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Lately I have written a number of difficult posts that relate to trusts. A reader asked me why I hadn’t written anything that simply explains what a trust is. I was surprised to see that I hadn’t, so . . . .

First, let me set this up. I’m going to start with trusts and pickup trucks. One particular yellow Nissan Frontier pick-up truck operated by my son Bobby. He thinks he owns it.

Bobby truck

Bobby Mason and a Yellow Truck

BWAHAHAHAHA! No. He doesn’t. I do.

He thinks he owns it because he is the only one who drives it (his Mom doesn’t know how, it being a manual transmission, and I don’t care to because people would wonder why a 63 year old gray-haired guy was driving a canary yellow pick-up truck with a little wiggly hulu girl stuck on the dashboard – I do have my pride).

He is the only person who operates the truck because I, the legal owner, allow him to operate it.

And there you have a good model to think of as I explain what a trust is.

A trust is simply an arrangement in which the legal title of an asset is separated from the right to benefit from the asset either now or in the future. There are two types of ownership interests: a beneficial interest (sometimes called an equitable interest . . . what my son has) and legal title (what I have).

Legal Title

A legal title demonstrates apparent ownership of property. Legal title does not, however, necessarily demonstrate full or complete title to property. Legal title may evidence that certain property is shown to be legally owned by a person, yet that legal title owner may be required to hold the property for the benefit or use of some other person (which, dear readers I am decidedly not required to do for my son . . . thus no trust). For example, an automobile or real property may be titled in the name of a certain individual as the trustee of a trust, which would require that individual to hold the property pursuant to the terms of the agreement that set up the trust . . . even though the trustee’s name is shown as the legal title owner.

Beneficial Interest

In many cases, a person need not have legal title to property in order to enjoy the use or benefits of the property. For example, if a trustee is the legal title owner of certain property (say, a truck), but the terms of the agreement that set up the trust require the trustee to allow a person to use the property in some manner (as long as he drives responsibly!), or perhaps to distribute the property at some future time to that person, that person is said to have a beneficial ownership interest.

Same People . . . Or Different?

Most often the legal title holder and the beneficial owner are the same person. If a person has legal title to an automobile but also has the automobile’s keys in his pocket and the right to use the automobile as he wishes, that person owns both the legal title and the beneficial interest in the automobile.

The two ownership concepts can be split between two or more people . . . which is what a trust is all about.

A History Lesson

The English may be credited with inventing trusts, but they received much inspiration from the Romans.

Five or six hundred years ago the English nobility and the church realized that splitting legal title and beneficial interests had great advantages.

In feudal England legal title to real property (what amounted to what us 21st century types think of as “outright ownership”) had all sorts of obligations and other prohibitions on how the property could be used. For example, the legal owner of land may have been prohibited from conveying the land to his heirs by Will. Also, the amount of taxes due to the crown was largely determined by the amount of land to which someone had legal title. Also, legal title carried with it other obligations owed the crown by a nobleman.

At that time, the church depended in large measure on the income from huge tracts of land, yet there were laws that prohibited the church from holding legal title to land.

Both the nobleman and the church had some incentive to figure out how to put legal ownership of land in other people, yet at the same time enjoy the benefits of the land.

This raised immediate practical issues. For example, a duke may have found it useful to divide his 100,000 acres into smaller tracts and have some of his friends and family, perhaps some barons and some of his children, hold legal title for him. He would have simply conveyed the land to these persons with a “little side agreement” that they would hold the land for His Lordship.

Similarly the church may have prevailed upon certain individuals to hold legal title to land for the benefit of the church because the church could not directly own the land.

In the end, the duke and the church “trusted” (get it?) some other person to hold legal title and to “do the right thing” on behalf of the duke or the church. Of course, human nature being what it is, the people who were trusted with holding legal title would often times “forget” that they had been trusted by the church or the duke to do the right thing. Forgetfulness could be very convenient.

Unfortunately for the duke or the church in those cases, the old courts of law were interested in enforcing legal concepts only, and one of those legal concepts was legal title. A court would look to legal title only and pronounce that the legal owners were the legal title holders (presumably the now ex-friends of the duke and the presumably now excommunicated church members!).

In that case the only recourse for the now-frustrated duke or the church was an appeal to the crown or the king’s or queen’s council. The chief lieutenant to the crown was usually someone referred to as the chancellor. The chancellor was a learned individual trained in the law (and quite often a church official such as a bishop or a cardinal). The chancellor could (and often did) look “beyond the law” to fashion an equitable remedy that seemed to be right and fair for all parties concerned.  And thus came about the early law of trusts.

In such cases, the legal title holders would be ordered to hold the property for the use of the duke or the church, who were said to hold a beneficial interest in the property.

As will be seen, splitting legal title from beneficial interests continues to be useful to this day and forms the basis of modern trust law.

The Key Players

Learning the terms applied to key personnel is essential to a good understanding of trust basics.

Settlor or Grantor

Sometimes called a Trustor, the Settlor is the individual who establishes a trust. A Settlor may, or may not be, the person who transfers legal title of property to a trust. Although the term Grantor is also used more or less interchangeably with Settlor and Trustor, in the purest sense, a Grantor is the one who conveys property to the trust. Unless the facts call for a clear distinction, this study guide uses the terms Grantor, Settlor, and Trustor synonymously.

