Wealth Preservation, Trusts and Estates

The Latest Attempt To Pass A Federal Estate Tax Is Dead – What Now?
By: David M. Frees III – 2010 Pennsylvania “SuperLawyer” Trusts and Estates
Phoenixville * Malvern * West Chester Law Offices

Executive Summary of Federal Estate Tax News:

As you may recall, we recently reported to our clients that a motion was pending
before the Senate to pass a bill that would finally end the agony of not knowing
what was going to happen to the federal estate – or death tax.

Currently, the uncertainty is creating problems for many families and if the law falls
back, as now expected, in January of 2011, many families will need to radically
alter their existing estate plans to avoid the massive 55% tax.

Current Details:

Senator Jon Kyl and Blanche Lincoln’s proposal to phase in a permanent
top estate tax rate of 35 percent and to raise the individual exemption
to $5 million, indexed for inflation appears to be dead.

There has been a discussion by many democratic Senators that
the federal estate tax is a tax break for the “wealthiest of the wealthy.”

But, since the tax includes the proceeds
of life insurance, IRAs and other assets, many middle class and moderately
affluent families will be drastically impacted if congress fails again to act.

The “wealthiest of the wealthy” statement by Pennsylvania Sen. Robert P. Casey Jr.
is a good indication of the strong position Democratic leaders have taken. Currently, the
democratic leadership is proposing – rather than let the exemption sink back to a mere $1,000,000 and the rate rise to 55 percent – a top rate of 45 percent and a $3.5 million exemption.

Yet, nothing seems to be happening. Even the IRS doesn’t know what to do.

However, the political pressure on both parties is increasing dramatically.
Articles abound about George Steinbrenner’s death as estate planning and the windfall to his family
are according to Steve Limberg Esquire “driving people bats and putting pressure on both parties to stop the hemorrhaging blood flow of lost revenue.”

CONCLUSIONS:

I have (and I am not alone in this) been wrong about Congress quite a few times.

However, I believe that there is not likely to be any congressional action until
after the November elections. I also think it is possible but unlikely that the Senate
will really allow the limit to fall back to One Million dollars. Finally, I believe that 3.5 million
would help to exempt most families from a massive tax. And, while many affluent
families will still have a significant tax ( probably at a 45% rate) planning will be vital for any
family.

Recommendations:

Planning should include flexibility, attention to IRA and deferred tax assets, use of trusts – when appropriate, and planning to protect yourself and your heirs from creditors claims, divorce and law suits. You should also pay careful attention to life insurance to avoid it being included and taxed in your estate.

Keep the faith and check in for the latest and for a different analysis in the Post click: Estate Tax Changes Needed in The Washington Post.

David M. Frees III is the Chairman of Unruh, Turner, Burke and Frees’ Wealth Preservation, Trust and Estate Section.

You can schedule a consultation with David Frees at 610-933-8069 for any of the firms office in West Chester, Malvern, and Phoenixville.

He is a regular contributor to blogs at www.utbf.com/trust-estate
www.PaEstatePlanners.com where there are a number of free reports available for download, or in print.

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By: David M. Frees III Pennsylvania Trust and Estate Lawyer

Is A Bank Ever The Best Trustee?

There are many reasons to set up a trust (either during life or under your will). Some people set up a trust to protect a young child from having access to money at a young age. Others use a trust to protect and to provide for a child with special needs.

Many trusts are established to provide income and assets to a surviving spouse and then to pass on the assets to family members such as children and grandchildren.

Some of our clients set up GRATs and or nursing home trusts to move assets to the next generation, or to protect them from being lost to a nursing home.

And, with each situation where a trust is the best solution another equally important question arises: Who should be the trustee of this trust?

There are many possible trustees to choose from. For example, you can select the following a trusts of your Pennsylvania trust:

you
a friend
a family member
a professional adviser
a bank or trust company

However, depending on the purpose of the trust, you may need to limit cases where you name yourself or family members as trustees since a trust is often taxable or reachable by creditors in a lawsuit, when a family member, spouse, or parent is the trustee. In fact, there is a specific section of the IRC (Internal Revenue Code) (Section 672) that will cause such trusts to be included in a beneficiary’s estate and then taxed.

