Living Trust Myth-Busters

Reality Bites for Some Doctors

Staff Writers

Medical professionals are turning to living trusts in increasing numbers for their estate planning needs. But, two major trust myths need to be explored.

Myth 1:  Living trusts save taxes.

Reality: They do not. Income earned by a living trust is taxable to the physician or other grantor, and when he or she dies, the assets are includable in the estate for estate tax purposes. All traditional planning methods (i.e., marital deduction, estate tax exemption, charitable giving) are available to all estates—whether or not the assets are in a living trust.

Myth 2: Living trusts save probate expenses.

Reality: Living trusts do avoid probate, which makes them attractive to medical professionals, but the question is whether the costs of establishing and administering the trust outweigh probate costs. Living trusts are quite useful, however, when the grantor owns real estate in more than one state. The living trust avoids ancillary probate in other states, which can result in significant savings—especially if the investments are relatively modest because ancillary probate can cost more than the real estate is worth. Likewise, living trusts are helpful if a discretionary investment manager is used. Living trusts also result in faster estate proceeds transference.

Assessment

A living trust should be only a part of a physician’s estate plan. Currently, living trusts are commonly used in conjunction with wills www.MedicalBusinessAdvisors.com

Conclusion

What has been your experience with living trusts; pro or con? Comments are appreciated.

Related Information Sources:

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Physician Financial Planning: http://www.jbpub.com/catalog/0763745790

Medical Risk Management: http://www.jbpub.com/catalog/9780763733421

Healthcare Organizations: www.HealthcareFinancials.com

Health Administration Terms: www.HealthDictionarySeries.com

Physician Advisors: www.CertifiedMedicalPlanner.com

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Key-Man Life Insurance Proceeds Ruling

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IRS Tax Exempt Treatment Ruling

[By Robert Whirley, CPA]

A recent revenue ruling has been issued by the Internal Revenue Service addressing the tax exempt treatment of life insurance policy proceeds on “key-man” policies of Subchapter S-Corporations; medical and/or otherwise. 

Excerpts

Revenue Ruling 2008-42 concludes that premiums paid by the S-Corporation on an employer-owned life insurance contract, of which it is directly or indirectly a beneficiary, do not reduce the S-Corporation’s AAA. Further, the benefits received because of the death of the insured from an employer-owned life insurance contract that meets an exception under Code Sec. 101(j)(2) do not increase its AAA.

Assessment

This may sound like Greek to some doctors. The affect is that life insurance proceeds on key-man policies in an S-Corporation are essentially trapped in the corporation. Any distribution of that cash to surviving S-Corporation shareholders – or to the estate of the deceased shareholder – triggers a taxable event.   

It is therefore vital for any doctor with a life policy paid by your medical practice, or other S-corporation, to discuss the tax policy and estate planning particulars with your accountant.

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The Annual Gift Exclusion

Avoid Estate Taxes by Giving-it-Away

Staff Reporters

A doctor may transfer up to $12,000 a year as a tax-free gift to another person. This also applies to gifts of present interests, which includes gifts (if they satisfy the rules of Section 2503 (c) of the Code) to trusts. If the doctor or other donor is married and the spouse consents to join in the gift, the tax-free exclusion is $24,000.

Gifting Limits

The annual tax-free transfer may not seem significant, to some, but there is no limit to the number of donees eligible for such gifts each year. If the gift program is started early and continued every year, it can result in substantial savings.

Example—A physician or other couple with three married children and three grandchildren can utilize the annual exclusion to gift up to [9 X $24,000] = $216,000 tax-free. If they consistently do this for twenty years, the tax-free transfer amount is $4.32 million. Had they not made such life transfers, the federal estate tax on this amount could deprive the family of several million dollars.

In making joint gifts, a gift tax return, Form 709, must be filed to indicate the non-owner spouse’s consent. If each spouse gives his or her separate property and no gift exceeds the annual exclusion, no gift-tax return is required.

The current $12,000 exclusion amount is indexed in $1,000 increments periodically for inflation.

Direct Gifts for Medical or Educational Purposes

There is no dollar limit on the amount a person can give each year for the benefit of another person’s medical care or education. However, the gift must be made directly to the medical or education provider (such as a hospital or college).

“Education” includes not only higher education, but also primary and secondary schooling as well (for example, prep school). These direct gifts can be made in addition to the annual gift amount specified above. This is especially useful for educational gifts since most high net worth individuals have medical coverage.

Like the annual exclusion, there is no family relationship requirement for making the gift.

Gifts to Qualified State Tuition Plans

Many states, like New York, now offer qualified tuition plans that allow tax-advantaged savings for higher education. These plans are fashioned like an IRA. The earnings on the contributions are not taxed annually but become taxable and are subject to penalties when withdrawn for non-qualified education expenses.

In addition, special gift-tax rules offer additional tax-saving opportunities. From a gift-tax perspective, the contributions are treated as present-interest gifts and qualify for the annual gift-tax exclusion. There is a special election that contributors can make which allows the gift to be treated as having been made repeatedly over five years.

Gifts up to the Exemption Amount

Even if gifts exceed the tax-free transfer limits, there may still not be current gift-tax cost to donors. Each person can give away up to the estate tax exemption amount which increased from $2 million to $3.5 million between 2006 and 2009.Of course, to the extent that the exemption amount is used to shelter lifetime transfers, it is not available to the donor’s estate.

Assessment

However, using the full exemption amount during life yields an important advantage. The appreciation on the amount transferred is also removed from the donor’s estate.

Conclusion

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Ensuring the Welfare of a Disabled Child

Special Financial Planning Techniques Required

By Roger J. Warrum

If a doctor or medical professional has a mentally or physically disabled child, special estate provisions are needed to ensure the continued care and comfort of that child after the parents’ deaths.

Estate Planning

When designing an estate plan for a doctor with a disabled child, it must provide not only financial security, but personal security as well—without jeopardizing the medical practice as a business entity. The plan must allow the child to continue functioning and making some sort of contribution, according to his or her abilities and lifestyle.

Direct Bequests

In some cases, funds left directly to the child at death may be attached and used by the government. Consequently, direct bequests may not be the best option.

If a doctor wishes to leave the child shares in a family business as a means of support, for example, the best way is to establish a trust that will define how the stock can be converted to cash and how that cash will be spent for the benefit of the child.

To represent the child’s best interests, the doctor might appoint a pair of trustees: one with the financial expertise to invest the trust or assets well -and- another individual who will look out for the child’s welfare to act as the child’s guardian.

Spendthrift Trust

A “discretionary” spend thrift trust is used to provide the trustee discretion to decide when the money will be spent and on what spent.

If the trust is set up solely for the “maintenance” of a disabled child, a state organization caring for the child can attempt to attach the funds.

However, if the trust document specifies the money is to be used for the “benefit and enjoyment” of the child, the state usually is unable to attach the assets.

The share of the estate provided for the disabled child may differ from the share of other children. In many cases, a disabled child requires more funds to care for his or her needs than his or her siblings might require.

Important Issues

When designing an estate plan for the parent(s) of a disabled child, a number of issues must be decided:

• To whom does the doctor want to entrust the care of the child?

• What is the doctor’s wishes regarding the child’s development?

• How should the trust be funded; for example the trust could use a life insurance policy or be funded with other assets?

Assessment

The key elements in planning for a disabled child include:

1. Establishing a trust to be used for the benefit and enjoyment of the child, which cannot be attached by a state or institution should the child need to be institutionalized;

2. Helping to select a guardian, specifying more than one in order of priority;

3. Helping to prepare a letter to the guardian stating desires and wishes for the child; and,

4. Planning to fund the trust and determining the amount to be placed in the trust.

Conclusion

Your thoughts, opinions and experiences with this limited-focus topic are appreciated; please comment? What other issues are involved?

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Healthcare Organizations: www.HealthcareFinancials.com

Health Administration Terms: www.HealthDictionarySeries.com

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Estate Planning Glossary for Doctors

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Understanding Terms and Definitions

[Staff Writers]

Text BooksAbsolute assignment: A policy assignment under which the assignee receives full control over the policy and full rights to its benefits. 

Administration: The process of handling the affairs of a deceased person’s estate or a trust.

Administrator: The person or financial institution that is appointed to take care of the estate of a deceased person who died without a will; may be known as a “personal representative

Alternate valuation: With certain exceptions, the value of all property includable in the decedent’s gross estate six months after the decedent’s date of death. If an asset is sold or distributed, its sale price or value on the date of distribution is the alternate value. In either case, the sale or distribution must occur within six months of death.

Alternate valuation date: Six months from the date of death.

Ancillary administration: Probate proceedings in another state.

Attorney in fact: The person holding power to act for another under a Power of Attorney document.

Basis: The value subtracted from the net sales price to calculate gain or loss for capital gains tax purposes.

Beneficial interest: A financial or other valuable interest arising from an insurance policy between owners and key employees.

Beneficiary: Usually refers to a person or entity that is entitled to receive something, for example, a beneficiary of an estate or trust, or a beneficiary of life insurance or retirement benefits.

