What Does a Charitable Remainder Trust Do?

The last in our series of articles on trusts is a Charitable Remainder Trust, or a CRT. This very specialized trust is typically used by people that are interested in philanthropy. They often want to create a legacy both while they are alive and after they die. They are planning to make donations to their favorite charity, but still need to have money to spend during their life.

In terms of how a CRT works, it is good to go through a primer on how a trust in general works. In simple terms you create the trust, or your box. Then you will title your assets in the name of the trust. From there you will name a trustee, or the person that will put things into the box or take things out of the box. The trustee will have the ability to sell the assets in the box so that it becomes liquid cash. While the person writing the trust (also known as the grantor) is living, they will still get cash to live off. The intent of the trust is to make sure that person is taken care of and will lay out the details of what is expected while the person is still living. Once the grantor of the trust dies, the trustee will then take the assets that are in the box and distribute the proceeds to the specified charity or charities. Obviously, the mechanics of this arrangement are a little more complex, but this is what happens in its simplest form.

You may ask, why would someone want to do this? Why would you create a CRT instead of just “willing” the assets or cash to the appropriate charities? Like any other legal question, there are a many different reasons. We will not get into the details of each of them specifically. The reasons could span from wanting to convert an appreciating asset such as land into lifetime income. From a tax perspective, you may want to reduce or eliminate estate taxes. It’s also possible that you are in a position that you want to decrease your current income taxes with a charitable income tax reduction or you may want to avoid a capital gains tax when selling the asset. You also have the assurance that when you die, you know that your money is going to go to fulfill the objectives that you set. There really is no room for anyone to object to your donation if the trust is set up appropriately.

From the charity’s perspective, they would be in favor of this sort of a plan simply because it helps them to be able to budget in future years. They may not know the exact timing, but they certainly would know the approximate amount that they are set to receive in the future. Once the trust is developed and put into place, they know that can plan on fulfilling the mission of their organization whether it is a medical research group, a church, a scholarship or any other directive that they set out accomplish.

When it comes down to it, the process of setting up a charitable remainder trust is just like every other part of estate planning. You need to work with professionals to make sure your goals are accomplished. You need to think about what you want and build your estate plan appropriately. The government gives you avenues within tax codes and legal devices to accomplish most of your goals. You just need to plan wisely and that includes benefiting your favorite charity.

What Does A Special Needs Trust Do?

Imagine you have a child that, for whatever reason, you are concerned does not have the capability to care for themselves when they grow up. It could be that your child is autistic or has muscular dystrophy or any other condition. Whatever the reason, they just will not be able to care for themselves when they are adults. In most cases, we, as parents, are not able to be there for our kids for their entire lives. It is the sad reality that we, those of us that have kids with disabilities, must live with.

That is where a special needs trust comes in to play. Obviously, a trust cannot make you live longer so that you can be there. It cannot magically make it so your child can care for themself. What it can do is provide a financial structure your child’s life so that they can be taken care of. They will be taken care of financially. They will be taken care of physically. And if structured well, it can help them to get services that they may need from social services.

You may be asking yourself, “how in the world can this work? I feel all alone in taking care of my kids now, how can anyone possibly take care of my kids after I am gone?” If you remember back to our last few posts, you will recall what a trust is. If not, we suggest you read this blog about how a trust is structured as it will help to understand this specific type of trust. Essentially, a special needs trust is an empty box that has your child’s name on it. Everything that goes into that trust is there to benefit your child.

For example, say that when you die, you have a life insurance policy. Of course, you want your child to have that money. On the other hand, you do not want your child to oversee that money because it could lead to a litany of bad outcomes. You may be opening your child up to have to pay more for medical treatments rather than the state pay for it in which all that insurance money will be paid to a hospital or health care facility. You may be disqualifying your child from receiving the services that they need because now they “have too much money”. You may be opening your child up to predators that are going to try to fraudulently take that money from your child.

Any of those reasons are scary enough to make you want to plan. Rather than giving your child that money outright, the government has given you the ability to create that box, a special needs trust, to store all that money that you have given them. This holds true for any asset that they may accumulate from you, grandma and grandpa, your rich uncle, or any other means. When you create this box, you also designate someone to be the person who controls the box. They are called the trustee and is usually someone that is close to you and is very trustworthy. The trustee can determine how much money comes out, when it comes out and why it comes out. They can be required to give an accounting each year so you can guarantee that even the trustee must answer as to where the money is going.

