CPAs

Tuesday, May 15, 2012

Out of the Ashes: CPA Robert Keebler is Leading Keebler & Associates LLP to the Cutting Edge of Tax and Estate Planning

Reposted from Financial Advisor Magazine | By Eric L. Reiner | May 2012

The financial crisis has been blamed for a lot of things. Setting in motion the events that launched a topflight planning boutique isn’t usually one of them.

The Ponzi schemes exposed by the crisis affected clients at the firm CPA Robert S. Keebler was with at the time. As he delved into the tax issues surrounding clients’ losses, Keebler, a nationally known speaker and writer based in Green Bay, Wis., came to a realization. Few, if any, noted experts existed in the obscure world of theft-loss deductions. So he set out to become one.

“I just knew someone had to step up and figure it out,” Keebler says. He invested time in learning the ins and outs of this little-used itemized deduction, then produced seminars and articles on the subject for practitioners.

Keebler is perhaps best known for his work in retirement plans and advanced estate planning, as well as for making private letter ruling requests from the Internal Revenue Service. Certainly he handles plenty of other matters as well, but foraying into the deep recesses of theft losses turned out to be a confidence builder and springboard. “Once we did that, we weren’t afraid to do other things,” he says.

Given such conviction, plus a little career coaching and encouragement from industry icons Sid Kess and Steve Leimberg, he made the inevitable move. In late 2010, Keebler left Top 20 accounting firm Baker Tilly Virchow Krause, where he had been a partner for years, to found Keebler & Associates with key members of his long-standing team. Guess what?

“The phone continues to ring,” says Keebler, 51. Frankly, the 18-month-old firm is doing fine, thank you very much.

In addition to serving the firm’s clients’ needs, “we do a lot of work for financial advisors, CPAs and law firms,” says Keebler, who remains down-to-earth and approachable despite his professional stature. “Most of our referral work comes from people who have heard me speak.” But then that’s always been Keebler’s rainmaking methodology.

How To Find Work In Green Bay And Beyond
“When I came up to Green Bay from Milwaukee in 1990, the only way to bring in work was to go out and teach local professionals like the Green Bay Estate Planning Council. You hoped if you spoke to enough people and showed them you had expertise that they would send you work,” he says. And they did.

As a speaker, “Bob is exceptionally good at breaking down high-level planning so that everybody in the room can understand and apply the ideas in their practice,” says Las Vegas attorney Steve Oshins, a prominent asset protection and estate planning expert with whom Keebler recently conducted a full-day seminar for a national accounting firm.

Keebler claims he was “driven to teach” once he discovered he was good at it, and that propelled him to the next level. Workshops for large insurance and financial-services companies, along with seminars for financial advisors, accountants and attorneys, take Keebler coast to coast these days. He also expands his reach with technology—through podcasts, webinars and teleconferences accessible through www.keeblerandassociates.com. The result is a clientele more national than local.

Skill Set
Like his teaching, Keebler’s writing for CCH, Leimberg Information Services and the American Institute of Certified Public Accountants emphasizes clarity and usefulness.

“Bob is able to get ahead of the curve in how to use estate planning tools and techniques and explain what they look like when they are modeled. He is a visionary,” says one of his editors and mentors, estate planning legend Steve Leimberg, namesake and CEO of the tax news and analysis service.

Keebler also holds awards such as the “Distinguished Accredited Estate Planner” designation (there are only 66 such individuals), which bears further testament to his technical prowess. But that alone does not a firm build. The truth is, Keebler is a pretty sharp cookie when it comes to marketing, too.

Staying on the cutting edge is vital to his teaching and writing brand. “So we move very quickly,” Keebler says. For instance, when the IRS recently announced an extension of the deadline for certain estates to elect the spousal portability of the estate-tax exemption, within hours Keebler & Associates blasted an e-mail to practitioners spotlighting the affected clients and steps advisors should take.

“We try to be the first people on the block with the news and how it’s going to apply,” says one of Keebler’s three partners, Stephen J. Bigge.

Inside The Engine Room
Each morning at the firm, another partner, estate-planning attorney Michelle Ward, begins her day with a visit to the Web sites of the IRS and a variety of subscription services. Her purpose is singular: to sift through the myriad news alerts and find the nuggets. “I’ll check to see whether anything relevant to our clients has come out and, if so, I’ll post it to our Twitter account and Facebook, and then pass it on to Bob,” says Ward, who has worked with Keebler since he hired her into the tax profession in 2000.

When Keebler deems a topic worthy of dissemination, he then turns to one of his partners. “We’ll figure out how the pronouncement applies to our client base and do a brief write-up on the rule,” explains Bigge, who Keebler hired right out of school from their shared alma mater, Lakeland College in Sheboygan, Wis., in 2001.

Backed By A Power Trio Of Experts
Keebler is the front man, enabled by his three partners’ strong, complementary backgrounds. Ward, an attorney with a master’s in law (LLM), tends to handle the research for private letter ruling requests while Bigge, a CPA, crunches the numbers for Roth conversions, sales to intentionally defective grantor trusts and other strategies clients are mulling.

The other principal, Peter J. Melcher, holds an LLM in tax plus an MBA from the University of Chicago. “Pete does the heavy tax research for white papers and opinion letters,” Bigge says. An executive assistant, Emily Rosenberg, rounds out the five-person operation.

Many accounting firms thrive on audits and tax-return preparation—dubbed “annuity work” by the CPA profession because of these services’ recurring nature—but that’s not the case at Keebler & Associates. There is no audit practice, and preparing returns accounts for only about 10% of total revenues. “Most of our revenues come from either Bob’s speeches or new tax-planning work from existing clients or referrals,” reports Bigge, who doubles as the firm’s chief financial officer.

An Eye On The Future
Despite the shop’s solid performance since inception, Bigge contemplates the future like a good CFO should. “The challenge is continuing to bring in work,” he says. “A lot of times we get called in as a specialist, and once we have resolved the client’s issue or helped him put a plan in place, he moves on and we have to look for our next planning client.”

A potential damper on the firm’s unique private letter ruling business is a recent hike in the fee the IRS charges for some ruling requests. That will make the requests feasible for fewer taxpayers, according to Ward.

In the firm’s estate planning business, a big question mark is what will happen to the federal estate tax exemption. Under current law, it will revert to $1 million per person at the end of the year. That would expand opportunities for estate planners. But if the exemption were maintained at its current $5 million, it would continue to constrain the market. In that case, says Bigge, “we’ll focus more on tax-sensitive retirement planning. That’s really at the intersection of finance and tax, where no one else wants to play.”

Developing drawdown strategies for retirees is one area Keebler has been putting time into lately. “If the client has Roth money, pretax money in an individual retirement account and after-tax money in a personal account, what does he spend first and how does he take it out in the most tax-efficient way? That’s where the action is,” Keebler says, adding, “Everyone is going to need a financial planner because this is so complex.”

Planners, for their part, will need to know more about taxes. “With the compression in tax season—because 1099s are going out later and later—having a 1040 prepared at a CPA firm is becoming more expensive” as accountants attempt to make a full year’s living in a shorter period, Keebler says. “The result is non-CPAs are preparing more income tax returns, and because of the seasonal nature of their businesses, often they are not equipped to do tax planning. So financial planners will have an opportunity to take a larger role in income-tax planning with more middle- and upper-middle-class families,” Keebler predicts.

Plans to grow Keebler & Associates stop at the point where the partners are managing the firm instead of bringing in lucrative speaking fees or national billing rates. From that perspective, an experienced practitioner, rather than a neophyte needing training, could be a more viable addition to the firm.

But no matter where the boutique winds up, it will have taken Keebler a long way from those local speaking gigs 20-plus years ago, even if ascending to the national stage and circulating with some of the biggest names in planning-dom were not his original goals.

“I was never shooting for the stars,” Keebler says. “It just kind of happened.”

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Sources: fa-mag.com

Friday, May 11, 2012

Steve Oshins & the Hybrid Domestic Asset Protection Trust

Reproduced with Permission by and Courtesy of Leimberg Information Services, Inc. (LISI).  For information about how to subscribe to LISI, click here.

“After approximately 15 years since the first DAPT legislation passed, not a single DAPT has been tested all the way through the court system.  Most likely this is because such a large supermajority believes that if tested the DAPT will work to protect its assets from a creditor of the settlor.  However, despite the very high likelihood of protection, if there is a way to increase the odds of success even more, then such a strategy should be utilized whenever possible.

The Hybrid Domestic Asset Protection Trust (“Hybrid DAPT”) is such a strategy, and it is very simple.  The Hybrid DAPT is like a regular DAPT except that the settlor isn’t an initial discretionary beneficiary of the trust, but can be added later.”

We close this week Steve Oshins’ commentary on a strategy he refers to as the “Hybrid Domestic Asset Protection Trust.”  According to Steve, the Hybrid DAPT puts the client in a significantly stronger position than with a traditional Domestic Asset Protection Trust.  As he explains below, this strategy can be used with both an incomplete gift version and a completed gift version of the Domestic Asset Protection Trust. 

Steven J. Oshins, Esq., AEP (Distinguished) is a member of the Law Offices of Oshins & Associates, LLC in Las Vegas, Nevada.  Steve is a nationally known attorney who is listed in The Best Lawyers in America® and has been named one of the Top 100 Attorneys in Worth magazine.  He was inducted into the NAEPC Estate Planning Hall of Fame® in 2011.  He has written some of Nevada's most important estate planning and creditor protection laws, including the law making the charging order the exclusive remedy of a judgment creditor of a Nevada LLC and LP (in 2001, 2003 and 2011), the law changing the Nevada rule against perpetuities to 365 years (in 2005) and the law making Nevada the first and only state to allow a Restricted LLC and a Restricted LP creating larger valuation discounts than any other state allows (in 2009).  He is also the author of the Annual Domestic Asset Protection Rankings which you can download from our Free Resources page.  Steve can be reached at 702-341-6000, x2 or at soshins@oshins.com.  His law firm's web site is http://www.oshins.com. 

Before we get to Steve’s commentary, members should take note of the fact that a new 60 Second Planner by Bob Keebler was just posted to the LISI homepage. In his commentary, Bob reviews the May 4th opinion by the Ninth Circuit in Estate of Morgans, where the issue presented was whether Section 2035(b)’s gross-up rule applies in the case of a surviving spouse's deemed gift of a QTIP remainder. You don't need any special equipment to listen- just click on this link.

Now, here is Steve Oshins’ commentary:

EXECUTIVE SUMMARY:

Asset protection has become one of the hottest areas of law and has become the ideal complement to estate planning.  Consequently, the Domestic Asset Protection Trust (“DAPT”) has become one of the most popular asset protection tools in the planner’s toolbox.  As more states have enacted DAPT legislation, practitioners have started doing more DAPTs for their clients.

FACTS: After approximately 15 years since the first DAPT legislation passed, not a single DAPT has been tested all the way through the court system.  Most likely this is because such a large supermajority believes that if tested the DAPT will work to protect its assets from a creditor of the settlor.  However, despite the very high likelihood of protection, if there is a way to increase the odds of success even more, then such a strategy should be utilized whenever possible.

The Hybrid Domestic Asset Protection Trust

The Hybrid Domestic Asset Protection Trust (“Hybrid DAPT”) is a strategy that should increase the probability that the trust assets will be protected.  And it is very simple.  The Hybrid DAPT is just like a regular DAPT except that the settlor isn’t an initial discretionary beneficiary of the trust, but can be added later.  Thus, the trust is initially set up for the benefit of the settlor’s spouse and descendants, for example, but not for the settlor.  By not including the settlor as a beneficiary of the trust, the Hybrid DAPT is by definition a third-party trust and therefore almost certainly avoids the potential risk of uncertainty of a regular DAPT.

Especially where the settlor is married and has a strong, trusting relationship with his or her spouse, is there any good reason that the settler must have his or her name in the trust agreement as a beneficiary?  It is very simple to indirectly access the trust assets through the spouse.  And the trust agreement should define the “spouse” using a “floating spouse provision” that defines the spouse as the person the settlor is married to and living with from time to time.  This gives the settlor the ability to access the trust assets through a subsequent spouse in the event of a divorce or the death of the settlor’s spouse.

If the settlor has no spouse, then it becomes more difficult to access the assets.  However, since a good asset protection planner will be sure to leave sufficient wealth outside of the client’s asset protection trust, in most cases the settlor won’t have to work through this issue anytime soon.

If the Settlor Is Added as a Beneficiary

In case the settlor needs to be a discretionary beneficiary of the Hybrid DAPT sometime in the future (i.e., if the settlor has no spouse or child that will “share” a distribution with the settlor and the settlor now needs a distribution), the trust agreement provides that the trust protector or independent trustee can add additional beneficiaries, including the settlor.  However, if the settlor is added, then the Hybrid DAPT becomes a regular DAPT and thus risks that the law is still unsettled on DAPTs (even though most people believe that they work).

What happens if the settlor suspects that a creditor attack may be forthcoming?  Or what if the settlor is considering filing bankruptcy?  In either case, very far in advance of the problem occurring, the settlor would ask the trust protector or independent trustee to remove him or her as a discretionary beneficiary. 

§548(e) of the 2005 Bankruptcy Act

It is extremely unlikely that a DAPT settlor will file for bankruptcy, especially if the settlor has an “old and cold” DAPT that is past the applicable state’s statute of limitations period.  In fact, of the hundreds of DAPTs created by the author, not one of those clients has gone through bankruptcy. 

However, in maintaining the philosophy of this commentarythat it is important to build into the structure every safeguard available, it is interesting to note that the Hybrid DAPT most likely does not fit the definition required by §548(e) of the 2005 Bankruptcy Act that would otherwise potentially claw back the assets of a traditional DAPT.  The requirements of §548(e) are as follows:

(1) In addition to any transfer that the trustee may otherwise avoid, the trustee may avoid any transfer of an interest of the debtor in property that was made on or within 10 years before the date of the filing of the petition, if—

(A) such transfer was made to a self-settled trust or similar device;

(B) such transfer was by the debtor;

(C) the debtor is a beneficiary of such trust or similar device [emphasis added]; and

(D) the debtor made such transfer with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made, indebted.

Unless the settlor is added as a discretionary beneficiary of the Hybrid DAPT, Subsection (C) doesn’t apply.  Also, arguably Subsection (A) doesn’t apply either since the Hybrid DAPT isn’t a “self-settled trust or similar device” at the time the provisions are applied.

The Completed Gift Hybrid DAPT

Most DAPTs are designed as Incomplete Gift DAPTs where the sole objective is asset protection.  However, many DAPTs are designed as Completed Gift DAPTs where the settlor is a discretionary beneficiary of a trust designed with the following attributes: 

(i)                It’s a completed gift for gift tax purposes,

(ii)             The settlor is a discretionary beneficiary,

(iii)           The trust assets are protected from the settlor’s beneficiaries, and

(iv)           The trust assets are outside of the settlor’s estate for estate tax purposes at the settlor’s death.

The Completed Gift DAPT strategy was approved by the Service in PLR 200944002 where a resident of a DAPT jurisdiction established the DAPT using the laws of that DAPT jurisdiction. 

However, with respect to a resident of a non-DAPT jurisdiction, although most practitioners are comfortable that this strategy works, whether the trust assets are open to creditors of the settlor is still uncertain, since it is unclear which state law will apply for creditor purposes.  The DAPT will be includible in the settlor’s estate at death if the trust assets are open to the settlor’s creditors.  If this were the case, this would occur under IRC §2036(a)(1) since the settlor would be treated as retaining the ability to run up creditor debts which can be paid out of the trust at the settlor’s death. 

IRC § 2036(a)(1) provides that the value of the gross estate shall include the value of all property to the extent of any interest therein of which the decedent has at any time made a transfer (except in the case of a bona fide sale for an adequate and full consideration in money or money's worth), by trust or otherwise, under which the decedent has retained for life or for any period not ascertainable without reference to the decedent's death or for any period that does not in fact end before death the possession or enjoyment of, or the right to the income from, the property.

The Completed Gift DAPT reduces this risk significantly since the settlor isn’t a discretionary beneficiary of the trust and, thus, it isn’t a self-settled trust.  In an ideal scenario, the settlor will never need to be added as a discretionary beneficiary by the trust protector or independent trustee.  However, if the settlor does need to be added at a later date, since the Completed Gift Hybrid DAPT also gives the trust protector or independent trustee the power to remove beneficiaries, as long as the settlor is removed as a discretionary beneficiary more than three years prior to death, there is no estate tax inclusion since IRC §2035 (the three-year contemplation of death rule) won’t apply.

Down and Dirty

To this date, there is still no case law saying that a DAPT does or does not work to shield the assets from the creditors of a settlor who is a resident of a non-DAPT jurisdiction.  Although all the cases have settled, or the creditors have decided not to sue, the estate or asset protection planner must still consider how to plan if the law does go the wrong way.  Unfortunately, although there will ultimately be case law, whether good or bad, unless the case law goes through the appeal process and is ultimately decided by the highest court, we still won’t have any certainty.  So it is prudent to plan for this uncertainty.

If the settlor has set up a Hybrid DAPT, whether as an Incomplete Gift Hybrid DAPT or as a Completed Gift Hybrid DAPT, if the settlor wants to be sure to preserve a portion of the Hybrid DAPT’s assets if the settlor is being added in as a discretionary beneficiary, the trustee can split the Hybrid DAPT into two separate trusts and the trust protector or independent trustee can add the settlor as a discretionary beneficiary of only one of the two trusts so as not to taint the other trust.

For example, if there are $10 million of assets in the Hybrid DAPT, the trustee might divide the trust into two trusts – the “Clean Hybrid DAPT” which doesn’t include the settlor as a discretionary beneficiary and has $8 million of assets, and the “Dirty Hybrid DAPT” which includes the settlor as a discretionary beneficiary and has $2 million of assets.  Thus, the risk has been transferred away from the Clean Hybrid DAPT to the Dirty Hybrid DAPT (which, again, should be protected, but is potentially being sacrificed in the interests of not tainting the assets in the Clean Hybrid DAPT).  This is nothing more than a risk management decision.

COMMENT:

It is imperative that the asset protection planner create a plan with the highest probability of success.  In most cases, it is possible to significantly increase the protection by simply using a Hybrid DAPT rather than a traditional DAPT.  This commentary describes this structure, and also creates a further structure where the Hybrid DAPT can be divided into a Clean Hybrid DAPT and a Dirty Hybrid DAPT, so that even if the Dirty Hybrid DAPT is unsuccessful, it doesn’t taint the Clean Hybrid DAPT. 

HOPE THIS HELPS YOU HELP OTHERS MAKE A POSITIVE DIFFERENCE!

Steve Oshins

TECHNICAL EDITOR: DUNCAN OSBORNE

CITE AS: LISI Asset Protection Planning Newsletter #200 (May 10, 2012) at http://www.leimbergservices.com  Copyright 2012 Leimberg Information Services, Inc. (LISI). Reproduction in Any Form or Forwarding to Any Person Prohibited – Without Express Permission.

CITES: PLR 200944002; Oshins & Keebler on Mortensen:  “No, the Sky Isn’t Falling for DAPTs!”, Asset Protection Newsletter #186 (Oct. 31, 2011); Battley v. Mortensen, Adv. D.Alaska, No. A09-90036-DMD, May 26, 2011 (Original Memorandum) and July 18, 2011 (Memorandum Denying Motion For Reconsideration).

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Sources: Leimberg Information Services & Steven J. Oshins, Esq.

Thursday, May 03, 2012

Strengthening Your Brand with CPAs

Reposted from RegisteredRep.com | By Matt Oechsli

Houston—“I’ve never had much success with CPAs,” groaned Peter, an advisor in a workshop I was conducting. “Even the CPAs I’ve referred clients to—nothing ever comes back my way. Do you think it’s realistic to develop a true referral alliance with a CPA?”

My short answer was “Yes.” But I recognize that many financial advisors feel Peter’s pain. They refer clients to a handful of CPAs in their community, fully expecting the law of reciprocity to engage, and nothing happens. Few if any referrals come back. Essentially, Peter is asking, “What’s going on?”

