New York Estate Planning & Elder Law

Can My Estate Plan Include Illiquid Assets, Like Real Property and Ownership Interests?

“No good estate plan can afford to ignore the other assets, the ones called ‘illiquid.’ That category includes anything that can’t readily be converted to cash, in a regulated market with readily determined prices.”

Many people are focused on their traditional assets that generate monthly statements, like bank and investment accounts, stocks and mutual funds. However, those assets, which are called “liquid” because they can be readily converted to cash, are often less than half of their entire portfolio. Wilmington Biz advises readers not to ignore their illiquid accounts in the article “Don’t Overlook Those Harder-To-Sell Assets When Making An Estate Plan.”

First, let’s see what assets fall into the illiquid category. Commonly, they include:

• Real estate, collectibles, artwork, cars, livestock, mineral rights and timber, as well as
• Financial instruments that don’t have a ready market: hedge funds, options, stock in non-public corporations and some types of debt securities.

The biggest consequences of leaving these assets out of an estate plan isn’t felt until after the owner dies. First, estate taxes must be paid which are levied on the value of all inheritable assets transferable to heirs. Those taxes are due in a matter of months. However, if a good chunk of those assets are illiquid, they may need to be sold in a hurry to raise the cash needed to pay the taxes or debts of the estate.

That presents a real problem for heirs.

Many illiquid assets can’t be sold, or have to be sold below their market value, if they have to be sold within a tight nine-month window or a reasonable estate administration time frame. If the decedent owned real estate in a region were prices are in a slump, the sale price will be lower than if there were enough assets to pay the taxes and wait for prices to return to normal or even become robust.

A will often divides the estate in a way that has nothing to do with the actual value of the assets. Let’s say three children are left a third of an estate, two-thirds of which are real estate and one-third of which is cash or liquid assets. The real estate may need to be sold, if the heirs don’t want to own an undivided interest in the real estate property together.

Here’s a more common situation: If the amount of cash needed to settle the estate is far less than the actual value of an illiquid asset, but the only way to get cash is to sell the asset, something that might have been hoped to be passed on to the next generation may be lost. That includes family farms, a family business or an heirloom.

Careful planning with an experienced estate planning attorney well in advance can avoid this and similar situations, where illiquid assets are concerned. It may mean setting up and funding a trust or using life insurance. An estate planning lawyer will be able to guide the family through the process to protect assets, but it must be done well in advance of the person’s death.

Reference: Wilmington Biz (November 27, 2019) “Don’t Overlook Those Harder-To-Sell Assets When Making An Estate Plan”

For more information on asset preservation and estate planning, please visit my estate planning website.

Protect the Family Farm with Advance Planning / White Plains, NY & Greenwich, CT

“Planning for your farm’s future has never been more urgent. With one-third of United States farmers older than age 65, it’s estimated that 70% of farmland will change hands in the next 15 years.”

Have you figured out who will take over the family farm? Are you or your parents prepared to transition the farm or ranch to the next generation? How will family members be part of the transitions? Do you have a plan to minimize tax exposure?

These are just a few of the questions that must be addressed about the future of the family farm or ranch, reports the article “Don’t be a failed family-business statistic: Plan for your farm’s future” from High Plains Drifter. It’s one of the hardest parts of the agriculture business. Decades of hard work and assets are at stake, and the statistics are not great. Only 30% of any kind of family businesses survive to the second generation.

You need a long-term strategy and planning that needs to be started long before any member of the family begins thinking about retirement. You’ll also need good advisors, including an estate planning attorney, accountant and possibly a banker.

What is a succession plan? A succession plan is a forward-looking strategy that prepares the individual and their family for the change in ownership, including development of leadership to avoid family disputes, manage tax consequences and ensure that the farm or ranch smoothly transitions to the next generation of owners.

The estate plan provides the mechanics to implement the succession plan. It can be complicated, so an experienced estate planning attorney who has worked with farm or ranch owners will be invaluable.

