How To Ruin Your Kids With A Lousy Estate Plan
Estate planning is primarily about the transmission of wealth. However, it should be about much more. Many people don’t want to delve into family skeletons or tackle emotionally charged issues. But the reality is that if you fail to plan, or fail to address tough issues, or ignore practical planning logic, you might be planting the seeds for family dysfunction or much worse. While the list of ways to mess up your kids with a poorly handled estate plan is long, hopefully the following will help you avoid many of the traps.
Not Planning Flexibly
If you want any planning to work, ask lots of “what if” questions. Stress test your plan. To many plans are just documents and decisions made to address whatever the client wants today. That is rarely prudent. Here’s an example if one of the worst inflexible plans. The couple had four children and were active with a number of charities. They even referred to charity as their fifth child and they wanted to treat all of them equally. So, years ago they hired an attorney who drafted a will that left their $1 million estate as follows: $200,000 to each of the four children and the remainder to a list of charities. That works, but is dangerously inflexible. When they finally went back to a new estate planner more than 15 years later their estate was $10 million. They would have wanted to pass $2.5 million to each child and to their list of charities. But because of the inflexible way their old will was drafted, had they died before signing a new will each child would have received $200,000 and the charities would have shared $9.2 million. Not even close to what they wanted.
The moral of this tale is to have plans created that are flexible to change with changing circumstances. Market declines or increases should not undermine your plan.
The above plan could have been created with the thought that the client’s wanted to be sure that their children each received the minimum amount before charity received anything (but no one could remember as it was so old). But the wills were drafted in a way that a large increase in the estate would result in the opposite of what they wanted. A smarter way to have drafted their will might have been, had they wanted to make sure their children got a certain amount like $200,000 would have been to bequeath the first $800,000 of wealth equally to the children and the excess then in equal shares for each child and charities. Whatever your desire is, be sure that the priorities are reflected in your plan.
Another similar type of issue might occur, for example, where one child has greater needs then the others. If you feel that the assets are sufficient to divide them equally for all the children, and in so doing the child needing greater help will be adequately provided for, that might be acceptable. However, if your estate declines in value (remember, stock markets don’t always go up), that needy child might not get enough. In that case you might instead provide the first say $500,000 shall be bequeathed to that particular child and thereafter all assets in your estate divided equally. As discussed below, be sure all heirs understand what you are doing and why to reduce surprise and hard feelings about one heir being favored.
There is no magic formula. While certainly the best answer is to review your will and other planning periodically, and especially if there is a change, and update them. But it is rarely prudent to plan on that happening. Most people feel about as happy about updating their will as they do about having a root canal done. So, while you should review and update, get your planning structured in a way that it has a better chance of accomplishing your goals whatever might occur.
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Not Considering Children’s Attitudes and Beliefs
You want to name your oldest son as your executor because you somehow believe that is the right thing to do. But will he in fact be fair and objective? What happens when a decision has to be made that might put his interests in conflict with those of another child? What might he do? Does he have the right temperament and values to serve in a fiduciary role?
If you really want to have fireworks name a child as your health care agent to make health care decisions who has very different religious or philosophical views of those decisions, then you and the other children do. Perhaps your entire family is devoutly religious, and your religious beliefs materially inform end of life decision making. But you’ve named your oldest daughter, who is a physician, to serve as your health care agent. You know that she has veered far off the religious path in which she was raised, but you feel as a physician and your child she should be named to make health care decisions. Perhaps you have not really acknowledged her significant changes in religious views. This is one of the implications of a non-religious agent making end of life decisions that contradict the fundamental religious beliefs held by you and the other children.
Consider the following, which is sadly not an uncommon problem. An elderly mom names her oldest son her agent under her financial power of attorney. Her son takes care of her finances, medical care and all her needs and she feels he is the only child to pick for this role. As the years go by and son continues to provide care giving help to his mom he grows more resentful of the fact that when Mom passes his siblings will share equally in her estate. So, he resorts to some self-help. Son uses the financial power of the attorney mom signed naming him her agent to change beneficiary designations and account titles to assure that most of the estate passes to him alone. Not what mom intended, but what son eventually felt entitled to.
The moral of the above story is to carefully consider the scope of the powers and rights given to any fiduciary you appoint.
Hiring a “Yes” Adviser
Hire advisers that will tell you want you need to hear, not what they think you want to hear. If you want to hear “yes” all the time buy a parrot, don’t waste your money hiring professional advisers. Clearly inform every adviser you work with that you want them to tell you what they really think, and if you ask them to do something imprudent, they should tell you they think it’s a dumb move. Some clients react really negatively to advisers telling them what they want to do won’t work. You should want truth and guidance, not milquetoast.
