North Carolina Estate Planning Blog : North Carolina Estate Planning Lawyer & Attorney : Trust Counsel, PA : Trust Administration : Serving Chapel Hill, Durham, Raleigh, Pittsboro, Orange County, Chatham County

I previously blogged about inherited IRAs being subject to the claims of creditors, both in (In Re: Jarboe) and outside of (Robertson v. Deeb) bankruptcy, and one case (In Re: Nessa) where an inherited IRA was determined to be protected under federal law.

Here's a summary of the latest ruling, which contradicts the Nessa holding, courtesy of Robert Keebler, CPA:

In In Re: Chilton, the United States Bankruptcy Court for the Eastern District of Texas found that an inherited IRA is not equivalent to an IRA for purposes of determining whether the account contains “retirement funds” that may be exempted from the bankruptcy estate under U.S.C. § 522(d)(12).  The Court also found that an inherited IRA is not a traditional IRA exempt from taxation under IRC § 408(e)(1).   In Re: Chilton, 105 AFTR 2d 2010-XXX, 03/05/2010;

There is really no way to reconcile the holdings in Nessa and Chilton, but the Chilton decision is clearly the minority view.  If you want to protect your IRA from your heirs creditors, it is vitally important to utilize a standalone IRA trust .
 

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Members of America's middle class should be a lot more concerned about protecting their assets from creditors than from the so called "death tax."  While the very wealthy can use offshore trusts and other complex entities, such planning is cost prohibitive for most of us.  However, there are many other things that can be done to protect one's assets.  Check out this concise post by fellow attorney Ike Devji that reflects what I tell my own clients: Asset Protection for the Middle Class?

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In a recent ruling, the U.S. Bankruptcy Court for Minnesota held that an inherited IRA was protected from the debtor's creditors under federal law. In re: Nessa, 105 AFTR 2d 2010-XXXX, 01/11/2010.  The key difference between this decision and the earlier Texas and Florida decisions that held the inherited IRAs were not protected from creditors is that in Minnesota, bankruptcy debtors rely on federal property exemptions rather than state exemptions.  In many states, including Texas, Florida and North Carolina, debtors must use state exemptions. 

There has not yet been a ruling interpreting North Carolina statutory exemption for IRAs, but don't take a chance with your hard-earned retirement funds - leave them to your beneficiaries in an IRA Trust to ensure maximum protection from creditors.

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In a case interpreting Arizona law, the Court of Appeals for the Ninth Circuit held in Gaughan v. Costas that a disclaimer filed prior to declaring bankruptcy was valid and effective since the disclaimer was permitted under state law.  In re Costas, 555 F.3d 790 (9th Cir. 2009).  The effect of the ruling is that federal courts must examine state law definitions of property to determine whether a disclaimer of an interest in a trust or estate constitutes a fraudulent transfer under the Bankruptcy Code.

In Costas, the court’s decision meant that because the debtor had disclaimed her inheritance before filing for personal bankruptcy, her family members rather than her creditors were able to recieve the money her father had left for her.   Check out this Trusts and Estates article discussing the case.

North Carolina falls under the jurisdiction of the Fourth Circuit Court of Appeals, so this ruling does not automatically apply to bankruptcies in this state.  The NC law on disclaimers (called renunciations in NC) provides that a renunciation valid under federal law means that the renouncer is treated as having predeceased the date of the transfer (generally the death of the person from whom the renouncer would inherit). 

Federal disclaimer law provides, inter alia, that the disclaimer must be made within nine months of the date of  death of the transferor and without accepting benefits from or asserting control over the disclaimed property interest. IRC 2518.

I have yet not researched NC case law, but based on the wording on the NC statute (click "Continue Reading), I think the Fourth Circuit could reach the same conclusion.

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Rich Rodriguez, the football coach for the University of Michigan, has been sued for $3.9 million due to a loan default.  Rodriguez and partners formed an limited liability company, The Legends of Blackburg LLC, to develop a condo community in Virginia.  Apparently, as is customary, he had to give a personal guarantee, and now he's on the hook for a cool $4,000,000.00.

Rodriguez was previously sued by his former employer, West Virginia University, for $4 million over a buyout clause dispute.  That case was settled last year.

