California Probate - Law Offices of Janet Brewer Blog

Should I Consider a ‘Life Settlement’?

“A growing number of seniors are facing challenges to achieving financial security in retirement. From rising healthcare costs to the economic turmoil caused by Covid-19, financial stressors are leading even those who thought they saved enough for retirement to look for ways to bolster their income and savings.”

Even in this volatile environment, many seniors may have an option for more retirement income available in the sale of their life insurance policy. A “life settlement” could provide them with an average of four or more times the cash surrender value of their policy.

The Street’s recent article entitled “Is Your Life Insurance Policy Worth More Than Its Cash Surrender Value?” explains that anytime a senior isn’t going to keep a life insurance policy, they should look into a life settlement to bring them the most money when they terminate the policy.

When a policy is lapsed, the policy owner gets nothing. When a policy is surrendered back to the insurance company, the policyowner receives little, if any, cash surrender value. So, in instances where a policy is being lapsed or surrendered, a life settlement makes financial sense.

According to 2019 life insurance industry data, over 90% of life insurance policies (by face amount) that terminated in 2018 were lapsed or surrendered. In 80% of those cases, the policyowners received nothing in return for years of premium payments to the insurance company, because they lapsed their policies.

Over the next decade, more than $2 trillion in life insurance policy death benefits that could qualify for a life settlement is anticipated to be lapsed or surrendered—about $850 billon is projected to be policies between $100,000 and $1 million.

To qualify for a life settlement, an individual must usually be at least 70 years old and own a whole life, universal life, or convertible term insurance life insurance policy, with a death benefit of $100,000 or more.

Traditionally, life settlements have been available only where the insured has developed a significant health impairment since the policy was started, but now even those insureds without a change in health can qualify for a life settlement, depending on their age and the type and size of the policy.

Some life settlement companies take several months to make an offer to purchase a policy, asking for full medical records and independent underwriting. However, recently, life settlement companies have shortened the time in evaluating a policy and making an offer.

Reference: The Street (Dec. 22, 2020) “Is Your Life Insurance Policy Worth More Than Its Cash Surrender Value?”

Estate Planning: How to Maximize What You Leave Behind

Anticipating and arranging what you leave behind for your heirs is imperative. Knowing how to maximize what you leave behind is the key. 

Many people in the United States feel woefully underprepared for retirement, let alone leaving behind assets for loved ones. However, the estate planning process provides many opportunities to protect your assets and minimize your tax liability, ensuring that they last for your lifetime and that more of your money is passed to loved ones.

A knowledgeable estate planner will be able to give you advice that ensures you are able to transfer the maximum assets possible by employing several strategies, including:

1. Set Up a Trust

Trusts protect the interest of your heirs, and they ensure that asset transfers occur according to your wishes. They also allow your heirs to avoid probate court and protect assets from creditors and divorce proceedings in the family. If your assets are substantial, you may also want to consider setting up a Dynasty Trust (also referred to as a Legacy Trust or Generation-Skipping Trust). 

These trusts can leave some assets for future generations of your beneficiaries, such as grandchildren and great-grandchildren. Depending upon your unique circumstances, you may want to consider several different types of trusts. An experienced estate planner can help you understand all of your options and decide which is the best choice to meet your unique needs.

2. Minimize Your Tax Burden

Depending upon the financial vehicles you use to transfer assets, various tax treatments may apply. For instance, certain inherited assets, such as stocks and mutual funds, receive favorable tax treatment, and leaving these assets to heirs can result in significant tax savings. Gifting assets to beneficiaries while still alive is another common strategy. 

Eligible gifts that are excluded from the gift tax (generally those below $15,000 in value given to an individual or $30,000 for a married couple) are entirely tax-free and do not require a gift tax filing. Similarly, any bequests made to charitable organizations are not subject to taxation, and they are deductible from your ordinary income. If you plan to leave any assets to charity, it’s a good idea to understand how they can benefit you and your estate by reducing your tax liability.

3. Establish Life Insurance or Tax-Deferred Variable Annuities

When life insurance policies are paid out, the beneficiary receives the proceeds without paying taxes on the funds. This leaves a guaranteed benefit to your heirs, unlike other investments that rely on market performance. In addition to these policies, you might want to consider fixed or variable annuities, which allow you to invest in mutual funds or fixed-income investments. 

