To connect with Donald A. Hunsberger, Esq., call (714) 663-8000 or visit hunsbergerlaw.com. Hunsberger Dunn LLP is located at 14751 Plaza Drive, Suite G in Tustin.
Every estate attorney has heard the story recited in her conference room: “We know Mom and Dad did a trust; we’ve looked everywhere, but we can’t find where they kept it. And their lawyer died before they did.”
Estate attorneys hearing these sad stanzas respond as best they can, but not with much optimism. Staff members write and call entities that had any contact with the trust—banks, insurance companies, credit unions, stock brokers, notaries, or real estate agents among others. The firm will likely contact the landlord where the parents’ trust attorney kept offices prior to passing. Some attorneys check with local lawyer contacts in the Estate Planning Bar, or with the surviving spouse of the deceased attorney, to find the name, if any, of anyone who may have acquired the late lawyer’s firm after he or she left.
Regrettably, most efforts are unlikely to lead to the trust. One of the concerns contacted may produce a copy of the trust, but without the original trust, the trust administration will probably require some involvement with the Probate Court to allow the assets to pass to the parents’ family. This may mean that the terms of the trust get displaced in favor the Probate Code’s list of beneficiaries, including anyone that Mom and Dad intended to disinherit.
Sound practice should include both advising children of Mom and Dad secured their estate documents, and how to gain access to those documents. Simply put: assure that each of the successor trustees listed in the trust instrument has instructions on where to find and how to reach the estate documents. When a parent wants to discuss the terms of a trust with an adult son or daughter, she expects to be able to readily retrieve the book or the packet from a place that is reasonably reached, but not a spot on the book shelf convenient for visiting aunts and uncles to peruse if they are sleeping on the sofa.
Many people use their safety deposit boxes to store their trusts. These locations are certainly secure, but they do not meet the test of “accessible.” There are times when a family needs to get to estate documents when the boxes are not available. And when a family member dies, many banks and security companies have strict requirements about the access to safety deposit boxes, in some cases even including the presence of a law enforcement official at the time of the opening. This interferes with both the convenience and the privacy which families expect from their family trusts.
A locked file cabinet in the family den provides a good alternative for the home of the trust: it is accessible but secure, central but free from wondering eyes. Two steps complete this location as a good alternative for the planning document—first, reminders for Junior or Juniorette that the trust is in the cabinet, and second, a fixed, permanent and communicated location for the key to the file cabinet, one that provides access to the drawer when the time comes for the next generation to put the trust to its intended use.
Every family is free to decide which is more important, security or access. But whichever variable weighs more heavily for any household, every parent should assure that his or her successors know where the documents are kept, and how to get hold of them. Remember: courts are free, sometimes required, to hold that a trust which is missing is a trust which is revoked, which means…Probate Time.
Decades ago we published a piece warning parents sending their kids to college for the first time to provide their children with more than what freshmen need to pack for their lives at school. Our article described materials the undergrads should leave at home with their parents, as well as take away to the university: every student who is over eighteen should (MUST), leave their parents with an Advance Health Care Directive, a Durable Power of Attorney for Property and Finances, and a very strongly drafted HIPAA form.
We gave out reams of these articles to parents and students, but over time, for no particular reason, the distribution flow dried up. We stopped circulating the article, except to our own clients at the workplace whom we knew had children going off to school.
Sadly, one fine young man of our acquaintance left to study on the East Coast, well equipped for his academics, but without any of the paperwork for his parents when he got sick. He went across the country, leaving his family in Orange without the tools to talk to doctors, hospitals, nurses, or any other health care provider when, as it tragically came to pass, he had a heart attack away from home.
The result was too painful to fully relate. Just know that even after this wonderful fellow had passed on, his family was not able retrieve their son’s medical records to learn what precisely had taken their cherished child. Before he died, Mom and Dad could not discuss matters with the health care providers, who were simply following the law as provided by our Congress.
