statute. So to throw the baby out with the bathwater and stop doing this if you are not in the state that has such a specific statute would be an ultraconservative approach. A second option going forward is to continue to do Medicaid planning as you always have, continue to convey the home to the irrevocable trust but instead of reserving the right to live there, just create a simple lease agreement between the Medicaid applicant and the trust. This would eliminate the entire fact pattern that arose in the Nadeau case. In fact, the lease payments to the trust would not be considered uncompensated transfers and it would allow the grantor to still live in their house. The core elements will be that the Grantor/Medicaid applicant would have to pay all the expenses on the house and maintain the taxes, insurance, etc. and one should do his best to ensure that the value of the rental is an arm's length amount. And a third option is to convey the real estate to the trust but reserve a life estate to the grantor in the deed. This approach ensures that the "remainder interest" is conveyed to the trust, not the present interest, and no rights need be maintained under the trust for the benefit of the grantor. This is the simplest approach.
So if we look at cases like this it is important not to panic and run for the hills, remember your clients need you. They come to you for what you can do not for what you can't do and we as lawyers must analyze the law, examine our options and then implement a solution that the law and the client desires.
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David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center