Another benefit is that annuities held in a 401(k) plan are portable, allowing those who inherit them to transfer the annuity into another plan, rather than forcing them to liquidate it immediately, which can result in charges and fees. Before identifying which plans or annuities might be beneficial for your assets, it’s important to understand that some of these plans come with hidden fees or charges, so you must understand all of the fine print up front. 

This is another area where a skilled estate planner can help you understand your options and their benefits and drawbacks.

4. Creating Timelines & Managing Debt

In many instances, retirement accounts, such as IRAs and 401(k)s allow you to defer paying taxes until the money is withdrawn. Once retired, you can withdraw from these plans and pay taxes on the derived income. When it is beneficial for you to defer withdrawing, an estate planner can help you understand when the best time would be for you or your heirs to start deriving benefits from these types of accounts. 

Knowing when to start can often result in significant savings, allowing more of your assets to be enjoyed by you and your surviving heirs. Properly managing debt is another crucial aspect of maximizing your transferable assets. Your heirs don’t necessarily inherit your debt, but creditors can come after your assets to cover any outstanding debts, which can reduce the value of your estate. While you are alive, it is best to create a plan for settling outstanding debts and ensure that you do not accumulate new ones.

Estate planning can be complicated, and thinking of one’s demise is never a fun activity. But what you leave behind is your legacy. And even those who have many assets might be leaving their beneficiaries a much smaller amount if they haven’t adequately planned and taken advantage of strategies for maximizing the value of the assets that they can transfer upon death. 

For these reasons, you must work with an expert estate planner. The amount of money they can save your estate for your beneficiaries makes this action one of the best financial moves you can make.

Will I Owe Taxes on My Life Insurance Benefit?

“Life insurance is an essential part of estate planning. When you buy life insurance, it's important to make sure the policy payout will be enough to take care of your loved ones.”

MoneyWise’s recent article entitled “Are Life Insurance Benefits Taxable?” explains that, although the proceeds from a life insurance policy are usually tax-free, there are some exceptions. Life insurance payouts may be subject to taxes in the following situations:

A high-value estate. The federal estate tax exemption is $11.58 million this year, so if you leave an estate worth more than that, the IRS will charge a tax of 18% to 40% on the excess amount. It’s possible that life insurance proceeds could get taxed, if they're part of a high-dollar estate. To avoid this, you could create an irrevocable living trust to shield your assets from taxation. Ask an experienced estate planning attorney for help.

State inheritance or estate tax. Estate and inheritance tax laws are different in every state, so your estate or heirs may have to pay taxes on the death benefit, depending on where you reside. There are six states that have inheritance taxes (IA, KY, MD, NE, NJ, and PA). There are also a dozen states and the District of Columbia that have their own estate taxes (CT, HI, IL, ME, MD, MA, MN, NY, OR, RI, VT and WA).

Gifts. You can also avoid estate or inheritance taxes by transferring your life insurance policy to a beneficiary, while you're still around. You may have to pay a federal gift tax on the value of the policy when you do it, but the policy will be worth far less than the eventual death benefit. You can gift up to $15,000 a year to an individual without any tax. Remember that the policy's new owner will still have to make the payments.

The death benefit skips a generation. If you decide to skip your child and give the death benefit to your grandchild, the money would be considered taxable income by the IRS. That’s due to the "generation skipping transfer tax," which applies if you give any gift or inheritance to a family member who's more than one generation younger than you — or to a nonrelative who's more than 37½ years younger.

Life insurance installment pay-out. While life insurance benefits are typically paid out in a lump sum, some people opt to have their benefits paid out over time. I you do this, tell your heirs that they’ll have taxes on any interest that's added to the benefits, while they're being kept by the insurance company.

Withdrawal from your cash value of life insurance. With permanent life insurance policies that cover you for life (as opposed to time term life), there’s a savings component called “cash value.” During the life of the policy, some of your paid premiums funds the cash value account. You can make a withdrawal from this amount, provided you make a withdrawal that’s less than the amount you've paid into the policy. Otherwise, it’s taxed.