We do not want this to ever happen again. Here is the paperwork you MUST have for your offspring before they go away for school, once they are eighteen:
HIPAA (Health Insurance Portability and Accountability Act): a US law preventing your contact with health plans, doctors, hospitals and other health care providers without a HIPAA form. You CANNOT plan on talking to these people WITHOUT THE HIPAA FORM on file. If they do talk to you without a HIPAA authorization, they are putting themselves and their employer at risk
ADVANCE HEALTH CARE DIRECTIVE: While HIPAA forms allow you to talk to the Medical people, the Advance Health Care Directive gives you the authority to direct doctors and make decisions about the student’s care when your child is not able to do so. Access to medical information is worthless without the authority to tell the doctors what to do next.
DURABLE POWER OF ATTORNEY FOR PROPERTY AND FINANCE: Gives you authority to talk and deal with your student’s bank, his dormitory, university, employer and other entities who can sometimes help in crisis situations.
Each of these documents is indispensable. No parent should say goodbye without all of these forms on hand at home and in the files of the new scholar’s school. No exceptions to this rule: Keep originals of each in your files at home, and be sure that the school which he or she will be attending has copies on file so that they have been notified in advance of your preparations.
Parents want college to be a time of learning and wonder. Nothing we have advised will detract from that experience; instead, proper planning will remove one worry from the lives of Mom and Dad as they send their future President off to the Ivy-covered halls.
Many people my wife’s and my age have shared the experience we enjoyed recently on a Saturday evening: a handsome young man, well established in his business field, greeted his successful, beautifully attired bride at the altar as they calmly repeated their wedding vows without the fear and trembling that my generation almost universally experienced under the same circumstances. The difference? The couple’s seven additional years of age – and their accompanying financial stability—were enough to supply both the bride and groom with the steadiness so lacking in so many of the weddings of earlier generations.
Eleanor Barkhorn wrote in an article for The Atlantic that the average age for Americans getting married increased by seven years from 1960 to 2013.1 Ms. Barkhorn quoted an academic survey saying that college-educated women have largely benefitted from marrying later. Specifically, she explained that the average income for women who attended college and married after the age of thirty earn fifty-six percent more than women with college degrees who married before age twenty.
While brides and grooms may marry more comfortably when tenure is tolled and assets accounted, success brings its own perils to the pulpit.
“Divorce attorneys have a special name for financially comfortable couples who marry without any planning ahead of their vows,” explains Kevin Gibbs, an Anaheim attorney who is Board-Certified as a Family Law Specialist in California.
“We call them ‘Inventory.’ You might consider them more confident at their weddings, but family law attorneys know that their confidence is often a stone castle built on a foundation of sand.”
What kind of planning does Gibbs recommend for the well-shod marrieds-to-be?
“There are two answers to this question,” explains Mr. Gibbs. “If the couple has concerns about both their assets and their income in the event of a divorce, then they need to talk about a Premarital Agreement, or a PMA. These allow for an agreement that will address both who owns what and who pays whom if there is a disparity between their incomes.”
“However,” Kevin goes on, “A trust can allocate and specify who owns which assets just as well as a PMA, so if there isn’t any concern about income disparity, a trust will usually suffice.” Gibbs smiles before he adds, “And the father-in-law doesn’t get testy about why a groom is generating a document to cheat his little princess. Instead, his new son-in-law becomes a prince who is doing right by the Apple of Daddy’s eye by setting up a trust to protect her.”
Given a choice between a document which smacks of heavy self-interest (like a Premarital Agreement) or a document which carries the image of a new in-law who worries about his or her duties to the clan (such as a Trust), many advisors recommend foregoing the PMA in favor of a trust for the protection of the assets of both the bride and the groom.
“I’ve never had a couple argue about setting up a trust to protect their assets. They simply sign-off on a document that has three accounts listed for yours, mine and ours,” notes Attorney Gibbs. “On the other hand, there’s always a little extra tension energy in the air on signing day for a PMA. Some people need the PMA, but most well-heeled clients can get by with just a well-written trust.”
Well-heeled or barefoot—couples who come to their wedding with their assets already properly managed will be much more likely to live happily ever after than those who leap before they have looked.
1 Eleanor Barkhorn, Getting Married Later Is Great for College-Educated Women, The Atlantic, March 15, 2013
When Trustees finish their work distributing trust assets, they often utter the same comment about the problems they encountered managing a trust: “Nobody knows what to do as a trustee until the job is almost over. It would be nice to know before the job begins.”
The complete answer to this question calls for the template of a textbook. But Tina Fey, late of Saturday Night Live, unknowingly gave the simple answer about the trustee’s job when she described a leader: “In most cases being a good boss means hiring talented people and then getting out of their way.”
