What is a Trust Protector and When Do You Need a Trust Protector?
If you know anything about trusts, you have likely heard of the roles of settlor (aka grantor), beneficiary, and trustee. But there’s another role to know about: the trust protector.
Let’s look at what a trust protector is, who can be a trust protector, and the advantages and disadvantages of appointing one for your trust.
What is a Trust Protector and What Does a Trust Protector Do?
A trust protector, or simply “protector,” is an individual or entity whose primary role is to ensure the trust is being carried out in accordance with the settlor’s original wishes. Trust protectors were most commonly seen in asset-protecting offshore trusts in the 1980s and 1990s, but they have since become more popular for all kinds of trusts in the U.S. and many other nations.
What does a trust protector protect against? Depending on the circumstances, the trust protector may protect the trust from various threats or risks including trustee misconduct, mismanagement, or incapacity; disputes among beneficiaries and/or trustee(s); changing laws that adversely affect the trust; ill-advised financial decisions; and more.
Common powers and responsibilities may allow a trust protector to:
- Oversee trust administration to ensure it’s in compliance with applicable laws and with the settlor’s wishes
- Require trustee to get trust protector’s consent before taking certain actions such as investing or distributing funds
- Modify the trustee’s powers
- Remove or replace trustees
- Change the beneficiary or beneficiaries
- Adjust as needed in response to changing circumstances
A trust protector may have all or some of the powers listed above, and more. The exact powers and responsibilities are enumerated either in the trust instrument itself or in a separate document.
Who Can Be a Trust Protector?
In theory, anyone of legal age who is mentally competent can be appointed trust protector, other than a trustee. Even the settlor/grantor may serve as the trust protector (and often does). Entities such as banks, law firms, and corporations may also serve as trust protectors.
In practice, it can be challenging to find the right individual or entity to effectively fill the role. The ideal candidate should have the right experience and knowledge, including knowing relevant state and federal laws, tax and reporting requirements, and the trustee’s powers and responsibilities, for a start. A trust protector should also be an impartial third party with no conflict of interest, meaning the individual or entity should not have any financial stake in the trust or how it’s handled.
Above all, a trust protector should be someone the settlor can rely on to carry out their wishes, which is why settlors often select a family friend or close acquaintance whom they trust implicitly.
Does Every Trust Need a Trust Protector? Advantages of Appointing a Trust Protector
No, not every trust needs one, but we strongly recommend a trust protector in the following situations:
- A troubled beneficiary. If the beneficiary has issues with drugs, alcohol, or excessive spending, a trust protector – such as a family friend or counselor – can be helpful in finding the right trustee to handle the trust. The two can work together to ensure the trust is not misused.
- Specific investments. A grantor may wish to appoint a trust protector to help direct the investment of trust assets in a particular “family way” that the trustee might not be familiar with.
Outside of these specific circumstances, here are just some of the main advantages of having a trust protector that any trust can benefit from:
Flexibility to respond to changing circumstances. Changes in family/beneficiary situations, tax code, and estate planning laws can adversely affect a trust. Trust protectors have powers trustees don’t (and legally cannot) have that allow them to alter the trust in response to new circumstances. This can reduce tax liabilities and ensure the trust reflects the settlor’s wishes long after the settlor is gone.
Oversight over the trustee. Trust protectors can also serve as an additional layer of protection against mismanagement by the trustee(s). This is more important than ever, as the powers of trustees have grown over time. Oversight by a third party (the trust protector) can help prevent intentional or unintentional mishandling by the trustee(s) that can harm the beneficiaries’ interests and endanger the trust.
Conflict resolution. Trust protectors can also act as informal mediators when disputes arise. Beneficiaries may fight among themselves, and trustees and beneficiaries often have competing goals, which can lead to strife and litigation. (Read about how one such conflict ended up in the SC Court of Appeals here on our blog.) A skilled trust protector can step in at the first signs of conflict and resolve the matter amicably, potentially avoiding litigation and strained relationships.
Depending on your circumstances and goals, you may gain additional advantages by appointing a trust protector for your trust. This is something to speak with your estate planning attorney about.
What if you didn’t appoint a trust protector in the original trust document? That’s not a problem. A settlor can add a trust protector later.
Downsides of Having a Trust Protector
What are the risks and disadvantages of having a trust protector? Some possible downsides include:
Higher fees. Not all trust protectors are compensated for their role, but some are. Trust protectors who are fiduciaries (with a fiduciary duty to the beneficiary or beneficiaries) are typically compensated. Depending on the terms of the trust, having a trust protector can be expensive and can diminish the trust’s assets.