Additionally, you can determine who is the guardian of your child. They would be the person that oversees the actual care of your child. By splitting up the duties, you can make sure that each of these people are accountable. Again, it is not that you do not trust the people you put in charge, but it is a checks-and-balance to make sure that your child is well taken care of.

While planning for this may seem like a bit of a stressful exercise, it is well worth it. Again, you can make sure your child is taken care of physically, not going to financially devastated by someone fraudulently stealing from your child, and make sure they receive the services that they need to be a productive

adult. It does take some advanced planning, but it is worth it to make sure your child has every opportunity even after you are gone.

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Why Do I Need a Revocable Trust?

We previously discussed what a trust is and how it functions. Please read that post first to better understand how a trust works.

A revocable trust is probably the most common type of trust that we see. A good way to think of a revocable trust is that it is the trust that is used in most situations. You may have a special circumstance such as a special needs child or want the trust to distribute your assets to a charity, but most people that want or need a trust will write a revocable trust. 

So, what is a revocable trust? Well, first of all, we’d suggest reading our blog on what trusts are. If you recall, we compared a trust to an empty box to store your assets in. A revocable trust allows you to put your assets into a legal device to protect those assets, but still allow you to control the asset. For example, you may want to put your house into a revocable trust so that when you pass away, it can more easily pass to your heirs. The nice thing about a revocable trust is that you are able to change whether an asset is held within the trust. That’s what makes it revocable, you can move your assets in and out of that metaphorical box.

That begs the question, why would you WANT to put your stuff into that trust? That’s a question that has multiple answers. This is why it is the most flexible, it can solve a lot of different problems. A huge driver for people wanting a revocable trust is their family. People want to protect their family and they want to take care of their family financially into the future. 

Some people may want to leave a legacy for their family. If you have more than $3 million in assets, you may want a revocable trust. Why? Simply put, it is the random number that the state of Minnesota has decided estates get taxed. So, if you want to pass assets on to the next generation and want to limit the amount of taxes that are paid, a trust is one avenue to do that. We won’t get into the specific details on this as this post would end up being way too long and dry. 

Along the same lines of wanting to pass on your assets to your kids, you may have an adult child that is not very wise with money. Say for example, you have a child that has a drug or alcohol problem, the last thing you want to do is give them a boatload of money to feed their habit. Sure, you may want to take care of them, but you don’t want a windfall to be a detriment to them. What you may be able to do is set conditions so that your gift to your children is used wisely.

Maybe your gift to your children is the family cabin. A revocable trust would allow you to keep that cabin in the family and would allow you to pass it down to future generations. It’s a great way to make sure that taxes don’t eat up the entire value of something that you worked hard and can continue to bring your family together.

The last reason that we’re going to touch on is protecting your family. Placing your assets in a trust provides privacy. The figurative box blocks your nosy neighbor from seeing what you have and what you’re passing on to your kids. Any assets that are placed into trust do not have to go through the probate process. That means it is not public record and people won’t just be able to go online and know all of your financial business. That also means that the probate process is typically shorter and, in fact, may allow you to avoid probate. Your trust will lay out what should happen to your stuff and it won’t need to go through the legal proceedings. It will likely reduce the potential issues that may arise legally and reduce the heartache that your family has to go through.

Regardless of your goals, you will want to do a full evaluation along with your attorney so you can make sure a revocable trust is the correct option for you. There is no one-size-fits-all in estate planning so it’s very important to make sure you’re using the correct tool. A revocable trust is one tool, and it is a good one, but it may or may not be the right tool. Make sure you work along with your trusted advisors to make sure you are doing what’s best for you.

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What is a Trust?

Estate planning is complicated. There are many different tools, methods and strategies that can be used. And none of them are necessarily wrong. Each tool and method has its place and if they aren’t used correctly can lead to wasting your money or, even worse, may not accomplish the goals you are setting. 

One of the best ways to think about the tools and strategies is to think of them like cars. Imagine you own a Chevy Impala. A new Chevy Impala is a VERY NICE car. It gets the job done. It’s a nice vehicle with a lot of features that make you comfortable while you’re driving to your final destination. It can’t, however, be compared with luxury vehicles like BMWs or Mercedes. Luxury vehicles get the job done and they do it in more luxurious ways and usually do the job more efficiently and effectively. The next class includes Lamborghinis or Ferraris. Again, they are just a little bit nicer and do a few more things.

