Jul 28

I can give away $10,000 per year and …

I have given quite a few seminars over the past five years on estate planning and have answered many, many questions. I have also helped many clients and provided all the information I can so those clients can make a knowledgeable decision regarding their estate plan. So, I want to spend the next few posts going over questions I run into with estate planning to help spread more knowledge to the people of Altus and the surrounding areas of southwest Oklahoma (and the world).

Common Question: (This is tied into the last post, but focuses more on the Elderlaw side.) My mom is getting advanced dementia and we think we will have to put her in a nursing home. She doesn’t have a lot of things, but we heard she will qualify for Medicaid if she has less than $2,000 in assets. We also know, because we heard it at the coffee shop, that she could give each of us kids and the grandkids $10,000 a year. If she does that, she would be below $2,000 and would get government assistance, right?

Short (very, very short) Answer: There are misconceptions with this answer the same as in the previous column; namely, you are trying to combine two very distinct areas of law into one simplified version.

First, the gift tax annual exclusion is only that, exclusion from reporting gifts that may subject to gift tax each year. It does not affect the rules related to qualification for need-based governmental assistance.

When someone is applying for Medicaid, they have to meet three qualifications: 1. Have a medical need, 2. Meet income limitations, and 3. Meet resource limitations. In order to prevent someone from immediately qualifying, the 2005 Deficit Reduction Act (DRA) imposed a 60 month look-back period for any transfer given without adequate consideration. If there is transfer without adequate consideration during the 60 months prior to application for Medicaid, then the government imposes a delay based on the amount given away (for OK currently one day without assistance for every $134.50 transferred).

Under this look-back rule, Mom would lose about two months of nursing home assistance for every $8,000 given away and it would be up to her or the donees to pay for that assistance, if needed. In a nutshell, the divisions that administer Medicaid do not care that the IRS give a tax break for gifts, because they are only concerned about ensuring proper applicants for Medicaid get qualified.

Jul 25

I can give away $10,000 without taxation, right?

I have given quite a few seminars over the past five years on estate planning and have answered many, many questions. I have also helped many clients and provided all the information I can so those clients can make a knowledgeable decision regarding their estate plan. So, I want to spend the next few posts going over questions I run into with estate planning to help spread more knowledge to the people of Altus and the surrounding areas of southwest Oklahoma (and the world).

Common Question: I heard that I can give away $10,000 each year without having to pay taxes on it. I paid too much in income taxes last year and I would like to use this deduction by giving it to my kids.

The Answer: There are a few misunderstood concepts in the above scenario, so let’s straighten them out.

First, you are alluding to the Annual Gift Tax Exclusion. When the law was updated in 2001, it said that one person could give any other person up to $10,000 per year and there would be no requirement for gift tax reporting. The $10,000 amount is adjusted for inflation, and currently, in 2013 the amount per year is $14,000. Married couples can combine their exclusions and give an individual up to double the exclusion amount, but they will have to file a gift tax return to show they split the gift.

Next, even if someone did exceed the $14,000 amount and gave another individual more in a single year, there still would not be taxes due. This is because in addition to the annual exclusion amount, there is a lifetime exemption amount that must be used prior to actual taxes being due. The lifetime exemption amount is tied to the estate tax exemption amount and is currently $5,250,000 per person. So, you have to give significant gifts prior to there being taxes, but only relatively small gifts (exceeding $14,000) for there to be reporting.

Lastly, there is no deduction for giving money or property to kids, so if it is income for you, you cannot assign it to your children and take a deduction on your tax return. If you are interested in “income shifting” then there are more complicated steps which need to be taken, but most people do not want to follow through with those requirements.

If you would like to set up a consultation to discuss your estate plan or tax plan, then call 580-318-8829 for an appointment today. Mention this post and receive a one-hour complimentary consultation!

Jul 24

I just want to avoid the government getting all of my estate…

I have given quite a few seminars over the past five years on estate planning and have answered many, many questions. I have also helped many clients and provided all the information I can so those clients can make a knowledgeable decision regarding their estate plan. So, I want to spend the next few posts going over questions I run into with estate planning to help spread more knowledge to the people of Altus and the surrounding areas of southwest Oklahoma (and the world).

Common Question: I really do not see much value in putting a will in place, but I was at the barbershop the other day and he said if I don’t do anything, the State will get my property, and what the State doesn’t use will go the federal government for taxes. What can we do to avoid this result?

