Law News and Tips
Fred L. Vilbig © 2017
I often say that a good estate plan is where five years after mom and dad are gone, the kids still celebrate holidays together. When it does happen, it’s a joy to see, but I’m afraid it’s pretty rare.
Some of the time the divisions are not immediately apparent. I remember one family early in my career. There were four kids, and only one of them was married. Two of the sisters lived together, and a brother lived nearby. The married sister lived in the area as well. They came in together to plan their estates, and all seemed fairly happy.
Then one of the sisters died. She had named a niece as the personal representative. They all came in to talk about probating the estate. The senior partner of our firm started the meeting with a pretty stern warning that if any disputes came up, everyone except the niece would have to leave the conference room. I guess he had a sense that something was up.
Within 10 minutes (maybe even five), they were at each other’s throats. I don’t even remember what the issue was. I was stunned. The partner was yelling for everyone but the niece to leave. That was a rude introduction to what money can do to the family dynamic.
Other times the conflict is well-known. I recently met with a woman whose sister was refusing to cooperate and was using trust assets for her own benefit. The mother had named both daughters as co-trustees, so the use of trust assets for personal benefit was clearly a breach of fiduciary duty. My client was not happy and wanted to get her sister out. The trust was basically paralyzed.
There was another problem. Although mom had created a trust, for some reason she did not transfer her bank accounts into the trust. She added pay-on-death (“POD”) clauses on all of them naming both of the daughters as the beneficiaries of the accounts. My client had gone to the bank to cash out her share of the accounts, but the bank refused. It turns out that if there are multiple beneficiaries on a POD account, no one can get anything out of the accounts unless all the POD beneficiaries are there. The banks don’t want to get in the middle of any conflicts.
Normally it’s easy to get people together when they’re getting money. In the case of the sisters, the one sister refused to show up. Apparently she would rather not have the money if it meant that her sister would get some money. Things don’t always have to make sense. Litigation may follow.
So what are parents supposed to do? I typically discourage multiple trustees. I like one person to be in charge. If there are multiple trustees, I like having an odd number so that a tie vote is unlikely. If the sibling conflict is obvious to the parents, then a relative, friend, or corporate trustee may be in order. It just depends.
In any event, parents need to honestly assess their children’s relations. Otherwise, the kids might end up with a paralyzed estate.
ELDER LAW PLANNING:
PROCEED WITH CAUTION
Fred L. Vilbig © 2017
“Elder Law” keeps popping up, and not in a particularly good way.
I’ve recently met with a couple of clients who as part of an elder law plan put together an irrevocable trust and transferred most of their assets into it. The problem with this plan is that it is basically irrevocable. Although the makers of the trust typically retain the right to the trust income, they are irrevocably giving away the principal, the underlying assets. One of the clients had their air-conditioner go out after they gave everything away, and they didn’t have enough money to pay to fix it. Things got hot. Another client didn’t do the math right and ran out of money.
For anyone in this predicament, there may be a way out, but it does cost money. It also requires the cooperation of everyone involved. The trust makers and all the beneficiaries (this even includes the kids who now have a right to the principal) may be able to enter into what is called a “nonjudicial settlement agreement” (an “NJSA”), but depending on the situation, an NJSA may not work. The other alternative is to go to court. Never a good thing.
Elder Law planning requires some careful, conservative calculations. Clients need to make sure that if they irrevocably put their savings into a trust, they will still have enough money to live on and to meet any reasonably foreseeable emergencies. It may be that they can only put part of their savings into such a trust and keep part of it out as a rainy day fund. Of course, assets that are left out could be lost to pay for medical costs, but I’d rather have clients run that risk than to just run out of money.
Another issue clients need to consider is what of their assets can be transferred into an irrevocable trust. For instance, if you transfer an IRA (many times a client’s largest asset besides their house) into an irrevocable trust, that constitutes a taxable event which accelerates all the unpaid taxes on the entire amount. That’s probably a bad plan. It’s questionable (and probably ill-advised) whether clients can transfer their homes into an irrevocable trust while they are still living there. You probably can transfer life insurance in, but then you have to figure out how premiums will be paid. It gets complicated.
