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The 2010 Basis "Step-Up" Rules

With lingering uncertainty as to the economy and the federal estate tax, many clients - and their advisors - are wondering what planning they should do now, if any. No one can predict how quickly we will experience an economic turnaround or whether Congress will act on the estate tax. However, there are many non-tax reasons why clients should plan today, irrespective of the economy or their estate tax. And for those clients who may be subject to estate tax, we know that it is generally better for clients to act now rather than to wait, particularly given our historically low interest rates and some of the structural estate and gift tax changes proposed by the IRS.

This issue of The Wealth Counselor explores some reasons why it is in clients' best interest to act now and discusses strategies that may create the biggest opportunities for clients - and you - today.

Planning Needs Unrelated to the Economy or Estate Tax
Many planning needs are unrelated to the economy or the estate tax. They include:
Disability and retirement planning;
Special needs planning;
Divorce protection;
Spendthrift protection;
Creditor protection; and
Second marriage protection.
These planning needs may be even more significant for clients with fewer assets than for wealthier clients.

Disability Planning
As America's population ages, disability planning takes on ever-increasing importance. Here are some sobering statistics about Americans age 65 and older:

43% will need nursing home care;
25% will spend more than a year in a nursing home;
9% will spend more than 5 years in a nursing home; and
The average stay in a nursing home is more than 2.5 years.
Plus, the rate of nursing home cost increases greatly exceeds the inflation rate. Clients with estates that would not have been taxable in 2009 are, or should be, very worried about how they will pay for that kind of care if they need it.

Planning Tip: Careful consideration of long-term care insurance is critical for most clients.

Also of concern is who will care for your clients and whether they will they care for them in the way your clients desire. For many, there is a strong desire to stay at home as long as possible. For others, the companionship found in an assisted living facility makes that choice preferable. Still others need care that cannot be provided at home at all or only at prohibitive cost. Incapacity will deprive a client of the ability to implement his or her goals and objectives.

Planning Tip: A trust with carefully drafted disability provisions is the best way to ensure that each client's planning meets his or her personal goals and objectives.

Special Needs Planning
This is another area unrelated to the economy or the estate tax. According to the U.S. Census Bureau, in 2000:

51.2 million Americans reported having a disability;
13-16% of U.S. families had a child with special needs;
15 out of every 1,000 children born in the U.S. had an Autism spectrum disorder; and
Between 1 and 1.5 million Americans had an Autism spectrum disorder.
Because of medical care advances many special needs that used to mean shortened life expectancy no longer do, so many more special needs children are outliving their parents. Planning that fails to properly plan for a special needs person can have disastrous consequences, including loss of means-tested government benefits. A Special Needs Trust that incorporates specific care provisions is a critical component of the planning for a special needs person who requires ongoing support.

Insurance on the life of a special needs person's parents or grandparents can provide the trust funds necessary to pay for the care of a special needs beneficiary that is not provided by means-tested and other government benefits.

Planning Tip: Clients with special needs children or grandchildren are typically very motivated to plan for them.

Beneficiary Protection Planning
Protecting an inheritance from being lost in a divorce or to a beneficiary's creditors is a serious client concern. The potential for creditor attack or for beneficiary dissipation of an inheritance is greater during difficult economic times. Many older generation clients fear that their children and grandchildren lack strong financial decision-making skills.

Divorce rates exceed 50% nationally. Many clients today express concern about their children and grandchildren divorcing - they don't want the assets they worked so hard to accumulate winding up in the hands of a former daughter- or son-in law, etc. Divorce rates increase in difficult economic times, making this planning even more important now.

Blended Family Planning
A higher divorce rate leads to more second and subsequent marriages - each with a higher statistical probability of ending in another divorce. With blended families (i.e., with potentially his, her, and their kids), it is critical that each parent's planning protect his or her children in the event that parent leaves a surviving spouse. Failure of blended-family parents to do this type of planning practically guarantees that somebody's kids will be disinherited or a messy probate will result.

Planning Tip: Carefully drafted estate plans protect beneficiaries from divorce, creditors and themselves. Such plans can also provide for children from prior marriages, which is often the only way to ensure that these beneficiaries actually receive any inheritance.