You can think of estate planning in the same way except that with cars we look at preference of vehicle whereas with estate planning strategies we look at what is needed. Wills are a great way to accomplish the goals of most people analogous to the Chevy Impala. Wills make sure your stuff goes to the right people and who takes care of your kids if you die. In estate planning trusts are a good way to accomplish additional goals including keeping your estate private or taking care of a special needs child. Trusts do all of the things that a will does, but adds other benefits. This is analogous to the Mercedes. It’s gets the job done, may do it more efficiently and can make things easier for your heirs. Lastly, we have the Lamborghini like advanced strategies that work along with will and trust. This can include planned giving strategies or family gifting strategies. All of these strategies and tools have their place. 

For now we’re going to focus on the Mercedes, or the trust. To be clear, there are many different types of trusts each of which are structured to accomplish a specific goal. There are revocable trusts, special needs trusts, charitable remainder trusts and irrevocable life insurance trusts among others. In the future we will get into specific trusts. Today, we’re just going to learn what a trust is and what it does.

Simply put, a trust is like a box. The trust itself is just a container that you put stuff in. So rather than putting shoes or a phone or food or any other retail item you can name into the box, you place (or title) your assets in the trust (ie the box). A trust is useless if no assets are placed into. Just like a box is just full of air if you don’t put anything in it, a trust is empty if it doesn’t “own” your assets. This all begs the question of why on earth would you want a different entity from yourself to own your house or your bank accounts or any other valuable asset?  

Again, there reasons are endless. You could be planning for a seamless transition of your house or business to your son or daughter. You could be attempting to minimize estate taxes. You could be attempting to shelter your assets so that you can more cost effectively pay for a nursing home or assisted living for yourself. You could be caring for your special needs child so that they can receive disability benefits. 

Like previously stated, the end goals can vary. Within an estate plan, you still need a will, a power of attorney and a health care directive. A trust is an addition to your estate plan. It takes a bit more work and paper work, but it offers additional benefits. In the next couple of months we’ll dig into some more specific reasons for a trust and specific types of trusts, but understanding what a trust is and how it is structured is the first step in evaluating if you need a trust. You may not NEED the Mercedes, but we want to make sure why you may need one and help you to figure out if you actually do need one.

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Power of Attorney

In our last blog, we talked about the importance of a health care directive in the context of the COVID-19 world that we are living in. Additionally, we want to talk about another part of your estate plan, the financial power of attorney. We talk about these two documents together because they are useful while you are still living, opposed to your will and/or trust which are useful after you pass away.

To be sure, COVID has made planning more prevalent for a lot of people, but that doesn’t mean that when the virus is gone, we should forget about it. COVID is top of mind for many of us, but tragedy can strike at any moment. You could be in a car accident or have a heart attack or get struck by lightning and be stuck in the hospital for months. Frankly, the cause is irrelevant. What matters is that you have planned beforehand, so that your loved ones can take care of your matters while you aren’t able to take care of them.

The financial power of attorney allows someone, called the “attorney-in-fact”, to speak and act on your behalf. Imagine you are in a car accident that leaves you with severe injuries and lands you in the intensive care unit. Unfortunately, the companies that you do business with won’t cease their operations. If you owe them money, they are still going to ask for it. Your mortgage won’t go away. Your electric bill will keep coming. For that matter, Netflix will continue to take money out of your account. What the power of attorney allows is for someone else to be able to keep paying the bill if you want or shut off the account if it is not needed.

Something that may be a bit more important than Netflix or your cable is that your attorney-in-fact can work with your insurance companies on the claim on your car. Or they can work with your disability insurance company to make sure that money continues to get paid to you. The goal is for the attorney-in-fact to keep your life moving so that when you get out of the hospital, you can go back to life and not have to dig out of past due bills or spend time where to start financially.

The reality is that tragedy does strike people. Some of us will get hit harder than others. Some of us will need to leave a roadmap for our loved ones on how you want your affairs handled if you are incapacitated. We always recommend that you plan to make sure that your wishes are considered. We don’t want people guessing what we might want or doing what they think is best for us. Their intentions are good, but what you want is what matters. Financially, a power of attorney is how you explain what it is that you want.

