Is now the time for a charitable lead trust?


Families who wish to give to charity while minimizing gift and estate taxes should consider a charitable lead trust (CLT). These trusts are most effective in a low-interest-rate environment, so conditions for taking advantage of a CLT currently are favorable. Although interest rates have crept up in recent years, they remain historically low.

Two types of CLTs
A CLT provides a regular income stream to one or more charities during the trust term, after which the remaining assets pass to your children or other noncharitable beneficiaries. If your beneficiaries are in a position to wait for several years (or even decades) before receiving their inheritance, a CLT may be an attractive planning tool. That’s because the charity’s upfront interest in the trust dramatically reduces the value of your beneficiary’s’ interest for gift or estate tax purposes.

There are two types of CLTs: 1) a charitable lead annuity trust (CLAT), which makes annual payments to charity equal to a fixed dollar amount or a fixed percentage of the trust assets’ initial value, and 2) a charitable lead unitrust (CLUT), which pays out a set percentage of the trust assets’ value, recalculated annually. Most people prefer CLATs because they provide a better opportunity to maximize the amount received by one’s noncharitable beneficiaries.

Typically, people establish CLATs during their lives (known as “inter vivos” CLATs) because it allows them to lock in a favorable interest rate. Another option is a testamentary CLAT, or “T-CLAT,” which is established at death by one’s will or living trust.

Another issue to consider is whether to design a CLAT as a grantor or nongrantor trust. Nongrantor CLATs are more common, primarily because the grantor avoids paying income taxes on the trust’s earnings. However, grantor CLATs also have advantages. For example, by paying income taxes, the grantor allows the trust to grow tax-free, enhancing the beneficiary’s’ remainder interest.
Interest matters
Here’s why CLATs are so effective when interest rates are low: When you fund a CLAT, you make a taxable gift equal to the initial value of the assets you contribute to the trust, less the value of all charitable interests. A charity’s interest is equal to the total payments it will receive over the trust term, discounted to present value using the Section 7520 rate, a conservative interest rate set monthly by the IRS. As of this writing, the Sec. 7520 rate has fluctuated between 2.35% and 2.55% so far this year.

If trust assets outperform the applicable Sec. 7520 rate (that is, the rate published in the month the trust is established), the trust will produce wealth transfer benefits. For example, if the applicable Sec. 7520 rate is 2.5% and the trust assets actually grow at a 7% rate, your noncharitable beneficiaries will receive assets well in excess of the taxable gift you report when the trust is established.

If a CLAT appeals to you, the sooner you act, the better. In a low-interest-rate environment, outperforming the Sec. 7520 rate is relatively easy, so the prospects of transferring a significant amount of wealth tax-free are good. It should be pointed out that notwithstanding the tax benefits, setting up a CLAT, or any charitable trust should be undertaken with a charitable intent. Contact us for more details.

It’s a matter of principle — and trust — when using a principle trust

For many, an important estate planning goal is to encourage their children or other heirs to lead responsible, productive lives. One tool for achieving this goal is a principle trust.

By providing your trustee with guiding values and principles (rather than the set of rigid rules found in an incentive trust), a principle trust may be an effective way to accomplish your objectives. However, not everyone will be comfortable trusting a trustee with the broad discretion a principle trust requires.

Discretion and flexibility offered
A principle trust guides the trustee’s decisions by setting forth the principles and values you hope to instill in your beneficiaries. These principles and values may include virtually any lawful criteria, from education and gainful employment to charitable endeavors and other “socially valuable” activities.

By providing the trustee with the discretion and flexibility to deal with each beneficiary and each situation on a case-by-case basis, it’s more likely that the trust will reward behaviors that are consistent with your principles and discourage those that are not.
Suppose, for example, that you value a healthy lifestyle free of drug and alcohol abuse. An incentive trust might withhold distributions (beyond the bare necessities) from a beneficiary with a drug or alcohol problem, but this may do little to change the beneficiary’s behavior. The trustee of a principle trust, on the other hand, is free to distribute funds to pay for a rehabilitation program or medical care.

At the same time, the trustee of a principle trust has the flexibility to withhold funds from a beneficiary who appears to meet your requirements “on paper,” but otherwise engages in behavior that violates your principles. Another advantage of a principle trust is that it gives the trustee the ability to withhold distributions from beneficiaries who neither need nor want the money, allowing the funds to continue growing and benefit future generations.