Not Using Trusts
“I want a simple plan.” “I hate trusts, my parents set one up for me and it was horrible.” The list goes on. But leaving money outright to any heir is usually a mistake. If you leave a child’s share of an inheritance outright (i.e., no trust) and the child is divorced or sued after you pass, that entire inheritance might be lost. Many inheritances have been wiped out by IRS liens, malpractice claims and other risks that all could have been avoided with a simple trust. If you really have confidence in your child’s fiscal skills, so make the child a co-trustee of his or her trust. Or if you really want the heir to control, make them the sole trustee of their own trust. Note, if that is done the child/trustee should be limited to only making distributions to or for his or her own benefit that are limited to a “health, education, maintenance and support” standard. That is a technical definition/requirement that your estate attorney can explain. Using those magical words in a precise manner that the law requires can let the child inherit money in a trust and be the sole trustee but have those assets outside his or her estate and out of the reach of his or her creditors. That is a smart move. Use trusts.
Making Unequal Distributions
You might feel that your youngest daughter is a better child than your oldest son, but likely your oldest son doesn’t feel that way. Be very deliberate if you are going to leave unequal bequests. Discuss this with your professional advisers as it can be a very delicate matter. Consult with a mental health expert to also evaluate options for how to handle the disparity and attendant issues. Mishandling this can result in war between your heirs. That should be avoided. Sometimes there are simple ways to address a desire, or even need (e.g., a child with greater needs as discussed above), to have a disparate distributions. Some families have open discussions as to the reasons a particular child may need more and everyone is on board. Likely, those open and frank discussions may avoid later conflict. But sometimes any preparatory measures may be to little or no avail. There may be ways to accomplish the same objectives with less afront. For example, parents believe that they would like to bequeath $1 million extra to their oldest daughter because their younger son married a very wealthy spouse and himself has been very successful financially. They worry, however, that their sense of “fairness” will never be shared by their son. So instead of having a will leaving a disparate distribution, they purchase a $1 million life insurance policy on their lives (or one of their lives) which they have their son own (or a trust for his benefit). They pay the premiums each year. While their daughter might figure out that there has been a disparate distribution, this approach is certain less “in the face of” their daughter. In fact, the will can now bequeath the estate equally to the two children. Sometimes, a little creativity can lessen the risks of later disputes.
Not Updating Accounts and Beneficiary Designations
Another easy way to wreak havoc with your plan and create issues with your heirs is failing to keep account ownership and beneficiary designations both current and coordinated. A common problem created about this seems so obvious that it should not happen, but it does. Mom has two children and names her oldest as the beneficiary of one brokerage account, and her youngest the beneficiary of her second brokerage account. The account balances are equal. Mom pays for her living expenses out of the first account whose balance declines while the second brokerage account grows in value. Unintentionally the youngest child gets an increasingly large share of her estate as time goes on. This is simply poor planning. This might happen from a misplaced priority on avoiding probate. Using joint accounts or pay on death accounts can avoid probate. But it also can lead to unintended dispositive results. For younger parents that try these simple approaches to avoiding probate, what happens if they have two children listed on various accounts or IRA beneficiary designations, but then they have a third children and don’t get around to updating account titles or beneficiary designations.
A key point from the above examples is to illustrate that it is not only your will that is important to minimize estate disputes or angst amongst beneficiaries. You need to consider all of your assets and how they are owned and what is contained in beneficiary designation forms.
Bonds See 2023 Recession, Stocks Aren’t So Sure
The yield curve is one of the most robust recession predictors and has signaled a recession may be coming since mid 2022. In contrast, U.S. stocks as measured by the S&P 500 are up materially from the lows of last October and only just below year-to-date highs, seemingly rejecting recession fears. Yet, fixed income markets see the Fed potentially cutting rates by the summer, perhaps reacting to a U.S. recession.
The Evidence From The Bond Markets
The recessionary evidence, at least from fixed income markets, is mounting. The 10 yield Treasury yield has been below the 2 year yield consistently since last July. That is is called an inverted yield curve and has signaled a recession fairly reliably when compared to other leading indicators.
Building on that, fixed income markets see almost a nine in ten chance that the Federal Reserve cuts rates by September of this year. That’s something the Fed has repeatedly said they won’t do on their current forecasts. Yet, a recession could cause it to happen.
The Stock Market
In contrast, the stock market shows some optimism. The S&P 500 is up 7% year-to-date as the market has shrugged off fears of contagion from recent banking issues. In particular, tech stocks have rallied.
In contrast, more defensive sectors such as healthcare, utilities and consumer goods have lagged in 2023. This suggests that the stock market is taking more of a ‘risk on’ position and is perhaps less worried about the economy.