Here are three key areas where guidance is critical:

On-farm and off-farm heirs. How do you balance the inheritance of children who remain on the farm and those who chose to pursue other occupations? An objective viewpoint is needed, and a calm head. There are different ownership structures that can be used to define the roles and expectations for both on-farm and off- farm heirs.

Smooth financial transition. It is important to lessen tax liability and maximize benefits. Cash will be needed to pay estate taxes. This is where many family businesses are lost: a key asset must be sold to pay the tax bill, and it dampens the chances of success for the future.

Address financial needs of current and future generations. Can the business support multiple generations? What does everyone need to continue living on the farm, and how will the income be generated?

Family farms and ranches that survive to the second or third generations don’t happen by accident. Succession plans need to be created and then they need to be reviewed every few years. If you have a will or an estate plan, if you haven’t updated it in five years, it’s time to review it or create one.

Reference: High Plains Journal (Nov. 8, 2019) “Don’t be a failed family-business statistic: Plan for your farm’s future”

For more information on business succession planning, asset preservation and estate planning, please visit my estate planning website.

Small Business Owner? Don’t Hesitate on Estate Plan / New York, NY & White Plains, NY

So, what happens to your business after you are gone?

You have put a life’s work into developing your vision and building a successful business. What do you need now? An estate plan protects that life’s work, according to Bakersfield.com in “Estate planning tips for small business owners.”

It makes sense. You’ve likely spent decades building your business throughout your working life. You’re proud of what you have accomplished, and you should be. You should then protect it with a well thought out plan. Your estate planning attorney will be able to help you design a two-pronged plan for your business and your personal life. For business owners, these two are intertwined.

Can you avoid taxes? Reviewing your personal and business assets as part of an estate plan is the best way to minimize the tax exposure of your estate and facilitate an organized sale or succession plan for your business. You can’t completely avoid taxes, but good planning will help them from being excessive.

There are a number of IRS sections that can help, and your estate planning attorney will know them. For example, Section 6166 gives your loved ones more time to pay the tax, by paying in ten annual installments.  Section 303 lets your family redeem stock with few tax penalties. Talk with your attorney and CPA to find out if your business is eligible for either of these strategies. Create a plan and talk about it in detail with survivors to help them navigate the transition.

Do you have a buy-sell agreement in place? This is critical, if more than one person owns the business. The buy-sell agreement dictates how the partnership or LLC is distributed upon the death or incapacity of one of the owners. Without one, family members may be stuck owning a company they don’t want or know nothing about. Alternatively, your former partners may find themselves partnered with people with whom they never intended to go into business.

The buy-sell agreement creates a plan so, when an owner passes, the shares of the company must be bought out by the other owners at a fair market price. The agreement can even establish a sale price, so family members will know exactly what they can expect to receive from the sale. In addition, a buy-sell agreement can be used to block certain individuals from taking a role in the business. For many family businesses, that’s enough of a reason to make sure to have a buy-sell agreement.

How are life insurance policies used by small business owners? Maybe you want the business to die with you. Some small businesses provide a stable income for the owner, but there’s no plan for the business to be passed to another family member or to survive the passing of the owner. If that is your situation, and you want your family to have income, you’ll need a life insurance policy.

A life insurance policy can also be used to help partners with the capital they’ll need to purchase your shares, if that is how your buy-sell agreement has been set up.

As a small business owner and a family breadwinner, you want to be sure your family and your business are prepared for your passing.  

Reference: Bakersfield.com (July 15, 2019) “Estate planning tips for small business owners”

For more information on asset preservation and estate planning, please visit my estate planning website.

Own a Small Business? Estate Planning Is Crucial / White Plains, NY & New York, NY

Plan needs to address the owner’s personal life and the future of the business.

Everyone needs an estate plan but small business owners need to take an additional step and plan for what they want to see happen to their business, according to grbj.com in “Estate planning for small businesses.”

Some of the steps recommended for small business owners are:

A will. A last will and testament allows you to name someone who will receive your assets, including your business, when you die. If you don’t have a will, you leave your heirs a series of problems, expenses and stress. In the absence of a will, everything you’ve worked to attain will be distributed based on the laws of the state. That includes your assets and your business. It’s far better to have a will, so you make these decisions.