Bypass trust: An estate planning device (also called a credit shelter trust, family trust, or B trust in “AB” plans where the A trust funds for the marital deduction) used to minimize the combined estate taxes payable by spouses whereby, at the death of the first spouse, the estate is divided into two parts and one part is placed in trust usually to benefit the surviving spouse without being taxed at the surviving spouse’s death, while the other part passes outright to the surviving spouse or is placed in a marital deduction trust. A by-pass trust permits a maximum of from $1.5 million in 2005 to $3.5 million in 2009, to transfer to heirs of the spouses on an estate tax free basis under the unified gift and estate tax. The estate tax disappears completely in 2010

Charitable gift annuity: An arrangement whereby the donor makes a gift to charity and receives back a guaranteed lifetime (or joint lifetime) income based on the age(s) of the annuitant(s).

Charitable lead trust: An arrangement whereby the charity receives an income from a trust for a period of years, then the remainder is paid to non-charitable beneficiaries (generally either the donor or his or her heirs).

Charitable remainder annuity trust: A charitable trust arrangement whereby the donor or other beneficiary is paid annually an income of a fixed amount of at least 5% but not more than 50% of the initial fair market value of property placed in the trust, for life or for a period of up to 20 years; one or more qualified charitable organizations must be named to receive the remainder interest upon the death of the donor or other income beneficiaries, and the value of the charitable remainder interest must be at least 10% of the net fair market value of all property transferred to the trust, as determined at the time of the transfer.

Charitable remainder trust: An arrangement wherein the remainder interest goes to a legal charity upon the termination or failure of a prior interest.

Charitable remainder unitrust: A charitable trust arrangement whereby the donor or other beneficiary is paid annually an income of a fixed percentage of at least 5% but not more than 50% of the annually revalued trust assets, for life or for a period of up to 20 years; one or more qualified charitable organizations must be named to receive the remainder interest upon the death of the donor or other income beneficiaries, and the value of the charitable remainder interest must be at least 10% of the net fair market value of all property transferred to the trust, as determined at the time of the transfer.

Claim: Usually refers to funeral expenses, the debts of a deceased person, and expenses of administration.

Codicil: A legal document, which supplements and changes an existing will; generally used to make minor changes to the original will.

Collateral assignment: When a life insurance contract is transferred to an individual or other party as security for a debt. 

Community property: Ten states (Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) use some form of the community property system to determine the interest of a husband and wife in property acquired during marriage.

Conservator:  An adult person or financial institution appointed by a court, who is responsible for a minor child’s or legally incapacitated person’s property until that minor child becomes an adult or the legally incapacitated person becomes competent to be responsible for his or her own property; may be know as “guardian of the estate.”

Crummy trust: A trust established granting a beneficiary a limited power to withdraw income or principal or both. This power is exercisable during a limited period of time each year and is non-cumulative. The power of withdrawal is generally limited to the amount excludable from gift tax liability under the annual gift tax exclusion or to the greater of $5,000 or 5 percent of the trust property.

Declarations: Statements in an insurance contract that provide information about the property or life to be insured and used for underwriting and rating purposes and identification of the property or life to be insured.

Devise:  Refers to an inheritance of real or personal property under a will, or may mean to dispose of real or personal property by will.

Devisee:  A person or entity designated in a will to receive a devise.

Disclaimant: One who makes a disclaimer.

Domicile: One’s home or permanent residence where the laws of the state of a person’s domicile determine what happens to property at death.

Donee: The recipient of a gift.

Donor: A person who makes a gift; may refer to a person who establishes a living trust.

Dower: The life estate of a widow in the property of her husband.

Durable power of attorney: A legal document appointing another person (the Attorney in Fact) to act on behalf of another, even if that person becomes disabled or incapacitated.

Durable power of attorney for healthcare: A legal document that gives another person the power to make certain decisions regarding healthcare.

ERISA: The acronym for the Employee Retirement Income Security Act of 1974, a federal law that established minimum standards for certain employee benefit plans, especially qualified employer retirement plans.

Escheat: Assigning property to the state when a one dies with no known beneficiaries or heirs.

Estate:  All of one’s assets included in an estate for tax purposes; also used to refer to those items of property that are subject to administration in the probate court.

Estate planning: The process of arranging one’s personal and financial affairs.

Executor: The person or financial institution that is appointed to administer the estate of a deceased person who died with a will; also known as a “personal representative.”

Family Limited Partnership: A form of holding property combining some of the advantages of holding property as a corporation with some of the advantages of owning property in a partnership.

Fiduciary:  From the Latin word meaning trust and confidence and used to refer to a person (or entity) that serves in a representative capacity; personal representatives, trustees, guardians, conservators, and agents under powers of attorney are all fiduciaries; to stand in a position of confidence and trust with respect to each heir, devisee, and/or beneficiary.

Formal Probate: A proceeding before a probate judge to determine whether a decedent left a valid will.

Future interest: An ownership interest in property in which unlimited possession or enjoyment of property is delayed until some future time

Generation skipping transfer: A transfer of property, usually in trust, that is designed to provide benefits for beneficiaries who are two or more generations younger than the generation of the grantor.

Generation skipping transfer tax: A transfer tax generally assessed on transfers to grandchildren, great grandchildren and others who are at least two generations younger than the donor.

Generation skipping transfer tax exemption: An exemption from generation-skipping tax for transfers by an individual either during life or at death.

Generation skipping trust: Any trust having beneficiaries who belong to two or more generations younger than the grantor.

Grantor: A person that established a living trust. It is also used to refer to one who is transferring real estate in a deed.

Gross estate: The total property or assets held by a person as defined for federal estate tax purposes.

Guardian: An adult person appointed by a surviving parent in his or her will or by a court, who is responsible for a minor child or legally incapacitated person’s personal care and nurturing.

Heir: Person, who inherits property from the estate of a deceased person who died without a will.

Holographic will: A will entirely in the handwriting of the signer. Although valid in some states in some circumstances, most lawyers advise strongly against such wills

Incapacitated person: A person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.

Inter vivos trust: A living trust.

Intestate:  Refers to dying without a will.

Irrevocable trust: A trust that can no longer be amended or revoked by anyone; most revocable trusts become irrevocable at some time, for example, when the person who established the trust dies.

Joint and survivor insurance: A policy underwritten on the life of two persons, usually husband and wife or business partners.

Joint tenancy with right of survivorship: A form for holding undivided title to property among more than one person. When one of the co-owners dies, the other becomes the sole owner of the property.

Legally incapacitated person: One determined by a court as not capable of handling personal and/or financial affairs

Living trust: A trust that one establishes during one’s lifetime which is not part of one’s will, but is usually established by a separate written trust agreement; an “inter vivos trust” also sometimes referred to as a revocable living trust.

Living will: A legal document stating that the signer does want to be kept alive by artificial or extraordinary means, when there is no expectation of recovery from a physical or mental disability. The enforceability of such documents is unclear in absence of applicable legislation.

Marital deduction: A deduction allowing for the unlimited transfer of any or all property from one spouse to the other generally free from estate or gift tax.

Per stirpes: A way of distributing an estate so that the surviving descendants will receive only what their immediate ancestor would have received if he or she had been alive at the time of death; state laws vary.

Personal representative: The person or financial institution appointed by the probate register or the court to administer a deceased person’s estate

Pour over will: This is a will used to transfer (pour over) into a trust any property that is left in a person’s estate after death.

Power of appointment: A right given to another in a written instrument, such as a will or trust that allows the other to decide how to distribute your property. The power of appointment is “general” if it places no restrictions on who the distributees may be. A power is “limited” or “special” if it limits the eventual distributee.

Power of attorney: A written legal document that gives an individual the authority to act for another. If the authority is to act for the principal in all matters, it is a general power of attorney. If the authority granted is limited to certain specified things, it is a special power of attorney. If the authority granted survives the disability of the principal it is a durable power of attorney.

Primary beneficiary: Beneficiary of a life insurance policy who is first entitled to receive the policy proceeds on the insured’s death.

Probate:  The process of determining if the deceased person left a valid will and admitting that will to probate. When a will is “admitted to probate” it means that the probate register or the probate judge has signed a paper that says the will is admitted to probate. The paper the probate register signs is called a “register’s statement” and the paper that the judge signs is called an “order.”

Probate register: An employee of the probate court authorized to perform certain acts such as the admission of a will to probate in an informal proceeding.

Proceeding:  Involves the court in some type of activity such as the admission of a will to probate in an informal proceeding conducted by the probate register (this may be done by mail and does not involve a court hearing) or in a formal proceeding conducted by the judge in a hearing in the courtroom after proper notice to interested persons.

Qualified disclaimer: A written refusal to accept property from a decedent (by will, by the laws of descent and distribution, by contractual provision, or by beneficiary designation), made within nine months of the decedent’s date of death and delivered to the holder of legal title in such property. This is a common way to transfer property without paying a gift tax.

Qualified domestic trust: A trust arrangement which allows property transferred to a surviving spouse who is not a U.S. citizen to qualify for a special exclusion in lieu of the regular marital deduction; and which ensures that, at the death of the surviving spouse who is not a United States citizen, the assets placed in such a trust will incur federal estate taxation since the tax was avoided at the first spouse’s death

Qualified plan: Plans that qualify for favorable tax treatment under the Internal Revenue Code, and are subject to restrictive rules and extensive regulations. Qualified plans are secured by a trust, as opposed to a nonqualified plan.

