Category : News

How to Use Intrafamily Loans as Part of Your Estate Plan

When interest rates are low, intrafamily loans can be a good way to assist a relative (typically a child) with purchasing a house or a family business, and in certain circumstances they can be used to gift money to the next generation.

An intrafamily loan allows family members to borrow money from each other at a special rate, but it must be structured properly so that the loan is not considered a gift. This means the loan must have a written promissory note, require repayment, and charge interest (if the loan is for more than $10,000). The IRS sets the Applicable Federal Rate (AFR) each month, and the interest on the intrafamily loan must equal the AFR. The rate is different, depending on the term of the loan, which can be a short-term loan (0-3 years), a mid-term loan (3-9 years), or a long-term loan (9 or more years). The AFR is typically lower than the interest rate a bank would charge, and the borrower’s credit doesn’t affect the loan, so someone with bad credit can still get a loan.

When structured properly, intrafamily loans can assist children with purchases and pass on assets. The following are some of the ways intrafamily loans can be used:

  • Pay for a house. An intrafamily loan can be used to fund a mortgage for children or grandchildren. Because the interest rates are lower, the children will pay less overall than going through a traditional mortgage lender.
  • Pass on a family business. Depending on how large the business is, giving away a business could exceed the prevailing gift tax exemption. Instead, parents can loan money to a child to purchase the family business. Parents who are financially able could use the annual gift limit ($15,000 in 2021) to give children money to repay the loan. Alternatively, if the family business produces income, the child can use the income to pay back the loan. Even if the business doesn’t exceed the gift tax exemption, this can be a good strategy for parents who want to pass on the business, but still need a steady income stream.
  • Pass on assets. Intrafamily loans can be used as a method of passing on assets provided the borrower can invest the money in a way that brings in a higher rate of return than the interest rate on the loan. Given the low interest rate on intrafamily loans, this can be a successful strategy. If the loan is a large one, it may be wise to loan the money to a family trust. The trust invests the money and repays the loan. After the loan is repaid, the remaining assets are protected by the trust and can be distributed to beneficiaries as dictated by the trust terms.

The downside of an intrafamily loan is the same as with any loan: The loan must be repaid. If the child defaults on the loan, it could trigger a gift tax for the person making the loan. It is also important to have the correct paperwork and documentation. Intrafamily loans should only be set up in consultation with your attorney.

Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

Medicaid’s Attempt to Ensure the Healthy Spouse Has Enough Income: The MMMNA

When most of a couple’s income is in the name of the spouse who is receiving Medicaid, the spouse remaining in the community may wonder what he or she will live on. Medicaid has created some protections for the community spouse.

Although Medicaid limits the assets that the spouse of a Medicaid applicant can retain, the income of the “community spouse” is not counted in determining the Medicaid applicant’s eligibility. Only income in the applicant’s name is counted. Thus, even if the community spouse is still working and earning, say, $5,000 a month, he or she will not have to contribute to the cost of caring for a spouse in a nursing home if the spouse is covered by Medicaid. In some states, however, if the community spouse’s income exceeds certain levels, he or she does have to make a monetary contribution towards the cost of the institutionalized spouse’s care. The community spouse’s income is not considered in determining eligibility, but there is a subsequent contribution requirement.

But what if most of the couple’s income is in the name of the institutionalized spouse and the community spouse’s income is not enough to live on? In such cases, the community spouse is entitled to some or all of the monthly income of the institutionalized spouse. How much the community spouse is entitled to depends on what the local Medicaid agency determines to be a minimum income level for the community spouse. This figure, known as the minimum monthly maintenance needs allowance or MMMNA, is calculated for each community spouse according to a complicated formula based on his or her housing costs. The MMMNA may range from a low of $2,177.50 to a high of $3,259.50 a month (in 2021). If the community spouse’s own income falls below his or her MMMNA, the shortfall is made up from the nursing home spouse’s income.