In any event, irrevocable income trusts can be useful planning tools, but they are not for everyone. Clients need to plan very carefully before creating one. After all, they are irrevocable.
Contact Fred now about your situation. The first consultation meeting is free.
HURRICANE RELIEF FROM THE IRS
Fred L. Vilbig © 2017
Retirement plans are designed for… well, retirement. You put tax-deferred income into the plan to grow tax deferred. Beginning at age 59 ½, you can start withdrawing plan assets and just pay the income tax on what you take out. The assets that remain in the plan continue to grow tax free. Beginning at age 70 ½, a plan beneficiary must begin taking out a minimum amount (the “required minimum distribution” or “RMD”) which is a pro rata amount based on the participants life expectancy.
If a participant begins withdrawing money too soon, there is a 10% early withdrawal penalty. Some (but not all) plans allow participants to borrow funds, but there are restrictions. If the plan includes the required language, you can borrow up to the lesser of $50,000 or one half of the amount in the plan. You have to pay the loan back in five years in at least quarterly equal payments of principal and interest. Finally, the loan must be evidenced by a legally enforceable agreement.
In two recent Announcements (Announcement 2017-11 and 2017-13), the IRS has loosened these requirements for victims of Hurricane Harvey in Hurricane Erma. People who live or work in one of the Texas or Florida counties identified by FEMA for individual assistance are eligible. The IRS wants employers to try to comply with the requirements, but they sympathize (a word rarely used in the context of the IRS) with the victims of the storms. Therefore, eligible individuals can access their retirement assets to make it through the storms and to rebuild.
I recognize that St. Louis was not affected by the storms. However some readers may have family in these areas. If so, they may want to get in touch with them to let them know that they can contact their employers about accessing these retirement funds. Yes they will have to pay it back, but it is a source of funds during very difficult times.
Fred L. Vilbig ©2017
Whenever clients with trust-based estate plans sign their documents, we handle their real estate with a deed of some sort and their stuff (i.e., their tangible personal property) with an assignment.
With regard to their other assets, we typically don’t get actively involved. As Abraham Lincoln once said (and you should always quote Honest Abe to make a point), “A lawyer’s time is his stock in trade.” That is, all a lawyer has to sell is his or her time, so if they do work for someone, they are going to charge them.
To keep costs down, we give clients a detailed letter about funding their trusts. We tell them to go to their bank, their investment advisor, their broker, and their insurance agent. Clients just need to show them the letter and say “Do what he says.”
That almost always works… except with retirement accounts. Retirement accounts include IRAs, 401(k)s, and 403(b) accounts to name the most common ones. As you probably know, these are accounts in which you can deposit pre-tax money, let it grow tax deferred, and take it out after you reach 60. You only owe tax on what you take out, when you take it out. Of course, once you reach 70 ½ you have to take out your “required minimum distribution” (your “RMD”), but anything left in the account grows tax-deferred. It’s a good retirement plan many people take advantage of.
I’m going to focus on IRAs here because that is where most of the money ends up. If you are participating in a 401(k) plan, when you retire, they’ll probably make you roll it over into an IRA. You’ll have to be careful doing that too since there are time limits.
When someone has a trust-based estate plan, if they’re married, we always tell them to name his or her spouse as the initial IRA beneficiary. That allows for the maximum planning opportunities on the death of the first spouse to die. The surviving spouse can do a tax-free rollover, and there may be some tax benefits available. You want to leave your options open.
But on the death of an IRA owner where there isn’t a surviving spouse, I tell clients to name the trust as the beneficiary. In 2015, the US Supreme Court ruled that an inherited IRA is liable for bankruptcy claims. I haven’t seen the cases, but I’d have to think that regular lawsuits won’t be far behind. Running an IRA through a trust can give a beneficiary some asset protection.
Here’s where we get the questions. Some financial planners worry that if you name a trust is the beneficiary of an IRA, on the death of the employee/owner, all of the assets in the IRA will become immediately taxable. That is not true.