Group life insurance policies. Many companies offer life insurance as a benefit to their employees. If you have a policy at your job, the premiums won’t be taxable income unless the promised life insurance payout is more than $50,000.

Selling your life insurance policy. If you sell your life insurance policy for cash to a buyer or investor who will continue to make the payments and will receive the death benefit when you die, you'll have taxes on any income from the sale.

If you still have questions about how insurance contracts work, speak to an experienced estate planning attorney.

Reference: MoneyWise (Oct. 12, 2020) “Are Life Insurance Benefits Taxable?”

Can I Fund a Trust with Life Insurance?

“Estate planning is all about ensuring that your wishes are met after your death. All estate plans should include a will and powers of attorney. However, in many cases, a trust has additional benefits beyond what can be accomplished with the will and powers of attorney.”

A trust is a legal vehicle in which assets are legally titled and held for the benefit of another party, the beneficiary, explains Forbes’ recent article entitled “How To Fund A Trust With Life Insurance.” The article says that trusts are often funded with a life insurance policy. This will provide assets to be used after the death of the insured for the benefit of their family. If you are a parent of minor children, the combination of life insurance and a trust may be the best way to make certain that your children have their financial needs satisfied and also make sure the assets are used in ways you want.

Trusts are either revocable or irrevocable. A revocable living trust is the most frequently used type of trust. It has some major benefits, like the ability to avoid probate, which can be an expensive and lengthy process. Assets in a revocable trust are accessible much more quickly than those left through a will.  Because they’re revocable, the person who creates the trust (the grantor) can also make adjustments to the trust, as their situation changes.

A grantor will fund the trust with assets for the trust beneficiaries. For parents of minor children, funding a trust using term life insurance is an inexpensive tactic to make certain that your children are cared for after your death. Typically, each parent buys a life insurance policy, and in a two-parent household, usually each spouse names the other as the primary beneficiary with a revocable living trust as the contingent beneficiary.

If the second parents were to die, the life insurance policies would pay to the trust. The trustee would manage the trust assets for the minor children. Funding a trust with life insurance also benefits heirs, because it provides liquidity right after your death. Other assets like investment accounts and real estate can be very illiquid or have tax consequences. As a result, it can take a while to get to that equity.

On the other hand, term life insurance is a fast and tax-free funding way to build a trust. Purchase a term life policy that will last until your children are adults and out of college. In making the life insurance paid to a trust with your children as beneficiaries, you also have some control over the assets. If you name minor children as beneficiaries on a life insurance policy, they won’t be able to use the money until they are an adult. Some children may also not be financially responsible enough to manage money as young adults in their 20s.

If you already own a life insurance policy and want to create a trust, you can transfer ownership of the policy to the trust. Work with an experienced estate planning attorney.

Reference: Forbes (Sep. 17, 2020) “How To Fund A Trust With Life Insurance”

Why Should I Think about My Death?

“Talking about death makes most of us uncomfortable, so we don't plan for it. That's a big mistake, because if you don't have an end-of-life plan, your state's laws decide who gets everything you own. A doctor you've never met could decide how you spend your last moments, and your loved ones could be saddled with untangling an expensive legal mess after you die.”

Planning for the end of life isn't about you, says NPR’s recent article entitled “End-Of-Life Planning Is A 'Lifetime Gift' To Your Loved Ones.” As the owner of the estate, you really don’t get to see the benefit of your estate planning. The NPR article gives us some easy and practical steps to planning for the end of life.

Name your executor. If you're an adult, you should have a last will. This is because estate planning isn’t just for the rich. With a last will, you name an individual you trust to take care of everything when you die. That is the executor or personal representative. It's a good idea to choose someone from your family or a person with whom you have a good relationship. This person also should have a good attention to detail, because an executor would have to locate all your financial assets and communicate with everyone you've named in your last will.