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Do I Need A Health Care Directive?

The last couple of months have been a wake up call for people in being prepared for the unexpected. COVID-19 has changed life as we know it. Regardless of your personal opinion of whether the public reaction to the virus was right, wrong or somewhere in between, it is undeniable that we have all been significantly affected by the virus. Sports events were cancelled, restaurants were closed, no one was able to get hair cuts and, of all things, many people weren’t able buy toilet paper. Varying levels of panic set in for people.

One thing that we have been very consistent in repeating over and over is the need to plan to make sure you and your loved ones are taken care of. One of the things that EVERYONE should be considering is their health care directive. Look, not all of us are going to die from COVID. Not all of us are going to be in the hospital if we get COVID. Many of us won’t even know we have COVID if we contract it. Unfortunately, some people will have to worry about those fears. The question that we should all ask ourselves is “why risk it?”

Maybe you haven’t been directly touched by someone that contracted COVID and maybe you won’t be. The sad reality to life, though, is that everyone is mortal. At some point we all are going to get sick, be in an accident, or have some other health issue. Many of us are going to need someone to make decisions for us because we aren’t able to speak for ourselves. COVID is just another real life example of what needs to be done if we get sick and need our loved ones to help us.

Kiecker Law Video Series Ep. 6 – Health Care Directives and Power of Attorney

The question becomes what do we do to help ourselves and our family. One of the best places to start is developing and writing a health care directive. A health care directive is simply a written directive putting someone (called your “agent”) in charge of your health care decisions if you are not able to do it yourself. The document gives your agent a guideline of what you want done for you medically. For example, if you are in the ICU in an induced coma, your agent will be able to tell the doctors how they should treat you based upon the guide that you wrote out for you. In essence, you are making the decision for your health care through this document and your agent even though you can’t speak for yourself.

You may ask why this is important. Well, unfortunately, our family members don’t always agree on what should happen. They may disagree, drag out the process, and cause you to suffer. They certainly don’t do it because they hate you or want to make you suffer, but because everyone thinks they know what’s best. That’s human nature. Everyone wants to do the right thing, but everyone has a different idea on what the “right thing” is.

We aren’t trying to scare people. That’s not how Kiecker Law works. Unfortunately, health issues are naturally scary. COVID is just a reminder of how fleeting life can be. A health care directive is a very valuable part of an estate plan. It works along with your will, trust, power of attorney and financial plan. That’s why our consistent recommendation is to plan. Don’t just plan for what you expect to happen. Also plan for what you don’t expect to happen.

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What Happens to My Kids If I Die?

In the past we’ve quoted a survey from Caring.com. Each year they do a survey gauging how many people complete their will. Frankly, the results are staggering to us. This month we’re going to be focusing on younger families, and more specifically what happens to kids when their parents die. Looking at the 2020 survey that Caring.com did, only 27.2% of people they surveyed between the age of 24-54 have a will (and it’s even less in the 18-23-year-old group). This is the chosen age group as this is the group that is typically going to have minor kids. We can assume those statistics are likely the same whether you have kids or don’t. That means almost 75% of people are going to leave it up to the courts to decide what happens to kids. The question we have is, is that really what you want, or do you want to decide what’s best for your kids?

Later this month, we will tackle what happens if you don’t have a will, but first let’s talk about what your will can and should do for you in deciding your children’s future if you’re no longer here to care for them. The first thing you will want to do is determine who the guardian will be for your kids. That’s probably self-explanatory, but that just means, who are your kids going to live with and who is going to care for their physical well-being. This is probably a question that you want to consider for more than just a couple of seconds. Many times, people will want to name their parents (i.e. the grandparents) as the guardians. At first blush, that may seem to be a good choice, but you will also want to consider whether your parents WANT to have a 2,5,8, or 10-year-old living in their house full-time? Or for that matter are your parents ABLE to care for a child full-time? Grandparents love to have their grandkids for an evening or even a couple of days, but could they handle having kids on a full-time basis?

