Category Archives: Estate Planning Basics
Dear Liza: I am trying to prepare a living trust on behalf of my father. He owns his home and vehicles outright and also has two bank accounts. I am the POD beneficiary of all of his accounts, as well as being a secondary signer on his checking and savings accounts. My confusion comes from not knowing what assets should be put in the living trust. Should it just be the home, since that has the highest value? Or should the cars and bank accounts also be included? Or can everything but the house be designated in the pour-over will that I also intend to create? Your father’s living trust has just one purpose: to allow his estate to avoid probate upon his death. If your father’s assets are owned by the trust, not by him, when he dies, then his estate won’t need to go through probate. Not all items are subject to probate, though: retirement accounts, life insurance policies and bank accounts with designated beneficiaries (that’s what a POD account is), go directly to the named beneficiary. Cars can be transferred via the DMV, and so don’t need to go through probate either. So, for your Dad, that leaves his house. You should transfer legal ownership of the house to his trust by filing a trust transfer deed with the county. When you record the deed, you’ll also need to file a Preliminary Change of Ownership Form (PCOR). This form tells the county assessor what kind of transfer just happened; the assessor wants to know if they can raise property taxes on that property, which they can’t, because a transfer to or from a living trust is NOT a change of ownership under Proposition 13. That pour-over Will is just a backup for your Dad. If he doesn’t transfer his house to the trust, and then dies, the Will says transfer whatever property he owned at death to this trust (that’s the pour-over part). But, if the value of that property is more than $150,000, you’ll need to go through probate to make the transfer. Put another way, the Will makes sure that all of your father’s assets get distributed as directed by the trust, but it won’t help his estate avoid probate first.
Dear Liza: In settling an AB trust I understand that 50% of the estate is to be placed in each of the A and B trusts. However, in our estate our house is worth more than all of the other equity. How can the estate be settled? With percentages of the home? Put the home in which trust? That’s not a question you can answer in the abstract. Those decisions get made after the first spouse dies. First, you can’t know, now, what assets you’ll own then. Second, in an A/B trust, the assets of the deceased spouse are used to fund a trust, often called a “B” trust or a “Unified Credit Trust,” up to the amount of money that’s excluded from the federal estate tax in the year of the first spouse’s death. In 2012, that’s $5.12 million, but at the end of this year, that number falls to $1 million, unless Congress enacts new law. So, it’s not always going to “half” of the total trust estate, that will entirely depend upon the tax code in effect at the time your spouse dies. But, to answer part of the question you asked, the B Trust can be funded with a percentage of the house, and often is when there aren’t other assets that can be used to do so.
Dear Liza: We are pondering whether or not to assume a home that belongs to my wife’s parents. The home is currently being valued as part of an estate that will be designated to my wife and her brother. Our question is will the property tax be adjusted from its purchase price in 1968 to its current estate value? My wife’s parents lived in California. No. If your wife’s parents left their house to their son and daughter, the heirs can request an exclusion from reassessment from the county assessor where the house is located. A parent can leave their primary residence to their children and there will be no reassessment upon that transfer. Your wife and her brother can inherit the house and pay the property taxes that their parents paid. But they have to file a form requesting that exclusion from reassessment. This form, called a Claim for Reassessment Exclusion for Transfer Between Parent and Child (Proposition 58), can be downloaded at each county’s assessor website. Of course, if they someday sell the house to a new owner, that new owner’s property taxes will be calculated on the home’s new value.
Dear Liza: My cousin passed away in 2011, and she had a revocable living trust. My cousins inherited the assets 50/50. The assets were stocks. Do my cousins have to file income tax returns for what they received? Also, am I required to file an income tax return for the trust? Your cousins inherited the stocks at their value on the date your cousin died in 2011. Inheritances are NOT ordinary income under the federal tax code, so they receive those assets free of federal income tax. (We have a federal estate tax; if any tax was due, it would have been on your deceased cousin’s estate, if she owned more than $ 5 million in assets when she died.) Seven states have an inheritance tax, so they’ll need to check on whether any state inheritance tax is due. Your two cousins will be responsible for filing income taxes on any dividends they received after inheriting the stocks, and for any capital gains earned when they sell that stock if it has appreciated since they inherited it. You, as Trustee, would be responsible for filing a trust income tax return (Form 1041) if the trust earned more than $600 worth of income between the time your cousin died and the time the trust assets were distributed to the beneficiaries.
