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It is not uncommon for practicing physicians to have more than a dozen separate insurance policies to protect their medical practice and personal assets. Yet, most doctors understand very little about their policies.BOOK REVIR
Risk Management, Liability Insurance, and Asset Protection Strategies for Doctors and Advisors: Best Practices from Leading Consultants and Certified Medical Planners™explains to physicians and insurance professionals the background, theory, and practicalities of medical risk management, asset protection methods, and insurance planning.
The book presents information in a manner that is convenient and highly useful for busy medical practitioners. It discusses the medical records revolution and addresses concerns regarding cloud computing, data security, and technological threats.
The book covers modern health law and policy, including fraud and abuse, workplace-violence, Medicare compliance, HIPAA regulations, AR protection strategies with internal controls, P4P and value based care, insurance and reputation management, and how the ARA legislation is impacting physician practices. It also includes case models and examples that provide you with a real-world understanding of how to recognize and reduce personal and medical practice risks.
With time at a premium for all, and so much information packed into one well-organized resource, this book is a must-read for every physician and financial advisor that serves the health care sector. The book will help physicians make better decisions about the risks they face and will help financial advisors improve the value they provide to their clients who are doctors.
The decision to sell, buy or merge a medical practice, while often financially driven, and is inherently an emotional one for these impact investors who went into the profession largely because of a deep seated zeal to help others.
Still, beyond impact investing musings, there are other economic reasons for a practice valuation that include changes in ownership, determining insurance coverage for a practice buy-sell agreement or upon a physician-owner’s death, organic growth meter, establishing stock options, or bringing in a new partner; etc.
Practice appraisals are also used for legal reasons such as divorce, bankruptcy, breach of contract and minority shareholder complaints. In 2002, the Financial Accounting Standards Board (FASB) issued rules that required certain intangible assets to be valued, such as goodwill. This may be important for practices seeking start-up, service segmentation extensions, or operational funding. Some other reasons for a medical practice appraisal, and the considerations that go along with them, are discussed here.
Medical practice valuation may be required for estate planning purposes. For a decedent physician with a gross estate of more than current in-place tax limits, his or her assets must be reported at fair market value on an estate tax return. If lifetime gifts of a medial practice business interest are made, it is generally wise to obtain an appraisal and attach it to the gift tax return.
Note that when a “closely-held” level of value (in contrast to “freely traded,” “marketable,” or “publicly traded” level) is sought, the valuation consultant may need to make adjustments to the results. There are inherent risks relative to the liquidity of investments in closely held, non-public companies (e.g., medical group practice) that are not relevant to the investment in companies whose shares are publicly traded (freely-traded). Investors in closely-held companies do not have the ability to dispose of an invested interest quickly if the situation is called for, and this relative lack of liquidity of ownership in a closely held company is accompanied by risks and costs associated with the selling of an interest said company (i.e., locating a buyer, negotiation of terms, advisor/broker fees, risk of exposure to the market, etc.). Conversely, investors in the stock market are most often able to sell their interest in a publicly traded company within hours and receive cash proceeds in a few days. Accordingly, a discount may be applicable to the value of a closely held company due to the inherent illiquidity of the investment. Such a discount is commonly referred to as a “discount for lack of marketability.”
Discount for lack of marketability is typically discussed in three categories: (1) transactions involving restricted stock of publicly traded companies; (2) private transactions of companies prior to their initial public offering (IPO); and, (3) an analysis and comparison of the price to earnings (P/E) ratios of acquisitions of public and private companies respectively published in the “Mergerstat Review Study.”\
With a non-controlling interest, in which the holder cannot solely authorize and cannot solely prevent corporate actions (in contrast to a controlling interest), a “discount for lack of control,” (DLOC), may be appropriate. In contrast, a control premium may be applicable to a controlling interest. A control premium is an increase to the pro rata share of the value of the business that reflects the impact on value inherent in the management and financial power that can be exercised by the holders of a control interest of the business (usually the majority holders). Conversely, a discount for lack of control or minority discount is the reduction from the pro rata share of the value of the business as a whole that reflects the impact on value of the absence or diminution of control that can be exercised by the holders of a subject interest.
Several empirical studies have been done to attempt to quantify DLOC from its antithesis, control premiums. The studies include the Mergerstat Review, an annual series study of the premium paid by investors for controlling interest in publicly traded stock, and the Control Premium Study, a quarterly series study that compiles control premiums of publicly traded stocks by attempting to eliminate the possible distortion caused by speculation of a deal.
Buy-Sell Agreements
The ideal situation is for physician partners to put in place a buy-sell agreement when practice relationships are amicable. This establishes the terms for departure before they are required, and is akin to a prenuptial agreement in the marriage contract. Disagreements most often occur when a doctor leaves the group, often acrimoniously. Business operations of the practice decline, employee and partner morale suffers, feuding factions develop spilling over into the office, and the practice begins to implode creating a downward valuation spiral. And so, valuations should be done every 2-3 years, or as the economic circumstances of the practice change. Independence and credibility are provided, and emotional overtones are purged from the transaction.
Physician Partnership Disputes
Medical practice appraisals are often used in partnership disputes, such as breach-of-contract or departure issues. Obvious revenue declinations are not difficult to quantify. But, revenues may not immediately fall since certain Current Procedural Terminology [CPT®] code reimbursements may actually increase. Upon verification however, lost business may be camouflaged as the number of procedures performed, or number of patients decrease after partner departure.
Physicians getting divorced should get a practice appraisal, and either side may hire the appraiser, although occasionally the court will order an expert to provide a neutral valuation. Such valuations should be done in light of both court discovery rules and IRS requirements for closely held businesses. Generally, this requires the consideration of eight elements:
• Practice specialty and operating history
• Economic and healthcare industry condition
• Estimates of practice risks and future returns
• Book value and financial condition of the practice
• Practice future earning capacity
• Physician bonuses, dividends and distributions
• Intangible assets
• Comparable practice sales
Sometimes, the non-physician spouse may even desire a lifestyle analysis to evaluate the potential for under reported income, by a forensic accountant, or appraiser. A family law judge is often the final arbiter of different valuations, and because of varying state laws there may be 50 different nuances of what the practice is really worth.
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More on End-of-Life Political Decisions from a Different Perspective – Since 2009
By Dr. David Edward Marcinko; MBA, CMP™
[Publisher-in-Chief]
The controversial booklet Your Life, Your Choices begins by saying,
“There’s only one person who is truly qualified to tell health care providers how you feel about different kinds of health care issues—and that’s you. But, what if you get sic; or injured so severely that you can’t communicate with your doctors or family members? Have you thought about what kinds of medical care you would want? Do your loved ones and health care providers know your wishes?
Many people assume that close family members automatically know what they want. But, studies have shown that spouses guess wrong over half the time about what kinds of treatment their husbands or wives would want. You can help assure that your wishes will direct future health care.”
Contents
The booklet, initially produced by the VA Health System and now under revision, includes two areas of focus: 1] Planning for Future Medical Decisions, and 2] How to Prepare a Personalized Living Will.
Now, insofar as doctors, nurses and some other medical professionals are concerned – decisions of life, death or dismemberment are not an unusual or particularly contentious topic except for the lunatic fringes.
Yet, when taken in the context of HR-3200, they seem to be provoking wild outrage with talk of “killing grandma”, “government death squads”, etc all within the Obama Administration’s talk of healthcare reform. Still, this is not the point of my diatribe as I remain a neutral observer and pass no value judgment at this time.
What is the Point?
Just this! As a financial advisor for more than a decade, estate planning to reduce taxes, along with living wills and advanced directives are usual topics of discussion with clients. In fact, they are fairly boring and rote topics for estate planners, tax attorneys and accountants, too.
My wife and I have a living will, for example. And, although I am not sure that I could “pull her plug”; I did watch as she and her mother did so for my father-in-law [both wife and mother-in-law are Master-Degree prepared RNs]. So; why the impolite town-hall meetings and related controversy, now! Is it mere politics as usual, unusual, or is it something else?
Assessment
The onerous pages of this booklet seem to be page 21 and page 53. Take a look and decide for yourself.
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One of the challenges in financial planning is the strong taboo in our society against talking about money. Another powerful taboo is talking about death when someone has a serious illness.
When someone is diagnosed with cancer, for example, the focus is almost always on treatment and recovery. Rarely is there any discussion of what happens if the treatment doesn’t work. There seems to be an unspoken belief that if we don’t talk about it, it won’t happen.
For example, in a recent presentation to financial advisors at the Insiders Forum in Phoenix, she pointed out that many doctors shy away from talking about dying until the very end.
Given this strong reluctance to talk about both money and dying, how can you work with a financial advisor to deal with the financial and emotional issues that go along with a family member’s serious illness?
Here are some suggestions based on Dr. McClanahan’s talk:
Don’t expect someone facing a serious illness to give you an accurate prognosis of their disease, as they are often in denial. McClanahan suggests turning to “Dr. Google” for accurate information. Specifically, she recommends the National Institutes of Health (www.nih.gov), which has statistics on every disease imaginable.
Learn to interpret what doctors say. For example, when a cancer patient is told chemotherapy has a 25% chance of working, the average patient hears “working” as “being cured.” “Working” actually means there is a 25% chance of the tumor shrinking. Often the chances of being cured are far less than 25%, and the physical effects of chemotherapy can be devastating to one’s remaining quality of life. McClanahan says, “Most of what we do to people at the end of life is unnecessary torture.”
Find out early about options for palliative care. This is multidisciplinary care focused on treating the symptoms of treatment, relieving suffering, and improving the quality of life. Because of denial and unwillingness to talk about what happens if they don’t get better, many patients never get into palliative care or get into it way too late. Similarly, most patients wait too long to get into hospice care. The average time in hospice care, according to McClanahan, is just 19 days.
Share your money concerns with the advisor. McClanahan says that anxiety over having enough money to pay for their care and the resulting effect on the family finances are two of the top concerns patients have. Interestingly, most financial advisors focus instead on whether advance directives, estate documents, and funeral plans are in place.
Call the advisor’s attention to signs that a person’s illness is advancing. These can include a shortened attention span, not remembering details of conversations, word-finding difficulties, inability to multitask, mental fuzziness, and depression. Ask advisors to deal with these symptoms: meet early in the day, address the most important issues first, keep meetings short, include family members as appropriate, and put action items in writing.
Realize that sharing your emotions is part of financial planning. Serious illness affects people in many different ways, but the underlying concerns are always emotional. Discuss those concerns with the advisor, and work together to create a comprehensive plan addressing both death and recovery. Remember that, as McClanahan put it, “preparation for a negative outcome does not reduce the risk of cure.”
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The role of the financial planner
The role of a financial planner is to help clients prepare for the future, including the end of life. When that future becomes “now,” don’t hesitate to ask for the planner’s emotional support as well as financial advice.
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.
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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You’ve got a sense of your ideal retirement age. And you’ve probably made certain plans based on that timeline. But what if you’re forced to retire sooner than you expect? Aging baby-boomers, corporate medicine, the medical practice great resignation and/or the pandemic, etc?
Early retirement is nothing new, but it’s clear how much the COVID-19 pandemic has affected an aging workforce. Whether due to downsizing, objections to vaccine mandates, concerns about exposure risks, other health issues, or the desire for more leisure time, the retired general population grew by 3.5 million over the past two years—compared to an annual average of 1 million between 2008 and 2019—according to the Pew Research Center.1 At the same time, a survey conducted by the National Institute on Retirement Security revealed that more than half of Americans are concerned that the COVID-19 pandemic has impacted their ability to achieve a secure retirement.2
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There’s no need to panic, but those numbers make one thing clear, says Rob Williams, managing director of financial planning, retirement income, and wealth management for the Schwab Center for Financial Research. Flexible and personalized financial planning that addresses how you’d cope if you had to retire early can help you make the best use of all your resources.
So – Here are six steps to follow. We’ll use as an example a person who’s seeing if they could retire five years early, but the steps remain the same regardless of your individual time frame.
Step 1: Think strategically about pension and Social Security benefits
For most retirees, Social Security and (to a lesser degree) pensions are the two primary sources of regular income in retirement. You usually can collect these payments early—at age 62 for Social Security and sometimes as early as age 55 with a pension. However, taking benefits early will mean that you get smaller monthly benefits for the rest of your life. That can matter to your bottom line, even if you expect Social Security to be merely the icing on your retirement cake.
On the Social Security website, you can find a projection of what your benefits would be if you were pushed to claim them several years early. But if you’re part of a two-income couple, you may want to make an appointment at a Social Security office or with a financial professional to weigh the potential options.