Another thing to keep in mind is the style of parenting that you have versus what a potential guardian has. You want to make sure that your kids will be raised in a way that you are comfortable with. If you are strict with your kids, you likely want someone that is also going to have rules. Lastly, and maybe most importantly, remember this decision is about your kids. It’s not about the feelings of your parents, siblings or in-laws. It’s about your kids and what’s best for them. Many times, people feel an obligation to “keep things equal”. It’s not about keeping things equal. Your kids and how well they are taken care of is the only thing that matters.

The other part to consider is the financial side of things. You may be comfortable with the person that you name as guardian handling all the money, but you may not. If, for example, you name your sister as the guardian because she is such a good caregiver for her own kids, but you wonder if the money you leave for your kids will be spent wisely, you can name another person as a trustee. There could be a lot of money that is left to your kids in the form of proceeds from your house, life insurance or retirement accounts. You want that money used to care for your kids, not for frivolous expenditures that benefit your sister or her kids. If you want to have a fail safe in there so there isn’t even that temptation, you can name a trustee.

So, what does a trustee do? Essentially, your will sets up a trust for your minor children in which they get all the money that is left to them at a certain age (maybe 18, 21, 25 or any other random age you decide makes sense). In the meantime, your kids will need money for the every day things that they encounter such clothes, sports, food, school trips, or any other number of everyday necessities. The trustee would work along with the guardian to make sure that your kids’ money is being spent wisely. In other words, your sister that is the guardian would need to check in with the trustee before they can spend the money. It’s the best of both worlds. Someone that is going to be a good caretaker for your kids, and you can be sure that you have someone that is good with money to make sure your kids are financially cared for. 

Parents do everything they can to care for their kids physically and financially.  There is no reason that should stop just because the parents have passed away. A will is the legal structure of a plan that goes beyond your life.

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What Happens If I Don’t Have A Will?

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Posted by Kiecker Law on Wednesday, April 22, 2020

What Happens If I Don’t Have A Will?

Over the past month or so, we’ve talked about what a will is, what a will does to protect your stuff, and what your will does to take care of your kids. In February, we even talked about going through the probate process. Now, we’re going to take it one step further. We’re going to talk about what results when you don’t have a will and you need to go through the probate process. 

The first thing that happens when you don’t have a will is that you end up in a lengthy probate process. This probate process will be expensive, and it will be painful for your family. A large sum of money will be eaten up by attorney and court fees and not be given to the heirs that you want. Once you get past the fees taken out of your estate, the courts will use the Table of Consanguinity (pictured) to determine who gets what in terms of your stuff. You won’t get to decide who gets it and it could be that someone inherits your hard earned money that you don’t want to. It’s all based upon a table that was developed in the 13th century.

That charity or your church that you wanted to receive a large donation…that doesn’t matter. They won’t get it. That nephew you wanted to support because he helped you out…he won’t necessarily get it because he isn’t named specifically. The court will decide who gets what.

For those of you with minor children, the more important question is what happens to those children. This is where the chaos begins. At least with your stuff, there is a standardized process to follow. When it comes to who takes care of your kids, there is nothing. The courts and other governmental agencies decide what happens with your kids. They will take a look at your family’s situation decide what they think is best. Of course, they will take your family’s opinion into account, but when all is said and done, the court decides the future of your kids.

Unfortunately, what often times happens is that differing sides of the family have different ideas on what should happen. The husband’s parents may think the kids should come live with them and the wife’s sister may think that she should care for the kids or some other scenario like this. This often leads to large arguments between families and certainly leads to negative effects on the kids. Yes, everyone loves the kids, but the kids are the ones that are caught in the middle. Depending on how old your kids are, they are going to be caught in the middle of it at least until they are 18-years-old. 

In these situations, no one tries to put the kids in the middle, it just ends up happening as everyone thinks they know best. It’s not intentional by any means, but it’s what happens all too often. This worst-case scenario is why we suggest that everyone makes sure they complete their estate planning. It’s not fun, and not necessarily an easy process, but it’s worth it when your family needs it.

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What Happens To My Stuff?

One of the two main functions of your will is to determine who gets your stuff. Now, when we say stuff that means everything from your house to your car to your business to your investments and all the way down to the $2 knick knacks you have sitting on that shelf on the wall. Some of these things will have a high value and some of them are worth mere pennies. Some of them have tons of sentimental value and some of them don’t. Your will decides how to split them up. As an aside, many of these larger items in terms of monetary value can be taken care of with the appropriate deeds and beneficiaries, but anything that is not covered by a deed or beneficiary will be taken care of in your will.