Conduct an inventory. Create a list of everything you own. This includes financial assets—such as bank accounts, retirement savings or car—as well as things that have sentimental value, like jewelry, furniture and mementos. Once this is done, specify in writing those persons you want to have these items. If you have young children, designate a guardian for their care, in case you and your spouse are no longer alive. This person will be responsible for your child's schooling, health care decisions and value system. Digital accounts are also part of your property, such as your social media accounts, online photos, and whatever is in your Google Drive or iCloud. This also includes any online subscriptions and airline or credit card rewards. Create a secure list of all those accounts and the login and password details. Let your executor know where to find it. Make specific instructions about what you'd like to have happen with your online information.

Your decisions will change over time, so review and update your last will.

Think about your health care decisions. Your last will addresses what happens after you die. However, an advance directive is a legal document that addresses your health care and protects your wishes at the end of your life. There are two parts to an advance directive: a medical power of attorney, which is granted to someone to make decisions for you if you’re incapacitated; and a living will, in which you detail how you should be cared for by healthcare professionals.

Remember the emotional and spiritual aspects of death. The way in which you want to die is personal and about much more than just the medical aspect. It may be about being at peace with God or having your pets nearby.

Plan ahead to give you and your family peace of mind.

Reference: NPR (June 30, 2020) “End-Of-Life Planning Is A 'Lifetime Gift' To Your Loved Ones”

What Should I Know about Beneficiaries?

“Whenever you open a financial account, you’re almost always asked to name a beneficiary. Simply stated, a beneficiary of the account is someone who is entitled to the benefits of the account, typically, on the death of the account holder. If you’ve purchased life insurance, for example, you name a beneficiary, who receives the benefits of the policy when you pass.”

When you open almost any kind of financial account, like a bank account, life insurance, a brokerage account, or a retirement account – the institution will ask you to designate a beneficiary. You’ll also name beneficiaries when you create a will or other legal contracts that require you to specify someone to benefit. With some trusts, the beneficiary may even be you and your spouse while you’re alive.

A beneficiary is typically a person, but it could be any number of individuals, as well as the trustee of your trust, your estate, or a charity.

When you’re opening an account, many people forget to choose a beneficiary, mainly because it’s not necessary to do so with many financial accounts. However, you should name your beneficiaries, because it ensures that your assets will pass to the people you intend. It also eliminates conflict and can decrease legal interference.

There are two basic types of beneficiaries: a primary beneficiary and a contingent beneficiary. A primary beneficiary (or beneficiaries) is first in line to get the distributions from your assets. You can assign different percentages of your account to this group. A contingent beneficiary will benefit, if one or more of the primary beneficiaries is unable to collect (typically upon death).

You should review the designations regularly, especially when there’s a major life event, such as a death, divorce, adoption, or birth. This may change who you want to be your beneficiary.

Ask an experienced estate planning attorney to help you make certain that any language in your will, doesn’t conflict with beneficiary designations. Beneficiary designations take precedence over your will.

You can have a minor child as a beneficiary, but a minor usually can’t hold property. Consequently, you’ll need to set up a structure, so the child receives the assets. You can appoint a guardian who will keep the assets in custody for the minor. You may also be able to use a trust to the same effect but with an added benefit: you can state that the assets be given to beneficiaries, only when they reach a certain age or for a certain purpose, like buying a first home or for college tuition.

With estate planning, ask an attorney to help you structure any legal documents, so they achieve your aims without creating further complications. You can read more about how our process works, how we can make sure we are a good fit for your needs, and how to get started today right here.

Reference: Bankrate (July 1, 2020) “What is a beneficiary?”

Insurance: Why it Pays off in the Long-Run

Most individuals go through an eye-opening period during early adulthood, where a certain financial reality sets in, and most people begin to notice how expensive everything is and start scrutinizing every purchase they make. Indulgent expenses may be cut so that limited budgets can cover the necessities.

While most individuals plan for expenses such as housing, groceries, and transportation, they often overlook insurance. And while some insurance is required by law – such as automobile insurance for those who own vehicles – other policies are optional. For those on a tight budget, it may be tempting to scale back your insurance coverage to only the minimum required policies purchased from the most cost-effective provider.

But this action can be a big mistake that can cost you far more in the long run. Understanding the role of insurance and how it can actually save you money, protect your investments, and provide stability for your family is often the first step in identifying what types of insurance coverage you need.

