About: Liza Weiman Hanks

Recent Posts by Liza Weiman Hanks

Your Living Trust can hold an S Corporation

letters-451524_640Dear Liza: My son and I own an S corporation.   Can an S corp be put into a trust?  If not how would an S corp be put into a trust? Yes! You can put your S corporation into your living trust by transferring your ownership of your shares to yourself, as Trustee of your living trust. As you know (but not all of my readers will), an S Corporation is a special kind of corporation, limited to 100 shareholders, in which the profits and losses of the corporation are passed through to the individual shareholders, to be reported on their individual returns.
 Most of my clients who have S corporations are small business people and are the sole shareholders of their S corporations. If that’s the case with you, then you need to get your corporate binder out and follow the formal procedures to reissue those shares to yourself as Trustee. If you have a corporate attorney, then ask that person to help you make sure that you observe the required formalities to transfer the shares.
While you are alive, there’s not a problem with holding the S Corp shares as Trustee. That’s because during your lifetime, your living trust is what’s called a “grantor trust.”  After your death, though, your trust isn’t a “grantor trust” any more.  At that point, the shares can be held by the trust for only two years withhold jeopardizing the S Corporation status for the other shareholders.  For many of my clients, this two year limit is not a problem, because the business won’t continue after the death of the owner.
If you want the trust to hold the shares longer than that,  however, you need to have special S Corporation provisions added to your trust, so that the trust can be a permitted shareholder under the IRS’s regulations–only certain kinds of trusts are allowed to hold stock in S Corps.  Click here for a good summary of these rules.

The Right Plan for Now: Living Trust

living trustDear Liza,  I’m a young professional and would greatly appreciate your feedback on what type of trust, if any, would suit me well given my current financial and life position.  I’m single, 29 years old (30 later this year), with cash, stocks, and a stake in a high-growth company.  My goal is to protect my assets while maintaining control and flexibility over their allocation / disbursement over time, especially in the event of unexpectedly passing or a disabling event (transfer to immediate siblings and parents).  I’m single and have no plans for marriage or children within the next 5-8+ years, but I would like to protect these going into a marriage as well as the value will likely be a magnitude greater than they are today). Those are all good questions, and congratulations for asking them way before most people give estate planning any thought (including, to be honest, me!)
A revocable living trust will, combined with a pour-over Will and a Durable Power of Attorney for Property Management,  accomplish most of the goals you’ve listed above. An estate plan like that will provide flexibility for you during your lifetime, keep your property separate when you do marry (if you do marry), allow someone (your successor Trustee and Agent under a Durable Power of Attorney) to manage your assets for you if you are incapacitated and transfer your assets to your siblings and parents if you die an untimely death in an efficient and relatively quick manner.
Here’s what it won’t do: protect your assets from creditors.  Revocable trusts exist to avoid probate upon your death and to allow others to manage assets for your benefit if you’re incapacitated, but, because they can be revoked by you at any time, the assets in that kind of trust are available to your creditors.  Business folks create entities, like limited liability partnerships, and corporations, to shield their personal assets from business risks/creditors, but an estate plan doesn’t do that. Hope that helps. Good luck.

Naming a Minor as a Beneficiary of an IRA

IRA moneyDear Liza: I want to name my minor grandchildren as beneficiaries of my IRA account. How do I do that? Can I use my Will? It’s a smart idea to name minors as beneficiaries of your IRAs.  Since they are young, they’ll be able to withdraw that money slowly over their life expectancy, and only pay taxes on the amounts withdrawn. But you are also correct in understanding that minors need some kind of property guardian or custodian named to manage those assets for them until they are 18–since minors can only own a minimal amount of property.

So, how do you do it?

Don’t try and name beneficiaries in your Will. It won’t work. Your Will is a legal document that governs the distribution of many of your assets, but NOT your retirement accounts. Those will pass only by the beneficiary designations on file with the plan administrator.

Here are the ways that I would advise you to let them know what you want them to do:

 

You can just name the minor as a beneficiary. Then, if you die while that child is a minor, their parent will need to ask the probate court in their county to name a Property Guardian to manage that account until the child is 18. (The property guardian could be the parent.) In some states, if the IRA is small enough, no property guardian need be appointed, but that will vary state to state.  This isn’t ideal, since going to court takes time and some money for filing fees and it ends when the child turns 18 (at which point the money is theirs to manage and spend).

