How to Fund Your Revocable Living Trust

Transcription

1 How to Fund Your Revocable Living Trust By Richard M. Morgan & Loraine M. DiSalvo This newsletter is the final installment of our three part series on Revocable Living Trusts ( RLT s). The first newsletter in this series was Should I Use a Will or a Revocable Living Trust? Separating Facts From Fiction, and the second newsletter in this series was Do You Need To Fully Fund Your Revocable Living Trust During Your Life? Separating Facts From Fiction. This newsletter is for those who answered yes to the first two questions: now that you ve decided to use an RLT in your estate plan and you ve decided you want to fund it, at least to some extent, this newsletter tells you how to fund the RLT. Funding your RLT means that you actually transfer assets to it, usually by changing the ownership of those assets to the Trustee of the RLT. The RLT can be funded either during your lifetime or at your death. If you don t fund the RLT during your lifetime, then it will usually be funded after your death, with a combination of (1) assets that are transferred to the RLT under your Will and (2) assets that are paid directly to the RLT under a beneficiary designation. If assets have to pass to the RLT under your Will, then the Will will have to be admitted to probate before the assets can be distributed to the RLT. Whether you actually need to fund your RLT during your lifetime depends on what you are trying to accomplish by using it. This topic was covered in the previous installments in our RLT series, so we won t go into it again in depth here. However, here is a summary of some common situations and the extent to which funding the RLT tends to be needed in each: - If you are using the RLT only in case you become incapacitated for a long period of time prior to your death and you want to make it easier for someone to manage your assets in that situation, then you may not fund the RLT at all during your lifetime unless the incapacity actually occurs; - If you are using the RLT only because you live in Georgia but own real estate in another state and you want to avoid the need for an ancillary probate in another state at your death, then you should fund the RLT with the non- Georgia real estate before you die, but you may not need to fund it with any of your other assets; and - If you are using the RLT to try to minimize or eliminate the need for any probate proceedings after your death, then you should fund the RLT as fully as possible during your lifetime. The rest of this newsletter will discuss how to actually transfer assets to an RLT. A) Residence and Other Real Estate (But Not Including Any Real Estate Owned Through a Limited Liability Company or Other Business Entity). 1) You need to execute a deed in order to transfer real estate to an RLT. In order to transfer ownership of any real estate that you own in Georgia, you must execute a legal document called a deed. The deed is then recorded with the appropriate government agency (in Georgia, this

2 would be the Superior Court of the county in which the real estate is located), to make the change of ownership part of the public record. In Georgia, you cannot simply name an RLT as the new owner in a deed. Instead, the deed must transfer ownership of the real estate to the Trustee of the RLT, using the Trustee s actual name, along with a designation stating that the Trustee is receiving the property as Trustee of the RLT. The language used will generally follow this pattern: (full name of Trustee as stated in the RLT), as Trustee or successor Trustee(s) of (full name of the RLT as stated in the RLT) U/A dated (date the RLT was signed). U/A stands for under agreement. For example, a deed could transfer real estate to: John R. Smith, as Trustee or successor Trustee(s) of The John R. Smith Revocable Trust U/A dated December 1, If the RLT has multiple Trustees, then each of them should be named, using language such as this: (full names of each co- Trustee as stated in the RLT), as Co- Trustees or successor Trustee(s) of (full name of the RLT as stated in the RLT) U/A dated (date the RLT was signed). For example, a deed could transfer property to John R Smith and Susan M Smith, as Co- Trustees or successor Trustee(s) of The John R Smith Revocable Trust U/A Dated December 1, If you want to transfer a parcel of real estate to two separate RLTs, then you would name the Trustees of each RLT as shown above. You should also add the words as tenants in common at the end of the designation of the second Trustee. For example, the deed could transfer real estate to: John R Smith, as Trustee or successor Trustee(s) of the John R Smith Revocable Trust U/A Dated December 1, 2014 and Susan M Smith, as Trustee or successor Trustee(s) of the Susan M Smith Revocable Trust U/A Dated December 1, 2014, as tenants in common. Tenants in common means that each owner owns an undivided interest in the property. If no specific per- owner percentage is stated, then the joint owners are deemed to each own an equal share. Other states may have different rules regarding how a trust must be designated in a deed, so if your real estate is located outside of Georgia, be sure you know how the deed should read. Deeds come in different types, such as Quit Claim Deeds, Limited Warranty Deeds, and Warranty Deeds. In general, you should use either a Limited Warranty Deed or a Warranty Deed to make a transfer to your RLT, and not a Quit Claim Deed. This is because using a Quit Claim deed can cause you to lose the benefits of any title insurance policy that may exist with regard to the property. Using a Limited Warranty Deed or Warranty Deed helps ensure that your title insurance protection is preserved. In Georgia, when a deed is filed with the Superior Court, a form called a PT- 61 form is filed along with it. The PT- 61 form updates the property tax records to show the new owner of the property,