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Continuing Care Retirement Communities

Over the past several years, Continuing Care Retirement Communities (“CCRC”) have opened up in increasing numbers throughout the country, and many seniors have bought into the CCRC concept.  While CCRCs are a great idea and there are many wonderful CCRCs, as has happened with other businesses in a tanking real estate and credit market, some CCRCs have failed, to the detriment of their residents and the consternation of the industry.  I am writing to introduce you to or remind you about the idea and promise of the CCRC, but also to make you aware of some of the risks. 

    In a CCRC, seniors start out by living on their own in the equivalent of town homes or condominiums until such time as they pass away, or need an assisted living or skilled nursing facility.  CCRCs have both assisted living facilities and skilled nursing facilities on site.  In other words, when one enters a CCRC, one can be relatively assured that there will be no reason to move out of the CCRC because whatever level of care the resident may need will be available at the CCRC.  Many CCRCs are built close to universities.  For example, in Thousand Oaks, there is a new, absolutely beautiful CCRC across from California Lutheran University called University Village.  I have clients who have moved into University Village, and they are very happy with the accommodations and the services they receive.  Although I am sure that no CCRC can please everyone, I have not heard anything bad about University Village. 

    CCRCs are not cheap.  It costs anywhere from the low hundreds of thousands of dollars to nearly seven figures for a senior to buy into a CCRC, plus a monthly fee for amenities like two square full meals a day, and the many activities provided at CCRCs.  I do not believe I have seen or heard of a monthly CCRC fee that is less than $2,500, and some are substantially more than that.

    Based on the CCRC contracts I have seen, the residents or their survivors will receive a refund of their buy-in at their death, or if they move out of the CCRC for any reason.  For example, in one CCRC, the resident gets ninety percent of the buy-in back if they leave in the first year; the refunds go down gradually until after the fifth year, at which time the resident or their survivor would get no more than seventy-five percent back of the buy-in amount. 

    Before one can move into a CCRC, one must also pass the CCRC’s admission test, which not only is prove your ability to continue to pay the monthly fee.  CCRCs also generally want people to be ambulatory and able to live on their own in one of the town home/condominium units, rather than coming in on the assisted living side, at the time the resident moves in. 

    While the buy in for a CCRC is substantial, the CCRC resident is not actually buying into the real estate.  Instead, he/she is making a payment that secures one of the units for the resident at the CCRC.  Again, however, title to the real estate is not in the resident’s name, the resident does not own an interest in real estate, and the resident’s buy-in amount is not secured by a lien against the real property. 

    What many people do not realize is that if you pass away or move out of the CCRC, the CCRC is not contractually obligated to pay you until they resell your spot in the CCRC.  In other words, I am not aware of any CCRC that maintains a large cash reserve in order to cash out their departing residents. 

    Unfortunately, especially with the proliferation of CCRCs and the downturn in the economy, some CCRCs have been struggling.  The October 31, 2009 edition of the Washington Post contains an article entitled “You’re Only as Secure as the Retirement Home.”  The article recounts a number of incidents where CCRCs or the entities operating them have filed for bankruptcy.  It also quotes Senator Herbert Kohl of the Senate’s Special Committee on Aging:  “In effect, seniors choosing CCRCs today could be exchanging their assets and income for nothing more than a promise.” 

    In fact, the Washington Post article mentions one CCRC in Pennsylvania where residents saw their deposits wiped out by virtue of a bankruptcy court ruling.  That community had been sponsored by B’Nai B’rith International, a substantial Jewish organization that was founded decades ago.  The article did not specify the relationship between B’Nai B’rith International and the CCRC in question, it serves to emphasize that if an organization lends its name to a CCRC, that does not necessarily mean that the organization or its resources and assets will back the CCRC.  I am confident that B’nai B’rith is very upset that its name is associated with a failed enterprise that let down senior citizens, but that is of little solace to the residents. 

    The Post article did not indicate that any CCRC residents had to leave, but it also did not say whether the new operator would allow existing residents to remain in the CCRC so long as they continue to pay the monthly fee.  It did recount how in at least one CCRC that filed for bankruptcy, meal service was cut from two meals to one meal per day, activities (i.e. dance and music) were cut, and there was no on site staff to respond to emergency lifeline calls.  In another failed CCRC, monthly fees were increased because, according to one of the CCRC’s officials, “There was a business model here that wasn’t sustainable.” 