Not for everyone
Not everyone is comfortable providing a trustee with the broad discretion a principle trust requires. If it’s important for you to prescribe the specific conditions under which trust distributions will be made or withheld, an incentive trust may be appropriate. But keep in mind that even the most carefully drafted incentive trust can sometimes lead to unintended results, and the slightest ambiguity can invite disputes.

On the other hand, if you’re comfortable conferring greater power on your trustee, a principle trust can be one way to ensure that your wishes are carried out regardless of how your beneficiaries’ circumstances change in the future. It is also important to note that a single trust may combine several approaches to distributions, provided they are not inconsistent with each other. We can help you decide which trust type might be more appropriate for your specific situation.

NewsChannel 8: Jason Smolen’s Tips for Protecting Digital Assets

Traditionally, estate planning addresses one’s property and finances. Today, more and more people are looking to include their intangible assets like social media accounts, and online photos and videos in their wills. SmolenPlevy Co-Founding Principal Jason Smolen visits NewsChannel 8 to discuss the growing trend of protecting digital assets through estate planning on Let’s Talk Live.

Although laws regarding digital assets are evolving, Smolen says there are ways to ensure your online accounts and media are taken of upon your death. Some websites like Facebook have a feature that allows you to elect someone you’re “friends” with as your “legacy contact”.

For websites and services that haven’t caught on this feature, Smolen suggests going “old school” by designating who takes over each digital asset, and including a comprehensive list of all online accounts and login information in your will.

Digital information like downloaded music, video and books may not be considered assets after all, according to Smolen. Sometimes, purchasing art only means you’re only licensed to use the it while you’re alive.

Watch Smolen on Let’s Talk Live above.

In The Media: Jason Smolen Takes a Close Look at Proposed Changes to the Capital Gains Tax

Jason D. Smolen

The proposal to end the “step up” provision in the capital gains tax could mean substantive changes in how inheritances are taxed. Just published, SmolenPlevy Co-Founding Principal Jason Smolen takes a closer look at the proposal in Wealth Management and MainStreet.

President Obama’s plan to close the “trust fund loophole” could affect more than just the rich. Any beneficiary would have to look up the original cost of just about any asset they inherit—causing them to spend time and money sorting out the financial details.

Without the “step up” provision, beneficiaries may need to set up additional trusts to protect their assets from increased taxation. Some people can transfer assets to trusts, which would take them out of the tax picture, or sell the assets entirely instead of passing on potentially huge tax bills to their heirs.

The proposal is a long way from reality, but its adoption will make estate planning more complicated, according to Smolen. Families may need additional professional advice from estate attorneys and accountants to devise a strategy to maximize assets and minimize taxes.

Read Smolen’s exploration of the proposed changes on WealthManagement.com and MainStreet.

In Sickness and in Health? A Lesson in Trust(s)

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Your spouse has run the family business for years, but lately you’ve worried that their declining health is having a major financial impact. When is the right time for you to take over management? That issue played out publicly recently as Shelly Sterling fought for and won control of the Los Angeles Clippers from her husband, Donald Sterling. The battle, which ultimately resulted in the sale of the team, was prompted by Donald’s racist comments caught on tape and his permanent ban by the NBA.

Finish Reading “In Sickness and in Health? A Lesson in Trust(s)” on LinkedIn

The Wrong Way to Avoid “Trust Fund Kids” And Other Lessons from Philip Seymour Hoffman’s Will

SmolenPlevy Co-Founding Principal Jason D. Smolen

According to media reports, the late actor Philip Seymour Hoffman didn’t leave any money to his three children directly because he feared they would become “Trust Fund Kids”. While his concerns were understandable—many people worry about giving their children too much money too soon—there are a number of estate planning strategies that he could have used to better provide for his family after his death. Hoffman died in February 2014, leaving an estimated $35 million estate to his long-time companion, Marianne O’ Donnell.

Jason Smolen suggests that Hoffman’s estate may face a large and unnecessary estate tax bill because the actor and O’Donnell weren’t married. His estate may be hit with both federal and New York state estate taxes, which could total $14 million dollars. Had they tied the knot, the money would have passed tax free from Hoffman to O’Donnell.