Alternatively, you can name a custodian under your state’s Uniform Transfer to Minor’s Act, which will make that person the custodian for those assets up to a certain age (21 in many states: 25 in others). A beneficiary designation like this would read, “Alan Smith, as custodian for Jane Smith, under ___’s Uniform Transfer to Minors Act to age 25.” Custodial accounts are inexpensive and easy to open at banks  and brokerage accounts and end at 21 or 25 (usually), which is older than 18.

Finally, you can name a trust created for that minor as the beneficiary. That way, the trust will manage the money for that child and can last as long as you’d like it to last. A designation like this would read, “Trust created for the benefit of Jane Smith, under the SMITH FAMILY TRUST, under Agreement dated _______.”  Trusts can have whatever terms you’d like to use and can last as long as you’d like them to last. IRA withdrawal rules are complicated when a trust has more than one beneficiary, so it’ s not a do-it-yourself project. Their main disadvantage is cost — you’ll have to work with an attorney to draft them.

If the plan administrator doesn’t have a form that makes it easy to name a custodian or a trust, you can do it anyway. Just attach a beneficiary designation form to their form, and make sure that they provide you with confirmation that your wishes have been properly received.

Getting Good Advice When You Are The Beneficiary

Will being signedDear Liza: After dealing with an unexpected death of my spouse my head is still spinning.. My spouse was very private after a divorce  and we kept our affairs separate. Now the Will, of which I was unaware, allows me to stay in our home and if I choose to leave or pass it goes to her children. The attorney who handled the will  said I have control of what happens;

1) I can stay in house till death and take 20% of non probate

2) I can take 1/3 of elective share and no house

3) Or I can select make children offer to buy house based on actuarial tables and 20% of non probate.

How do I get that info to make a good decision? Will says to maintain house in good repair, so does that mean I have to put another $20K for a new roof? I’m sorry that you have to make such important choices and were taken by surprise by them, on top of the grief that comes with losing a spouse. Here’s my advice: hire an attorney to represent you, as the beneficiary under the Will. You need someone who can advise you on your options and explain to you what the Will means — not just in regard to what “good repair” means, but also as to what your elective share rights are, for a start (these are determined by state law).
Please ask that attorney how a Will can offer you twenty-percent of “non-probate” assets, as these generally are assets that pass by beneficiary and are not controlled by a Will at all. If your spouse named you as the beneficiary of her retirement assets or if you owned property with her as a joint tenant, these assets would pass to you by virtue of that, not by the Will at all.

Planning Beats Avoidance

rural-216371_150Dear Liza: We live in Nebraska.  I own a ranch with my brother.  Part of it we inherited and a small part we purchased from family members.  The total value of the ranch is $2.7 million.  We have a buy sell agreement between us.  We have estate questions and aren’t sure where to go.  We each have other assets of approximately $2 million and $4 million respectively.  We have considered a trust; however I have two children and my brother has a second wife and four children.  We do not want our offspring to have to deal with each other.  

So, that’s a REALLY interesting question, and one that involves trusts, but only tangentially, really. The thing is, regardless of whether your estate plan consists of a Will or a trust, your families are most certainly going to have to deal with each other upon the death of you and your brother. You wrote that you own the ranch together….usually, siblings would own a ranch like that as tenants in common, which means that you each own one-half of it and are free to leave it to whomever you’d like to leave it to upon your death. (The less usual alternative, for siblings, would be as joint tenants, which would mean that the survivor would own the entire property at the death of one of you.)

Assuming you each own your half and can leave it at death to others, how on earth are you going to avoid each family having to work something out? Even a buy-sell agreement will require, at a minimum, that one family buys and the others sells, right? Placing your property into a trust will avoid having to go through probate, and gives you the opportunity to try and plan for reducing conflict down the road.  You can each place your interests in different trusts, and specify how each half should be managed upon your deaths.

If you don’t do a trust, then your estate will go through probate, and that in no way reduces the possibility of inter-family conflicts–in fact, it almost invites it, because probate is public, and all interested parties are required to get proper notice and have an opportunity to object to the proposed distribution. With a multi-million property on the table, I would advise you and your brother to hire a good estate planning attorney now to do what you can to anticipate problems and structure the management of the property down the road.

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