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That said the stock market is a leading indicator of the business cycle, it may be that stocks see a recession, but are now looking past it to growth ahead and are factoring in the lower discount rates that a recession might bring as interest rates decline. Also, the U.S. stock market is relatively global, so the fate of the U.S. economy is a key factor in driving profits, but not the only one.
Monitoring unemployment data will be key. Though the yield curve is a good long-term forecaster of recessions it is less precise in signaling when a recession starts. Unemployment rates can offer more accurate recession timing. Unemployment edged up in February, suggesting a recession may be near, but we’ve also seen monthly noise unemployment. Two similar monthly unemployment spikes during 2022 both proved false alarms.
However, if we see a sustained move up in unemployment from the low levels of 2022 that may be a relatively clear sign that a recession is here. Economist Claudia Sahm estimates that a sustained 0.5% increase in unemployment rate from 12-month lows is sufficient to trigger a recession. Unemployment rose 0.2% from January to February 2023, so maybe we’re on the way there. Of course, the jobs market performed better than expected in 2022 and it could do so again. Still, fixed income markets do suggest a 2023 recession is coming. Stock markets don’t necessarily share that view.
Which States Have The Highest And Lowest Life Expectancies?
There’s a wide variance of life expectancies among the 50 states in the U.S., according to a recent report prepared by Assurance, an insurance technology platform that helps consumers with decisions related to insurance and financial well-being.
Figure 1 below shows the 10 states with the highest life expectancy, starting with Hawaii, the state with the highest life expectancy.
Figure 2 below shows the 10 states with the lowest life expectancy, starting with Mississippi, the state with the lowest life expectancy.
Assurance scoured life expectancy data prepared in January 2023 by the U.S. Centers for Disease Control and Prevention (CDC). With this data, Assurance created several easy-to-understand graphics that offer information about life expectancies.
Life expectancies are a basic measure of well-being
As measured by the CDC, life expectancies are a basic measurement of well-being in a broad population and not a prediction of how long an individual might live. The CDC measures the expected lifespan for a person born in the year of measurement. This measurement is calculated based on the assumption that the individual will live and die according to the rates of death that are prevalent in the measurement year for each age. There’s no assumed improvement or backsliding in the assumed mortality rates in future years for each age in the life expectancy calculation.
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By contrast, an estimated lifespan for an individual would consider their current age, their gender, and some basic lifestyle information. It might also attempt to project future improvements or backsliding in mortality rates based on key factors.
Significant influences on life expectancy calculations
Leading causes of death in the U.S. are heart disease, cancer, and accidents in that order. These immediate causes are significantly influenced by factors in the population such as poverty rates, educational attainment, rates of obesity and smoking, access to healthcare, prevalence of violent crime, and the support people receive from federal, state, and local governments. All these factors can vary widely among different states, which can be a key reason why life expectancies vary by state.
When you think about it, all these factors also have the potential to influence a person’s quality of life. The measured life expectancy rate rolls up all these factors into one objective measurement of well-being that’s based on population data.
In addition to the factors listed above, mortality rates increased and life expectancies decreased in the past few years due to the Covid-19 pandemic. A recent article titled “Live Free And Die” summarized recent research results that show that life expectancies in most countries around the world rebounded after the Covid-19 pandemic but that they continued to decline in the United States. Many of the reasons cited in the article for the continued decline in U.S. life expectancies are the same or similar to the factors listed above.
Why should retirees care about the life expectancies reported here if these measures don’t predict your own lifespan? Life expectancy calculations indicate the general well-being of the entire population in your area. While the living conditions in your area can influence your own lifespan and quality of life, retirees should focus on their remaining life expectancy given their age. They should also consider how the factors listed above that influence life expectancies in the population might apply to them.
You can obtain customized estimates of your remaining life expectancy at the Actuaries Longevity Illustrator. Part of your planning for retirement is understanding how long you an an individual might live, instead of relying on generalized information about larger populations you see in the media.
IRS Dirty Dozen Campaign Warns Taxpayers To Avoid Offer In Compromise ‘Mills’
Owing taxes can be stressful. Unfortunately, the actions of some companies can make it worse. As part of its “Dirty Dozen” campaign, the IRS has renewed a warning about so-called Offer in Compromise “mills” that often mislead taxpayers into believing they can settle a tax debt for pennies on the dollar—while the companies collective excessive fees.
The “Dirty Dozen” is an annual list of common scams taxpayers may encounter. Many of these schemes peak during tax filing season as people prepare their returns or hire someone to help with their taxes. The schemes put taxpayers and tax professionals at risk of losing money, personal information, data, and more.