The trustee’s job is to be the “Boss” who seeks out and supervises the experts who conduct the administration of the trust. This role involves finding and directing the most competent people available to manage the requirements found in the terms for the instrument known as a trust.
For most trusts, the management team which the trustee will need includes an appraiser, an accountant, an attorney, and a financial advisor. John Aust, PhD., of CP Appraisers in Orange, who has taught Appraisal Classes at Santiago Canyon College for over twenty-five years, describes the trustee’s team as a “Support Group for the Trustee.”
“The smarter the trustee,” Aust explains, “the more likely she is to start out as more of a recruiter than a manager.” Dr. Aust quotes Warren Buffet when he explains how a trustee approaches composing a management team: “The wise man does in the beginning what a fool does in the end.”
Often, when parents who die have left a trust with one of their children as a successor trustee, that successor has never managed a trust before. “Finding a team of advisors is not a challenge,” Professor Aust explains, “but finding a team of competent advisors is a roll of the dice without some experienced help.”
Dr. Aust recommends a simple checklist for the start-up trustee:
In selecting an Accountant, be certain to retain a CPA who has experience with filing Estate Tax Returns, also known as Form 706. These are sometimes needed even for estates well below the taxable level known as the Exemption Equivalent, which in 2016 is $5,450,000.00.
The Trust’s attorney should have experience with both Probate and Trust administration, since some estates will have assets both in and out of a trust, explains Dr. Aust. “If an asset is outside of the trust,” Aust notes, “the Attorney often needs to know how to steer that asset through Probate. “
Appraisers need more than just a license or a degree in finance, explains the professor. “Anticipate that an appraiser is basically a professional witness to the value of the assets,” states Aust. “The trustee needs to work with someone whose numbers are not just professionally correct; they need to be defensible in court by someone who won’t be intimidated by that prospect.”
Finally, the financial advisor should have both the personal professional financial experience with probate and trust administration and a strong financial organization to back up the advisor’s efforts. “The best advisor in the world still needs to have a strong back room to support the job of allocating assets after the original trustees have died,” advises Dr. Aust.
Asked to give a final summary of the job of a trustee, Dr. Aust replied by quoting the Taoist philosopher Lao Tzu:
“A leader is best when people barely know he exists, when his work is done, his aim fulfilled, they will say: we did it ourselves.”
Tina Fey, Warren Buffet, and Lao Tzu all appear to agree with Dr. Aust about a trustee’s job: Start out in the beginning by finding the right people, be close to invisible, and let the experts do their work.
The conversation typically then continues: “I don’t think Dad knew that the bank would go into this attack mode so soon after his passing. It hasn’t given us time to react.” Or, another common response: “ Things didn’t happen this quickly when my husband’s parents passed.”
There is a different reason for each of these reactions. First, Dad had to have known about the immediate need to react when he died with a reverse mortgage. According to Howard Platte, the Branch Manager of the North Orange County Gem Mortgage office, “The process of obtaining a reverse mortgage involves a counseling session that explains, in great detail, the requirements following the death of the borrower. Basically, every borrower is told in intentional detail that a house which is collateralized with a reverse mortgage, no matter who the lender is, has a basic requirement at death: either the loan is paid off, or the house must be sold to pay off the debt.”
Platte believes that the second reaction to a foreclosure on a Reverse Mortgage – that the fast foreclosure didn’t happen when another person died– is probably accurate. He explains “Most likely the other family member who had an easier time at death owned the home in trust. When that occurs, the lender is more likely to be able to talk to the heirs of the deceased home owner. That trust can make all the difference, because if the lender is not able to talk to anyone, the foreclosure will follow.”
One of the principal problems with slowing down the process of foreclosure at the death of an owner of a home outside of a trust with a reverse mortgage stems from the fact that too many lenders are unwilling to deal with the heirs of the deceased home owners unless the heirs of the deceased owner have been issued paperwork from the probate court to indicate that they are authorized to talk for the deceased family member’s estate.
“Since lots of family members wait a few weeks to contact the mortgage company, and because it then takes some more time to get the letters from the Court,” explains Platte, “the lenders will often start the foreclosure before the probate has given the authority to the family members to talk to the mortgage company.”