Example: Joe and Sally Smith have a joint income of $2,600 a month, $1,900 of which is in Mr. Smith’s name and $700 is in Ms. Smith’s name. Mr. Smith enters a nursing home and applies for Medicaid. The Medicaid agency determines that Ms. Smith’s MMMNA is $2,200 (based on her housing costs). Since Ms. Smith’s own income is only $700 a month, the Medicaid agency allocates $1,500 of Mr. Smith’s income to her support. Since Mr. Smith also may keep a $60-a-month personal needs allowance, his obligation to pay the nursing home is only $340 a month ($1,900 – $1,500 – $60 = $340).

In exceptional circumstances, community spouses may seek an increase in their MMMNAs either by appealing to the state Medicaid agency or by obtaining a court order of spousal support.  To find out about these options, reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

 

 

Make Sure Your Estate Plan and Other Essential Documents Are Safe from Disasters

It’s an unfortunate reality that with the increasing number of natural disasters across the country, including fires, floods, and hurricanes, the chance that you could lose your house and possessions has become more likely. In the event of such a calamity, it is important that your estate planning and other important documents are beyond reach and easily retrievable.

If your home is destroyed by a natural disaster or another event, you will want to be able to access important information quickly. First, you need to assemble all your crucial documents and information, including the following:

  • Account numbers and passwords. Keep a list of your bank and e-mail accounts and securely store your passwords.
  • Contact information. Make sure you know how to contact your attorney, advisors, and insurance company.
  • Legal documents. You should have copies of all your legal documents, including your will, trust, power of attorney, and health care proxy. You also need to know where any deeds and insurance contracts are kept.
  • Tax returns. It is recommended that you have three years’ worth of tax returns stored.
  • Medical information. You need to keep track of any prescription medicine and health insurance information.

Once you have all your documents and information, you need to store them in a safe and secure location that will survive a natural disaster. A fireproof and floodproof safe in your house is one way to safeguard documents; a safe deposit box at a bank is also an option. Your attorney may be able to store your legal documents for you. Many firms offer secure storage of documents.

Another option is online storage. There are online cloud storage systems that ensure your documents are available to you just by logging on. Dropbox, idrive, and Microsoft OneDrive are some online storage options. If you use online storage, make sure you know your passwords. If your information is on a hard drive or thumb drive, store the drives in a secure location, not just in a desk drawer.

Regardless of which storage option you use, be sure your loved ones know where the information is and how to access it.

To make certain you have all the pieces of your estate plan in place and stored properly, reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

It’s Medicare Open Enrollment Time: Is Your Plan Still Working for You?

Every year Medicare gives beneficiaries a window of opportunity to shop around and determine if their current Medicare plan is still the best one for them. During Medicare’s Open Enrollment Period, which runs from October 15 to December 7, beneficiaries can freely enroll in or switch plans.

During this period, you may enroll in a Medicare Part D (prescription drug) plan or, if you currently have a plan, you may change plans. In addition, during the seven-week period you can return to traditional Medicare (Parts A and B) from a Medicare Advantage (Part C, managed care) plan, enroll in a Medicare Advantage plan, or change Advantage plans.

Beneficiaries can go to www.medicare.gov or call 1-800-MEDICARE (1-800-633-4227) to make changes in their Medicare prescription drug and health plan coverage.

According to the New York Times, few Medicare beneficiaries take advantage of Open Enrollment, but of those who do, nearly half cut their premiums by at least 5 percent. Even beneficiaries who have been satisfied with their plans in 2021 should review their choices for 2022, as both premiums and plan coverage can fluctuate from year to year. For example:

  • Are the doctors you use still part of your Medicare Advantage plan’s provider network?
  • Have any of the prescriptions you take been dropped from your prescription plan’s list of covered drugs (the “formulary”)?
  • What are your total out-of-pocket costs?
  • Could you save money with the same coverage by switching to a different plan?

For answers to questions like these, carefully look over the plan’s “Annual Notice of Change” letter to you. Prescription drug plans can change their premiums, deductibles, the list of drugs they cover, and their plan rules for covered drugs, exceptions, and appeals. Medicare Advantage plans can change their benefit packages, as well as their provider networks.