For example, when you die, your spouse is eligible to receive your monthly benefit if it’s higher than his or her own. But if you claim your benefits early, thus receiving a reduced amount, you’re likewise limiting your spouse’s potential survivor benefit.
If you have a pension, your employer’s pension administrator can help estimate your monthly pension payments at various ages. Once you have these estimates, you’ll have a good idea of how much monthly income you can count on at any given point in time.
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Step 2: Pressure-test your 401(k)
In addition to weighing different strategies to maximize your Social Security and/or pension, evaluate how much income you could potentially derive from your personal retirement savings—and there’s a silver lining here if you’re forced to retire early.
Rule of 55
Let’s say you leave your job at any time during or after the calendar year you turn 55 (or age 50 if you’re a public safety employee with a government defined-benefit plan). Under a little-known separation-of-service provision, often referred to as the “rule of 55,” you may be able take distributions (though some plans may allow only one lump-sum withdrawal) from your 401(k), 403(b), or other qualified retirement plan free of the usual 10% early-withdrawal penalties. However, be aware that you’ll still owe ordinary income taxes on the amount distributed.
This exception applies only to the plan (including any consolidated accounts) that you were contributing to when you separated from service. It does not extend to IRAs.
4% rule
There’s also a simple rule of thumb suggesting that if you spend 4% or less of your savings in your first year of retirement and then adjust for inflation each year following, your savings are likely to last for at least 30 years—given that you make no other changes to your withdrawals, such as a lump sum withdrawal for a one-time expense or a slight reduction in withdrawals during a down market.
To see how much monthly income you could count on if you retired as expected in five years, multiply your current savings by 4% and divide by 12. For example, $1 million x .04 = $40,000. Divide that by 12 to get $3,333 per month in year one of retirement. (Again, you could increase that amount with inflation each year thereafter.) Then do the same calculation based on your current savings to see how much you’d have to live on if you retired today. Keep in mind that your money will have to last five years longer in this instance.
Knowing the monthly amount your current savings can generate will give you a clearer sense of whether you’ll have a shortfall—and how large or small it might be. Use our retirement savings calculator to test different saving amounts and time frames.
Step 3: Don’t forget about health insurance, doctor!
Nobody wants to spend down a big chunk of their retirement savings on unanticipated healthcare costs in the years between early retirement and Medicare eligibility at age 65. If you lose your employer-sponsored health insurance, you’ll want to find some coverage until you can apply for Medicare.
Your options may include continuing employer-sponsored coverage through COBRA, insurance enrollment through the Health Insurance Marketplace at HealthCare.gov, or joining your spouse’s health insurance plan. You may also find discounted coverage through organizations you belong to—for example, the AARP.
Step 4: Create a post-retirement budget
To make sure your retirement savings will cover your expenses, add up the monthly income you could get from pensions, Social Security, and your savings. Then, compare the total to your anticipated monthly expenses (including income taxes) if you were to retire five years early and are eligible, and choose to file, for Social Security and pension benefits earlier.
Take into account various life events and expenditures you may encounter. You may not pay off your mortgage by the date you’d planned. Your spouse might still be working (which can add income but also prolong certain expenses). Or your children might not be out of college yet.
You’re probably fine if you anticipate that your monthly expenses will be lower than your income. But if you think your expenses would be higher than your early-retirement income, some suggest that you take one or more of these measures:
Retire later; practice longer.
Save more now to fill some of the potential gap.
Trim your budget so there’s less of a gap down the road.
Consider options for medical consulting or part-time work—and begin to explore some of those opportunities now.
To the last point, finding a physician job later in life can be challenging, but certain employment agencies specialize in this area. If you can find work you like that covers a portion of your expenses, you’ll have the option of delaying Social Security and your company pension to get higher payments later—and you can avoid dipping into your retirement savings prematurely.
When you retire early, you have to walk a fine line with your portfolio’s asset allocation—investing aggressively enough that your money has the potential to grow over a long retirement, but also conservatively enough to minimize the chance of big losses, particularly at the outset.
“Risk management is especially important during the first few years of retirement or if you retire early,” Rob notes, because it can be difficult to bounce back from a loss when you’re drawing down income from your portfolio and reducing the overall number of shares you own.
To strike a balance between growth and security, start by making sure you have enough money stashed in relatively liquid, relatively stable investments—such as money market accounts, CDs, or high-quality short-term bonds—to cover at least a year or two of living expenses. Divide the rest of your portfolio among stocks, bonds, and other fixed-income investments. And don’t hesitate to seek professional help to arrive at the right mix.
Many people are unaccustomed to thinking about their expenses because they simply spend what they make when working, Rob says. But one of the most valuable decisions you can make about your life in retirement is to reevaluate where your money is going now.
This serves two aims. First, it’s a reality check on the spending plan you’ve envisioned for retirement, which may be idealized (e.g., “I’ll do all the home maintenance and repairs!”). Second, it enables you to adjust your spending habits ahead of schedule—whichever schedule you end up following. This gives you more control and potentially more income.
Step 6: Reevaluate your current spending
For example, if you’re not averse to downsizing, moving to a less expensive home could reduce your monthly mortgage, property tax, and insurance payments while freeing up equity that could also be invested to provide additional monthly income.
“When you are saving for retirement, time is on your side”. You lose that advantage when you’re forced to retire early, but having a backup plan that anticipates the possibility of an early retirement can make the unknowns you face a lot less daunting.
Digital Messages for Loved Ones From Beyond the Grave
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No one wants to die. Even people who want to go to heaven don’t want to die to get there.
And yet death is the destination we all share. No one has ever escaped it. And that is as it should be, because death is very likely the single best invention of life.
It is life’s change agent. It clears out the old to make way for the new. Right now the new is you, but someday not too long from now, you will gradually become the old and be cleared away.
One important component of estate planning is a document, usually called a medical directive, which can include a living will, that sets out your wishes for end-of-life care and a health care power of attorney that designates someone to make medical decisions if you are unable to do so. A medical directive addresses important issues that are inevitable, but that most of us don’t want to think about or talk about. Consequently, many people leave their family members and medical providers with no guidance.
If you have not executed a medical directive, I strongly recommend doing so. If you do have a living will, I suggest you review your document periodically to be sure it still provides the best options for carrying out your wishes.
Example:
Recently I’ve encountered two situations where medical directives that had been perfectly valid and appropriate at the time they were executed had become potentially useless. In both cases, a family member designated to make end-of-life decisions had subsequently developed dementia that affected their competency to make those decisions.
This possibility is one reason why, if your medical directive designates your spouse, it’s wise to name an alternate as well. Your spouse, aging along with you, may not be the most capable person to make hard decisions when the time comes.
It’s also a good idea to communicate your specific wishes to both your primary and alternate designees. Discuss with them, as well, whether they believe they will actually be able to carry out your wishes. Unfortunately, I have seen cases where family members, with the most loving of intentions, were so hesitant to make decisions that their inaction violated their loved ones’ last wishes.
These conversations are not easy. Yet they are essential. One of my clients recently was faced with the possibility of making end-of-life decisions for her father. Several years earlier, he had executed a medical power of attorney and living will document naming her as his designated agent. At that time, the two of them had talked about his wishes, so she knew the choices he would want her to make.
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For now, my client was spared the necessity of making these difficult decisions because her father recovered. But, faced with the reality of “someday” contingencies becoming “right now” hard choices, she felt capable of doing what had to be done. She told me that what gave her the strength she needed was not the responsibility of being designated in the living will document. It was the conversations she and her father had had, both at the time he signed the document and during his recent illness.
“I made him a solemn promise that I would make the choices he needed and wanted me to make,” she said. “It felt like a vow that I couldn’t ever go back on.”
It may not be especially difficult for a family member to agree to become the designated representative in a medical directive. If the agent named in a healthcare power of attorney is in good health, the need to make hard decisions is somewhere in the future and can feel theoretical.
But at the time of a medical emergency or a draining final illness, a family member who is frightened, grieving, and exhausted may find actually making those decisions to be the hardest thing they’ve ever had to do.
Assessment
Giving your family members the clarity and direction to make end-of-life decisions for you requires more than putting their name into a document. It requires choosing someone who is willing to carry out your wishes, communicating your wishes to them through conversations, and checking periodically to make sure they are still willing and able to carry out the solemn promise that a living will entails.
Conclusion
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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.
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As inevitable as death is, given the way we avoid planning for it we seem to believe we will evade it if we don’t talk about it. Two-thirds of Americans don’t have a will or a health care advanced directive.
Financial planners like myself often preach that everyone must have both. However, there are exceptions to most rules, as well as times that the best preparation in the world goes awry.
No will
Here are some scenarios where you may not need a will.
First, you have no minor children and you don’t own anything of value or that you want to bequeath to someone.
Second, you do have assets, but all of them are transferable without a will. These include retirement accounts, annuities, assets like homes or bank accounts that are owned jointly, and assets like brokerage accounts or real estate that will Transfer on Death (TOD) to a named beneficiary.
Health care advanced directives
What about a health care advanced directive (HCAD)? This is any document that gives instructions or appoints someone to give direction about your health care. Living wills and Health Care Durable Powers of Attorney are two of the most popular HCADs.
Many people think you must use a state-provided form for a HCAD to be effective. According to the Commission of Law & Aging, most states do not require a form but do require your HCAD to be properly signed and witnessed. It’s best to have your directive drawn by an attorney, as most forms are too general or include generic options that may not apply to your needs or wishes.
Another myth is the notion that HCADs are legally binding on health care providers and their institutions. They are not. An advanced directive just gives healthcare providers immunity if they follow your instructions. The healthcare providers can refuse to comply with your directive. This is especially true in an emergency situation where the attending EMS must attempt to resuscitate you and get you to a hospital. In some states, if you and your doctor have signed a special form and you wear a special identification bracelet the attending EMS may choose not to resuscitate you.
Also, just giving your directive to your doctor is no guarantee that the directive will show up in your medical records. You, or your proxy, must check with each institution you visit or are transferred to and be sure it’s on file.
Some people fear that naming a health care agent means that you give up your right to make health care decisions. That is not true. A person retains the right to make all their own healthcare decisions unless they become incompetent.
Many people don’t do directives because they think they must understand all the choices and be crystal clear about their wishes. This is not necessarily the case. If nothing else, a directive appoints a person you trust to make decisions. And as with any legal document, you may always change your directive when you wish.
If all your relatives who can legally make healthcare decisions for you agree, you may not need an HCAD to stop treatment near the end of life. Still, a living will can make the decision less difficult. It becomes very important in the event your closest relatives disagree on what is best for you.
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Not today – DEATH!
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Like any good estate planning, the best strategy for both wills and HCADs is to focus on what you would like to happen today, rather than anticipating events and circumstances into the future. Then, as well as communicating your wishes verbally, put your thoughts in writing and provide copies to your doctors and loved ones.
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.
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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It’s not uncommon for people to assume that having a will in place is enough to ensure their assets will pass to their named beneficiaries in the manner they desire. However, certain financial assets, including 401(k) and IRA retirement accounts, as well as life insurance policies bypass a will or trust.
One benefit is that when the account owner dies, the assets go directly to the beneficiaries named on the accounts, bypassing the probate process. However, because these beneficiary designations override your will, they need to be carefully coordinated with your overall estate plan.
Some of the most common mistakes people make in regard to beneficiary designations include:
Forgetting to update named beneficiaries in the event of divorce. If your previous spouse is still listed as the beneficiary on your retirement account or life insurance policy at the time of your death, the assets will go to your ex, regardless of whether he or she is a named beneficiary in your will.
Naming minor children as beneficiaries or contingent beneficiaries. In the event you and your spouse predecease your children, they could directly inherit large sums of money from retirement accounts or life insurance policies—assets that are not governed by stipulations you may have included in your will or trust documents. Avoid leaving assets to minors outright. If you do, a court will appoint someone to look after the funds which can be a time consuming and expensive process.
Using beneficiary forms that don’t allow your assets to pass “per stirpes,” or equally among the branches of a family. For example, let’s say you name your three adult children as the beneficiaries of your IRA. If one of them predeceases you, you might want that child’s share to go to his or her children. However, many standard beneficiary forms don’t include per stirpes provisions and only allow per capita provisions where your two remaining adult children would share the assets. In certain cases, you can ask to include non-standard language to the beneficiary form, but make sure the financial services company actually has the capabilities in place to manage per stirpes distributions first.
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Assessment
An estate planning attorney or financial advisor with experience in estate and legacy planning can help ensure your beneficiary designations are up-to-date and aligned with your wishes and preferences.
Conclusion
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Supposedly, the most frightening words one spouse can hear from the other are, “Honey, we need to talk.” Even more frightening, however, is, “Honey, we need to talk about estate planning.”
What can you do if you want to get serious about estate planning, but your spouse doesn’t?