Let's hope he learned his lesson and did some asset protection planning before the condo loan defaulted!

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House Bill 1058 - Effective December 1, 2009, an individual resident of North Carolina who is a debtor can retain, free from the enforcement of the claims of creditors, the debtor's aggregate interest, not to exceed $35,000 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor. The current amount is $18,500.

·        An unmarried debtor who is 65 years of age or older can retain an aggregate interest in the property not to exceed $60,000 in value so long as the property was previously owned by the debtor as a tenant by the entireties or as a joint tenant with rights of survivorship and the former co-owner of the property is deceased. The current amount is $37,500.

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I previously blogged about a Bankruptcy Court in Texas holding that an inherited IRA was not exempt from claims of the new owner's creditors.   In re Jarboe, 2007 WL 987314 (Bkrtcy S.D. Tex. 2007).

A new ruling out of Florida reaches the same conclusion, stating:

"[t]he purpose of the . . . Legislature in exempting individual retirement accounts is to allow debtors to preserve assets which have been earmarked for retirement in the ordinary course of the debtor's affairs. Such a purpose would not be served by upholding [the beneficiary's] request to keep his interest in the IRA as exempt."   (Second District Court of Appeals in Robertson v. Deeb (2D08-6428))

Given that Texas and Florida are perhaps the two most debtor-friendly states in the nation, this trend is certainly something to be concerned about.  It's probably just a matter of time before we see such a ruling in North Carolina.

Don't wait until it's too late - protect your legacy by using a standalone IRA Trust.

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Many people come to see me for asset protection advice only after some type of actual or probable liability has arisen.  At that time, it is normally too late to do any meaningful asset protection, as most contemplated transfers of property could be undone as a fraudulent conveyance.

In order to determine whether there has been a fraudulent conveyance, which would render the planning useless, the courts look at "badges of fraud, such as the following:

1. An inadequate or fictitious consideration or a false recital as to consideration.
2. The fact that property is transferred by a debtor in anticipation of or during a pending suit.
3. Transactions which are not in the usual course or method of doing business.
4. The giving of an absolute conveyance which is intended only as security.
5. The failure to record the conveyance or an unusual delay in recording the payment.
6. Secrecy and haste are ordinarily regarded as badges of fraud but are not in themselves conclusive of fraud.
7. Insolvency or substantial indebtedness of the grantor.
8. The transfer of all the debtor's property, especially when she is insolvent or greatly financially impoverished.
9. An excessive effort to clothe a transition with the appearance of fairness.
10. The failure of parties charged with fraudulent conveyance to produce available evidence or to testify with sufficient preciseness as to the pertinent details, at least in cases where the circumstances under which the fraud, transfer took place are suspicious.
11. The unexplained retention of possession of property transferred by the grantor after conveyance.
12. The buyer's employment of the seller to manage the business as before, selling the goods which were the subject of the transfer.
13. The failure to examine or to take an inventory of the goods bought or the presence of looseness or incorrectness in determining the value of property.
14. The reservations of a trust for the benefit of the grantor and the property conveyed.
15. The existence of a blood or other close relationship between the parties to the transfer.

Also, certain other circumstances may constitute evidence of fraud, such as the transferee's failure to keep a record of the dates and amounts of loans, or advances made by him to the transferor; failure to demand repayment; an erroneous or insufficient description of the property transferred; sending the money received from the transferee out of the country; assignment of the property to the seller rather than to the purchaser; and the fact that the purchaser, soon after transfer, offered to resell the property at a much higher price.

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Offshore trusts continue to be an effective asset protection tool, including in bankruptcy, tax litigation, and divorce situations, even when the facts are not favorable to the trust grantor.  The catch, however, is that you might have to some time in jail for contempt of court before you and your money are reunited.

Here are three cases arising out of Florida:

In re Stephan Jay Lawrence, 238 B.R. 498 (Bankr. S.D. FL 1999).  Stephan Lawrence set up and funded an offshore asset protection trust just weeks after an arbitration award against him for over $20,000,000 due to a margin account deficit due to the 1987 stock market crash.  Lawrence then filed bankruptcy.  The court discredited Lawrence's testimony that he was no longer a beneficiary of the trust and found that he still had control over the trust, including the power to repatriate the trust assets.  Lawrence was held in contempt and jailed for not complying with the order to repatriate.