3 and shows the amount of any real estate transfer taxes that are due with the filed deed. In Georgia, a deed that transfers real estate from a living owner to that owner s RLT is generally considered a deed of gift, and no real estate transfer taxes are payable with it. However, you do need to pay filing and recording fees to the court. After the real estate has been transferred to the RLT, you may need to file a new application for property tax exemptions, such as homestead exemption, and you should update your homeowner s insurance to show both you and the Trustee of the RLT as the owners and insureds. You should generally have any needed deed prepared and filed by a competent attorney licensed in the state where the real estate is located, instead of trying to do it yourself. 2) You should check certain things before you execute a deed to transfer property to an RLT, and you should ensure after the transfer that you take any steps needed to keep everything in order. a) Consider getting a title search and title insurance. If you did not get title insurance when you originally acquired the property, as with property you received through a gift or an inheritance, then you should consider having a title search performed and purchasing title insurance. Title insurance and a title search are not required in order for the transfer to the RLT to be valid. However, a title search can help you turn up any potential title problems, so that you can get them cleared up, and having title insurance can make it easier for you to borrow against or sell the property in the future. b) Check with the lender with regard to any mortgage, line of credit, or other debt before transferring real estate subject to that debt. If your real estate is subject to a mortgage, line of credit, or other debt, then you should notify the lender in writing and attempt to get the lender s consent to or approval of the transfer before you sign any deeds transferring the property to your RLT. Most mortgage documents contain a clause, often called a due on sale clause, that lets the lender make your mortgage due in full immediately if the property is transferred without the lender s prior consent, unless an exemption applies to the transfer. Federal law generally provides an exemption for the transfer of the borrower s primary residence to the borrower s RLT. However, this exemption does not apply to real estate that is not used as the borrower s primary residence. This means that it is critical to ensure that you have the lender s approval before you transfer a second home or rental properties to your RLT. In addition, although the primary residence exemption may protect the transfer of your primary residence, we think it is generally a better practice to notify your lender before you make any kind of transfer of real estate that is subject to debt.

4 c) Check with the property tax authorities. Before you transfer a parcel of real estate to an RLT, you should contact the appropriate property taxing authority s office to determine (1) whether the transfer will have any effect on the valuation of your property or any other item that will affect the calculation of your property taxes and (2) to find out whether you will still qualify for homestead or other property tax exemptions after the transfer and what you will need to do in order to continue receiving the benefit of those exemptions. As long as you are the primary beneficiary of your RLT during your lifetime and you will continue using the property as your primary residence, you may still be able to qualify for the homestead exemption. However, if you have a farm property or other property that is subject to special valuations or exemptions, such as a conservation or agricultural use valuation, you should be very careful before transferring the property, even to your RLT. In many cases, any kind of transfer can result in the loss of the special valuation or exemption and the need to go through a long and complex application process. In addition, benefits received in previous years can sometimes be subject to recapture if the valuation or exemption is lost before a set date, which can create a nasty, unexpected property tax liability. d) Ensure that you take whatever steps are needed after the transfer to ensure that you continue to receive the benefits of any property tax exemptions or valuations. In Georgia, a transfer of residential real estate, even from the original owner to her own RLT, can trigger the need for the owner to reapply for the homestead exemption. These exemptions must usually be filed within a certain period during any given calendar year in order for the exemption to apply for that year s property taxes. For example, Fulton County, Georgia required that homestead exemption applications for 2016 be filed between January 1, 2016 and April 1, If other exemptions or valuations may apply to your property, you will also need to ensure that you take whatever steps are needed to obtain the benefits of those exemptions or valuations in a timely manner. e) Update your insurance policies. Before you transfer real estate to an RLT, you should consult with your insurance companies to ensure that your homeowner s insurance and other policies are updated as needed. For example, if the original owner of a residence transfers that property to her RLT, then her homeowner s insurance policy will need to list both the Trustee of her RLT along with the homeowner, individually, as insured parties, to help ensure that no coverage gaps exist. This applies even if the homeowner is also the only Trustee of the RLT. Other property and casualty policies may need to be updated, and liability policies like an umbrella policy may need to be updated as well. This is also a good time to get a good insurance adviser to help you review all of your coverages and ensure that everything is adequately covered at reasonable rates and by good, solid companies.

