On Medical Practice [Business] Succession Planning

A Process of Financial Steps

By Dr. David Edward Marcinko, MBA CMP™

[Editor-in-Chief]

http://www.CertifiedMedicalPlanner.org

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

• Identifying potential ownership, physician-executive and/or management successors

• 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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Financial Planning and Risk Management Handbooks from iMBA, Inc

For Doctors and their Financial Advisors

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Creditor and Asset Protection Strategies for Medical and Other Professionals

IRAs, Education IRA [Coverdell Accounts], 529 Plans, Qualified and Non-Qualified Annuities and Insurance – in the State of Ohio

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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
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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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Assessment

Link: Creditor Protection for IRAs Annuities Insurance August 2010 NBI CLE[1]

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Personalizing the Doctor or Client’s Living Will

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.

Your Life – Your Choices [authors]

  • Robert Perlman MD
  • Helen Starks MPH
  • Kevin Cain PhD
  • William Cole PhD
  • David Rosengren PhD
  • Donald Patrick PhD

Link: Your life – your choices

Disclaimer

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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The Gay Doctor Dilemma

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Understanding Domestic Partnership Problems

[By Staff Reporters]fp-book16

Legal Strangers

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.

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About Sharkey, Howes & Javer

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Proposed Disallowance of Fair Market Value for FLPs

On the HR 436 Proposal for FLPs

By Linda Trugman; CPAtrugman, MBA, ABV, ASA, MCBA

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.

File:  hr-436 

Conclusion

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The Total Return Trust

Uniform Prudent Investment Standards

ho-journal11

By Dr. David Edward Marcinko; MBA, CMP™

By Tom Muldowney; MSFS, CFP®, AIF®, CMP™

By Hope Rachel Hetico; RN, MHA, CPHQ™, CMP™

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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Re-formatting an Irrevocable Trust

UPIS and the Passage of Timecycle-of-life-2

By Dr. David Edward Marcinko; MBA, CMP™

By Tom Muldowney; MSFS, CFP®, AIF®, CMP™

By Hope Rachel Hetico; RN, MHA, CPHQ™, CMP™

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. 

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

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The Annual Gift Exclusion

Avoid Estate Taxes by Giving-it-Away

Staff Reporters

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

Gifting Limits

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

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

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

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

Direct Gifts for Medical or Educational Purposes

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

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

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

Gifts to Qualified State Tuition Plans

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

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

Gifts up to the Exemption Amount

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

Assessment

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

Conclusion

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Ensuring the Welfare of a Disabled Child

Special Financial Planning Techniques Required

By Roger J. Warrum

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

Estate Planning

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

Direct Bequests

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

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

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

Spendthrift Trust

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

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

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

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

Important Issues

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

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

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

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

Assessment

The key elements in planning for a disabled child include:

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

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

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

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

Conclusion

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

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Marital By-Pass Trusts

The Unified Credit Shelter Trust

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

 

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

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

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

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

Example 

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

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

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

IRS Language 

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

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

Example: 

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

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

Assessment 

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

Conclusion 

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

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Family Gifting and Physician Loans

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Physician Gift and Estate Planning

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

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

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

Marrieds 

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

Excess Gifts 

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

Lifetime Gifting 

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

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

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

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

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

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

Stock Gifting 

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

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

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

Conclusion

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Unlimited Marital Deduction

Understanding Physician Estate Planning

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

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Institutional: www.HealthcareFinancials.com 

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IRC §2032A Special-Use Valuation

Understanding Physician Estate Planning

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

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

 

“Highest and Best Use” 

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

All considerably more valuable than the farm might be worth.  

Enter Internal Revenue Code Section §2032A 

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

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

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

Major Requirements 

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

Assessment 

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

Conclusion 

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

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

Linguistics: www.HealthDictionarySeries.com 

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

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The Qualified Terminal Interest Property Trust

Understanding the QTIP in Estate Planning

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

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

QTIP Rules 

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

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

Assessment 

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

Conclusion 

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

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Linguistics: www.HealthDictionarySeries.com

IRC Section §6161 Extensions

Understanding Physician Estate Planning

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

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

Interest Still Charged 

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

Assessment 

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

Conclusion 

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

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

Linguistics: www.HealthDictionarySeries.com

IRC Section §303 Stock Redemptions

Understanding Physician Estate Planning

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

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

Recognizing the Dilemma 

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

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

Example:

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

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

Assessment 

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

Conclusion 

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

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

Linguistics: www.HealthDictionarySeries.com 

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

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

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Doctors and the Uniform Transfer/Gift to Minors Act

Dual Estate Planning and Educational Vehicles

By Lawrence E. Howes; CFP™

By Joel B. Javer; CFP™ 

 

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

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

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

Example 1: 

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

Example 2: 

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

Conclusion

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

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Non-Probate [De-facto] Estate Assets

Many Different Assets May Trap Uninformed Doctors

By Lawrence E. Howes; CFP™

By Joel B. Javer; CFP™ 

 

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

Several of these mechanisms are reviewed below: 

[A] Joint Tenancy

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

[B] Community Property

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

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

[C] Life Insurance       

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

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

[D] Retirement plans

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

[E] Revocable Living Trust

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

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

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

[F] Buy-Sell Agreements 

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

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

Conclusion:

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

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Linuistic terms:  www.HealthDictionarySeries.com

 

Charitable Giving Terms and Definitions for Physicians

A “Need to Know” Glossary for all Medical Professionals

Staff Writer’sdhimc-book

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

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

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

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

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

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

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

Glossary of Terms

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For related information: www.HealthDictionarySeries.com 

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

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Inheritance “Disclaimer”

What all Physicians Should Know

By Lawrence E. Howes; CFP™

By Joel B. Javer; CFP™fp-book1 

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

A Simple Definition

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

Formal Disclaimer Requirements

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

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

Intent and Results 

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

Assessment 

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

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

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

Conclusion:

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

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Related info: www.HealthDictionarySeries.com

What is the Probate Process?