As I told this group, when it comes to CPAs, there’s good news and bad news. The bad news is that most CPAs don’t trust the financial services industry and therefore don’t trust financial advisors. The good news is that many elite financial advisors have earned the trust of CPAs in their communities and have developed excellent working relationships with them. Yes, it can be done, and now is the perfect time of year to begin.

With tax season finally behind them, most CPAs are taking a deep sigh of relief and giving themselves some time to relax. What elite advisors are doing is using this period of CPA decompression as a time to organize social outings with the select group they work with. The following are a handful of events that have been used effectively:

• Social dinners: CPA and spouse with advisor and spouse. These are dinners with two couples, with CPAs where a healthy referral alliance is already established, and specific CPAs who are being romanced into a healthy referral alliance relationship.
• Group wine tasting with spouses: CPAs of top 25 clients invited.
• Drinks at a martini bar with spouse: CPAs of top 25 clients invited.
• Saturday afternoon cookout: CPAs and families of top 25 clients invited
• Golf outing: CPAs with a healthy referral alliance, and targeted CPAs (two foursomes; drinks with spouses to follow).

Sure, in some of these post-tax season events you’ll have competitive CPAs in attendance. That’s okay as you’re establishing a blanket of good will. The secret is to follow up and begin building a relationship with every CPA, one-on-one, following the event.

I know what many of you are probably thinking: “How can I call a CPA for a social event when I don’t even have a relationship with him?” And the answer is—easily. This is no different than inviting a prospect you’ve recently met to some fun event you’re hosting, but in the case of CPAs at this time of year, it’s even easier.

First of all, you might find it helpful to think in terms of four CPA buckets:

Bucket 1—These are the CPAs with whom you already have a healthy referral alliance relationship. With this group, you’ll want to make a personal telephone call and invite the CPA and spouse to dinner. The idea here is that they’ve worked hard over the past four months, you appreciate their hard work, and you want to make certain they have a relaxing evening with you and your spouse. It’s important to emphasize: no business, all social.

Bucket 2—CPAs of your top 25 or so affluent clients. For these CPAs, you should plan an event; whether it’s a wine tasting, martini evening or a cookout doesn’t really matter. The key is to make it fun. Here, either you or your assistant (if he or she has a good relationship) calls and personally invites each CPA and spouse to the event. Again, you’re recognizing the hard work they’ve been engaged in over the past four months, you express appreciation for the work they’ve done with your clients, and this is your way of saying thanks. Remember, your objective is to follow up and begin building relationships one-on-one.

Bucket 3—Oh, those thankless CPAs who you’ve given referrals to but haven’t experienced the reciprocity. These rascals in Bucket 3 need a wake-up call over a social lunch. Call and invite them to a lunch with a slightly different twist; now that tax season is over, you simply want to catch up. Yet during that lunch you want to express your appreciation for how well they are handling the clients you’ve referred to them (mention each by name), and after a brief discussion you bring down the hammer by directly asking, “I’m very curious. I’ve sent X referrals to you over the past Y years and I haven’t received even one from you. Why?” You’ll want to soften this to your own personality, but here is where you shut up and watch the CPA squirm. Either you’ll get an apology or an explanation why you’ll never get referrals. This will have one of two outcomes—either you’ll never get referrals and you’ll never give another referral, or you’ll start getting referrals. In which case, this CPA moves to Bucket 1 and it’s time for a social dinner.

Bucket 4—These are those CPAs you’re targeting but have yet to develop any type of relationship. This group requires a bit more homework. You will want to ask CPAs in Buckets 1and 2 if they know these individuals. If so, you’d like to invite them, as their guest, to your upcoming Top 25 CPA event. If not, you should conduct a social media search as you are looking for a connection. If you find a connection with anyone you know, you call the person you know, explain that you want to meet this particular CPA, describe the event, and invite them both, using your connection to invite the CPA you’re targeting.

I recognize that Bucket 4 CPAs are more challenging, but you’ve got nothing to lose. Tis-the-season to socialize with CPAs. Yet, you’ll need a game plan; not all CPAs are equal and not all will allow you to develop a healthy referral alliance relationship.

Yet all you need are three or four good CPA relationships to become a master rainmaker. It will take time, patience, and persistence—but over the next eight months you can significantly strengthen your branding with CPAs.

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Source: RegisteredRep.com
Photo Credit: prssasdsu.org

Friday, April 27, 2012

Autism Awareness Month: Special Planning for the Future with Autistic Children

April is Autism Awareness Month and The Ultimate Estate Planner, Inc. has teamed up our fellow colleague, Thomas D. Begley, Jr. and the Begley Law Group, P.C., based out of New Jersey, to help spread awareness for this very special cause. 

A recent report released by the Centers for Disease Control shows a drastic increase in autism diagnoses. One in every 88 children in the United States is diagnosed with a form of autism spectrum disorder, an increase of 78% since 2002. Boys with autism continue to outnumber girls at a rate of 5 to 1.

Since this is such a prevalent disorder that touches so much of the population, it is necessary to ensure that safeguards are in place for your loved one affected by autism.

GUARDIANSHIPS

If, upon reaching age 18, an autistic individual has sufficient capacity, he or she can, and ought to, execute documents, including a will, living will, and powers of attorney. These documents will name a loved one to act as an agent, if necessary, regarding emergency medical decisions as well as routine financial and personal decisions.

For an individual with insufficient capacity, a guardianship will be necessary. Once a child turns 18, the parents no longer retain the legal right to make the decisions that they have been making up to that point. In many cases, the guardianship process can be simple for parents of children on the autism spectrum, but it is still essential in order to ensure that safeguards are in place for the child.

It is also important for parents of children with autism to make sure that their own wills name choices for a successor guardian for their child.

SPECIAL NEEDS TRUSTS

Most parents worry about the well-being of their children once both spouses have passed away. A parent's or grandparent's concern about their loved ones is especially well-founded for special needs children. Leaving an inheritance outright to a child with special needs will jeopardize his or her eligibility for governmental benefits. For example, in order to receive Medicaid benefits, an individual cannot have more than $2,000 of countable assets in his or her name.

In order to rectify this issue, parents and loved ones often establish a third party special needs trust, which is a mechanism through which funds can be made available in order to enhance quality of life while still allowing the child to remain on government benefits. A special needs trust supplements public benefits, such as Medicaid and SSI, without jeopardizing eligibility. The trustee has absolute discretion to expend funds from the trust to purchase things for your child that are not otherwise covered by Medicaid.

It is extremely important to inform relatives about the existence of this special needs trust. Grandparents and other relatives can make lifetime gifts or leave inheritances directly to the child's trust in order to make sure that benefits are preserved.

Even if you are not personally affected by autism, please join us at The Ultimate Estate Planner, Inc. and the Begley Law Group, P.C., along with millions of other advocates, to continue to spread awareness about autism spectrum disorders and the importance of looking at the special planning needed for these individuals.

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Source & Photo Credit: Begley Law Group, P.C., Susan M. Green, Esq.

Thursday, April 26, 2012

IRS’ 5 Tax Tips for Newlyweds, Divorcees

If you or a client has just gotten married or divorced, the last thing you want is for something to further complicate tax returns–or throw a snag into the processing of a refund.

Name changes can do just that, whether it’s a matter of taking a new name or resuming an old one. Connubial bliss can suffer if the refund doesn’t arrive in time to pay some of those hefty wedding bills–and freedom might not seem so free if finances are impaired when a long-anticipated refund check fails to show up.

Thanks to the folks at AdvisorOne.com, here are five suggestions from the IRS that can help you stay out of trouble, whether you’re once again flying solo or have just tied the knot.

1. Calling a Spouse a Spouse
So you’ve taken the plunge and jumped the broom. The IRS’ computers won’t know, or care, unless you let the Social Security Administration know too–after all, a computer will look at your Social Security number and the name on your joint return and scream “Reject!”–even if you kept your old name and hyphenated it with that of your new spouse.

2. Back to the Future
Divorced? Same problem. If you went back to your old name, don’t forget to let SSA know so that the IRS computers don’t have a nervous breakdown trying to figure out where they know you from.

3. A Rose by Any Other Name
When you’re ready to notify Social Security, you will need to provide them with proof that you are (now) who you say you are. Make sure you have a recently issued document that identifies you as you wish to be known.

4. Gotta Do the Paperwork
Provide the Social Security Administration with that recently issued document, as well as a completed Form SS-5, Application for a Social Security Card, either by mail or in person at your local SSA office. The form is available online at http://www.socialsecurity.gov/, by phone–call 800-772-1213 to request it—or at those handy local offices. Your new card will arrive with your old number and your new name.

5. But What About the Kids?
Suppose you (or your spouse) adopted the kids, and their names changed too. Social Security needs to know about them as well, even if they don’t have SSNs yet. For adopted children without SSNs, the parents can apply for an Adoption Taxpayer Identification Number–or ATIN–by filing Form W-7A, Application for Taxpayer Identification Number for Pending U.S. Adoptions, with the IRS. The ATIN is a temporary number used in place of an SSN on the tax return. Form W-7A is available on the IRS.gov website or by calling 800-TAX-FORM (800-829-3676).

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Wednesday, April 25, 2012

New Book Helps You Plan for and Protect Your Assets

Orange County, California (March 29, 2012) – There are few things in life more certain than death and taxes and perhaps, in today’s society, Law suits.  However, the fact is few people actually plan for them. 

In the New Book The Ladder of Success: An Asset Protection Planning Primer, Attorney Jeffrey R. Matsen (“Top 100 Attorneys in U.S.” Worth Magazine) has provided a straightforward and elementary description of what Asset Protection really is and demonstrates how it can be effectively implemented by taking various steps, like rungs on a ladder, to truly climb the ladder of success.

“The one constant over the many years of my practice and among the hundreds of different clients I have served is the imbalance of, on the one hand, their profound concern regarding Asset Protection, and on the other, their lack of understanding as to how to implement it,” says Attorney Matsen. “I have dedicated my career to assisting these clients in planning the fortification of their resources to ensure their financial security in the face of taxes, liability and creditor attacks.” 

The Ladder of Success: An Asset Protection Planning Primer explains:

• Why Plan?  The Need for Asset Protection
• The Limitations
• The Operating Business Entity
• Basic Estate Planning
• Bankruptcy Considerations, Exemptions and Marital Planning
• Liability Protective Entities for Investment Assets
• Domestic Asset Protection Trusts and Modular Planning Utilizing LLCs
• The Offshore Asset Protection Trust and the Modular Planning that Accompanies It
• Advanced Estate Planning Techniques
• Special Issues and Strategies for Physicians and Dentists
• Climbing the Ladder and Putting It All Together

Chock full of authoritative information about estate planning and asset protection, The Ladder of Success: An Asset Protection Planning Primer is one book every conscientious person should own.  “Nobody understands the nuances and practicalities of this area better than Jeff Matsen.  His unique ability of making issues clear for clients and their advisors is a gift.  This book is required reading for any layperson or professional who wants to learn more about asset protection and more importantly, take action,” says Bill Deitch, Leading Estate Planning Attorney, Chicago.

“Jeff Matsen is an expert to the experts in the asset protection field.  Those seeking asset protection often share common characteristics—such as wealth, business ownership, real estate ownership, considerable income and estate tax exposures, as well professional practice ownership—and I recommend they read Jeff’s book to protect their families,” states Joseph J. Strazzeri, Fellow, Southern California Institute; Co-founder, Laureate Center for Wealth Advisors. 

Tim Voorhees, JD, MBA President, Family Office Services;  Principal, Matsen Voorhees, Orange County, CA. explains “Because of Jeff’s broad, multi-disciplinary experience, he knows how to integrate protection from lawsuits with protection from taxes. Jeff’s ability to combine creditor protection with tax planning helps clients accumulate more wealth and maximize upside potential.” 

“Jeff Matsen is one of the best estate planning and asset protection attorneys in the country.  His knowledge, wisdom and direct experience have truly made him one of the elite group of top experts in his field. If you are concerned about protecting your assets and want to leave a legacy for future generations, I highly recommend you read this book,” says Stephen Fairley, CEO of The Rainmaker Institute, LLC, The Nation’s Largest Law Firm Marketing Company. 

 Marc Selden, Nationally Recognized Estate Planning Attorney, New York City, states “Jeff is widely recognized in the legal community as an asset protection guru.  In this book, Jeff does a wonderful job of explaining the principles and strategies of complex asset protection planning in a very clear and easy-to-understand way.”

The Ladder of Success: An Asset Protection Planning Primer,  $19.95, Paperback 179 pages, ISBN 978-0-9852041-1-2, is published by Wealth Strategies Counsel, and is available online.  >>ORDER NOW

ABOUT  JEFFREY R. MATSEN
JEFFREY R. MATSEN, JD, received his law degree with honors from the UCLA School of Law and served as a Military Judge with the rank of Captain in the US Marine Corps.  Matsen has been a Professor of Law in Business, Estate Planning and Advanced Taxation. He is a highly sought-after and respected speaker and educator and has published numerous legal articles.  Matsen is the founder of “Wealth Strategies Counsel,” the Estate Planning and Business Transactions Department of Matsen Voorhees and Bohm, Matsen, Kegel & Aguilera, LLP, in Orange County, California.  His practice areas include: Business and Estate Planning, Asset Protection, Probate and Trust administration and litigation, Real Estate and Offshore structures.  Matsen has been designated one of the Nation’s “Top 100 Attorneys” by Worth Magazine, A “Super Lawyer” by Los Angeles Magazine and he is listed in The Best Lawyers in America.  The Nationally Renowned Attorney Rating Service, AVVO, has rated Matsen a perfect “10/10 Superb.” Besides continuing to achieve the highest “AV rating,” he has been designated a “Preeminent Lawyer” by the prestigious attorney rating directory, Martindale Hubble.

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Monday, April 23, 2012

A Vexing Retirement Planning Problem? Predicting Health Care Costs

What worries your clients most about their prospects for achieving a secure retirement? The cost of health care.

Americans are less confident that they'll have enough money to pay for medical and long-term care expenses in retirement than they are about their ability to cover basic expenses, according to the Employee Benefit Research Institute's recently released Retirement Confidence Survey.

Affluent households seem especially worried. Seventy-nine percent of investors with $250,000 or more in investable assets responding to the most recent Merrill Lynch Affluent Insights Survey cite health care costs are their top financial concern – ahead of the nation's budget deficit, unemployment or possible tax hikes. And 34 percent say they are more worried about the financial strain associated with a chronic health situation than how it might compromise their quality of life.

It's the third year in a row that health care cost worries have topped Merrill Lynch's survey. Growing awareness among older Americans that longevity is rising is a key factor, since it raises the specter of ballooning lifetime cost, says David Tyrie, head of Personal Wealth and Retirement for Bank of America Merrill Lynch. “The longevity challenge is complex, and we need to think about it more holistically and find a comprehensive solution,” he says.

Health care cost inflation for retirees actually has moderated somewhat in recent years. Fidelity Investments reports that projected lifetime health care costs fell for those retiring in 2011 – the first time inflation abetted since the company began tracking it 10 years ago. Fidelity estimates that a 65-year-old couple retiring last year will need $230,000 to pay for lifetime medical expenses, not including nursing-home care. That represents an eight percent decline from 2010, when the estimate was $250,000 (Fidelity's 2012 report is due to be released later this month).

A key factor moderating prices is the Obama Administration's health reform law, according to Fidelity and other experts. The Affordable Care Act (ACA) contains several key changes to Medicare, including a gradual closing of seniors' out-of-pocket spending on prescription drugs in the notorious doughnut hole. The prescription drug program also has experienced lower-than-forecast enrollment and a major patient shift to generic drugs. The ACA also cuts reimbursement rates to hospitals, skilled nursing facilities, home health services and Medicare Advantage managed care plans.

While overall Medicare spending is soaring due to the country's aging demographics, the rate of average annual per capita spending is projected to be 3.5 percent for the coming decade – in line with projected GDP growth of 3.8 percent, according to the Congressional Budget Office. From 1985 to 2009, annual per capita spending growth averaged 6.7 percent. However, long term care costs have continued their inexorable rise. The annual rate for a private nursing home room last year was $77,745 in 2011, according to the Genworth 2011 Cost of Care Survey, up $17,520since 2005 – a compound annual growth rate of 4.35 percent over that period.

At the same time, the market for long term care insurance (LTCI) continues to struggle. The federal government threw in the towel last October on efforts to create a federally-sponsored option for long-term care coverage, called The Community Living Assistance Services and Supports Act (CLASS), due to worries that the program wouldn't be financially sustainable without adding significantly to the federal deficit.

The news in the private LTCI market hasn't been much better. Prices for LTCI policies this year are ranging from six to 17 percent higher than a year ago, according to the American Association for Long-Term Care Insurance (AALTCI) Many existing policy holders have been hit with double-digit rate hikes, as well.

Much of the premium hikes stem from the ultra-low interest rate environment, according to Jesse Slome,executive director of AALTCI. “Many people don't understand the importance of investment return in the insurance business. “About half of the assets carriers use to pay future claims comes from investment returns, and the other half comes from premiums” he says. “Every half point drop in interest rates translates into a 15 percent rate increase by insurers.”

Meanwhile, insurance carriers have been withdrawing from the market – 10 of the top-20 underwriters of individual LTCI policies five years ago have since announced that they will stop writing new policies, according to LIMRA, the insurance industry research and consulting group. And sales have been lackluster. In 2011, the number of people buying policies fell two percent to 230,000, according to LIMRA.

Helping Clients Cope

Mapping a strategy for managing health care costs in retirement is a critical component of any good financial plan. Yet the Merrill Lynch survey finds that, while respondents may be wringing their hands about the problem, they're not doing much to prepare. Seventy-eight percent of Americans under age 50 haven't planned for retirement health expense—but 62 percent of those over 50 haven't figured it out either.

Here are some key strategies to consider as you work with clients:

Create a savings goal for health care. Consider urging clients to set up a separate account to be tapped only for health expenses in retirement. Some may have access to a Health Savings Account at work, which permits investment of pre-tax dollars, tax-free growth and withdrawals for workers who want to save to offset health expenses. But HSAs are limited to workers enrolled in high-deductible insurance plans ($1,200 for an individual, $2,400 for families). Contributions are limited to $3,050 for individuals, and $6,150 for families.

Roth IRAs also can be useful vehicles for setting aside dollars tagged for health care, since they don't have Required Minimum Distributions for those over age 70 ½ and withdrawals generally are tax free.

Work longer. Staying on the job even a few years longer than planned is one of the best overall ways to counter health expenses, because it means more years of employer-sponsored health insurance and delayed Medicare enrollment.

Do a prescription drug benefit check-up annually. Seniors should re-shop prescription drug plans annually to ensure that they are getting the best price and appropriate coverage. Insurance companies often change their offerings year-to-year in ways that can increase premiums by thousands of dollars, or make it difficult to get certain drugs. And, your clients' health needs may change, too.

Manage Medicare carefully. Clients should be sure to sign up for Medicare within the correct enrollment windows to avoid major penalties for Part B – 10 percent for every year of delay for life.And high income seniors should pay careful attention to manage tax brackets to avoid premium surcharges levied for Part B and Part D.

Consider long-term care insurance. Despite the LTCI market's recent problems, there really aren't many viable alternatives for protecting clients against the risk of catastrophic cost. Medicare covers only a small amount of LTC costs; Medicaid, which funds the greatest share of the country's nursing home costs, requires beneficiaries to spend themselves into poverty and the quality of care available is spotty at best.

Some may be able to self-insure – a strategy that requires $500,000 to $750,000 in retirement assets in order to be confident of having sufficient resources to self-fund an LTC need, according to Dawn Helwig, a principal with Milliman, an actuarial consulting firm that works with the LTC insurance industry.

Helwig recommends that LTCI buyers consider trimming their costs by staying away from the most expensive policy types. “Especially with the way inflation has been running, people don't really need to be buying policies with five percent compound inflation features right now. The regulations usually require insurance agents to offer that, but most also offer lower inflation protection at lower rates, and that can make a big difference.”

And if rates jump on an existing policy, policyholders may be able to keep rates flat by reducing their benefit levels.

