Olympia Estate Planning

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Friday, July 15, 2016

Family Discord Is Not Unique



Family discord is not unique. In fact, avoiding family disputes is one reason to plan an estate carefully. However, merely planning an estate is not sufficient to avoid a family dispute. It must be planned in the right way to avoid disputes.
There are many elements which enter into a family dispute about estate planning. Here are a few:
  1. Bad family dynamics
  2. Unfair disposition
  3. Lack of Communication
  • Bad Dynamics
Often, there is little that can be done about bad family dynamics. When there are deep rifts in a family, many times there is little that can be done, except to plan for the possibility of a dispute. For example, a no contest or “in terrorem” clause should be considered. Such a clause disinherits anyone who contests the estate plan. This works especially well when coupled with a substantial bequest.
  • Unfair Disposition
When there is a disposition which is likely to be viewed as unfair, it increases the likelihood of a contest. But, fair is not always equal. For example, if one child has special needs, it may be fair for that child to receive a greater portion of the estate. Also, if one child has been the parents’ caretaker, it may be fair for the caretaker child to receive a greater portion of the estate.
  • Lack of Communication
Often the biggest factors in a family dispute is lack of communication. There may be bad dynamics and what is perceived as an unfair disposition. But, when that disposition is a surprise, then the dispute escalates. The client should be encouraged to communicate their wishes to their family. This will increase the likelihood of their wishes actually being carried out and decrease the likelihood of a contest.
An example in which all three of these factors existed is the current legal battle involving billionaire Sumner Redstone. Sumner Redstone is the primary owner of Viacom and CBS. His health is failing and his family is involved in a bitter battle over his affairs, to read more about it, click here.
A good estate planning attorney will be mindful of these factors, and will advise the client how to minimize the risk of a contest.

What is Escheatment and How Does it Affect Your Retirement Accounts?



Escheat: The power of a state to acquire title to property for which there is no owner.
How is it determined that an IRA has no owner? This will depend on both state law and the procedures in place at the institution holding your IRA or employer plan assets. Some typical hints could be mail that is returned marked undeliverable or accounts where there are no transactions.
If you have an IRA or an old employer plan where you are no longer making contributions, then there are no transactions taking place within the account. This could leave the account open to escheatment.
How can you tell if your retirement account has been escheated? You should be getting statements for each of your retirement accounts. For IRA accounts, you should also be receiving a Form 5498 each year that tells both you and IRS your year-end IRA account balance. The form is informational only and is required to be issued by May 31 each year. If you are not receiving statements or Form 5498, your account may have been escheated.
There is a process for the escheatment of funds. The process generally includes some method for finding the owner of “unclaimed” assets. There is also a waiting period before assets revert to the state. Washington has a three-year waiting period.
Many times what is escheated is cash from unclaimed refunds, insurance policies, or bank accounts. There is usually no tax consequence for these transactions. But retirement accounts are different. When they are escheated, they are generally cashed out. The state does not want to hold your investments and retain them in a retirement account for you. They want cash to pay their bills. This creates a taxable distribution to the owner of that account. If the owner does not receive a 1099-R for the distribution, then they do not know about the escheatment and don't include the distributed amount on their tax return.
When your retirement funds are escheated are they gone forever? Generally, no. Washington has a procedure for you to reclaim your funds. When you get your retirement funds back, you will have two choices. Keep them as non-retirement funds because you have already paid the tax on them or are in the process of doing so, or return them to an IRA account.
Returning your escheated assets to a retirement account may not be as easy as putting them in an IRA. Usually you are replacing the IRA assets a year or more after they were escheated. You will most likely have to go to IRS for a private letter ruling to get their approval to complete a rollover. This is a costly and time consuming process. The IRS fee for this ruling is $10,000 and you will have to pay a fee to someone to prepare the ruling request for you. Then there is a waiting period while IRS reviews your request and makes a decision.
Bottom line, avoid escheatment. Check up on your retirement accounts regularly. Make sure you are receiving statements. It is generally a good idea to consolidate old accounts to make this process easier to manage. And watch out for inactivity. You may need to make a contribution or take a distribution, even if it is a very small one, to keep the account “active.”