Lawrence remained in jail for about six years, after which time he was released by the court, based on a ruling that there was no realistic possibility that Lawrence would comply with the order for repatriation.

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I had a new client come in yesterday, and we were discussing including asset protection in his estate plan.  He mentioned he had recently been sued for lead paint related issues by the tenant of an older rental home he owned in another state.  Now many of his personal assets may be at risk for any judgment rendered against him.  Even if that's not the ultimate result, he may have months or years of worry before the outcome is determined.

That's a perfect example of why rental property should be owned by a limited liability company (LLC), rather than individually.  LLCs shield ones personal assets from liability associated with the property, whether it's as a result of an injured tenant or even guest of a tenant.  It's hard to foresee all the types of liability that may exist, but an LLC can help protect against them all. 

By the way, I practice what I preach - my office condominium is owned by an LLC I established, even though my law firm is the only tenant.  I hope that no liability will ever result from this building, but the LLC certainly helps me sleep at night!

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Revocable living trusts are a common estate planning tool for avoiding probate.  It is not uncommon for a home to be transferred to the trust for that purpose, as well as occasionally motor vehicles. I normally advise my clients to check with their insurance company to make sure their coverage will not be affected.

However, yesterday I had a conversation with a local independent insurance agent, who said that most of the insurance companies he works with will not insure homes and cars owned by revocable living trusts under standard personal policies.  Instead, business policies must be used, which can be more expensive.

For homes owned by living trusts, the insurance companies require a business fire policy, and then for complete coverage a renter's policy must be obtained.

If this causes the insurance costs to increase significantly, it may outweigh any benefit of avoiding probate.

Bottom line - check with your insurance agent or company before transferring a home or a car to your trust.  If the new ownership will up your insurance costs, discuss the matter with your attorney to make sure the transfers are still worthwhile from a financial standpoint.  For real estate, you should also check with your title insurance company.  Finally, make sure your umbrella liability insurance covers your trust assets also.

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What is an LLC?

In 1977 Wyoming was the first state to enact laws permitting the creation of a Limited Liability Company. An LLC combines the best features of a corporation with the best features of a partnership. Among other things, an LLC has the limited liability of a corporation and the ease of management and flow-through income tax treatment of a partnership. 

In 2000, Wyoming again led the nation by enacting its Close LLC statute. This type of LLC is designed specifically for a small closely held family business. Family assets (such as stocks, bonds, farms, ranches, rental property, CDs and family businesses) can be managed under the protective umbrella of a Wyoming Close LLC.

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Anyone who owns rental real estate in his or her individual name is taking a tremendous risk.  Suppose your tenant, or one of the tenant's guests, gets hurt on your property and sues the owner of the property.  That's you!  And any judgment against you can be satisfied from other property you own, such as bank accounts, investments, and other real estate, even your home.  While liability insurance is a good idea, it alone should not be relied upon for protection.

That's why I advise all of my clients who own rental real estate to form an Limited Liability Company (LLC) and transfer ownership of the property to the LLC.  Assuming the LLC is managed properly, this technique will shelter all of your other assets in the event of lawsuit involving the property.

For maximum protection, each rental property should be owned by a separate LLC.  For persons with more than 3 or 4 properties, it often makes sense to consider a Series LLC.  A Series LLC is basically one LLC with several sub LLCs, which can reduce filing fees and administrative costs.

At present, Series LLCs cannot be formed under North Carolina law, but it is possible to have an LLC established in another state own property in North Carolina.

It is possible to establish an LLC without the benefit of legal counsel, but I strongly advise against it.  All of the proper formalities must be followed in order for an LLC to function properly and provide the full protection available by law.

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The recent Bailout law increased the FDIC insurance coverage for bank accounts to $250,000 per person, per bank.  However, different types of accounts, such as joint, POD, etc. affect how the coverage is calculated.  The FDIC provides this handy calculator to estimate the coverage available to you for your accounts at each bank.