Here are a few suggestions:
Consider ways to persuade a reluctant spouse to participate
First, give up nagging. In my years of financial planning, I’ve seen how ineffective it is from either an advisor or a spouse.
Instead, it might be worthwhile to do some research and show your spouse some of the specific consequences of not planning. Depending on the complexity of your circumstances, you may find it worthwhile to consult an attorney, accountant, or financial advisor. You can also find a great deal of helpful information, such as state probate and intestacy laws, online.
If you have no wills, find out how your state laws distribute assets when someone dies without a will. Show your spouse how that distribution would affect your family. In many cases, intestacy laws are still designed around a traditional one-marriage-with-children family structure. They may fail to provide for members of families that don’t fit that mold—for example, by disregarding stepchildren and step grandchildren.
If you have wills but made them years ago, take a close look at their provisions. Show your spouse—with numbers, if you can—exactly who would benefit and who would not. Your spouse may be persuaded to take action if he or she sees the specific ways that yesterday’s wills don’t provide for today’s family. Even if this accomplishes nothing beyond convincing your spouse to destroy an outdated will, it may be worthwhile. An outdated will, in some cases, can be worse than none at all.
It’s quite likely that neither of these approaches will succeed. This leaves you with the next-best option.
Do what you can on your own
With your own separate property, you can do any estate planning you want, including executing a will and setting up a living trust. I would also strongly encourage you to execute powers of attorney for financial and health decisions.
However, you might be surprised at the limits on estate planning for assets you consider yours. One important provision is that married people cannot name anyone except each other as beneficiaries on retirement plans without the spouse’s permission. Suppose, for example, you would like to name your children from a previous marriage as beneficiaries on a retirement account as a way of providing fairly for them if your spouse died intestate. You would need your spouse’s consent to do so.
Also, a will executed by one spouse does not affect assets held jointly or in trust, annuities, retirement plans, or individually held bank or brokerage accounts that have a TOD (transfer on death) provision.
Assuming you cannot persuade your spouse to participate in estate planning, and assuming you have done whatever individual planning you can, there’s one more step you can take.
Educate yourself.
Do your best to create and maintain a complete inventory of assets you and your spouse hold jointly, as well as your separate retirement accounts, insurance policies, and other individual assets. Include account locations, approximate balances, and access information. Having this information will be invaluable if you end up as the administrator of your spouse’s estate.
Ironically, the person who benefits most from your separate estate planning may be your non-planning spouse. Yet doing whatever you can-will also help you be prepared, just in case you need to deal with the consequences of your spouse’s lack of planning.
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Assessment
Some basic; but important thoughts.
Conclusion
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It’s not easy, but the medical treatments you would want near the end of life need to be discussed with others. If you never bring up the topic and you were unexpectedly incapacitated and unable to speak for yourself, your medical wishes would never be known.
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Important Topic
Despite the topic’s importance, only 27% of Americans report having talked with their families about end-of-life care. The best way to make your medical wishes known is to create an advance directive and share it with your family and your doctor.
An advance directive is actually two legal documents that enable you to plan and communicate your end-of-life wishes. When you create your advance directive, you are being proactive about your medical care and sparing your loved ones from having to make difficult medical decisions in a time of crisis.
Don’t wait for a crisis. Create your advance directive, share copies with your loved ones and doctor and keep your copy in an accessible location others can find.
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Channel Surfing
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Would they know what you want if you couldn’t talk? Do you know what you would want near the end of life? Find your own answers. Then open the conversation with the people you love. You are giving everyone a priceless gift.
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Physicians have more complex liability challenges to overcome in their lifetime, and less time to do it, than other professionals. Combined with a focus on practicing their discipline, many sadly fail to plan for their own future. They need trustworthy advice on how to effectively protect themselves, families and practice, from the many overt and covert risks that could potentially disrupt years of hard work.
Fortunately, this advice is contained within RISK MANAGEMENT, LIABILITY INSURANCE, AND ASSET PROTECTION STRATEGIES FOR DOCTORS AND ADVISORS [BEST PRACTICES FROM LEADING CONSULTANTS AND CERTIFIED MEDICAL PLANNERS™]. Written by Dr. David Edward Marcinko, Nurse Hope Rachel Hetico and their team of risk managers, accountants, insurance agents, attorneys and physicians, it is uniquely positioned as an integration of applied, academic and peer-reviewed strategies and research, with case studies, from top consultants and Certified Medical Planners™. It contains the latest principles of risk management and asset protection strategies for the specific challenges of modern physicians. My belief is that any doctor who reads and applies even just a portion of this collective wisdom will be fiscally rewarded. The Institute of Medical Business Advisors has produced another outstanding reference for physicians that provide peace of mind in this unique marketplace! In my opinion, it is a mandatory read for all medical professionals.
Estate planning can be one of the most emotionally difficult aspects of financial planning. One often-overlooked aspect of estate planning is talking with your heirs about your legacy plans.
While most of us probably accept in theory that these conversations are important, actually carrying them out can be terribly difficult.
Suggestions
Here are a few suggestions that may help.
Communicate your values about money in a larger context with both words and behavior. Our estate plans often reflect lifelong values such as a commitment to charitable giving or a wish to provide first for our families. If children are familiar with your values, chances are they will have a good idea of what to expect from your estate.
Evaluate your children’s money skills. Just because kids grow up in the same family doesn’t mean they will have the same knowledge and attitudes about money. Especially if children will inherit significant amounts, conversations about estate planning can become part of larger conversations designed to help teach them how to manage and become comfortable with their legacies.
If your estate plan does not treat children “equally,” for whatever reasons, it’s best to share that information well in advance and to communicate it privately to each child. There are many reasons why treating children differently in an estate plan can be the fairest thing to do, but that doesn’t mean it’s wise to let them learn the specifics when a will is read. If parents and individual children can discuss these provisions and the reasons for them ahead of time, there is less likelihood of conflict between siblings after the parents are gone.
Don’t allow children to assume they are inheriting more than is the case. If most of your estate will go to charity, don’t keep it a secret. Not telling the kids may avoid conflict now, but it will sow seeds for deeper conflict and resentment after your death.
Prepare children for large or unexpected inheritances. I’ve worked with heirs who were stunned to receive legacies much larger than their parents’ lifestyles had led them to expect. If you have a substantial net worth that’s “below the radar,” perhaps in the form of land or business ownership, your children may be totally unprepared for what they will inherit. Find ways to help them learn more about both the financial and the emotional aspects of managing inherited wealth. You might also consider options, such as giving more to the children during their lifetime, to help reduce the impact of a sudden inheritance.
Acknowledge your own fears. Although it is seldom expressed, perhaps the strongest reason for not discussing estate plans with family members is fear. It’s natural for parents to be afraid that children will be angry or disappointed, will build too much on their expectations for an inheritance, or will be resentful of other heirs.
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Communications
Talking to family members about estate planning and legacies can be difficult and even painful. Those discussions, however, will almost certainly be less painful in the long run than the stories children may make up about your decisions after you are gone.
Role of Planners and Coaches
Financial planners and financial coaches can play an important role that goes beyond providing financial advice. They may also be helpful in facilitating the family conversations. In especially difficult circumstances, the help of a financial therapist can also be invaluable.
Assessment
Using the available resources to help you discuss your wishes with family members can be an important aspect of estate planning. Having those difficult conversations is one way to enhance the legacy you want to pass on to your family.
Conclusion
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A couple years ago you posted an earlier version of the attached Asset Protection Outline. I updated it to include quite a bit more discussion of different protection levels for various kinds of accounts, and included more discussion of states other than Ohio, including a 50 state chart with IRA/403b protections.
So please delete the old one and replace with this one which contains more topics, including some substantial discussion of issues regarding current class action litigation jeopardizing asset protection for Schwab and Merrill Lynch IRAs.
Regards Ed
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The Importance of Asset Protection as Part of Financial and Estate Planning for Doctor’s and Medical Professionals
Asset Protection has become a ubiquitous buzz-word in the legal and financial community. It often means different things to different people. It may encompass anything from buying umbrella liability insurance to funding offshore trusts.
What is most likely to wipe out a client’s entire net worth? An investment scam, investment losses, a lawsuit, divorce or long-term health care expenses? “Asset Protection” may be construed to address all of these scenarios, but this outline will cover risk from non-spousal creditors as opposed to risk from bad investments, divorce, medical bills or excessive spending. Prudent business practice and limited liability entity use (LP, LLP, LLC, Corporation, etc) is the first line of defense against such risks. Similarly, good liability insurance and umbrella insurance coverage is paramount.
However, there is a palpable fear among many of frivolous lawsuits and rogue juries [especially among physicians and medical professionals]. Damages may exceed coverage limits. Moreover, insurance policies often have large gaps in coverage (e.g. intentional torts, “gross” negligence, asbestos or mold claims, sexual harassment).
As many doctors in Ohio know all too well, malpractice insurance companies can fail, too. Just as we advise clients regarding legal ways to legitimately avoid income and estate taxes or qualify for benefits, so we advise how to protect family assets from creditors. Ask your clients, “What level of asset protection do you want for yourself?
For the inheritance you leave to your family?” Do any clients answer “none” or “low”? Trusts that are mere beneficiary designation form or POD/TOD substitutes are going out of style in favor of “beneficiary-controlled trusts”, “inheritance trusts” and the like.
Table of Contents
While effort is made to ensure the material is accurate, this material is not intended as legal advice and no one may rely on it as such. Sections II(d), II(i), V, VI and XI were updated Feb 2012, but much of the material and citations have not been verified since 2010. Permission to reprint and share with fellow bar members is granted, but please contact author for updates if more than a year old.
T.O.C. [Page Number]
I. Importance of Asset Protection 2
II. State and Federal Protections Outside ERISA or Bankruptcy 4
a. Non-ERISA Qualified Plans: SEP, SIMPLE IRAs 5
b. Traditional and Roth IRAs, “Deemed IRAs” 7
c. Life Insurance 9
d. Long-Term Care, Accident/Disability Insurance 13
e. Non-Qualified Annuities 13
f. Education IRAs (now Coverdell ESAs) 16
g. 529 Plans 17
h. Miscellaneous State and Federal Benefits 18
i. HSAs, MSAs, FSAs, HRAs 18
III. Federal ERISA Protection Outside Bankruptcy 20
IV. Federal Bankruptcy Scheme of Creditor Protection 26
V. Non-Qualified Deferred Comp – Defying Easy Categorization 30
VI. Breaking the Plan – How Owners Can Lose Protection 32
(incl Prohibited Transactions and Schwab/Merrill Lynch IRA problems) 35
VII. Post-Mortem – Protections for a Decedent’s Estate 51
VIII. Post-Mortem – State Law Protections for Beneficiaries 52
IX. Post-Mortem – Bankruptcy Protections for Beneficiaries 54
X. Dangers and Advantages of Inheriting Through Trusts 56
XI. Piercing UTMA/UGMA and Other Third Party Created Trusts 59
XII. Exceptions for Spouses, Ex-Spouses and Dependents 61
XIII. Exceptions when the Federal Government (IRS) is Creditor 62
XIV. Fraudulent Transfer (UFTA) and Other Exceptions 68
XV. Disclaimer Issues – Why Ohio is Unique 69
XVI. Medicaid/Government Benefit Issues 71
XVII. Liability for Advisors 72
XVIII. Conflicts of Law – Multistate Issues 73
XIX. Conclusions 75
Appendices
A. Ohio exemptions – R.C. §2329.66 (excerpt), §3911.10, §3923.19 78
B. Bankruptcy exemptions – 11 U.S.C. § 522 excerpts 80
C. Florida IRA exemption – Fla Stat. § 222.21 (note-may be outdated) 85
D. Sal LaMendola’s Inherited IRA Win/Loss Case Chart 86
E. Multistate Statutory Debtor Exemption Chart 88
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Assessment
This outline will discuss the sometimes substantial difference in legal treatment and protection for various investment vehicles and retirement accounts, with some further discussion of important issues to consider when trusts receive such assets.
Beware of general observations like: “retirement plans, insurance, IRAs and annuities are protected assets” – that may often be true, but Murphy’s law will make your client the exception to the general rules. The better part of this outline is pointing out those exceptions.
Mr. Edwin P. Morrow III, a friend of the Medical Executive-Post, is a Wealth Specialist and Manager, Wealth Strategies Communications Ohio State Bar Association Certified Specialist, Estate Planning, Probate and Trust Law Key Private Bank Wealth Advisory Services. 10 W. Second St., 27th Floor Dayton, OH 45402. He is an ME-P “thought leader”.
Constructive criticism or other comments welcome.
