How Limited Liability Companies Are Used in Estate Planning

Limited Liability Companies (LLCs) have become more prevalent in recent years to pass wealth from one generation to the next, while reducing gift and estate taxes. With estate tax rates as high as 40%, LLCs offer business and property owners an excellent opportunity to reduce taxes.

They have the added benefit of preventing business owners from being personally responsible for the company’s debts and providing protection from creditors. If the company files for bankruptcy or is sued, the owner’s personal assets cannot be attached. Of course, this protection is lost if a creditor has required a personal guarantee.

Why is an LLC Good for Estate Planning?

The IRS allows lifetime gifting of interests in an LLC with discounts of up to 40% of their value. Shares can also be gifted to family members without losing control of the company. Further discounts are applicable if the business owner gifts several children with a minority interest in each child. This means more estate may be transferred to heirs before reaching estate and gift tax thresholds.

The valuation discounts available when using an LLC result from several factors:

• Lack of marketability: the LLC is not publicly traded, so it has little or no market value.
• Lack of control: Shares give people ownership but no ability to control the LLC.
• Minority share: if each gift of an interest in the business is small enough, the shares are worth even less because the shareholder has less control of the business.

How is an LLC Structured?

Like a trust, the LLC is a separate legal entity. An LLC defines the owners as “members” and can include family members as well as other LLCs. LLCs are taxed as partnerships, which means the income from the LLC is divided among individual member’s taxes.

Establishing an LLC requires an operating agreement that outlines ownership percentages, transfer rights, decision-making powers and day-to-day operations. The operating agreement may restrict members’ ability to transfer interests in the business, especially to non-family members.

The operating agreement needs to identify the primary manager of the LLC and a secondary family member who will take over when the primary manager dies. An LLC member can own 99% of the equity but has no control if they are not a manager.

The operating agreement establishes rules for members regarding any acts impacting the LLC’s status. For instance, it may require all owners and managers to consent before dissolving the company.

Parents often create a family LLC with their children as members. The parents manage the LLC, and children or grandchildren hold shares without management or voting rights. Parents can buy, sell, trade, or otherwise distribute LLC assets.

The company is not treated separately from its owner, and any income earned by the LLC is taxed as income earned by the owner. Members report profits and losses on their individual tax returns; the LLC is not itself a taxable business entity.

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Avoiding Probate with Proper Estate Planning

Probate is the court process whereby a last will and testament is reviewed to ensure that it complies with the state’s laws. The court also approves the appointment of the executor. The will is then entered into the public record, making it available for review by anyone, from thieves to nosy family members.

In most jurisdictions, all beneficiaries and fiduciaries named in the will and any people who might be heirs by kinship if there was no last will must be notified about the last will being submitted to the court. If there is dissent, interested parties may challenge the last will during probate.

If there is no last will, the court appoints an administrator instead of an executor. The court is not obligated to name a family member, and the estate pays the administrator. The fee depends upon state law and the value of the estate.

Probate can take years if the estate is complicated or if there is no last will.

Assets Distributed Directly to Beneficiaries Are Not Part of the Probate Estate

Trusts are often used to protect assets from probate. When structured properly, assets in a trust are owned by the trust and managed by the trustee. When the grantor dies, the successor trustee takes control. Assets in trust for beneficiaries go directly to heirs and don’t go through probate. As a result, there’s no court involvement and no public record.

Another way to remove assets from the probate estate is to retitle them so they are owned by two people, referred to as “joint tenants with rights of survivorship.” When one of the owners dies, ownership passes to the surviving owner. However, if one of the joint owners has credit problems or goes through a divorce, the assets are vulnerable, so this must be done carefully. Finally, at the death of the last surviving owner, the assets are subject to probate due to the lack of a living owner.

Naming Beneficiaries on All and Any Assets

Assets with beneficiary designations pass directly to beneficiaries. This includes investment accounts, life insurance proceeds, retirement accounts and any assets featuring beneficiary designations. An estate plan review should always include checking and updating beneficiary designations to ensure that the right person is named, especially if the accounts have been owned for many years. Assets held as joint tenants with rights of survivorship may avoid probate upon the death of the last surviving owner if state law permits “transfer on death” or “pay on death” designations to be used on such assets as real estate, bank accounts, brokerage accounts and even motor vehicles.