Estate Planning for Medical Professionals

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

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

Definition and Terms

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

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

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

Probate Avoidance

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

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

State of Domicile 

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

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

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

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

Assessment 

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

Conclusion:

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

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A Brief Overview of Estate Planning for Physicians

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A “Necessary” Process for all Medical Professionals

[By Lawrence E. Howes; CFP™]

[By Joel B. Javer; CFP™]

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

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

-Dr. David E. Marcinko; MBA, CMP™

***

Mature female physician with PC

***

Introduction

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

What is Estate Planning?

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

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

Goals of Estate Planning 

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

· To maintain financial independence during your lifetime

· To reduce costs and not delay settling the estate

· To minimize estate taxes

·  To maximize the inheritance to chosen beneficiaries.

Your Estate Defined 

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

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

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

“Your “Covert” Estate Plan by Default

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

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

Transparency 

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

Common Estate Planning Impediments 

There are three common impediments to estate planning that include: 

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

 Future Assessment 

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

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

Conclusion

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

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

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Post-Mortem and Estate Planning Definitions for Doctors

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

Staff Writers

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

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

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

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

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

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

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

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

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

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

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

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

Alternate Valuation Date: Six months from date of death. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Disclaimant: The person who makes a disclaimer. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Nutrition counseling under the supervision of a registered dietitian.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Related info: www.HealthDictionarySeries.com 

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

Physician Buy-Sell Agreements

Federal Estate Tax Implications

Staff Writers

According to some tax experts, the US Tax Court suggests several generally accepted factors for making a medical practice buy-sell agreement valuation price binding for Federal estate tax purposes. 

Acceptable Factors

For example, among other items, the medical practice buy-sell agreement must include the following factors for Federal estate tax purposes: 

  • The price must be fixed or determinable;
  • The agreement must be binding on the parties during life and after death;
  • The buy-sell must have been entered into for bona fide business reasons;
  • The buy-sell must not be a substitute for testamentary disposition.

Reasons for Rejection

Yet, the courts have occasionally rejected using the price specified in a
buy-sell agreement to establish value for Federal estate tax purposes. Reasons for rejection may include:
 

  • The purchase price was not subject to any re-evaluation;
  • The payment terms were too generous (indicating the testamentary nature of the agreement);
  • The price was not supported by a professional fair-market valuation at the time the agreement was created. 

Assessment

Of course, the courts are likely to scrutinize any buy-sell agreement if the specified value does not reflect a current fair market value for the medical practice/clinic business entity. 

Conclusion

Physicians must make sure that their medical practice buy-sell agreements are backed by sound valuation principles that are acceptable in US Tax Court. 

And so, what are your experiences – if any – with this emerging and important situation?

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Terminal Illness and Anatomic Gifts

Placing your Affairs in Order

By Dr. David E. Marcinko MBA 

As a doctor, you face the realities of death on a daily basis. 

And so, if you are yourself diagnosed with a terminal illness the following may not be helpful to you, but might be of help your survivors:

· Increase liquidity to cover the costs of pre- and post- death expenses.

· Contract your local social security office to determine eligibility for  disability and death benefits.

· Determine the contents, and those you wish to have access to your safety deposit box(es).

· Since some states do not have death taxes, consider changing your domicile.

· Preserve your testimony to any outstanding claims or litigation regarding personal or professional affairs, through a formal legal deposition or other means. 

Also, as a lay or medical professional, consider organ donation since the supply of donated organs is dwarfed by the demand for them.  The Coalition on Donation is on a campaign to raise awareness of this need.  The decision to be an organ donation is personal and some healthcare professionals have philosophical or religious beliefs that prohibit this option. 

However, if you decide to be an organ donor, documentation and communication are the critical steps to insuring your wishes are carried out.

First, contact your local motor vehicle department and inform your family and loved ones. Then, inform your own personal physician in writing, and wear a donor identification bracelet – or something similar – that fits in your wallet or purse, so your wishes are known.

Assessment: Has the above information helped you turn a potential financial disaster into a manageable pitfall?

***

Risk Management, Liability Insurance, and Asset Protection Strategies for Doctors and Advisors: Best Practices from Leading Consultants and Certified Medical Planners™8Comprehensive Financial Planning Strategies for Doctors and Advisors: Best Practices from Leading Consultants and Certified Medical Planners™

Non-Resident Alien Physicians

Dual Citizenship

Staff Writers 

 

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

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

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

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

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

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

The Non-Citizen Spouse

IRS Code Differences

Staff Writers  

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

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

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

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

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

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Revisiting EGTRRA-2001

Basic Estate Tax Law Changes from EGTRRA-2001

Staff Writers

 

For some doctors, estate taxes will decline under the Economic Growth and Tax Relief Reconciliation Act of 2001, and about 2% of all taxpayers will be able to bequeath more to their heirs on a tax-free basis, up to one million dollars.

The amount exempted from estate taxes rose to $1 million in 2002 and to $3.5 million by 2009. The estate tax will not expire completely until January 2010. After that, the estate tax repeal is scheduled to last only one year. Congress must then either repeal the tax by December 31st, 2010, or the tax will revert to present day rates.

Some economists opine that this is an accounting artifact designed to curb the cost of legislation.  

The law also gradually reduced the estate and gift tax rates to 45%, from 55%, by 2007.

 

How will EGTRRA-2001 affect you going forward?