Conclusion
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Many doctors are aware that when the owner of a taxable asset passes away, the party that inherits that asset does so at a stepped-up cost basis.
For example, suppose a husband owns a stock in a taxable investment account that he purchased for $100,000 but is now worth $150,000. If the husband sells the stock, there will be taxes due on the $50,000 of growth, or the difference between the current value and the cost basis.
However, if the husband passes away and a wife inherits the stock, the wife’s cost basis gets increased to the full $150,000, the value of the account on the date the husband passed away. This enables the wife to sell the stock and keep the full $150,000 of value without paying taxes.
Jointly Owned with Rights of Survivorship
However, what happens to assets that are owned jointly with a right of survivorship when one spouse passes away? Did you know in this scenario, it is possible for assets to receive a ½ step-up in basis? The formula looks like this:
(Date-of-death fair market value + Old basis) / 2 = New Basis
In a practical example, suppose John contributes $10,000 to a joint account with a right of survivorship and Jane contributed $5,000 to the same account. When John passes, the account is valued at $20,000. This will cause Jane to get a step-up in basis to $17,500 on the taxable account.
($20,000 + $15,000) / 2 = $17,500
Jane receives a ½ step-up in basis on each position within the investment account. She is unable to claim a full-step up on one stock within the account and no step-up on other assets.
Unique to Spouse
Notice that even though the spouse’s contributed different amounts to the account, they each share a full 50% share of the property for inclusion in their estates. However, this is unique to spouses with right of survivorship and the issue is more complex if the parties involved are not married.
Assessment
To be clear, this step-up only occurs on taxable assets like physical property or taxable investment accounts. A step-up does not occur on tax-deferred investments like IRAs or 401(k)s.
Conclusion
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The heart of estate planning, for many of us, comes down to one issue: taking care of family. We do our best to make decisions that we hope will be right for surviving spouses and children.
Such decisions are especially challenging for parents of children with special needs. The question of “Who will take care of this child after we’re gone?” can be heart-wrenching. There are financial planners who specialize in this area, and the best option for many families might be to ask a generalist planner like me for a referral to one of them.
The following suggestions, then, are intended as starting points or a very general framework on which to build.
The Framework
A fundamental tool in providing for a special-needs child is a trust. My suggestion is to have this trust handled by a trust company that does not manage money, rather than a bank. It will charge a flat fee for its service, typically in the range of $3,500 to $10,000, and the trust need not be in the millions of dollars. The parents can empower the trust company to hire an appropriate investment advisor to manage the money. I suggest the trust require using an advisor who is a fiduciary to the trust and is compensated by fees rather than commissions. This, along with the trustee looking over the advisor’s shoulder, provides a good system of checks and balances.
Then, the parents can appoint an advocate for the beneficiary who serves as a co-trustee. This person does not manage the money, but is the trustee’s eyes and ears to make sure the trust is meeting the beneficiary’s specific needs. When the advocate can no longer serve, the corporate trustee can appoint a new advocate.
Example:
Advocates might be family members or representatives from an agency that provides care to the beneficiary. In Rapid City, for example, a nonprofit organization called Black Hills Works serves people with a variety of special needs. Many of its clients receive services throughout their lifetimes, and some of them are supported by trusts. An agency like this will not serve as a trustee for clients’ funds, which would be a conflict of interest, but it can serve as an advocate for a client who is the beneficiary of a trust.
Separation of Responsibilities
The basic approach I’m suggesting is to separate the responsibilities of caring for a special-needs child among several professionals, family members, or friends, according to their competencies and the child’s needs. A corporate trustee, not an individual, coordinates their functions. This goes a long way toward assuring consistent and coordinated support throughout the beneficiary’s lifetime.
Estate Planning
I also suggest not thinking of this approach only in terms of estate planning, but also to provide for a child as the parents age. As they become unable to provide care or manage funds themselves, they can turn responsibilities over to the corporate trustee, advisor, and advocate.
Making sure a handicapped child is taken care of may take all the parents’ assets, which could raise the question of fairness to other children. While the issue of what is fair depends on each family’s situation, my observation is that it isn’t necessarily a problem. Many siblings, rather than feeling deprived, are pleased to know the special-needs child is provided for. As with other estate planning concerns, clear communication about the parents’ intentions is crucial.
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Assessment
My final suggestion regarding a trust is to make sure you design it to allow the beneficiary as much flexibility and participation in decisions as is appropriate for his or her abilities. Ideally, the trust will not limit the beneficiary’s independence, but will support it.
Conclusion
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In estate planning, “equal” isn’t necessarily the same as “fair”. I rarely see an estate plan that does not treat children equally. When I do see inequality, it’s usually because a parent is estranged from one child and leaves him or her nothing. So, “equal” isn’t necessarily “fair”.
Some call this the “placebo of estate planning equality”.
Psychologists
Many experts on the psychology of estate planning recommend that parents divide their estates equally among children. The main reason is to help enhance sibling relationships after the parents’ deaths. The goal is to eliminate the potential for hurt feelings and perceived injustice if parents favor one sibling over another financially.
Estate Division
Dividing an estate into equal shares for each child might seem to be the obvious way to treat children fairly. However, that usually only works if you’ve treated them equally during your lifetime. If you have given more to one child during life, it’s usually smart to level the playing field at death.
The Financial Samurai
I was reminded of this principle late last year in a post by a blogger who goes by the name Financial Samurai, who tells this story:
He perceived that his parents couldn’t afford to send him to a private college. To help them financially, he chose to go to a public university. His younger sister chose a private university costing eight times as much. After graduating, he worked hard to save enough to repay his parents. When he offered them the money, ten years after graduation, he was shocked when they declined it. Only then did he learn they had saved equal amounts for his and his sister’s educations. When he chose the less expensive school, they transferred what they saved on his tuition to help pay for his sister’s more expensive private education.
While he tries his best in the balance of the article to take the high road, assuring readers this injustice really doesn’t bother him, it’s clear that it does, a lot.
“No-Talk” Rules
The amazing thing about this story is that this family never discussed the financial aspects of college. The parents never told their son they were saving for his college education or communicated their intent to pay for it. He never asked, assuming that paying for college was his responsibility. The unspoken “no-talk” rule around money that so many families follow was rigidly in place.
College funding is far from the only way parents treat children differently. Another common one is bailing out one child who has financial struggles, either self-inflicted or caused by outside circumstances. Parents may also lend or give one child some money to start a business. Or they may feel they owe more to a child who has been the one to take care of them in old age.
Many of these inequalities can be compensated for in estate planning. One strategy is to subtract any excess paid to one child from his or her portion of the inheritance. It’s important here to provide for inflation, such as adjusting the amount paid to the child upward by the cumulative increase in the Consumer Price Index (CPI) from the date of the payment to the date of death.
[The “Placebo” of Equality]
Assessment
If parents feel it’s fair to leave more to a child who has cared for them, it’s best to establish that amount carefully, based both on tangible factors like the market value of the care and on intangibles like the relationships among the siblings.
So, no matter what adjustments you make in your estate plan to equalize what children may have received during your lifetime, it’s crucial to talk about those adjustments. Clear communication about what is “fair” goes a long way to maintain strong sibling relationships long beyond the parents’ lives.
Conclusion
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An ethical will is a document designed to pass ethical values from one generation to the next.
It was first postulated in 1998 by Barry K. Baines MD in his EthicalWill Resource Kit.
He then founded the www.EthicalWill.com website, now known as www.CelebrationsofLife.net His hospice care experience provided the impetus for developing resources to help people write and preserve their legacy of values at any stage of life [personal communication].
By 2005, Andrew Weil MD promoted ethic wills as a “‘gift of spiritual health”’ to leave family members. The goal is to link a person to both their family and cultural history, clarify ethical and spiritual values, and communicate a legacy to future generations.
Today, ethical wills are written by both men and women of every age, ethnicity, faith tradition, economic circumstance, and educational level. For FAs, an ethical will can open the door to start a bigger conversation about estate planning. Susan Turnbull, a principal with Personal Legacy Advisors in New Hampshire is author of The Wealth of Your Life: A Step By Step Guide for Creating Your Ethical Will, a document that some financial advisors offer their clients as a template for creating them.
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Assessment
In recent years, the practice has been increasingly used by the general lay public and medical professionals. In fact, the American Bar Association [ABA] described it as an aid to estate planning in health care and hospice and as a spiritual healing tool.
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In recent ME-P columns I reported on a survey done by the financial services company HBSC that found only 59% of US parents intend to leave their children an inheritance, the lowest of the 15 nations in the survey. The fact the US is last came as no surprise to me. What did surprise me was that 59% seemed high.
My Average Clients
My average client is someone who has saved over one million dollars. I am guessing that less than 2% of them have any intention or goal of constraining their current lifestyle in order to maximize their kids’ inheritance. Consuming their last penny of savings about the time they take that last breath is their spending plan of choice. There is even a name for these folks: “Die Brokers.”
If they did a good job of planning for retirement, however, most Die Brokers will leave something behind. Almost all of these I work with intend to divide what remains equally among their children. The point is that leaving an inheritance just isn’t a priority or a goal that constrains their current spending. As a side note, I rarely see any intention to leave any significant portion of their estate to charity.
The Survey
Why did the survey find such a high number of parents who intend on leaving their kids an inheritance, as compared to my observations that almost none intend to? My experience is that most people have a money script of, “Good parents should leave something to their children.” It is similar to another money script of, “Good parents should pay for their children’s college education.” These are seen as things “good” parents do. My hunch is that when most respondents answered the survey question, they let their money script do the talking, rather than their true intention.
The Explanation
Still, this does not explain why US parents intend to leave their children less than parents in any other country. One reason could be that more parents in other countries have money scripts that it’s necessary to leave their kids an inheritance.
One of the most common themes among my affluent clients is a desire to see their children “make it on their own.” Over 90 percent of these clients are first-generation wealth builders, meaning they didn’t inherit their money but accumulated it from saving, investing, or building a business. They value hard work and frugality and feel leaving a large inheritance to a child is more hurtful than helpful.
First Generation Millionaires
Many of these first-generation millionaires also feel accumulating wealth in the US is very attainable with hard work, discipline, and frugality. This is not the case worldwide. In many countries, it doesn’t matter how hard you work or how frugal you are, confiscatory taxes and oppressive regulations insure that those people not fortunate enough to be born into money will never have a chance to become affluent. The only way to have a comfortable net worth in many countries is to either inherit it or work for the government.
Sadly, the US is closer to adopting a model that makes accumulating wealth increasingly difficult. I can’t name a politician currently campaigning who advocates lowering income taxes on wealth builders. Yet I can name scores who are running on increasing taxes on “the rich.”
Assessment
Affluent parents in the US may soon begin to feel that, without an inheritance, their children may never have the means to get ahead. If more US parents begin believing this, we will probably see increasing numbers intending to leave money to their kids. The money script of “Good parents should leave something to their children” might become the truth.
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Previously on this ME-P, we explored three fears that stop adult children from talking with parents about their estate plans, even though such conversations could greatly benefit both generations.
These are: “It’s none of my business,” “I don’t want them to think I am greedy,” and, “It will ruin our relationship.”
Parents Fear, Too!
Children aren’t alone in their fear of approaching this topic. Most parents are just as reluctant—and for the same basic reasons. In my experience, parents’ biggest reasons for not talking with kids about legacy intentions are: “It’s none of their business,” “If I share financial information, they will take advantage of me,” and “Talking about money will hurt our relationship.”
“It’s none of their business.” This is certainly true, unless you’ve made it their business. If you name a child as an executor of a will, a successor trustee of a trust, or an agent in a Durable Power of Attorney, you have made it that child’s business to know your business.
Shared Decision Making
To throw a child into suddenly having to make financial decisions in your best interest without knowing what they must manage, where assets are held, and what your wishes are is unfair to both you and your child. Any time you put someone in a position of authority in any of your estate documents, it’s essential to carefully go through the document with them and to disclose details of the assets they will make decisions on. Start with showing them your financial statements, the contact information of your trusted advisors, and a listing of where you hold all your accounts.
If you feel you can’t trust a child with such information today, then why do you feel you can trust them as your agent or executor tomorrow? If you don’t trust a child, you’re better off to name a bank trust office or trust company to these positions.
“If I share financial information, they will take advantage of me.” This fear may be justified if your child has a history of taking advantage of you. If not, they probably aren’t going to start now. Preparing a child for an inheritance is not only prudent, it’s also a loving act of kindness you can give your child.
Sudden Money
I have worked with several families where children had no idea of their parents’ net worth. In every case, it was much higher than the kids ever imagined. Suddenly, they learned they were about to inherit hundreds of thousands or millions of dollars in various investments they knew nothing about. I witnessed these heirs try to cope with a plethora of emotions and money scripts, in addition to needing to learn the mechanics of managing a portfolio of investments. Without proper preparation, it’s not uncommon for what parents intended as a loving gift of wealth to turn into a destructive force of misery.