Qualified terminable interest property: Property that, were it not “qualified,” would not qualify for the marital deduction in the decedent’s estate.  Because the qualified interest left to the surviving spouse terminates at his or her death (and there are no other rights that would result in inclusion of that property in the surviving spouse’s gross estate). QTIP does qualify for the marital deduction in the decedent’s estate and will be included in the surviving spouse’s gross estate, provided the proper election is made by the decedent’s personal representative.

Rabbi Trust: A trust, owned by the company that holds assets to help meet non-qualified benefit payments. Rabbi trusts are taxable trusts, and trust assets must be available to corporate creditors in the event of a bankruptcy.

Revocable living trust:  A living trust or inter vivos trust that can be amended and revoked, usually by the person who established the trust; the trust may become irrevocable when the one who can amend or revoke the trust dies or becomes incompetent.

Settlor: A person who established a living trust.

Special-use valuation: Pursuant to Code Section 2032A, special-use valuation provides that the “highest and best use” value may be reduced to an appraised “special use” in the gross estate up to $900,000.  This applies to real property used in a farming operation or a trade or business that meets certain requirements, and where certain pre-death qualifications are met and post-death commitments are made.

Sound mind: The testator possesses sound mind for the purposes of making a will if he or she: (1) understands the nature of the act of making a will or codicil thereto, (2) knows the extent and character of the property subject to the will, (3) knows and understands the proposed disposition of that property, and (4) knows the natural objects of his or her bounty (i.e. his or her heirs). Whether the testator was of sound mind is tested (determined) by the state of the testator’s mind at the time the will or codicil is executed (written and signed) and varies by state.

Supervised probate:  A proceeding for the administration of a deceased estate in which there is considerable court involvement; papers that have to be filed with the court and various types of hearings before the probate judge

Tenants in common: A form of asset ownership in which two or more persons have an undivided interest in the asset and the ownership shares are not required to be equal

Testamentary trust: A trust that is part of a person’s will.

Testate:  Refers to dying with a will.

Testator: A person who makes a will.

Trust:  An arrangement, usually established by a written document, to provide for the management and disposition of assets. It normally involves three parties: the person who establishes the trust (sometimes called a donor, grantor, settlor, or trustor), a trustee, and one or more beneficiaries.

Trust declaration [trust instrument]: A document defining the nature and duration of the trust.

Trustee:  An adult individual or financial institution that is designated to be responsible for the administration of a trust. There may be more than one trustee (co-trustees), and an individual and a financial institution may serve as co-trustees.

Trustor: A settlor.

Uniform gifts [Transfers] to minors act [UGMA or UTMA]: A method to hold property for the benefit of a minor, which is similar to a trust but the rules are governed by state law.

Will: A written document which disposes of one’s property at death. The will also is used to nominate personal representatives. It may also be used to express burial and funeral instructions, make anatomical gifts, and designate a guardian and conservator for a minor child or a legally incapacitated adult. 

Conclusion

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Marital By-Pass Trusts

The Unified Credit Shelter Trust

By Lawrence E. Howes; CFP™
By Joel B. Javer; CFP™ 
 

 

A Unified Credit Shelter Trust or Family Trust or By-Pass Trust or an A-B Martial Trust is established to receive property at death equal to the “exclusion amount.” 

Thus, the amount in the trust is carved out of your estate and does not go directly to your spouse but is still subject to estate taxes.   

However, the amount subject to taxes is offset by the unified credit and hence no tax is due.     

Under Economic Growth and Tax Relief Reconciliation Act [EGTRRA], the increased exclusion amount, formerly $1,000,000 and scheduled to increase to $3,500,000 in 2009 and expires in 2010, presents another planning issue. Smaller estates need to be careful, so that the majority of the estate doesn’t end up in the credit shelter trust. 

Example 

A medical practitioner with a $1.5 million estate, dying in 2003 would have $1,000,000 allocated to the credit shelter trusts, leaving only $500,000 outright to the surviving spouse. The surviving spouse may be surprised to find out that the majority of the estate is in trust and will be subject to withdrawal limitations.   

In 2004, when the exclusion amount increased to $1,500,000 the entire estate may go into trust leaving nothing out right to the surviving spouse.  These trusts need to contain provisions to allow the spouse access to the money under what is called an “ascertainable standard.” 

This standard permits money to be paid out for health, education, maintenance and support [HEMS].   

IRS Language 

This language has been approved by the IRS and should never be tampered with.   If the trust document provides the spouse broader withdrawal power, the risk is that the assets in this trust could be included in her estate, which defeats the purpose of carving out the trust assets in the first place. 

Upon your spouse’s death, the assets in the trust are paid to your beneficiaries, commonly the children.  If the beneficiaries are minors, provisions are included for their well being until ultimate distribution, similar to the terms indicated previously under the testamentary trust.   

Example: 

A powerful effect of the trust is the potential for appreciation in trust value.   

If for example, the trust starts out at $1,000,000 and then 7 years later the spouse dies, the trust might have appreciated to a $2 million or more and the appreciation is not subject to estate taxation.   Drafting of trust language to allow for changing amounts and to accommodate different wording by Congress is important to avoid having to create new documents every time Congress decides to make changes.   

Assessment 

However, due to the far reaching effects of EGTRRA, all estate plans and documents should be reviewed by estate planning attorneys and informed financial advisors.  

Conclusion 

Please opine and comment if you have ever considered or used this strategy; and what was the result? How will the current political climate affect the estate tax situation?

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Family Gifting and Physician Loans

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Physician Gift and Estate Planning

By Lawrence E. Howes; CFP™
By Joel B. Javer; CFP™ 

The annual gift tax exclusion allows the physician, and others, to give any individual $13,000 per year [$26,000 per couple in 2009] without paying or filing a gift tax return. 

There is no limit on the number of individuals who might benefit from your generosity.  

Marrieds 

If you are married, then you and your spouse together may gift to any number of individuals.  The recipients do not owe any tax on the money either.   

Excess Gifts 

Gifts in excess of $12,000 are subject to current gift tax.  A gift tax return must be filed by April 15th of the year following the gift.  Gifts to qualified charities are subject to a different set of income tax rules. 

Lifetime Gifting 

Gifting assets to family members or others during your lifetime can be an effective estate planning technique.  A gift of money or stock to your children automatically reduces your estate. 

If your taxable estate is in excess of $2 million, then you are in the [45] percent estate tax bracket; indexed at $3,500,000 in 2009, with repeal of the estate tax and generation-skipping tax scheduled for 2010. 

This means that each dollar you can remove from your estate, and allow to appreciate in your children’s estate can help reduce a significant potential estate tax liability.   

However, if the sole purpose of gifting is to reduce estate taxes, then the Economic Growth and Tax Relief Reconciliation Act [EGTRRA] of 2001’s reduction, and ultimate elimination of estate taxes, will nullify this technique.   

You must remember that tax laws are always subject to change and EGTRRA has a Sunset provision in 2011, which in some form may not totally eliminate estate taxes.  

Gifting strategies may still be appropriate depending on your expectation of law changes and where the estate is large and life expectancy is limited.  There are gifting traps in these situations, so consult proper counsel. 

Stock Gifting 

When you gift stock you also give the recipient your cost basis. 

For example, if you have low basis stock that you are thinking about selling but are concerned about paying 20 percent in capital gains tax, you could gift portions of the stock to your children (or anyone in the 15 percent income tax bracket) and sell just enough to pay the 10 percent capital gains tax in their bracket.

The gift value is the market price of the stock on date of gift.  We are talking about an outright gift, so before you really do it, make sure you can afford to give up the cash or the asset forever. 

Conclusion

Your thoughts and comments on this ME-P are appreciated. Feel free to review our top-left column, and top-right sidebar materials, links, URLs and related websites, too. Then, subscribe to the ME-P. It is fast, free and secure.

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Unlimited Marital Deduction

Understanding Physician Estate Planning

By Lawrence E. Howes; CFP™
By Joel B. Javer; CFP™
fp-book1

Under the unlimited marital deduction, virtually all transfers to a spouse, whether made during lifetime or at death, are tax-free.   

Tax Consequences 

However there is a tax consequence for leaving your entire estate to your spouse. 

Leaving everything to your spouse does not utilize your exclusion amount, which was $1,000,000 in 2003.   

However, under the Economic Growth and Tax Relief Reconciliation Act [EGTRRA] of 2001, the increased exclusion amount, formerly $1,000,000 is scheduled to increase to $3,500,000 in 2009 and expire in 2011. 

Assessment 

This has no effect after the first death, but when your spouse dies, the estate of the spouse will pay higher taxes.   

Conclusion 

Please opine and comment if you have ever considered or used this strategy; and what was the result? 

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Institutional: www.HealthcareFinancials.com 

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IRC §2032A Special-Use Valuation

Understanding Physician Estate Planning

By Lawrence E. Howes; CFP™
By Joel B. Javer; CFP™
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Suppose you are a physician or other individual who own a farm that for many years was located well outside the city limits of a growing community, and now the farm is in the path of this growth?   

The dynamics of determining the fair market value of your farm have changed.  You might be inclined to value it as a farm and your estate would make the argument that it is a farm.