So, it may be that you want to avoid family members or at least make them a co-trustee. Also, family members are often unaware of all of the new rules which apply to trusts under the UTA (Uniform Trust Act) and the Prudent Investor Rule. Family members also often fail to file income tax returns for the trust or to keep the trust records properly. Accordingly, family members might actually end up exposed to liabilities and law suits that they never anticipated.

But, if you want to avoid using a family member as trustee, what are the alternatives?

Friends, Advisers, and Banks.

And, while many families have family members and friends that will undertake the risks of being a trustee, and who will seek the right advice to make sure that they follow the new legal compliance requirements of trustees, it may be that a bank or trust company offers a viable alternative and may be the best choice.

Banks are well insured, are highly regulated, have procedures and specific policies, and they regularly file the returns and keep the records accurately.

I know that almost everyone has heard about a beneficiary that did not like their bank trustee, but banks can be the best choice and that can be especially true when a family member or friend is appointed as a co trustee or a trust protector and can fire and hire bank trustees to ensure that the bank is charging appropriate fees, getting good investment returns and is looking out after the beneficiary.

Of course, there are advantages and disadvantages to each approach. But make sure that you discuss trustee selection with your lawyer and accountant because the wrong choice of trustee can mean that the trust will not work to accomplish your tax and planning goals.

For more on trust protectors and trustee alternatives click here and watch for upcoming posts.

David M. Frees III, Esquire
610-933-8069
dfrees@utbf.com

P.S. If you would like to create a trust now or under your will, please call

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Are you wondering:

Should I update my estate plan, will or trust?

Do I need a new power of attorney?

I have over 3.5 million dollars how does the affect me?

I have under 1.0 million dollars. What now?

To Roth or not to Roth?

What is happening to the estate tax?

What if I leave the old formula will in place is my spouse disinherited?

If you need more information on any or all of these click here to read this great review of the current situation by CBS.

Here is the WSJ Smart Money Article. Click here to read more.

David M. Frees III
Attorney David Frees is available at 610-933-8069

For an appointment to update your estate planning, or for consultation regarding
duties as an executor or trustee, please call Donna, Denise, or Beth at 610-933-8069.

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We would like to take this opportunity to say “Happy New Year and Thank You” from the entire firm and from the Trust, Estate and Wealth Preservation Section of Unruh, Turner, Burke and Frees.

We know that in this area of the state of Pennsylvania, you have many choices for your trust, estate planning, and probate lawyers as well as for your elder law needs.

For that reason, we both thank you and want to let you know that we have once again, in preparation for the new year, spent time, resources, and money in making changes that we think will enhance your experience as a client of the firm.

First, in addition to our two Estate Section partners, David M. Frees III and Douglas L. Kaune.

Jennifer adds more depth of tax practice (especially tax issues facing trusts and estates) and will also be helping us to focus on the unique issues facing women in their estate planning.

We have added two blogs designed to bring you more and timely news and information on estate planning, asset protection planning, and information and news for executors and trustees. In addition, we are currently working on a new web site and blog oriented just for families in need of elder law and nursing home advice and information. Be sure to read and watch www.UTBF.com/trust-estate and www.PaEstatePlanners.com for the latest news and information affecting you, your business, investments, and your family.

We have also invested in new software that we believe will take us to the next level in preparing and updating your tax returns, estate and trust accountings, and the family settlement agreements that we often use to avoid much of the probate process.

Several other associates and partners of the firm, including Denise Werkley, Theo Claypoole, William Burke, Don Turner, John Fiorillo, and Stephen LaGoy will be working on matters with the Estate Section – especially when planning involves family limited partnerships, closely held businesses, and real estate or when there are matters involving litigation.

We would also like to welcome Beth MacNulty as our new client relations manager. Beth’s jobs will include helping you to get appointments that fit your schedule, confirm appointments, making sure that your estate planning documents have been received by you and are stored safely, and in assisting you in emergency appointments, and with your other needs as they arise.

