fbpx

Draft Legislation Proposed to Permit Mobile Notarization

Recognizing the legal challenges that the COVID-19 pandemic presents, four sections of the North Carolina Bar Association (Estate Planning & Fiduciary Law, Elder & Special Needs Law, Litigation, and Real Property) collaborated to draft and propose legislation that would enable remote witnessing/notarization and execution during the current North Carolina state of emergency. 

This past weekend, draft legislation was submitted to legislative leaders. The legislation, if enacted, will make it possible for clients to execute key legal documents remotely during the current state of emergency, while also limiting potential exposure for witnesses, notaries, and attorneys. It is critical to the legal system and the needs of clients that estate planning processes and the execution of other instruments that occur during this pandemic are and will remain valid.

If you or a loved one needs to update your estate planning documents, you can still schedule a virtual consultation by calling 704-755-5254, and stay tuned for further updates regarding this legislation. 

In December 2019, the Setting Every Community Up for Retirement Enhancement (SECURE) Act, a bipartisan retirement bill passed that includes many bi-partisan reforms that increase access to workplace plans and expand retirement savings. The retirement legislation expands opportunities for individuals to increase their retirement and estate planning plans, including policy changes on defined contribution (DC) plans, defined benefit (DB) plans, individual retirement accounts (IRAs) and 529 plans.

Estate Planning with IRA Trusts for Minors

IRA accounts or employer sponsored retirement plans, such as a 401(k) are generally considered non-probate assets (not normally covered by a will) but instead are passed directly to a beneficiary according to the beneficiary designation forms that are completed upon account opening. When the intended beneficiary is a minor, IRA monies generally cannot be inherited outright, so individuals frequently pick between naming a custodian for a child who would inherit the IRA, or alternatively, by creating a trust for the benefit of the minor, where the trust is the beneficiary of the IRA.

IRA Protection Trusts and Stretch Trusts

For individuals who opt for the latter and name a trust as the beneficiary of an IRA, a frequent estate planning strategy for individuals who do not need the IRA balances for their own retirement but want to contribute the balance to set up a long-term tax-advantaged strategy for their heirs is to set up an IRA Protection Trust or IRA Stretch Trust.

Generally, an IRA Protection Trust or IRA Stretch Trust enables the trust to take advantage of favorable IRS minimum-distribution rules by “stretching out” the payments of those monies over a beneficiary’s lifetime while also protecting the money from spendthrifts, creditors and even divorce.

Impact on Long-Term Estate Planning

Before the SECURE Act, the required minimum distribution (RMD) rules allowed non-spouse beneficiaries to gradually draw down an IRA inherited from, e.g., a grandparent, over the beneficiary’s IRS-defined life expectancy. However, the SECURE Act now requires most non-spouse IRA and retirement plan beneficiaries to drain inherited accounts within 10 years after the account owner’s death.

This can mean big changes for individuals who have set up estate plans that include tax-advantaged IRA Protection Trusts.

Depending on how an IRA Protection Trust is structured and who the beneficiary is, stricter rules under the SECURE Act for post-death required minimum distributions may limit the benefits of such tax-advantaged estate plans.

The tax-advantaged estate strategy may require changes to an estate plan for relatives other than parents who leave IRA Trusts to minors. For individuals who inherit an IRA from an account owner who passes away after December 31, 2019, fewer beneficiaries will be able to extend distributions from the inherited IRA over the course of their lifetime. Instead, many beneficiaries will now need to withdraw all IRA monies within 10 years following the death of the original IRA account holder. The SECURE Act does maintain certain exceptions to the 10-year distribution requirement, e.g., for assets left to a surviving spouse, minor children, a disabled or chronically ill individual, and beneficiaries who are less than 10 years younger than the decedent. 

However, the changes from SECURE Act are extensive enough to consider revisiting an estate planning strategy to ensure that long term IRA Stretch trust goals are still consistent with new regulations.

 

If you would like to schedule an initial consult for your estate planning needs, call 704-755-5254 or email at info@acslawnc.com.

One year ago today, Stan Lee, the co-creator of superheroes like Spiderman, Iron Man, and the X-Men, passed away.

Mr. Lee reportedly left and estate valued at more than $50 million.  Prior to Mr. Lee’s death, reports also circulated of possible elder abuse, from Mr. Lee’s 67-year-old daughter spending $20,000 to $40,000 a month on credit cards and demanding changes to a trust set up for her benefit, to caregivers using their position of trust to gain access to Mr. Lee’s money. Now, a year later, she has filed an intellectual property lawsuitin a California federal court as the trustee for the Lee Family Survivor’s Trust against POW! Entertainment.