 

“Highest and Best Use” 

The IRS would argue the property should be valued at its highest and best use.  Unfortunately for your estate the “highest and best use” might be as a mega mall, apartment buildings, or a high-rise office building.  

All considerably more valuable than the farm might be worth.  

Enter Internal Revenue Code Section §2032A 

Valuation of a property at the highest and best use might force the survivors to sell the land to pay a large estate tax. 

On the other hand, valuation at its present use might enable the survivors to carry on the farm business.   

IRC Section 2032A permits qualifying estates to value at least a portion of the real property at its “qualified use.”  The section applies to farms or other trades or businesses.  

Major Requirements 

Five major requirements and conditions must be satisfied.  Ultimately, the maximum amount by which the value of the special use real estate can be reduced is $800,000 – or other amount indexed for inflation – after Y2000.  

Assessment 

While this is not an insignificant amount, if there is a large disparity between “highest and best use” and present use value, then planning to avoid the potential liquidity deficit is imperative. 

Conclusion 

Please opine and comment if you have ever considered or used this strategy; and what was the result? 

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Linguistics: www.HealthDictionarySeries.com 

Related: http://www.aicpa.org/PUBS/jofa/jan98/sbtaxsol.htm

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IRC Section §6166 Extensions

Understanding Physician Estate Planning

By Lawrence E. Howes; CFP™
By Joel B. Javer; CFP™

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A benefit the IRS allows on the death of a doctor or qualifying small business owner is Internal Revenue Code § 6166.  This provides for the extension of the payment of estate taxes over a period of 14 years.  

Levels of Qualification 

Recent legislation has made it more difficult to qualify; there are now three levels of qualification:

  1. The first is the same as for § 303. 
  2. The second adds a strict definition of a closely held business. 
  3. The third requires that the business must have been actually engaged in carrying on a trade, medical practice, or business at the time of death.   

The first four annual payments are interest only and then the next 10 annual payments are principal and interest.  The interest rate on the first $484,000 – or currently indexed amount – of tax due is at 2 percent.   

Assessment 

Calculating the tax that qualifies for the extension requires applying the percentage of the adjusted gross estate attributed to the small business, multiplied by the total federal estate tax. 

Conclusion 

Please opine and comment if you have ever considered or used this strategy; and what was the result? 

Book info: http://www.jbpub.com/catalog/0763745790/ 

Linguistics: www.HealthDictionarySeries.com 

Related Opinion: Why IRC Section 6166 Is Outmoded By Joseph E. Godfrey III, CLU and Steven M. Schanker Esq. http://www.nysscpa.org/cpajournal/2003/0403/nv/nv3a.htm

The Qualified Terminal Interest Property Trust

Understanding the QTIP in Estate Planning

By Lawrence E. Howes; CFP™
By Joel B. Javer; CFP™ 
  

A qualified terminal interest property trust (QTIP) was designed for physicians and those who have children from a prior marriage.   

QTIP Rules 

The QTIP rules are complicated and deal with legal rights to assets and in whose estate the assets are titled.  Suffice it to say that Congress has allowed a qualification to be put on the normal terminal interest rules to provide for this situation.   

The result provides assets that qualify for the unlimited marital deduction, but your spouse does not control where the assets go upon the spouses death.  The spouse is entitled to the income generated from the trust for life and is also entitled to the use of tangible property, like the home and contents.   

Assessment 

In addition to the above, these trusts provide the surviving spouse a limited power to access principal for health, education, maintenance and/or support [HEMS]. 

Conclusion 

Please opine and comment if you have ever considered or used this strategy; and what was the result? 

Book info: http://www.jbpub.com/catalog/0763745790/ 

Linguistics: www.HealthDictionarySeries.com

IRC Section §6161 Extensions

Understanding Physician Estate Planning

By Lawrence E. Howes; CFP™
By Joel B. Javer; CFP™ 
  

The IRS has discretion under Internal Revenue Code § 6161 to grant an extension to a physician, or any estate, for up to 10 years to pay estate tax upon a showing of “reasonable cause.”  

Interest Still Charged 

The IRS charges interest of course, but if the estate does not have the money to pay all the estate taxes when initially due, then § 6161 is a potential opportunity to reduce the immediate payment burden on the estate.   

Assessment 

Unfortunately, this extension does keep the estate open for the duration of the payment plan and will incur additional accounting and administrative costs. 

Conclusion 

Please opine and comment if you have ever considered or used this strategy; and what was the result? 

Book info: http://www.jbpub.com/catalog/0763745790/ 

Linguistics: www.HealthDictionarySeries.com

IRC Section §303 Stock Redemptions

Understanding Physician Estate Planning

By Lawrence E. Howes; CFP™
By Joel B. Javer; CFP™

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A family business or medical practice may make up the majority of a physician’s estate. Unfortunately, although the practice does have value, it may have very little cash.   

Recognizing the Dilemma 

In recognition of the closely held business owner, the IRS allows stock in the company to be redeemed to pay federal and state death taxes, generation-skipping transfer taxes, and funeral and administration expenses.  

There are few tax-deductible ways of getting money out of a corporation and salaries and business expenses head the list.

Example:

For example the IRS maintains that, if a business is at least 35 percent of your adjusted gross estate, the business owner can redeem stock to pay for approved expenses. Since you get a step-up in basis at death, the shares redeemed should not generate a capital gain. 

The transaction is deemed a sale of a capital asset, and not a dividend.  (A dividend is not deductible so it is taxable to the corporation as well as taxed to you personally upon receipt). 

Assessment 

The strategy of an Internal Revenue Code § 303 redemption is prudent.  However, there must be cash available to redeem the stock. Typically, a life insurance policy is purchased to provide the cash for the redemption. 

Conclusion 

Please opine and comment if you have ever considered or used this strategy; and what was the result? 

Book info: http://www.jbpub.com/catalog/0763745790/ 

Linguistics: www.HealthDictionarySeries.com 

Related: Funding IRC Section 303 to Pay Estate Taxes and Expenses

http://www.nysscpa.org/cpajournal/1997/0597/depts/pfp.htm

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Doctors and the Uniform Transfer/Gift to Minors Act

Dual Estate Planning and Educational Vehicles

By Lawrence E. Howes; CFP™

By Joel B. Javer; CFP™ 

 

The Uniform Transfer to Minors Act (UTMA), or Uniform Gift to Minors Act (UGMA), provides for an account established by a checkmark on most mutual fund applications and/or brokerage accounts.

The account is primarily used by medical professionals as a tool for accumulating assets to pay for a child’s college education; however money may be used for most any purpose that benefits the child. 

No trust documents have to be prepared.  A uniform trust has been adopted by each state.  A custodian, normally a physician-parent or grandparent is named as the party responsible for making investment decisions and distributing assets for the benefit of the child. 

Example 1: 

For example, reading classes, computer camp, ballet classes, etc.  Money gifted to the trust qualifies under the annual gift tax exclusion [$12,000.00].  This money is a gift to the child and, depending upon state law, the child has control of it at age 18 or 21.  The assets are removed from the physician donor’s estate, unless the giver dies while still the custodian of the account.  In that case, the assets are taxed at the giver’s bracket until the child reaches age 14, at which time they are taxed directly to the child.  Investments can be selected to minimize or eliminate taxation. 

Example 2: 

For example, individual stocks with no dividend might provide the appreciation without generating a taxable event until the stock is sold after the child reaches age 14.   Alternatively, low turnover, growth-oriented, ETFs or tax-efficient mutual funds offer account growth with little or no taxable distributions.  

Conclusion

What are the positives and negatives of UTMAs and UGMAs relative to college tuition; please comment? 

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Non-Probate [De-facto] Estate Assets

Many Different Assets May Trap Uninformed Doctors

By Lawrence E. Howes; CFP™

By Joel B. Javer; CFP™ 

 

There are situations where avoiding probate is desirable for physicians who want privacy for their finances after their death. And, there are relatively simple ways to avoid probate, but they all have consequences.

Several of these mechanisms are reviewed below: 

[A] Joint Tenancy

Joint tenancy is the conventional way that property between spouses is titled.  Each spouse maintains a 50 percent-undivided interest in the property.  Upon death, the property automatically, by operation of law, passes to the surviving spouse and avoids probate.   However, the automatic aspect of JT means that a will does not control the disposition of the asset.  Before you title anything think about the consequences and be careful when establishing the ownership of all property.   

[B] Community Property

Community property is another form of co-ownership limited to the interests held between husband and wife. Community property does not automatically pass to your spouse. When one spouse dies, the survivor continues to own only his or her half of the assets. The decedent’s will determines the transfer of the other half. Only eight of the 50 states are community-property states, but it is estimated that 25 percent of the population resides in these states. The eight states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. 

Wisconsin has a form of community property called “marital partnership property.”  The laws of the particular state must be examined to determine the effect on the married couple’s property.  

[C] Life Insurance       

Life insurance is also property.  The two aspects of the property are the face amount and unless it is a term life insurance policy, the cash value. 

The critical item to remember is: if you own the policy, then the face amount or death benefit is included in your estate and probably subject to estate taxes.  The death benefit passes through the operation of a beneficiary designation.  At the time of death most cash value policies include the existing cash value in the death benefit. This is known as a type A policy. Type B excludes the cash value from the death benefit so it would be added to the face amount.        