Dear Liza: What distinguishes an Estate from a Trust? A person’s estate is all of their property owned at death. If they have a Will, that document states who inherits the estate. If they die without a Will, state law determine who will inherit their estate. In both cases, if they have enough assets, a probate court has to supervise the settling of the estate. A trust is a legal agreement in which a person (called a Grantor) states that one or more people (called Trustees) hold the Grantor’s assets for certain people (called the beneficiaries) subject to certain duties and the terms of the agreement. The most common type of trust is called a revocable living trust, but there are others. A person may set up a living trust to hold certain of their assets (like their house) during their lifetime, and then give those assets to others at their death. Assets held in the living trust do not go through probate, which is why most people set them up.
But, that person almost certainly owns other assets in their own name (like their everyday checking account, their car, and their tangible personal property). Those things are part of that person’s estate, not their trust. They would ordinarily have a special kind of Will (called a pour-over Will) that says that all of these things should be added to their trust upon their death. That way, there’s just one set of instructions about who gets what.
Dear Liza: I thought about putting my son on the title of my house so he would have additional financial support. I’m not just real comfortable with that idea. I know creditors can and do go after people with ownership to a home.My son is doing well, but he does have a large student loan he needs to repay. What do you think about my adding him to the title of my house? I think you should listen to that inner voice that isn’t comfortable with the idea. You are absolutely right that adding him to the title puts your assets at risk to his creditors. Also, if you put him on title, you are making a taxable gift to him of one-half the value of the house and you should report that on a gift tax return by April 15th of the following year. (You won’t owe any gift tax, most likely, because at the moment you can give up to $5.12 million without having to pay gift tax, but you still have to report any gift over $13,000.) Finally, he will get your one-half of the house with a capital gains tax basis of what you paid for that house (and I’m guessing it’s appreciated since then.) If he ever does sell it, he’ll owe capital gains taxes on the amount it’s appreciated since you purchased it. You can leave him the house at your death, if that’s what you want to do, but for now, I wouldn’t recommend it.
Dear Liza: My mom and dad set up a revocable living trust and now dad has passed away. Can my mom amend it? My answer is: Maybe. If your parents set up a trust that’s pretty common for married couples, in which the trust is divided into two trusts after the first spouse dies, your mother can’t amend the trust that holds your father’s assets. She can, however, amend the trust that holds her assets, which is revocable during her lifetime. This is called an A/B Trust. To find out if your parents have that kind of trust, find the section that says what happens after the first spouse dies. If it says to divide the assets into a ‘Bypass Trust” and a “Survivor’s Trust” or a “Credit Trust” and a “Marital Trust,” then your parents established an A/B trust. However, if that section says something like the assets are to be held in a revocable trust for the survivor’s benefit, then your mom can amend the entire trust (because it was never divided into two trusts).
Hello Liza, My husband and I need to update our wills, they are terribly out of date. Our dilemma is around the question of who should be Executor/Co-Executor of the estate. Obviously we would be the executors of one an others estates, however, if something were to happen to both of us, we need a third party Executor/Co-Executor. We have no obvious relatives, or even close friends that we feel could ask to be an Executor. We’ve understand that a law firm, bank, financial planner, etc.can act as an Executor (or co-Executor). Our question is, what is the financial obligation for doing so? Trust companies, trust departments of banks, and individuals, called professional fiduciaries, can serve as the executor of your estate. There’s no up front fee for nominating an institution or professional to serve in that capacity. They would charge the estate a fee for their services if they are appointed to serve after the death of the second of you. Often, these fees are a percentage of the estate. If your estate goes through probate, your executor is awarded statutory fees based on state law, which are usually a percentage of the value of the estate. Attorneys sometimes serve in this capacity, but, at least in the state where I practice (California) there are strict rules about doing so, because in the past unscrupulous lawyers wrote themselves into client’s documents to generate future fees. Financial advisors often cannot serve due to conflict of interest rules in their companies, but some can. I would advise you to ask your local bank or financial advisor what their fees would be for this service, or if they can recommend anyone in your area who could serve.