Benefits of Insurance

When you have the right insurance policies in place, you can save yourself a ton of money in the long run if you have to file a claim. For instance, if you were to develop a severe illness that requires hospitalization, the average cost per day is around $3,949. Very few people could financially afford a stay of more than a couple days without completely wiping out their savings or putting themselves into serious debt that could take years to pay off. If you do have health insurance, you will still have some out-of-pocket costs, but they won’t be nearly as hefty as they would be without coverage.   

Insurance can also help you to protect your assets and investments. When making a significant purchase, such as a car or an automobile, most people have to finance the balance and then make monthly payments, which requires insurance. But even if you were to make the purchase outright, insurance provides some peace of mind that in a worst-case scenario, such as a fire that destroyed both, you wouldn’t suffer a total loss. Most policies would cover the majority of the value of the asset, minimizing your losses.

And some types of insurance also help to protect your loved ones, even when you are gone. In the event of an untimely death or accident, life insurance can cover the expenses of your final arrangements and even provide for the loss of income to your family. While this will never replace the loss of a loved one, it can ensure that your family doesn’t have additional financial stress.

When you’re young, it’s essential to carefully weigh all purchases and ensure that you are making smart choices with your income. And since most don’t see the immediate payoff in having insurance, it’s definitely an expense that some consider eliminating. However, the reality is that if you often don’t need insurance unless a major event has occurred that could potentially lead to a substantial financial setback, or even bankruptcy in some instances. And you never know when that might happen, so having essential policies in place is crucial, even if you don’t think you need them.

Essential Insurance Policies

Selecting the right policies and carrier can be confusing. There are so many to choose from, and while it may be tempting to purchase coverage for everything you can afford, there is such a thing as being overinsured. Given this, it’s worth taking time to understand what types of policies are offered and which ones fit your needs. The list below covers the types of insurance that are often considered essential, even for younger individuals. It’s an excellent place to start if you are evaluating your insurance needs.

1. Automobile Insurance: Most states require drivers to have auto insurance, or have outlined financial responsibility for those involved in a car accident. And unfortunately, even the best drivers sometimes get into unforeseen accidents. And while you may think that automobile insurance isn’t worth it if your car has little value, you may be on the hook for the damages to the other vehicle and medical expenses of its passengers. It’s simply too risky to drive any vehicle without auto insurance.
2. Health Insurance: Don’t let a serious illness bankrupt you. While some jobs offer health insurance as a benefit, it can also be purchased independently. It’s definitely worth purchasing since you never know when you may need it.
3. Life Insurance: Life insurance provides peace-of-mind that your family won’t be financially burdened in the event of our death. It’s especially important to have a policy that will cover some of your lost income if you are leaving behind dependents.

While you may find that you need additional types of insurance, such as disability insurance and home insurance when you purchase a home, these three are crucial for nearly all individuals.

Can I Protect My Estate with Life Insurance?

With proper planning, insurance money can pay expenses, such as estate tax and keep other assets intact, says FedWeek’s article entitled “Protect Your Estate With Life Insurance.”

The article provides the story of “Bill” as an example. He dies and leaves a large estate to his daughter Julia. There are significant estate taxes due. However, most of Bill’s assets are tied up in real estate and an IRA. Julia may not want to hurry into a forced sale of the real estate. If she taps the inherited IRA to raise cash, she’ll be forced to pay income tax on the withdrawal and lose a valuable opportunity for extended tax deferral.

A wise move for Bill would be to purchase life insurance on his own life. The policy’s proceeds could be used to pay the estate tax bill. Julia will then be able to keep the real estate, while taking only the Required Minimum Distributions (RMDs) from the inherited IRA. If Julia owns the insurance policy or it’s owned by a trust, the proceeds probably will not be included in Bill’s estate and won’t help with the estate tax obligation.

However, there are a few common life insurance errors that can damage an estate plan:

Designating the estate as beneficiary. If you make this move, you put the policy proceeds in your estate, where the money will be exposed to estate tax and your creditors. Your executor will also have additional paperwork, if your estate is the beneficiary. Instead, be certain to name the appropriate people or charities.

Designating a single beneficiary. Name at least two “backup” or contingency beneficiaries. This will eliminate some confusion in the event the primary beneficiary should predecease you.