The frustrated heirs are frequently left in the lurch once the foreclosure process on the homes outside of the trust begins.
“We have seen the advantage of trusts owning homes first hand,” Platte continues, “and it just doesn’t make sense to add problems to the ability of family members to administer their parents’ estates. A trust owning a home that has a reverse mortgage will normally allow the family to save time and money on the passing of the title to the next generation, and in some cases it simply saves the house from foreclosure.”
When a family considers the ability to avoid the foreclosure which may follow the death of a parent whose home has a reverse mortgage, and then adds in the increased cost of probate fees for the home, as well as the increased time of probate administration which may accompany the home passing by will instead of by trust, along with the fact that probate administration can take up to three to four times as long as trust administration, the decision appears almost self apparent.
“I don’t know why home owners with reverse mortgages, or even just traditional home loans, would consider not having a trust to hold their homes,” admits Platte. “Everything in our experience points to the logic of trust ownership.”
U.S. News and World Report presented an article in their November 16, 2015 issue entitled “10 Essential Tech Tools for Older Adults.” The subtitle further elaborated: “From medication monitors to GPS insoles, these devices make life easier and healthier for seniors.”
Each of the 10 Tech Tools held its own as a great idea for those of us in the “Older Adult” category, but it quickly occurred to this reader that there was need for at least one more help item beyond Smart Watches, Fitness Trackers, and e-Readers in the lives of most seniors. While it is important to keep track of our blood pressure and to be able to Skype our grandchildren after they have gotten their baths, technology also gives us the ability to monitor our financial situations on a much more efficient basis than what our parents and grandparents could have ever hoped for.
Every person whose working days have ended, or even simply shortened or slowed, should interview his or her financial advisor about adding access to monitor the financial instruments that are supporting time away from the workplace. Jim Gilmore, CFP, of Integrated Capital Management, explains that his clients use “eMoney,” a third party program from eMoney Advisor, LLC. designed to “allow clients and advisors to engage and collaborate” on an ongoing basis.
“Any time a client has a question about her finances,” Jim explains, “she can either look at the report on her own, or she can call me and we can review the information together. Most of my clients learn how to monitor their investments and other assets a great deal more efficiently with this program than they could ever do in the past. It helps them to constantly know where they are, financially speaking.”
Conversations with a number of financial advisors and planners led to information about multiple programs, including MoneyGuidePro, SpreadSheet, Profiles and Money Tree among others. And while eMoney appears to be the most widely used program by financial professionals, what the programs all appear to have in common is that they give better information access to the person who wants to be able to track of how his or her finances are keeping pace with the goals which that person has set for his or her retirement years. In fact, some of the programs include comparison screens to match the client’s current financial status with the client’s stated long- and short-term financial goals.
Any senior who is considering looking for a computer money management software program is advised that a number of advisors interviewed indicated that they often make the programs available to their clients at no charge to heighten the benefits their firms can provide to their customers. This is important to remember, because just like the many other “tech tools” considered by US News and World Report, these programs, while essential, can cost considerably more than a trip to the cinema.
Seniors should also remember that their life insurance policies should be included in the mix of assets under regular review. Unfortunately, one of the most common errors seniors make in their ongoing financial maintenance is failing to include life insurance policies in the asset monitoring when going over their portfolios, or worse yet, outright cancelling their life insurance policies. The result of this oversight becomes apparent later when their estates come before their attorney for administration: without an ongoing insurance presence, otherwise healthy asset portfolios often end up “ill liquid” at the time of death.
The consequence? Trustees and executors end up having to sell off assets at times when such liquidation often leads to either lower profits, unnecessary taxes, or even outright losses.
Television financial gurus often lambast life insurance, but attorneys or accountants who administer estates and trusts after their clients have died know that no widow has ever cursed the insurance agent when he or she delivers a death benefit under a life insurance policy. Likewise, we should remember that even the best “Tech Tools” for ongoing financial management cannot help our heirs if we forget that part of our portfolio planning needs to be not just “growth,” but also “liquidity.” If we forget to factor that variable into our long-term planning, we just may be forcing our families to end up selling assets at discounts after we die which will erase much of the benefits of our otherwise prudent planning.