    I have had clients who have asked me to assist them in their due diligence in evaluating whether to buy into a CCRC.  As I have told them, I am not an auditor, nor do I have any special skills with respect to financial statement review.  On my most recent review of information given to my client by University Village, I saw that it has reported that it has nearly paid off its construction loan.  And since the company that owns or operates it does apparently not operate numerous CCRCs, but is limited in its exposure, my client felt comfortable buying into University Village even though I was not able to provide them with any great assurances of its continued viability. 

    The important point to remember is to scrutinize the information and financial statements you get from a CCRC before you decide to buy into it.  Realize that no matter how good a financial statement may look, there is an element of risk, as the unfortunate residents of the CCRCs mentioned in the Washington Post article have learned.  Consider what you, your parents, your clients, or others you know would and could do if they spent a substantial portion of their estate to buy into a CCRC, and later learn that their deposit is wiped out by the CCRCs financial trouble.

    In addition, there has been some publicity about some disagreements between CCRC residents and a CCRC when the CCRC wants to move a resident to a higher level of care, such as from an assisted living facility to the skilled nursing unit, but the resident does not agree with the CCRC’s assessment of their increased needs.  That there would be disagreements over this issue is not surprising, since such disagreements occur in families as well.  The California legislature has been examining CCRCs in our state, and I will keep you posted on my blog or newsletter if I believe any new developments in the legislative sphere warrant an update.  As with all information regarding senior care and affairs, you can find information about CCRCs on the California Advocates for Nursing Home Reform web site ( 


    I believe that CCRCs can provide a wonderful alternative for seniors who have sufficient funds to buy into the CCRC and to pay the monthly fees.  However, CCRCs are not without their risks, and it is important that you go into a CCRC with an open mind and fully advised of the risks as well as the rewards. 


Will the Estate Tax Disappear?

There is an interesting article in today's Wall Street Journal entitled "Will the Estate Tax Disappear?"  The author, Laura Sanders, talks about how, under current law, from January 1, 2010 through December 31, 2010, there will be no estate tax.  Starting on January 1, 2011, the estate tax comes back, and the exemption from estate taxes is reduced from the current level of $3,500,000 to $1,000,000. 

    What the Wall Street Journal article highlights is that if the estate tax disappears in 2010, then the step up in basis at date of death will disappear as well.  This is how Congress and the Bush administration made the 2001 tax reform act revenue neutral – so that the loss of revenues of the estate tax would be made up by the gain in revenue from the loss of the step up in basis.

    The Wall Street Journal article explains that if your grandmother left you stock selling for $75 a share on her date of death that she bought in 1970 for $2 a share, under current law, your cost basis in the stock would be $75.  Thus, if you sold the stock for $80.00 after your grandmother's death, your taxable gain would only be $5 per share.  However, if the step up in basis goes away, your cost basis would be $2, not $75, and you would have a tax bill based on a $78 gain, rather than on a $5 gain. 

    The Wall Street Journal article also notes that only 5,500 estates are subject to estate taxes every year.  In contrast, there are probably millions or tens of millions of people who would suffer by virtue of the loss of the step up in basis.  Moreover, the last time Congress tried to eliminate the step up in basis at death, it simply did not work because of recording keeping issues.  How would the grandchildren of a taxpayer have any way of proving what their deceased grandparent bought a stock for in 1972?  How would the IRS prove the same, or disprove the family’s claim? 

    Thus, it likely is the case that both the estate tax and the step up in basis will remain with us.  It is a matter of seeing what bill Congress passes and when Congress passes that bill.  Congress has until about September 2010 to take action in order to enable Congress to apply any change in the tax law retroactively to January 1, 2010.  An alternative approach is that there is a bill pending in Congress to extend the existing exemption of $3,500,000 through December 31, 2010 so that Congress can take up the issue next year without the pressure of a September deadline.  We will keep you posted on any new developments. 


Is it time to transfer assets from one generation to the next?