Placing your life insurance in the “file and forget” file. Be sure to review your policies at least once every three years. If the beneficiary is an ex-spouse or someone who has passed away, you need to make the appropriate change and get a confirmation, in writing, from your life insurance company.

Inadequate insurance. You may not have enough life insurance. If you have a young child, it may require hundreds of thousands of dollars to pay all of his or her expenses, such as college tuition and expenses, in the event of your untimely death. Skimping on insurance may hurt your surviving family. You also don’t need to be so thrifty, because today’s term insurance costs are very low.

Reference: FedWeek (June 11, 2020) “Protect Your Estate With Life Insurance”

What are the Estate Planning Basics?

“It's never too early to start working on how your things will be handled, once you pass away.”

Estate planning is an all-encompassing term that refers to the process of organizing, inventorying and making plans for the proper handling of your affairs after you die, including your dependents as well as your assets, valuables and heirlooms. This typically involves writing a will, setting up a power of attorney and detailing funeral arrangements with the help of an experienced estate planning attorney.

CNET’s article entitled “Estate planning 101: Your guide to wills, trusts and all your end-of-life documents” provides us with some of the key steps in getting started with estate planning.

Create an Inventory. Your estate includes all of the things you own, such as your car and other valuable possessions, plus "intangible assets" like investments and savings. If you own a company, that's also part of your estate. Everything you own should be given a valuation. Have your home and other valuables appraised.

Evaluate your family's needs. A big reason for estate planning is to make certain that your family is cared for, in the case of your death or incapacitation. If you're a breadwinner for your family, the loss of your income could be devastating financially. Consider a life insurance policy to help provide a financial cushion that can be used to cover living expenses, college tuition cost, and mortgage payments. You may also need to designate a guardian, if you have children under the age of 18.

Make job assignments. Dividing up a person’s property can be a tough and emotional task. Make it easier by ensuring that all of your assets have been assigned a beneficiary. You'll also name a few people to coordinate the process of dividing up your belongings. List your beneficiaries, so they know who gets what.

Create a Will. You should have a legally binding document setting everything out in as much detail as possible. A will is a legal document that directs the way in which you want your assets and affairs handled after you die. This includes naming an executor, who is someone to manage how your will is executed and take care of the distribution of your assets.

Help your family if you’re incapacitated. A living will (also known as a medical care or health care directive) states your healthcare preferences, in case you're unable to communicate or make those decisions on your own. If you need life support, a living will states your preferences.

Start estate planning sooner rather than later. Talk to an experienced estate planning attorney today. Contact our office today to schedule your consultation.

Reference: CNET (June 8, 2020) “Estate planning 101: Your guide to wills, trusts and all your end-of-life documents”

Changing Your Estate Plan When You Adopt a Child

When you adopt a child, you most likely need to make some major adjustments to your estate plan. Completing the adoption is a major life change that probably affects how you want your estate distributed and who you choose as your heirs.

Which Documents Need to Change?

Depending on the documents you originally signed when you made your estate plan, you may need to change:

• Your will
• Your trust
• Life insurance documents
• Retirement account beneficiary designations
• Your power of attorney
• Your advance health care directive
• Guardianship designation
• Business succession documents

Probably the most important document that many people need to change is the will. Sometimes, you can sign an addendum to the will, but more likely you will need a new will prepared, signed, and witnessed.

Why Do You Need to Change Your Will and Other Estate Planning Documents?

Your will currently does not include your adopted child as an heir. Since you probably want to leave part of your estate to your child, you need to change the document. The same is true of other estate planning documents. There is no guarantee that your child will receive anything from life insurance or a retirement account unless you specifically name the child in a beneficiary designation.

When you adopt a child after creating a will and forget to change the will, your child usually will still inherit part of your estate. He or she gets the portion of your estate that would have gone to him or her if you had not made a will at all. However, you may want to provide a different portion to your child or pass your estate on to your spouse first. In addition, you probably don’t want to take the chance that your child receives nothing.

Will Your Adopted Child Inherit Just Like Birth Children?

Yes, once you have officially adopted a child and received the court order granting the adoption, your child is treated just like birth children for purposes of inheritance laws.

Planning your estate? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.