A Living Trust. A living trust is similar to a will, in that it allows you to name who will receive your assets when you die. However, there are certain advantages to having a trust. For one thing, a trust is a private document, and assets controlled by the trust can bypass probate. Assets controlled by a will must first go through probate, which is a public proceeding. If you’ve ever had a family member die and wonder why all those companies seemed to know that your loved one had passed, it’s because they get the information that is available to the public through the probate process.

If your business is owned by a trust, the transition of ownership to your intended beneficiaries can be a much smoother process.

A financial durable power of attorney. This document lets you appoint an agent to act on your behalf if you are incapacitated by illness or injury. This is a powerful legal document, so take the time to consider to whom you want to give this power. Your agent can manage your finances, pay your bills and manage the day-to-day operations of your business.

A succession plan. Here is where many small business owners fall short in their planning. It takes a long time to create a succession plan for a business. Sometimes a buy-out agreement is part of a succession plan, or a partner in the business or key employee wishes to become the new owner. If a family member wishes to take over the business, will they inherit your entire ownership interest, or will there be a payment required? Will more than one family member take over the business? If a non-family member is going to take over the business, you’ll need an agreement documenting the obligation to purchase the business and the terms of the purchase.

If you would prefer to have the business sold upon your death, you’ll need to plan for that in advance so that family members will be able to receive the best possible price.

A buy-sell agreement. If you are not the sole owner, it’s important that you have a buy-sell agreement with your partners. This agreement requires your ownership interest to be purchased by the business or other owners, if and when a triggering event occurs, like death or disability. This document must set forth how the value of ownership interest is to be determined and how it is to be paid to your family. Without this kind of document, your ownership interest in the business will pass to your spouse or other family members. If that is not your intention, you’ll need to do prior planning.

The right type of life insurance. This is an important part of planning for the future for the small business owner. The death benefit may be needed to provide income to the family until a business is sold, if that is the ultimate goal. If a family member takes over the business, proceeds from the life insurance policy may be needed to cover payroll or other expenses, until the business gets going under new leadership. Life insurance proceeds also may be used to buy out the other partners in the business.

An estate planning attorney can advise you on creating an estate plan that fits your specific circumstances and can include the future of your business as well.

Reference: grbj.com (Grand Rapids Business Journal) (July 19, 2019) “Estate planning for small businesses”

For more information on asset preservation and estate planning, please visit my estate planning website.

Oil Tycoon Loses Lawsuit, Family Retains Control with Trust / White Plains, NY & Greenwich, CT

Jack Grynberg built a billion-dollar industry but faces a near total loss of assets.

Denver oil tycoon Jack Grynberg placed his assets into trusts for his family to protect his wealth and now has lost a suit to retain his wealth after the family fired him, according to The Denver Post in “Denver oil tycoon Jack Grynberg not entitled to $400 million in back pay in family feud, judge rules.”

Grynberg didn’t anticipate that his now ex-wife and children would take over the companies that he created, built and ran. His attorney said that his children had made no contributions to these companies and have now received about $1 billion that he had earned, while Grynberg has kept less than $5 million for his 25 years of hard work.

Meanwhile, the attorney representing his three adult children and ex-wife reportedly said the judge’s decision confirms that they were within their rights when they acted to assert control over the oil and gas companies. They say that they did so to protect the companies and their father’s legacy.

The case centers on the argument that Grynberg, 87, wasn’t the same as he was when he battled major oil conglomerates and foreign governments with accusations of cheating and wrongdoing. It was through the extensive use of the courts that Grynberg built his fortune. A Holocaust survivor and graduate of the Colorado School of Mines, Grynberg said he put his family’s name on the companies, with the understanding that he would maintain control of the business during his lifetime.

In February, an Arapohoe County jury disagreed with that and said the family owned the companies and could fire Grynberg whenever they wanted. That is what the family did. Grynberg asked for back pay of about $400 million.