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If you were ever to be sued, what property would be protected in the event of a judgment against you?

Homestead - only $18,500 of the value of your home.  If you are over 65 and your deceased spouse (or significant other, etc.) was an owner of the home also, the amount protected is $37,500.

Tenancy by the Entirety property - real estate owned by a husband and wife is protected against creditors of either spouse (but not joint creditors),

ERISA Retirement Accounts - 401(k)s, 403(b)s, 457 plans are protected by federal law.

IRAs - protected by NC law.  Protection of IRAs rolled over from ERISA plans is limited to $1 million in bankruptcy.  Inherited IRAs do not necessarily have the same protection, at least in bankruptcy.

Life Insurance - proceeds payable to a beneficiary are protected from creditors of the policy owner provided the beneficiary is not the owner or the insured.

Tangible Personal Property - vehicles are protected up to $3,500 and household furnishings up to $5,000.

529 College Savings Plans - protected up to $25,000.

For details, see NCGS Section 1C-1601.  As you can see, beyond retirement accounts these protections are minimal and do not substitute for adequate liability insurance and proper asset protection planning.  In addition, these same exemptions do not apply to Medicaid eligibility for nursing home care, which has a completely different set of rules.  Retirement accounts are NOT exempt for Medicaid purposes.

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These days, just about everyone should take care to protect their assets from possible lawsuits or other problems.  Here are 13 things to watch out for:

1. Don't keep money in a joint account, even with a spouse. 
2. Don't own the car of an adult child, or keep him or her on your policy.
3. Don't own vehicles jointly with your spouse.
4. Don't go without sufficient umbrella liability insurance.
5. Don't own rental real estate in your own name.
6. Don't own real estate jointly with someone other than your spouse without a "buy-sell"  or joint ownership agreement.
7. Don't leave property, including life insurance and retirement benefits, directly to minor children.
8. Don't operate a business as a sole proprietor.
9. Don't let other people operate any of your motor vehicles, but if you do, make sure your insurance policy covers them.
10. Don't sign a joint income tax return with your spouse if you have any suspicion that he or she is not reporting all income, over-stating deductions, or is otherwise acting fraudulently or negligently.
11. Don't co-sign or guarantee loans to family members or friends.
12. Don't serve on the board of a non-profit organization unless it has sufficient errors and omissions insurance for directors.
13. Don't get married without a comprehensive prenuptial agreement.

While this list can help get one started on an asset protection plan, there is no substitute for seeking the counsel of an experienced attorney to ensure that you and your family are fully protected.

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When doing estate planning, one needs to consider to whom to leave one's property, which is usually not much of a problem.  Next, one must decide who will be in charge of the administration the Will - the executor .  This choice is sometimes more difficult, but even without suitable family or friends, a professional or corporate fiduciary can be named.  Once these decisions are made, the very simplest of wills can be created.

However, a simple will does not address three very important estate planning considerations dealing with protecting assets and family members:

1. Estate Taxes - currently estate taxes are an issue for estates over $2 million.  What many people don't realize is that virtually everything they own is taxable.  The most common misconception is that life insurance is tax free.  This is generally true for income tax purposes, but not for estate tax purposes.  The combination of life insurance face value, retirement plans and equity in real estate put many couples over the exemption amount.  Without proper planning property roughly 50% of the property over $2 million will go to the government (45% federal tax plus NC estate tax).   Also, in 2011 the estate tax exemption will be reduced to $1 million.
2. Probate Avoidance - Even the most sophisticated Will does not avoid probate for property passing under the terms of the Will.  The probate process, governing by the court, can be lengthy and expensive.  Living Trusts can keep matters out of the court and save time, money and hassle.   As a rule of thumb, I recommend Living Trusts for those who have probate assets of $200,000 or more.  An example of a probate asset would be a brokerage account in one's sole name.
3. Asset Protection - Leaving an inheritance to someone outright makes things simple, but once that person receives the assets, there is no protection for the inheritance.  The assets could be lost to bad judgment, creditors, or divorcing spouses.  I urge my clients to consider leaving assets in trust, even to their spouses.  The protection offered can be invaluable in case the unexpected happens.  The trusts can be designed to be very flexible, and the beneficiary can even be a trustee.