Remember that fraud perpetrators will inevitably use the Open Enrollment Period to try to gain access to individuals’ personal financial information. Medicare beneficiaries should never give their personal information out to anyone making unsolicited phone calls selling Medicare-related products or services or showing up on their doorstep uninvited. If you think you’ve been a victim of fraud or identity theft, contact Medicare.

Here are more resources for navigating the Open Enrollment Period:

What Is a Fiduciary and What Are Its Obligations?

When you need someone else to care for money or property on your behalf, that person (or organization) is called a fiduciaryA fiduciary is a person or entity entrusted with the power to act for someone else, and this power comes with the legal obligation to act for the benefit of that other person.

Many types of positions involve being a fiduciary, including that of broker, trustee, agent under a power of attorney, guardian, executor and representative payee. An individual becomes a fiduciary by entering into an agreement to do so or by being appointed by a court or by a legal document.

Being a fiduciary calls for the highest standard of care under the law. For example, a trustee must pay even more attention to the trust investments and disbursements than for his or her own accounts. No matter what their role is or how they are appointed, all fiduciaries owe four special duties to the people for whom they are managing money or resources. A fiduciary’s duties are:

  • to act only in the interest of the person they are helping;
  • to manage that person’s money or property carefully;
  • to keep that person’s money and property separate from their own; and
  • to keep good records and report them as required. Any agent appointed by a court or government agency, for example, must report regularly to that court or agency.

Remember, your fiduciary exists to protect you and your interests. If your fiduciary fails to perform any of those four duties or generally mismanages your money or affairs, you can take legal action. The fiduciary will probably be required to compensate you for any loss you suffered because of their mismanagement.

To learn more, reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

Medicaid’s Home Care Waivers Can Help You Avoid a Nursing Home, But the Line May Be Long

Medicaid long-term care benefits traditionally pay mainly for nursing home care, but the federal government can grant “waivers” to states allowing them to expand Medicaid to include home and community-based services. The downside is that receiving care in a nursing home is an entitlement, while getting care at home is not.

Medicaid is a joint federal-state program that provides health insurance coverage to low-income children, seniors, and people with disabilities. In addition, it covers care in a nursing home for those who qualify. Each state operates its own Medicaid system, but this system must conform to federal guidelines in order for the state to receive federal money, which pays for about half the state’s Medicaid costs. (The state picks up the rest of the tab.) A Medicaid waiver allows states to waive some of the federal rules with the intention of providing services to individuals who wouldn’t normally be covered by Medicaid. The waiver must be approved by the federal government.

The most common type of Medicaid waiver expands Medicaid to cover home care to individuals who need a high level of care, but who would like to remain at home rather than enter a nursing home. Care that may be provided by a waiver includes personal attendants, home health aides, medical supplies and equipment, respite care, counseling services, transportation, homemaking services, hot meal delivery, and more.

Each state sets up its own waiver program, so the rules and requirements vary widely. Usually, to qualify an applicant must need a level of care similar to what is needed to qualify for Medicaid coverage in a nursing home. The point of the waiver is to allow an individual who would normally need nursing home care to remain at home, which is typically a far less costly form of care. States may also target different health conditions, such as HIV, Alzheimer’s disease, diabetes, cystic fibrosis, among others. Each state also sets its own income and asset levels for its waiver programs, which may vary from state to state, and may be different from the income and asset levels used for Medicaid coverage of nursing home care.

The downside of state waiver programs is that waivers are not an entitlement, meaning that states are allowed to limit the number of people who qualify for services under a waiver. Just because an applicant meets the criteria for eligibility does not mean the applicant will be approved for the services. As a result, waitlists for filled programs can run for months or years.

To find out your Medicaid home care options, reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

To find and apply for a waiver program in your state, contact your state Medicaid office.

How Do I File for a Guardianship?

No one wants to see a loved one become unable to make decisions for him or herself. If this happens, however, the court may appoint a substitute decision maker, often called a “guardian,” but in some states called a “conservator” or other term. A guardian is only appointed as a last resort if other, less restrictive, alternatives, such as a power of attorney, are not in place or are not working.