            An article in the October 3, 2009 Wall Street Journal, entitled “Transferring Wealth Via the Bank of Mom and Dad,” highlights the fact that the current economic and interest rate environment makes this a wonderful time to transfer assets from one generation to the next. 

            As I have been telling many people for months, we are in a perfect storm that can inure to the benefit of clients and their families.  Asset values are lower than they were in the past.  For most people, that’s very bad news, and it’s hard to put a good spin on the fact that so many people have lost so much wealth.  However, it also means that more assets can be given within the gift tax exemption limitations, or lower gift taxes can be paid on the transfer of assets. 

            There really are few reasons to incur and pay gift tax given the number of vehicles that can be used to structure transfers without incurring gift taxes.  Many of those structures are based on the ‘applicable federal rate,’ an interest rate artificially set by the government.  For transfers during October 2009, for example, a parent can make a fixed-rate loan to a child for as low as 2.63 percent for a nine-year term.  Thereafter, as the Wall Street Journal article points out, a portion of the interest on that loan could be forgiven on an annual basis.  Thus, there are incredible gifting opportunities that we may not see for many years to come, or at all in our lifetimes.

            Of course, the problem with parents making substantial gifts of assets at a time when the value of their assets has plummeted is that parents are concerned about whether they will have enough assets for themselves.  This is a legitimate concern that needs to be addressed whenever assets are going to be given away by parents - - even if the assets double in value from their current value.  To gift substantial amounts of property, the donor/parents must feel comfortable they themselves will have enough assets and income remaining to live a comfortable lifestyle.  We can do an asset and cash flow analysis for a donor to review, but if they are not comfortable, then, perfect storm or not, high interest rates or low interest rates, it does not matter because the parents will not want to part with their assets. 

            The article in the October 3, 2009 Wall Street Journal gives a good summary of a number of these issues, and thus, I recommend it to you.


Emergency Instructions for the Care of Pets

          As many of you may know, I have been writing articles and making presentations on California's new pet trust law, which became effective on January 1, 2009. The law allows pet owners to create enforceable trusts to provide for the care and well-being of their pet after their incapacity or death, and to fund that care with the appropriate assets necessary to meet the owner’s objectives. 

          However, it is important to remember that, regardless of whether a pet owners has the assets or inclination to create a trust for their pet, emergency instructions for the care of pets are incredibly important. 

          If you get into a car accident and have a person at home who is expecting you to return home, at some point that person is going to start getting worried and make some calls to figure out what happened, or law enforcement or emergency room personnel will call your home.

          However, if you have a pet at home, your pet is not likely to either make or receive any telephone calls. 

          Thus, even if you have made provisions for the long-term care of your pet by a caregiver after your death, you should make plans for short-term care for your pet in case of an emergency.  If your designated caregiver for your pet in the long term is located far from your home, you should find some friends or neighbors close by who could care for your animal in the short-term. 

          The next question becomes how to communicate such short term provisions to those who may be with you in the event of an emergency.

          Many people who have advanced health care directives carry cards behind their driver’s licenses.  These cards give the name of their agent, as well as their telephone number. 

          You should consider doing the same thing for your pets, so that if you are in an accident, emergency personnel may look in your wallet and see what is behind your driver’s license.  If they see your pet care contact card, they are going to be able to make appropriate calls at that time.

          If you would like a form of emergency card for your pets, contact our office. 


Crash Course on California Probate

The world learned a lot about how the California criminal justice system works (or does not work) through the O.J. Simpson trial.  Recently, New Yorkers (and some following my blog) have been learned about the alleged undue influence of people suffering from dementia through media coverage of the New York criminal trial involving the son and attorney for the son of New York Socialite Brooke Astor.

With the untimely death of Michael Jackson, the public and media may be in a for a crash course on California probate court proceedings involving the guardianship of the person and/or estate of a minor; estate and/or trust administration; and probate and trust litigation. I will try and educate you on some of the issues on this blog.


Already, a petition reportedly has been filed by Katherine Jackson, the grandmother of Michael Jackson’s children, to become the guardian of his children.