Potential for challenges. Trusts have been around for centuries, and by now the roles and responsibilities of the grantor/settlor, trustee, and beneficiary are clear. But the role of trust protector is relatively new, and relevant case law in South Carolina is sparse. The potential for lawsuits and legal challenges over a trust protector’s actions shouldn’t be ignored.
Needless complexity. A trust protector may end up bringing conflict, indecision, or poor judgment to the situation. This is why it’s crucial to take the time to select the right trust protector. No trust protector at all is better than an ineffective and incompetent one.
For Help with Trusts and Estate Planning, Call the Gem McDowell Law Group
Trusts are excellent instruments for estate planning, but they can be complex. For help creating or amending a trust, or for advice on appointing a trust protector for your trust, talk with Gem McDowell. Gem helps individuals and families in South Carolina create estate plans tailored to their unique circumstances and wishes. He’s also a problem solver who can help you tackle tricky family or inheritance situations and avoid mistakes.
Call Gem and his team at their Myrtle Beach or Mount Pleasant, SC office today to schedule your free, no-obligation consultation at (843) 284-1021, or reach out to us through this form.
What Is HEMS and What Does it Mean for Trustees?
HEMS is an acronym that stands for Health, Education, Maintenance, and Support. It’s commonly used in trusts as a way to guide and restrict the kinds of distributions that a trustee can make to a beneficiary.
Purpose and Benefits of HEMS
There are a few reasons for and benefits of HEMS.
For one, adhering to the “ascertainable standard” of HEMS can be vital for protecting the trust’s assets. For example, say a wife creates a testamentary trust that names her spouse both beneficiary and trustee upon her death. The trust may limit distributions of the assets to HEMS, which is an ascertainable standard recognized by the IRS. If the husband takes distributions that fall under one of these categories, the assets of the trust are not considered to be part of his personal estate – they belong to the trust, a separate entity – and are therefore protected from certain taxes. For this same reason, a creditor coming after the husband cannot access the trust’s assets to pay the husband’s debts.
Another benefit has to do with the trustee-beneficiary relationship, when it’s not the same person in both roles. It’s common for a beneficiary to want to draw more money from the trust while the trustee’s goal is to keep the trust as intact as possible. The HEMS standard serves to restrict the trustee from making distributions that can unnecessarily diminish the trust, while providing appropriate support for the beneficiary. By including this language in the trust, a grantor can prevent the beneficiary from having unlimited access to the trust’s assets.
Or, it can work the other way. Say that same couple from above has a trust that remains in the spouse’s control as trustee and beneficiary during his lifetime, and after his death passes to the couple’s children as beneficiaries. In this case, it’s the children who are motivated to ensure the trust remains as intact as possible. It’s in their best interest to ensure their father is adhering to the HEMS standard with the distributions he takes for himself as trustee and beneficiary.
Finally, the HEMS standard provides valuable guidance to trustees, whether they are also a beneficiary or not. By understanding what’s included under the umbrella of health, education, maintenance, and support, a trustee can better determine what distributions to make from the trust’s assets.
Examples of HEMS
Health, Education, Maintenance and Support are rather broad categories, but what do they include, exactly? The exact items included can vary by state, but here are examples of HEMS that are commonly included.
Examples of Health
Some basic examples in the Health category include:
- Routine health care
- Hospital care
- Emergency medical treatment
- Psychiatric or psychological care
- Prescription drugs
- Dental
- Vision
The following may also be considered included in this category:
- Elective procedures like LASIK or cosmetic surgery
- Alternative medicine treatments
- Gym, sports club, or spa memberships
- Health supplements
Examples of Education
This category commonly includes:
- Tuition for all levels of schooling from grammar to graduate, professional, or technical school or training
- Continuing education expenses
- Expenses for school-related programs, such as Study Abroad in college
- Support during schooling years, even during summers and other breaks
Examples of Maintenance and Support
“Maintenance” and “support” are one and the same. Commonly included in this category:
- Mortgage or rent payments
- Property taxes
- Premiums for health, life, and property insurance
- Travel and vacation expenses
- Charitable giving
This category is the least clearly defined. It’s typically interpreted to include distributions that help maintain the beneficiary’s standard of living. Distributions to cover expenses that are solely for the beneficiary’s happiness rather than support do not fall under this category.
For example, say our couple from above typically takes a two-week vacation to the Rockies each year. After the wife dies and her husband controls the trust, a distribution to cover this annual vacation would fall under this category. A distribution to cover a four-month, ‘round-the-world luxury cruise would not. That’s because such a vacation would be beyond his typical standard of living.