Beth can be reached by calling 610-933-8069.

In addition, David Frees was recently honored by receiving AVVO’s highest lawyer rating of 10.0 or Suberb and presented again to the prestigious Pennsylvania Bar Institute Estate Institute on the topic of Estate Planning for Families with Young Children. David has also just finished, with his brother Robb Frees, a soon to be published book and report on What Consumers Need To Know about insurance law.

Douglas Kaune was admitted as a member of NAELA (National Association of Elder Law Attorneys) and Doug in addition to his work in the are of sophisticated estate planning is working on three new reports for consumers on the changing laws in the area of Elder Law and Nursing Home issues.

In conclusion, we thank you for your continue support ans we look for new ways to help you through this difficult time with the many changes and the uncertainty now that Congress has allowed the state tax to lapse but at the same time is threatening to restore it retroactively.

For estate planning questionnaires, estate planning appointments, appointments to update older estate plans, or for any of our free reports for executors please call 610-933-8069.

David M. Frees III, Esquire – Chairman: Trust, Estate and Wealth Preservation Section
Douglas L. Kaune, Esquire – Trust Estate and Wealth Preservation and Chairman: Elder Law Section

Donna Brownback – Paralgel
Denise Fox – Paralegal
Beth MacNulty – Client Relations Manager

The firm maintains offices in Malvern, West Chester, and Phoenixville

610-933-8069

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Estate Planning For Pennsylvania Families With Young Children By: Pennsylvania Attorney David M. Frees III

On Friday, December 12th 2009 Chester County Attorney David M Frees was a faculty memeber at the Philadelphia Convention Center to present his well attended program: Estate Planning For Families With Young Children.

Frees, who spoke for the PBI (Pennsylvania Bar Institute) was asked to return to the event faculty for his second year of presenting on this topic. Frees, who Chairs the Unruh, Turner, Burke and Frees Trust, estate and Wealth Preservation section, taught lawyers from around the state about the most important topics for lawyers representing families with young children and how to best serve their clients.

Frees’ topics included many of the best practices in estate planning including: how to help families to select guardians, 2) the advantages and disadvantages of trusts vs uniform transfers to minors accounts, 3) who should be the trustee?, 4) At what ages should distributions be made and how should you instruct the trustees when you’re no longer available?, as well as how to use 529 plans for Pennsylvania residents and, 5) should parents consider a sprinkle trust where there is an age gap between the children and until they graduate from college?

Other topics included planning to protect children and grandchildren from divorce and lawsuits.

Many of the lawyers in attendance have returned to see David on this topic for more than one or two sessions knowing that they will get the latest thinking and a real overview of the pros and cons of many different estate planning options to share with their clients.

If you need to update a will, trust, or estate plan, or if you are the parent or grandparent of young children and want your plan to truly reflect your thinking and wishes, please call Donna or Denise in the office of David M. Frees III at 610-933-8069. Mention this press release to receive a free copy of David M. Frees’ recent report: The Ten Most Common Mistakes Executors Make and How To Avoid Them.

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There is a lot happening in the normally calm, cool, and collected world of the estate tax, and estate planning. The Wall Street Journal Article on the latest failure of Congress to act on Federal Estate Tax issues actually called the situation “frenzied” and not without reason.

While we, as your advisers, are keeping our usual cool and focused demeanor, there are reasons to be cautious and to keep an eye on this situation if you have total assets (husband, wife or single person) of over one million dollars including your life insurance.

We are bringing you news and analysis as soon as it breaks and we have a chance to crunch the numbers, read the bills, and think about the unthinkable (or previously believed to be unthinkable) a year without the federal estate tax.

That’s right, Congress has fumbled the ball and an extension of the bill seems almost impossible at this point. But, many members are threatening to reenact the law after the holiday break and to have it apply retroactively to January 1, 2009.

There are a few unexpected consequences of the federal estate tax going away and this Wall Street Journal Article has a good quick review and a couple of important alerts.