5 B) Marketable Securities and Cash that are NOT held in tax- deferred savings such as IRAs or Qualified Plans. In general, this means assets that are held in regular bank accounts such as checking and savings accounts, brokerage accounts, in CDs that are not IRA CDs, and, in some cases, in actual stock certificates. 1) You need to open accounts in the name of the RLT. In order to transfer marketable securities and cash that are held in accounts (not in actual certificate form), you need to open one or more of the appropriate kind of accounts for the RLT. The bank or brokerage then needs to be told to transfer the assets from your individual account to the RLT s new account. If you do hold actual stock certificates for any investments, you could have the issuing company issue new stock certificates. However, it would generally be better for you to have these stocks added to a regular brokerage account and taken out of certificate form, because this makes them easier to keep track of and transfer in the future. An account opened for your RLT should be opened in the name of Trustee(s) of the RLT in the same basic way discussed above with regard to real estate. However, you may need to put the same information onto the account paperwork in a different format, instead of having everything in one line. For example, instead of having all the information stated as: John R. Smith, as Trustee or successor Trustee(s) of The John R. Smith Revocable Trust U/A dated December 1, 2014, the bank or brokerage paperwork may ask you to put the name of the RLT on one line ( The John R. Smith Revocable Trust ); the name of the Trustee on another line ( John R. Smith ); the name of the creator of the RLT (also known as a Trustor, Settlor, Grantor or Donor) on another line ( John R. Smith ); and the date the RLT was signed on another line ( December 1, 2014"). 2) Do not have more than one RLT own any given bank or brokerage account. In Georgia (and likely in many other states), if you and your spouse each have separate RLTs, you should generally have any marketable securities and cash owned in one RLT or the other, and you should generally avoid having both of the RLTs named as owners on any given bank or brokerage account. This is due in part to the fact that RLTs cannot own assets as joint tenants, because they don t die. With a normal joint bank or brokerage account held by individuals in Georgia, the individuals are deemed to own the account as joint tenants unless a different form is specifically stated in the account paperwork, and the surviving owner will automatically receive ownership of 100% of the account s assets at the first owner s death. If the creator of one RLT dies, the Trustee (or successor Trustee) is then simply charged with following the appropriate terms of the RLT. The RLT itself continues, and its share of the account will need to be determined. Having the RLTs specifically own the account as tenants in common does not help, due to the way ownership of assets in a joint account is determined under Georgia law. In Georgia, the person who contributed assets to a joint account is the owner of the assets she contributed, and the