The family didn’t know that they had the legal right to fire him until 2016. Prior to that time, he had complete control of the companies. When a family member had an opinion or disagreed with him, he’d refuse the request. When all was well, the family was fine with this arrangement, However, as he aged and his decisions became more questionable, the family decided it was time to take control.

The judge maintained that Grynberg was a brilliant businessman, describing him as “very astute and calculating in all of his business decisions.” In other words, when he gave control over to the family, he knew exactly what he was doing.

Reference: The Denver Post (June 21, 2019) “Denver oil tycoon Jack Grynberg not entitled to $400 million in back pay in family feud, judge rules”

For more information on asset preservation and estate planning, please visit my estate planning website.

Do It Yourself Estate Planning Can Backfire / White Plains, NY & Greenwich, CT

Shortcutting the process can save money now. However, it will be costly later and cause problems for heirs.

Trying to work around estate planning with limited knowledge can often create more problems than it solves, according to My San Antonio in the article “Estate planning workaround idea needs work.”

The article concerns a rancher who planned to put his accounts in his wife’s name and the land in his children’s, in order to avoid the legal work within a courtroom. The problems this rancher will create for himself, his wife, and his children, will easily eclipse any savings in time or fees he thinks he may have avoided.

Let’s start with the idea of putting all the man’s assets in his wife’s name. For starters, that means she has complete control and access to all the accounts. Even if the accounts began as community property, once they are in her name only, she is the sole manager of these accounts.

If the husband dies first, she will not have to go into probate court. That is true. However, if she dies first, the husband will need to go to probate court to access and claim the accounts. If the marriage goes sour, it’s not likely that she’ll be in a big hurry to return access to everything.

Another solution: set the accounts up as joint accounts with the right of survivorship. The bank would have to specify that, when a spouse dies, the other owns the accounts. However, that’s just one facet of this estate planning hack.

The next proposal is to put the ranch into the adult children’s names. Gifting the ranch to children has a number of irreversible consequences.

First, the children will all be co-owners. Each one of them will have full legal control. What if they don’t agree on something? How will they break an impasse? Will they run the ranch by majority rule? What if they don’t want to honor any of the parent’s requests or ideas for running the ranch?  In addition, if one of them dies, their spouse or their child will inherit their share of the ranch. If they divorce, will their future ex-spouse retain ownership of their shares of the ranch?

Second, you can’t gift the ranch and still be an owner. The husband and wife will no longer own the ranch. If they don’t agree with the kid’s plans for the ranch, they can be evicted. After all, the parents gave them the ranch.

Third, the transfer of the ranch to the children is a gift. There will be a federal gift tax return form to be filed. Depending on the value of the ranch, the parents may have to pay gift tax to the IRS.  Because the children have become owners of the ranch by virtue of a gift, they receive the tax-saving “free step-up in basis.” If they sell the ranch (and they have that right), they will get hit with capital gains taxes that will cost a lot more than the cost of an estate plan with an estate planning attorney and the “courtroom mumbo jumbo.”

Finally, the ranch is not the children’s homestead. If it has been gifted it to them, it’s not the parent’s homestead either. Therefore, they can expect an increase in the local property taxes. Those taxes will also be due every year for the rest of the parent’s life and again, will cost more over time than the cost of creating a proper estate plan. Since the ranch is not a homestead, it is subject to a creditor’s claim, if any of the new owners—those children—have a financial problem.

We haven’t even mentioned the family business succession plan, which takes a while to create and complements the estate plan. Both plans exist to protect the current owners and their heirs. If the goal is to keep the ranch in the family and have the next generation take the reins, everyone concerned be better served by sitting down with an estate planning attorney and discussing the many different ways to make this happen.

An estate planning attorney can advise you on creating an estate plan that fits your family’s particular circumstances.

Reference: My San Antonio (April 29, 2019) “Estate planning workaround idea needs work”

For more information on asset preservation and estate planning, please visit my estate planning website.

Tough Situations May Develop when Inheriting the Family Farm / Greenwich, CT & White Plains, NY

Tax liabilities can lead to a severe financial misstep.