“There really isn't another game in town, unless you're willing or able to divest all your assets and qualify for Medicaid” says Helwig.

Mark Miller is a journalist and author who writes about trends in retirement and aging. Mark edits and publishes RetirementRevised.com, featured as one of the best retirement planning sites on the web in the May 2010 issue of Money Magazine. He is a columnist for Reuters and also contributes to Morningstar and the AARP Magazine. Mark is the author of The Hard Times Guide to Retirement Security: Practical Strategies for Money, Work and Living (John Wiley & Sons, 2010).

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Source: RegisteredRep.com | By Mark Miller
Photo Credit: worldofdtcmarketing.com

Friday, April 20, 2012

Steve Oshins’ 3rd Annual DAPT Ranking Chart & Other Free Updated Charts Available to Download

Steve Oshins’ 3^rd Annual Domestic Asset Protection Trust Ranking Chart
Thanks to the generosity of nationally renowned estate planning and asset protection attorney, Steven J. Oshins, Esq., AEP (Distinguished) for providing his 3rd Annual Domestic Asset Protection Trust Ranking Chart.  For the first time since the chart was originally created, this chart now assigns numerical rankings to each DAPT state. The approximate weights assigned to each variable are listed.  However, please note that in the interests of impartiality, since Nevada is the only state (of the top eight states per the rankings) that doesn’t allow divorcing spouses to access its DAPTs, Steve added a lot of subjective bonus points to the non-Nevada jurisdictions in order for the “Total Score” to not be too skewed. 

Traditional IRA Distribution Flowchart
Thanks to the generosity of nationally renowned CPA and IRA Expert, Robert S. Keebler, we are providing to you his updated Traditional IRA Distribution Flowchart.

Updated Understanding the 3.8% Health Care Surtax Chart
In late March, the Supreme Court began hearing arguments on the constitutionality of the Affordable Care Act, the health care reform law that was signed on March 23, 2010.  Accordingly, Robert S. Keebler updated his Understanding the 3.8% Health Care Surtax chart to reflect the new Medicare surtax. This law imposes a 3.8% tax on unearned income, such as interest, dividends, rents, royalties and certain capital gains, for higher income taxpayers (and trusts and estates).

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*NOTE: Your contact information is required to receive these free resources. By supplying The Ultimate Estate Planner, Inc. your e-mail address, you are authorizing us to e-mail you announcements in the future about various products and programs we have available. You will also be added to the author's e-mail list and notified of tax news and information about programs.  The Ultimate Estate Planner, Inc. does not rent or sell its list to other third parties.  You can unsubscribe from these communications at any time.

Thursday, April 19, 2012

Practical Planner - Checklist: Capacity (Volume 7, Issue 2)

Martin “Marty” Shenkman, Esq., CPA, MBA is an estate planning attorney and Certified Public Accountant who authors a number of publications each month, including his monthly e-mail newsletter, "Practical Planner".  Below is the second installment from Marty's March/April 2012 newsletter.  To be added to Marty's monthly e-mail distribution list, e-mail newsletter@shenkmanlaw.com.

Summary: By 2030 it is estimated that 1/5th of all Americans will be age 65 or older. Age brings challenges, that are often compounded by more health challenges. These make confirming that you have adequate ability, called “testamentary capacity,” to sign a will more important. But even if you’re sufficiently competent, were you unduly influenced to leave your son/caretaker double what his siblings get? Consider:

√ Many chronic illnesses, in addition to physical or other symptoms, are coexistent with depression. Depression can be part of the symptoms of the illness itself, or as the result of the impact of the illness on the client’s quality of life, or a consequence of medication used to treat the illness, or a combination of all three factors. Depression may affect your objectives, capacity, and risk for being unduly influenced. With depression sleep may be impaired, you may see the world through dark colored classes, you may have little energy and no ability to concentrate, etc. Depression may make you more susceptible to undue influence. If concentration is significantly impacted, your cognitive function may also be affected.

√ Consider who is making the assessment of your competency (capacity). Many primary care physicians don’t have the expertise to make these diagnosis, yet often lawyers rely on reports from primary care physicians to support their ultimate legal determination as to capacity. For patients with known depression, less than 25% were documented as being depressed in their primary physicians’ charts. Less than 10% were taking medication for depression. The statistics concerning the diagnosis of cognitive impairment are similarly weak. For a proper diagnosis, a number of different disciplines might be tapped. The basic analysis should include a bio-psycho-social framework. It is important to look at the entire person and not just a part. Evaluating medical records might be a good start, but when a full picture, including the patient’s social environment, is obtained, everything is put in context.

√ The testing process itself may yield a false positive. If someone age 85 is put through a 6 hour neuropsychological test, at the end of the test his performance could be affected as a result of the fatigue caused by the testing process itself!

√ How at risk are you to undue influence? What can be done to ascertain or corroborate you true wishes? Even if there is a strong risk of undue influence, if you’ve been consistent for decades (e.g., your will has always left your son a double portion), your wishes may be clear. The real challenge is in assessing the reality of undue influence if you’re living with moderate dementia. While changes in your historical pattern of disposition of assets might suggest an issue, is it?

√ A court might find that you had sufficient capacity to make a will, but then disqualify the will because of undue influence. In re Estate of H. Earl Hoover, no. 73519, Illinois, 6/17/93. Since capacity is a continuum, even if capacity is diminished, it may prove easier to challenge the will by demonstrating undue influence.

√ In early stages of even Alzheimer’s disease no one should assume that sufficient capacity does, or does not, exist. If the diagnosis was made by a primary care physician, what reliance is reasonable to place on the conclusion? What precautions should your lawyer take? The fact that you were prescribed a drug, such as Aricept, does not necessarily prove your cognitive status.

√ Competency is also situational. You may lack competence at one point in time, but you may be competent at another point in time. For example, you might feel so anxious in your attorney’s office that you  cannot adequately respond to the queries your attorney believes essential to the demonstration of adequate capacity. Perhaps your lawyer should have a therapy dog present and serve lots of great snacks to put you at ease! Documenting the situational impact on competency presents another type of challenge.

Thanks to Sanford I. F, MD, Clinical Professor of Psychiatry at the University of Chicago Medical School and William Andrews, Esq. of Santa Rosa, California. PP

To download the complete newsletter and prior newsletters, click here.

_______________________

ABOUT THE AUTHOR: Martin “Marty” Shenkman, Esq., CPA, MBA is an estate planning attorney and Certified Public Accountant from Paramus, New Jersey. He received his Bachelor of Science degree from Wharton School, University of Pennsylvania 1977 with a concentration in accounting and economics. He received a Masters degree in Business Administration from the University of Michigan 1981, with a concentration in tax and finance.

Mr. Shenkman is a widely quoted expert on tax matters and is a regular source for numerous financial and business publications, including The Wall Street Journal, Fortune, Money, The New York Times, and others. He has appeared as a tax expert on numerous television and cable television shows including The Today Show, CNN, NBC Evening News, CNBC, MSNBC, CNN-FN and others. He is a frequent guest on radio talk shows throughout the country and has a regular weekly radio show on Money Matters Financial Network.

Mr. Shenkman is a prolific author, having published thirty-four books and more than seven hundred articles. Mr. Shenkman has served as contributing editor to a host of publications, including: New Jersey Lawyer, The Journal of Real Estate Finance, Real Estate Insight, Commercial Leasing Law & Strategy, The Journal of Accountancy, Real Estate Accounting and Taxation, Shopping Centers Today, and others.

Mr Shenkman is active in numerous charitable organizations, sitting on many boards and planned giving committees and lectures regularly for these and other organizations.

Wednesday, April 18, 2012

Keebler & Ward on Taproot v. Commissioner: Roth IRA Not Eligible Shareholder of S Corporation

Reproduced with Permission by and Courtesy of Leimberg Information Services, Inc. (LISI).  For information about how to subscribe to LISI, click here.

Traditional IRAs are not eligible S corporation shareholders under Rev. Rul 92-73 on the theory that the beneficiary of a traditional IRA is not taxed currently on the IRA's share of the S corporation's income. But what about Roth IRAs?

In Employee Benefits and Retirement Planning Newsletter #506 Bob Keebler provided LISI members with his analysis of the initial Tax Court decision in Taproot, that at the time supplied the answer to the fascinating question set out above.  Now, Bob returns with Michelle Ward, and together they comment on the 9th Circuit’s affirmation of the Tax Court’s decision.

EXECUTIVE SUMMARY
In Taproot, the Ninth Circuit Court of Appeals upheld the U.S. Tax Court’s finding that a Roth IRA is not an eligible S-corporation shareholder.

FACTS
Paul Di Mundo incorporated Taproot Administrative Services, Inc. in the state of Nevada in 2002. Taproot elected S corporation status effective as of the date of incorporation and filed its 2003 tax return on a U.S. Income Tax Return for an S Corporation.

In early 2003, Taproot issued all outstanding shares of its stock to a custodial Roth IRA account held at the First Trust Co. for the benefit of Di Mundo. The custodial Roth IRA account remained Taproot’s sole shareholder during the 2003 tax year.

In 2007, the Commissioner of the Internal Revenue Service issued a notice of deficiency to Taproot for the 2003 tax year. Among other findings, the Commissioner determined that a Roth IRA did not qualify as an eligible shareholder of an S corporation. Consequently, Taproot was deemed taxable as a C corporation for the 2003 tax year.

DISCUSSION
Taproot argued that the individual beneficiary of a custodial account also qualifying as a Roth IRA should be considered the shareholder for purposes of the S corporation statute.

Treas. Reg. Sec. 1.1361-1(e)(1) provides that “[t]he person for whom stock of a corporation is held by a nominee, guardian, custodian, or an agent is considered to be the shareholder of the corporation for purposes of [the S corporation statute].” Taproot contended that as the sole beneficiary of the DiMundo Roth IRA, DiMundo should be considered the shareholder and, thus a qualifying individual for the purposes of the statute.

IRC Sec. 1361(c)(2)(A)(i) also extends shareholder eligibility to any grantor trust “all of which is treated...as owned by an individual who is a citizen or resident of the United States.” Taproot therefore also argued that a Roth IRA should be classified as a grantor trust.

In Rev. Rul. 92-73, the IRS ruled that an IRA is not a permitted shareholder of an S corporation under section 1361. The IRS reached similar conclusions regarding an IRA’s eligibility as an S corporation shareholder in a least 42 PLRs (see, e.g., PLRs 200915020, 200931039 and 200940013). While the Court acknowledged that such rulings were not binding precedent, it also noted that they can be used as evidence of an administrative practice of the IRS.

The Tax Court, along with noting the functional differences between IRAs and grantor trusts, found Rev. Rul. 92-73 to “sensibly distinguish[ ] IRAs from grantor trusts.” In making that determination, the Tax Court relied in part on the rationale of Revenue Ruling 92-73, stating that:

[T]raditional IRAs are not eligible S corporation shareholders because the beneficiary of a traditional IRA is not taxed currently on the IRA’s share of the S corporation’s income whereas the beneficiaries of the permissible S corporation shareholder trusts listed in section 1361(c)(2)(A) are taxed currently on the trust’s share of such income.

On appeal, Taproot maintained that the Di Mundo Roth IRA functioned merely as the form of Di Mundo’s individual investment account and that the plain language of Treas. Reg. Sec. 1.1361-1(e)(1) explicitly authorizes those IRAs and Roth IRAs created as custodial accounts to be shareholders of S corporations.

Taproot first claimed that both forms of IRAs and Roth IRAs—trusts and custodial accounts—lack the essential characteristics of a separate taxpayer and should therefore be treated as indistinguishable from the individual owners. The Court, however, found that Taproot did not provide persuasive reasoning or convincing authority for this conclusion and found the reasoning in Rev. Rul. 92-73 to support the opposite result. The Court found that the distinguishing feature is the deferred income tax treatment, which differentiates IRAs from beneficiaries listed in IRC Sec. 1361(c)(2)(A) who are taxed currently on the trust’s share of income.

The Tax Court also discussed the legislative intent behind the S corporation statute, finding the only available evidence suggested that Congress did not intend to allow IRAs to own S corporation stock. Although at the time Congress initially drafted the S corporations statute, both traditional and Roth IRAs had yet to be created, the Tax Court reasoned that “had Congress intended to render IRAs eligible S corporation shareholders, it could have done so explicitly,” as it did with the 2004 amendment allowing banks with IRA shareholders to elect S status in specific circumstances.

This was especially true in light of Congress’s 1999 directive to “the Comptroller General of the United States to conduct a study of possible revisions to the rules governing S corporations including “permitting shares of such corporations to be held in individual retirement accounts.” For these reasons, the Tax Court concluded that traditional and Roth IRAs were not eligible shareholders. On appeal, the Court found the legislative history of the S corporation statute favored limited eligibility and that if at any point Congress had intended IRA eligibility, it could have amended the statute. The Court pointed out that if IRAs and Roth IRAs qualified as eligible shareholders in 2003, then the subsequent 2004 amendment would have been completely unnecessary.

CONCLUSION
It is interesting to note that the Tax Court was also mindful that under Taproot’s theory of statutory construction, DiMundo would avoid virtually all taxation on his S corporation profits. This would enable S corporations to achieve an overwhelming benefit over C corporation competitors which are subject to two levels of taxation —one at the corporate level and another at the shareholder level.

In a lengthy dissent, however, Judge Halpern notes that “this underestimates the strengths of the Code's other defenses against such shenanigans.” He noted that there are numerous limitations on what can go in and out of an IRA—income-contribution limits, deadlines for contributions, penalties on prohibited transactions, and penalties on excess contributions. Judge Halpern further noted that while custodial retirement accounts are generally exempt from tax on undistributed IRA income, they are still subject to the taxes imposed on Unrelated Business Income Tax. In general, the Unrelated Business Income Tax subjects the business earnings of tax-exempt organizations to taxation.

The majority of the Tax Court, however, expressed its skepticism that the Unrelated Business Income Tax could adequately mitigate this tax advantage. Although Taproot contended that the Unrelated Business Income Tax negates the Tax Court’s policy concerns, the Appeals Court agreed with the IRS that I.R.C. Sec. 512 generally excludes passive investment income, such as interest income, from application of the UBIT and thus, in this case, the interest income at issue would not be subject to the UBIT.

HOPE THIS HELPS YOU HELP OTHERS MAKE A POSITIVE DIFFERENCE!

TECHNICAL EDITOR: Barry Picker

CITE AS: LISI Employee Benefits and Retirement Planning Newsletter #603 (April 17, 2012) at http://www.leimbergservices.com/ Leimberg Information Services, Inc. (LISI). Reproduction in Any Form or Forwarding to Any Person Prohibited – Without Express Permission.

CITES: Taproot Administrative Services v. Commissioner, Case No. 10-70892; Revenue Ruling 66-266, 1966-2 C.B. 356; Revenue Ruling 92-73, 1992-2 C.B. 224

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Sources: Leimberg Information Services, Inc. & Robert S. Keebler, CPA, MST, AEP

Tuesday, April 17, 2012

Practical Planner: 2012— ACT NOW! (Volume 7, Issue 2)

Martin “Marty” Shenkman, Esq., CPA, MBA is an estate planning attorney and Certified Public Accountant who authors a number of publications each month, including his monthly e-mail newsletter, "Practical Planner".  Below is the second installment from Marty's March/April 2012 newsletter.  To be added to Marty's monthly e-mail distribution list, e-mail newsletter@shenkmanlaw.com.

Summary: Unless you’re hiding under a rock, you’ve been bombarded with email newsletters, mailings and more from your CPA, investment adviser, the 100s of people who want to be your investment adviser and more, cajoling you to make gifts before the end of 2012. Well this article is one more of ‘em. And you should pay heed. While the main drift of this message is clear: “make gifts before the law changes in 2013.” There are a number of important nuances to the message that the media blitz has not addressed: Lot’s of people, not just the ultra-high net worth folks, should be doing this. So if you’ve tuned out these messages because you’re not a zillionaire, tune back in! So, “I'll bet you think this song is about you.  Don't you? Don't you?” Well Carly, it is! No one should just make a gift, the gifts should be in trust (your lawyer won’t make any money on the deal if it’s just a simple gift!). These trusts raise a host of issues, many of which have special implication to 2012 planning. So, we’re going to try to convey these key points in a really succinct amount of space, but hopefully enough can be conveyed to motivate you to act now, and act prudently.

• Point 1:  Uncertainty shouldn’t be an excuse for inaction. If the weatherman says 20% chance of a horrible storm, you’d carry an umbrella. Uncertainty may also mean opportunity. If you don’t act now 2013 is scheduled to bring a $1 million exemption and 55% rate. President Obama has continued to propose estate and gift tax changes that will undermine much of the planning arsenal, making his proposed 45% rate and $3.5 million exemption far more costly than most imagine. Consider that the left end of the tax continuum. True, the future is uncertain. Perhaps the Republicans will sweep the election and repeal the estate tax.  Consider that the right end of the tax continuum. If you don’t act now and the left end materializes you (not only your heirs) may lose out big time. If the right happens worst case you’ve wasted the cost of the planning, but have you? The trust planning that will serve your estate planning needs will also provide asset protection benefits, including divorce protection for heirs, and better control and management of your assets. So the planning in the best tax case scenario won’t be for naught, you’ll just have one less benefit. And by the way, even if the estate tax is repealed (and ya shouldn’t hold your breath hoping for that one) the gift tax may remain intact with a $1 million exemption even under Republican control. Most folks forget that the gift tax is an integral backstop for the income tax, not only for the estate tax. Look at what happened in 2010 with the gift tax.

• Point 2:  Planning is not only for Richie Rich. If you have a non-married partner a $1 million gift exemption in 2013 may make it costly to shuffle ownership of assets between you and  your partner. Everyone, not just surgeons, should be concerned about asset protection. Nothing anyone in Washington does will change the litigious nature of our society. About a score of states have decoupled from the federal estate tax system so that lower amounts of wealth may trigger state death tax. A simple gift today might be all it takes in many situations to reduce or eliminate state estate tax. Use the current favorable tax environment to shift assets into protective structures before the party ends. A $1 million gift exemption will render much of this planning costly, impractical, or impossible. Remember at midnight 12/31/12 the carriage turns back into a pumpkin and the ride is over.

• Point 3:  Start with a Financial Plan. While your estate planner might think he or she holds the keys to the planning kingdom, this kinda planning should have at its foundation a well thought out financial plan. Does this suggest your wealth manager should be driving the bus? Nah, but they should be a co-pilot. How much can you afford to give away and be really assured that you won’t be asking the kids for a loan? Which assets can or should you give away? Do you need additional life insurance for coverage in light of components of the plan? Do you need access to the money you give away and if so how much? This analysis is meant to insure that you’re left with more than adequate assets to maintain your lifestyle after the transfers. This can deflect an IRS challenge that you had also an implied understanding with the trustees (or managers of an LLC) to get money back because you left yourself with insufficient resources. It can make it harder for a creditor to prove later that your transfers constituted a fraudulent conveyance.

• Point 4:  Make Gifts in Trust. Whatever amount you determine to give away, give it to one or more trusts, not outright to an heir. Trusts provide asset protection, divorce protection, preserve generation skipping transfer tax benefits (in English they can keep the assets out of the transfer tax system forever). Trusts can be structured as “grantor trusts” so you can sell assets to them without triggering capital gains tax and you can pay the tax on trust income and gains thereby growing the value of the assets inside the trust faster while shrinking the assets left in your name, thus reducing assets reachable by creditors or subject to estate tax.  Both of these bennies are on President Obama’s hit list, so get ‘em while you can. Perhaps the biggest vig of gifting to a trust is you can retain the ability to benefit from the assets in trust. Say you set up a trust for your spouse/partner and all future descendants. So long as your spouse/partner is a beneficiary you can indirectly benefit. Alternatively, you can set up a Domestic Asset Protection Trust (DAPT) and be a beneficiary of your own trust. Even if you’re mega rich, but much of your wealth is concentrated in a business, be very cautious about cutting off your access to trust assets. Don’t forget the harsh economic lessons of 2008-10+.