[D] Retirement plans

Your retirement plans and IRAs are transferred by beneficiary designation.  It is common to see a physician who is divorced still have an ex-spouse as the named beneficiary on a retirement plan or life insurance policy. Making sure that all beneficiary designations are consistent with your current estate plan will avoid these unintended consequences. 

[E] Revocable Living Trust

In a revocable living trust your assets are voluntarily placed in a trust thereby making you a trustor.  The control of the assets in the trust is then transferred to a trustee.  You can make yourself the trustee as well. 

The key word here is revocable, which means the terms of the trust can be changed, altered, amended or terminated. Legal title to the property however is retained by the trust. The trust can provide continuity of investment management, bill paying, collection of accounts receivable and general financial stability until the medical professional is able to resume control of his or her financial affairs.  

In addition, if property is owned in more than one state, ownership of that property by a revocable living trust would eliminate the necessity of dealing with probate in several states. 

[F] Buy-Sell Agreements 

A highly valued medical practice may not have sufficient cash to buy out a deceased partner and face an overwhelming financial burden. Life insurance is commonly considered the best vehicle to provide the cash when it is needed the most, and there several different way to create a practice buy-sell agreement.

Nevertheless, always remember that it too, is an asset. 

Conclusion:

What is your experience with any of the above non-probate assets in your estate planning endeavors? 

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Charitable Giving Terms and Definitions for Physicians

A “Need to Know” Glossary for all Medical Professionals

Staff Writer’sdhimc-book

For most medial professional’s, charitable giving can either be a financial planning goal or an economic tool to achieve other goals more effectively.   

When charitable giving is viewed as a financial goal it becomes a very personal matter to the physician, much like an individual’s other lifestyle choices. 

For some doctors, charitable giving is a way of showing gratitude for their well-being. For others, it is a matter of social status. Still some physicians approach charitable giving as a discipline of their religious or philosophical view of life.  

Nevertheless, various charitable giving techniques are available to meet a physician’s unique financial planning requirements. These techniques generally fall into two broad categories: current gifts and planned or deferred gifts.  

Current gifts are rather simple techniques that can be completed at or near the current moment.

Planned or deferred gifts are generally complicated transactions that are to be completed in the future. 

Use of a particular charitable giving technique will depend largely on the doctor’s capacity to understand and evaluate complex alternatives – strength of donative intent – as well as his/her current and future cash flow needs, types of assets owned, strength of charitable intent, and income and estate tax considerations.

Glossary of Terms

5% probability rule: In general, charitable income tax deductions are disallowed when there is greater than a 5% chance that a noncharitable beneficiary will live long enough to exhaust the charity’s remainder interest. Charitable remainder unitrusts are exempt from this rule [Rev. Rul. 77-374]. 

Bargain sale: A sale of property to a charity for less than the property’s fair market value [Regs. §1.1011.2].

Charitable gift annuity: An arrangement under which a donor makes a gift to a charity in exchange for systematic payments of income for a period of time [Regs. §1.170A-1(d)]. 

Charitable income trust: A trust created by a donor doctor that provides for income payments to a charity for a period of time, after which the remainder is paid to a non-charitable beneficiary. Payments to the charity are limited to the amount of income earned by the trust [Rev. Rul. 79-223]. 

Charitable lead trust: A trust created by a donor that provides for payments to a charity for a period of time, after which the remainder is paid to a non-charitable beneficiary. Payments to the charity are either a fixed amount annually or a fixed percentage of the value of assets in the trust at the beginning of each year. Payments are not limited to the amount of income earned by the trust [IRC §664(a)]. 

Charitable remainder trust: A trust created by a physician-donor that provides for payments to a non-charitable beneficiary for a period of time, after which the remainder is paid to a charity. Payments to the non-charitable beneficiary are a fixed amount annually. Payments are not limited to the amount of income earned by the trust [IRC §664(a)].

Charitable remainder annuity trust (CRAT): A trust created by a physician-donor that provides for payments to a non-charitable beneficiary for a period of time, after which the remainder is paid to a charity. Payments to the non-charitable beneficiary are a fixed amount annually. Payments are not limited to the amount of income earned by the trust [IRC §664(d)(1)].

Charitable remainder unitrust (CRUT): A trust created by a physician-donor that provides for payments to a non-charitable beneficiary for a period of time, after which the remainder is paid to a charity. Payments to the non-charitable beneficiary are a fixed percentage of the value of assets in the trust at either the beginning or the end of each year, depending on the trust agreement. Payments are not limited to the amount of income earned by the trust [IRC §664(d)(2)].

Donative intent: The inclination of a physician-donor to make a gratuitous gift to charity.

Income in respect of a decedent: Amount due and payable to a decedent at his or her death because of some right to income. Examples of income in respect of a decedent include salaries, retirement benefits, annuity payments, interest, dividends, rents, and deferred gain on an installment contract, earned but not received by the decedent before his or her death [IRC §691(c)(2)].

Insubstantial rights: Rights to the use of donated property that is retained by a physician-donor when the retained rights do not interfere with the donee-charity’s unrestricted use or full ownership of the donated property [George v. U.S. 11/30/61, DC-MI]. 

Pooled income fund: A fund that commingles property gifted by several donors, where each donor designates a non-charitable person to receive income for life and a charity to receive the remainder interest [Regs. §1.642(c)-5].

Private foundation: A tax-exempt organization under IRC §501(c)(3) that does not enjoy a broad base of public support [IRC §§508, 509].

Public Charity: A tax-exempt organization under IRC §501(c)(3) that enjoys a broad base of public support [IRC §509(a)(2)].

Qualified appreciated stock: Stock for which a market price quotation is readily available and that would generate a capital gain if sold [IRC §170(e)(5)].

Qualified charity: An organization described in IRC §170(c). Gifts to these organizations can be deducted by donors for income, gift, or estate tax purposes. 

Qualified conservation contributions: A restriction on the use of real property, a remainder interest in real property, or a physician-donor’s entire interest in real property that is given to a qualified charity for conservation purposes [IRC §170(f)(3)(A)].

Quid pro quo: The expectation by a physician-donor that he or she will receive a bargained-for benefit in exchange for a gift to a charity [Rev. Rul. 76-185].

Reduction rules: Exceptions to the general rule that gifts to charity are deductible to the extent of the fair market value of the donated property [IRC §170(e)(1)(A)].

Supporting Organizations: A tax-exempt entity that is established by an individual or small group of donors for the purpose of supporting a public charity.

Remainder interests: Property rights that can be enjoyed only after prior rights have terminated. 

Undivided interests: Rights that joint owners share in the entirety of a property as opposed to rights they enjoy to segregated pieces of a property. 

For related information: www.HealthDictionarySeries.com 

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Note: Feel free to send in your own related terms and definitions so that this section may be updated continually in modern Wiki-like fashion.

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Inheritance “Disclaimer”

What all Physicians Should Know

By Lawrence E. Howes; CFP™

By Joel B. Javer; CFP™fp-book1 

In some situations, an inheritance might complicate an estate and add to the estate tax burden.  If there are sufficient assets and income to accomplish financial goals, more assets are not needed. A disclaimer may be useful to such physicians.

A Simple Definition

A disclaimer is an unqualified refusal to accept a gift or inheritance, that is, when you “just say no”.  You have decided not to accept a sizable gift made under a will, trust or other document.

Formal Disclaimer Requirements

When you disclaim the property, certain requirements must be met: 

  • The disclaimer must be irrevocable;
  • The refusal must be in writing;
  • The refusal must be received within nine months from the date-of-death;
  • You must not have accepted any interest in the property; and
  • As a result of the refusal, the property will pass to someone else.

Intent and Results 

The disclaimed property passes under the terms of the decedents will, as if you had predeceased the decedent. If the filer of the disclaimer has control, the property will be included in the disclaimant’s estate and can only be passed to another as a gift for as an inheritance. The intent of the disclaimer is to renounce and never take control of the property. 

Assessment 

The use of disclaimers became a more important tool in estate planning under the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA). 

Many estate plans that were designed and drafted prior to EGTRRA, had unintended consequences when governed by the new law.  Hence, disclaimers may have been the only way to allocate estate assets according to personal desires versus legal design.

Nevertheless, current political machinations and the impending tax and estate planning “sunset-provisions” are sure to add to the confusion. 

Conclusion:

What is your experience with “disclaimers”; if any? 

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Related info: www.HealthDictionarySeries.com

What is the Probate Process?

Estate Planning for Medical Professionals

By Lawrence E. Howes; CFP™ and Joel B. Javer; CFP™

The motivating issue and primary purpose of estate planning is for the physician is to assure the proper transfer of property to desired heirs with a minimum expenses and taxation [not avoidance]. The process of transferring property is called probate.

Definition and Terms

Probate, meaning “to prove,” is the legal process of a court-supervised property transfer whose disposition is guided by either your will, or if you do not have a will, by the state laws of intestacy. 

Other property or non-probate assets include property held in trust, in joint tenancy, most life insurance policies [because they have a named beneficiary] and most retirement plan assets [401-k and 403-b], again because of a named beneficiary.

All property is subject to estate taxation – whether or not it goes through probate. But, avoiding probate does not mean you can also avoid estate taxes. 