If you are likely to inherit the family farm, it would be wise to pay especially close attention to your estate planning attorney and CPA, according to Capital Press in “The family farm is coming to you: What’s next?”

If you receive the property as a gift from parents while they are alive, then you retain their income tax basis in the property. If they inherited it also, they likely have a low tax basis. Farms with a basis of $50,000 that are now worth $2 million are not unusual. If the farm is sold, there will be a capital gains tax on the difference between the basis and the present value, which could be more than $600,000.

If you inherit the farm from a parent and then sell it for $2 million, its value at the time of their death, you would not have to pay a capital gains tax. That saves $600,000.

The estate tax may not be so bad, depending upon your state’s estate tax, which is probably lower than the highest capital gains rate. If you live in Oregon, you may be eligible for the Oregon National Resource Credit, which was created to reduce Oregon estate taxes on family farms. Your estate planning attorney will be able to help you plan for and manage these taxes.

If you bought the farm from a parent’s trust or estate for $2 million, then you have a $2 million basis in the property and will probably not owe any property gains tax, if you eventually sell it for $2 million.

Just be sure that you comply with all reporting requirements. If you are in Oregon and took the Oregon National Resource Credit, then for five out of eight years after the death, the recipient of the inherited property is required to file an annual certification to keep the credit that was used to lower the estate tax. Failure to comply, means that a portion of the estate tax will have to be repaid.

If you own the farm without other family members, you should start planning your next steps. To whom do you want to pass the farm? If you want to keep the farm in the family, work with an attorney who is familiar with farm families so that you can keep working the land and reduce any disputes.

Farmers often separate business operations from the land, with the operations held by one business and the land held by another entity. This allows the estate planning attorney to plan for succession in how operations and land are transferred to the next generation. It also provides asset protection, while you are alive.

Make sure that your farm succession plan and your estate plan are aligned. A common issue is finding that buy-sell documents don’t align with the will or trust. 

Reference: Capital Press (March 24, 2019) “The family farm is coming to you: What’s next?”

For more information on asset preservation and estate planning, please visit my estate planning website.

Longer Life Span for Women Means Different Estate Planning / New York, NY & Greenwich, CT

Women should consider how to care for loved ones through an estate plan as well as themselves.

Women live approximately 4.9 years longer than men. That fact should be considered in estate planning, according to the Boca Newspaper in “Smart Tips for Women: Estate Planning.”

If you plan carefully, wishes for the distribution of your assets are more likely to be carried out, tax liabilities can be minimized, and your loved ones will not be faced with an extended and expensive process of settling your estate.

Here are a number of actions that should be considered:

If you have an estate plan but aren’t really sure what’s in it, it’s time to get those questions answered. Make sure that you understand everything. Don’t be intimidated by the legal language: ask questions and keep asking until you fully understand the documents.

If you have not reviewed your estate plan in three or four years, it’s time for a review. There have been new tax laws that may have changed the outcomes from your estate plan. Anytime there is a big change in the law or in your life, it’s time for a review. Triggering events include births, deaths, marriages, and divorces, purchases or sales of a home or a business or a major change in financial status, good or bad.

If you don’t have an estate plan, stop postponing and make an appointment with an estate planning attorney as soon as possible.

Your estate plan should include advance directives, including a Durable Power of Attorney and a Health Care Proxy. You may not be capable of executing these documents during a health emergency and having them in place will make it possible for those you name to make decisions on your behalf.

Anyone who is over the age of 18 needs to have these same documents in place. Parents do not have a legal right to make any decisions or obtain medical information about their children, once they celebrate their 18^th birthday.

Make a list of your trusted professionals: your estate planning attorney, CPA, financial advisor, your insurance agent and anyone else your executor will need to contact.

Tell your family where this list is located. Don’t ask them to go on a scavenger hunt while they are grieving your loss.

List all your assets. You should include where they are located, account numbers, contact phone numbers, etc. Tell your family that this list exists and where to find it.

If you have assets with primary beneficiaries, make sure that they also have contingent beneficiaries.