In 1999 the IRS promulgated some regulations to cover this very point. They said that if your trust contained their magic language, it would not cause the immediate taxation of 100% of the IRA. But what the IRS said was that the trust could not hold on to the IRA distributions. If the trustee received the RMD, it had to pass it through the trust and pay it to the named beneficiary. If there are multiple beneficiaries, then the IRA administrator can break the IRA into equal subaccounts for each beneficiary, but each payment still had to pass through the trust to the appropriate beneficiary.
That has been the law since 1999. I can point to the section in the trust agreement with the magic language, but we still get pushback. Maybe it just seems like it’s too good to be real, but here it’s real.
HIDING THE WILL
Fred l. Vilbig © 2017
Sarah (not her real name) has had a rather difficult life. She married a guy who turned out not to be Prince Charming. He divorced her and left her in financial difficulties. She’s had a number of jobs, but none of them really paid well.Just enough to pay her bills. She’s had a tough time.
When mom and dad were getting older, Sarah volunteered to move in to help them continue to live at home for as long as they could. Like most of us, mom and dad did not want to go into the nursing home. Sarah’s siblings were okay with this arrangement. It meant that someone would be in the home at least part of the time to help take care of their parents.
None of the other siblings know if Sarah had any conversations with their parents regarding compensation. She did get free room and board while she was living there, but there doesn’t appear to of been anything in writing with regard to any further arrangement. I think the siblings thought that Sarah was doing it to help out, but also to help her get back on her feet.
Dad died a few years ago, and mom died recently. After the funeral, Sarah’s siblings began asking some questions about what was going to happen to the house and their parents other assets. Sarah has suggested that it should all be hers since she took care of her parents. Her siblings are okay with Sarah getting something, but all? The siblings think that Sarah had her name added to their parents’ accounts, but we know that the house is in their parents’ names. Sarah says there’s a will, but she seems to be giving everyone the runaround regarding producing it. It probably says something that she doesn’t want it to say. The siblings now want to talk to an attorney.
If the will of a Missouri resident is not probated within a year of that person’s death, it cannot be admitted to probate. Filing a will for probate is important.
If anyone has the will of a Missouri decedent in their possession, the law says that they “shall” file it with the proper probate court. If the person having custody of the will doesn’t produce it, then the heirs need to petition the court to open an intestate estate – that is, an estate without a will. They then need to file a motion with the court to issue a summons and compel the person to produce the will. That means a visit by the sheriff. And if the person still refuses to produce the will, it could mean a stay in jail.
Needless to say, it’s not a good thing to hide a will.
Fred L. Vilbig © 2017
I once had a client whose business consisted of a list of licensed medical professionals. Hospitals and other medical facilities were in chronic need of these professional, but they were unable to hire enough of them. The professionals in question usually did not want to be full-time employees; rather, they just wanted to work part-time. My client identified healthcare facilities that needed these professionals and then let the professionals know of the opportunities.
This was actually a lot of work. The owner was constantly meeting with different facilities and working out the details and then recruiting professionals to fill the jobs. She wanted to get paid for her work. The healthcare facilities wanted to cut costs by getting around my client, so we had all the professionals sign agreements saying that they agreed not to take a job at one of these healthcare facilities. This kind of an agreement is often referred to as a “non-compete”.
Simply stated, a non-compete agreement prohibits a former employee from competing against a former employer. Courts don’t necessarily like this kind of thing. It’s kind of un-American to keep someone from working. However, courts realize that businesses have the right to reasonably protect real business interests. If a company invests in an employee by training him or her to do a job or provide them with the names of customers who have been discovered through hard work, courts will protect these kinds of business interests. However, a non-compete restriction is not unlimited.
These restrictions need to be reasonable as to time and distance. If a business’ legitimate market is only in Chesterfield, a court will not enforce a non-compete against a former employee setting up shop in Columbia, Missouri. And if a company’s customer list completely changes every two years, the court is not going to enforce a 10 year non-compete. Still, depending on the circumstances, non-competes can be an effective way to protect business interests.
A related but separate agreement is a non-solicitation agreement. You commonly see these in conjunction with non-competes. There are two aspects of a non-solicitation agreement: customers and employees. The former employer clearly wants to prevent a former employee from stealing his or her customers. However, in addition, employers also want to stop ex-employees from stealing other employees. A non-solicitation agreement helps with that. Courts appear to be more willing to enforce these kinds of provisions than non-competes.