Gifting While Living, Either to Charities or Individuals

If your financial situation allows, making gifts and donations while living removes assets from your probate estate. Donations to qualified charities can be made in many ways, from outright gifts to setting up a Charitable Remainder Trust or a Charitable Lead Trust.

Structured gifting is another way to remove assets from the probate estate. In 2024, any person may make gifts of up to $18,000 to as many people as they wish without being subject to gift tax or having the amount applied against their lifetime gift tax exemption. A married couple may gift up to $36,000 to anyone they wish.

With focused estate planning, it is possible to minimize the assets going through probate, make the distribution of assets more efficient, minimize tax liabilities and avoid family discord.

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Estate Planning with a Special Needs Trust

A Special Needs Trust, or SNT, protects a person with a chronic disability and supplements means-tested government benefits, like Medicaid and SSI (Supplementary Security Income). Trust assets improve the quality of their lives by paying for things not covered by government programs.

There are different types of Special Needs Trusts.

The “First-Party” SNT, also known as a “self-settled” trust, is funded with assets or income belonging to the individual who is also the beneficiary of the trust. The trust must be irrevocable and must reimburse Medicaid upon its termination or the death of the beneficiary. These trusts are typically funded with assets from a personal injury settlement or an inheritance.

Another type of SNT is the “Third-Party SNT,” also known as a “Supplemental Needs Trust.” The trust may not own any assets originally owned by the disabled individual. The assets for the Third Party SNT usually come from life insurance proceeds, gifts, or inheritances from parents or grandparents. There’s no requirement for the trust to reimburse Medicaid, and the person creating the trust—the Third Party—determines how to distribute the remaining assets on the beneficiary’s death.

A “Pooled” Self-Settled SNT is an SNT managed by a nonprofit organization, typically to benefit people over 65. Donors deposit funds into a pooled trust, which goes into separate accounts for each beneficiary. When the beneficiary passes, the nonprofit organization keeps the remaining funds.

Are There Limits on How SNT Funds May Be Used?

SNT funds must be used solely for the benefit of the disabled individual. However, this can become complicated. Funds may be used for special therapies or training, for example. However, payments should be made directly from the trust to the provider. Giving money to the beneficiary to pay the provider could put SSI/Medicaid benefits at risk, since it may be considered income.

Funds from the SNT should not be used for food, shelter, or clothing, since this is what SSI benefits are intended to cover. The SNT funds may be used for recreational activities, entertainment, online services, computers and other electronic devices, medical equipment or services not covered by Medicaid, transportation costs, personal items and household items.

What is the Goal for the SNT?

The purpose of an SNT is to help individuals with special needs have a better quality of life by paying for things not covered by SSI or Medicaid. Adhering to the rules is very important to protect their eligibility for benefits.

Special Needs Trusts and Estate Planning

Creating an SNT should not take place in a vacuum. If the family is creating the trust so the individual will have resources after the passing of the last surviving parent, the SNT must be structured to comply with Medicaid and SSI regulations and align with the family’s estate plan.

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How to Avoid the Most Common Estate Planning Mistakes

Being aware of the most common estate planning mistakes can help you and your loved ones prevent unnecessary stress and expenses. Here are some of the top offenders:

Handwritten or Generic Online Wills

Handwritten wills or generic online wills create a legacy of trouble. Wills prepared without professional guidance are often considered not valid by the courts. When this happens, the state’s laws determine asset distribution, no matter what the individual might have wanted.

Outdated Wills

Relying on an outdated will could lead to serious unintended consequences, including disinheriting children, giving a surprise gift to an ex-spouse, or having your pledge to leave assets to a charity go ignored.

Issues with “Payable on Death” Accounts

Trying to avoid probate by retitling your accounts as “Payable on Death” can cause more problems. Why? If one child takes ownership, they have no legal obligation to share assets with other heirs. If the goal was to have heirs inherit equal shares and one child receives all assets, would they be balanced with other assets via trusts or through probate? What about an equitable share of the tax burden?

Lack of Incapacity Planning

Incapacity happens unexpectedly. Suppose you have prepared a financial durable power of attorney and a health care power of attorney. In that case, a named person can take over tasks like paying your bills and being involved with your healthcare decisions. Without these documents, your family will need court-ordered guardianship to be involved in healthcare decisions, manage your household and plan for whatever care is needed next. This might include making arrangements to move to a rehabilitation facility or applying to Medicaid for long-term nursing care.