• Point 5:  Sell Assets to Trusts. While gifts can take advantage of the current law, sales of assets to trusts can also provide a huge benefit now, that may also disappear when the ball drops in Times Square. If you sell 45% of your interest in a family business valued with a 40% non-marketability and lack of control discount, that’s huge leverage. Discounts may head the way of the Dodo bird. Since few trusts will have sufficient cash to pay for the purchase these sales are structured as note sales. Interest rates remain at historic lows. So transfers well beyond the $5.12 million are “can do.” For many folks the better approach is a technique described in prior newsletters called a Beneficiary Defective Irrevocable Trust (BDIT) that will depend on this sale technique. Sell ‘em while you can!

• Point 6:  Design the Trusts Right. The trust or trusts you’ll use should not be off the rack. This is the time to step up to the custom tailored suit. Navigating Scylla and Charybdis is child’s play by comparison. Some of the issues to consider include:
  • Should you be a beneficiary or not? If yes, there are precautions to take and only certain states in which the trust can be established.
  • Is there any reason the trust should not be a grantor trust? Unlikely, but ask. If it is a grantor trust what happens if there is a big capital gain? Example – you transfer your family business to the trust and 5 years from now sell out to a public company for big bucks. You have to pay the gain but the bucks are in the trust. Some practitioners use a tax reimbursement clause but caution is in order. These clauses have to be handled correctly and the trust must be in a state with appropriate laws. Also, worrisome is that if the trustee just so happens to reimburse you, the IRS might argue that you had an implied agreement with the trustee to reimburse you for the capital gains tax on a big sale.  There may be better approaches.
  • If you and your spouse/partner both set up trusts, the trusts need to be sufficiently different to avoid the IRS arguing what is called the “reciprocal trust doctrine” -- that they are so identical that they should be “uncrossed” so that the trusts are taxable in each of your estates. That would entirely negate the planning. Differentiate the trusts using different powers, different distribution standards, set them up in different states, sign them on different dates, use different assets, print them on different color paper (just kidding on that one), etc.
  • If you own all the assets to be given can you set up a trust and gift $10.24 million and have your spouse treat the gift as if it is ½ his thereby using up his exemption? While spouses can gift split, if your spouse is a beneficiary of the trust which is the recipient of the gift, that is a no-no.
  • What if you gift $5.12 million to your spouse, and he then gifts it to his trust to avoid the gift splitting issue? Nice try but maybe no cigar. The IRS could attack using the “step transaction doctrine.” If the IRS wins they might treat your gift to your spouse, and his gift to the trust, as an indirect gift by you to his trust. Thus, you’d be treated as making two $5.12 million gifts and owe about $1.8 million in gift tax. Ouch!
  • There has never been a time in history when so many taxpayers may feel so compelled to make so many large transfers in such a short time period. Big brother will be watching so more caution and planning then ever before should be exercised.
  • You want to fund a FLP or LLC with appreciating assets, make gifts and secure discounts. If the assets are not inside the entity long enough the IRS will argue that the gifts were of the underlying assets – no discount.

• Point 7:  Operate the Plan and Trusts Right. Administer the plan and trust properly, and monitor it by meeting not less than annually with all your advisers to make sure all formalities are adhered to. Be sure the CPA is in the loop to monitor the gift and income tax returns so they all properly reflect the reality of the transfers. Revise asset allocations to coordinate asset location decisions.

Bottom Line:  Just Do It! Time is fleeting. Everyone should review planning options for themselves and their family/loved ones to ascertain what might be beneficial and how to expedite the process so planning is completed in advance of year end, preferably before the election.

To download the complete newsletter and prior newsletters, click here.

_______________________

ABOUT THE AUTHOR: Martin “Marty” Shenkman, Esq., CPA, MBA is an estate planning attorney and Certified Public Accountant from Paramus, New Jersey. He received his Bachelor of Science degree from Wharton School, University of Pennsylvania 1977 with a concentration in accounting and economics. He received a Masters degree in Business Administration from the University of Michigan 1981, with a concentration in tax and finance.

Mr. Shenkman is a widely quoted expert on tax matters and is a regular source for numerous financial and business publications, including The Wall Street Journal, Fortune, Money, The New York Times, and others. He has appeared as a tax expert on numerous television and cable television shows including The Today Show, CNN, NBC Evening News, CNBC, MSNBC, CNN-FN and others. He is a frequent guest on radio talk shows throughout the country and has a regular weekly radio show on Money Matters Financial Network.

Mr. Shenkman is a prolific author, having published thirty-four books and more than seven hundred articles. Mr. Shenkman has served as contributing editor to a host of publications, including: New Jersey Lawyer, The Journal of Real Estate Finance, Real Estate Insight, Commercial Leasing Law & Strategy, The Journal of Accountancy, Real Estate Accounting and Taxation, Shopping Centers Today, and others.

Mr Shenkman is active in numerous charitable organizations, sitting on many boards and planned giving committees and lectures regularly for these and other organizations.

Wednesday, April 11, 2012

Trust & Estates: CrummeyService.com - Automating Administration of Crummey Trusts

Reposted from Trustandestates.com | By Donald H. Kelley

Kelley Rating (one asterisk = lowest, to five asterisks = highest):

• Ease of navigation, design of interface and learning curve *****
• Instructional documentation and help system ***
• Carries out the goal of the product as advertised *****
• Overall usefulness ****

CrummeyService.com is a web-based solution to the administrative problems of Crummey trusts. It automatically sends gift and premium payment reminders, creates Crummey notices informing beneficiaries of their withdrawal rights. It sends the notices to beneficiaries; records acknowledgement of the notices and sends copies to trustees, grantors, fiduciaries and advisors to the trust. It relieves the attorney and trustee of tedious hard copy storage and administration. The publisher’s website includes a presentation on the nature of this service and screenshots of sample notices and reports.

CrummeyService.com accumulates, manages, tracks and monitors key trust information for grantors of trust owned life insurance. It records transactions, creates notices and alerts for funding shortfalls at defined intervals from the premium due date, supplies unpaid premium alerts and sends hard copy and electronic letters as required. The publisher asserts that all information and transactions are tracked and monitored in a secure environment. Trustees are notified when to pay the policy premium with payment date, method, amount and all other relevant payment details stored in the system. CrummeyService.com will manage the entire irrevocable life insurance trust lifecycle. It supports compliance with Internal Revenue Service and Uniform Prudent Investor Act regulations and guidelines and produces year-end and on-demand reports for tax filing and estate settlement. Administration of a trust may be authorized by CrummeyService.com, the trustee or an advisor. Notice text, data visibility and administrative rights can be controlled at the regional, office or attorney/advisors level.

This service may also be branded with your logo or, as a default, your contact information can appear on all communications to trust parties during the trust lifetime. The publisher offers extensive support for a corporate implementation.

The CrummeyService.com website furnishes Articles on Crummey trusts and their administration and maintains a Blog on Crummey trusts for the benefit of registered users.

Trust data is retained forever. Access to data is determined by authorization level based on the party’s role in the administration of the trust, with only authorized parties able to access trust data. Trustees have full data access, but beneficiaries will be given only limited access to data. Data access is available from any web browser 24/7.

What’s It All About?
After gathering the information needed to set up a trust (insurance policies, trust documents, the contact information for all parties to the trust, etc.), you enter the data required to set up the trust initially. Unless this information changes, this will be the only time you will need to enter it.

Upon entry to the secured area of CrummeyService.com, at the Welcome screen you are presented with the Main Dashboard that features a navigation menu on a left hand pane, a larger right hand pane and at the top, navigational buttons, a list of accounts and a Help menu. The right hand pane offers quick access to Add a New Trust, Complete Trust Entry, Record a Gift, Record a Policy Payment and My information. You can enter your personal information and settings at the My Information screen, which is then used throughout the system.

You may select Add a Trust on the right hand pane or choose from the activities listed on the navigational pane. A description of activities is available for each selection on the right hand pane. At the screen for Add A New Trust (or the screen for maintaining trust data), there is a tab for every party to the trust: grantor, trustee, guardian, beneficiary, policies, insured, advisor, and fiduciary. This information needs to be entered only once and is then used throughout the system. Access may be granted as desired. Fiduciaries may manage and edit information, if given permission. As all the necessary information for each tab is completely entered, a dot on the tab for the screen you are working on changes from red to green.

Saved data for each party includes tabs for personal and contact details, home address, business information and phone numbers.

A screen addresses Summary, Gift to Trust, Policy Payment and Gift Acknowledgment, displaying a list of previous gifts.

After the trust data for a new trust is entered and the dots on the tabs at New Trust are all green, the trust may be activated by clicking on the button “Activate this trust.” The trust is then ready to begin use of the website’s services. A welcome notice to the interested parties will be generated when the trust is activated.

Each year you will enter the gift(s) to the trust and information as to the payment of the life insurance premium.

Click on Financial on the left hand menu to open the Financial tab, which allows you to view and edit Gift to Trust, Policy Payment and Gift Acknowledgement for the policy you select, as well as displaying a summary of the trust activities for all policies.

You can then select Notice from the left hand menu to display a list of all trust activities (gift, policy payment, funding acknowledgement, etc.), as well as the welcome letter and the Crummey letter. Double click on the letter description to view the letter, select recipients, details for the delivery of the notice and the contents of the letter. The withdrawal notice defaults to 30 days, but may be changed. The Crummey notice language may be set to the default or you may tailor it as you see fit. The notices are customizable.

The Trust Attachments page allows you to upload the trust document file, or other documents associated with the trust, for storage and review.

You can create a Trust Report or Gift Report in a variety of formats, as desired. Selecting History allows you to view all activities of a given trust.

The Maintain Users tab allows you to enter the basic contact information for all users of a given trust and set the group and access settings for each user.

CrummeyService.com reminds the grantor (or employer, as applicable) when a gift to the trust is needed to ensure there are sufficient funds for the premium payment, and will automatically send the grantor, trustee and fiduciary a new gift reminder notice the following number of days prior to the premium due date: 60,30, 15, 0 (on the due date), and -15 (fifteen days into the grace period). A policy review reminder can be automatically generated on a user-defined schedule for each policy held by a trust and delivered to any of the trust parties. As with all notices, the text can be tailored, or default language can be used.

What About Help and Support?
At the Main Dashboard, and other screens, the Help menu offers a Hints screen that details the methods of data entry for all screens and a glossary. Each page includes context related help with instructions as to its operation. The site includes a facility to send the publisher your comments, corrections or suggestions.

How Do You Contact the Publisher?
CrummeyService.com is published by CrummeyService.com, LLC. The Standard version is priced at $399 per year, with a one-time setup fee of $200. Branding is separately priced. Volume price discounts for advisors, re-sellers and enterprise customers are offered.  Initial contact is by email at: www.crummeyservice.com/contact.php.  A free demo is available.

Bottom Line
CrummeyService.com allows you to eliminate the burdensome paperwork and administrative bother of servicing Crummey trusts and provides a convenient electronic means of efficiently addressing this area of your practice.

Trusts & Estates magazine is pleased to present the monthly Technology Review by Donald H. Kelley—a respected connoisseur of the software and Internet resources wealth management advisors use to further their practices. Kelley is a lawyer living in Highlands Ranch, Colo. and is of counsel to the law firm of Kelley, Scritsmier & Byrne, P.C. of North Platte, Neb. He is the co-author of the Intuitive Estate Planner Software, (Thomson – West 2004). He has served on the governing boards of the American Bar Association Real Property Probate and Trust Section and the American College of Tax Counsel. He is a past regent and past chair of the Committee on Technology in the Practice of the American College of Trust and Estate Counsel.  Trusts & Estates has asked Kelley to provide his unvarnished opinions on the tech resources available in the practice today.

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Monday, April 09, 2012

Robert Keebler: Planning for Concentrated Stock Positions, Plus Half Off Bob's Teleconference

Reposted with Permission from Robert S. Keebler, CPA, MST, AEP

Planning for Concentrated Stock Positions: Variable Forward Sales, Charitable Remainder Trusts and Exchange Funds

The detrimental effects of concentrated stock portfolios are well documented. Not only do they subject the investor to a high level of risk, but their volatility tends to drag down returns.

Fortunately, a number of strategies have been developed to address the problem. This is the last in a three-part series of columns explaining those strategies. In the first column I explained how asset volatility drags down returns, quantified the benefits of diversification and provided a model for analyzing when simply selling off a concentrated position and reinvesting in a diversified portfolio produces a better economic result than holding the stock. In the second column, I pointed out that there are hedging strategies like protective put options and cashless collars that seek to give taxpayers the best of all possible worlds. In this month’s column, we will explore variable forward sales, charitable remainder trusts and exchange funds as alternative hedging strategies.

Variable Forward Sale
In a variable forward sale (VFS), an investor agrees to tender stock to a counter party at a specified future date in exchange for receiving a specified amount of cash up front (usually as a percentage of the underlying stock's current value). A typical VFS term is generally two to five years and the stated percentage 75 percent to 90 percent. The taxpayer could immediately use the sale proceeds to invest in a diversified portfolio even though no tax will be payable until the sale closes, either by physical delivery of some or all of the stock or by cash settlement.

Economics
A VFS is not simply a tax-deferred stock sale because it also provides downside protection and caps upside potential. Thus, it could be thought of as a cashless collar plus a loan against the stock to be sold. In other words, the investor is purchasing a put option to protect the downside, selling a call option limiting potential gain and receiving a current cash advance on the stock subject to the collar. The embedded collar would be subject to the constructive sale rules of Code Sec. 1259 just like any other collar, so the spread between the put strike price and the call strike price should be at least 15 percent.

Advantages
A properly executed VFS accomplishes four important objectives:

1. Provides immediate liquidity for reinvestment
2. Provides downside protection below the put option strike price
3. Enables the investor to retain growth potential up to the amount of the call option strike price
4. Defers gain recognition until the VFS is closed

Variable Forward Sale vs. Outright Sale
Research suggests that an outright sale generally outperforms a VFS. This is not to say, however, that there are not situations in which a VFS can perform better than simply selling the stock. Perhaps the most common situation is one in which the taxpayer is concerned about the risk of a concentrated stock position but is nevertheless bullish about the stock’s prospects in the short term. A VFS would… READ MORE

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This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Tuesday, April 03, 2012

Estate Planning for Clients with Beneficiaries Struggling with Substance Abuse

Reposted from The Trust Advisor | By Patricia Annino

When working with families on their estate plans, many parents have raised the issue of what to do when a child or grandchild struggles with substance abuse. With the recent death of Whitney Houston and her connection to substance abuse, it serves as a reminder of what this means during the estate planning process. These parents are heartbroken and need guidance on how to address this difficult situation in their estate planning documents.

Substance Abuse – whether it’s alcohol, prescription drugs, or illegal narcotics – affects many of the families we advise. As a result, we developed a list of questions for families to consider when designing their estate plan:

1. Has the beneficiary ever been diagnosed with a mental illness?
2. Is the beneficiary having a particularly hard time – is divorce on the horizon? Has he lost his business? Does he gamble?
3. What is his relationship with other family members?
4. Who does he trust?
5. Who is giving him money?
6. Is he eligible for government assistance?
7. Who is paying his health insurance?
8. Is he employed? For how long? What types of jobs?
9. Has he ever been treated for his addiction?
10. Is he a member of Alcoholics Anonymous or a similar organization?
11. Do these issues run in the family?
12. Has there been a family intervention?
13. Is he open to counseling? Has this topic been addressed?
14. Where is he living? Can he live alone?

Substance abuse often masks other underlying mental health issues, including undiagnosed or untreated schizophrenia, bipolar disorder, and depression. That these issues are often part of a larger family pattern makes having the discussion much more difficult, but much more essential.

Families in Conflict
An addicted child may have already taken a significant emotional, physical, and financial toll on the entire family. Parents who find it difficult to handle this child become increasingly disturbed when they consider who would step in if they are unable or unavailable. This helplessness often leads to anger, frustration, and conflict.

One parent may want to cut off the beneficiary while the other parent cannot consider doing so. One parent may want to kick the child out of the home, while the other parent believes that doing so would make matters worse. These conflicts add stress to their marriage and the family at large.

Grandparents may have different opinions than the parents. Siblings may already be resentful of their addicted sister or brother. In many families, the troubled child has already received significant emotional and financial assistance. His troubles have already taken center stage at the dinner table. His presence in the home and attitude toward the family may have already created constant disruption.

Estate Planning Tools and Options
As complex and emotional as these issues are, families must address them. And they will welcome having an impartial, yet compassionate advisor to provide guidance, suggestions, and choices.

One planning tool for parents to immediately consider is for that child to designate them as the agent under his health care proxy and his attorney in fact under the durable power of attorney. Without these documents, HIPAA will prohibit the parents from being involved with his treatment. Also, these documents give parents legal access to his health and financial records, which could be extremely important if it becomes necessary to apply for government benefits.

Inevitably, an estate planning discussion will include disinheritance. In my experience, this is a subject frequently discussed and rarely implemented. No matter how angry and frustrated they are, parents still want to provide some sort of safety net for their child.

This pressure to disinherit the troubled child may come from the sense that he has already taken more than his fair share of the family’s resources, possibly at the expense of the other, more responsible children. As the family’s advisor, however, you should ask the parents:

• If you are not here, how will the child be cared for with no existing financial resources?
• Who will be responsible?
• Who will he call?
• Will disinheriting him place a financial burden on your other children, or will they be able to walk away?

Establishing a Trust
Rather than disinheriting him, a common solution is to establish a trust that includes him as a permissible beneficiary – or is only for his benefit during his lifetime. The hard decision, however, is who will serve as trustee after both parents die. Parents are understandably reluctant to place that burden on their other children or on other relatives.

If there are significant assets, then choosing a corporate trustee is the simple choice. The other children or trusted friends or advisors can then have the right to remove or replace that trustee during the trust duration. If there are not sufficient assets to warrant a corporate trustee, then the parents must identify friends or trusted advisors – who should be paid for their services. The trustee should review the trust document to ensure that he has the right to resign from his office, and understand the mechanism for subsequent trustee appointments. The document should provide the trustee with the authority to expend funds for purposes such as counseling, detectives, drug testing, and private security.

Trust Terms and Provisions
After deciding on the line of succession and identifying who will operate the trust, parents need to focus on the various purposes for which the trustee may or may not distribute income and/or principal from the trust to the beneficiary.

If the beneficiary is likely to require government assistance, then the terms of the trust must contemplate that. The trust document may also give the trustee authority to withhold payments if deemed advisable. This is often preferable to asking that trustee to determine whether a beneficiary is drug-free. Those suffering from substance abuse can be clever, and making such a determination is tricky.

Rather than withholding payments, another approach is to provide the beneficiary with incentives for staying clean. The trustee could provide additional distributions if the child holds a full-time job or regularly attends  counseling sessions. Making the distribution provisions restrictive and under the trustee’s sole control can help protect those assets from the troubled child’s creditors, or from any of the many “friends” and acquaintances who might take advantage of him if they believe there is money in his pocket.

Many parents have a sense of shame or denial, and may rightly choose not to make these troubles public, or put them in a trust document that others can access. I encourage parents to write an annual side letter to the trustee that describes their observations and offers details that they are reluctant to share while living. This letter could be placed in a sealed envelope, kept with the original estate planning documents, and updated/revised as circumstances change. It can be comforting to the trustee to understand more about the parents’ goals and objectives from their own voice.

Planning for the beneficiary with a substance abuse issue is complex and can have consequences that affect the entire family. Remind parents that life is a movie, not a snapshot. A plan created now should be good enough to handle today’s circumstances, yet flexible enough to contemplate the unknown. Encourage parents who are dealing with this difficult situation to revisit their plan every few years as circumstances change and evolve.

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Source: trustadvisor.com
Photo Source: pcwhi.blogspot.com

Monday, April 02, 2012

A Funny Thing Happened on the Way To… (Some of My Craziest Seminar Stories from Over the Years)

By President, Philip J. Kavesh, J.D., LL.M. (Tax), CFP®, ChFC, California State Bar Certified Specialist in Estate Planning, Trust & Probate Law

You may already know that one of my favorite things in life is presenting educational seminars on estate planning, whether it be seminars to market my law practice to the consumer public or presentations before my fellow estate planning colleagues.  What you may not know - - and I’ve been asked to share with you here - - are some of the unusual occurrences I’ve experienced in doing over 2,000 seminars for my law practice over the past 25 plus years.  I’ve had so many funny, odd and not-so-funny events happen on the way to, during and after seminars that I really have to probe my memory to pick out the most unusual ones.