Often, celebrity deaths can shed light on important estate planning lessons. Mr. Lee lived to be 95. Increasing numbers of people are also living into their 80s, 90s and 100s, yet many elders may not have the mental or physical faculties to manage their financial affairs during these later years. Even for those who do not have to worry about family fights or estate taxes, estate plans can still serve a valuable purpose in avoiding probate and ensuring privacy.

Additionally, estate planning frequently focuses on the details of wealth distribution upon death but not other vital considerations, such as aging and late-life planning.  Fortunately, however, prudent individuals can take steps to plan ahead, such as:
  • Consolidate financial accounts.  Shifting assets into fewer accounts can simplify a loved one’s balance sheet that and make finances easier to manage.
  • Consider a revocable living trust.  Wills protect individuals only after they have passed away, not while they are alive.  Individuals who put assets into a revocable living trust during their lifetime can gain valuable financial assistance as one ages.
  • Choose Qualified Trustees.   Prior to Mr. Lee’s death, Mr. Lee and his attorney filed a declaration in a Los Angeles court stating that certain caregivers and acquaintances were attempting to “gain control over [Mr. Lee’s] assets, property and money.” Clients are frequently inclined to choose those closest to them as trustees, but that is often not the best approach. Even if the designated person is honest and reliable, the duties of a trustee are complex and demanding. Professional advisors or even institutional trustees are often a better alternative, especially for high-net-worth individuals.
  • Consider drafting a healthcare power of attorney or advance health directive.  Very rarely can families and loved ones predict incapacity. However, putting protections in writing can provide family members and health care professionals with valuable guidance and clarity regarding your wishes in the event of mental or physical incapacity.
  • Remember to Update Your Estate Plan. An estate plan is a living document and should be frequently reviewed and updated.  Consider revisiting estate plans after major life changes, such as marriage, divorce, having a child, buying property, or even on birthdays ending in 0 or 5.

 

If you would like to schedule an initial consult for your estate planning needs, call 704-755-5254 or email at info@acslawnc.com.

Estate planning is a commonly-overlooked piece of firearms safety. One of the greatest risks of personally owning firearms regulated by the National Firearms Act (NFA) is the legal restriction prohibiting anyone from handling your firearm(s) outside your presence.

Under the legal doctrine of constructive possession, third parties cannot even access to your NFA firearms outside your presence. Practically speaking, if anything happens to you, this means that neither a court-appointed estate administrator or even your spouse would be allowed to access your firearms safe.

As a means of avoiding unintentional liability, gun trusts can be useful, lawful transfer mechanisms for those firearms regulated by the National Firearms Act and Title II of the Gun Control Act.

Firearms regulated under the NFA include:

(1) a shotgun having a barrel or barrels of less than 18 inches in length;

(2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;

(3) a rifle having a barrel or barrels of less than 16 inches in length;

(4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;

(5) any other weapon, as defined in subsection (e);

(6) a machine gun;

(7) silencers; and

(8) a destructive device.

26 U.S.C. 5845; 27 CFR 479.11

Firearms that do not belong to that class of weapons may not necessitate a firearms trust. However, transfer of firearm ownership can still raise legal issues.

A NFA trust (also known as a gun trust, ATF trust, Title II trust, or Class 3 trust) creates a fiduciary relationship for gun-owning trustors to give a trustee the right to hold assets on behalf of one or more beneficiaries. Such trusts not only allow owners of NFA-regulated firearms to avoid some federal transfer obligations that would otherwise be imposed on an individual, but also like other trusts, it creates an estate planning mechanism for inheriting firearms.

briefcase

Who takes possession of firearms after you die?

Prudent firearm owners and estate administrators alike should consider who can (or will have) access to a decedent’s firearms not just during the gun owner’s life but also after their death. Estate administrators have a responsibility to secure weapons and mitigate liability of transferring possession of a firearm to a person unlawfully, to avoid unintentional violations of federal and state laws.

Prudent firearm owners should consider:

  • Are your firearm(s) regulated by the National Firearms Act and Title II of the Gun Control Act, which limits the transfer of gun ownership?
  • Will your firearm(s) pass to a minor child in will or by other operation of law?
  • Have you relocated or do you intend to relocate to another state?
  • Will your firearm(s) pass to an heir living outside your state?
  • Is your executor or estate personal representative a felon or may otherwise be disqualified from possessing a firearm?
  • Are your heirs a felon or otherwise be disqualified from possessing a firearm?

Generic estate planning typically found online are generally not designed the specific needs of firearms owners offer insufficient protection of your privacy, safety, or control over firearms.

If you are a firearms owner in need of estate planning or are administering an estate that contains firearms, consider speaking with an attorney to review your estate planning and administration needs, so you can protect yourself and your family from unintended consequences in the future.

 

 

If you would like to schedule an initial consult for your estate planning needs, call 704-755-5254 or email at info@acslawnc.com.