Presumably, Katherine Jackson petitioned to be the guardian of the person of the minor children.  A guardian of the person is the person who is legally entitled to make all decisions for a minor child which a parent would make, other than financial decisions.  A guardian of an estate is entitled to make financial decisions relating to property owned by a minor.


    Even if a deceased parent nominates someone to be a guardian of the person of a minor, the nominated person will not necessarily be appointed.  A surviving biological parent has many legal rights, though any written agreements between Michael Jackson and the biological mothers of his children may have some influence over a court’s ultimate decision.

California Family Code Section 3041 states, in part, as follows:


    “If the custodial parent dies during the child’s minority, the surviving parent immediately becomes entitled to sole custody, unless it is proved by clear and convincing evidence that such custody would not be in the child’s best interest and would be detrimental to the child...” [Emphasis added.]


Family Code Section 3043 tells a court to “consider and give due weight” to the nomination of a guardian of the person by a parent under the Section 1500 et seq. of the California Probate Code.


Section 1514 of the Probate Code provides that in appointing the guardian of a person, the Court is to be governed by the Family Code provisions relating to the custody of a minor.  In addition to the sections mention above, Section 3020 of the Family Code provides that

“(a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children...


(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child...”

While Probate Code Section 1514 is clear that a Court “shall” appoint the person nominated by the deceased parent to be guardian of a minor’s estate “unless the court determines that the nominee is unsuitable,” no similar statutory language directs a court to respect the nomination of the guardian of the person, as the best interests of the minor is of the utmost importance.

There is much more to guardianship proceedings than it outlined above, but today is our first day on the subject.  More to come.


Should a Court Believe Everything an Attorney Says

The continuing saga of the criminal trial of New York socialite Brook Astor’s son, Anthony Marshall, and co-defendant/attorney Francis X. Morrissey Jr., sheds light on some issues that exist when wills or trusts are attacked after the death of the creator of the documents (who is called, among other things, a “testator” or “trustor”).


One of the key witnesses in the Astor trial was the long time attorney of Mrs. Astor.  That attorney reportedly testified that while Mrs. Astor had been under intense pressure from her son at the time she executed the last estate planning documents the attorney prepared for her, he believed she understood what she was doing.


While the Astor trial is a criminal trial – and it is very unusual for a criminal trial to flow from good or bad estate planning – the capacity of the testator is at issue in many trials involving a challenge to a will or trust.  If filed as a probate case, some parts of the Astor trial would be said to involve allegations of what is known as “undue influence,” which essentially means that some person (an “influencer”) had such influence over the testator that the influencer influenced the testator to substitute the influencer’s judgment for that of the testator.  This happens with some regularity in family situations, but never before have I seen it rise to the level of a criminal trial as is happening in New York with the Astor estate. 


What the testimony of Mrs. Astor’s attorney highlights for our purposes is the issue of whether a testator has “testamentary capacity,” which also can be relevant to whether a testator can resist undue influence.  This is not the forum for an extensive discussion of how capacity is determined in California, but in general, every person is presumed to have capacity.  Only if a person contesting a will or trust can show that a testator suffered from one or more mental deficits listed in the Probate Code, and that there is a correlation between the deficit(s) and the decision or act in question, can a court determine (if the court follows the law, instead of just deciding which side it likes better) that the testator lacks capacity.


Although the statute governing the presumption of capacity is relatively new and based on modern psychiatric thought, there is a long line of old cases, likely with no clinical support whatsoever, that also can influence how a judge decides a case.


One of the long standing doctrines which is highlight by the Astor trial is that under California law, the testimony of the drafting attorney as to the testator’s capacity, while not definitive, is given great weight by the courts.  The court’s view is that since the lawyer saw the testator, presumably spoke with the testator, presumably received directions from the testator as to what he or she wanted the attorney to write, and is an officer of the court, the attorney’s testimony is presumed to be valuable to the determination of capacity


In reality, it will be a rare case, if ever, that the drafting attorney gets on the witness stand and says “My client had no clue what I was saying or what he was signing, but I had him sign it anyway because his daughter told me that’s what he wanted.”  That type of testimony would impugn the drafting attorney’s integrity.  Moreover, even if the attorney rarely does estate planning as part of his or her practice, and never has studied issues related to testamentary capacity, his or her testimony still is entitled to great weight.  I also question whether most attorneys would get up on the witness stand and admit that “this was the first will I drafted in twenty years.” 