As you can see, it pays to look beyond the basics when developing an estate plan.

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As a proponent of Family Limited Liability Companies (LLCs) for asset management, creditor protection, and ease of gifting, I was pleased to read about the U.S. Tax Court's decision in Mirowski v. Commissioner, T.C. Memo 2008-74.  March 26, 2008.

Mrs. Mirowski, widow of the inventor of the heart defibrillator implant, created a trust for each of her three daughters in 1992, which were funded with portions of her interests in the patent licenses.  Then, in 2001, she formed a single member LLC, transferring substantial assets to it.  Shortly thereafter, Mrs. Mirowski gifted a 16% interest in the LLC to each of the trusts.  A mere four days later, she died unexpectedly.

The IRS argued under Section 2036(a) of the Internal Revenue Code that Mrs. Mirowski retained the right to income or enjoyment of the gifted property, so that it was included in her taxable estate.  The estate maintained that the Section 2038 "bona fide sale" exception applied, so that the transferred assets were not subject to estate tax.

The Tax Court agreed, holding that the LLC's activities do not have to be equivalent to those of a "business" for the bona fide sale exception to be applicable.  The Court stated that Mrs. Mirowski had "legitimate and significant  non-tax reasons" for establishing and funding the LLC, including 1) joint management of family assets, 2) combining family assets to maximize investment opportunities, and 3) enabling equal transfers to her daughters.

Some key points for Family LLCs to hold up for gift and estate tax purposes:

• Strictly follow the terms of the Operating Agreement
• State the reasons for the LLC in the Operating Agreement
• Have the Agreement reviewed by separate counsel for all initial members
• Leave enough assets outside the LLC to live on and pay taxes
• Don't mingle LLC assets with personal assets
• File the proper tax returns each year
• File the necessary documents with the Secretary of State each year
• Don't put your personal residence in a Family LLC
• Make sure the senior generation does not have the power to allocate profits and losses
• Require annual distributions
• Have the junior family members (or their trusts) make initial contributions to the LLC to provide for the pooling of assets
• Don't wait until the senior family member is near death

 The bottom line is that Family LLCs remain a viable and attractive option for transfers of family wealth, while also providing asset protection and management advantages.  Just make sure you use an attorney experienced in forming Family LLCs to assist you, and carefully follow all of his or her instructions. 

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Many parents are deeply concerned about the escalating costs of college and post-graduate education for their children, and how these costs may impact their overall financial and estate planning objectives. If you have college-bound younger family members, you should be aware of an important new technique that can pay for educational expenses, solve income tax issues, and provide an important piece of your estate plan.

You have probably read about 529 College Savings plans (named after the Code section that creates these state-sponsored savings plans). In fact, nearly everyone interested in saving for education has probably investigated the pros and cons of these plans. They are immensely attractive because they are estate tax free, income tax free, and in some states protected from creditors.  North Carolina has a good plan, but does not provide much creditor protection.

Whether you are a parent with future educational obligations for your young ones, or perhaps a loving aunt, uncle, grandparent, or stepparent, state education savings plans provide at least part of the answer. And the other part is this: With a carefully-crafted Educational Trust, you can now control that 529 Plan as an asset of this specially designed planning instrument.

A 529 Plan combined with an Educational Trust provides more flexibility to move assets between siblings (the one in medical school will need more money), and just as importantly, provides a smooth transition should you become incapacitated or die. Further, should you experience a financial emergency, the funds can be returned to you.  It can also provide increased creditor protection.

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Family Limited Partnerships, or more commonly now, Family Limited Liability Companies, are great vehicles for management and protection of family businesses, real estate, and investments.  They also can be used to facilitate gifting, since interests in the entity given to junior family members typically qualify for minority interest and lack of marketability discounts.  These discounts can provide powerful leveraging. 

However, to stand up to IRS scrutiny, it is important the FLP or FLLC be properly formed and administered.  Click "Continue Reading" for a checklist to help determine if your family entity meets the necessary criteria.