“Talking about money will hurt our relationship.” Parents are just as terrified to have money conversations with their kids as kids are afraid to talk with them. And no wonder—it’s parents who teach kids the no-talk rule in the first place.
Parental Wisdom
As parents, you can exercise the wisdom of age and begin the family money conversations. It may be helpful to have the first meeting with your financial planner or estate attorney, or engage the help of a financial therapist. You might be amazed to find that talking with your kids about money in a straightforward and healthy way can actually help your relationships.
Do your kids a favor and break the no-talk rule. It’s a gift to both generations.
Conclusion
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Talking about money is taboo in the US. If you don’t believe me, next time you’re at a social gathering ask everyone these two questions:
1. “What was your taxable income last year?”
2. “What is your net worth?”
Well, it’s not a recommended way to make new friends.
The Money Taboo
The taboo on money conversations can cause real difficulties when it extends to families. My experience as a financial planner suggests most families in the US have a “no-talk” rule around money. While a lot of family members know each other’s earnings, fewer know family members’ net worth. Even fewer have asked about their parents’ estate planning.
Many don’t intend to ever ask. A blogger who calls himself the Financial Samurai wrote: “I never want to have the inheritance talk with my parents unless they initiate the conversation.”
Based on the responses to his article, he isn’t the only person holding this opinion. Most children recoil at even the thought of asking their parents about the particulars of their estate plans.
None of My Business
In my experience, the most common reasons for not talking to parents about their inheritance plans are these: “It’s none of my business,” “I don’t want them to think I am greedy,” and, “It will ruin our relationship.”
Why Not Ask?
Let’s look at each of these reasons:
1. “It’s none of my business.” It’s true that parents have no obligation to disclose their finances and estate plan to their children. Yet it could quickly become your business if you are named as an executor in their wills, a successor trustee in a trust, or an agent in their powers of attorney. Asking whether you are designated as any of these roles is totally reasonable. If you are, then knowing the particulars of their estate plan and finances would be helpful for you to know. It is such a reasonable request that, if your parents are not willing to discuss the details, you may be best served asking them to name someone else.
2. “I don’t want them to think I am greedy.” If you’ve had your hand out to your parents most of your life, asking them how much you’re going to get when they kick off may not evoke a loving response. However; if you have never asked your parents for money – or – if you have asked for money and have paid them back; then you probably don’t have much to worry about! If you approach the topic from the standpoint of wanting to be fully prepared to carry out any duties bestowed upon you, I seriously doubt your parents will suddenly think you’ve morphed into a greedy, money-sucking leach.
3. “It will ruin our relationship.” One of the strongest money scripts around talking about money is that doing so will permanently harm a relationship. The Financial Samurai wrote, “I hate thinking about money and family because so often money tears relationships apart.” While money issues can certainly tear apart a relationship, so can abusing alcohol, sex, drugs, work, power, and a host of other things.
Assessment
What I’ve seen is that keeping secrets about money is more harmful to relationships than talking about money. When the no-talk rule is in effect, family members make up their own stories about what is real. Those stories are rarely true, and the assumptions around them can cause misunderstanding and mistrust.
Being the first to break a family’s “no money talk” rule isn’t easy. Yet having the courage to start money conversations can be a service to the whole family. In my experience, it ultimately leads to better estate plans, more trust, and stronger relationships.
Conclusion
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Stroll through a retirement camping resort or pass an RV on the highway, and you might see this bumper sticker:
“We’re spending our children’s inheritance”
No Joke
Apparently, this isn’t a joke. A December 13, 2013, article in CNN Money reported on a recent survey by the British-based international financial services company HSBC which asked more than 16,000 people in 15 countries about their estate plans. The US ranks last in the percentage of retired parents (56%) that intend to leave money to their kids. This is significantly below the 15-country average of 69% and far below the leading percentage of 86% in India.
US Rank
The US also ranks sixth in the amount of money ($177,000) that parents expect to pass on. This is behind Australia ($501,000), Singapore ($371,000), the UK ($234,185), France ($233,699), and Taiwan ($191,039).
No doubt there are many reasons for the country-by-country differences in what parents expect to leave their children. These may include differences in cultures, beliefs about family responsibilities, and attitudes toward charitable giving.
Contributing Factors
Other contributing factors, however, are differences in countries’ economic strength and tax laws. In a December 13 interview with The Australian, Graham Heunis, the head of retail banking and wealth management for HSBC Australia, credited some of the large inheritances there to the country’s unbroken 22 recent years of economic prosperity. Australian household wealth grew 7.6 per cent a year over the past decade, making it one of the richest nations per capita in the world.
Heunis also said, “In markets like the UK and US, inheritance and estate tax may cost heirs upwards of 40 per cent of an inheritance. With no inheritance tax in Australia, it’s no surprise the value and proportion of inheritance among Australian retirees is exponentially higher than the rest of the world.”
A Good Thing
It’s refreshing to see that accumulating and keeping wealth is still looked upon as a good thing in some countries. I doubt it’s a coincidence that most of those countries have strong economies, similar to what the US enjoyed in the past.
According to the 2013 Index of Economic Freedom, Singapore and Australia, the top two countries for inheritances, are two of the only three countries considered to have “free economies.” (The third is Hong Kong, where the average amount parents expect to pass on to kids is $145,943.) The US, considered the third top “free economy” in 2000, now sits at tenth as a “mostly free economy.”
Survey
This survey is not good news for baby boomers hoping to retire on inheritances from their parents. According to CNN Money, “About two-thirds of U.S. respondents said the inheritances they receive will at least partly fund their retirement, and 10% said they will rely on their inheritance completely to retire.”
If two-thirds of middle-aged Americans expect substantial inheritances, but only about half of elderly retired parents expect to leave inheritances, somebody is going to be disappointed.
Still, for those, like the majority of baby boomers, who are unprepared for retirement, every little bit helps. While an inheritance of $177,000 won’t put anyone on Easy Street in retirement, it could pay off a home mortgage or, if invested wisely, generate a monthly income of $450 for life.
Another Problem
One last problem for potential heirs, of course, is that just because parents expect to leave an inheritance doesn’t mean they will be able to do so. Medical expenses or other unanticipated costs might well eat up parents’ resources during their lifetimes.
Assessment
Ultimately, relying on an inheritance for your retirement is never a wise move. It’s far wiser to use your own resources, start retirement planning early, and build your own financial security.
Conclusion
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When passing wealth to your kids, some medical professionals should consider creating a trust to limit the later generation’s ability to tap into the principal. Several astute readers suggested this strategy after my recent column citing research that shows 90% of inherited wealth is gone by the third generation.
Preserving Wealth
There is no question that a trust, done correctly, can go a long way to preserve wealth after the death of the wealth accumulator. Let’s explore what “done correctly” means.
1. Trust law is complex. Engage an accountant and attorney with strong skills and expertise in trusts.
2. Be sure the assets you intend to go into the trust will actually transfer.
Retirement plans like IRA’s, 401(k)’s, and profit sharing plans will pass to whomever you listed as the beneficiary. This must be the trust. In addition, the trust must include a number of special provisions in order for a retirement plan to be distributed according to your wishes and not as a fully taxable lump sum.
Annuities, insurance policies, and accounts with a TOD (transfer on death) clause will also pass to the named beneficiary.
Assets held in joint tenancy will not pass to the trust. Many married couples jointly own most of their major assets, such as the family home, investment real estate, brokerage accounts, or bank accounts.
3. Be sure there are enough assets in the trust to justify the trustee fees. Most professional corporate trustees charge $3,500 to $10,000 annually, or up to 1% of the trust assets. If a trust with $100,000 incurs an annual fee of $3,500, your hard-earned estate will benefit the trustee as much as your heirs. A trust probably doesn’t make financial sense if the total fees will exceed 2%.
4. If a trust still seems like a good strategy after the above caveats, the next question is how much to limit heirs’ ability to withdraw money. From an actuarial standpoint it’s fairly simple. If you limit annual withdrawals to 3% of the principal, there’s a strong probability of the money lasting several generations with its buying power intact. Provided, that is, the trustees pay close attention to the next point.
5. To generate sufficient returns to pay out up to 3% annually to heirs and also keep up with inflation, the majority of the portfolio must be invested in assets that will grow over time, such as stocks, real estate, and commodities. It needs to be broadly diversified among many asset classes and countries. The trustees must also limit the fees paid to manage the investments. Many corporate trustees have an inherent incentive to use their own bank’s mutual funds, which can have annual fees as high as 1.5%. One way to avoid this conflict of interest is to instruct the trustee to place the funds with a fee-only investment advisor who has a largely passive approach to managing money. This could cut the portfolio fees by 50% or more.
6. Finally, before setting up any trust, pay close attention to taxes. Congress recently increased the top income tax bracket to 39.6% on wealthy taxpayers. Any trust which keeps more than $11,950 of annual income is considered “wealthy.” So here is the problem. If the trust retains enough earnings to increase the principal to offset inflation, it will have to pay substantial income tax and will probably need to restrict withdrawals to 1 or 2%. All of a sudden a multi-million dollar inheritance becomes simply a source of secondary income similar to Social Security.
###
Assessment
Trusts are valuable estate planning tools. But like any other powerful tools, they are best employed by someone with the skills to use them well.
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The demands on medical practitioners today can seem overwhelming. It’s no secret that health-care delivery is changing, and those changes are reflected in the financial issues that health-care professionals face every day. You must continually educate yourself about new research in your chosen specialty, stay current on the latest technology that is transforming health care, and pay attention to business considerations, including ever-changing state and federal insurance regulations.
Like many, you may have transitioned from medical school and residency to being on your own with little formal preparation for the substantial financial issues you now face. Even the day-to-day concerns that affect most people–paying college tuition bills or student loans, planning for retirement, buying a home, insuring yourself and your business–may be complicated by the challenges and rewards of a medical practice. It’s no wonder that many medical practitioners look forward to the day when they can relax and enjoy the fruits of their labors.
Unfortunately, substantial demands on your time can make it difficult for you to accurately evaluate your financial plan, or monitor changes that can affect it. That’s especially true given ongoing health care reform efforts that will affect the future of the industry as a whole. Just as patients need periodic checkups, you may need to work with a financial professional to make sure your finances receive the proper care.
Maximizing your personal assets
Much like medicine, the field of finance has been the subject of much scientific research and data, and should be approached with the same level of discipline and thoughtfulness. Making the most of your earning years requires a plan for addressing the following issues.
Retirement
Your years of advanced training and perhaps the additional costs of launching and building a practice may have put you behind your peers outside the health-care field by a decade or more in starting to save and invest for retirement. You may have found yourself struggling with debt from years of college, internship, and residency; later, there’s the ongoing juggling act between making mortgage payments, caring for your parents, paying for weddings and tuition for your children, and maybe trying to squeeze in a vacation here and there. Because starting to save early is such a powerful ally when it comes to building a nest egg, you may face a real challenge in assuring your own retirement. A solid financial plan can help.
Investments
Getting a late start on saving for retirement can create other problems.
For example, you might be tempted to try to make up for lost time by making investment choices that carry an inappropriate level or type of risk for you. Speculating with money you will need in the next year or two could leave you short when you need that money. And once your earnings improve, you may be tempted to overspend on luxuries you were denied during the lean years. One of the benefits of a long-range financial plan is that it can help you protect your assets–and your future–from inappropriate choices.
Tuition
Many medical professionals not only must pay off student loans, but also have a strong desire to help their children with college costs, precisely because they began their own careers saddled with large debts.
Tax considerations
Once the lean years are behind you, your success means you probably need to pay more attention to tax-aware investing strategies that help you keep more of what you earn.
Using preventive care
The nature of your profession requires that you pay special attention to making sure you are protected both personally and professionally from the financial consequences of legal action, a medical emergency of your own, and business difficulties. Having a well-defined protection plan can give you confidence that you can practice your chosen profession without putting your family or future in jeopardy.
Liability insurance
Medical professionals are caught financially between rising premiums for malpractice insurance and fixed reimbursements from managed-care programs and you may find yourself evaluating a variety of approaches to providing that protection. Some physicians also carry insurance that protects them against unintentional billing errors or omissions.
Remember that in addition to potential malpractice claims, you also face the same potential liabilities as other business owners. You might consider an umbrella policy as well as coverage that protects against business-related exposures such as fire, theft, employee dishonesty, or business interruption.