Of course, I’ve encountered all the “usual” goofs that any seminar speaker has experienced over time.  I’ve traveled to the wrong hotel, or gotten there on the wrong day and time.  Or, I’ve arrived to the right venue and found the seminar room locked and no one could find the key, or found the room open but all the chairs locked up in the storage closet with no one having the key.  I’ve forgotten the slides or handouts or brought the wrong ones.  I’ve suffered equipment failures, power outages and even overhead sprinklers going off!  However, I’ll bypass all these mundane misfortunes and go right to the weirdest, most memorable occurrences.

Let me start with some of the “lighter” ones.

The Jokester & His “Match”

I recall that once, during a seminar, I was talking about how all your assets comprise your estate, even your antiques and junk - - and quipped “you know there’s a fine line between the antiques and junk!” Immediately, a gentleman turned to his wife and blurted out, “Yeah, I know - - she’s the antique and she says I’m the junk!” (to which his wife instantly reacted by hitting him in the face with her handbag!)

“Please Hold Your Questions Until the End…”
Another time, during a seminar, a lady began raising her hand above her head.  I stopped and reminded her - - per the rules I set out when I began - - to please hold her question until the end and I would be happy to answer it then.  But that didn’t stop her.  Moments later, she raised her hand again.  I again had to nicely remind her to wait! Then, after 20 minutes, just when things appeared to be okay, she once again raised her hand, began waiving it wildly back and forth and practically jumped out of her seat to get my attention.  I finally caved in and said, “All right, I’ll answer your question now” to which she shrieked out, “Can I go to the bathroom?” and then proceeded to run out of the room! (Wow, I guess as a youngster she must have attended a really strict school!)

The Sleepy Attendee
I can recall receiving many strange questions during the question and answer session at the end of my seminar presentations.  One of my favorites came from an elderly man, seated in the front row, who had seemed to doze off at times during my two hour, detailed discussion of Living Trusts.  When this discussion was over, he raised his hand and I politely asked him for his question.  He stopped, seemingly locked in deep thought and then slowly asked, “What’s this here Living Trust thing you’ve been talkin’ about?” 

Please Have Some Seconds
Another time, at a dinner seminar, I got to the questions part, but no one raised their hand so I stood there and waited for a moment.  Finally, I saw a hand go up and I said, out of relief, “Good, a question!” to which the person responded, “Can I get another dinner and dessert to take home?”

That reminds me of a near riot I once caused at the end of a seminar...

“The Riot”
I was expecting a large audience and we had put out a big spread of gourmet cheeses, fruit, rolls, desserts and candies.  When I finished the seminar, I noticed the great amount of food left so I said, “Help yourselves to any of the food.” You should have seen the people bolt out of their seats and stampede to the back of the room - - then fight over the spoils, with ladies elbowing each other out of the way and shoving food in their handbags!

I’ve also had some “heavier”, more serious events occur. 

We Will Never Forget
One emblazoned in my mind happened just as I was about to leave my home to go to a seminar.  I had spent a great deal of time and energy preparing for this particular seminar and I was very pumped up to give it - - my first ever on the new invention I had just created, the “IRA Inheritance Trust®”.  As I was halfway out the door, my wife screamed, “Your Mom is on the phone and she sounds like she’s having a heart attack!”.  I ran to the phone and my Mom was shouting almost incoherently, “Turn on your TV - - right now!”.  I did and just as the picture came on I saw an airplane fly into the side of a skyscraper building.  The day was September 11th, 2001 and after I calmed down my Mom (who lived close to New York and was afraid for her life!) I called my office to cancel the seminar, a small misfortune compared to the horrible suffering of others on that day.

Another False Alarm?
I’ve also had to call off seminars midway through them due to other unexpected, near catastrophic events.  Once I was speaking at a hotel where an irritating, loud fire signal repeatedly went off, followed by an announcement over the loudspeaker, “Sorry for the false alarm!”  So when it happened for about the fifth time, I just calmly said to the audience, “Don’t worry.  Stay seated.  It’s probably just another one of their false alarms.”  Everything did seem fine, until a few minutes later a man in the audience jumped out of his seat and motioned to the window where we could all see smoke and then flames lapping up the side of the building!  Fortunately, we all got to safety.  But you can imagine all the chaos as fire engines were pulling into the parking lot, attendees were scurrying in all directions and I was frantically chasing them to grab their response forms before they got into their cars!  (I quickly learned the value of having an assistant accompany me at my seminars!)

Thanks to the Men in Blue
Another mid-seminar disaster was far more strange.  As I was speaking, I faced the back of the room where the entry and exit doors were located across from each other.  All of a sudden, one door swung wide open and a man with a hoodie pulled over much of his face ran across the back, heading for the other door - - followed by a policeman with his gun drawn!  They continued their chase out of the exit door, and shortly thereafter police backup cleared the audience and me from the room.  As we were standing in the parking lot watching the police place a tape barrier around the building, I realized, to my dismay, that all my seminar equipment, handouts and keys to my car were still in the room - - and I had to travel to another location in about 45 minutes to give another seminar!  This time not only didn’t I get the attendees’ response forms, I had to call off the other seminar too because I wound up spending hours swapping jokes with the policemen in the parking lot before they finally let me back in the room.  (You know, I never did find out whether the hooded man was apprehended!)

An Important Lesson Learned by Everybody That Day
But the one mid-seminar disaster I most often recall was scarier than either a roaring fire or armed police chase.  While I was speaking, I noticed that a man in the audience suddenly slumped over and looked like he was about to fall out of his chair.  The person seated next him shouted out, “Dial 911!”  My assistant did so immediately and laid the apparently unconscious man flat on the floor.  Seemingly within a minute, paramedics rushed in, placed him on a gurney and wheeled him out. No one knew if he was dead or not, or whether he could be revived.  After all this disruption, I tried my best to return to my seminar presentation and seemed to have recaptured the audience’s attention, when all of a sudden the paramedics wheeled the man, now in a conscious and seated position, back into the room!  As the rest of us looked at him in shock, he explained, “I’m okay.  Just had a minor heart attack because I forgot my medicine - - but I wasn’t going to let them take me to the hospital because I really need to listen to what you have to say!”  His entrance seemed right on cue because I was just about to flip to the slide where I explain that the reason people don’t have any estate plan, or one that has become old and out-of-date, is procrastination - - and that no one has a guarantee they’ll have a chance to take care of it tomorrow!  Needless to say, everyone at that seminar wound up making a consultation appointment!  (And, by the way, there may be a lesson in this story for you, too!)

Despite all the wild, crazy, funny (and at times not-so-funny) things that have happened on the way to and during my seminars, there does occur a wonderful event after almost every seminar nowadays that keeps me plugging along after all these years.  Invariably, someone - - either a client of our firm, or a trustee who has served on behalf of an incapacitated or deceased client, or a client’s beneficiary - - walks up, extends his or her hand, and personally thanks me for how we have helped.  That alone makes all the seminar “madness” I’ve endured worthwhile.  It serves as a reminder why I got into this area of law and have devoted to it over half my lifetime.

Hopefully, if you’re an estate planning professional, I haven't completely scared you away from doing seminars with all of my stories.  If anything, I hope you take away that despite the crazy events in life that are out of your control, you can still find a great deal of success in marketing your practice and your services via seminar marketing.  For those that took the time to read through this blog entry, I personally extend to you a very special 50% discount on any one of our seminar marketing packages (for this month only).  Simply enter in the coupon code "SEMINARBLOG" when checking out to apply your 50% discount.  If that doesn't make doing seminars a little easier, I don't know what will!  Click here to view our Seminar Marketing Packages.

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Source: kaveshlaw.com

Thursday, March 29, 2012

Paul Hood on Wandry v. Commissioner: A Significant Taxpayer Win in another Defined Value Case

Reproduced with Permission by and Courtesy of Leimberg Information Services, Inc. (LISI) and L. Paul Hood, Jr..  For information about how to subscribe to LISI, click here.

"Congratulations to counsel to the taxpayers for a slam dunk taxpayer victory!  You should read this opinion.  It is an important extension of defined value gifts and proves that one doesn’t need a charitable or marital “wrapper” for these things to work properly as I have argued in published articles for almost ten years.  In my opinion, the bottom line is that properly designed and implemented defined value transfers are more legitimate now than ever before and should be accorded respect for tax purposes, and it is well past time for the IRS to accommodate them with formal guidance.  Given the significant string of defeats in these cases, it is time for the IRS to start getting hit with attorney’s fees under IRC Sec. 7430 for continuing this fight.”  The case of Wandry v. Commissioner represents another taxpayer win in a “defined value” case, and Paul Hood provides LISI members with his timely commentary on this hot-off-the-press decision that was released on Monday, March 26th.

L. Paul Hood, Jr. received his J.D. from Louisiana State University Law Center in 1986 and Master of Laws in Taxation from Georgetown University Law Center in 1988. Paul is a frequent speaker, is widely quoted and his articles have appeared in a number of publications, including BNA Tax Management Memorandum, CCH Journal of Practical Estate Planning, Estate Planning, Valuation Strategies, Digest of Federal Tax Articles, Loyola Law Review, Louisiana Bar Journal, Tax Ideas and Charitable Gift Planning News. Presently, He has spoken at programs sponsored by a number of law schools, including Duke, Georgetown, NYU, Tulane, Loyola (N.O.) and LSU, as well as many other professional organizations, including AICPA and NACVA. From 1996-2004, Paul served on the Louisiana Board of Tax Appeals, a three member board that has jurisdiction over all Louisiana state tax matters.

Before we get to Paul’s commentary, members should take note of the fact that a new 60-Second Planner was recently posted to the LISI homepage. In his PodCast, Bob Keebler provides members with his thoughts on the Wandry decision. You don't need any special equipment to listen, simply just click on this link. 

Now, here is Paul Hood’s commentary:

EXECUTIVE SUMMARY:

In this federal gift tax case, the Tax Court determined in a memorandum opinion that the taxpayers’ respective defined value gift clauses were enforceable under state law, were defined value gifts of LLC membership interests instead of gifts of percentage interests and were to be respected for federal gift tax purposes.

FACTS:

On January 1, 2004, Joanne and Dean executed separate assignments and memorandums of gifts (“gift documents”).  Each gift document provided:

I hereby assign and transfer as gifts, effective as of January 1, 2004, a sufficient number of my Units as a Member of Norseman Capital, LLC, a Colorado limited liability company, so that the fair market value of such Units for federal gift tax purposes shall be as follows:

Although the number of Units gifted is fixed on the date of the gift, that number is based on the fair market value of the gifted Units, which cannot be known on the date of the gift but must be determined after such date based on all relevant information as of that date.  Furthermore, the value determined is subject to challenge by the Internal Revenue Service (“IRS”).  I intend to have a good-faith determination of such value made by an independent third-party professional experienced in such matters and appropriately qualified to make such a determination. Nevertheless, if, after the number of gifted Units is determined based on such valuation, the IRS challenges such valuation and a final determination of a different value is made by the IRS or a court of law, the number of gifted Units shall be adjusted accordingly so that the value of the number of Units gifted to each person equals the amount set forth above, in the same manner as a federal estate tax formula marital deduction amount would be adjusted for a valuation redetermination by the IRS and/or a court of law. [emphasis added]

Corresponding timely adjustments were made to the capital accounts of the members.  The transfers were subsequently appraised by a qualified appraiser.  The transfers were fully disclosed with all of the documentation on the federal gift tax returns of Joanne and Dean.  There was a little discrepancy between the gifts as shown on the gift tax returns, which reflected gifts of interests worth a certain dollar amount, and the supporting schedules, which reflected gifts of percentage interests of 2.39% and .101%, respectively.

On audit of the federal gift tax return, the IRS argued for a higher unit value ($366,000 and $15,400, respectively) than that opined by the business appraiser.  Additionally, the IRS argued that the defined value gift clauses granted percentage gifts (2.39% and .101%, respectively) rather than defined value gifts ($261,000 and $11,000) because of the schedules to the gift tax returns.  The IRS also argued that the defined value gift clauses were unenforceable and violated public policy. 

Joanne and Dean obviously disagreed, and each filed a Tax Court petition.  Subsequently, the parties agreed that the values of the gifts were $315,800 and $13,346, respectively, which would require subsequent downward adjustments to the membership interests pursuant to the defined value gift clauses.

In the Tax Court, Judge Haines began with the gift description issue.  While the IRS cited Knight v. Comr. in support of its position on this issue, namely, that the schedules to the gift tax returns reflected what Joanne and Dean actually gave, Judge Haines distinguished Knight, noting:

Petitioners have not similarly opened the door to respondent’s argument. At all times petitioners understood, believed, and claimed that they gave gifts equal to $261,000 and $11,000 to each of their children and grandchildren, respectively. In Knight, the taxpayers’ gift tax returns did not report dollar value gifts. In the cases at hand, although respondent relies on the gift descriptions as the basis for the alleged admissions, petitioners’ gift tax returns were consistent with the gift documents. Petitioners’ gift tax returns reported gifts with a total value equal to $1,099,000, and the schedules supporting petitioners’ gift tax returns reported net transfers with a value of $261,000 and $11,000 to petitioners’ children and grandchildren, respectively. Petitioners’ C.P.A. merely derived the gift descriptions from petitioners’ net dollar value transfers and the [business appraiser] report.[Emphasis added]

Judge Haines then addressed the IRS argument, citing a Colorado (applicable law state) case, Thomas v. Thomas, that the capital account adjustments, rather than the gift documents, control and the former described percentage gifts.  Judge Haines disagreed with the IRS, noting:

Respondent’s reliance on Thomas is misplaced. Thomas is a case about whether and when a gift of corporate stock is complete, and it has no bearing on the nature of petitioners’ gifts. We do not find respondent’s argument to be persuasive. The facts and circumstances determine [the LLC’s] capital accounts, not the other way around. Book entries standing alone will not suffice to prove the existence of the facts recorded when other more persuasive evidence points to the contrary.

…

In fact, the Commissioner routinely challenges the accuracy of partnership capital accounts, resulting in reallocations that affect previous years. If the Commissioner is permitted to do so, it can be said that a capital account is always “tentative” until final adjudication or the passing of the appropriate period of limitations. Accordingly, [the LLC’s] capital accounts do not control the nature of petitioners’ gifts to the donees.

Even if we agreed with respondent’s capital accounts argument, respondent has failed to provide any credible evidence that the [LLC] capital accounts were adjusted to reflect the gift descriptions. The only evidence in the record of any adjustments to [the LLC’s] capital accounts in 2004 is the capital account ledger and the [LLC’s] members’ Schedules K-1, neither of which provides credible support to respondent’s argument. The capital account ledger is undated and handwritten. There is no indication that it represents [the LLC’s] official capital account records, and it does not reconcile with any of petitioners’ or respondent’s determinations. The capital account ledger is unofficial and unreliable. [emphasis added]

With respect to the argument of the IRS that Petter Est. was distinguishable, Judge Holmes also disagreed, noting:

Respondent argues that the cases at hand are distinguishable from Estate of Petter. Rather than transferring a fixed set of rights with an uncertain value, respondent argues that petitioners transferred an uncertain set of rights the value of which exceeded their Federal gift tax exclusions. Respondent further argues that the clauses at issue are void as savings clauses because they operate to “take property back” upon a condition subsequent.

Respondent does not interpret Estate of Petter properly.

Judge Haines then went on to analyze the subject case documents under the Petter Est. rationale and noted several key points.  First, he noted that the only unknown in the mix, i.e., the value of the LLC’s assets as of January 1, 2004, was a constant.  Second, both before and after the IRS audit, the donees were entitled to receive the same percentages of LLC interests because the gifts were “essentially expressed as a mathematical formula, as follows:

Value of gift to child = $261,000

FMV of LLC assets

Value of gift to grandchild = $11,000

FMV of LLC assets

After this analysis, Judge Haines concluded:

Absent the audit, the donees might never have received the proper [LLC] percentage interests they were entitled to, but that does not mean that parts of petitioners’ transfers were dependent upon an IRS audit. Rather, the audit merely ensured that petitioners’ children and grandchildren would receive the 1.98% and .083% [LLC] percentage interests they were always entitled to receive, respectively.

It is inconsequential that the adjustment clause reallocates membership units among petitioners and the donees rather than a charitable organization because the reallocations do not alter the transfers. On January 1, 2004, each donee was entitled to a predefined [LLC] percentage interest expressed through a formula. The gift documents do not allow for petitioners to “take property back”. Rather, the gift documents correct the allocation of LLC membership units among petitioners and the donees because the [business appraiser] report understated [the LLC’s] value.  The clauses at issue are valid formula clauses. [emphasis added]

Finally, with respect to the Procter public policy argument, Judge Haines also turned it back, expressly noting that “[t]he lack of charitable component in the cases at hand does not result in a ‘severe and immediate’ public policy concern.”

COMMENT:  

Congratulations to counsel to the taxpayers for a slam dunk taxpayer victory!  You should read this opinion.  It is an important extension of defined value gifts and proves that one doesn’t need a charitable or marital “wrapper” for these things to work properly as I have argued in published articles for almost ten years.

In my opinion, the bottom line is that properly designed and implemented defined value transfers are more legitimate now than ever before and should be accorded respect for tax purposes, and it is well past time for the IRS to accommodate them with formal guidance.  Given the significant string of defeats in these cases (conjuring up memories of the armies of certain unnamed allies who never win wars), it is time for the IRS to start getting hit with attorney’s fees under IRC Sec. 7430 for continuing this fight.

HOPE THIS HELPS YOU HELP OTHERS MAKE A POSITIVE DIFFERENCE!

CITE AS:  LISI Estate Planning Newsletter #1941 (March 27, 2012 at http://www.leimbergservices.com Copyright © 2012 L. Paul Hood. Reproduction in Any Form or Forwarding to Any Person Prohibited – Without Express Permission.

CITES: Wandry v. Comr., 2012-88; Petter v. Comr., T.C. Memo 2009-290, aff’d 643 F. 3d 1012 (9th Cir. 2011); Christiansen v. Comr., 130 T.C. No. 1 (2008), aff’d 586 F. 3d 1061 (8th Cir. 2009); McCord v. Comr., 120 T.C. 358, 364 (2003), rev’d 461 F.3d 614 (5th Cir. 2006); Comr. v. Procter, 142 F. 2d 824 (4th Cir. 1944); King v. U.S., 545 F. 2d 700 (10th Cir. 1976); Knight v. Comr., 115 T.C. 506 (2000); Ward v. Comr., 87 T.C. 78 (1986); Harwood v. Comr., 82 T.C. 239 (1984); Rev. Rul. 86-41; and Hood, Defined Value Gifts and Sales Under the Microscope: What’s Possible and What’s Not-Revisited, BNA Tax Management Estate, Gift and Trust Journal, July 11, 2011.

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Sources: Leimberg Information Services & L. Paul Hood, Jr., J.D.

Wednesday, March 28, 2012

4 Estate and Tax Planning Steps to Take in an Uncertain Year

Regardless of whether Congress acts on taxes by year-end, estate planning attorney John Scroggin says taxpayers shouldn't dally

Reposted from AdvisorOne.com | By Michael S. Fischer, AdvisorOne

Planners will not know before year-end what changes on the tax front are in the works for 2013, according to John Scroggin, a business, tax and estate planning attorney and a popular speaker at advisor conferences based in Roswell, Ga. A last-minute deal in a post-election lame duck session of Congress, similar to the one in 2010, is highly unlikely.

That means planning this year will have to take place in a vacuum, Scroggin told AdvisorOne in a recent phone interview.

Scroggin (right) said affluent people, defined as those with upward of $3 million in assets, should discuss with their advisors whether estate planning is necessary in 2012, and consult with a qualified expert in estate and income taxes before implementing any major tax planning this year. “Waiting to year-end is stupid in this environment,” he said.