As for the “Trust Fund Kids” concern, Smolen certainly understands the issue. “Earning and spending money are two different activities,” says Smolen. “If your children haven’t engaged in the first, they may not manage the second well.” A possible solution is to work with an estate planning attorney to set up a revocable living trust crafted to provide your children with a secure future without creating a disincentive to work. The trusts can provide for the payment of expenses associated with college, health and financial issues, and can make distributions when the children have achieved certain life goals or even match salaries once they’ve grown and started careers.

Another key is naming a trustee who will make sure your trust is appropriately administered. “It should be someone who understands your values,” says Smolen. In Hoffman’s situation, while his partner may know and understand what he wanted for the children, she will still be making those financial decisions without guidance or restrictions. Essentially, without a trust to set parameters, O’Donnell can do whatever she wants. While there’s no reason to believe she’ll misspend the money or deprive the children, life is unpredictable—she could be hit with illness, emergencies or even a future divorce that depletes the funds. Further depending on what estate planning O’Donnell does before she dies, the money could be taxed again, whether she gives it to the children, charity or to family and friends.

Smolen points out that trust funds aren’t just for the very wealthy. They are useful tools for anyone who will leave behind an estate and wants some control over their legacy. Also, a trust can help heirs avoid the delay caused by having an estate go through probate, where all the assets in the estate are legally accounted for before distributions are made.

A revocable living trust can be altered, updated and even cancelled. By spelling out your wishes, you can control how and when money passes—and to whom. Like many others, Philip Seymour Hoffman was legitimately concerned about how their inheritance would impact his children—but unfortunately, the lesson of his will is that he did not do all he could have to increase the positive and minimize the negative impact of his wealth on his children.

Jason Smolen and Dan Ruttenberg can assist you with your estate planning questions and concerns. Please contact SmolenPlevy at 703-790-1900.

For more insights and developments in the law, please read SmolenPlevy’s quarterly Report from Counsel.

Estate Planning: Lessons Learned from the Deaths of Mickey Rooney & Casey Kasem

Jason D. Smolen

Casey Kasem was the iconic voice of American Top 40. Mickey Rooney was a celebrated actor. But as they aged, the news became about their medical, financial and legal end-of-life issues. For Kasem, it was the battle between his children and their stepmother over his care as he suffered from Lewy Body dementia. For Rooney, it was claims of elder abuse against a stepchild, a will that disinherited his children and estranged wife, and a modest $18,000 estate upon his death, despite his 80-year career.

“These cases demonstrate the problems that can occur regardless of whether you’re a celebrity or not,” said SmolenPlevy co-founding Principal and estate planning attorney Jason Smolen. “ The key is to plan so none of your family has to face these kinds of heartbreaking situations.”

Smolen said conflicts can erupt between spouses from second (or subsequent) marriages and children from prior marriages. They can also occur between siblings, especially when one child primarily cares for an ill parent and the others are less involved. In Mickey Rooney’ s case, it was reported that the actor claimed he lost most of his fortune because of elder abuse and financial mismanagement by one of his stepsons. Rooney executed a new will just before he died in which he left the little he had to another stepchild.

“Wills can be considered political statements,” said Smolen. “ If the reports are accurate, Rooney’ s is especially so.” Smolen opined that Rooney may have been sending a message to his ex and his children: They didn’t take care of him, so he cut them out. However, the more important and potentially divisive issue is the decision as to who will serve as caretakers for aging parents.

Smolen said the Rooney case highlights the need to confront these issues early. If one child is going to be the primary caretaker, the decision has to be made as to which child. How much will that child be allowed to spend of the parent’ s assets—and will that access cause issues with the other children? For instance, if the caretaker takes the parent to dine out often, and uses the parent’s money to pay for the meals, will that become an issue that will cause problems with the other children?

Smolen said the Rooney situation also points out the need to update wills, trusts and estate documents. At SmolenPlevy, absent a significant change in the law or a client’s request, the attorneys review clients’ documents with them every three years. Sometimes changes need to be made repeatedly. After all, Rooney was married eight times, divorced seven and separated from his current wife when he died. Each change in marital status should have resulted in changes in beneficiary designations and potentially trustees, and the execution of new advanced health directives and guardianship designations. While Rooney’ s case is extreme, everyone should have and maintain up-to-date estate plans.

Read more articles from SmolenPlevy’s summer 2014 Report from Counsel