6 owners own the same respective proportions of any income (interest, dividends, or capital gains) generated by the assets in the account. If an account is held by two people (or two RLTs) as tenants in common, then the deceased owner s actual share of the account has to be determined in order to figure out what portion of the assets will be controlled by that owner s Will or RLT. This often means tracing each owner s contributions to and withdrawals from the account over time. This kind of tracing can be difficult to near- impossible. Therefore, it s generally best to just avoid these issues by not having RLTs own accounts jointly. 3) Do not use payable on death designation or transfer on death registrations on any assets owned by an RLT. Payable on death ( POD ) designations apply to bank or brokerage accounts other than IRAs or other tax- deferred retirement accounts. Transfer on death ( TOD ) registrations apply to individual securities, such as stocks, bonds, or mutual funds. They are a kind of beneficiary designation and are designed to allow an asset subject to the POD designation or TOD registration to transfer automatically to another person at the original owner s death. Because RLTs do not die, having a POD designation or TOD registration apply to assets owned by the RLT is meaningless, and just creates the possibility for confusion and disputes, especially if the POD or TOD beneficiary is not the same as the beneficiaries who would receive the assets under the RLT. In fact, while POD designations and TOD registrations can have their place in an estate plan, in many cases they can end up actually creating problems and causing the plan not to work as intended, and they create the need for more changes to be made if the desired asset distribution plan changes. For these reasons, we often recommend that our clients avoid using POD designations and TOD registrations even when the clients are not using RLTs as part of their planning. C) Interests in Closely Held Business Entities, Such as Stock in Corporations, Partnership Interests, and Limited Liability Company ( LLC ) Interests. Interests in companies that are not publicly traded ( closely held companies) can be held as shares of stock in corporations, partner interests in different kinds of partnerships, and member interests in LLCs. You should always consult a competent attorney before transferring any interest in a closely held business. While the mechanical method of transferring these interests is often fairly easy, involving the execution of fairly simple documents, there are many other factors that must be carefully considered before the transfer is carried out. Many closely held businesses use agreements that place restrictions on transfers of interests in their companies, such as a shareholders agreement, an operating agreement, or a partnership agreement. These restrictions can prevent certain types of transfers completely, can require the consent of certain other parties before a transfer is made, and can limit the rights and interests actually given to a transferee or require the consent of certain parties before the transferee receives full ownership rights. Any such agreement should be reviewed before any transfer of an interest in a company is attempted, and any restrictions on or requirements for the transfer should be met. If an attempted transfer fails to satisfy any such requirements, the result

7 could be that the transfer is simply ineffective and void. However, in some cases, the attempted transfer could trigger some type of penalty or a requirement to pay damages to other owners. D) Do NOT Try to Transfer Tax- Deferred Retirement Savings Accounts Such as IRAs or Qualified Plan Accounts to an RLT During the Owner s Life. Instead, Make Sure You Use Correct Beneficiary Designations With Regard to These Accounts. 1) If the owner of a tax- deferred retirement savings account such as an IRA, 401(k), 403(b), or other qualified plan is changed during the owner s life, the assets in the account can become subject to income tax immediately. You should not attempt to transfer the ownership of an IRA or qualified plan account during your lifetime. If the ownership of this kind of account is changed, the IRS views the change of ownership as if the original owner withdrew all of the assets from the account at the time of the change. This causes the assets to be subject to income tax and possible penalties, producing a potentially nasty income tax result and causing the loss of future income tax deferral on those assets. Please note: changing plan administrators or IRA custodians through a proper transfer is not considered a change of ownership and should not cause income tax problems. 2) Instead of changing the ownership of a tax- deferred account, you need to have the beneficiary designation on the account provide for the desired distribution of the assets after your death. You need to get a change of beneficiary form for each of your tax- deferred retirement savings accounts, and change each beneficiary designation. The beneficiary designation on a tax- deferred retirement savings account will control what happens to the assets in that account at the death of the account owner. Beneficiary designations must be carefully coordinated with the overall estate distribution plan. In some cases, such as where beneficiaries will receive their assets outright under your RLT, this will mean that individuals and charities named as beneficiaries under your RLT will also need to be named directly as beneficiaries under your IRA and qualified plan accounts. In other cases, such as where your RLT provides for your beneficiaries to receive their assets in trusts that will continue after your death, the beneficiary designation will likely need to actually designate the trusts that will eventually be created for those beneficiaries as the beneficiaries of the IRA and qualified plan accounts. Please note: You generally do not want to simply have your RLT itself designated as the beneficiary of tax- deferred retirement savings accounts, because this will usually not produce a desirable income tax result. If a tax- deferred retirement savings account does not have a proper designated beneficiary under the applicable IRS rules, the assets must usually be withdrawn from the account over a very short period of time (within as few as 5 years, if the account owner is under 70 1/2 at death). However, if an individual is properly designated as the beneficiary of an IRA or other tax- deferred retirement savings account, the individual is normally allowed to use his own life