Given the parlous planning environment this year, he offered the following suggestions:

1. The estate and gift tax exemptions drop from $5 million per taxpayer in 2012 to $1 million in 2013. People with estates above $5 million to $10 million should consider making significant gifts in 2012 in order to reduce the future estate tax cost of bequests when the exemption is lower and the tax rate is higher. Although Congress may increase the exemptions in 2013, there is no assurance that will happen and if it does happen what the exemptions will be. Effectively, you will be forced to “plan for the worst and hope for the best,” he said.
2. The federal dividend rate of 15% will expire at year-end. Anyone holding significant cash in a C-Corporation should consider taking a dividend of the cash out before year-end. If needed, the funds could be loaned back to the C-Corporation.
3. The federal capital gain rate increases from 15% to 20% in 2013. If you are anticipating an imminent capital gain transaction, consider completing the transaction before year-end. If a transaction in 2012 has any deferred payments, consider assuming the entire tax burden in 2012, rather than opting to pay taxes as the funds are received.
4. A client whose longevity beyond 2012 is in question (because of terminal illness or old age, for example) should consider having a general power of attorney in place, with the power holder having broad authority to make gifts and/or advance bequests.

_______________________________

Yesterday, we held a teleconference with estate planning attorney and CPA, Martin M. Shenkman on the topic of, "Recent Developments in Estate Planning: Special Traps and Tips to Avoid Them".  According to attendees, this was an excellent program to cover a variety of tax planning ideas for this year.  You can still purchase the handout materials and the audio recording to this program. 

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Friday, March 23, 2012

Steve Oshins on Weddell v. H20, Inc: Nevada Supreme Court Affirms Creditor Protection Benefits of Nevada LLCs

Reproduced with Permission by and Courtesy of Leimberg Information Services, Inc. (LISI).  For information about how to subscribe to LISI, click here.

“Prohibiting the creditor from exercising the debtor’s management rights reflects the principle that LLC members should be able to choose those members with whom they associate.  Thus, the historical rationale for charging order protection was to protect the other members of an LLC where one member has a personal creditor problem. 

However, as asset protection planning has evolved and the competition among the states to have the most protective asset protection laws has intensified, the asset protection planners now have the ability to use charging order protected entities to protect their clients’ assets from potential creditors.  This tool is so easy, yet it is extremely underused by estate planners who at a minimum should be integrating this form of asset protection planning into their repertoire.” 

We close this week with Steve Oshins’ observations on the “hot off the press” case of Weddell vs. H2O, Inc., an opinion issued by the Supreme Court of Nevada on March 1, 2012.  As Steve points out in his commentary, this case illustrates the creditor protection benefits of using a Nevada LLC.

Steven J. Oshins, Esq., AEP (Distinguished) is a member of the Law Offices of Oshins & Associates, LLC in Las Vegas, Nevada.  Steve is a nationally known attorney who is listed in The Best Lawyers in America® and has been named one of the Top 100 Attorneys in Worth magazine.  He was inducted into the NAEPC Estate Planning Hall of Fame® in 2011.  He has written some of Nevada's most important estate planning and creditor protection laws, including the law making the charging order the exclusive remedy of a judgment creditor of a Nevada LLC and LP (in 2001, 2003 and 2011), the law changing the Nevada rule against perpetuities to 365 years (in 2005) and the law making Nevada the first and only state to allow a Restricted LLC and a Restricted LP creating larger valuation discounts than any other state allows (in 2009).  He is also the author of the Annual Domestic Asset Protection Rankings Chart, which can be downloaded on our website under our Free Resources.  Steve can be reached at 702-341-6000, x2 or at soshins@oshins.com.  His law firm's web site is http://www.oshins.com. 

Here is Steve’s commentary:

FACTS:

Between 2000 and 2007, Michael B. Stewart and Rolland P. Weddell entered into a business relationship concerning a number of different projects, ranging from garlic farming to geothermal energy. Several disputes arose between the two parties, ultimately leading to the collapse of their business relationship. Upon the relationship's demise, Weddell filed a complaint asserting numerous claims against Stewart. Stewart also filed a complaint and asserted numerous counterclaims. After a four-day bench trial, the district court found in Stewart's favor on all counts. Weddell appealed the decision.

Stewart and Weddell both owned percentages of Granite Investment Group, LLC (“Granite”) and High Rock Holding, LLC (“High Rock”).  In October 2008, in an unrelated matter, the district court granted an application by a creditor to charge Weddell's membership interest in Granite and High Rock, among other Weddell entities, for over $6 million. Pursuant to NRS 86.401.2, the charging order issued by the court entitled the creditor to any and all disbursements and distributions, including interest, and all other rights of an assignee of the membership interest.

Creditor’s Rights under Charging Order

The primary issue in the case was whether the judgment creditor receives any rights to participate in the management of a Nevada LLC upon receiving a charging order over the debtor’s membership interest.  The district court had ruled that the charging order against Weddell's membership interests in Granite not only gave the judgment creditor Weddell’s economic rights over the membership interest, but also his managerial rights.

The collection rights and remedies against a member's interest in a Nevada limited liability company are governed by NRS 86.401. This provision recognizes the charging order as a remedy by which a judgment creditor of a member can seek satisfaction by petitioning a court to charge the member's interest with the amount of the judgment.  A charging order directs the LLC to make distributions to the creditor that it would have made to the member.  As a result, a charging order affects only the debtor's membership interest and does not permit a creditor to reach the LLC assets.

Consequently, the judgment creditor does not step into the shoes of the member.  The judgment creditor only receives the rights of an assignee of the member's interest.  A judgment creditor, or assignee, is only entitled to the judgment debtor's share of the profit and distributions, takes no interest in the LLC's assets, and is not entitled to participate in the management or administration of the business. 

After the entry of a charging order, the debtor member no longer has the right to future LLC distributions to the extent of the charging order, but retains all other rights that the debtor had before the execution of the charging order, including managerial interests. The Supreme Court of Nevada reversed the district court's judgment relating to the scope of the charging order against Weddell's membership interests.  The Supreme Court ruled that the charging order only divested Weddell of his economic opportunity to obtain profits and distributions from Granite, not his managerial rights.

COMMENT:

It is no surprise that the Supreme Court of Nevada reversed the district court on the issue of the extent of the rights the holder of a charging order has with respect to the LLC.  This decision is in line with decisions in other charging order cases.

This case was decided under the Nevada charging order laws that were modified in the 2003 legislative session and did not include the substantial enhancements made in the 2011 legislative session.  See Steve Leimberg's Asset Protection Planning Email Newsletter - Archive Message #180.  The 2003 version of Nevada’s charging order laws specifically made the charging order the exclusive remedy of a judgment creditor.  However, there were no provisions disallowing the judge from issuing an equitable remedy to find a way around the exclusive remedy language.

For example, the judge could have used one of a number of potential equitable remedies, including the constructive trust theory, the resulting trust theory, the alter ego theory or the reverse veil-piercing theory as a way around the statutory provisions.  Maybe none of these potential theories were raised by the attorney for the holder of the charging order or maybe the judge determined that it wasn’t appropriate to go beyond the charging order remedy.

The 2011 legislative changes to Nevada’s charging order laws specifically disallow the issuance of any equitable remedies.  Therefore, in future litigation, members of Nevada LLCs will be even more protected than the degree of protection provided by pre-2011 laws. 

Planning Opportunities

Prohibiting the creditor from exercising the debtor’s management rights reflects the principle that LLC members should be able to choose those members with whom they associate.  Thus, the historical rationale for charging order protection was to protect the other members of an LLC where one member has a personal creditor problem.

As asset protection planning has evolved and the competition among the states to have the most protective asset protection laws has intensified, the asset protection planners now have the ability to use charging order protected entities to protect their clients’ assets from potential creditors.  This tool is so easy, yet it is extremely underused by estate planners who at a minimum should be integrating this form of asset protection planning into their repertoire. 

By itself, a charging order protected entity almost always causes a creditor to settle a dispute for less than the amount that the creditor would be able to reach if the charging order protected entity did not exist.  This is why there are relatively few published charging order cases in comparison to the endless number of litigation cases filed each year.  So, at a bare minimum, an LLC (or LP) should be used for almost every client who has sufficient at-risk assets to substantiate the cost of forming and maintaining an LLC (or LP).

Taking this a step further, when the charging order protected entity is combined with an asset protection trust, the odds are even more stacked against a potential creditor from the creditor’s perspective.  Thus, there are even fewer published cases involving asset protection trusts.  The more roadblocks the planner can include, the more frustrated a potential creditor will get and the better the negotiation will tilt in favour of our debtor clients.

HOPE THIS HELPS YOU HELP OTHERS MAKE A POSITIVE DIFFERENCE!

TECHNICAL EDITOR: DUNCAN OSBORNE

CITE AS: LISI Asset Protection Planning Newsletter #196 (March 22, 2012) at http://www.leimbergservices.com  Copyright 2012 Leimberg Information Services, Inc. (LISI). Reproduction in Any Form or Forwarding to Any Person Prohibited – Without Express Permission. 

CITES: Weddell v. H2O, Inc., 128 Nev.Adv.Op. #9 (Nev., Mar. 1, 2012); NRS 86.401

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Sources: Leimberg Information Services & Steven J. Oshins, Esq.

Friday, March 16, 2012

Leimberg Information Services: 60-Second Planner on Fifth Circuit Affirms Chilton on Inherited IRAs

Reproduced with Permission by and Courtesy of Leimberg Information Services, Inc. (LISI).  For information about how to subscribe to LISI, click here.

Nationally renowned CPA, Robert S. Keebler, recently produced an audio recording for Leimberg Information Services on the court ruling in the Chilton case pertaining to Inherited IRAs.  CLICK HERE TO LISTEN TO THE LEIMBERG 60-SECOND PLANNER RECORDING

Special thanks to Robert S. Keebler and Stephan Leimberg for sharing this valuable information!

Additionally, Robert Keebler is gearing up for his upcoming Learn it Live 2-day IRA seminar in Green Bay, Wisconsin on May 14-15, 2012 and just announced a June seminar to take place in Minneapolis. The Minneapolis seminar will be held June 20-21, 2012. This 2-day seminar for lawyers, CPAs and financial advisors is titled: "What the Lawyer, CPA and Financial Advisor Need to Know about Sophisticated Planning and Drafting for IRA & Qualified Plan Distributions Including How to Plan with a $5,120,000 Exemption." The seminar provides extensive coverage regarding planning with retirement accounts including: Estate planning for IRAs with a $5,120,000 exemption, the Pension Protection Act, the IRA Regulations, pre-retirement issues, required beginning date issues, the inherited IRA, the minimum distribution rules, spousal rollovers, QTIPing an IRA, charitable bequest planning, beneficiary designation planning, retirement plans payable to trusts, Roth IRA issues, distribution of employer securities, insurance strategies and new, innovative planning strategies.   For more information and to register...

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Sources: Leimberg Information Services, Inc. & Robert S. Keebler, CPA, MST, AEP

Wednesday, March 14, 2012

4 Tips for a Better Assistant (and More Efficient and Productive Advisor!)

Kristina Schneider here.  I am currently the Executive Director for The Ultimate Estate Planner, Inc.  However, I used to be President and Estate Planning Attorney, Philip Kavesh’s, full-time Executive Assistant with respect to his law firm, Kavesh, Minor & Otis, Inc.  So, I’m very aware of and experienced in the types of duties involved in being an assistant to a busy professional.  I take pride in being able to say that I’ve been with Phil for almost 8 years now, which is longer than just about any other assistant that he’s had over the past 30+ years of practice.  That being said, I am providing to you 4 simple tips to having a better working relationship between assistants and advisors.  These principles and tips can be applied to any assistant for any type of professional, whether you’re an assistant to an attorney, financial advisor, life insurance agent or any other professional outside of the estate planning community.

Assistant Tip #1: Block Off Regular Times with Your Assistant (and Other Key Staff!)

One of the ways that we have tackled all of the multiple deadlines and tasks that we have on our plate every day is by making sure that Phil has a regularly scheduled time to meet with his assistants (literally scheduled appointments on his calendar).  In addition to his assistants, he also does this for other key staff members in his firm, such as his associate attorneys, Director of Marketing, bookkeeper, office manager, etc. - - basically, anyone that may require his time for advice, answers, direction or otherwise.

In fact, Phil has blocked off an entire day each week to do this.

The reason this is so effective is that it provides him 4 other virtually interruption-free days to work.  Daily staff meetings can take up a lot of time, especially those “impromptu” meetings that are not on the calendar.  On Mondays, all of the staff members that have meetings with Phil are expected to come to the meeting well-prepared with a list or agenda of the matters for which they require Phil’s time and attention.  This has allowed us, as staff, to learn how to prioritize our work and to put off any non-urgent, non-important items for our scheduled weekly meeting time with him.

Not only does having a scheduled meeting time allow for Phil to be more efficient, but it allows us, the staff, to be more efficient as well. 

Trust me, coming from the perspective of an assistant to a busy professional, we need to meet with you.  There are issues and matters that come up that simply require your attention.  Having a set meeting time each week (and for some busier professionals, it may require an interim meeting with certain staff) allows your assistant and staff members to be reassured that they will have an opportunity to meet with you and get the time that their job requires of you in order for them to effectively perform their job duties.  This structure also results in your staff learning to handle more minor matters by themselves, thereby empowering them to become better decision-makers and more productive.  Additionally, Phil defers any non-urgent and non-important items to the weekly meeting as well, which has decreased the number of times he interrupts his own staff.  It’s a win-win for everybody!

I know that some of you may be thinking that this tip seems like an obvious one, but I have spoken to several assistants and even some attorneys and advisors and know that many do not have regularly scheduled meetings together.   By “regularly scheduled” I mean you never violate this blocked time by taking other appointments or doing other work!  So, if you don’t do so already, sit down with your assistant and key staff members and schedule a specific time to meet with them on a regular basis (either once a week or even twice, if necessary).  Once you do so, I guarantee you that you will begin to find you and your staff members working much more efficiently and effectively together - - allowing you to do more of the things you love to do!

Assistant Tip #2: Remember to Use CPR—It Just Might Save Your Life!

One of the most overlooked (or possibly unknown) techniques that most busy, successful executives and their administrative staff use is what I like to call “CPR”.  No, I’m not talking about the medical emergency procedure that can save someone’s life in a life-threatening situation.  What I’m talking about is a simple, yet effective, technique that can and should be used each and every single day—Clean, Plan and Relax.

Sounds pretty simple and obvious, right?  Let’s go into more detail about what this technique entails.

Clean – Some people may say, “Oh, my work area may look messy and disorganized, but I know where everything is and it hasn’t impacted me or my business at all!”  This may be true and I understand that we all have different habits when it comes to the organization of our desks and offices (and our lives!), but it is important to realize what kind of impact having a cluttered office or desk can indirectly have on you. 

First and foremost, if you’re a busy executive, it may make your clients (as well as your employees) a bit uneasy.  You can be on the ball with everything you do, but your office and desk will say a lot about you (even if you don’t think it does or you don’t want it to).  It can take away from your credibility as a professional who is capable of handling important matters such as one’s legal and financial matters.  For assistants, it may make your boss and coworkers a bit uneasy about entrusting you to handle certain tasks.

And, for both assistants and executives, it also affects you indirectly by how it can impact you subconsciously while you’re at the office. 

Picture it…you’re an assistant to a busy professional.  You wake up a few minutes late and are rushed to get ready for work, caught in traffic while on your way to the office (maybe we feel this more—we’re in LA!), and you rush up to your office, open the door and what do you see?  Papers strewn all over the desk, folders, files and mail all over the place.  Pens, paperclips, and an empty water bottle (lord knows how long that’s been there!).  A notepad with your quick scribbles all over it with things you need to do, some done, some not, some crossed off, some not.  Now, you turn on your computer, you’ve got clutter on your desktop, in your e-mail inbox, all your electronic files scattered everywhere.  What kind of impact do you think that will have on you?  Are you calm, cool and collected?  Or, do you feel more frazzled?

And now, picture this.  Same scenario—with the rushing to get ready and the traffic to get to the office—but now, picture walking into an office with a clean desk.  A desk with a small stack of folders and paperwork, with a notepad on top marked “To Do List” with today’s date.  Pens, paperclips and supplies in cups and organizers where they belong and a computer with folders, files and an e-mail inbox that is arranged so that it is easy to find what you need, when you need it.  How does that change how you feel about your day?  How does that impact what you do when you first get in?  Are you spending time sorting through the piles or getting right to the first thing on your “To Do” list?  And, thus, how does this scenario change how productive you will be?

We’ve said it before, we’ll say it again.  An organized, efficient, “A+” assistant best supports an efficient and successful professional.

Plan – Remember that “To Do List” we referenced in the above scenario?  That to do list and its creation and implementation is what is what I call “Plan”. 

After you’ve had an opportunity to clear your desk and organize yourself, the next step is to Plan.  This involves reviewing your notes, sifting through the paperwork and going over your calendar to determine a game plan for the next day.  In the process of putting together the items that you need to do for the next day, it would make sense to prioritize each task.  Essentially, you are creating a road map for when you walk in the door, you know what things come first, second and third.  And, if you’re an assistant to any busy executive, I know there’s always that unpredictable “Other Tasks as Assigned” item (handed to you in haste!) that comes up each and every day.  At least with a game plan in your pocket, you can take on those unplanned tasks and still make sure that you do not let any of the important tasks you had to complete slip through the cracks - - or at least let your boss know what may fall through if you switch gears, and let him or her “make the call”!

Along with creating a to do list at the end of each day, it is highly recommended that at the end of the workweek you even look further ahead and plan a general list of things that have to get done the following week.  This is a great reference point for when you’re creating your daily to do lists.

Relax – Last, but certainly not least, we are at the final component of this wonderful technique and probably the most enjoyable (that’s for sure!).  And, that is…Relax! 

Once you have been able to train yourself and develop this technique as habit, you will find that you are able to leave the office feeling relaxed, renewed and ready for the next day.  What a wonderful feeling that is - - to leave looking at a tidy and organized work area!

This CPR does not take very long to pick up or implement each day, although for some of you, the initial “clean up” and office and desk organization may take a little more time.  But, it’s like what mothers always tell their children about cleaning up their room, “After you’ve done it once, it’s just about maintaining!”  Same concept here.  Once you have taken the initial step to organize and de-clutter your desk and your office, then it’s just about maintaining from there.  Maintaining is so much easier, too!

Trust me, as someone who by late afternoon often doesn’t know where her to do list begins or where it ends, taking the final 10 minutes or so of the day to clear off the paperwork on my desk, organize anything I may need into folders and neat piles, and putting together my to do list for the next day—it’s the best 10 minutes you will ever spend throughout your day and you will begin to see its effects immediately.  You will feel better about your day when you leave the office.  You will feel better about coming in to work.  You will be a better assistant and all of those around you will begin to benefit from your organization, efficiency and, probably most importantly, your confidence!

So, that’s it!  Seems simple, but it is often underestimated and overlooked.  Next time you are struggling to keep your “head above water”, just remember to use CPR!

Assistant Tip #3: 5 Ways to Get Yourself Electronically Organized and Be More Efficient Throughout Your Day

Staying organized with your paperwork, your desk or office space and your To Do List is still probably only half of what’s involved to completely stay organized throughout your day.

How should your boss - - like most busy professionals - - spend much of his or her day?  Hopefully, as an advisor, in front of a client.  Phil has always said that if the advisor is not in front of a client, they’re not making any money.  But, what about you, as an assistant?  Where do you spend most of your day?  I would venture to say that most assistants spend probably a good 75-80% (or more) of their day in front of a computer.

So, that brings us to an important question.  How “electronically organized” are you?

While the running joke amongst my friends, family and co-workers is that I have some OCD tendencies about my level of organization, I must give credit to this attention to detail and organization (both in “real life” and electronically) as the reason I am able to juggle as much as I do.  I took a course on how to manage priorities and deadlines, "Managing Multiple Priorities, Projects & Deadlines" by Fred Pryor Seminars.  It was very informative and, in this course, I learned that one of the biggest time-wasters for people in the workplace is losing and looking for things.  How much time have you spent this week looking for something?  How about today?  Hopefully, not too much.  But, if you have ever spent more than a couple of minutes looking for something, the disruption to your work and efficiency is huge by the end of the day.  That’s why it may be high time for you to spend some time organizing yourself.