Probate Avoidance

Probate avoidance is the subject of numerous seminars across the country. These programs rely mainly on doctor’s fears of the unknown.   In actuality, many states have adopted all or part, of the Uniform Probate Code [UPC]. The UPC provides for a streamlined probate process and in most situations, residents of these states have little to fear when it comes to probate.  

However, the probate process is a public process. Anyone can go to the court and look up the will of a decedent and delve into their personal life and bequests. This may be a negative idea for physicians.

State of Domicile 

An estate is usually probated, distributed, and taxed under the laws of the state in which you are domiciled. There are some states (e.g. California, Florida, and Nevada) that have no additional death taxes beyond what the federal estate tax would allow. 

Changing your residence to one of these states may avoid significant death taxes at the state level. You can do several things to establish domicile in a particular state.

Examples involve voter registration, automobile registration, driver’s license, safe-deposit boxes and having a principal residence there.   

Owning property in more than one state may also cause multiple taxation by multiple states claiming jurisdiction, if you are not careful. So, it’s best to determine in advance the requirements for each state and take a definitive position on where you wish your property to be taxed and probated.

Assessment 

The above considerations should be included in the estate planning process of any medical professional.

Conclusion:

And so, what is your experience with the probate process or estate planning process; and remember your opinion counts! 

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A Brief Overview of Estate Planning for Physicians

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A “Necessary” Process for all Medical Professionals

[By Lawrence E. Howes; CFP™]

[By Joel B. Javer; CFP™]

“When we hear about a colleagues’ estate, we often conjure up images of rolling green countryside, horses, sprawling mansions and established family dynasties with more money than elderly Daddy Warbucks. These images of wealth have absolutely nothing to do with today’s definition of an estate, and its importance in the life of most physicians. Most likely, you and your loved ones have estates that are worth protecting.

Now, take the time to understand what your estate consists of, and why integrated financial, business and estate planning is such a valuable imperative for all medical professionals.” 

-Dr. David E. Marcinko; MBA, CMP™

***

Mature female physician with PC

***

Introduction

Estate planning is an ongoing process for all physicians, and should be part of your thinking every time you cogitate about the future.

What is Estate Planning?

Estate planning is probably the last bastion for the sincere procrastinator. 

As a medical professional, you are likely so busy pursuing your career that you think that you do not have time to plan.  Perhaps the current state of flux in health care keeps you too unsettled to think about long-term planning.  Maybe a fear of family conflicts, unresolved issues, or believing it will be too expensive to develop an estate plan keeps you from acting.

Goals of Estate Planning 

The four primary goals, of estate planning, to consider are:

· To maintain financial independence during your lifetime

· To reduce costs and not delay settling the estate

· To minimize estate taxes

·  To maximize the inheritance to chosen beneficiaries.

Your Estate Defined 

Your estate is the total value of everything you own; more specifically it is your home and everything in it, the car, minivan, SUV, diamond brooch, wine collection, portfolio of mutual funds, other investments, retirement plans, medical practice, ASC, ownership in a family business, vacation homes, furniture and clothing.

It all adds up very quickly, especially when you consider any positive effect that the stock market may have had on your investments and the escalation in the price of homes in many parts of the United States. 

Of course, it can go down just as quickly too, as in the de-escalation of home prices and the recent global stock market decline, etc. 

“Your “Covert” Estate Plan by Default

All too often, estate-planning decisions are routinely made for us without our knowledge. This may be considered your “covert” or defacto estate plan by default. For example: 

  • When you buy a house, the realtor assumes that you want the house titled as joint tenants with your spouse;
  • Your investment account is opened and it is titled in joint tenancy;
  • Your life insurance agent names your spouse as primary beneficiary and your minor children as contingent beneficiary;
  • You don’t take the time to draft a will, so by default the state you live in has prepared one for you;
  • Your medical practice agreement doesn’t address death or disability;
  • Your ex-spouse is still the beneficiary of your IRA, 401 (b) and 401(k) plan;
  • Your parents are still the beneficiaries of your life insurance.

Transparency 

Regardless of your current planning, let someone know the whereabouts of your existing estate planning documents and the names of your advisers.  All too often medical professionals keep these critically important wishes a non-transparent secret, which adds a frustrating search process to an already sad and disruptive time in the lives of loved ones. 

Common Estate Planning Impediments 

There are three common impediments to estate planning that include: 

  1. Contemplate the consequences one’s own death.
  2. Not understanding terms that health economists and advisors use.
  3. Distributing assets between a family legacy -or- charitable intent.

 Future Assessment 

There is no way that anyone can predict what future tax and estate laws will look like. The best we can do is plan based upon current law.

However, if started early enough, the estate planning process consists of many intermediate steps that over several years and may be considered enjoyable to the informed medical professional.

Conclusion

Your thoughts and comments on this ME-P are appreciated; do you even have an estate plan? Feel free to review our top-left column, and top-right sidebar materials, links, URLs and related websites, too. Then, subscribe to the ME-P. It is fast, free and secure.

Speaker: If you need a moderator or speaker for an upcoming event, Dr. David E. Marcinko; MBA – Publisher-in-Chief of the Medical Executive-Post – is available for seminar or speaking engagements. Contact: MarcinkoAdvisors@msn.com

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Post-Mortem and Estate Planning Definitions for Doctors

A “Need-to-Know” Glossary for all Medical Professionals

Staff Writers

Activities of daily living (ADLs): Those functions or activities normally associated with bodily hygiene, nutrition, elimination, rest, and ambulation. These are the minimal requirements of mobility, toileting, and dressing, eating, and maintaining continence. Performance of ADLs indicates a person’s degree of physical independence as part of a functional assessment. The most common long-term care insurance (LTCI)-defined ADLs, which require physical assistance to perform, are defined below in the usual order of their occurrence:

• Bathing—Included only in a few LTCI contracts; the least impaired ADL.

• Mobility (transferring)—The ability to move from bed to chair.

• Toileting—The ability to get to and from a toilet.

• Dressing—The ability to put on and take off clothes and/or to fasten shoes.

• Eating—The ability to feed yourself. (Food preparation is not an ADL.)

• Maintaining continence—The ability to maintain control of urine/bowel movements. 

ADL impairment:  A physical impairment that prevents an elder from performing certain physical activities.

Adult day-care centers: Such centers provide social, recreational, and rehabilitation for full-day or half-day programs for people who cannot care for themselves during the day but can live at home at night.

Adult congregate living: A group living environment that promotes independent living by supplying supportive medical and social services either directly or through referral to seniors who are in relatively good health, despite financial limitations or social impairments. 

Alternate valuation: With certain exceptions, the value six months after the decedent’s date of death of all property includable in the decedent’s gross estate. If an asset is sold or distributed, then the sale price or the value on the date of distribution is the alternate value. In either case, however, the sale or distribution must occur within six months of death.

Alzheimer’s disease: A disease characterized by progressive dementia and diffuse cerebral cortical atrophy (an organic brain disease and is covered by most LTCI policies).

Alternate Valuation Date: Six months from date of death. 

Assisted living facility: A residential facility for independent seniors with multiple needs, including slight to moderate physical disabilities and cognitive impairment. Residents receive 24-hour supervision and assistance in daily living, meals, housekeeping, transportation, and recreational programming. Minimum health or nursing assistance is provided on an as-needed intermittent basis. Residents have their own private spaces and they share public spaces with others. This type of facility is also referred to or related to adult congregate living facility, adult’s home, personal-care home, or residential-care facility, depending on local nomenclature and state regulations. 

Attorney-in-fact, agent, or power-holder: The person who or institution that has been given the authority to act on behalf of a person under a power of attorney. 

Balance billing: A charge of up to 15% in excess of approved Medicare fees by a physician.   

Benefit eligibility: A prerequisite for receiving LTCI benefits, usually an inability to perform two ADL’s or serious cognitive impairment. 

Benefit period: The maximum number of years that benefits will be paid for nursing-home and/or home care. This can range from one year to a lifetime of benefits. 

Caregiver: A person who provides care to a resident or patient. Most long-term care (LTC) is less expensive custodial care, not expensive skilled medical or psychological care. 

Charitable remainder annuity trust (CRAT): An irrevocable trust that pays not less than 5% of initial fair market value to a donor or designated person annually or more frequently, if desired. The remainder interest of the split interest passes to charity at the end of a designated time or the annuitant’s life.  See the Personal Financial Planning Portfolio, titled “Charitable Giving.” 

Cognitive impairment: The deterioration or loss of short- or long-term memory, orientation, or deductive or abstract reasoning.  

Coinsurance (Co-payment): The portion of the medical-service bill that must be paid by the patient. (Coinsurance refers to a percentage; co-payments are stated as a fixed amount.) 

Compound annual growth rate (CAGR): The rate of interest earned on principal plus interest that was earned earlier multiplied annually. With LTCI, the customary inflation rate is 5% for a CAGR inflation rider. For estimate purposes, premium costs may increase at a 3% CAGR.

Conservator ship: Similar to guardianship and committee ship except that a court showing of mental or legal incompetency is not required. What needs to be demonstrated in this instance is the inability to manage one’s personal financial affairs.

Consumer price index (CPI): One of the broadest measures of prices using a market basket of goods. Changes in the CPI are used to measure the annual rate of inflation.  