Stay tuned for more news and information as it becomes available.

David M Frees III
610-933-8069

David Frees focuses his practice in the following areas of law: estate planning, estate administration, asset protection planning and wills, trusts, and related topics.

Frees is a Phoenixville lawyer, Malvern Lawyer, and West Chester Lawyer, with offices throughout Chester County, Pennsylvania.

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Beneficiaries can use a qualified disclaimer to change distribution under a last will and testament after date of death and after probate in Pennsylvania (PA) and other states. 
A beneficiary can actually refuse all or a portion of his or her share of a decedent’s probate or non probate assets.  Click here for the technical requirements for a proper qualified disclaimer.  You might wonder, why would someone in their right mind refuse an inheritance?  There are actually great estate tax, inheritance tax and asset protection motives for discaiming assets in PA and throughout the U.S.  For example, if a wealthy individual is the beneficiary of his parents’ estate, he might choose to disclaim his interest so long as the contingent beneficiaries under the will are his own children.  This would allow for the estate assets to be distributed directly from grandparents to grandchildren and thereby skipping the son’s generation of estate and inheritance tax!!  This could result in tens of thousands or hundreds of thousands of dollars of tax savings.  I do not want to oversimplify this issue because there are many important considerations including, but not limited to, 1.  Making sure the contingent beneficiaries named or through intestacy are the desired recipients, and 2.  there is no generation skipping tax that results. This is an important post mortem estate planning option that should be discussed with your estate and probate lawyer in PA and other localities. Please call Douglas L. Kaune, PA Lawyer 610-933-8069 for additional information and consultation.
Wills * Trusts * Probate * Elder Law * Estates * Estate Planning * Asset Protection Planning
Malvern, Phoenixville, and West Chester Law Offices Chester, Montgomery, Delaware, Philadelphia, Berks and Bucks County PA

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Are You Remarried or Contemplating Remarriage With Children From A Prior Marriage? The Prenuptial and Postnuptial agreements can be the solution to a tricky problem.
By: David M. Frees III
Tiger Woods situation has put the prenuptial agreement back in the news. Following Tiger’s admission of his “transgressions,” many news sources have reported that Tiger and the current Mrs. Woods are renegotiating their prenuptial agreement.

So what does Tiger Wood’s dilemma have to do with prenuptial agreements in Pennsylvania and the use of such agreements in estate planning?

Well, first and foremost, the story reminds me that such premarital agreements are valid and enforceable under Pennsylvania law. And, while the current renegotiation of the pre-nup by Tiger Woods and his wife revolves around divorce, it is important to remember, that prenuptial agreements are a powerful tool for avoiding disputes when you are in or considering are second or third marriage and/or have children from multiple marriages. In short, prenuptial agreements need not focus just on divorce, but can also set forth the parties’ agreements on estate planning so that expensive and destructive family disputes can be avoided.

Many married people want to leave their assets outright to one another but also want to ensure that the children of a prior marriage get some benefit from the estate when the surviving spouse passes. However, if you own all of your assets jointly with your husband or wife, they will transfer automatically to him or her. Likewise, if you have a simple will, and your spouse receives everything, he or she is free to dispose of those assets in any way they desire. And, they can refuse to give any of those assets to your children at death.

So, what are you going to do? If you are remarried or planning to remarry and have children or heirs that you want to protect in addition to your current spouse, then careful planning using a prenuptual agreement or post nup for estate planning purposes and not just to cover the divorce is a major benefit.

The parties agree on a plan in advance. Then, by using the rules of the pre-nip or post-nup and some insurance and/or other trust arrangements you can protect your new spouse and the heirs you want to benefit after the spouse passes.

Prenuptial agreements are not just for divorce. They are also a valuable state planning tool.

Stay tuned for more on prenuptial and postnuptial agreements in estate planning.

David M. Frees III, Esquire is an estate planning, probate, and trust lawyer in Pennsylvania.
The firm’s offices are located in Malvern, Phoenixville, and West Chester

Are you remarried or contemplating remarriage with children or others heirs that you would like too protect? If you need a consultation about a prenuptial or post-nup agreemnt please call Donna Brownback or Denise Fox at 610-933-8069 for an appointment with David M. Frees III. Mention this article to receive additional articles and information on estate planning strategies and tactics for remarriage.