Trustee

The Trustee is the person (or entity . . . a trustee can be, and often is, a bank or trust company) to whom legal title is transferred. The Trustee holds legal title strictly subject to the terms and conditions specified in a document called the trust agreement.

Beneficiaries

A beneficiary is the person or entity to receive the direct or indirect use of trust property, presently or in the future. The term traces its origins to the Latin terms bonus (“good”) and beneficium (a “favor” or a “privilege”).

Fiduciaries

A Trustee is a type of Fiduciary. A Fiduciary is an individual or entity who stands in a unique position of trust with respect to some other person, persons or entities. A whole body of law, called “fiduciary law,” applies to that relationship.

In summary, a fiduciary must conduct herself with the utmost due diligence, good faith, fair dealing, and reasonableness in regard to her dealings with those to whom she owes a fiduciary duty.

Trust Agreement

A trust agreement can be a simple document that names the trustee, specifies one or more beneficiaries and provides some sort of rudimentary instruction to the trustee with respect to holding and distributing the trust property.

Rarely, however, is a trust agreement so simple. Carefully prepared Trust Agreements will contain provisions that address such issues as:

Successor Trustee

Provision usually should be made for a trustee to serve in the event the named trustee under the Trust Agreement is unable or unwilling to serve. Restrictions on who (or what) may serve are not uncommon.

Beneficiaries

Certainly some provision must be made for those individuals who will receive the benefits of the trust property. Will beneficiaries receive income only? Perhaps principal? Will the Trustee have discretion with respect to distributing? What happens if a Beneficiary dies?

Manner of Holding Property

A Trust Agreement may contain provisions restricting the type of property that may be held or the type of investments the trustee may make.

Tax provisions

Very often trusts are used for tax planning purposes and contain elaborate tax provisions.

Administrative Provisions

Finally, a Trust Agreement will often contain various administrative provisions governing what law will apply, how (if at all) the Trustee will be paid, whether the Trustee may hire additional administrative assistance, and the like.

Trust Uses

There may be any number of reasons that a Grantor may wish to benefit an individual (including himself) but insure the Beneficiary does not hold legal title.

Spendthrift Trusts

A trust used to protect the assets from the Beneficiary’s careless ways.

Asset Protection Trusts

A Grantor can protect an asset from the creditors or other liabilities that a Beneficiary may have presently or in the future (including the Grantor’s own liabilities). Trusts are particularly useful in the Medicaid planning context. I write more about those here.

Minors’ (or Holdback) Trusts

Trusts are particularly useful for safely holding assets for a minor until she reaches a certain age.

Disability Trusts

A properly designed trust for the benefit of a disabled beneficiary can be the difference in a subsistence life style and a more generous life style in which public benefits are maintained. I write more about those here.

Marital Trusts

Often a person may wish to establish a trust for the benefit of a spouse, but use the trust to insure that assets will exist to pass on to future generations.

Avoiding Probate

A nice side benefit is usually assets in a trust will avoid probate. I write about those here.

Trust Types

Trusts may be classified according to any number of descriptive criteria. Understanding a number of the main classifications will provide a useful “short hand” method of describing various trust characteristics.

Irrevocable

An irrevocable trust is a trust that the Grantor is unable to revoke, amend, or force a return to him of legal title to trust assets. Other persons, however, may have the authority to amend or even terminate the trust. Further, the Grantor may retain certain other limited powers (perhaps, for example, the right to exercise a Special Power of Appointment or the right to appoint future trustees).

Revocable

A revocable trust is a trust in which the Grantor has retained full authority to amend or terminate the trust or to revest legal title to trust assets in himself.

Testamentary

A trust under a Will (anytime you hear the word “testamentary” you can be sure a Will is involved).

Inter Vivos

From the Latin, literally “between the living.” These trusts are established and funded by a very-much-alive Grantor.

 

And now that you’re an expert on trusts, I hope you’ll come back and check this article every-so-often when you need a little “refresher.”

 

PS  I’m just going to give the truck to my son.

Bobby

Thanks, Dad!

Filed Under: General, Trusts generally Tagged With: , , , ,

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I am NOT making this up. Last week the Internal Revenue Service issued advice to field personnel on how illegal drug Scam Man 1traffickers should be handling taxable aspects of their, er, “business.”

Not many of my clients are drug dealers . . . OK . . . none that I know of. And I don’t offer tax advice to “commercial” interests. However, in the spirit of being useful, I thought I’d pass this little nugget along.

In Chief Counsel Advice 201504011 the IRS has explicitly held that a drug dealer may deduct the cost of goods sold (“COGS”) from gross receipts before reporting taxable income. Thirty-some-odd years ago Congress passed legislation prohibiting drug dealers from deducting trade and business expenses.

This didn’t prevent such “taxpayers” from capitalizing costs . . . so to close that little loop hole they issued the advice.