I’d like to present to you some helpful ways to organize yourself electronically.  This could be helpful to busy executives, too!  (That means you, boss!)

Clear Your Inbox.  When I come in the office each day, I open up Microsoft Outlook to find nothing there until I hit that “SEND/RECEIVE” button.  It’s my way of making sure that anything that comes into my inbox is new and unread.  I am aware that unread messages are bolded, but in Tip #1, I talked about what a cluttered desk can do to one’s psyche.  Imagine what hundreds, if not thousands, of e-mails in your inbox (your e-desk, if you will) does to one’s psyche.  (I’m sure your IT guy would love you too, because you won’t get that message that says you’ve reached your mailbox capacity, either!). 

So, what do you do with all those e-mails?  Delete them?  It depends.  I’m a believer that you may never know when you may need a particular e-mail at any given point.  This is why Outlook has created such a wonderful thing called “Folders”!  I create larger categories, as you will see below.

I assist Phil on issues that relate to his law firm, Kavesh, Minor & Otis (“KMO”), as well as with The Ultimate Estate Planner, Inc. (“UEP”).  Additionally, I assist Phil in monitoring his e-mail (which includes his list serve subscriptions).  I keep these folders all separated, as it helps me find things immediately when I need it.  As you can tell from the image above, those folders then have sub-folders.  Those sub-folders will be even more specific to allow me the easiest way to find an old e-mail.  What’s great is that those e-mails are always there and won’t need to be pulled up from the Archives, if you have to go searching for them.

Set Up Rules for Your E-mail.  As mentioned above, I have separate folders for the various e-mail that I monitor, which includes Phil’s subscriptions to multiple list serves.  I am able to do this by setting up Rules inside Microsoft Outlook.  I only do this for the purpose of separating out the type of e-mail (KMO e-mails versus UEP e-mails, my e-mails from Phil’s e-mails and Phil’s list serve e-mails).  I do not recommend that you use the Rules feature for any and all kinds of e-mails.  That will just result in more work later on and tens to hundreds of different folders you will have to monitor to check for new e-mail.  This is just to segregate large stuff. 

To setup Rules for your e-mail in Microsoft Outlook, go to Tools and select “Rules and Alerts”.  A menu will pop up that will allow you to create, edit, delete and manage your Outlook e-mail Rules.

You will be able to then set the parameters of the rule, which can be based on where the e-mail was sent, who sent the e-mail, what the subject includes, and then what you want Outlook to do with the e-mail.  For the purpose I am recommending, you will set the rule to “Move it to a specified folder” and then you will want to specify which folder you want the e-mail to be moved to.  Voila!  No more list serve e-mails cluttering your inbox and, if you’re like me and you monitor multiple e-mail addresses, there’s no confusion about whom the e-mail was intended for.

Clear Your Computer Desktop.  One of my hugest pet peeves is having a ton of icons on the computer desktop.  Again, going back to what clutter does to the psyche - - the cleaner and simpler you can keep things, the better.  Have you ever saved something to your computer or your desktop and spent far too much time trying to find it?  It’s very simple.  Just like my advice in the past about keeping your office and desk organized, keep your computer desktop clean too.  Some of you may be thinking, “But, it makes it so easy to have everything available at my fingertips.  I don’t want to have to go looking all throughout my computer to find a program or folder.”  Not a problem.  It’s very simple, actually.  Just start utilizing the “Quick Launch” toolbar at the bottom of your screen.

Simply right click on your toolbar at the bottom, go to “Toolbars” and select “Quick Launch”.  You may already have it checked, which means you already have it.  But, now is the time to put the applications and folders on the toolbar that you want to be able to access quickly. 

Here's what I have.

(click to enlarge)

I keep the “Show Desktop” button on, which minimizes all windows when you need to easily access your desktop.  I keep my Internet Explorer button handy for accessing internet, along with the various folders and drives that I may access frequently.  Then, I have all of the other programs and applications available on the drop down (when you click the >> arrows).

Other than my Recycle Bin, the only other thing that I have on my desktop is a folder I call my “Current Works in Process” folder, which has shortcuts and documents that I want to quickly access and includes items I’m working on currently.

Folders, folders, folders.  Aside from e-mail, there’s another place on your computer that you may also need an e-filing system of some kind and that’s either on your computer directory (My Documents) or, for some, may even be on a centralized server setup for your office.  Just like keeping a tidy desk, a tidy computer desktop and a tidy Outlook inbox, keeping your electronic files tidy and organized is also equally as important.

I assist Phil with tasks related to his law firm, to The Ultimate Estate Planner, Inc., as well as some personal items.  Therefore, I have three separate main folders: KMO (for his law firm), UEP (for Ultimate Estate Planner) and PJK (for Phil).  This keeps these items separate.  Depending on whether I have a letter, document, contract or some other electronic file I may have to file away, I determine whether it’s related to these.  This makes locating files much easier.  And, of course, like with the Outlook folders, each of these main folders has sub-folders that categorize them in even further detail (including by year for some). 

Honestly, whatever works for you is best, but just keep in mind that the more you can categorize and be detailed in how you name files and file away electronic files, the easier it will be to find things.  Think about it - - would you rather sort through 100 folders, which then each contain 10 sub-folders with 5 appropriately filed documents, or sort through one large folder with 5,000 files?

Naming Files.  And, of course, the previous brings me to this final tip, which is the “science” of naming electronic files.  I am teased at times for having extensively long file names, but my system has yet to fail me.  I will use brief (2-3 word) descriptions, event names, revision dates and whatever else that may be useful to help identify what a document contains.  This helps in organizing and determining if certain versions you have are older, as well as preventing you from having to open up each document to identify what they are.  Combining very carefully thought out file naming with file folder organization is really a match made in heaven for any assistant, as well as any busy executive!

I know that these tips may seem like common sense, but after years of assistant experience and working with different people, I can honestly say that while it may seem “common”, it’s not commonly practiced.

Even implementing just one or two of these tips will make any assistant (and executive) more efficient and is a huge step towards becoming more “electronically organized”.  Keep in mind, when an assistant becomes more efficient, it frees up her or his time to do the types of truly important tasks that can really benefit a busy executive.  And, the same goes for executives and their level of productivity!  So, what are you waiting for?  Clean up that computer desktop, clear out that inbox, start utilizing folders and create easily identifiable e-file names.  You will be glad you did!

Assistant Tip #4: The 4 "D's" of Being a Better Assistant (and More Efficient Executive, too!)

Whether you’re a busy executive or the assistant to a busy executive, you know the feeling of having far too many things to do in a day than hours available, right?  There are a lot of different tips and ways that you can handle such a workload.  One such technique of determining how to handle a heavy workload is something that Phil actually taught to me.  It’s the 3 “D’s”: Do It, Delegate It, or Destroy It!

Start by looking at your To Do List - - which I hope all of you have, because if you’re not, that’s a whole other story for developing habits for efficiency and organization (see Assistant Tip #1).  It’s important to list your tasks in a To Do List, so you can then determine where each task falls under the 3 “D’s” below. 

DO it.  The first of the 3 “D’s” is DO it.  There are some tasks that you, and only you, can do.  These tasks are the ones you determine need to stay on the To Do List and, from there, you can prioritize which ones need to be done in what order.

DELEGATE it.  The second “D” is DELEGATE it.  This is one that most people struggle with, especially those Type A personalities and perfectionists.  It really involves a lot of trust in others and was definitely an area that I personally struggled with.  I felt like I couldn’t delegate a certain task somewhere else because it might not get done right or I know how Phil would like to have that done and the time and extra work involved to train and supervise someone else to do it would not be worth it, so I should just do it.  That mentality really started to affect my level of efficiency, because now I was unable to complete certain things because of a lack of time or other priority projects repeatedly bumping them. 

Ultimately, I had to determine that nobody would ever be able to learn how to do certain tasks and allow me an opportunity to delegate unless I started to give up some of the control and started trusting others to take on those tasks that could be delegated away.  As a result, we were able to free up my time to do the things that I do need to do and, frankly, that I enjoy doing (like blog writing and interacting with attorneys and advisors on a daily basis!). 

Start by delegating some relatively simple tasks that you ordinarily take on, if there are others in your office that could be doing them instead.  For example, there can be some downtime for your receptionist between answering phone calls and assisting clients, which is great for doing certain tasks like sending out letters or putting together manuals. 

Delegating some more complex tasks may take a leap of faith, but you may be pleasantly surprised to find what others can take on when empowered to do so.  In fact, don’t tell Phil I told you this, but it took him some time to realize that I was capable of writing.  He started to build up a level of trust in me in the area of writing and has since allowed me the opportunity to assist him in doing initial drafts of correspondence, proposals and contracts and has now entrusted me to post blog entries (for UEP and his law firm), modify both company’s websites, create monthly newsletters for the law firm, and even draft some of the marketing pieces!  (Thank you, Phil!)

Whether the task is simple or requires some training and supervision, once you learn to build up that trust and feel comfortable to delegate tasks to others, you will find that a lot more can get done.  What’s that lovely saying?  You can do more in teams than as an individual?  Something like that.

You probably won’t be able to jump in the pool right away, but you will need to dip that first foot (and, if you’re like me, maybe it’ll just be that first toe!) into the water! 

DESTROY it.  Last, but certainly not least, my favorite of the 3 “D’s” is DESTROY it.  This is one of those where if you can use it and simply “destroy” a task, it’s great.  However, unfortunately, not all tasks that are on our plate are capable of being “destroyed”.  But, destroying tasks is necessary when you have far too much on your plate and you must weigh the benefits versus the cost to take on such a task (and, remember, your time is money too!).  It’s okay to decide not to do things!  If you can’t “destroy” a task, then at the very least, you may determine it necessary to DELAY it until other tasks that are more important are completed.  And, that may also allow you an opportunity to delegate as well! 

So, the next time you feel overloaded with things to do, go through your To Do List and determine what tasks you can DESTROY (or, at the very least, delay), DELEGATE to someone else, and the ones that you will have to DO.  Better yet, make this determination immediately when items come to you and get placed on your To Do List!  I’m sure once you master this, you will free yourself up so that you’re starting to do the tasks that you need to do, and hopefully the ones that you enjoy, too!

Well, that’s it for the tips to being a more efficient assistant.  I hope that you found these tips helpful and since it’s usually the busy professionals reading our blogs and e-mails, you might want to be sure to pass along this blog entry to your assistant!  If you’re interested in having me personally come in and consult with your assistant and even train him or her on some of the concepts mentioned in this blog entry, please feel free to contact me directly and I can give you more information about what services we have available. 

ABOUT THE AUTHOR.  Kristina Schneider has been with The Ultimate Estate Planner, Inc. since July 2004, providing administrative support to Mr. Kavesh, along with sales and customer service support for clients and prospective clients. Kristina was originally brought on to coordinate and facilitate all of the "Missing Link" Boot Camps and served as Phil's Executive Assistant at the Law Firm of Kavesh, Minor & Otis for over 7 years.  Kristina currently assists both companies with marketing, including e-mail newsletters, blogs, and the company websites.  Through Kristina’s direct hands-on experience in Phil's law firm, Kristina has been able to assist numerous professionals - - and equally as important, their staff - - in the successful implementation of Phil's products and systems.  Kristina graduated with a Bachelor's of Science Degree in Business Administration from Pepperdine University in 2004.   She currently resides in Los Angeles and, in her spare time, enjoys playing club basketball, reading and writing, including assisting various companies with their blogs.  She is a big hockey fan (thanks to Phil) and enjoys cheering on the Los Angeles Kings.

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Friday, March 09, 2012

How to Help Your Clients' Adult Children

Reposted from RegisteredRep.com | By Kevin McKinley

Giving the young adults in your clients' families a little time and attention can be beneficial for everyone involved.  Most advisors are most interested in working with individuals who have the most money to manage. This usually means those who are about to retire or have just done so.  But many of these clients have one thing on their minds that may be even more important and worrisome to them than their money: their fully-grown (if not yet fully-matured) children.  Helping the next generation get off on the right financial foot could be the most valuable service you provide.

Win, Win, and Win

It won't be difficult to persuade the parents to let you talk to their kids. Solid money advice might be easier to take from an outsider like you than a mom or dad, and may make it less likely the kids remain (or become) a financial burden to the parents.

The younger folks get to take advantage of your expertise, despite having neither the income nor the assets necessary to otherwise qualify for an audience with you.

Finally, developing a positive relationship with the younger members of your clients' families could ensure that your oversight of their assets continues long after the older clients pass away.

Some Ground Rules

Inserting yourself between generations of even the most harmonious families can make matters worse if not handled with delicacy, diplomacy, and discretion.

You should start with the parents, perhaps by giving them a few extra business cards and suggesting that they forward your contact information to their adult children or grandchildren.

Make it clear to the current clients that none of their financial information will be discussed with the younger family members. But also pledge that anything you cover with the younger generation will be kept confidential from all others.

You can let these privacy shields loosen a bit during “family money meetings,” which you should not only suggest but also organize and facilitate if asked.

Once you get a chance to talk to the young adults, you should reiterate that what they tell you will remain private (although certain circumstances might compel you to suggest the kids talk to their folks).

Where Are They (and Their Money) Going?

After the formalities are out of the way, it's time to get down to business. Ask the twenty-something where she wants to be in the next few years, and how she plans to fund those near-term plans.

Encourage her to track her current monthly expenses, and calculate how those might be affected by any life changes, such as returning to school or moving to a new city.

Ask if she has enough savings set aside to cover a few months (or years) without a steady income, and suggest she establish a rainy day fund before spending any extra money on trivial pursuits.

Bad Credit = Financial Headwind

Whether the young adult is still going to school or has just entered the workforce, it's likely he will be attempting to borrow money at some point in the near future.

You can increase his chances of landing the best lending terms by encouraging him to check his raw credit data for free at www.annualcreditreport.com, and getting his FICO score for a small fee at www.myfico.com.

Even if he doesn't see any need to borrow any money in the near term, you can point out that his credit rating can affect his ability to rent an apartment, his insurance costs, and even his employment prospects.

Repayment at the Right Pace

On the other hand, financially-savvy young adults are often too quick to want to get out of debt, especially when it comes to paying off student loans.

Eliminating education debt is a great idea, unless it leaves the borrower with no cash to cover other emergencies, or living expenses between jobs.

So instead of rapidly paying down college loans that have lower rates and longer repayment schedules, advise the kid to focus first on funding the aforementioned emergency savings account.

After six to twelve months' worth of living expenses are built up, then any extra income can be redirected toward accelerating the debt repayment.

Wading Through HR Forms

Gainfully-employed young adults don't have to worry as much about money as their unemployed cohorts, but they have another concern with which you can help: making the most of their employers' benefit package.

Start with the kid's 401(k) plan, demonstrating the tax savings (and potential employer matching contributions) that are available on the worker's deferrals.

If that doesn't motivate her to start saving right away, show her that setting aside just $10 per day from age 22 on at 7 percent hypothetical annual return will make her a millionaire at age 65.

You can tell her the truth about her reaching that age much more quickly than she can imagine, but a long rant about how little her million will actually buy at that time will tend to diminish her enthusiasm for investing.

Family Counseling

Even clients' children who have long been independent can benefit from your words of wisdom.

You could offer newly-engaged couples the chance to have a money meeting with you, and help them establish mutually-desired long-term financial goals and short-term spending and saving amounts.

Most new moms and dads lack the proper estate planning documents to protect themselves and their families, so sending the young parents to a qualified attorney would be an act appreciated by your older clients, as well.

Along those lines, you should encourage the younger generation to not only purchase life insurance, but with a benefit amount that's large enough to prevent a tragedy from turning the kids and grandkids into a financial responsibility of the older generation.

___________________________________

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Photo Credit: registeredrep.com

Friday, March 02, 2012

22 Days of Tax Planning Advice: What I Do in My Practice, Pt. 1

Reposted from AdvisorOne.com | By Mike Patton

This is the first in a series of blog postings from advisor Mike Patton on how he works with clients during tax season and throughout the year to maximize his value to clients when it comes to tax planning.

As we approach tax return filing time, there are opportunities for advisors to add value, even if you’re not your client’s tax preparer. In this post, the first in a series of blogs, I'd like to share what I am doing during this season for my clients. 

Fact-Checking 1099s
Clients should have received their 1099s by now. Although most will contain all of the necessary data, believe it or not, there are a few firms that do not include the cost basis for securities sold. In fact, the custodian that I use 'had' a relationship with one such clearing firm. This firm, which shall remain unnamed, showed the gross proceeds, but not the basis. To remedy this, I export the 'gains and losses' for the calendar year into an Excel spreadsheet. Then I would send this to the client’s tax preparer. Because it was in Excel, it can easily be sorted by capital gain treatment, position, etc.

Asking for Clients' Returns
I sent out an email to all financial planning clients recently requesting a copy of their 2010 tax return and their 2011 return when completed. In an effort to become more involved in this area, and to assist in identifying errors and ways to save, clients were very appreciative. After all, to maximize cash flow, you must either increase income or reduce expenses, or both. And the more free cash flow, the greater the potential for wealth accumulation.

As an example of how having returns benefits clients, one of the returns I reviewed recently was from an elderly couple who had been using the same preparer for decades. The problem was that this particular preparer had made numerous errors on their return. Although I do not prepare returns, and have no plans to do so, I can help identify issues which need addressing. In this case, I referred the client to a CPA who filed an amended return for the year in question. The result? The client saw the benefit I brought to the table. And after all, that's what it's all about! 

Making Tax-Smart Use of My CMS
I just completed a revision of my contact management system. The update included adding fields which will increase my ability to effectively communicate with clients. For example, I added the fields, "taxable" and "tax deferred." Then I created a query so I can filter clients with taxable or tax deferred accounts. To those with taxable accounts, I can send communications geared to tax issues and for tax deferred accounts, I can suggest that they make a contribution to their IRA for 2011. Of course, I would include the parameters whereby they can make a contribution such as having earned income. 

There are many sometimes overlooked steps we can take as advisors to become more involved and add value for our clients when it comes to issues revolving around taxes. These are only a few. Perhaps you'd like to share some of your ideas?

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

Photo Credit: namm.org

Thursday, March 01, 2012

2012 Tax Season Survival Guide: 22 Days of Tax Planning Advice

Reposted from AdvisorOne | By Dan Skiles

Tax season is officially here. For some advisors, preparing clients’ tax returns is a standard part of their services. Others may provide guidance and assistance, but someone else completes the actual tax return. No matter your style, there are several best practices and operational procedures that you should consider to help make tax season a little easier for your firm.

A good place to start tax season is with your custodian’s calendar. Take a look at your custodian’s schedule for sending out 1099 reports. For example, your custodian might use a different timetable for sending out 1099 reports for accounts that include mutual funds that have received income or distributions than for accounts that only include stocks or bonds. This is especially important if your clients have accounts that include a mix of mutual funds and other securities. They would receive the 1099 for their account that includes only equities, but may become concerned when they don’t receive the 1099 for their mutual fund account at the same time.

Reconciling the information included on your clients’ 1099 statements versus the same data on your own performance reports can be a challenging project. In theory, the information should match as long as you are properly reconciling the accounts in your reporting system. In addition, since most 1099 reports are in a PDF format, you can also consider copying and pasting the account data in a table format. Once loaded into a spreadsheet, you have new opportunities to more efficiently merge and compare information. Your custodian may also allow you to download 1099 reports for a number of accounts in a single file, which will make it easier to access and maintain the information.

Perhaps one of the more frustrating aspects of tax season is when a client receives a revised 1099 report. This can happen for a number of reasons and can lead to extra work for you and your client—especially if the client has already filed his or her taxes based upon the initial 1099 report. Advisors can minimize this risk by making sure that clients understand that this can happen if securities issuers have to revise their data. Sometimes waiting an extra week or two before filing their taxes is not a bad idea, essentially making sure a revised 1099 is not already on its way. Advisors should also be on the lookout for these revised 1099 reports by leveraging the tools available through their custodians. Many custodians provide alert features, search criteria and other tools to help you stay informed of any 1099 report revisions. This can really assist you with providing excellent service to your clients by being proactive with this information, perhaps even notifying your clients of the 1099 revision before they receive it in the mail.