In most states, anyone interested in the well-being of an individual who may be incapacitated – called the “proposed ward” — can request a guardianship for that person (also called a “conservatorship” in some states). An attorney is usually retained to file a petition for a hearing in the probate court in the proposed ward’s county of residence. Protections for the proposed ward vary greatly from state to state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward’s presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person cannot afford a lawyer.

At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.

A guardian can be any competent adult — the ward’s spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). An individual may nominate in advance the person they would like to serve as their guardian by executing a durable power of attorney while they are still competent to do so.

The guardian need not be a person at all — it can be a non-profit agency or a public or private corporation. If a person is found to be incapacitated and a suitable guardian cannot be identified, courts in many states can appoint a public guardian, which is a publicly financed agency that serves this purpose.

In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward’s life — people who are both aware of and sensitive to the ward’s needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.

Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

Can a Marriage Be Annulled After One Spouse’s Death?

Marriage is supposed to be “until death do us part,” but after one spouse dies, is it possible for a court to declare a marriage invalid (annulled)? It can be happen, as a Nebraska widower recently learned, but only in certain circumstances.

Marriage provides benefits to a surviving spouse. When one spouse dies, the surviving spouse is entitled to receive an elective share of the deceased spouse’s estate. The amount of the share depends on state law, but it is usually around 30 percent. A spouse can claim an elective share even if there is a will that leaves the spouse fewer assets. This can lead to conflict between surviving spouses and other heirs.

If a spouse gets married shortly before he or she dies, questions can arise as to the legitimacy of the marriage. Heirs may attempt to invalidate the marriage to prevent the surviving spouse from recovering from the estate. The heirs can challenge a marriage after one spouse has died only if the marriage is considered “void.” A marriage is void if it wasn’t legally entered into in the first place. Examples of void marriages include cases in which:

  • One or both spouses were legally married to someone else at the time of the marriage
  • The spouses are too closely related to each other
  • One or both of the spouses were under the legal age for marriage
  • One or both spouses were mentally incompetent at the time of the marriage

A recent Nebraska case provides an instance of a marriage that was considered void due to incompetence (Malousek v. Meyer, Neb., No. S-20-470, July 30, 2021). Molly Stacey and Steven Greg Meyer began living together in 2009. In 2015, Ms. Stacey was diagnosed with cancer, which eventually spread and her condition deteriorated. Even though she had declared she never planned to marry Mr. Meyer, a few weeks before she died, they were wed. She also named him a joint owner on two bank accounts, changed the beneficiary designations on her other accounts to name Mr. Meyer and his son, and executed quitclaim deeds on her houses to leave them to Mr. Meyer on her death. At the time she was isolated from her children and incoherent.

After Ms. Stacey died without a will, her children went to court, seeking to have the marriage annulled and the property transactions declared void. The children argued that Mr. Meyer unduly influenced Ms. Stacey and that she lacked the mental capacity to make the transactions due to her illness. The Nebraska Supreme Court ruled that the marriage was void because Ms. Stacey was not mentally competent to enter into it. The court set aside the marriage and the financial transactions.

While void marriages can be set aside after one spouse dies, “voidable” marriages cannot. A voidable marriage is a marriage that can be annulled by one party if both spouses are still alive. Courts will generally not cancel these types of marriages after one spouse dies. Examples of voidable marriages, include cases in which:

  • One or both spouses were under mental duress
  • One spouse misrepresented him or herself
  • One spouse was forced into the marriage
  • The spouses were intoxicated at the time
  • One spouse lied about his or her circumstances

To learn more, reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

Kristen Prull Moonan & Amy Stratton Recognized by Best Lawyers for 2022

We are pleased to announce that partners Kristen Prull Moonan and Amy Stratton have been included in the 2022 edition of the Best Lawyers in America®. Kristen was noted in the area of Elder Law and Amy for Closely Held Companies and Family Businesses Law.

Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary accomplishments of those in the legal profession,” said Best Lawyers CEO Phillip Greer. “We are proud to continue to serve as the most reliable, unbiased source of legal referrals worldwide.”

Best Lawyers was the first international list published in 2006 and since then has grown to provide lists in over 75 countries.

Lawyers on the Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers based on professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing.

Reach out to Kristen Prull Moonan and Amy Stratton here.

 

6 Things to Ask Before Agreeing to Be a Trustee

Being asked to serve as the trustee of the trust of a family member is a great honor. It means that the family member trusts your judgment and is willing to put the welfare of the beneficiary or beneficiaries in your hands.  But being a trustee is also a great responsibility. You need to go into it with your eyes wide open. Here are six questions to ask before saying “yes”:

  1. May I read the trust? The trust document is your instruction manual. It tells you what you should do with the funds or other property you will be entrusted to manage. Make sure you read it and understand it. Ask the drafting attorney any questions you may have.
  2. What are the goals of the grantor (the person creating the trust)? Unfortunately, most trusts say little or nothing about their purpose. They give the trustee considerable discretion about how to spend trust funds with little or no guidance. Often the trusts say that the trustee may distribute principal for the benefit of the surviving spouse or children for their “health, education, maintenance, and support.” Is this a limitation, meaning you can’t pay for a yacht (despite arguments from the son that he needs it for his mental health)? Or is it a mandate that you pay to support the surviving spouse even if he could work and it means depleting the funds before they pass to the next generation? How are you to balance the needs of current and future beneficiaries? It is important that you ask the grantor while you can. It may even be useful if the trust’s creator can put his or her intentions in writing in the form of a letter or memorandum addressed to you.
  3. How much help will I receive? As trustee, will you be on your own or working with a co-trustee? If working with one or more co-trustees, how will you divvy up the duties? If the co-trustee is a professional or an institution, such as a bank or trust company, will it take charge of investments, accounting and tax issues, and simply consult with you on questions about distributions? If you do not have a professional co-trustee, can you hire attorneys, accountants and investment advisors as needed to make sure you operate the trust properly?
  4. How long will my responsibilities last? Are you being asked to take this duty on until the youngest minor child reaches age 25, in other words for a clearly limited amount of time, or for an indefinite period that could last the rest of your life? In either case, under what terms can you resign? Do you name your successor or does someone else?
  5. What is my liability? Generally, trustees are relieved of liability in the trust document unless they are grossly negligent or intentionally violate their responsibilities. In addition, professional trustees are generally held to a higher standard than family members or friends. What this means is that you won’t be held liable if for instance you get professional help with the trust investments and the investments happen to drop in value. However, if you use your neighbor who is a financial planner as your adviser without checking to see if he has run afoul of the applicable licensing agencies, and he pockets the trust funds, you may be held liable. A well-respected Massachusetts attorney who served as trustee on many trusts used a friend as an investment adviser who put the trust funds in risky investments just before the 2008-2009 stock market crash. The attorney was held personally liable and suspended from the practice of law. So, be careful and read what the trust says in terms of relieving you of personal liability.
  6. Will I be compensated? Often family members and friends serve as trustees without compensation. However, if the duties are especially demanding, it is not inappropriate for trustees to be paid something. The question then is how much. Professionals generally charge an annual fee of 1 percent of assets in the trust. So, the annual fee for a trust holding $1 million would be $10,000. Often, professionals charge a higher percentage of smaller trusts and a lower percentage of larger trusts. If you are doing all of the work for a trust, including investments, distributions and accounting, it would not be inappropriate to charge a similar fee. However, if you are paying others to perform these functions or are acting as co-trustee with a professional trustee, charging this much may be seen as inappropriate. A typical fee in such a case is a quarter of what the professional trustee charges, or .25 percent (often referred to by financial professionals as 25 basis points). In any case, it’s important for you to read what the trust says about trustee compensation and discuss the issue with the grantor.

If after getting answers to all these questions you feel comfortable serving as trustee, then by all means accept the role. It is an honor to be asked and you will provide a great service to the grantor and beneficiaries.

Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.