Ignoring Beneficiary Designations

Failing to update beneficiary designations can lead to family fights and court battles. If your will leaves assets to your children, but the person named on an account as a beneficiary is a niece, your niece will receive the assets. The last will and testament does not override beneficiary designations or trust directions.

Misplacing Estate Planning Documents

Not telling family members where estate planning documents can be found or putting them in a safe deposit box is asking for trouble. In most states, the box is sealed upon the owner’s death. Only a court order will compel the bank to open it. If a last will includes funeral instructions, they may not be seen for weeks or months after the person is buried. Funeral directions won’t be followed if the will cannot be located promptly.

Unfunded Trusts

If a trust is created and not funded, it can’t do what it was intended to do. Trusts are great tools for many issues, such as keeping assets private, minimizing tax liabilities and establishing specific conditions for using funds. However, without funding, the entire estate plan may be undone.

Failing to Have an Estate Plan

The worst estate planning mistake is failing to have an estate plan. Many people think they need to have a certain level of assets before they need one. However, estate planning protects modest estates as much as large ones. In fact, a modest estate may benefit more. By planning to have assets transferred to the next generation, even a small wealth transfer can help secure the future of the next generation.

Conclusion

Avoiding these common estate planning mistakes can save your loved ones from unnecessary stress, legal complications and financial loss. By taking the time to create a well-thought-out estate plan, you can ensure that your assets are distributed according to your wishes and your family’s future is secure. Contact an experienced estate planning attorney today to discuss your needs and create a comprehensive plan that protects your assets and provides peace of mind. Reach out now to schedule a consultation and take the first step towards safeguarding your estate.

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Safeguarding Your Estate When Not All Heirs Are Alike

Whether the family includes adults who can’t be trusted with an inheritance or parents who wish to leave different amounts to different children, estate plans can be used to productively address issues while protecting the family’s legacy.

What if there are heirs who can’t manage money?

When an heir can’t manage assets, a trust can be established with language detailing how assets will be distributed. Trusts may be made conditional, requiring the beneficiary to meet certain milestones. Steady employment, a series of negative drug tests, or completing a semester of college could be required before funds are disbursed. In these situations, a professional trustee familiar with trusts, including discretionary provisions, will be a better choice than a sibling, who may struggle with the role of enforcer.

How do you plan for an heir’s possible future divorce?

It is always wise to prepare inheritances for the possibility of divorce, even when it seems unlikely. If the couple doesn’t have a pre- or postnuptial agreement, placing the inheritance in a trust adds a layer of protection, that is useful even if the state’s laws consider an inheritance as separate property. A trust also avoids having inherited assets comingled with marital property. Nevertheless, beneficiaries need to be mindful of this. Once the funds leave the trust and are deposited into joint accounts or used to purchase a jointly owned property, they are no longer separate property.

Do inheritances have to be divided equally?

There is no legal requirement for inheritances to be divided equally among children, although many people do this to prevent resentment. If one child devoted time and sacrificed earnings to care for a parent, or if gifts were made during the parent’s lifetime to one child and not the other, an unequal inheritance may be a way to balance the scales.

If the inheritance is unequal, a frank conversation should take place so heirs understand the parent’s thinking. Leaving a mystery is a poor legacy and could lead to litigation among family members.

Is leaving an inheritance to a minor an alternative to leaving money to a dysfunctional adult?

In a word, no. Grandparents who leave assets to minors have their efforts undone, since minors may not directly inherit or control money or property. The inheritance will be managed by a guardian, which could end up being the parent the grandparents didn’t want to receive the inheritance in the first place.

What is the executor’s role in inheritance and potential disputes?

Choosing an executor can be a challenge when creating an estate plan. Siblings who don’t get along may resent the one in charge. However, naming multiple executors can stall progress in settling the estate if they don’t agree.

Confronting challenging family dynamics when creating an estate plan presents an opportunity for parents to develop a plan for the family’s future. Ignoring the dynamics and leaving it for the children to “work it out” rarely ends well. Depending on the situation and the size of the estate, there are numerous strategies to use.