Contestability period: The time period from a policy issue date during which a policy is contestable. 

Continuing care retirement community (CCRC): A residential, life care community for elders. The community includes a nursing-home facility. In a CCRC, a senior makes a substantial payment for lifetime housing in a home, condominium, or cooperative. In addition, the senior often pays a monthly maintenance charge. The senior holds title to his living unit and shares ownership of the common areas with other owners in the development. 

Cost shifting: The practice that forces a healthcare provider, such as a hospital, to charge private-pay customers more. This also applies to sellers who provide services to those who cannot pay, such as the uninsured poor. 

Custodial care (personal care): General assistance with activities of daily living, as well as household chores, provided by those who are not medical professionals. 

Daily benefit: The maximum reimbursement for daily, long-term care expenses per a LTCI policy. This may range from $75 to $500 daily. 

Deductible: The amount a patient must pay directly (usually each year) to a provider before the insurance plan begins paying the benefits. An example is the annual deductible for a doctor’s services under Medicare. 

Diagnostic related groups (DRG): A payment system for hospital care based on patient diagnosis, which limits reimbursement of most medical treatments. 

Disclaimant: The person who makes a disclaimer. 

Durable medical equipment: Medical equipment designed and intended for the regular use of a LTC recipient for medical treatment or possibly safety.  

Durable power of attorney: Enables one to appoint someone to act as his or her surrogate decision maker. The appointed person can make health decisions and/or administer financial or other personal affairs. If the authority granted in the power of attorney commences only upon the occurrence of a specific event or contingency, the power of attorney is known as a “springing power of attorney.” 

Exclusions: LTCI policies exclude coverage for mental illness (other than Alzheimer’s and related dementia), alcohol or drug abuse, confinement in a hospital, care outside the United States, and services paid for by the government. 

Family limited partnership: A partnership among members of a family that owns properties. It is used for estate-planning purposes to reduce the value of an asset or business. Such an estate plan may include an arrangement to purchase a business in the event of the principal owner’s incapacity.  

Family and Medical Leave of Absence Act: This act permits an employee (after a year of employment) to take up to 12 weeks of unpaid leave to take care of his own health problem or the health problem of the employee’s family, including his children, spouse, or parents. 

Full recovery: This occurs when an insured is no longer disabled and no longer requires substantial human assistance or supervision with two or more ADLs or a cognitive impairment.  

Geriatric care manager (GCM) or case manager (CM): A person who coordinates, oversees, or arranges the care of an elderly or disabled person. 

Grantor retained annuity trust (GRAT): A trust in which the grantor retains the right to a fixed dollar amount (the annuity) for a fixed term. If the grantor survives until the end of the annuity term, all of the trust principal will pass to others and escape the grantor’s estate for death tax purposes.

Grantor retained income trust (GRIT): A trust in which the grantor retains the right to receive the income. To satisfy all gift and estate tax law requirements; a GRIT must be either a GRAT or a GRUT (grantor retained uni-trust). 

Grantor retained uni-trust (GRUT): A GRUT is similar to a GRAT, except that with a GRUT the grantor retains the right to receive a fixed percentage of the value of the trust annually. Thus, the total annual payments will fluctuate in direct proportion to the value of the trust.  

Guardianships and conservatorships: Depending on the state of jurisdiction, a court-created vehicle in which a guardian or conservator is appointed the legal representative of a person who is an adjudicated mental incompetent. This guardian or conservator then acts on behalf of the incompetent. 

Guarantee renewable: An LTCI contract provision precluding cancellation of a policy, or a change of any of its terms, as long as the premiums are paid on time. Insurers can increase premiums after receiving approval from a state insurance department.  

Guardian: A person named by a court to represent the interest of minors or incapacitated elders. The appointed person is lawfully invested by a court with the power of, and charged with the duty of, taking care of a person who is considered incapable of administering his or her affairs. The guardian also is responsible for managing the property and rights of the person. 

Healthcare Finance Administration (HCFA): The federal agency [part of the Department of Health and Human Services (HHS)] responsible for Medicare and Medicaid rulemaking and administration.  

Healthcare proxy: A document that a person uses to appoint someone to make all his healthcare decisions in the event that he becomes unable to make his own.  

Home health aide: A person who performs custodial LTC services under professional supervision. 

Home health agency: A licensed public or private organization that provides home health aid custodial services, skilled nursing services, or other therapeutic services. 

Home healthcare plan: A home-care program prepared by a physician, a registered nurse, or a care manager without which the patient’s physical condition could be adversely affected. 

Home healthcare services: These may include the following services performed either daily or at least weekly: 

• Full or part-time, home health aide services helping with ADLs or Alzheimer’s disease.

• Physical, respiratory, occupational, or speech therapy provided by a licensed therapist.

• Nutrition counseling under the supervision of a registered dietitian.

• The development of a home-care plan by a registered nurse, a licensed practical nurse, a physician’s assistant, or medical social worker and approved by the attending physician. 

Hospice care: A program for terminally ill people who are expected to die within six months. It is primarily concerned with pain and symptom control. Hospice provides medical, nursing, and other health services through home or inpatient care. Medicare usually pays for hospice care. 

Inflation benefit rider: A provision for a periodic increase of benefit coverage to reflect the increasing costs of care based on the CPI or other economic indicators. Most LTC policies offer either a simple 5% annual increase or a more expensive 5% growth, which is compounded annually. Some policies offer an option to increase benefits for an additional premium without any additional medical examinations. 

Informal caregivers: Family members, friends, or caregivers who are not employed by established home-care agencies,  who provide care without pay and are not under the supervision of a licensed agency and, thus, not reimbursable according to most LTCI contracts. 

Instrumental activities of daily living (IADL): Actions performed by a person that are above and beyond the most basic ADLs. IADLs include shopping, driving, cooking, cleaning, and taking care of personal finances.

Insured event: Events determined by the LTCI policy to be covered by the insurance and that entitle a policyholder to benefits.  

Interrupted care requirements: A period of time after which benefits will be resumed without a new, start-up, waiting period. 

Irrevocable living trust: A trust established during a grantor’s lifetime whose terms cannot be changed. 

Joint tenancy with rights of survivorship: The holding of title to property by two or more people so that upon the death of one joint owner, the survivor or survivors take title to the property; to be distinguished from tenancy in common. 

Level premium: The premium (paid annually or more frequently) that is fixed unless, on a class basis, an insurance company obtains approval from the state to increase premiums. An increase is more likely to occur over a long time as claims’ experience increases and more likely will apply to younger policyholders. 

Life insurance living benefit rider: A rider that is available on some permanent life insurance policies. In the event of a terminal illness and a life expectancy of less than one year, the policyholder may receive an advance discounted payment on the face value of his policy after deducting any policy loans. The rider is usually available without any extra premium as a free upgrade feature to a policy. The amount of the payout will vary by policy. 

Limited partnerships: Unincorporated associations with one or more general partners who are personally liable and one or more limited partners who contribute capital and share in profits but incur no liability with respect to partnership obligations beyond their capital investment. These partnership interests may be gifted for estate-planning purposes.  

Living trust: A trust established by a grantor, donor, or settlor who is living at the time he creates the trust; also known as an “inter vivos trust.” 

Living will: A person’s written directive to his family, physician, and medical facility to be followed if he becomes unable to participate in decisions regarding his medical care. The person’s instructions usually reflect his wish to decline medical treatment in prescribed circumstances and his wish that his living not be artificially prolonged. 

Long-term care (LTC): Assistance provided over a period of time to those unable to care for themselves. LTC includes a wide variety of services from skilled nursing to custodial care, including personal, medical, social, and financial care. Such services are generally required by older people as a result of diminishing health, disabling illness, disability, or Alzheimer’s disease. 

Long-term care insurance (LTCI): Private insurance that helps pay primarily for custodial care over an extended period of time in a nursing home or at home. There are many different types of LTCI policies. 

Managed care: General term for any system of healthcare delivery, such as an HMO, organized to enhance cost-effectiveness. Managed care networks are different types of healthcare providers that agree to provide services to those covered under the plan. They are usually organized by insurance carriers, but also can be organized by employers, hospitals, or hospital chains. Payment is made on a fixed basis, which provides incentives to control costs. 

Medicaid: The joint federal and state program that provides a wide spectrum of medical services (including LTC) to the indigent as authorized in Title XIX of the Social Security Act. At the Federal government level, Medicaid is administered by the HCFA.  

Medicaid “community spouse”: The “healthy” spouse who is not on Medicaid while an ill spouse who is in a nursing home is on Medicaid. The income and assets of both spouses are pooled. The community spouse may receive a limited, possibly negotiable resource allowance (as determined by each state), but otherwise Medicaid has the first claim to income and assets to pay expenses for an ill spouse.  

Medicaid trust: A trust established by a Medicaid applicant whose purpose is to protect the trust assets from nursing home claims or from claims of the supervising state agency. 

Medicare: The federal government medical insurance program that pays for those over 65 years old and some medical and hospital expenses for disabled people as authorized in Title XVIII. Medicare Part A benefits cover inpatient hospital care, skilled nursing facility care, home healthcare, and hospice care. Medicare Part B benefits provide coverage for physician services, outpatient hospital services, diagnostic tests, various therapies, durable medical equipment, medical supplies, and prosthetic devices. Normally, Medicare pays for skilled care. Limited custodial care may be approved and may accompany skilled care.  

