Married couples and Registered Domestic Partners have options when creating revocable living trusts. One option is the simple Probate Avoidance Trust, with the other option being an A/B Trust.
Probate Avoidance Trust
At the death of the first spouse (or partner), this Trust continues for the benefit of the survivor, becoming irrevocable only at the survivor’s death.
It is important to understand the survivor’s ability to change the terms of the Trust after the first death. Because the Trust remains revocable, the survivor has complete control over the disposition of the entire estate at their death. As a result, the survivor could exclude the children, heirs, or other intended beneficiaries of the decedent.
Another potential disadvantage of the simple Trust has to do with estate taxes. All Trust property passes to the survivor and if, at their death, the estate is over either the state estate tax exemption amount (currently $1,000,000), or the federal estate tax exemption amount (currently $11,400,000), an estate tax will be imposed. However, this can be addressed in a variety of ways, including the use of a Disclaimer Trust written into the main Trust. The main advantage to Disclaimer Trusts is that a decision to utilize it is not necessary until after the first death. However, disclaiming must occur within 9 months of the date of death, and so conversations about whether or not to disclaim must be had sooner rather than later after the first death.
This type of Trust calls for a mandatory split of the Trust assets into two new Trusts at the first death, one of which (the A Trust) remains fully amendable by the survivor, the other of which (the B Trust) is “born” an irrevocable Trust.
Historically, A/B Trusts were used to keep the decedent’s estate from ever being subjected to an estate tax, with the B Trust set up for the benefit of the survivor, and then out to the other beneficiaries at the survivor’s death. However, I now find that the simple Trust with the Disclaimer Trust language works better for most clients, giving them more flexibility and time to decide if they want (or need) to engage in estate tax planning.
I utilize A/B Trust most often when working with blended families, as a way for the decedent to retain control over their half of the estate after death. While the survivor typically receives all of the net income from the B Trust, extra provisions are likely added restricting the survivor’s access the principal of the B Trust and it is important to understand how these limitations may affect the survivor’s lifestyle. Because the B Trust is irrevocable, the decedent knows their estate will ultimately be distributed to their intended beneficiaries.Whichever type of Trust is ultimately chosen, it is important to understand that as circumstances change, amendments may be necessary. There is nothing wrong with this; in fact, I believe it is the mark of a good estate plan.
This organization is a long-time favorite of mine. Recently entering its tenth year, Music & Memory is a non-profit organization that brings personalized music into the lives of the elderly or infirm through digital music technology, vastly improving quality of life.
In April 2012, a documentary about our work, Alive Inside: A Story of Music and Memory, was previewed at the Rubin Museum of Art in New York City. A video clip of Henry, one of the residents reawakened by listening to his Cab Calloway favorites, went viral, now with more than 11 million views, boosting awareness and enthusiastic interest in our program.
As a musician, I can personally attest to the power of music. According to Music & Memory, researchers at University of Utah Health in Salt Lake City used brain imaging to demonstrate that familiar music may facilitate attention, reward and motivation, which in turn makes it more possible to manage emotional distress for people with dementia.
A pilot study at Columbia Health Care, Wisconsin, published in conjunction with Stephen Post, PhD, of Stony Brook University Hospital, indicates that listening to personal music favorites improves swallowing in individuals with advanced dementia, making eating easier and potentially diminishing reliance on feeding tubes.
In Scottsdale, Arizona, Kari Johnson, PhD, RN, with HonorHealth, examined the connection between listening to favorite music and delirium prevention in hospital trauma ICU settings. Her controlled study found that patients in the music intervention group experienced a statistically significant reduction in physiological measures of anxiety, a major factor in delirium onset.
I invite you to peruse their website and learn more about this amazing organization.
“What exactly is ‘planned giving’?” As both a Board Member of the Southern Oregon Repertory Singers and a Legacy Giving Legal Partner of the Oregon Shakespeare Festival, I am often called upon to explain what this is and how it works.
In its simplest form, planned giving enables individuals to make larger gifts to non-profits than they might otherwise be able to from their ordinary income. Planned giving can occur during life, at death, or a combination of the two.
There are three basic types of planned giving, each with their own benefits.
1) Outright Gifts. These are typically made with cash or appreciated assets, such as securities or real property. When appreciated assets are gifted to charities, the donor receives a charitable deduction for the full market value of the asset at the time of the gift and no capital gains taxes are triggered. However, once an outright gift is made, it is gone and irretrievable. Care must be used when making large outright gifts – we never know what is around the corner and if/when we may find that we need those assets to pay for our own care.
2) Gifts that Return Income to the Donor.Examples of these are charitable gift annuities, or charitable remainder trusts. Annuities provide fixed payments to the donor, starting at the time of the gift or at a later date. Charitable remainder trusts are a type of irrevocable trust providing the donor income payments during life, with the remaining assets passing to the charitable organization(s) named by the donor at the donor’s death. A tax deduction is available for the full, fair market value of the asset, less the present value of the income interest retained. And, as with all gifts of appreciated assets, no capital gains taxes are triggered by the transfer of the asset to the annuity or trust.
3) Gifts Payable at the Donor’s Death.Also called “Legacy Giving”, these are gifts made through the donor’s Will, Trust, or beneficiary designation. They may be a set dollar amount, or a percentage of the overall estate’s value. It is important to remember that gifts of specific dollar amounts are distributed before those set by percentages, and care must be used if making large monetary gifts so as to not unintentionally consume the estate, leaving little-to-nothing for the “residuary beneficiaries,” those we typically think of as receiving the bulk of our estate. No charitable deductions are available for this type of gift; however, it may affect one’s estate tax liability, especially for Oregon residents. The nice thing about this type of giving is that it does not affect one’s financial situation at all during life and is fully changeable until death.
It is imperative to seek professional tax advice before any type of planned giving is put into place. Working with a team involving both estate planning specialists, tax specialists, and financial planners will ensure that your ultimate strategy not only helps a charitable organization but protects your needs as well.