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If I named my child as a POD (pay on death) or FBO (for benefit of) beneficiary of a bank or stock account and that child is now in financial trouble, can I lose the accounts?

The short answer is “No.”

POD designations on an account do not make that account the property of your child now and his or her bankruptcy or a lawsuit will not subject your accounts to claims by his or her creditors.

However, there are three more things that you need to know about POD (pay on death) and FBO (for benefit of) designations and accounts to be sure that your accounts are safe and that your child will also be protected.

Click here for more essential information on POD and FBO accounts for your children and how to protect your accounts for yourself and for your heirs.

David M. Frees III, Esquire

Have questions about your estate planning and how your POD or beneficiary designations work with your estate planning documents?

Need to update your will, power of attorney, medical powers, or living wills and to coordinate them with your bank and stock accounts.

Mention this blog post to receive a free consultation with David Frees or one of the trust and estate attorneys. Call Donna or Denise for more information at 610-933-8069 or email dfrees@utbf.com

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Are you a Pennsylvania resident?
Do you have, or are you interested in a domestic asset protection trust?
Are you unsure whether or not these self created trusts will be included in your estate for tax purposes?
If so, then you’ll be interested in the IRS’s new Private Letter Ruling.

The general rule, in most states,(including Pennsylvania’s trust law) is that you cannot create a trust (a self-created trust) and then claim that your creditors cannot reach it.

And, the IRS generally takes the position, that when you create a trust, it remains in your estate for estate tax purposes if you retain the right to continue to use the trust assets, your creditors’ can reach them under state law, or you retain the right to benefit from or to control the assets.

And, for that reason, the residents of Pennsylvania tha are interested in creditor protection have started creating trusts under the laws of Delaware and/or Alaska, Nevada or other states that permit these asset protection trusts.

However, there has always been some question about whether these new trusts (now permitted in 12 states including Delaware, Alaska, Utah and Nevada) are effective for asset protection and whether or not the Service would claim that they were to be taxed at death since they do often allow for the grantor or settlor (the creator of the trust) to get distributions from the trust under certain circumstances.

However, in a recent PLR (Private Letter Ruling 200944002) the IRS confirmed that an Alaska self created trust will not be included in the creator’s estate for estate tax purposes. However, the ruling is limited on it’s face to an Alaska resident using an Alaska trust. And, the PLR seems to also turn on the fact that under the particulars of that state law, the creditors could not reach the assets. However, in some states that have asset protection trusts, there are provisions that allow creditors to reach assets under certain circumstances that might still cause their inclusion in your estate.

So, if you have or intent to create a trust under one of the 12 states laws that now permit such asset protection trusts, you now, for the first time, have something from the IRS to help you to evaluate the effectiveness, the pros and cons of these trusts.

Now under IRC (Internal Revenue Code) section 6110(k)(3) Private Letter Rulings cannot be cited or used as precedent. And, these rulings are specific to the facts, the type of trust, the trustees, and many other factors. However, this one does expressly hold that the trust is not includable in the estate.

In summary, and according to Douglas Blatmacher this ruling provides planners and their clients “who have been hesitant to make large gifts (for fear of future needs)” – “with a strategy that not only provides asset protection, but significant potential estate tax savings while at the same time the comfort of knowing that if the settlor requires some portion of the funds transferred a trustee can provide for them.”

More specifics on this to follow as we analyze this important development.

David M. Frees III Asset Protection Attorney and Will Trust and Estate Lawyer
Asset Protection and Self-Settled Trusts
Trusts, Estates, Asset Protection and Wealth Preservation
Law Offices in Phoenixville, Malvern and West Chester

Our Will, Trusts, and Estates Planning Lawyers
serve clients in Chester County, Montgomery County
Philadelphia County and Delaware, Lancaster, and Berks and Bucks Counties

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