Medicare supplementary insurance (Medigap): Private insurance used to supplement Medicare. Medigap can be used to cover co-payments and deductibles, but it usually does not cover LTC services. 

National Association of Insurance Commissioners (NAIC): A non-profit association of state insurance commissioners who are the chief regulatory officials in all 50 states, the District of Columbia, and U.S. territories. These officials, often with the concurrence of private insurance companies, issue overall U.S. insurance guidelines. States may or may not adopt these guidelines; however, there is pressure on the states to adopt them as there is almost no other federal regulation or coordination among different states.  

Nonforfeiture of benefits: A provision, relatively expensive and usually optional, that may guarantee access to partial benefits after participating in a plan for a specified period of time. 

Nursing homes: Licensed facilities with licensed personnel that provide typically 95% custodial care; the remainder is intermediate and skilled care. Nursing home charges include custodial or skilled care, room, and board. Nursing homes may be used for respite care or post-hospital treatment.  

Omnibus Budget Reconciliation Act (OBRA) 1990: Federal legislation that approved standardization of Medigap policies.  

OBRA ’93:  Federal legislation that extended the lookback period for Medicaid qualifying purposes from 30 to 36 months and 60 months for certain trusts in order to require a longer wait time before receiving benefits.  

Policy limit: The maximum total benefit, which equals the daily benefit multiplied by the number of days of benefit selected. For example, if the daily benefit is $100 and three years are selected, then the policy limit is the $100 daily benefit × 3 years × 365 days, or $109,500. 

Pre-existing conditions: A bodily injury or sickness that a physician has treated or has advised treatment or that would have caused a prudent person to seek medical treatment within a specified period of time before the date that the insurance policy was issued. A condition that was fully disclosed on the application, and not excluded from coverage, will not cause denial of benefits.  

Qualified disclaimer: A written refusal to accept property from a decedent (by will, by the laws of descent and distribution, by contractual provision, or by beneficiary designation), made within nine months of the decedent’s date of death and delivered to the holder of legal title in such property. This is a common way to transfer property without paying a gift tax. 

Qualified terminable interest property (QTIP): Property that, were it not “qualified,” would not qualify for the marital deduction in the decedent’s estate because the interest left to the surviving spouse terminates at his or her death (and there are no other rights that would result in inclusion of that property in the surviving spouse’s gross estate). QTIP does qualify for the marital deduction in the decedent’s estate and will be included in the surviving spouse’s gross estate, provided the proper election is made by the decedent’s personal representative. 

Recoupment: The seizure of assets that are considered to be illegally transferred by the client and are subject to being recouped by Medicaid.  

Respite care: A temporary arrangement or facility for a LTC patient or other chronically dependent person so that family or other caregivers can have a respite from their duties.  

Retirement community: Privately built, usually self-contained housing facilities for those who are over a stated age, usually 55. Housing options include the lease or purchase of a single or multi-family house or townhouse, or an apartment, sometimes even in a high-rise building. Residents are usually of middle- to upper-class economic backgrounds. Costs can cover building maintenance and/or a variety of other services, including healthcare. 

Return of premium option: An expensive, optional LTCI feature in which the total premium paid may be returned if an insured dies before a certain age, such as 70. This option generally is not available.  

Reverse mortgage: A home-mortgage arrangement whereby a purchaser or mortgagor agrees to purchase a home, but does not take possession until the death of the seller or whenever the seller decides to move. The seller receives a mortgage as security for the sales proceeds. The purchaser or mortgagor makes monthly payments to the seller and allows the seller to reside in the home for a lifetime or period certain. The seller loses ownership but obtains a stream of cash flow and taxable income. This income may permit the seller to remain at home, which otherwise might not be affordable. The purchaser’s debt is usually guaranteed by a Federal Housing Administration insurance policy. The market for these mortgages appears to be limited until larger uninsured mortgages become more available in the private sector.  

Revocable living trust: A trust created by a donor, grantor, or settlor during his or her lifetime in a separate document in which the grantor reserves the power to revoke (or amend) the trust. This type of trust is often for the grantor’s benefit and is used as an estate planning and management vehicle.

Robert Wood Johnson Long Term Care Private Insurance State Partnership Programs: Programs in Connecticut, New York, California, Indiana, and Iowa that established plans to protect assets from Medicaid “spend down” requirements if LTCI is purchased that conforms to the state plan. 

“Sandwich generation”: The generation of adults caring for children and elder parents simultaneously and therefore “sandwiched” between two generations.  

Skilled nursing and intermediate care: Physician-ordered care provided by a registered nurse or therapist usually on a visit basis unless 24-hour intensive care is required. Skilled care may include such tasks as: tubal or intravenous feedings, intravenous injections, oxygen therapy, bowel or bladder retraining, catheterization, application of dressings involving prescription, and dialysis. 

Skilled nursing facility: A facility that provides room, board, and 24-hour skilled nursing care. 

Special-use valuation: Pursuant to Section 2032A, special-use valuation provides that the “highest and best use” value may be reduced in the gross estate by up to an amount based on special-use valuation for real property used in a farming operation or a trade or business that meets certain requirements, and where certain pre-death qualifications are met and post-death commitments are made. 

Spending down: Depleting income and assets to meet eligibility requirements for Medicaid; also called impoverishment 

Springing power of attorney: The authority of the holder of the power is not effective at the execution of the power, but instead goes into effect at some later time, usually when the client becomes incapacitated or incompetent.  

Standby trust: A revocable trust that is to receive assets upon the incapacity of the grantor. Typically these trusts appoint a bank, family member, or other trustee to manage these assets and to pay bills that a prudent, reasonable, responsible person would. The assets usually are transferred to the trust by the holder of a power of attorney, often a family member. 

Supplemental needs trust: A trust established by a third party that is specifically intended to supplement rather than supplant government benefits and that restricts the trustee from spending income or assets in a manner that can reduce government benefits. Also may be self-settled in unusual circumstances. 

Supplementary security income: A federal program of cash assistance for the aged, blind, and disabled. It is a Social Security program. 

Tenancy by the entirety: The commonly used equivalent of joint tenancy with rights of survivorship but restricted in use to husband and wife. However, due to the marital relationship, there are some minor differences. 

Tenancy in common: The holding of property by two or more people so that each has an undivided interest that, upon death, passes to heirs or devisees and not to the survivor(s); to be distinguished from joint tenancy with rights of survivorship. 

Trustee: The holder of a legal title to property held for the use and benefit of another.  

Twisting: The inducement of a policy owner to drop or replace an existing policy due to misrepresentation or incomplete information on the part of the salesperson or insurance agent  

Viatication: A loan made to a terminally ill insured in which the lender secures the loan with the discounted net death benefit from the insured’s life insurance policy.  

Waiting period: The number of days a person with LTCI must receive nursing-home or home healthcare before LTCI benefits are paid. This is also referred to as a deductible or elimination period.  

Waiver of premiums: A provision forgiving payment of future premiums once benefits have been paid for a specific period of time. 

Will: A document in which a person makes a disposition of his property, to take effect after his death, after the will has been “proved” in court. It is revocable during one’s lifetime. 

Related info: www.HealthDictionarySeries.com 

Note: Feel free to send in your own related terms and definitions so that this section may be updated continually in modern Wiki-like fashion. 

Non-Resident Alien Physicians

Dual Citizenship

Staff Writers 

 

There may be a number of reasons why a foreign medical professional, especially a physician, may choose to remain a non-resident alien.

But, few realize that the U.S. income tax applies worldwide, and when a doctor becomes a U.S. dual citizen, the IRS is with them forever. 

Also, there is the $100,000 annual limitation on gifts to a non-citizen spouse. At his death, a doctor can’t leave his possessions to a non-citizen spouse since the U.S. government is concerned that the foreign survivor will take her inheritance to her home country.  

Accordingly, the estate is tax immediately after the first death. Separate savings accounts may mitigate this so that the dual citizen spouse can acquire assets personally, and have something to pass on to children.   

Otherwise, any assets that can’t be proven at least a one half contribution, even if jointly owned, will be taxed as if they solely belong to the American citizen spouse.   

Now, since the number of H-1B visas for healthcare workers can change dramatically by political fiat, is an increase in potential dual – or non-citizen – medical professionals likely in the years ahead?

The Non-Citizen Spouse

IRS Code Differences

Staff Writers  

Currently, the IRS offers an unlimited estate tax deduction (unlimited marital deduction) by which any spouse can receive an estate tax free, regardless of amount.  

However, the IRS Code has a much different view of a non-citizen spouse, limiting the marital deduction for a legal resident alien to only $100,000.  

Fortunately, this spouse is offered a safe harbor in the Qualified Domestic Trust.  The QDOT has the effect of narrowing the gap between a citizen and non-citizen spouse and is a valuable tool when draw up according to the IRS Code.  

Thus, sans a proper QDOT, the non-citizen spouse of a physician is subject to the same treatment as a non-spouse beneficiary.  

Now, is it fair that the rules are somewhat less favorable for a non-citizen spouse who is not a resident alien? 

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