Disability insurance
Your income depends on your ability to function, especially if you’re a solo practitioner, and you may have fixed overhead costs that would need to be covered if your ability to work were impaired. One choice you’ll face is how early in your career to purchase disability insurance. Age plays a role in determining premiums, and you may qualify for lower premiums if you are relatively young. When evaluating disability income policies, medical professionals should pay special attention to how the policy defines disability. Look for a liberal definition such as “own occupation,” which can help ensure that you’re covered in case you can’t practice in your chosen specialty.
To protect your business if you become disabled, consider business overhead expense insurance that will cover routine expenses such as payroll, utilities, and equipment rental. An insurance professional can help evaluate your needs.
Practice management and business planning
Is a group practice more advantageous than operating solo, taking in a junior colleague, or working for a managed-care network? If you have an independent practice, should you own or rent your office space? What are the pros and cons of taking over an existing practice compared to starting one from scratch? If you’re part of a group practice, is the practice structured financially to accommodate the needs of all partners? Does running a “concierge” or retainer practice appeal to you? If you’re considering expansion, how should you finance it?
Questions like these are rarely simple and should be done in the context of an overall financial plan that takes into account both your personal and professional goals.
Many physicians have created processes and products for their own practices, and have then licensed their creations to a corporation. If you are among them, you may need help with legal and financial concerns related to patents, royalties, and the like. And if you have your own practice, you may find that cash flow management, maximizing return on working capital, hiring and managing employees, and financing equipment purchases and maintenance become increasingly complex issues as your practice develops.
Practice valuation
You may have to make tradeoffs between maximizing current income from your practice and maximizing its value as an asset for eventual sale. Also, timing the sale of a practice and minimizing taxes on its proceeds can be complex. If you’re planning a business succession, or considering changing practices or even careers, you might benefit from help with evaluating the financial consequences of those decisions.
Estate planning
Estate planning, which can both minimize taxes and further your personal and philanthropic goals, probably will become important to you at some point. Options you might consider include:
Life insurance
Buy-sell agreements for your practice
Charitable trusts
You’ve spent a long time acquiring and maintaining expertise in your field, and your patients rely on your specialized knowledge. Doesn’t it make sense to treat your finances with the same level of care?
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Conclusion
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Trusts are effective financial planning tools based on a structure that is simpler than it may seem. The creator of the trust [doctor-layman, etc] contributes something of value into the trust and creates instructions as to how it will be managed and eventually disbursed. The trustee [third party] is responsible for keeping the property safe and managing and distributing it according to the instructions. The beneficiary [spouse-children, etc ] is the person or entity that eventually will get the property in the trust.
Trusts may be useful in estate planning, asset protection, and providing for elderly parents or other family members who may be unable to manage their own affairs.
Establishing a trust isn’t especially difficult, but it’s not a do-it-yourself project. It’s important to work with an attorney to be sure the trust complies with legal requirements and will actually carry out its intended purpose.
Trustee Selection
What may be the hardest part of setting up a trust is choosing the trustee. Here are a few suggestions that may help. Some of them come from information provided by the Financial Planning Association [FPA]:
1. Be sure you as the creator of the trust understand the trustee’s role. Ideally, trustees will have some expertise in legal matters, taxes, and investments. The specific knowledge needed will vary, depending on the scope and purpose of the trust. It’s important to discuss that purpose in detail with any potential trustees to be sure they have the necessary skills and are comfortable taking on the responsibilities.
2. Consider the pros and cons of choosing a personal or a professional trustee. Generally your choice will come from one of three categories: A personal trustee who is a close friend or family member, a personal trustee who is a professional advisor, or a corporate trustee such as a bank’s trust department.
A family member or close friend may already have inside knowledge of your circumstances, as well as having personal relationships with the beneficiaries of the trust and a personal commitment to carrying out your wishes. The possible downside is that the trustee may have conflicts of interest or find it difficult to enforce some trust provisions.
Professional advisors such as attorneys or accountants will have specialized knowledge that may be important. Even advisors who have worked closely with you will have a level of professional detachment that may make it easier to carry out your wishes, especially any that involve saying “no.”
With a corporate trustee, the relationship is with the firm rather than an individual, which provides continuity and protects the trust even if the original trustee is unable to continue serving. The downside is the lack of detailed personal knowledge and involvement.
3. Evaluate costs. Professional or corporate trustees will, of course, charge for their services. Friends or family members may not charge fees but really should be compensated appropriately. State laws govern the maximum fees trustees can charge and the specific services provided.
4. A commitment to take on the responsibilities of the trust and to carry out your wishes with integrity may be the most important quality for a trustee. Someone without financial and legal knowledge can always get help from professional advisors.
Assessment
Finally, remember doctor, the word “trustee” isn’t used by accident or coincidence. The trustee’s role is to act in your stead when you are unable to, managing the assets of the trust with the same care you would use and making the decisions you would make in the best interests of the beneficiary of the trust. The most essential factor in choosing a trustee is finding someone you can rely on to act on your behalf.
Who is, in short, trustworthy?
Conclusion
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Today is the 5th Annual NHDD, April 16th, 2012. The purpose of this day is to inspire, educate & empower the public, estate attorneys, financial advisors & medical providers about the importance of advanced medical care planning. It is a rally for our loved ones and ourselves.
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Doctors and other medical professionals are brights folks. Some even have additional degrees and designations like MBA, PhD, CFA, CPA, CFP, CMP, etc. Others hold copyrights, trademarks, servicemarks and patents, etc. Innovators and entrepreneurs, indeed!
A copyright is an intangible property right that protects an original artistic or literary work. The protection of copyrights is rooted in the United States Constitution and is among the enumerated powers granted to Congress
Trade Marks and Service Marks
A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.
A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product.
Do Trademarks, Copyrights and Patents Protect the Same Things?
No! Trademarks, copyrights and patents all differ. A copyright protects an original artistic or literary work; a patent protects an invention.
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A Handbook for Doctors and their Financial Advisors
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Book Review and Summary
Financial Planning for Physicians and Advisors describes a personal financial planning program to help doctors avoid the perils of harsh economic sacrifice.
It outlines how to select a knowledgeable financial advisor and develop a comprehensive personal financial plan, and includes important sections on: insurance and risk management, asset diversification and modern portfolio construction, income tax and retirement planning, and medical practice succession and estate planning, etc.
When fully implemented with a professional’s assistance, this book will help physicians and their financial advisors develop an effective long-term financial plan.
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
The IRS recently released Publication 950, Introduction to Estate Gift Taxes. It provides a very general overview for the public, doctors and many professional financial advisors with respect to estate and gift taxes. The publication is a useful and concise description of the changes that apply in 2012.
1. Unified Credit – The unified credit on the basic exclusion for 2012 will be $1,772,800. This will exempt an estate of $5,120,000 from tax.
2. DSUE Amount – Under the principal of marital portability, the basic exclusion amount of $1,772,800 may be augmented by the unused exclusion amount of the last deceased spouse who passes away in 2011 or 2012.
3. Gift Annual Exclusion – The annual exclusion for present interest gifts for 2012 will be $13,000. The exclusion will not apply for gifts of a future interest.
4. Permitted Gifts – There are several categories of gifts that are permitted without payment of gift tax. These include an unlimited transfer for outright gifts to spouse, gifts to a qualified charitable organization, payments of tuition to an educational institution, or payments of qualified medical expenses to a hospital or other medical institution.
5. Gift Splitting – If one spouse of a married couple makes a gift to an individual, the two may file an IRS Form 709 Gift Tax Return and report one-half of the gift.
6. Gift Tax Unified Credit – The gift tax return will require determining taxable gifts and then a reduction by the unified credit. After adding up the amount of the gifts and reducing the amount by a marital deduction, charitable deductions, educational exclusions or medical exclusions, the $13,000 annual exclusion is applied first. This is a per-donor, per-donee exclusion. The remaining amount will be covered by the unified credit. If the full amount of unified credit is exceeded, then gift tax at a rate of 35% will be applicable on the excess.
7. Gift Tax Return Filing – The gift tax return is generally required if there are gifts to a non-spouse that are over the annual exclusion, a married couple are splitting gifts, there is a gift of a future interest or there is a gift to a spouse of an interest in property that will be ended by a future event.
8. Gross Estate – The gross estate generally includes all probate and non-probate assets owned at death. Life insurance payable to the estate or owned by the decedent is included. Most annuities and some property transferred within three years of death are also included.
9. Estate Deductions – On the estate tax return, the executor may deduct funeral expenses, last medical expenses, debts, the marital and charitable deduction and the state death tax deduction. The balance will be subject to the unified credit for the applicable exclusion amount. Any excess estate value over the applicable $5.12 million exclusion in 2012 may be subject to tax at 35%.
10. Filing IRS Form 706 – An estate tax return will be required if the estate exceeds the applicable exclusion amount of $5,120,000 in 2012. It also is required in order to preserve a deceased spousal unused exclusion amount. Therefore, many married couples with fairly modest estates may choose to file IRS Form 706 when the first spouse passes away.
11. Generation Skipping Transfer Tax (GSTT) – An additional transfer tax may be applicable for distributions to a person who is two or more generations below the generation of the donor. A grandchild or great-grandchild is a typical skip person for GSTT purposes. The GSTT of 35% may be applicable if a direct skip, taxable distribution or taxable termination is in excess of the applicable exclusion amount.
12. Income Taxes on an Estate – If an estate has $600 or more of gross income or a beneficiary who is a nonresident alien, then an IRS Form 1041 income tax return is required. In addition, the estate must send Schedule K-1 (Form 1041) to beneficiaries of the estate. These beneficiaries may be required to include income, deductions and credits in their personal IRS Form 1040 Tax Return.
Conclusion
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Death is an experience that we’re all going to have at one point or another. Why not take a few minutes to learn some interesting and some truly bizarre facts about death, dying, and the dead? Brought to you by medicalinsurance.org
Conclusion
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Multiple marriages entail interesting estate planning moves. Why? In these days of multiple marriages, doctor clients and others often can get caught between wanting to provide for their children from a previous marriage and their spouse’s statutory inheritance rights. Depending on the state of residence, the surviving spouse may have a statutory right to a specific share of his or her spouse’s estate. But, states define what constitutes the “augmented estate” in different ways. Some fairly sophisticated estate planning may be appropriate.
States Right’s
Inasmuch as spousal rights of election were codified many decades ago when divorce was not a common occurrence, many states’ statutes do not fairly recognize the economics and family dynamics of married individuals who have children from a prior marriage. In some states, a spousal right of election is limited to those assets that pass through probate. In other states, the right of election is enforceable against not only probate assets but certain assets, such as jointly held property that would otherwise pass via title to the co-owner, gifts the decedent made within a certain time period prior to death, and life insurance benefits. This expanded pool of assets against which the right of election may be assessed is typically referred to as the “augmented estate.” Most states provide that the right of election is charged ratably against the beneficiaries under the decedent’s will and the beneficiaries of any testamentary substitutes.
The UPC
In many states, the same percentage would apply regardless of the length of the marriage. In 1990, the model Uniform Probate Code (UPC) was amended to provide a scaled right of election based on the length of the marriage. It ranges from a minimum of 12% up to a maximum of 50% for marriages of 15 years or more. Only a handful of states have adopted it. Even though the UPC includes pension and profit sharing plan benefits in the augmented estate, the sliding scale is subordinate to federal pension legislation which can result in an inequity in the case of a short-term marriage.
Assessment
While both pre- and post-nuptial agreements can help, life insurance is favored, particularly in the majority of states where it is excluded from the augmented estate. And, in states where life insurance is part of the augmented estate, it could be used to provide the surviving spouse with his or her share, particularly when a closely held business is passed on to children of a prior marriage. Financial planners, doctors and advisors need to be familiar with this area to effectively serve clients.
Note: “Providing for Children from a Prior Marriage: An Estate Planning Entry Point,” George B. Kozol, Journal of the American Society of CLU & ChFC, January 1997, pp. 52–57, American College.
Conclusion
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Many doctors and medical professionals, on drafting their wills or trust documents, feel that these legal documents do not adequately convey the emotional qualities that may be important when assets are passed after death. A testamentary letter can be used to convey such concerns, as they are impacted by the passage of assets. When unequal distributions of estate assets are given to children, a testamentary letter can outline the reasons.
Example:
The oldest daughter may be an established attorney who does not have the financial need for a large bequest, whereas the youngest son is a struggling artist. A testamentary letter might convey a parent’s wishes that the children use a portion of the assets received to continue the charitable giving programs that the parent has started—a desire that may not be a legally enforceable condition through the will.