However, depending on the trust, the trustee may have some discretion to make distributions for just such an unusual vacation or other luxury that would be outside the beneficiary’s established standard of living.
Use of HEMS
Grantors can include general language regarding HEMS or they can be more prescriptive and precise about how they’d like the trust’s assets used. For instance, a grantor may specify that trust money can be used to pay for college but not for graduate school. Or that the beneficiary must use other sources of funds, if available, to pay property taxes or rent before accessing the trust’s money. The grantor has a large degree of control when directing how the trust’s funds can be used.
Not all trusts contain language relating to HEMS; it depends on the particulars and purpose of the trust. Whether or not it’s appropriate in your estate plan is something to discuss with an estate planning attorney.
Get Help with Trusts and Estate Planning
The HEMS standard is just one commonly used tool grantors have to direct how a trust’s assets are distributed. Trusts are powerful documents that can be a cornerstone of an estate plan. For help creating a trust, or other estate planning documents like wills, living wills, and POAs, contact the Gem McDowell Law Group. Gem and his associates will help you create the personalized plan you need so your family is cared for and your wishes are carried out. Whether you have documents that need review or updating, or it’s your first time doing estate planning for your family, Gem and his team can help. Call 843-284-1021 today to schedule a free consultation or to book an appointment at the Mount Pleasant office.
Why You Don’t Want to Be a Trustee
I once saw a bumper sticker on a car that said “Smile. You Could Be a Trustee.” I thought it was great because it’s true.
Being a trustee can be a challenging, and often litigious, job. In estate planning, the role may fall to a family member or trusted friend who is typically not well versed in the law but who must now navigate the complexities of the trust’s provisions in service of the grantor’s wishes. I’ve seen many trustees become mired in litigation as they battle to follow the trust’s provisions while keeping the beneficiaries happy.
Still, if you are a current or prospective trustee, you may be willing to put up with all that. You may also believe that you can’t be held personally liable for any mistakes made in your role as trustee. Right?
Wrong. Today I want to look at a case from the South Carolina Court of Appeals, filed in April 2019, in some detail. It covers this exact topic and is a warning to any trustee out there that when he/she takes on the role, he/she is at risk.
The Background of Deborah Dereede Living Trust v. Karp
Eight months before she died, Deborah Dereede executed a revocable trust naming herself as trustee and her daughter, Courtney Feely Karp, as successor trustee. The only asset in the trust was Dereede’s home in Lake Wylie, SC, which Karp sold several months after her death, netting $356,242.86.
People with interest in the sale included Karp’s stepfather, Hugh Dereede (Hugh), and his company, Tyre Dealer Network Consultants, Inc. (Tyre).
An important provision in the trust essentially said the following:
- After Dereede’s death, sell the house “as soon as practicable”
- Proceeds from the sale should be distributed in this manner:
- First, pay off the mortgage
- Then pay off the promissory note to Tyre, which is currently $250,000
- Then half of remaining net sale to Hugh
- Finally, the remainder to the following Articles…
The Disagreement
The disagreement that took Karp to court stemmed from that provision.
After the house was sold, Hugh demanded immediate payment to himself and to Tyre, in accordance with the trust’s provision.
But Karp didn’t pay him immediately. She was also the personal representative for her mother’s estate, and she believed she could not yet distribute proceeds. She wanted to be sure of the net assets of the trust and estate and give time for creditors’ claims, if any.
Hugh filed action in probate court for declaratory judgment for immediate payment. Hugh and Karp battled over the issue but Karp still refused to pay and also claimed that by suing her, Hugh and Tyre had triggered the no-contest clause and were therefore giving up their claim to the money owed them. (Incidentally, if Hugh and Tyre did forfeit that money, it would instead go to Karp and her siblings.)
Enter the Trust Protector
After ten months of litigation, Karp appointed Catherine H. Kennedy as trust protector. A trust protector is someone who watches over the trustee as the trustee watches over the trust. In some cases, it may be an individual who actually knew the grantor (the person who set up the trust), while the trustee did not (if, for example, the trustee is a bank).
If the protector believes the trustee is not doing their job or is engaged in misconduct, they can terminate the trustee. Depending on the trust, the protector may have different powers, but this is the essential one. The role actually has its origins in offshore trusts but has become more popular in domestic trusts in recent years.
As trust protector, Kennedy reviewed Karp’s actions and determined that Karp was justified in waiting for creditors’ claims before disbursement. She further said that issues regarding the no-contest clause – whether Karp exercised good faith in bringing it up, and whether Hugh and Tyre had probable cause – should be decided by a court.