The best approach is to evaluate your options with an experienced estate planning attorney.

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What are the Estate Planning Recommendations for Unmarried Cohabitating Couples

Estate planning prepares couples who cohabitate without getting legally married for the vicissitudes of life. Failing to do estate planning properly can lead to long-term life partners being unable to participate in major medical decisions for their loved ones, risk being evicted from their homes and, in extreme cases, being impoverished. Estate planning for unmarried couples is an act of love and kindness.

Property Ownership for Unmarried Couples

The duration of a relationship has no bearing on ownership or accessibility to a residence. If a couple has been living in the same home for decades but only one person is listed on the deed, only the person on the deed owns the home. Even a well-meaning provision in a Last Will and Testament giving a partner the right to live in the home will not change the ownership status.

If heirs wish to sell the home and evict the partner, they have the law on their side. Even if both partner’s names are on the mortgage, unless both names are on the deed, only the one whose name is on the deed is the legal owner of the property. Changing the title of ownership to both partners can protect the surviving partner’s right to remain in the home.

Being Involved in Medical Decisions

Unmarried couples have no legal rights regarding each other’s healthcare, from making treatment decisions to talking with healthcare professionals to navigating insurance matters. With the right estate planning documents, however, anyone can give another person the power to care for them in case of illness, injury, or incapacity.

Documents vary by state, but they generally include Power of Attorney, Healthcare Proxy, Advanced Care Directives, HIPAA Release forms and Living Wills. Be certain to have these documents properly prepared, executed and readily available in case of an emergency.

Personal Property and Asset Distribution for Cohabitating Couples

Having a Last Will and Testament is critical for nonmarried couples who wish to leave assets to each other. If there is no Last Will, each state has laws of intestacy, usually based on biological kinship. A person who is estranged from their family and has no will may have all their worldly goods inherited by a parent or a sibling. Regardless of the decedent’s wishes, their unmarried partner will have no legal recourse.

Estate Planning for Partners and Minor Children

Parents use a Last Will and Testament to name a guardian for their child in case they become incapacitated or die when the child is a minor. This is especially important for the child of a couple who has not married. Suppose the biological or adoptive parent does not have a Last Will and Testament. In that case, the court will determine which family member may take custody of the child or may place the child in foster care until the guardianship matter is worked out.

Estate Planning to Protect Unmarried Partners

Finally, unmarried partners need to address tax planning in their estate plan. When the first spouse in a married couple dies, the surviving spouse may inherit assets with little or no tax implications. The unmarried couple does not enjoy the same benefit. Trusts or other estate planning strategies should be discussed and executed long before they are needed.

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What Women Need to Know About Estate Planning

Estate planning is different for women, who tend to live four to five years longer than spouses. They are more likely to devote years away from the workforce, while raising families and caring for aging parents or relatives. While so much of women’s lives are devoted to others, its important for women to protect themselves with planning for the future, including planning for incapacity, taxes, and the distribution of assets after death.

The Biggest Mistake Women Make in Estate Planning

No one wants to contemplate their own death. However, failing to plan for death or incapacity is the biggest estate planning mistake. Once a person is incapacitated, they cannot create or sign legal documents. The time to create or update an estate plan is when you are still healthy and of sound mind.

Planning for Incapacity for Self and Spouse

Americans are living longer. However, with longevity comes an increased likelihood of mental and physical decline in one’s later years. A General Durable Power of Attorney appoints an agent to manage your legal and financial matters in case of incapacity. A similar document, Healthcare Power of Attorney, is needed for an agent to take charge of your medical care. Every adult woman also needs a HIPAA release form, so her designated contact person can interface with health insurance representatives and medical providers.

How Estate Planning Intersects with Tax Planning

Women who outlive their spouses often become the sole beneficiary of the estate. Taxes may not be an issue on the death of the first spouse. However, the death of the second spouse may trigger federal estate taxes, state estate taxes and/or inheritance taxes. Trust planning by married couples may alternatively allow the surviving spouse to enjoy lifetime access to the trust assets, while minimizing or eliminating such eventual taxation for heirs.