Back in the 1980’s and 1990’s, when most of us first did our living trusts, Estate Attorneys and Accountants chanted the praises of dividing our estates into two or three parts when the first spouse died.
What we were told then was right: the best way to avoid probate and at the same time reduce or eliminate Estate Taxes was to slice the trust in two at the first death to take advantage of the $600,000.00 that each partner in a marriage could pass on to children without any tax bill to pay.
For most people, that eliminated the possibility of an estate tax. Now, in 2015, the Tax Code allows each spouse–alone– to pass $5,430,000.00: more than nine times the tax free estate that earlier rules allowed. This is great, but what about our trusts that say the surviving spouse still must divide the trust in two, when the combined assets the survivor owns has may be only 10% of the tax free amount (the “Exemption”) for one person?
Quite simply, the exemption is so high that most people will not want their trusts to require a division at the first death (although there may be some rare situations where it still makes sense). For those folks, there is an option which you might call the “Wait and See” alternative for living trusts. The American Tax Relief Act of 2012 (ATRA) allows a choice between spouses when it comes to estate taxes called “Portability.”
Basically, the surviving spouse has the option to not do an immediate division of the estate at the first death, but instead, to file an Estate Tax Return and “elect” to apply the unused Exemption of the deceased spouse at a later time if it is needed due to changes such as fluctuations in either the amount of their estate or the amount of the tax free amount allowed in the Tax Code.
This is great news, since we really don’t want to have to file a second tax return every year for the “Split” trust which the division at first death creates. Instead, we want to just preserve the ability to use the tax free exemption that our deceased partner had when she or he died in case we need it later. Why make our trust more complicated if we don’t need to?
But beware of two things: first, we need to change our trusts to allow this “option” by having it modified to permit the surviving spouse to not divide the trust in half at the first death; and second, we need to have our attorney modify the document to allow the trustee to file an estate tax return (Form 706)even if no tax is due so that the surviving spouse can make the “Portability Election.”
And remember: if you don’t make this election by filing the Estate Tax Return within 9 months after your spouse dies, then you lose the Option unless you have already requested an automatic 6-month extension of time to file on Form 4768. If you wait until after the 9 months pass to file the election, the Option is not available.
Some advisors feel the completion of a portability election for smaller estates is not necessary. However, remember two factors: first, an estate may grow unexpectedly following the first death, and second, Congress could change the amount of Estate Tax Free assets we are allowed to pass tax-free when we die. The Portability Election is an easy option to protect our heirs from either possibility.
According to the Orange County Register, a 91-year-old woman from Brea died in mid-2014, and left her entire estate to her caregiver. After officials discovered the transfer, they removed her assistant as trustee and took away the home she left him.
Why? According to the District Attorney and the ruling Judge, the facts of the case demonstrated “Fraud and Undue Influence” by the caregiver.
A caregiver has worked for you in your later years; How can you to safely include this person in your will or your trust? Can you avoid the accusations that destroyed this 91-year-old’s wishes?
To avoid the Brea woman’s result, consider a few specific rules from both the Probate Code and from common sense experience to show that the senior receiving the health care –the employer- has not been unduly influenced to name the care provider as an estate beneficiary. Probate law in California reflects years of problems with caretakers of the elderly. Following these rules may help to avoid both the appearance of – and actual—undue influence by the targets of the law.
First, the statutes provide that a senior changing her planning documents to benefit a caregiver should not act either 90 days before or 90 days after the provider comes to work for her. That makes sense: nobody gives her estate to a person she just met three months ago unless she had somehow been “hypnotized” by being with the caregiver 24 hours a day. The senior in this situation should see an attorney and wait for the time to pass; don’t present the image of being hustled by a new health care giver.
Second, make sure your lawyer introduces you to an attorney who is not a part of her firm to interview you and complete the form provided in the Probate Code. Keep this Independent Review with the documents you receive.
In the common sense area, don’t take the health provider to see the lawyer, and don’t let your health provider be your trustee; get someone else. If you don’t have a family member or friend for the job, find a Private Fiduciary to take you to the lawyer and serve as your Trustee/Executor/Agent. Otherwise, it looks like you’ve been steam-rolled, and it makes the government nervous.