If you have assets from a first marriage and remarry, be smart and have a prenuptial agreement drafted that aligns with a new estate plan.

If you have children and assets from a first marriage and want to make sure that they continue to be your heirs, work with an estate planning attorney to determine the best way to make this happen. You may need a will, or you may simply need to have your children become the primary beneficiaries on certain accounts. A trust may be needed. Your estate planning attorney will know the best strategy for your situation.

If you own a business, make sure you have a plan for what will happen to that business if you become incapacitated or die unexpectedly. Who will run the business, who will own it and should it be sold? Consider what you’d like to happen for long-standing employees and clients.

An estate planning attorney can advise you on creating an estate plan that fits your specific circumstances.

Reference: Boca Newspaper (March 4, 2019) “Smart Tips for Women: Estate Planning”

For more information on asset preservation and estate planning, please visit my estate planning website.

When It Comes to Farming, It’s All about the Family / White Plains, NY & Greenwich, CT

Government regulations usually have less impact than family relations.

There are some big estate planning mistakes that farmers can make. It is best to be aware of them and avoid following in the footsteps of others, according to Ag Web in “5 Estate Planning Mistakes You Don’t Want To Make.”

The current estate tax exemptions of over $11 million per person and over $22 million per married couple will only be this high for a limited period of time. When the Tax Act expires in 2025, the exemption will be back down to $5.5 million per person and $11 million for a couple.  However, there is an election in 2020. There is no guarantee that the limits will remain in place until 2025.

The biggest risk to the future of any family business is not taxes but rather the family itself. Blended families, stepparents, siblings and half-siblings and how family relationships work or don’t work is the bigger reason why family farmers, ranchers and business owners need estate and succession planning.

Second, people make a huge mistake in trying to treat their children the same. Fair does not always mean equal. Think about who is working on the farm, and who is not. Who is going to do a great job maintaining the family legacy, and who has already left to live in another state?   

Third, you cannot simply title your property so your kids and your spouse own it together and it passes to them when you die. It sounds nice and simple, but it’s a huge mistake. People think they want to do this to avoid probate, but it creates many problems. If you just add names on property and there is no bill of sale, you create a taxable gift. What happens if one of your children gets divorced? 

Fourth, the plan to “sell off the farm when I retire” plan is a terrible tax burden to place on yourself. If you sell the last crop and auction off the equipment, there will be a big income tax bite. Farmers tend not to pay a lot of income taxes. They sell this year’s grain next year, and they deduct next year’s expenses this year. They buy equipment in December and then depreciate it, but then when you do a retirement sell off, you get all the taxes that you’ve been pushing away all at once.

Fifth is the one that dooms so many families, both farmers and non-farmers. You can’t copy your neighbor’s estate plan and hope it will work. Every family is different, and no matter how small your town, everybody does not know the exact details of everybody else’s business.  

Reference: Ag Web (Jan. 15, 2019) “5 Estate Planning Mistakes You Don’t Want To Make”

For more information on tax planning, asset preservation and estate planning, please visit my estate planning website.

A Farmer’s Estate Plan Can Be a Challenge / Greenwich, CT & White Plains, NY

Are one or more of the potential heirs considering or have no interest in the farm? There are three steps.

When a farmer passes away, one, all or none of the children may have an interest in the farm. That makes planning seem difficult.  However, in reality there are only three steps to consider, according to Agriculture.com in "3 Steps To Succession Planning."

The steps include:

• Communicate with family members about what you want to happen to your farm after you pass away and figure out what your family expects to happen. This is especially important when children are not interested in farming, so their inheritance expectations can be known and taken into account.
• Try to determine what tools are available to meet your goals. If you can modify a lease agreement to help meet your goals, then that may be an available tool.
• The last thing to do is to determine your legal options. This is where a good estate planning attorney comes into play. The attorney will listen to your goals and figure how to meet them. What that will look like will vary because every family farm is different.

Reference: Agriculture.com (March 8, 2018) "3 Steps To Succession Planning."

For more information on asset preservation and estate planning, please visit my estate planning website.