Anyone in business will tell you that it is tough. It can take years to develop your product or service. And once you have your product, you need good employees to help your business grow and prosper. And finally, you need a customer base. All of these things take a long time and a lot of hard work to develop. Business owners need to protect them all. That’s where non-competes and non-solicitation agreements come in. Important things to have.
Fred L. Vilbig ©2017
I try not to repeat topics in this column, but it’s been a while since I wrote about the complications from addiction, and the problem keeps raising its head. I keep seeing articles and hearing stories about the opioid crisis, and I encounter it time and again when meeting with clients. My mom was in her 70s which she told me that she still wanted a cigarette after dinner, and I had no recollection of her ever smoking. Nicotine is terribly addictive, but I understand that narcotics are even worse.
From what I hear, people can get hooked on narcotics by using prescription painkillers while following doctors’ orders. And then there are some doctors who allegedly sell prescription painkillers to make some extra money. The US attorney general is looking into that now.
But those “safe” drugs can be expensive. Heroin on the street is apparently pretty cheap, although you may not be comfortable with the level of quality. That is evidently not that important when someone needs a fix.A funeral director recently commented that people would be surprised to know how many deaths now are drug related.There are so many drug related deaths the County has had to rent temporary morgues to hold the bodies. Addiction is a horrible thing.
What you don’t want is for an addict to receive a lot of money outright, but even basic trust planning may not be enough. We recently settled a dispute between a trustee and beneficiary. I had written the trust when the client’s son was still a toddler, and now her son was approaching 22. She had died in a car wreck, and the son was the beneficiary of the trust.It was what is called a discretionary trust (the beneficiary did not have an absolute right to the trust funds), and the trustee refused to give the beneficiary any money outright. We tried to set up a plan where the trustee would directly pay the beneficiary’s landlord, health insurance provider, utilities, tuition and books, and the rehab clinic. She was willing to pay the beneficiary an allowance for food, but that was pretty small, only enough to buy basic food.
That wasn’t enough for the beneficiary. He hired a newly minted attorney and proceeded to make the trustee’s life pretty miserable. She finally just resigned. The funny thing is that knowing what happened to her, none of the successor trustees wanted to serve. The trust is stuck in limbo until they petition the court to appoint a successor trustee. The trust has been paying a lot of legal fees, and it looks like it’s going to continue.
When parents have children or family members with substance abuse problems, planning is critical. You don’t want to give money to the beneficiary outright. That could be like a death sentence. Instead you can provide that the trustee will only distribute trust income and principal to the beneficiary on a discretionary basis for their health, education, welfare, and support. That can put a trustee in a difficult position, so it’s probably best not to have a sibling as the trustee who will be making those decisions. I always try to keep families together, and that almost certainly will create a lot of tension in that relationship. Sometimes I’ve required beneficiaries to submit to drug testing before any distributions are made to them. Trustees can also require receipts for how previously distributed money was spent. This requires a lot of work, but it is a pretty serious situation.
It’s sad that so many people need to deal with these issues, but it is a reality. Ignoring the problem can be deadly. Plan accordingly.
If you would like to confidentially discuss these issues further, please feel free to contact me.
In the mid-1800s America faced a flood of somewhat unwanted immigrants, similar to today. They were Catholics fleeing crushing poverty and looking for opportunities. They not only brought their religion with them, but they also brought their tradition of education.
Ulysses S Grant was the President during some of this time period, and he was greatly concerned. He did not want public money going to sectarian schools. This was evidently a hot issue in the day. In a speech in 1875, he proposed a Constitutional amendment to prohibit the use of public funds for religious schools or for any church groups.
Republican Congressman James Blaine proposed such a federal amendment. Although the proposal overwhelmingly passed in the House, the Senate vote failed by four votes. The amendment then faded away never to be heard of again in the halls of Congress.
But the idea of the amendment lived on. In 38 states, some form of what has been referred to as the “Blaine Amendment” was passed. In Missouri, Blaine language appears in two separate sections of the Missouri Constitution.