Bench Trial
After a bench trial, the court ruled that:
- Karp had breached her fiduciary trust by not distributing the proceeds of the house sale to Hugh and Tyre in a timely manner
- Hugh did have probable cause to bring the action and therefore the no-contest clause was not invoked
- Tyre was a creditor, so the no-contest clause wouldn’t have applied anyway
- Tyre and Hugh were entitled to attorneys’ fees and costs, payable by Karp
Karp appealed and the case went to the South Carolina Court of Appeals. (Read its decision here.)
Good Faith Isn’t Enough to Protect a Trustee
South Carolina Trust Code says that a trustee “shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries…” A breach of trust is “violation by a trustee of a duty the trustee owes to a beneficiary…”
Karp stated that she wanted to wait until she was certain of the net assets of the trust and estate before making disbursements. The Court of Appeals states that such a delay is “common” and “often required” in the probate of an estate, but rules are different for trusts. Also noted is that if Karp had followed the trust exactly and made the distributions quickly, she would have risked no personal liability.
Though Karp’s actions were understandable and appeared to have been done in good faith, she was nevertheless found in breach of trust. The Court of Appeals says “There is no evidence Karp acted in bad faith” and goes on to cite a District Court case, saying that good faith “counts for nothing” when it comes to breach of trust.
Ultimately, the Court of Appeals affirmed the lower court’s decision and found that Karp was personally liable, as well as liable in her capacity as trustee. “Although Karp acted in good faith, a trustee is nevertheless personally liable for breach of trust.”
Additionally, the Court of Appeals affirmed the lower court’s finding that Hugh did have probable cause, therefore the no-contest clause did not come into effect.
Think Twice Before Becoming a Trustee
If you are already a trustee, or if someone has asked you to be a trustee, consider the responsibility – and the liability – of the role. It’s easy to believe that you’re doing someone a favor and that if you’re doing your best, you can’t get into trouble. As you’ve seen illustrated in the case above, that’s not true. As a trustee, you can be held personally liable – meaning money can come out of your pocket – for your actions with respect to the trust, even if everything you do is in good faith and the courts recognize that.
For questions on creating a trust, managing a trust, or other issues of estate planning, contact estate planning attorney Gem McDowell. He and his associates at the Gem McDowell Law Group in Mt. Pleasant, SC work with many individuals and families to create estate plans to provide peace of mind. Call today to schedule a free consultation at 843-284-1021.
The #1 Mistake People Make With Trusts
Trusts are wonderful tools for financial planning and estate planning. There are many, many kinds of trusts, each with its own purpose, pros, and cons. Trusts may be used to, among other things, avoid certain taxes, avoid probate, leave specific assets to an individual or organization, or pay for life insurance.
However, it doesn’t matter what kind of trust it is when it comes to the biggest mistake we see people make with trusts. That mistake: not putting anything into the trust.
The Basics Of Trusts
This can happen when people don’t understand what a trust fundamentally is.
A “trust” is an arrangement between three parties where the “trustor” (also called a “trustmaker,” “grantee,” or “settlor”) gives ownership of certain assets to a “trustee” for the benefit of a “beneficiary.” (Note that there may be more than one trustee and/or more than one beneficiary, according to the terms of the trust.)
The key point here is that the trustor gives up ownership of assets that go into the trust. This does not happen automatically upon signing the documents that create trust. The trustor must do it separately. Ideally, the estate planning attorney who draws up the trust will provide explicit instructions on what to do next and how to transfer assets, but that doesn’t always happen.
To transfer assets into the trust, the trustor signs over the deed of their house, title of their car, stocks and bonds, bank accounts, and any other selected assets to the trust. Which assets go in the trust depend on what the objective of the trust is. If the purpose is to avoid probate, then everything should go in the trust. If the purpose is to provide some money for the grandchildren over several years, for example, a selection of securities might be enough.
What Can Go Wrong
If someone does make this mistake, and fails to transfer ownership of assets from themselves to the trust they created, it can and likely will cause unintended consequences.
Imagine an adult child whose father said he had created a trust in order to avoid probate. Upon the father’s death, the child discovers that the trust was never funded. Everything is still owned in the father’s name at the time of his passing. Now the estate will pass through probate and, depending on the size of the estate, may be subject to estate taxes that could have been avoided. This is just one example, but there are many other ways an unfunded trust can cause unexpected problems.