Blended Families Require More Attentive Estate Planning

Women in second marriages with children from a prior marriage need to protect their children from being accidentally disinherited if they predecease their current spouse and have left their estate to their spouse. Some states allow a surviving spouse to take an elective share of the deceased spouse’s estate, regardless of the terms of their estate plan. There are states where the elective share includes only the probate estate. In contrast, in other states, it applies to the “augmented” estate and includes revocable trusts, life insurance policies, or other assets that are otherwise transferred by beneficiary designations.

Special Estate Planning for Single Women

Single women need an estate plan, regardless of the size of their estate, to protect themselves in case of incapacity and to settle their affairs after they pass. Start by identifying a person you trust completely and who lives nearby. The best candidate may be someone younger than you, perhaps a niece or nephew. Talk with them about whether they are willing to take on this responsibility.

Estate Planning Throughout Life

Mothers of minor children need a last will to nominate a guardian, while senior women need documents to prepare for incapacity and may need trusts to protect assets. Regardless, the protection afforded by a well-designed and properly maintained estate plan works at all stages of a woman’s life.

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Trust Planning for Minors

Minors are not allowed to inherit property directly. Therefore, if no estate planning has been done and property is left to a minor, more than a few problems will be created. The family must apply to a court to appoint a guardian who will be responsible for the assets until the minor becomes of legal age.

Here are just a few scenarios that may result if a minor is left property directly:

• The court-appointed guardian may not understand the heir or the family’s dynamics, causing friction and possible litigation.
• If the court-appointed guardian is a family member, there may be resentment about their control of assets and the decisions made.
• Fees will need to be paid to the guardian, shrinking the inheritance.
• The child will receive their entire inheritance at age 18, when few teenagers are responsible enough to manage significant assets.

Creating a trust for a minor offers a better solution and pre-empts many of the problems associated with guardianship.

What kind of trust should be created for a minor?

The type of trust created depends on the trust’s short -and long-term objectives. If the goal is to create a trust to manage funds for the minor’s support and education, a testamentary trust created under their parent’s last will and testament may be appropriate. The trust takes effect following the probate of the last will. All assets passing through probate designated for the minor are transferred to the trust and managed by the trustee. The trust can exist for as many years as desired, eliminating the possibility of the minor inheriting a large sum when reaching the age of majority.

A life insurance trust could receive proceeds from a life insurance policy, with the assets being managed and distributed at the trustee’s discretion. Insurance companies cannot directly give proceeds from a life insurance policy to a minor. The trust, not the child, is the beneficiary of the insurance policy, and the trustee follows the directions in the trust.

An incentive trust is just as it sounds: a trust with specific language directing assets to be used for the minor child to meet certain goals. Completing a college degree, buying a first home and staying employed for a certain period are all typical goals set by trusts. There are also spendthrift trusts designed to protect assets from being lost to reckless spending habits and disregard for the value of the inheritance.

Can minors with disabilities inherit assets?

A child with special needs who receives government benefits, including Medicaid, could lose their eligibility if they inherit assets directly. Parents or grandparents of such minors should be mindful to only leave any inheritance to the child in a special needs trust.

What about UGMA accounts for minors?

Custodial accounts under the Uniform Gifts to Minors Act, known as UGMA accounts, were created to allow financial assets to be given to minors. However, once the child reaches the legal majority, they control the account, which can lead to an 18-year-old making bad and expensive decisions.

Trusts provide superior protection.

A trust may take more time to set up than other options. However, it is the best way to protect the minor child and the inherited assets. The planning should be done in concert with the overall estate plan to ensure its effectiveness and take advantage of tax benefits.

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What is Holistic Estate Planning?

There are no candles to light or incense to burn when creating a holistic estate plan. Instead, the term refers to an estate plan addressing an overall plan for incapacity, taxes, property distribution and, if applicable, business succession.

Holistic Estate Planning is Planning for Life

All adults should have documents including Power of Attorney, Healthcare Power of Attorney, Advanced Directives, DNR (Do Not Resuscitate), MOLST (Medical Orders for Life-Sustaining Treatment; the name varies by state) and other documents used during your lifetime.

This can be uncomfortable, as the process forces consideration of physical vulnerability and mortality. However, giving thought to your wishes and expressing them in enforceable documents provides peace of mind for you and your family.

Planning for Taxes

For now, most Americans don’t reach the federal estate tax. However, state estate taxes are likely to be levied against your estate. Consider also how inheritances may have an impact on heirs’ taxes. If your goals during earning years and retirement include reducing taxable income, your estate plan can also address these goals.