Likewise, don’t discuss your plan with your caregiver, ever. This is something which leads to problems. Keep the process to yourself; don’t let him or her see the documents when they are done. Instead, spend time with outside persons other than your provider. Remember that the image of the isolated senior is what the courts and the agencies are looking for when they examine these cases for people who may have been victimized.
Further, ask your lawyer about a “life estate” instead of making an outright transfer to the caregiver. This helps the provider during his or her life, and then delivers the asset to your friends, family or a charity following the caregiver’s death. Name a third party (not the provider) as the trustee (perhaps a private fiduciary) instead of the caregiver. This level of control on your part is not consistent with “undue influence,” and should calm the courts and placate the prosecutors.
At the same time, don’t name the provider as the sole beneficiary, or even the largest beneficiary. It just looks too suspicious. Name family, a Church, a School or a Hospital as beneficiaries along with the provider.
Remember, there are both good and bad people in every profession. The Probate Code is not there to punish the elderly, it exists to protect us. If there is a caregiver who objects to any of the suggestions above, it may be time to search for a new health care provider: this one may only be looking after his or her own well being, not for yours.
As some senior citizens have learned, even long-standing basics of the law don’t withstand the needs of government agency to pay the costs of health care.
In California, the Department of Health Services (DHS) operates under a regulation that changes the common law character of joint tenancy. This regulation, known as 22 CCR 50960.12 [DHS 12], effectively overhauled the legal concept of the Right of Survivorship previously practiced under California Common Law.
Under the Right of Survivorship, which existed in joint ten- ancy definitions before California even became a state, if a person owned property with a someone who was joint tenant instead of a tenant in common, the first person’s death caused the rights of that deceased in that property to die with him or her, making his or her interest pass to the other owner or owners instantly at the moment of his or her death with no requirement of a will, a trust, a deed, or probate. The death wiped out the ownership interest of the deceased joint tenant, and the interests of the other owner or owners immediately increased without any ac- tions required on their parts.
In other words, a one-half owner of a property who sur- vived the death of a joint tenant would have expected to become the full owner of that property after the other joint tenant died, without any creditors having the ability to attack the property through the deceased’s estate unless they had previously filed a lien against the property. The amazing thing is that DHS has published materials that make it appear that its one regulation is the “law of California,” which clearly it is not. It is a single rule of one solitary agency. Unfortunately, as often happens with illconceived laws, the effects of DHS 12 have reached beyond their intended consequences.
Consider the impact on Robert, an 80+ year-old man who felt concern over the plight of a long-term friend, Harry. Harry had home problems, so Robert, who had a large debt-free home that was paid off, let Harry move into his home. The two widowers enjoyed the arrangement, since it meant that they both had someone to talk to in the morning.
Robert wanted to avoid the cost of a will or a trust, so he found a computer program at a stationery store and printed out a new deed for his home which named Robert’s son Frank and Robert’s friend Harry as joint tenants with him on his property. Robert’s goal was to have his property automatically pass at the time of his death under Section 13050 of the Probate Code to both his friend Harry, and to his son Frank. Robert planned to have Harry own the home jointly with Frank as survivors after Robert died; the next step was for Frank to receive the home by Right of Survivorship from Harry when Harry died.
If Robert had talked to Harry about his plan, he would have learned that Harry had already started to feel the effects of Alzheimer’s disease, and would not outlive Robert. Harry spent two years in a long-term care center, sponsored by Medi-Cal, and died owing a significant sum to the state. After Harry’s death DHS filed a lien against Robert’s property (without his knowledge) for the funds spent on Harry’s stay at the center.
When Robert died his son Frank re- ceived the home by Right of Survivorship, subject to the lien from the state. The result did not affect the rights of the Nursing Home debtor, Harry; instead, it was the legal rights of the survivor Robert, which were violated.
It is important to remember that Har- ry had never contributed financially to the cost of Robert’s home. In fact, he had never paid rent to Robert, and he had never paid any of the addi- tional costs of running the household that came from his living with Robert. Robert’s generosity had been a won- derful impulse, but he should have asked an advisor about whether the step of putting his friend on his home as a joint tenant was the best way to help his friend. Joint tenancy has always carried multiple tax and control problems for estate planning that make it inefficient; the DHS 12 provisions that eliminate the effects of the Right of Survivorship make it far too dangerous to use for senior planning purposes.