Avoid This Mistake and Others With Guidance From Experienced Attorneys
Trusts are complex. For help creating trusts and understanding how they fit into your overall estate plan, call Gem McDowell Law Group. Gem is an estate planning and business attorney with over 20 years of experience helping individuals and families plan for the future. Contact Gem at the Mt. Pleasant office at (843) 284-1021 or use this contact form to get in touch and schedule a consultation today.
Clearing Up Confusion About Probate in South Carolina
Updated 11/27/2022
For some people, “probate” is a dirty word. Much of this attitude comes from not understanding the process, so let’s clear up the confusion.
What Probate Is and What Probate Isn’t
There are some myths out there about probate, so here’s what it’s not: Probate is not a way for the government to take the estate of someone who dies without a will. Probate is not a way to avoid any applicable estate taxes. Probate does not take many years (except in rare cases).
Probate is simply a process, overseen by the court, in which a person’s estate is settled. It’s a way for ownership of assets to be transferred from the decedent to other people and for final taxes and debts to be paid.
For an estate to go through probate, no estate planning is required. A person’s estate can pass through probate whether they died without a will or with one, as long as it has assets that are subject to the process.
For an estate to avoid probate, the deceased must own no assets subject to probate at the time of death. A common way to do this is to put all those assets in a living trust (an inter vivos trust), which stays in someone’s name and control during their lifetime and immediately passes to the named successor trustee upon death. The assets owned by the trust are not subject to probate.
What’s subject to probate and what’s not?
Assets subject to probate in SC include:
- Real estate held as a tenant in common
- Property owned solely in the deceased’s name
- Interest in a partnership, corporation, or LLC
Assets not subject to probate in SC include:
- Real estate held as a joint tenancy with right of surviorship
- Retirement accounts with named beneficiary
- Insurance accounts with named beneficiary
- Pension plan distributions
- Assets held in a trust
- Assets that are payable-on-death or transfer-on-death
Now that we know what probate is and isn’t, let’s look at the process.
The Probate Process in South Carolina
The probate process consists of a series of steps:
1. Deliver the will at death. Someone in possession of the deceased’s will must deliver it within 30 days to the judge of the probate court, or to the personal representative named in the will, who will then deliver it to the judge.
2. Personal representative is appointed. This person is typically named in the will and is officially appointed by the court.
3. Notice to intestate heirs is sent. Heirs can contest if they aren’t named or are treated differently.
4. Inventory and appraisement of the estate. This must be filed within 90 days of the opening of the estate. Professional appraisers may be needed to provide the values at the date of death for assets like homes, art, and jewelry.
5. Final accounting. This involves paying applicable taxes, outstanding debts, and ongoing expenses while settling the estate, such as legal and accounting fees. If there’s not enough money in the estate to pay all debts owed, creditors will be paid in order of priority according to South Carolina code (as described in Section 62-3-805).
6. Disbursements. If there’s money left over after debts and taxes are paid, distributions may finally be made to the heirs according to the will, or, if there is no will, according to the state.
7. Close the estate. The personal representative files a number of documents with the court after the above steps have been completed, and the estate is finally closed when the court issues a Certificate of Discharge.
Probate Fees in South Carolina
An estate going through probate is subject to probate fees as laid out in South Carolina Code Section 8-21-770. Fees are based on the gross value of the decedent’s probate estate and are set/calculated as follows:
| Gross Value of Probate Estate | Fees |
| Less than $5,000 | $25.00 |
| $5,000-$20,000 | $45.00 |
| $20,000.00-$60,000 | $67.50 |
| $60,000.00-$100,000.00 | $95.00 |
| $100,000.00-$600,000.00 | $95.00 plus 0.15% of the property valuation between $100,000 and $600,000 |
| $600,000 or higher | $95.00 plus 0.15% of the property valuation between $100,000 and $600,000 plus ¼ of 1% (0.25%) of property valuation above $600,000
= $845 plus ¼ of 1% (0.25%) of property valuation above $600,000 |
Here’s a table with sample probate fees calculated based on the value of the estate:
| Gross Value of Probate Estate | Fees |
| $150,000 | $170.00
$95.00+(0.0015*($150,000-$100,000)) = $95.00+$75.00 = $170.00 |
| $300,000 | $395.00
$95.00+(0.0015*($300,000-$100,000)) = $95.00+$300.00 = $395.00 |
| $500,000 | $695.00
$95.00+(0.0015*($500,000-$100,000)) = $95.00+$600.00 = $695.00 |
| $750,000 | $1,220.00
$845+(0.0025*($750,000-$600,000)) = $845+$375 = $1,220 |
| $1,000,000.00 | $1,845.00
$845+(0.0025*($1,000,000-$600,000)) = $845+$1,000 = $1,845 |
| $3,000,000 | $6,845.00
$845+(0.0025*($3,000,000-$600,000)) = $845+$6,000 = $6,845 |
| $10,000,000 | $24,345.00
$845+(0.0025*($10,000,000-$600,000)) = $845+$23,500 = $24,345 |
How Long Does Probate Take in South Carolina?