Another fairly significant effort during tax season is making sure that other professionals (CPA, tax advisor, attorney, etc.) who serve your clients’ needs receive all the necessary documents as well. The most common way to fulfill this task is to send the documents via email. However, if you have a Web portal solution, for example, file sharing with Dropbox, then you should consider creating an account for each of these professionals as well. If you utilize a Web portal solution, you have the ability to securely upload documents and ultimately have more control over the process. If a document is misplaced, the file is still in the professional’s account and they can re-download the file. 

Tax season can be a very busy time of the year. It involves a hard deadline as well as significant effort in collecting critical information. When it goes smoothly, it is mainly time-consuming work, but the level of frustration rises when mistakes or surprises occur. Minimize these issues by implementing the appropriate best practices and operational procedures for your firm.

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

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Tuesday, February 28, 2012

An Untapped Source for Financial Advisor Referrals

Reposted from ClientWise.com | By Ray Sclafani

For top-performing financial advisors, introductions from centers of influence and other professionals are a key to client acquisition success.  And client acquisition and net new assets are key identifiers to a wealth advisor’s growing business.  In fact, our research suggests that the most effective financial advisors find more than 70% of their new assets come from two sources: referrals from clients, and introductions from other professionals.  In the ClientWise customized coaching for financial advisors, we find this to be true as well.

However, in our view these prime sources for financial advisor referrals, especially from other professionals, are misunderstood, misused, and…untapped.

Having trained and coached top performing financial advisors in this area for more than nine years, here is what I’ve observed.

Most financial advisors have experienced mixed results when it comes to working with other centers of influence and other professionals.  Many have become discouraged and given up entirely.We have observed that most financial advisors have made ineffective attempts to partner with these other professionals, have focused on working only with CPAs and attorneys and typically start and stop the approach, rather than maintain consistency in building a true partnership for the benefit of others.  Since many of these referral outreaches have been weak and poorly-conceived, other professionals have become somewhat hardened towards working with financial advisors and see the approach as just another “solicitation.”

Before jumping into this topic much further, here are a few observations that help set the stage:

• In order for today’s financial advisor to be truly successful in building a network of other professionals with whom to partner, she or he must…and I mean must understand that the primary reason to partner with another professionals is not to simply build a referral pipeline.  Instead, the primary reason is to build a network so that today’s financial advisor can deliver the promises of wealth management.  There is no way today’s financial advisor is going to be all things related to wealth management for every client.  (i.e. banker, financial planner, primary insurance provider, asset manager, business valuation specialist, business broker, corporate real estate developer, etc.) 
• In today’s competitive landscape, financial advisors need to have a group of other professionals who recognize the value that they create for the benefit of clients. 
• The financial advisor should recognize the value that the other professionals create for the benefit of their clients and be able to articulate that value.
• The very best wealth advisory businesses make a habit of partnering with both clients and other professionals in order to serve the client in the most complete wealth management way possible.
• Most clients enjoy and value the idea of their network of trusted advisors partnering and communicating with each other for their own benefit.
• First and foremost, this type of network is grounded in client service. To receive introductions from other professions and to be a provider of introductions to another, the financial advisor must care deeply about their own clients, as well as the professional advisor network that they create.

For those financial advisors who partner with other professionals to create a wide-ranging wealth management network for the mutual benefit of their clients, introductions between professionals become a powerful byproduct of the network… rather than the main objective.

That’s all for now. This entire topic, of building professional advisor networks, cannot be addressed in one blog post. We plan on coming back to this subject again in the near future.

As they say…watch this space!

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The Ultimate Estate Planner, Inc. and President, Philip J. Kavesh, push the model of referral relationships, particularly between financial advisors and estate planning attorneys.  With over 20 years of experience in successfully developing multi-million dollar producer referral relationships, Mr. Kavesh has put together a number of tools and training on successfully developing the referral relationship, so that it's ethical, legal and a win-win-win for the advisor, attorney and, more importantly, the client!  For more information about the Client Meeting Forms and Practice-Building Products to help you successfully develop attorney/financial advisor referral relationships, click here.

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

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Monday, February 27, 2012

Adopt Your Girlfriend as Your Daughter Asset Protection Plan Shocks Planning Community

Reposted from The Trust Advisor | By Scott Martin

Estate planners call “Adopt Your Girlfriend as Your Daughter” strategy to shield John Goodman’s assets from creditors bizarre. His lawyers say they have lost confidence in Bessemer Trust’s ability  to manage Goodman’s children’s money after the girlfriend-daughter was added as a trust beneficiary. Others say that relationship now legally amounts to incest.

Depending on who you talk to, Palm Beach air conditioner tycoon John Goodman was either brilliantly expanding the frontier of traditional estate planning or hastening the end of western civilization when he adopted his 42-year-old girlfriend as his daughter and heir.

A dig into the details shows that while the move was way outside the box, it represents a remarkable response to a difficult and arguably unique situation.

Goodman is already facing 2010 drunk driving manslaughter charges that could put him away for the next three decades, so in that respect he’s past trying to protect his public image.

But with the court talking about starting the trial in the immediate future, his lawyers shifted to locking down his more tangible interests, including support for his girlfriend and control of a family trust reportedly worth $300 million.

After all, if the trial goes badly, his time as a free man will be extremely limited.

“It should be obvious to everyone that at the present time Mr. Goodman’s continued availability to ensure that the trust’s assets grow and continue to provide benefits for his children is uncertain,” explains Daniel Bachi of West Palm Beach law firm Sellars, Marion & Bachi.

Cutting through the hype

When the media heard that the lawyers had decided to have Goodman adopt romantic companion Heather Hutchins — barely six years younger than he is — it unleashed a frenzy of misconceptions about how trusts actually work.

For one thing, Goodman is not trying to hide his money from the parents of the young man whose car he hit two years ago.

The assets in the trust were transferred in 1991, so the notion that Goodman was trying defraud a civil suit 20 years down the road is vanishingly remote.

In any event, while the trust is currently run under Delaware law, it’s not an “asset protection” trust in any way, shape or form. Goodman is not a beneficiary or the trustee, so he has neither ownership nor control.

He’s signed affidavits to that effect.

The bottom line here is that naming Hutchins as his third “child” doesn’t add a layer of protection from lawsuits — it’s not Goodman’s money any more and hasn’t been for a long time.

And Hutchins isn’t immediately going to get $100 million or even $70 million to play with. She’s now a beneficiary entitled to draw on the income, but not the trustee.

That income stream allows Goodman to provide for her and her two young children from a previous marriage, without antagonizing rich relatives who might balk at carving out a big piece of the family fortune for the girlfriend.

Under a separate agreement, Hutchins agreed that only $10 million of the trust’s principal would ever pass on to her children. Subsequent amendments whittled her interest down even further, to $5 million.

So adopting Hutchins takes care of her if Goodman goes to jail. But there’s an even bigger game afoot here waiting to play out.

Fighting the trustee, not the plaintiffs

Goodman’s lawyers frame the decision to adopt Hutchins as a way to give her official status in the eyes of Bessemer Trust, which has been running the trust since 2009.

As far as they’re concerned, Bessemer failed to live up to its promises to accept Goodman’s direction on how the “special” holdings in the trust — including his house and the $14 million polo club that turned him into a pillar of Florida society — should be managed.

“Bessemer agreed to keep the management team that had grown and protected these holdings in place for many years,” lawyer Bachi explains.

“Instead, Bessemer took steps to change management of these holdings, which have significant financial and intangible value to the children.”

Goodman named himself and two business associates as obvious choices with “experience with the management of such special assets.”

However, ex-wife Carroll objected to the appointment, leaving Bessemer with the headache that many trust companies that accept “alternative” assets like private equity and real estate know so well.

While the trustee tries to maintain an iron curtain between the grantor and the operations of the trust itself, the fact remains that the grantor is often uniquely qualified to manage the assets to their best potential.

As it is, Goodman’s ongoing relationship with the polo club is now being used in arguments that he’s been secretly running the trust to his own enrichment all along, no matter what the trust documents say.

If that were the case, those assets may be exposed to legal action no matter how many children he adopts.

That’s where adopting his girlfriend as a legal child-beneficiary may give him a chance to keep his polo club and run it too — even if he ends up in jail.

Hutchins apparently knows how Goodman wants the club to operate. As beneficiary, Bessemer has to take her interests and informed opinions seriously.

And in return for her input, she gets at least $500,000 a year from the trust.

“The contract provides funds to take care of Ms. Hutchins and her family and to compensate her for the large undertaking of overseeing such a complex and closely held family business,” Bachi explains.

As for the incest argument, it only legally applies to blood relatives.

Besides, if Goodman goes to jail, it will only matter on occasional conjugal visits anyway.

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

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Thursday, February 23, 2012

How to Thrive in the Under $5 Million Estate Market

By Philip J. Kavesh, J.D., LL.M. (Tax), CFP^®, ChFC, California State Bar Certified Specialist in Estate Planning, Tax and Probate Law

I and many practitioners have over the years built successful practices on what I call the “middle market”, that is, estates valued anywhere from $500,000 to $5 million.

This level of estate planning practice faces a number of challenges today unlike any we have had in the past.  Our services have become commoditized into mass produced documents, with increasing low-priced competition from the internet, do-it-yourself packages, non-attorney paralegals and bargain-priced attorneys.  Plus, with the new $5.12 million Federal Estate Tax exemption amount for 2012, there is now reduced need for advanced--level estate tax planning and post-death administration. 

Should You Even Stay in the Under $5 Million Market?

Given all these challenges, I have heard many practitioners say that it is time to quit the under $5 million market.  I couldn’t disagree more. 

First, the greatest potential market share is comprised of less than $5 million estates.  I have read various statistics which estimate that estates over $5 million represent less than 2% of the overall estate planning market.

Second, the middle market consists mainly of those described as the “Millionaire Next Door” (profiled in the famous New York Times’ bestseller of the same name by Thomas J. Stanley).  These are the “Moms and Pops of America”, the great unserviced, silent majority, who don’t typically have a long-term, fixed attorney relationship.  Maybe they have worked with an attorney here or there for a specific matter or maybe for a “one-shot” estate plan, but they have basically been “orphaned” by the legal profession.  These are the easiest people to reach, close and get to refer their other friends to you.

Third, if you have a high net worth practice, by also offering planning to the middle market you can generate the cash flow you need to live on while you are “hunting white elephants”.

Fourth, you can develop a volume practice in this middle market that will allow you to retire someday!  If you have only a few, high net worth, “high touch” clients that require you to always be meeting with them, it will be much harder to transition them and it will be a far greater risk if you try; if you lose a few large clients, that’s a big hit on your total revenue.  If you have more of a volume practice, you can gradually turn over your clients to your junior associates and phase down (that’s what I’ve done).

Assuming that I have now convinced you to stay in this middle market, how do you overcome each of the challenges that I’ve pointed out and not only survive, but thrive?

Fight Back Against Commoditization and Low-Priced Competition

Some practitioners have just ignored these issues and have decided to do something completely different (or the opposite), focusing only on the “high touch” approach, over-servicing a few clients at higher fees.  The problem is, in this middle market, will there be enough of these types of clients willing to continue to pay significantly higher fees?  Will you be able to generate enough consistent cash flow?  And, if so, how much constant work will you have to put in for each client, that will effectively reduce your net profit? 

Consider the possibility of having two practice models side-by-side, like low and high end models in a Mercedes Benz showroom.  Maybe you can retain your high touch model for larger estates and a different model for estates under $5 million.

My approach to the under $5 million market is different than the high touch model.  I accept that we have become a “commodity” and show prospective clients why mine is better.  Where in any industry there is a Coca-Cola, there’s always room for a Pepsi.  You can actually leverage off the marketing done by the other competitors in your market.  Check out what they offer versus what you offer and show people how to comparison shop as part of your “consumer education” marketing approach.

For example, you can emphasize the importance of counseling as a part of what they get when they work with you, an estate planning attorney.  Emphasize that attorneys have, in the past, been called “counselors at law” and how important it is to see a skilled professional to assist with important choices, such as the following. Who should be the Trustee? Should there be Co-Trustees?  Independent Trustees? Distribution Trustees?  Who should be guardians?  Who should be the health decision makers?  How and when should each beneficiary receive his or her inheritance in the best manner?  And, of course, there is the counseling necessary to resolve special issues with blended families (children of prior marriages), LBGT couples, business succession planning, specific bequests and equalization formulas.  Emphasize how there are many decisions to be made, even before “filling in the form” or preparing their document - - and that “one-size-fits-all” planning may be the worst thing that people may do!

You also want to emphasize why your “hard package” (yes, your commodity!) is better and more complete.  This is also, of course, how you will justify the value of your higher fees.  This is not a technical article, but there are many unique features to your Basic Living Trust plan that probably do set you apart from plans of your competitors - - everything from “flexible” A-B trust provisions, HIPAA and Medicaid features, and custom-fit beneficiary trusts (lifetime, spendthrift, special needs and beneficiary defective asset protection trusts - - with special flexibility features like powers of appointment and trust protector powers). You can also emphasize the additional features of your overall trust plan, what I call the “support mechanisms” that make sure that the plan will actually work properly when the time comes - - things like title transfers, or adjunct materials like an Owner’s Manual and Health Document Emergency Card (such as Docubank).  You can also add on, for people with larger IRAs, a Stand-Alone IRA Inheritance Trust.  Finish by simply posing the question, “Do those other low-priced plans do all this?”

You also can emphasize service after the sale, which they don’t get from the low-priced competition.  Some practitioners utilize a maintenance program at an additional fee, but I favor a free service package approach with the under $5 million market.  I’m not going to get into here the reasons why.  In either case, you can provide such things as periodic updates or seminars as laws and planning techniques change, a newsletter, periodic review meetings and a free Trustee meeting when the time comes that the Trustor is disabled or passes.  Be sure to “show and tell” prospective clients all the things that set you apart.

Combating the Reduced Need for Advanced Level Estate Tax Planning and Post-Death Administration

Even in the middle market, there are still a few simple, advanced level building blocks that can be placed onto the Living Trust foundation.  The key is to emphasize not so much the estate tax benefits of these planning devices, but more so their asset protection benefits, income tax benefits and succession management benefits (keeping assets in the family).  When describing these simple advanced techniques to middle market clients, just like with your basic product, you want to emphasize how your advanced product is also superior.  Examples of these products are: Dynastic Flexible Irrevocable Gifting Trusts (“dynastic” may mean even utilizing another state situs and by “flexible” I mean power of appointment and trust protector features that permit change of Trustee, beneficiaries and how and when they get their inheritance); LLCs and Self-Settled Trusts, particularly if clients own a business or rental real estate (again, possibly in another state utilizing better asset protection laws); Life Insurance / ILIT, emphasizing estate building and its use later as a “family bank” to acquire more property and wealth or, for use in equalization of bequests, and designing them too as “flexible”); CRTs for sales of appreciated assets without capital gains tax; and, QPRTs as a way to hedge peoples’ bets about estate tax in times of uncertainty, particularly in the middle market where they may not want to make substantial gifts of investment assets they may need later to live on.

Your post-death administration may go down for estate tax purposes, but if you have done better lifetime planning, which includes continuing trusts for beneficiaries (even if they are beneficiary-controlled trusts), you clearly have more opportunity for next-generation planning, such as when testamentary limited powers of appointment need to be exercised.  And, even if clients come in for administration meetings where there is little more to do than a distribution deed, there is always an opportunity to make referrals to other professionals (who hopefully will refer back to you), such as a CPA or financial advisor, or to work with the client’s existing advisors and establish new business relationships.

Obviously, I could go on further in much more detail; however, given the limited space of this article, I trust that this will give you a good starting approach to being successful in the middle market.  Perhaps, in a future article, we can address another issue or “challenge” so many practitioners in this market face - - how do you attract and bring in these clients?

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

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Wednesday, February 22, 2012

Senate Bill Threatens Life of Stretch IRAs

Highway bill provision would end tax-deferred stretches of IRAs for beneficiaries other than a spouse, minor children or the disabled

Reposted from AdvisorOne | By Melanie Waddell

Industry trade groups are up in arms over a provision in a Senate highway bill that would reduce the value of inherited IRAs, commonly referred to as stretch IRAs, and are determined to have it removed.

The bill, S. 1813, the Highway Investment, Job Creation, and Economic Growth Act, includes a provision that would no longer permit tax deferred stretches of IRAs for beneficiaries other than a spouse, minor children or the disabled. Others, such as adult children, would only be permitted a five-year window to defer.

The provision would require beneficiaries to pay taxes on inherited IRAs over five years instead of spreading them over their lifetime. If passed, the provision would apply to deaths after Dec. 31, 2012.

The proposal is designed to reduce the value of a tax-planning technique that allows inside buildup of tax-deferred funds inside inherited retirement accounts.

Sen. Max Baucus, D-Mont., chairman of the Senate Finance Committee, added the provision on Feb. 7 during markup of the bill by his committee, but after pushback he promised to have the provision removed.

During the markup of the bill, Baucus said that “IRAs are intended for retirement,” adding that IRAs are being “used by some taxpayers to give tax-free benefits” to future generations. The taxes from the stretch IRAs provision was to be used to help pay for the highway bill, and would raise $4.6 billion over 10 years.

As it stands now, the provision was adopted by Baucus’ committee and remains intact in the highway bill, which awaits action by the full Senate. Once taken up by the Senate, industry officials believe that the IRA provision will be replaced with one that raises the funds by changing the way assets are valued in defined benefit plans.

Judy Miller, chief of actuarial issues at the American Society of Pension Professionals and Actuaries, says that the new provision would likely "reduce the current required contribution to defined benefit plans; when you do that there are fewer deductions taken so it raises money."

But given that the IRA provision has yet to be taken out, the Financial Services Institute is mobilizing its members to have it removed.

Chris Paulitz, spokesperson for FSI, says that FSI “won’t rest" until it's removed. "We’re keeping the pressure on from our members to try and ensure it eventually is indeed stripped out.”

FSI said in a Feb. 15 letter to its members that “while we expect the provision to be removed from the highway bill, it is important that we send the Senate the message that taxes on inherited IRAs should not be used to pay for other governmental spending.”

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

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Wednesday, February 22, 2012

IRS Extends Deadline to Make Portability Election

By Robert S. Keebler, CPA, MST, AEP

On February 17th, the IRS released an important Notice allowing an extension to make a portability election for certain qualifying estates. An executor of a qualifying estate that wants to obtain the extension granted by this notice must file the application for a six month extension no later than 15 months after the decedent's date of death. With the extension granted by this notice, the Form 706 of a qualifying estate will be due 15 months after the decedent's date of death. The first of these extensions (and underlying Form 706) will be due April 2nd. Estates qualifying for this election must meet the following requirements:

• The decedent must have a date of death after 12/31/10 and before 7/1/11
• The decedent must be survived by a spouse
• The gross estate does not exceed $5 million
• The estate is not a qualifying estate if the estate effectively requested an automatic six-month extension of time to file Form 706 by timely filing Form 4768 on or before the due date for filing Form 706.

The executor of a qualifying estate may file Form 4768 at the same time as the executor files Form 706, as long as both are filed on or before the date that is 15 months after decedent's date of death. To obtain the extension, the executor must meet the following requirements:

• The executor files Form 4768 with the Service office designated in the form's instructions;
• The executor files Form 4768 no later than 15 months from the decedent's date of death; and
• The executor enters at the top of Form 4768 the notation "Notice 2012-21, Extension for Good Cause Shown" or otherwise sufficiently notifies the Service on or with Form 4768 that Form 4768 is being filed pursuant to this notice.

This post has been brought to you by The Ultimate Estate Planner, Inc., providing practical, tested and proven technical and marketing products to help estate planning professionals throughout the country build their practices.  Connect with us on Facebook, Twitter or LinkedIn.

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