The skinny: This is a misconception I come across fairly often: The State takes your thing if you don’t designate who gets them. Under all states’ laws, if you die without your own estate plan in place, you die with the State default; this is called dying INTESTATE. As an example, under Oklahoma law, intestacy statutes say that you did not leave your own plan, so we (the State) assume that you meant to leave it to your closing living relatives. This means that if you leave a spouse, she will typically get at least one-half. If you leave kids, whether minors or adults, they will share in the other half. And if you leave neither spouse nor kids, it will go to your parents, if living, siblings, if any, or next closest relative. Oklahoma law looks to 5 degrees of separation (e.g. no fifth cousins) before it ‘gives up’ and escheats to the State coffers. So while it may not go directly to the State without a plan, just remember it is not your plan, but what legislatures think you would want.

As to the taxes, there is always a lot of contention surrounding the Estate Tax. Due to the changes in the tax law at the beginning of 2013, the estate tax exemption was set to $5,250,000 per person, indexed to inflation. This is in addition to the unlimited marital and charitable deductions. The simple fact of the matter is that with the increased exemption amount, less than 1% of estates will ever get close to federal estate taxation. However, if you are above that $5,000,000 mark, then you should sit down with a qualified estate and tax planning attorney to look at your options.

Jul 22

I have joint tenancy with my spouse, what more do we need?

I have given quite a few seminars over the past five years on estate planning and have answered many, many questions. I have also helped many clients and provided all the information I can so those clients can make a knowledgeable decision regarding their estate plan. So, I want to spend the next few posts going over questions I run into with estate planning to help spread more knowledge to the people of Altus and the surrounding areas of southwest Oklahoma (and the world).

Common Question: My parents set up joint ownership on all of their real estate and accounts. When my dad died, it went to my mom. As my mom became older and did not need the property any longer, she gifted most of it to us kids (or added us as joint owners) so that when she passed, we had everything. What is wrong with me doing that?

The skinny: Where to start? It is no longer the 1950s, or 1990s, for that matter. The rates of civil suits, bankruptcy and divorce we are dealing with now would make even the most suit-minded attorney of the last half century say “Wow!”. You have heard the statistics: 52% of new marriages end in divorce, there are about 15 Million civil cases and 1.5 million bankruptcies filed each year in America, “I don’t like my son-in-law”, etc.

While it is true that joint tenancy (ownership) will pass the whole amount of the property to the surviving co-owner, is it always a good idea? When you add that person as co-owner, they immediately have a vested interest in that land (account). If they run into any of the problems listed above, your property will now become subject to their civil suit, bankruptcy, and possibly their divorce. Why chance the loss of what you have worked for (or the legacy inherited from your parents) when other estate plans can accomplish a transfer that can be protected against these contingencies?

If you would like to discuss your estate, tax, and business planning, please call 580-318-8829 to set up an appointment. As always, mention you saw it on the website and receive a complimentary one-hour initial review.

Jul 18

Reminder of what a Will does (and does not) accomplish

I have given quite a few seminars over the past five years on estate planning and have answered many, many questions. I have also helped many clients and provided all the information I can so those clients can make a knowledgeable decision regarding their estate plan. So, I want to spend the next few posts going over questions I run into with estate planning to help spread more knowledge to the people of Altus and the surrounding areas of southwest Oklahoma (and the world).

Common Question: I have a will. It may be a few years old, but not much has changed in my life, so why do I need to review it and look at other areas of my estate plan.

The skinny: A will is the standard document most people think of with estate planning. It is based off of common law and was the standard for imposing your wishes back in turn of the century (the 16th Century!!) England. That being said, a Last Will and Testament still functions in the same way that a horse still functions for transportation…it will still get you there (distributing assets after your death), but it will just take a little longer and is not as comfortable for those going along with it (your surviving family).

What a Will does: Nothing, in and of itself. It is a document where one lays out his wishes while he is alive and has capacity for who he wants to get what after he dies. The Will cannot do this on its own and has to be presented to a probate court for actual proving and following through, according to the rules of the Court. It does let one name who gets what, and who is in charge, but other than that, there is little more a Will actually does.

What a Will does not do: It does not go into effect until the maker actually dies and is admitted by the Court, so it has no effect during the maker’s life. Thus, the Will does not plan for incapacity (where the maker can no longer sign for himself), taxes, or creditor protection. In addition, as mentioned above, the Will does not stand  on its own, so it has to be presented to a probate court for authentication and interpretation. If court avoidance is an objective, one should look at a revocable trust, durable powers of attorney, or other planning.

Much like the transportation example above, there are many developments in the law related to estate planning. A last will and testament can work, but you should know your options when you look at your plan. As always, if you want to specifically review what you want to do, I will offer a complimentary consultation with the mention of this website. Just call 580-318-8829 to set up an appointment.