Trinity Lutheran is a small Lutheran congregation in Boone County. It seems to serve a poor, rural population. They operate a childcare center that has a playground. The playground surface was covered with pea gravel. Falling on pea gravel is better than falling on concrete, but there are better, safer playground surfaces.
The State of Missouri created a grant program to encourage nonprofits to install playground surfaces made from recycled tires. The purpose was both to promote child safety and also minimize waste from used tires. Trinity Lutheran applied for the grant. Although Trinity Lutheran scored in the top five of the grant applicants, the Missouri Department of Natural Resources (which administered the program) denied the application solely because Trinity Lutheran was a church, citing the Blaine Amendments.
The church sued. It lost in both the District Court level and at the Eighth Circuit Court of Appeals. However, the US Supreme Court agreed to hear the case. Recently in a very narrowly drafted opinion, the Court found in favor of Trinity Lutheran in a 7-2 decision, declaring certain aspects of the Blaine Amendments unconstitutional. The court specifically refused to address certain issues which means more litigation will certainly follow. But at a minimum, the court held that a state can’t exclude a church from a government program solely because it is a church.
In an interesting side note, on the same day the Court issued the Trinity Lutheran case, it remanded to the lower courts two school choice cases for consideration in light of its Trinity Lutheran ruling.
There are many who are big advocates of the “separation of church and state” theory. They did not welcome this decision. However, it should be noted that the separation theory itself is not constitutional. It was first raised by Thomas Jefferson in an 1802 letter to a Baptist Association. He was assuring the Baptists that they had nothing to fear from government interference in the expression of their religious beliefs. The idea did not arise to a legal principle until a line of Supreme Court cases in the second half of the 20th century beginning with the Everson case in 1947.
Where this reasoning goes from here is uncertain. There are both strong advocates and opponents of school choice, and as we have recently seen, money is tight in Missouri. Even though gambling was supposed to fund education (it ended up being a mere shell game), schools in Missouri are badly under-funded, and some schools are badly underperforming.
The future will be interesting.
TRUSTEES AND CATS
Fred L. Vilbig © 2017
I got a call from someone at my church a few months ago. They had received a report about a parishioner. Allegedly a financial adviser was taking advantage of an elderly woman. They asked me to check into it. I did some investigating and found out that contrary to what I heard, the financial adviser was providing excellent service and was even providing a lot of personal help as well.
However, in the course of my investigations, I got the impression that the woman needed more help than she was getting. She was living alone, with no surviving close family, and her health was failing. Someone needed to help her, but as I said, she did not have any close family or any friends to help out.
People sometimes have a funny reaction when I mention corporate trustees. They seem to get a picture of a person who sits in their office making financial decisions all the time. Yes, they do that, but they do so much more than that if necessary.
In that particular situation, I called Constance Moore at Commerce Trust Company. Connie is a kind of a geriatric adviser. In addition to being a trust officer, she is an Advanced Professional Certified Care Manager, trained to help clients navigate the maze of elder care. Like many trust officers, she investigates retirement facilities, nursing homes, home health services, and the like to insure quality. She is constantly checking and rechecking facilities, particularly when there is a change in ownership or management. She knows where to get the best value for their customers’ money and has a goal of helping to improve their quality of life. In this particular situation, she was able to find a great facility that worked wonderfully for my client.
Corporate trustees provide all kinds of non-financial services. Kathleen Selinger at Central Trust told me about one of their customers who lives alone in a big house. She has family, but they are all busy with their own lives. I am seeing that more and more with families. If there are children, they may live in a different state or they may just be too busy with their own lives. I am also seeing a lot of people who don’t have any kids to step in when necessary. In these cases, the person is often alone. Anyway, Kathleen told me that with one of their larger clients, she often goes by and sorts her mail with her. The client’s eyesight is failing a little, but she also just likes the company.
I heard one of the most heartwarming stories from Rich Arnold with The Private Bank. One of their clients had a vacation home in Florida. One time when she was down there, she suffered a stroke and was admitted to the hospital. When she was well enough, they brought her back to St. Louis.