How long it takes an estate to go through the probate process depends on a number of things, including:
- Whether the deceased had a valid will or not
- How large and complex the estate is
- Whether the will is contested
- Whether lawsuits are filed
- How efficient the personal representative is
Under good conditions, a relatively simple estate can take approximately a year from open to close. More complex cases will take longer.
(Note that “small estates,” which contain no real property and total less than $25,000 in value, may qualify for a summary administrative procedure, a quicker and cheaper process than the regular probate process. A small estate can be settled in a matter of a few days or weeks.)
Is It a Good Idea to Avoid Probate?
Now that you know more about probate in South Carolina, you may be wondering whether it’s smart to approach estate planning with the intent of avoiding probate altogether. There are many things to consider, so that’s the subject of the next blog.
For help with your estate plan, contact Gem McDowell Law Group in Mount Pleasant. Contact Gem today at (843) 284-1021 to set up a consultation.
The Unintended Consequences of Bad Estate Planning
We always advise people to get estate planning done. If you don’t decide what will happen to your assets upon your death, the state will decide for you.
But sometimes, despite best intentions, an estate plan turns out to cause unforeseen problems. That can happen with bad planning, which is sometimes worse than no planning at all. To illustrate this point, let me tell you a story.
What John & Nancy Planned For
Imagine a man named John in the following situation. John’s wife of 50 years, Nancy, recently died. John and Nancy thought they were being smart when they got estate planning done many years ago – and they were. But it turned out to be bad planning, because it didn’t take into account the fact that laws, people, and family dynamics change over time.
When Nancy and John sat down and talked about what they wanted to happen to her estate when she died, they agreed that she would split the estate up: part of her assets would go to their children, and part would go to her husband.
First you need to know that the government allows an unlimited amount of assets to be left to a spouse tax-free upon death. But the government doesn’t allow you to leave an unlimited amount tax-free to heirs or anybody else. The amount it allows you to leave tax-free is called the “applicable exclusion amount” (formerly called the “unified credit”).
So together Nancy and John decided that they would create a trust, and into that trust would go the full amount of money up to the amount of the applicable exclusion amount, so that her children could get that money and not have to pay taxes on it. The key is that here, she didn’t specify the exact dollar amount to go into the trust, she only said that the trust was to be filled to the point of whatever the current exclusion amount was. Her husband was named as trustee to control the trust during his lifetime, and the full value of the trust would go to the children upon his death.
What was left over from her estate after the trust was “filled up” would go to John. No matter what amount that was, it would be tax-free, because they were married.
So far so good. This kind of estate planning is pretty common, and it’s a smart way to maximize the amount of money you pass on to future generations while reducing the amount of taxes paid to the government. It works out well – but not all time.
When John and Nancy made this plan, it seemed great. The applicable exclusion amount at that time was $600,000, which was the limit for many years. Her estate was worth a total of $2 million, so during the planning phase, they expected that upon her death, $600,000 would go into the trust for the children, of which John would be the trustee. The other $1.4 million would go straight to John, including her half of the house they owned together.
Had she died soon after completing the plan, it would have worked out just the way they intended. But that didn’t happen.
What John & Nancy Got Instead
By the time Nancy died in early 2015, the applicable exclusion amount was not $600,000, but $5.43 million – a much larger amount. The full value of her estate went into the trust for the children, and her husband got nothing free and clear. Not even the house.
This was not what Nancy intended. Because of bad planning, everyone is in a difficult situation. Not only are they dealing with the grief of having lost their mother and wife, the family members now have to deal with the consequences of the faulty estate planning.
As the trustee of a trust that will go to the kids upon his death, the wishes of the father are now at direct odds with the wishes of the children. John, who had no substantial assets of his own and was counting on having some of his wife’s estate when she died (which is exactly what they thought was going to happen), wants money from the trust to live on. The kids want the trust to stay as it is, so they get the full value amount upon John’s death.
John has some limited access to the assets of the trust during his lifetime. That is, he can get his hands on some of the money, but not all of it. He’s entitled to the income from that trust during his lifetime; plus a total of 5% of the value of the trust, or $5,000, whichever is greater; plus expenses related to his health, education, maintenance and support (sometimes abbreviated “HEMS”). He would ask the trustee – in this case, himself – for the money to spend on those things. If they were considered legitimate expenses, he could spend it.