8 expectancy as the basis for calculating the minimum required distributions ( MRDs ) that he must take from the account during his lifetime. This can produce a significant amount of additional income tax deferral and allow a correspondingly greater amount of wealth to be transferred to the beneficiary of the account. Individuals will normally qualify as proper designated beneficiaries. A trust is not normally considered to be a proper designated beneficiary; but a trust can be a proper designated beneficiary if it meets certain IRS rules. If the trust meets the right rules, the IRS will look through the trust and pretend that a given individual beneficiary of the trust is actually the designated beneficiary of the account for MRD purposes. Most normal RLTs are not structured in a way that allows the RLT itself to qualify as a proper designated beneficiary on tax- deferred retirement savings accounts after the death of the RLT s creator. This means that, if the RLT itself is named as the beneficiary of a tax- deferred retirement savings account, the IRS will likely treat the account as having no designated beneficiary. However, if the RLT will create new trusts for its beneficiaries, those trusts can, with proper drafting, qualify as proper designated beneficiaries and allow their individual beneficiaries to take MRDs based on at least the life expectancy of the trust s oldest living beneficiary. To get the best result, the beneficiary designation used on each account should also designate the Trustees of each of the trusts that the RLT will create as separate beneficiaries of shares of the account. As an example, if your RLT provides for a Residuary Trust to be created after your death, and if the Residuary Trust will divide into equal shares for each of four children, the beneficiary designation could read as follows: - 25% to the Trustee or successor Trustee(s) of the Residuary Trust created under The John R. Smith Revocable Trust fbo Child A; - 25% the Trustee or successor Trustee(s) of the Residuary Trust created under The John R. Smith Revocable Trust fbo Child B; - 25% the Trustee or successor Trustee(s) of the Residuary Trust created under The John R. Smith Revocable Trust fbo Child C; and - 25% the Trustee or successor Trustee(s) of the Residuary Trust created under The John R. Smith Revocable Trust fbo Child D. Please note: the example above will not be suitable for all RLT- based plans. If there may be more than one trust created by your RLT after your death, and if the different shares are determined by a formula based, for example, on the availability of your generation- skipping transfer ( GST ) tax exemption, then, for the best income tax results, the beneficiary designation used on your tax- deferred retirement accounts may also need to include the same

9 kind of formula to create the shares to be paid to each beneficiary s separate trust. You should ensure that you have the help of a qualified professional adviser before you file or change the beneficiary designations on your tax- deferred retirement savings accounts. E) Life Insurance Policies. You can change the ownership of a life insurance policy on your own life to your RLT, if desired, but in most cases you should only need to change the beneficiary designation on the policy. To do so, you need to obtain a change of beneficiary form from the issuing life insurance company, complete the form, and then file it with the company. As with tax- deferred retirement savings accounts, the beneficiary designation should coordinate with the overall desired estate distribution plan. If your RLT provides for individual or charitable beneficiaries who will receive their assets outright after your death, then you may be able to simply name the desired beneficiaries directly as beneficiaries on the policy. However, if you want to let the terms of the policy s beneficiary designation effectively change automatically if you ever change the terms of the RLT, and if creditors are not expected to be significant concern at your death, then it may be easier for you to simply name the RLT as the beneficiary on the policy. Life insurance proceeds from a policy you own on your own life are not usually subject to income taxes, and so many of the concerns raised by having an IRA or other tax- deferred retirement savings account paid to an RLT do not apply to a life insurance policy. If the RLT is intended to create trusts for beneficiaries, then one option (again assuming creditors are not likely to be a significant concern) is simply to name the RLT as the beneficiary on the policy. This effectively allows the beneficiary designation on the policy to automatically change if you ever amend the RLT, and reduces the need for you to make updates to multiple documents if you change your estate plan. If creditors may be a problem, however, then you may want to directly designate the trusts that the RLT will create after your death as the beneficiaries of the life insurance policy. This means that more monitoring and potential updating will be needed, but it can help preserve the creditor protection benefits often applied to life insurance policy proceeds and still ensure that the proceeds end up in the intended trusts. To name your RLT directly as the beneficiary, you use language very similar to the language suggested above with regard to bank or non- tax- deferred brokerage accounts, but you do not want to name the actual then- serving Trustee (because that Trustee may not still be serving or even living at your death). For example, the beneficiary designation could read as follows: the Trustee or successor Trustee(s) of (name of the trust) U/A dated (date signed). For life insurance owned on John R. Smith s life, the beneficiary designation could be: the Trustee or successor Trustee(s) of The John R. Smith Revocable Trust U/A dated December 1, As with bank or brokerage account paperwork, this information may need to be placed on separate lines, depending on the particular insurance company s documents.