Conclusion
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Succession planning is a dynamic process requiring current ownership and management to plan the medical practice or company’s future, and then implement the resulting plan. As a financial planner and advisor myself, I see many doctors and clients approach business [practice] succession planning initially through retirement planning. Once they understand the issues and realities of the tax laws, they are much more amenable to working out a viable succession plan. Many doctors and other clients have not clearly articulated their goals, but have many pieces of the plan that need to be organized and analyzed by the financial planner to meet their objectives, including both personal and financial issues.
A Step-Wise Process
The steps necessary for successful succession planning are as follows:
• Gathering and analyzing data and personal information
• Contacting the doctor [client’s] other advisors
• Valuing the medical practice or business
• Projecting estate and transfer taxes
• Presenting liquidity needs
• Gathering additional corporate information
• Identifying dispositive and financial goals
• Analyzing the needs and desires of nonfamily key employees
• Making recommendations, modifying goals, and providing methodologies
• Assisting the doctor-client in implementation
Gathering and Analyzing Data and Personal Information
The first step in data collection is talking to the doctor or client, and explaining the process of gathering data. Most successful financial planners use a questionnaire to be sure to address all important information. The planner should gain an understanding of the interrelationships between the practice, family and the business and address each of these areas as separate parts of the same equation. Finding out how the practice or business operates and why it operates that way can help the planner determine whether change is necessary and how to go about implementing it. Other important elements to address include the environment in which the practice [business] operates, potential flaws in the current structure and operations, appropriate levels of key-person life insurance coverage, investment asset diversification, prior estate planning efforts, and existing legal contracts that may need modification.
A Timely Process
It may take some time, from weeks to months, for the client to gather the required information. The planner should be encouraging and should periodically check on the doctor-client’s progress. If it appears that the client may not be motivated to complete the questionnaires independently, the planner should schedule an appointment to help the doctor-client finish. The client may create obstacles because he or she does not want to talk about death or relinquish control of the practice or business. These are delicate topics, and the financial planner cannot force the client to face them. Still, the consequences of not carrying out personal financial and estate planning can be explained.
Understanding the Practice or Business
To be most helpful to the doctor-client, the financial planner must understand the client’s medical practice or business. Reviewing the history of the company, getting acquainted with its current operations, and becoming familiar with the industry is important. By reviewing financial statements, income tax returns, business plans, and all pertinent legal documents, the planner will be able to identify key areas to focus on during the engagement. Understanding the patient or customer base of the business is also important. For example, exploring the impact of the principal’s death on the patient [customer] base helps the financial planner understand what changes could occur in the business after the physician-owner’s death.
Fair Market Valuation
Next, the planner must translate the balance sheet to current fair market values and analyze the debt, capital structure, and cash flows. A review of accounts receivable, inventory, and any fixed assets should be included to determine whether there is sufficient collateral for a leveraged buy-out or other estate planning technique for succession planning. Also, the cash flow should be reviewed to see if new fixed payments such as debt repayments or dividend distributions could be made.
Contacting the Doctor-Client’s Other Advisors
After gathering the documents, it’s a good idea for the planner to contact the client’s attorney, accountant or tax advisor, bank or trust officer, insurance advisor, investment advisor, stockbroker, and other business advisors. As many key advisers as possible should be contacted early in the engagement to create a spirit of cooperation. A planner will benefit by creating team harmony and establishing himself or herself as the team leader. Additionally, a planner could be engaged by these professionals in the future, and a planner is a valuable source of referrals.
Valuing the Medical practice of Business
The next step in the succession planning process is computing the value of the practice or business. It may surprise the planner to hear what the doctor or client perceives as the value of the [practice] business at the beginning of the engagement. Likewise, the client may be surprised to hear what value could be placed on the business for estate tax purposes. The goal in valuation is determining the price at which the business would change hands between a willing buyer and a willing seller, assuming:
• The buyer is not under any compulsion to buy.
• The seller is not under any compulsion to sell.
• Both parties have reasonable knowledge of the relevant facts.
Revenue Ruling 59-60 (1959-1, CB 237
The IRS issued Revenue Ruling 59-60 (1959-1, CB 237), which lists several factors to be used in valuing a business:
• Nature and history of the practice or business
• Economic outlook and condition of the healthcare industry
• Book value and financial condition of the practice or business
• Earning capacity of the practice or business
• Dividend-paying capacity of the practice or business
• Value of any goodwill or other intangibles
• Value of similar stocks traded on open markets
• Degree of control represented by the size of the block of stock interest
Highest and Best Use
The IRS computes a value based on the “highest and best use” of the practice or business. This means that the business will be valued by the IRS at the highest possible value that can be reasonably justified. Valuation methods include the asset approach, income approaches, and market approach.
• Asset approach: This is primarily used for a business that is worth more if it is sold in pieces rather than as a whole. The tangible asset value is added to the intangible goodwill value.
• Income approaches: A business as a going concern has value in its ability to produce profits in the future. These profits represent a return on the investment. The value of the business is a function of expected profits and desired rate of return.
— Discounted future earnings method: Projected future earnings are discounted to present value.
— Discounted cash flow method: Cash that the owner can withdraw from the business is discounted to present value.
— Capitalization of earnings method: Expected earnings are divided by the capitalization rate.
— Capitalization of excess earnings method. Expected earnings that are not needed in the business are divided by the capitalization rate.
• Market approach: A business is worth what similar businesses sell for. Referred to as the comparable method of business valuation, this method should be used only when the comparable business is truly comparable.
Each of these primary methods has numerous variations that may provide a more desirable or justifiable value.
Assessment
When reviewing potentially taxable estates, the planner should analyze the opportunity to use favorable valuation discounts for loss of a key employee, lack of marketability, or possibly a minority discount for lack of control. Alternatively, planning recommendations can be made to avoid exposure to valuation premiums for control. The physician-owner may avail himself or herself of many of these discounts by reducing holdings to less than 50% prior to death.
Conclusion
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For more on these topics, see the handbooks below:
Conclusion
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IRAs, Education IRA [Coverdell Accounts], 529 Plans, Qualified and Non-Qualified Annuities and Insurance– in the State of Ohio
By Edwin P. Morrow III, J.D., LL.M., MBA, CFP®, RFC® Wealth Specialist – Manager, Wealth Strategies Communications
Ohio State Bar Association Certified Specialist, Estate Planning, Probate and Trust Law – Key Private Bank – Wealth Advisory Services
10 W. Second St.
MailCode OH-18-00-2701
Dayton, OH 45402
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Hi Ann and All ME-P Readers
Would you be interested in posting this article on creditor and asset protection and planning for retirement accounts and similar? It is highly useful for physicians and other professionals
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Helping Financial Advisors Plan Future Medical Decisions
By Ann Miller RN, MHA
[Executive Director]
From time to time, our readers send in e-books, files or e-chapters, pamphlets or other material they have created for client, educational or marketing use. Some of it may be worthwhile; some not so.
Nevertheless, these publications are often a good place to start the conversation, or thought-process on related topics. They will be occasionally offered as a complimentary membership feature of the Medical Executive-Post. We trust they are beneficial to you.
No advice is offered. We make no authorship nor copyright claim to these works. Veracity and information should be considered time sensitive. Consult a professional for your situation.
Assessment
Feel free to send in your own material for the benefit of all Medical Executive-Post readers and subscribers. All works will be considered; but not necessarily published.
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Summer is here for sure in Atlanta—90 degrees plus day after day. I’ve been enjoying the fresh sweet corn, a BLT and a large glass of sweet tea at dinner—now that is a fine meal. Why do I share this with you — because at mid-year, I think from time to time we have to step back from all that we are involved in, concerned with, and what we think is important to actually appreciate all that we have and not overlook the small things. Which brings me to the topic of this Medical Executive-Post and not overlooking the small things—like taxes. As a physician-investor, you have to keep an eye on the impact taxes have on your investment portfolio because it is what you keep after taxes that counts.
Of the Markets
During my last post—I indicated that I was not sure if the recent reprieve in the markets was sustainable. And, we did experience a mild reversal recently. But, did you know that doing nothing is actually doing something? I’m pretty certain that the past investment strategies are not going to work going forward and I share these with ME-P readers as to why I believe this is true; and how best to position your portfolio going forward. Other professionals agree—the rules have changed — have you changed anything? Let’s move on to the real reason you continue to read our posts: To be able to make the right long-term decision during these difficult times. In this post we need to focus on the importance of tax-efficient investing. We are confident that you and your friends and colleagues whom you choose to share this ME-P will benefit from the information discussed, as well.
Why Tax Efficient Investing is Important
Physicians and all investors have experienced some turbulent times over the last 12 months and it appears more rough waters lie ahead. As a physician-investor, you are unable to control the markets but there are certainly things you can control and should. One of these is taxes. Given the level of government spending, additional tax revenues will be needed which equates to higher taxes. You cannot plan your taxes on April 15th but you have to implement a tax strategy plan during the year so you can capture the benefit on April 15th. With increased taxes on the horizon, tax-efficient investment is going to be more important than ever. Brokers or the 1-800 do-it-yourself brokerage firms are not licensed to give you tax advice, but CPAs and EAs, are. The old saying goes, “It’s not what you make, but what you keep after taxes that counts”. This statement will become even more important going forward.
Returns Lost to Taxes
Have you thought of the impact on your portfolio that taxes have on your investment returns? Good financial advisors should as these are still some of the most important decisions you face as an investor.
Take for example a physician-investor in the top tax bracket earned an average return of 15% on actively managed mutual funds in a taxable account from 1981 to 2001. After taxes, average return dwindled to roughly 12% – which means our investor lost an average of 2.4% in return to taxes (the numbers reflect a compound rate of return). Investment return lost to taxes don’t just affect mutual fund investors — you have to look at your entire holdings in your taxable accounts and how you manage your investments, because, investors in individual stocks and bonds are vulnerable too. Like I indicated, you do have a lot of control over your taxes and should actively control them given the significant impact on your total investment return. Something for consideration: Diversification and asset allocation are great tools for helping to reduce portfolio volatility, but we’re still going to be subject to the short-term whims of the market, no matter how diligent we might be in setting up our portfolios and selecting our individual investments. One of the areas that we have the greatest degree of control is the area of tax-efficient implementations. Doesn’t it make sense that where we can exercise the most control, we do so?
Tax-Efficient Investing is More Important than Ever
Work with me here. If we assume that over the next 20 years annual compound returns for the broad stock market average between 8% and 10%, and bonds average about half that, then average portfolio returns would be less than what we enjoyed over the last 20 years. What this actually means is that any return lost to taxes will be a much bigger deal. In other words, losing 2.4% per year to taxes may not have seemed like much if you were making 15-20% annual returns. But if you only expect to make 9% on your investments, keeping as much of that return as possible, can be vital to achieving your long-term goals. The real impact– 2.4% tax impact will cause you to lose 26% of your 9% gain. Thinking you got a 9% gain but your real after-tax gain is only 6.6%. This is a big annual difference and a significant compound difference.
The second reason tax efficiency is more important than ever is because of the changes to the tax rules in 2003. A notable provision: the 15% tax rate on qualified dividend income. Often a missed opportunity! Previously it might have made sense to hold dividend-paying stocks in a tax-deferred account such as an IRA instead of a taxable account. Either way, dividends were taxed at your ordinary income tax rate between 28% and 39.6% prior to 2001. The thought was the IRA offered tax-deferred potential growth.
Currently, qualified dividends in a taxable account are taxed at a maximum rate of 15%. Those save dividends would be taxed at the ordinary rate—currently as high as 35% when withdrawn from your tax-deferred account. As a result, the value of putting dividend-paying stocks in taxable accounts has grown significantly.
What Investments Go Where?
I need to speak in general terms here, investment that tend to lose less of their return to income taxes are good selections to go into taxable accounts. With that said the opposite should be true: Investments that lose more of their return to taxes could go into tax-deferred accounts. Here’s where tax-smart investors might want to place their investments.
Taxable Accounts
Tax-Deferred accounts – Traditional IRAs, 401(k)s and deferred annuities
Ideally place…
Individual Stocks you plan to hold more than one year
Individual stocks you plan to hold one year or less
Tax-managed stock funds, index funds, low turnover stock funds
Actively managed funds that generate significant short-term capital gains
Stocks or mutual funds that pay qualified dividends
Taxable bond funds, zero-coupon bonds, inflation protected bonds or high yield bond funds
Municipal bonds, I bonds
Reits
DISCLOSURE: This assumes you hold investments in both types of accounts. A different set of rules would apply if you held all your investments in a taxable account or a tax-deferred account.
In general, holding tax-efficient investment in taxable account and less tax-efficient investment in tax-advantaged account should add value over time. It appears that the above serves as a simple set of guidelines to go by but there are additional considerations before making the above allocation.