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Could joint tenancy, one of the most common forms of holding title to assets, lead to an estate planning disaster for your heirs? Joint tenancy, often called “joint tenants with right of survivorship,” is a form of holding equal interests in an asset by two or more persons. If one joint tenant dies, his or her share generally passes automatically to the other joint tenant(s) by right of survivorship.

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If you’re like many folks, you may be deeply concerned about how litigious our society has become and fear that your assets may one day be taken by creditors. If you share these concerns, I want you to be aware of an important new technique that can asset protect any inheritance you may receive and provide an important piece of your estate plan.

The traditional estate planning process has focused exclusively on passing assets downstream to beneficiaries (i.e., to children and grandchildren), often ignoring a potential inheritance from parents or other family members. However, Americans are living longer and longer and, as you may know, up to $41 trillion is scheduled to change hands in the coming decades. Most of these assets will be transferred in a manner that it is not protected from the claims of creditors or former spouses.

The laws of almost every state, including ours, prohibit so-called “self-settled trusts” – an irrevocable trust you establish yourself for your benefit, yet which purports to protect the trust assets from creditors. Therefore, once you receive an inheritance in the typical manner it is too late; you cannot protect these assets yourself. You can, however, protect the inheritance by creating an Inheritor’s Trust that will be the recipient of the inherited assets. An Inheritor’s Trust legally protects these assets, yet allows you to access them as necessary. It also removes these assets and their growth from your estate so that they will not be subject to estate tax upon your death.

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While this posting doesn't exactly relate to North Carolina law, one of NC's neighboring states, Tennessee, has adopted legislation to allow Domestic Asset Protection Trusts (DAPTs).  Being licensed in TN as well as NC, this is of interest to me, and it may be of interest to NC residents who want to establish a DAPT, but would prefer to "stay close to home."

With the addition of TN, 10 states now allow DAPTs, but TN is the only one in the Southeast.  The TN law refers to their version of the DAPT as the "Tennessee Investment Services Trust" (TIST), hoping to avoid the negative connotation the term "Asset Protection Trust" has for some.

DAPTs, including TN's TIST, allow a grantor to contribute assets to a trust in which the grantor is also a beneficiary, while keeping those assets protected from creditors.  There are certain exceptions, of course, and all of the statutory requirements must be met for the protection to  be effective.

Tennessee has also extended their rule against perpetuities to 360 years, allowing the TIST (and other TN trusts) to last for many generations.  North Carolina's rule against perpetuities has also been repealed this year - are NC DAPTs next on the horizon?  It certainly would be a way to keep trust dollars in the state and perhaps attract investment funds from other states.

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The IRA you inherited from your parents, or that your kids might inherit from you, may not be safe from lawsuits.  Jim Roberts, of Glast, Phillips & Murray, P.C. in Dallas, reports on a U.S. Bankruptcy case interpreting Texas law on this issue:

Federal law provides protection for most qualified plans, including 401(k), pension and profit sharing plans.But protections for Individual Retirement Accounts (“IRAs”) are a matter of state law. Most, if not all, states provide that IRAs are exempt. But there is a growing body of case law questioning the exemption of inherited IRAs.  Click "Continue Reading" for the remainder of the article.

Will North Carolina be next?  This ruling means that IRA Trusts are crucial for protecting IRAs that will pass to family members.  Even if the state in which you live protects inherited IRAs, you children could live in or move to a state such as Texas, which does not.

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North Carolina is not known for its attractive estate planning and asset protection laws, but NC residents can avail themselves of certain out-of-state planning strategies that can provide significant estate tax savings and creditor protection.  One state that has some of the most favorable laws is Nevada.

As a write this, I'm sitting in a hotel room in Las Vegas, having just finished up a meeting with nationally known estate planning and asset protection attorney Steve Oshins, whose office is located here.  Mr. Oshins, who is published frequently in Trust & Estates magazine and Estate Planning magazine, has developed several innovative trusts and trust-related strategies, such as the Megatrust, the Inheritors Trust and the Opportunity Shifting Trust. 

I have joined Mr. Oshins' Advanced Planning Legal Network to be able to bring these same types of techniques to my clients.

Click  "Continue Reading" for a brief description of the advantages of using Nevada laws for estate planning.

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