10 To name trusts to be created by your RLT directly as beneficiaries, you would use essentially the same kind of language as given above with regard to tax- deferred retirement savings accounts. F) Annuities. As with tax- deferred retirement savings accounts, it is generally best not to change the ownership of an annuity during your lifetime. This is in part because many types of annuities are subject to rules that require individual ownership for their income tax benefits to be maximized. Instead, you should generally keep any annuities in your own name, and then ensure that you use appropriate beneficiary designations on the annuities. Please also note: even if your RLT provides for your desired beneficiaries to receive their assets in trust, it may be better, for income tax reasons, to name those desired beneficiaries directly as the beneficiaries of any annuity. This is because the income tax rules that allow some kinds of trusts to qualify for continued income tax deferral with regard to tax- deferred retirement savings accounts such as IRAs and 401(k)s do not apply to annuities, and having a trust named as beneficiary of an annuity can result in the loss of continued income tax deferral on the annuity. You should consult competent professional advisors when dealing with the ownership of an annuity or with the creation of a beneficiary designation on any annuity. G) Tangible Personal Property. 1) Most kinds of tangible personal property: jewelry, furniture, artwork, knick- knacks, books, clothing, electronics, household goods, etc. This category is intended to include items of tangible personal property that generally do not have separate ownership documents and that are not normally registered with any government agency or court. The category includes both assets that may increase or at least maintain their values over time (such as fine jewelry, high- quality or desirable antiques, art, and collectibles) and normal stuff, which tends to lose much of its value the day you purchase it and will likely continue to decline in value over time (such as your normal furniture, TVs, computers, and clothing). Because these assets generally do not have ownership documents, they can usually be transferred through a general transfer and assignment document (in our practice, we use a document called a Personal Property Transfer and Assignment form for this purpose). The document should generally describe the kinds of items being transferred and state that you are transferring them to the Trustee of your RLT, using the same kind of language shown above with regard to deeds for real estate. The document can also state that you are transferring both the tangible personal property that you already own as well as any new items you may acquire in the future to the RLT. However, please note that this kind of anticipatory transfer may not be valid in all states, and it is a good idea to periodically execute a new version of the Personal Property Transfer and Assignment document. You should check with your homeowner s or other property and casualty insurance company to be sure any necessary paperwork is done to ensure that your insurance continues to cover your tangible personal

11 property after it is transferred to the RLT. 2) Automobiles, boats, and RVs. We generally recommend that cars, pickup trucks, other automobiles, boats, and recreational vehicles such as motorhomes not be transferred to your RLT. Instead, you should generally continue to own these in your individual name. In a perfect world, we would recommend that these type assets be transferred to your RLT if the desire is to fully fund your RLT during your life, because having these assets owned in your own name can mean that they need to be handled through a probate process at your death. However, transferring these assets to an RLT (or other type of trust) can be difficult, and insuring these assets if they are owned by an RLT or any other kind of trust can be even more difficult. Georgia law does allow a non- probate method for transferring automobile titles where there is a Will that will not be offered for probate. This alternative method requires that you have the actual automobile title document and an Affidavit of Inheritance signed by all the heirs. We have not researched whether this same kind of process or any other probate alternative is available for boats or other watercraft. 3) Firearms and other weapons subject to the National Firearms Act (often referred to as Title II or Class 3 firearms). If you own any firearms or other weapons that are subject to the National Firearms Act or the 1968 Gun Control Act, you should not transfer these to a normal RLT. You should either continue to own these items in your own name or create a special type of trust, often referred to as a gun trust, that can own these firearms. These items are subject to very strict federal laws, and an improper transfer can create criminal liability and subject both the transferor and any recipient to both potentially very long jail time and very large fines. Consult a competent attorney before transferring any of these items to anyone. While we hope this information has been helpful, creating or funding an RLT is not a good do- it- yourself project. If you have an RLT as part of your existing estate plan and you have questions about whether you should fund it or how to go about funding it, or if you would like to discuss whether an RLT could provide benefits as part of your estate plan, we are here to help. Contact our office manager, Susan Stanelle, at either (678) or info@morgandisalvo.com to schedule an estate planning consultation.