(You can read about other schemes on the list this year—including aggressive ERC grabs here, phishing/smishing scams here and charitable ploys here.)
Tax Debt Resolution Schemes
“Too often, we see some unscrupulous promoters mislead taxpayers into thinking they can magically get rid of a tax debt,” said IRS Commissioner Danny Werfel.
“This is a legitimate IRS program, but there are specific requirements for people to qualify. People desperate for help can make a costly mistake if they clearly don’t qualify for the program. Before using an aggressive promoter, we encourage people to review readily available IRS resources to help resolve a tax debt on their own without facing hefty fees.”
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Offers In Compromise
Legitimate is a key word. Offers in Compromise are an important program to help people who can’t pay to settle their federal tax debts. But, as the IRS notes, these “mills” can aggressively promote Offers in Compromise—OIC—in misleading ways to people who don’t meet the qualifications, frequently costing taxpayers thousands of dollars.
An OIC allows you to resolve your tax obligations for less than the total amount you owe. You generally submit an OIC because you don’t believe you owe the tax, you can’t pay the tax, or exceptional circumstances exist.
Because of the nature of the OIC—and the dollars involved—the process can be time-consuming. It can also be confusing for taxpayers who may not have a complete grasp on their finances.
First, you must complete a detailed application, Form 656, Offer in Compromise. You must also submit Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals, or Form 433-B, Collection Information Statement for Businesses, with supporting documentation (generally, bank and brokerage statements and proof of expenses).
You’ll also need to submit a non-refundable fee of $205 and payment made in good faith. The payment is typically 20% of the offer amount for a lump sum cash offer or the first month’s payment for those made over time. Generally, initial payments will not be returned but will be applied to your tax debt if your offer is not accepted. Payments and fees may be waived if the OIC is submitted based solely on the premise that you do not owe the tax or if your total monthly income falls at or below income levels based on the Department of Health and Human Services (DHSS) poverty guidelines.
The IRS will examine your application and decide whether to accept it based on many things, including the total amount due and the time remaining to collect under the statute of limitations. The IRS will also review your income—including future earnings and accounts receivables—and your reasonable expenses, as determined by their formula. The IRS will also consider the amount of equity you have in assets that you own—this would include real property, personal property (like automobiles), and bank accounts.
Before your offer can be considered, you must be compliant. That means you must have filed all your tax returns and paid off any liabilities not subject to the OIC. After you submit your offer, you must continue to timely file your tax returns, and pay all required tax, including estimated tax payments. If you don’t, the IRS will return your offer.
Additionally, you cannot currently be in an open bankruptcy proceeding, and you must resolve any open audit or outstanding innocent spouse claim issues before you submit an offer.
You can probably tell—it’s a lot to consider. You may want representation. A tax professional can help marshal you through the process and offer practical guidance, while communicating what fees could look like.
By contrast, according to the IRS, an OIC “mill” will usually make outlandish claims, frequently in radio and TV ads, about how they can settle a person’s tax debt for cheap. Also telling: the fees tend to be significant in exchange for very little work.
Those mills also knowingly advise indebted taxpayers to file an OIC application even though the promoters know the person will not qualify, costing taxpayers money and time. You can check your eligibility for free using the IRS’s Offer in Compromise Pre-Qualifier tool.
“Pennies On A Dollar”
What about those promises that taxpayers can routinely settle for pennies on a dollar? Not true. Generally, the IRS will not accept an offer if they believe you can pay your tax debt in full through an installment agreement or equity in assets, including your home. That’s why the IRS tends to reject a majority of OICs that are submitted. The acceptance rate is less than 1 in 3, according to the 2021 Data Book.
The IRS will generally approve an OIC when the amount offered represents the best opportunity for the IRS to collect the debt. It’s true that there’s a formula that the IRS uses to figure out how much they think they can collect from you. But there is some wiggle room to account for special circumstances, including a loss of income or a medical condition. It’s worth noting those are the exceptions, not the rule.
While submitting an OIC may keep the IRS from calling you, it doesn’t stop all collections activities—don’t believe companies that suggest that submitting an OIC will make your tax debt disappear. Penalties and interest will continue to accrue on your outstanding tax liability. Additionally, the IRS may keep your tax refund, including interest, through the date the IRS accepts your OIC.
You may also be liened. In most cases, the IRS will file a Notice of Federal Tax Lien to protect their interests, and the lien will generally stay in place until your tax obligation is satisfied.
An OIC is a serious effort to resolve tax debt and shouldn’t be taken lightly. Be skeptical—if it sounds too good to be true, it likely is. If you’re considering an OIC, hire a competent tax professional who understands the rules and is willing to level with you about your chances of being successful—including other options. Don’t fall into a trap that can make your situation worse.
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