The problem was that when the client went to Florida, she took her beloved cat with her. When she came back to St. Louis, they couldn’t just leave the cat there for a neighbor to look after her.Someone had to go get the cat. So one of the trust officers flew to Florida, rented a car, picked up the cat, and drove back to St. Louis for a joyful reunion. Trust officers get all of the glory jobs, don’t they?
As I mentioned, there are a lot of older people who for one reason or another don’t have family to look after them and help. As baby boomers age, we’re probably going to see that more often. Although corporate trustees are not the solution to every problem, under the right circumstances, they can be a real life saver. Yes, they provide great financial services, but they also provide much more than that. They can provide cat retrieval services too, and who wouldn’t want that?
Fred L. Vilbig © 2017
Sometimes my clients just get too emotional! What do I mean? Read on.
In my last column, I wrote about some of the general issues involved in selling your business as a part of your retirement plan: who are your buyers; how do you value your business; and how is the sale financed? These are all kind of objective questions that can be very deliberately considered. But many times, they’re not.
Where I run into problems with clients is when they are overly anxious or excited. They let their emotions get the better of them.For instance, when buying a business, you need to be careful to make sure that you are actually buying what you think you are buying, nothing more and nothing less.This is called “due diligence.”
A good example of this would be real estate. Property titles are transferred though deeds that need to be recorded to be effective.You and I think about land in terms of property addresses.However, real estate is conveyed using legal descriptions.The legal descriptions can be lots in subdivisions or what are called “metes and bounds” descriptions – that’s the kind of thing that says “143.3 feet SSW from the old iron rod in the middle of Min Street.”Out in the country, you might have a legal description that reads like “the NW ¼ of the SW ½ of Section 1, Township 35, Range 13.”If you can tell me where that property is, you are much better at real estate than I am.
Real estate also brings with it other questions. How do you know what the environmental status of the property is? Do you really know that the seller owns the property? Are there any mortgages or liens on the property? Are the buildings in good condition or are the problems just patched up? And if there are buildings, do you know if they are built to code?
With regard to vehicles and equipment, you have similar questions. How do you know the condition or whether there are liens against them? You need to ask for maintenance records, and if there aren’t any, you need a thorough inspection.
The business may have a lot of “good will.” This basically means it is not asset heavy but still has a good cash flow. A law practice or an accounting firm is a good example of this. In that case, you have to rely on financial statements. Do you know if they are compiled, reviewed, or audited, and do you know the difference?And even if the financials are reliable, can you understand them?People go to college to learn how to read them.
On the Seller’s side, there is a different set of concerns. Sellers basically want to get their money and get out of town (sometimes literally). But buyers want all kinds of proof regarding the assets they are buying.The seller will probably have to dig into his or her records to prove all kinds of things.The problem with this is that you will be disclosing all of the warts of your business (and all businesses have warts). You need to make sure that the buyer has to keep that private and that they can’t use that information against you if the deal falls through.You need to get a non-disclosure agreement (commonly referred to as an “NDA”) from the potential buyer even before you start sharing information.
As I mentioned in the last column, one of the biggest problems a seller may have to face is where the buyer can’t come up with financing. If a bank is unwilling to make a loan for the entire amount or the buyer can’t get a loan at all, the seller may have to finance some or all of the purchase price. The first question is whether the buyer is credit-worthy. IF you trust the buyer, how do you make sure you will continue to deal with him or her? Is the obligation assignable? You could end up having to rely on someone you don’t even know. Even if the contract is not assignable, what happens if the current buyer sells his or her business, so again you are stuck with someone you don’t even know.
Then there’s the question of how to secure the loan.This is like the mortgage on your home. No bank is going to lend you money without having something backing up your promise to repay. You shouldn’t either.
But like I said, clients can be the worst. They get blinded by the opportunity – whether it’s the business itself or the prospect of getting bought out – and they throw caution to the wind. As I’ve mentioned before, a client’s business is often his or her retirement fund. Clients need to be very careful to protect themselves. If something seems too good to be true, it probably is. It is hard to keep emotions in check, but an emotional sale is a bad sale.
Caveat emptor! But also, Caveat venditor!