Estate Planning

Wills and trusts are the foundation of an estate plan, used to pass assets to beneficiaries and minimize taxes. Assets passing through a will go through probate, while assets held by a trust are distributed according to the terms of the trust. Sometimes, life insurance policies are combined with wills and trusts to balance inheritances, so heirs receive equal portions.

Don’t neglect personal possessions, which can be distributed through the last will and testament. People underestimate the emotional weight of personal possessions, even those with little financial value, and the disputes their distribution can engender. If the estate includes high-value items, have appraisals done by a professional while the estate plan is being prepared.

Real Estate Property

Addressing ownership and distribution of real estate assets is needed for single-family homes, rental properties, or vacation homes. If siblings have different ideas on what should happen to the family home on the death of the second parent, the family could quickly become engaged in a dispute or litigation.

Some families create Limited Liability Corporations (LLCs) when all siblings want to keep the real property, with the attendant requirements of required reporting and taxes for the LLC, assigning shares and maintaining the property.

Business Succession

A succession plan makes it more likely for a family business to continue operating after its founders have passed or retired. Succession planning should be done once the business has achieved stability. However, it is typically not done until the owners create an estate plan and prepare for retirement. One critical question: is the business expected to fund the founder’s retirement? If so, how will this be accomplished? What will their shares be if family members are not involved in the business? Succession planning should be started long before being executed.

Benefits of a Holistic Estate Plan

Treating the entire estate plan as a cohesive unit reduces inefficiencies and provides ample opportunities to “cross-check” the plan. This worthwhile endeavor creates a plan for the future, protecting individuals and their families for life’s eventualities.

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Long-Term Care and Taxes

No one wants to need long-term care, whether at home or in a nursing facility. However, studies show that nearly 70% of all people now age 65 will eventually require long-term care to help with activities of daily living. ADLs include tasks like bathing, dressing, toileting, preparing food, mobility and eating. If long-term care becomes necessary, there are a number of tax matters to consider concerning the cost of long-term care and long-term care insurance.

Are Long-Term Care Premiums Tax Deductible?

If you were savvy enough to purchase a long-term care policy when you were relatively young and healthy, all or a portion of the premiums may be tax deductible. Rules regarding tax deductions are state-specific. In some states, the entire premium is deductible, while in others, only a portion is eligible for a tax deduction.

Qualified long-term care premiums, up to a limit determined by the IRS, can be included as medical expenses on Form 1040, Schedule A, Itemized Deductions, or in calculating the self-employed health insurance deduction.

Are Long-Term Care Medical Costs Tax Deductible?

For any medical deductions to be acceptable to the IRS, they must be prescribed by a licensed health care practitioner and be related to the person’s chronic condition. This is true regardless of where care is provided—at home, in an assisted living residence, or a skilled nursing care facility. Care may include rehabilitative or therapeutic treatment, personal care, or other qualifying services. If the main reason for being in an assisted living or nursing home is to receive medical care, the cost of room and board (food and lodging) may also be tax deductible.

Will Taxes Be Due on LTC Benefits?

Generally speaking, benefits payments received under qualified long-term care insurance policies are federal income tax-free. To be eligible for this tax treatment, policies must be guaranteed renewable and can’t have any cash surrender value. Money from the policy must not be available to be paid, assigned, pledged, or borrowed. Finally, the policy may not pay for or reimburse expenses reimbursed under Medicare.

All of these tax deductions become more valuable as one ages. Income drops for most people during retirement. At the same time, the likelihood of having higher medical expenses increases dramatically once you reach age 60.

What If You Don’t Have Long-Term Care Insurance?

In some cases, it is possible to purchase a life insurance policy with a Long-Term Care rider, known as a hybrid insurance policy. This allows a surviving spouse or family member to receive a partial or full death benefit, while part of the policy’s death benefit can be used to pay for long-term care. The death benefit will most likely be reduced if the policy’s LTC benefits are used. However, this is usually the point of purchasing the policy.

Planning for Long-Term Care

Think of planning for long-term care as another way to protect your family from one of life’s unpleasant realities. It’s a necessary task, and once completed, it will provide you and the family with peace of mind, knowing that you are ready for whatever the future may bring.

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