I do not know Mrs. Astor’s long-time attorney, I have no reason to believe that he was not being truthful in his testimony, and I know nothing about the case other than what I have read in the media.  However, from a very practical standpoint, in my opinion, the testimony of a drafting attorney is inherently suspect.  I am not saying that attorneys routinely will lie under oath on a witness stand, but I am saying that an attorney who should not have had a client sign a will or trust because of the client’s lack of capacity is not likely to admit that, even under oath.  Thus, although judges should hear the testimony of a drafting attorney, they should view it with some suspicion, and not give it as much weight as it seems to have received in the past. 


Prominent Names Fight Over Loved Ones and/or Their Estates

On both coasts, relatives of prominent people are fighting it out in court over their loved one’s affairs.   


Here in California, the wife of actor Peter Falk is battling with his daughter from a prior marriage for control of his affairs.  Unfortunately, the 81 year old Falk has dementia, and cannot control his own affairs at this stage of his life. 


In New York, the late socialite Brook Astor’s eighty-five year old son, and his attorney, are being tried on criminal charges of looting her estate. 

Many attorneys might tell you that “if only they had a living trust, their affairs could have been handled outside of the courtroom.”  If only that were true.


It is true that if you have a living trust, AND the trust owns your non-retirement assets (as many clients and advisors have heard me say, a trust which does not own property is not worth the paper on which it is written), then during your incapacity, your designated successors can manage your affairs without going to court. 


However, when your family is fighting, that is going to happen in court whether you have a trust, a will, or no estate planning documents at all. 


In Falk’s case, if one believes the reports in the press, Falk’s wife would not let his daughter visit him.  That’s a guaranteed ticket to court, regardless of what type of estate planning documents you have.  His wife might have had very good reasons, at least in her own mind, to keep his daughter away, and no doubt his condition is creating tremendous stress in his wife’s life.  After all, caregivers often die before the ill person because of stress.  However, everyone involved in the life of an incapacitated person must understand that everyone else in the life of the incapacitated person has their own perspective, and few – probably only those who cannot afford to do anything about it – will tolerate seeing their loved one isolated from them.


The Astor case in New York is more unusual.  In my experience in Southern California, law enforcement and adult protective service agencies simply are not very good at investigating and/or charging family members for unduly influencing a parent to change his or her estate planning documents to favor that child.  If a third party, such as a caregiver, is involved in looting an estate of cash, that is much more likely to be investigated and prosecuted.  However, family members always can claim that they were simply doing what their parent requested of them, and many judges would believe that even if there had been ill will between a parent and child, those hard feelings are softened when the child cares for the parent when the parent is ill. 


It will be interesting to see whether the Astor prosecution is successful.  Even if it is not successful, it also is a cautionary tale for lawyers, who would never expect to be prosecuted for preparing estate planning documents.  However, the next time a child comes into your office and asks you to prepare estate planning documents for his or her parent, whose prior documents were prepared by the parent’s attorney of nearly forty years, you might want to think at least twice before accepting the engagement.



Pet Trusts - Finally Enforceable in California

A new statute in California is providing peace of mind for pet owners who want to ensure their dogs, cats, horses, etc. are taken care of after the owner's death or incapacity.

Before 2009, pet trusts were not enforceable in California, meaning there were no guarantees that even if funds could be allocated for the care of a pet, the funds would be properly applied, because there was no assurance that California courts would enforce pet trusts.

Here are a few highlights of what the new California statute allows pet owners to do: 

  • Provide a place for a pet to live, including maintaining a home or ranch for the pet's benefit
  • Appoint a care taker or other care mechanism to care for the pet, and an overseer to ensure that the care given is as directed in the trust
  • Give direction about the pet's care and routines, exercise, veterinary care, and whatever other directions could be of help to the pet
  • Provide a source of funds for the pet's care that can be managed and invested like any other trust
  • Protect the money set aside to care for and/or house the pet by having a trustee manage the trust property

Read a full article I wrote for California Lawyer Magazine below:

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