But here’s the rub: whether something counts as a legitimate or not varies from person to person. The IRS determines this, and they base that on someone’s standard of living. Donald Trump’s expenses considered “legitimate” would be substantially different from those of someone who makes $30,000 per year and lives very modestly. And if the trustee (John) disagrees with the future beneficiaries (the kids) over what’s legitimate, then they have to go to court.
So if, for example, John says he needs to use money from the trust to go to France for a year because that’s necessary for his maintenance, and the children disagree, they have to sue him.
And if the father wants to sell the house to move somewhere else, he can’t do it easily because it’s not his free and clear – half of the house is in the trust. If he goes ahead and sells the house anyway, it’s likely that his children will sue him.
As you can see, the situation is very complicated and it’s begging for lawsuits.
You don’t want to be in this situation. But how can you avoid it?
Avoid This Situation With Good Estate Planning
Remember that estate planning should be based on you, your unique situation and your family. It should not be based on whatever pre-made forms an attorney has ready. It must be about you.
1. Know that you have options.
Nancy and John could have decided to do something else instead. For example, Nancy could have left everything to John, and he could have used a “disclaimer” to disclaim anything he didn’t want, and that would go into the trust for the children. That’s just one option, but there are others. The point is, you don’t have to go with the first estate planning option presented to you if it’s not what’s best for you and your family.
2. Ask a lot of questions.
You should ask yourself what you want to happen with your estate when you die, and you may include your family in those discussions if you wish. You should ask questions before choosing an attorney to help you draw up these documents. Has he done these kinds of things before? What examples can she give you of the most complicated estate planning she has done?
Ask “what if” questions about the plans you’ve created.
• What if by the time I die, the applicable exclusion amount is $20 million? What if it’s $0? What will happen to my estate and my family then?
• What if my spouse remarries after my death? Will any of my money go to the new spouse’s children?
• What if one of my children does something I disapprove of after I die, do they still inherit a portion of my estate? Can I include something in my will to prevent that from happening?
An attorney experienced in complex estate planning will be able to answer these questions clearly and will be able to pose additional questions you hadn’t thought of.
3. Review your plan periodically with an attorney.
As you’ve seen, family dynamics can be complicated, especially when children from different marriages are in the picture, and things change. The amount excluded from estate tax is not set in stone, but is determined by Congress and therefore can change in any given year. That alone could have a huge impact on how your current estate plan will play out in the real world.
Again, ask questions.
• With the way things are now, will my original intention be honored?
• Has anything significant happened in my situation (births, deaths, estrangements with family members) to affect my original intentions?
• What changes must I make to ensure that my estate is distributed the way I want?
Learn More About Personalized Estate Planning
So what about your estate plan? Is it customized to you? Would it honor your intentions? If the answer is no, or you’re not sure, contact South Carolina attorney Gem McDowell and his associatess at 843-284-1021 to discuss your own estate planning needs.
The 5 Essential Estate Planning Documents
When you come to Gem McDowell Law Group to work on your estate plan, we discuss five documents together: a will, a trust, a living will, a healthcare power of attorney, and a durable financial power of attorney. You may not need them all, but we can figure that out together.
Here’s some information on what each document is, what it can and can’t do, and some things you should consider as you go through the estate planning process.
The Will
A will is a document you create to decide what will happen to your estate when you die. In the state of South Carolina, it must be signed in the presence of a witness and a notary to make it legally binding.
There are a few types of wills, but for people with a relatively small estate, a simple will is a good choice. When we draw up a simple will, we tailor it to each client, but we typically include the following sections in every will:
First, the will states that your mortgage, outstanding bills, and funeral costs are to be paid from your estate. Next, all taxes are to be paid. Unless your estate is worth over $5.34 million (as of 2015), and you want to pass it on to someone other than your spouse, you will not need to pay estate tax.
Next, we’ll authorize you to draft a handwritten memorandum. A handwritten memorandum is a useful document because it allows you to supplement your will anytime afterwards with no notary, no witness, and no attorney’s fees. You can use it to leave certain assets – generally collectible assets, such as a stamp collection – to a particular person. You cannot use it to transfer real estate, cash, or stocks and bonds. Once the handwritten memorandum has been authorized in the will, you can create one later as your wishes change and your estate changes (within limits). Simply write your wish in your own handwriting (e.g., “I, John Doe, wish to leave my ancient coin collection to my son Timothy”), and sign and date it.