Additional Considerations
Reallocation of your Portfolio
To maintain your strategic asset allocation will cause additional tax drag on return, to the extent you rebalance in taxable accounts. You may want to focus on your rebalancing efforts on your tax-advantaged accounts, including your taxable accounts only when necessary. Keep in mind, adding new money to underweighted asset classes in also a tax-efficient way to help keep your portfolio allocation in balance.
Active Trading
Active trading by individuals or by mutual funds, when successful tends to be less tax efficient and better suited for tax-advantaged accounts. A caveat: Realized losses in your tax-advantaged accounts cannot be recognized to offset realized gains on your tax return.
Liquidity Preference
If an investor wanted liquidity, then they might be holding bonds in their taxable accounts, even if it makes more sense to form a tax perspective to hold them in tax advantaged accounts. In other situations, it may be impractical to implement all of your portfolio’s fixed income allocation using taxable bonds in tax-advantaged accounts. If so, compare the after-tax return on taxable bonds to the tax-exempt return on municipal bonds to see which makes the most sense on an after-tax basis.
Estate Planning Issues
One cannot overlook the estate planning issues in deciding which account will hold a given type of investment. Also, what is the philanthropic intent of the doctor or investor? Stocks held in taxable accounts receive a step-up in cost basis at death (something heirs greatly appreciate) which is not the same for tax-advantaged accounts. Additionally, highly appreciated stocks held in taxable accounts more than a year might be well-suited for charitable giving.
Roth IRA
This type of account might just be an exception to all of the above. The rules are different when investors involve a Roth IRA. Since qualified distributions are tax free, assets you believe will have the greatest potential for higher return are best placed inside a Roth IRA, when possible.
Conclusion
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In spite of many changes to state laws and with a few exceptions, for all intents and purposes, unmarried physician couples are still considered strangers to one another. The unmarried partner has no right to make health care decisions, no right to Social Security survivor benefits, and no inheritance rights without proper documentation. An unmarried partner generally has no standing to seek damages for the “wrongful death” of a spouse, nor any standing for any other contractual rights.
Tax Treatment
Unmarried couples do not get the same tax treatment—such as the ability to file a joint tax return—as do married couples. While this may not necessarily mean higher taxes for married couples, it can make deductions difficult to determine for unmarried couples. Nor can an unmarried couple use the spousal Individual Retirement Account deductions for a nonworking spouse. An unmarried couple may not use a family partnership for tax purposes.
Non-Tax Benefits
Unmarried partners do not have the benefits that spouses have when a relationship ends or one partner dies. Domestic partners may not receive alimony or child support, except in special cases. A partner may not receive pension rights, and generally will not receive employer benefits, except in certain companies and municipalities. One partner who is forced to quit practice when the other partner is transferred may not receive unemployment benefits, while a spouse can. Unmarried partners may not qualify to get residency status for a non-citizen partner to avoid deportation.
Estates and Gift Problems
Estate tax law allows married couples an unlimited deduction for estate and gift tax purposes. Unmarried couples do not get this benefit, and may be taxed on what would otherwise be a tax-free transfer. If one partner dies intestate (without a will) the couple’s joint property would not necessarily go to the survivor. A married couple can give away $26,000 per recipient each year without gift tax consequences, but an unmarried individual with a high income is limited to $13,000, per recipient per year, even when living with a partner.
Personal Benefits
Domestic partners may be kept from visiting a partner in a prison or in the hospital or any other place restricted to “immediate family” members. Without specific legal permission, such as a durable power of attorney, the blood relatives of the partner who is ill can keep the domestic partner from seeing his or her mate. Except in a few municipalities and companies, domestic partners may not be eligible for bereavement leave when one partner dies.
Conclusion
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At Sharkey, Howes & Javer, we specialize in people, their money and their choices. We offer our clients peace of mind and the guidance to help them make wise lifetime decisions along their path to success.
Team Approach
We are a team, working in partnership with our clients and their other professional advisors to ensure a comprehensive approach to long-lasting financial decisions.
Our History
We were established in Denver, Colorado in 1990, when Eileen M. Sharkey, CFP®, formed the firm of Sharkey, Howes & Javer, a partnership with Lawrence E. Howes, MBA, CFP® and Joel B. Javer, CLU, CFP®. Since then, our team of professional planners and support staff has grown to serve over 1000 clients.
Industry Acknowledged Certifications
Larry Howes, MBA, AIF®, CFP® is a founder and principal of Sharkey, Howes & Javer, Inc., a firm that provides financial planning and portfolio management to individuals and businesses. He received his MBA from Regis University and Bachelor of Science degree in Management from Metropolitan State College in Denver and was admitted to the Registry of Financial Planning Practitioners in 1986. He received his CFP® designation in 1987. Larry was awarded an AIF®, Accredited Investment Fiduciary, in 2004 from the University of Pittsburgh. He is also a Certified Medical Planner™ (Hon).
Fiduciary – Yes
RIA – Yes
Published Authors and Educators
Mr. Howes is an adjunct professor of financial planning at Metropolitan State College – Denver.
Larry teaches the Investment course for the Certified Financial Planning certification program for Metro.
Larry is a featured writer for the Metropolitan Denver Dental Society’s journal entitled Articulator. Larry is also a featured writer for Colorado Medicine. In addition, Larry co-authored the Estate Planning and Execution chapter in the book entitled the Financial Planning Handbook for Physicians and Advisors.
On January 9, 2009 the US House of Representatives introduced HR 436. The Bill would establish the federal estate tax exemption at $3,500,000, and set the tax rate for estates exceeding that amount at 45 percent, eliminating the currently scheduled 2010 phase-out and subsequent reversion to pre-Bush tax cut levels with the $1 million exclusion and a 55 percent tax rate.
Estate Planning Technique Elimination
Importantly, the Bill, if enacted as proposed, would remove a popular estate planning technique by eliminating most discounts associated with what is referred to generically as family limited partnerships [FLPs, a general term applied to closely held asset holding companies often holding non-business assets].
FLP Non-Controlling Interests
Currently, when a physician-investor or any other individual transfers a non-controlling interest in a FLP, whether by gift or at death, the interest is valued at the price that a willing buyer would pay for the partnership interest, or fair market value. Since such FLP interests are not publicly traded, and do not represent a controlling interest in the partnership, business appraisers often assign substantial discounts in valuing these interests.
Case Model:
For example, a 10 percent limited partnership interest in a partnership that holds $1 million worth of securities would not be valued at $100,000 under current law. Rather, because a buyer of the partnership interest cannot sell the interest on the open market, nor exert control prerogatives on the partnership, he or she would pay materially less for the interest [perhaps 30 percent to 50 percent less].
Elimination of FMV Standards
The Bill as drafted would be effective for transfers occurring after the date of enactment. However, there is always the possibility that any final statute might be applied retroactively. While the fate of this piece of legislation is uncertain, it may reflect the attitude of the new administration towards keeping and strengthening the estate tax.
If HR 436 becomes law, appraisers would no longer be allowed to apply Fair Market Value standards to valuing these non-control FLP interests; they would not be able to apply any discounts to “non-business” assets held by partnerships or other entities. Instead, those assets would be valued as though they were transferred directly to the recipient.
Assessment
The Bill as drafted would be effective for transfers occurring after the date of enactment. However, there is always the possibility that any final statute might be applied retroactively. While the fate of this piece of legislation is uncertain, it may reflect the attitude of the new administration towards keeping and strengthening the estate tax. I have attached the proposed legislation to this post.
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The physician-investor dichotomy, income now versus growth for later, is not unique. Trusts; that have the potential to span decades, usually place the interests of the income beneficiary at odds with the remaindermen.
Conflicting Goals
Historically, trustees invested these irrevocable trust assets in bonds so as to generate the necessary income for the income beneficiary. But this led to conflicts…investing in bonds provides little growth of either the investment asset base or the income generated thereon. Interestingly, this has also placed the interests of the remaindermen at odds not only with the income beneficiary but with the trustees who have been charged with the duty of stewarding these assets for the benefit of both generations. This conflict of the generations has led to some surprising results both in practice and in the courts.
“Total Return Trust”
Income beneficiaries want current cash flow, remaindermen want growth and trustees want to minimize the exposure to liability. Notice the subtle difference … rather than “income” (dividends and interest) income beneficiaries want cash flow. They generally do not care about the source from which the cash flow was generated. Recognition of this subtle but important difference has led to the development of Uniform Prudent Investment Standards and the introduction of the “Total Return Trust.”
Uniform Prudent Investment Standards
The Uniform Prudent Investment Standards (agreed upon by legislatures of all 50 states) identify that for a trustee to be a “prudent investor”, investments that are allocated across a broad spectrum of investment asset classes, provides the greatest protection from investment risk. But; because this allocation across a broad spectrum must – by definition – include stocks, the potential for income in its technical sense (interest and dividends) must be reduced. The use of a “Total Return Trust” addresses and solves this problem.
Combination of Assets
A total return trust thus allows a trustee to manage a portfolio of assets commensurate only with the volatility risk that the trustee identifies is appropriate for the trust. This gives the trustee the ability to invest in a combination of assets that include stocks, bonds and other investment assets. The purpose of the total return trust includes safety and protection of the assets with a reasonable growth rate, from which a periodic ‘unitrust’ cash flow may be withdrawn for the income beneficiary. Unitrust cash flow is based on the recognition that a stated percentage withdrawal from trust corpus, each year, may be made to the income beneficiary without regards to the source of that cash flow, whether it be from income, or from corpus. The Unitrust cash flow recognizes that from time to time volatility in the equity marketplace will cause the trust corpus to fluctuate, sometime below that amount that was originally invested.
Cash Flows
Using this technique, as long as assets of the trust portfolio grow and the long term cash flow withdrawal rate is less than the long term growth rate, several benefits to all of the parties will inure: Cash flow to the income beneficiary will be maintained; cash flow to the income beneficiary will increase as the asset base increases; asset growth will satisfy the needs of the remaindermen; the trustee will be secure in knowing that he has satisfied his fiduciary duty to serve both the income beneficiary and the remaindermen. A substantial side benefit for the income beneficiary is that the cash flow will include not only income (dividends and interest) but will also include distributions of long term capital gains (which enjoy a lower annual tax rate.)
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Many trusts, written long ago for physicians, were established when interest rates were substantially higher, certainly higher than they are today. The passage of time and the re-call or maturity of those higher yielding bonds have left bond investors scouring the investment field for anything that will produce a decent income flow … Short of taking a lot of bond risk, they are found lacking.Thus, these old ‘irrevocable’ income trusts face substantial hurdles in generating the necessary income flow for the income beneficiary and the necessary growth for the remaindermen.
Uniform Prudent Investment Standards [UPIS]
With the acceptance of the Uniform Prudent Investment Standards, many of the several states simultneously implemented trust standards that allow beneficiaries/remaindermen and trustees to request the ‘re-formation’ of these trusts from “Income’ trusts to “total return” trusts on (at least) a statutory basis. By ‘statutory basis’- we mean that the trustee can reformat the trust and begin making cash flow payments made from total return. This ‘re-formation’ process minimizes or eliminates the problem of ‘income for the beneficiary’ versus ‘growth for the remaindermen.’
Available QTIP Election
How, then, can a physician-investor evaluate a situation in which a QTIP election is available?
The matters to be weighed will include the age and health of the surviving spouse; the projected size of the surviving spouse’s gross estate with and without the inclusion of the QTIP trust corpus; the amount of available unified credit; whether the decedent’s trust includes any precatory language that is intended to guide the trustee in balancing the rights of the surviving spouse with the rights of the trust remaindermen (‘precatory’ language is to provide guidance only…it does not have the force of law) for example, language allowing the trustee to favor the lifetime income beneficiary when making investment decisions); the amount of income that the surviving spouse needs or wants to have generated from the QTIP trust; the relationship between the surviving spouse and the remainderman of the trust (particularly as that relates to the amount of income that the surviving spouse would like to have generated by the QTIP trust and the pressure that would be put on the fiduciary to generate such income); and the likely asset allocation decisions that the trustee would make under the circumstances, given that there is not a single formula that must be applied but that a range of decisions probably are appropriate as the bank or trustee seeks to fulfill its fiduciary duties. In any event, when the long-term view is taken, the most appropriate QTIP election to make is a difficult decision and is best determined by examining a range of alternative outcomes for both the surviving spouse and the remainderman.
Assessment
Of course, this decision is easier if both spouses die before the estate tax return for the spouse who died has been filed (but not all participants are so willing to cooperate.) It has been suggested that with every case, to file an extension of time request for filing the estate tax return in order to delay making the election until the latest possible date.
Conclusion
And so, your thoughts and comments on this Medical Executive-Post are appreciated.
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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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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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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?
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.
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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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?
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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