Within your will you can decide how your stuff gets split. Some people may say that they just want their possessions to be split evenly between their kids. Alternatively, you may want to treat your kids differently. Maybe one of them helped you much more than the others and you want to financially reward them. Your will is the place to do that. If you want your church or a charity to share in your wealth, you would name them in your will. 

What Happens if I Die Without a Will?

Now, you may say that you just don’t care how your stuff gets split up. Honestly, your kids or heirs may not care either. Unfortunately, that’s not generally what happens. What seems to happen more often than any of us would like to admit is it starts family fights. When there is a fight, it generally doesn’t end well. You see, a fight needs to be settled by someone (ie a judge in a courtroom) and you also need to have someone fight along with you (an attorney). Both of cost time and money. All that wealth that you worked so hard to build up ends up in the hands of people other than those that you want. Those arguments may be avoided by properly writing your will within your estate plan. Yes, hiring an attorney to write your will costs money, but we can assure you that the cost for a will is less than the cost to fight over it!

So What Happens to My Stuff When I Die?

So, what goes into writing your will so that the right people get your stuff? Frankly, writing it is the easy part. Deciding the best course of action through thoughtful decision-making is the hard part. If you’re giving your wealth to your adult children, you likely know their personalities better than anyone else. It’s your responsibility to decide whether they are able to handle receiving a large sum of money or if it will be spent in ways that you don’t approve of. You can decide that they get their payout at a certain age or if they get it right away. 

When you decide to write your will, this is the area that you will spend the most time on. It’s important to not only write your will, but to also do it correctly. The worst thing that you can do is not put thought into it and cause more problems that you solved. We can’t stress enough that working with an attorney (even if it’s not us) is essential. When you do, you have a resource that can draw on the knowledge of what other people have done and what tends to work the best.

Contact Kiecker Law

Contact Kiecker Law to get started on your estate succession plan today.

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What Does a Will Really Do?

What is a will and what does it do? It sounds like such a simple question. It should be, but the details often get lost in emotional discussions such as estate planning. As a law firm, we sometimes forget that what is an everyday discussion for us and that we take for granted is not a normal thing for others to talk about. Whether you haven’t every talked about your will or you have done all of your estate planning, reviewing what a will is and what it does is a good idea.

What is a Will?

To put it plainly, a will is a legal document that answers two main questions:

  1. What happens to your stuff?
  2. What happens to your kids when you aren’t there to protect them?

Like mentioned above, we sometimes take these conversations for granted, but it can be a difficult conversation.  Not only do you have to ask yourself difficult questions that you may not know the answer to, but you have to admit your own mortality. Needless to say, that’s not fun. In fact, it can be downright scary. We don’t mean to give any more excuses to put off your estate planning any longer, but we find that there is no use sugar coating it to make our clients artificially feel better. In fact, you probably should feel a bit uncomfortable in making decisions that are so consequential to the people you most love. They are difficult, but important conversations and the worst thing that we and you can do is pretend that they aren’t. It’s OK to be scared. It’s OK to even be a little intimidated. That’s where your trusted advisors come in.

How to Write a Legal Will

The right attorney will guide you through that process. Like we mentioned before, we have these conversations on a daily basis. As a client, you can and should take advantage of that. Every person’s situation is different, but there are very few types of situations that your attorney hasn’t seen. You have the ability to use that knowledge and experience to your advantage. That is why you want to be comfortable with the attorney you choose to work with. We would love to say that Kiecker Law is the best firm for everyone (and, in our minds, we are), but even if we aren’t we want you to have comfort in knowing that your wishes are going to be honored.

Writing a Last Will and Testement

So, in a very brief way, we answered the question. What is a will and what does it do? Yes, it’s a legal document and decides where your stuff goes and what happens with your kids. We just talked a little bit of the process of what it takes to write a will, but in the next couple of months we will talk more specifically about the questions a will answers. We’ll talk about how we decide who gets your stuff and some things you might want to take into consideration. We’ll talk about what happens to your kids (if they are minors) and some things you want to keep in mind while making that decision. And we’ll talk about what happens if you don’t write a will. Throughout it all, we’ll give you a few thoughts on how we do things and some things that you might keep in mind regardless of what attorney you work with.

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