Then, we talk about what to do with those large assets like real estate, cash, and stocks and bonds. You may want to leave them to your spouse, if he or she survives you, or you may want to pass them on to your heirs, other relatives, friends, or charitable causes, to name a few possibilities. How you choose to distribute your assets is up to you.
Finally, you name the personal representative (aka “executor”) who will administer the will and carry out your wishes. If you have children who are not yet adults, you will name a guardian, the person who will take physical custody of them when you’re gone. And if you create a trust for some or all of your assets, you will need to appoint a trustee.
The Trust
As with wills, there is more than one kind of trust. A common type of trust used in estate planning is called a testamentary trust, and it becomes effective when the last will becomes effective – at death. It is a convenient way to keep assets in trust for a period of time after your death until they are ready to be distributed. Most often in estate planning, it’s used for leaving assets to children, especially if they are not yet adults. Depending on your situation, you may not need a trust at all.
One common way to handle an estate is to leave everything to your spouse. If your spouse has predeceased you, then everything instead goes to the children.
If you have children, you should consider not giving them their inheritance all at once, particularly if they are very young. At Gem McDowell Law Group, we typically suggest giving three “bites of the apple.” That is, they will receive their inheritance in three separate chunks, spaced several years apart. For example, if you are leaving $3 million to your only daughter, you may decide to have her receive $1 million at age 25, $1 million at age 30, and $1 million at age 35. You may also choose to allow access to the trust money outside of the inheritance for four things: health, education, maintenance, and support.
Trusts are the legal documents that make this type of distribution possible.
The trust is overseen by a trustee, whom you name in your will. If your children are not yet adults you will also name a guardian in your will. The guardian (the person with custody of your children) should generally not be the same person as the trustee (the person with access to the money).
Depending on your unique situation, we can discuss other types of trusts you may want as part of your estate plan.
The Living Will
A living will, also called an advance health care directive, gives you the opportunity to make decisions now about your own health care in the future, should you lose the ability to make decisions for yourself. For example, you can decide now, while you’ve still got the power to make decisions, whether you’d want to continue life support if you were in a persistent vegetative state. In South Carolina, the living will also addresses nutrition and hydration.
Living wills become effective only in cases where one of two things is true:
- You are in a permanent state of unconsciousness and death would occur quickly if life support were removed; or
- You have a terminal illness.
From a legal point of view, neither of those situations is a legal standard – it’s a medical one. To make such a determination, South Carolina requires that the attending physician and another, independent physician both examine you and agree on the state of your health.
This matters because family members may argue over what you really intended.
Imagine a scenario where a woman has been in a car crash and is on life support. Her husband wants to take her off life support, which is what she wished for in her living will. The children don’t want to take her off life support, and threaten to sue if he does. Unless two doctors agree on her state and the living will becomes effective, the husband may not be able to carry out his wife’s wishes.
So while a living will is very important, it has some severe limitations. Because of these limitations, you may also want a healthcare power of attorney.
The Health Care Power of Attorney
A health care power of attorney, abbreviated HPOA or sometimes HCPA, can be considered a “backup” to a living will in a sense. If you don’t have a living will, or it can’t be applied (because one of two conditions above hasn’t been certified by two doctors), then your HPOA can be used instead. Both documents should agree with each other, so that one doesn’t say to end life support while the other says to continue, for instance.
While a living will lets you make the decisions for yourself, an HPOA lets someone else make the decisions for you. But as with a living will, you can make your wishes known. You can tell the agent you appoint that you want maximum treatment or not, that you want to donate your organs or not, or that you consent to tube feeding or not. If you feel better leaving those decisions up to your agent, you may also choose to give them the power to decide at the time of treatment.
The health care power of attorney was drafted by the South Carolina Legislature. It is presented in a Q & A format and asks you to consider different scenarios and to make a decision about what you want to happen. At our law office we have you initial each choice so it’s clear that you chose every selection yourself.
The Durable Financial Power of Attorney
With a health care power of attorney, you appoint an agent and give them the power to make healthcare decisions for you according to your wishes. With a durable financial power of attorney, you appoint an agent and give them the power to make financial decisions for you according to your wishes. Depending on your situation, you may or may not want a durable financial POA.
The Peace of Mind
Estate planning documents are some of the most important documents you’ll ever sign. This is not the time to use a one-size-fits-all form. Call Gem McDowell Law Group at (843) 284-1021 to speak with Gem about your estate planning needs. Once you have a solid estate plan in place, you’ll have peace of mind, knowing that your wishes and your family are taken care of.