As the Advice noted,

Thus, a marijuana reseller using an inventory method would have capitalized the invoice price of the marijuana purchased, less trade or other discounts, plus transportation or other necessary charges incurred in acquiring possession of the marijuana. Similarly, a marijuana producer using an inventory method would have capitalized direct material costs (marijuana seeds or plants), direct labor costs (e.g., planting; cultivating; harvesting; sorting), Category 1 indirect costs (§1.471-11(c)(2)(i)), and possibly Category 3 indirect costs (§1.471-11(c)(2)(iii)).

So you can heave a sigh of relief (some) if you laid awake at night worrying about this little accounting conundrum. Whew.

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Recently the following letter appeared in the Asheboro Courier-Tribune. My response follows.

The Letter

Nightmare

If you, a family member or parent, are thinking of going on Medicaid, you need to read this story.

If you or an elderly parent still has property in their name, consider signing it over to your child or family member to be eliminated from Medicaid recovery.  This needs to be done a few years before going on Medicaid.  A Medicaid representative can give you details.

Our family was shocked a few months ago to receive a letter from Medicaid against mom’s estate, claiming they need $72,000 reimbursement to cover mom’s health care cart for the last one and a half years of her life.

Mom passed away last December.  She had been a widow for over 20 years since Dad passed away with cancer.  They were honest, hard-working people.  Somehow, most of their lives they found a way to save and put back a little money for their care later in life.  Mom had a severe head injury from a fall at home in 2008.  She almost died, was at Baptist Hospital approximately three weeks and then from there to rehab, then to assisted living.

Later, because her health was deteriorating, she had to go to a nursing facility.  She paid for her nursing care from her savings up until the last one and half years of her life.  Because her life’s savings were gone the family had to sign her up for Medicaid.  The family was told at that time she could keep her house.  (The house was still in her name since she never expected to have to live in a nursing facility.)

Mom was 96 and a half years old when she passed away.  She and Dad through life did everything as good citizens, saved for their care, paid their taxes, were good to their fellowman, asked for nothing for themselves.

In mom’s will she wanted her property sold and divided between us three children.  We may not even make enough selling the house to pay Medicaid.  Mom and Dad would be heartbroken over this situation.  So sad, so sad.

My Response

The November 2, 2014 edition of the Courier-Tribune ran a letter from a person outlining an unfortunate series of events involving her late mother and Medicaid. I felt very sorry for her. The loss of her mother was compounded by a series of events that could have been avoided.

She explained that her late parents had saved and worked all their lives. Eventually, after Dad’s death, Mom had to go into a nursing home. She paid the nursing bill for 18 months before running out of money.

She then went on Medicaid. $72,000 later Mom died and Medicaid assessed a claim against Mom’s only remaining asset – her home.

Unfortunately, the writer did not act on good advice (although she probably received plenty of advice). I’ll respond here.

First, she suggested a parent with property should consider “signing it over to a child or family member to be eliminated from Medicaid recovery.” This is rarely a good idea. The property will then be subject to the control (and creditors) of that family member. Also, it can be a bad idea from a tax standpoint. Often thousands of dollars can be saved, and security assured, by using a trust.

Later they received notice that Medicaid needed “$72,000 reimbursement to cover mom’s health care.” I hope she understood that nobody needed to reimburse Medicaid beyond the value of any property Mom may have had remaining.

The writer then described a sudden injury to Mom, resulting in hospitalization, rehab and assisted level of care before moving on to a nursing home. These situations often arise suddenly, which is why advance planning is important.

Mom then paid for the nursing home until her savings were depleted. Quite often there are exceptions that would have prevented Mom from having to do that. Many times there are planning opportunities that would have enabled Mom to save a least a portion of her savings. Although the usual advice is “spend it down until you’re qualified” that is seldom the only solution.

She also explained being told when she applied that Mom “could keep her house.” That meant that Mom’s residence did not count for purposes of Medicaid eligibility. As this family has come to understand, however, Medicaid eligibility is a different matter from Medicaid estate recovery. The family could have explored a number of different strategies to save the home.

The writer then told us a story I have heard many times (which explains why I enjoy helping people like this). Mom and Dad “through life did everything as good citizens, saved for their care, paid their taxes, were good to their fellowman, asking nothing for themselves . . . . Mom and Dad would be heartbroken over this situation.” I could not have expressed it better.

Finally, after receiving the Medicaid estate recovery notice she was told “there was nothing they could do.” Occasionally this is not at all the case. There are exceptions, and it is worth checking to see if one applies.

Start early. Get solid advice.

Filed Under: General, Medicaid, Nursing Homes Tagged With: , , ,

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 New ways of counting assets. Penalties for transferring assets.

If you are even remotely interested in VA benefits such as Aid and Attendance or Housebound benefits under the VA Special Monthly Pension or Improved Pension you should read this article.

You’ve been warned.

Cartoon: Whose side were you on?Last week the Department of Veterans Affairs (VA) proposed sweeping new regulations that will change the way valuable benefits are calculated for qualifying veterans or their surviving spouses.

If you are a veteran, the surviving spouse of a veteran or you know someone who is, and if you or “that someone” has even a remote chance of applying for benefits in the next few years, you must read thus. Things are about to change Big Time.

As I have been writing the past few years, Congress has threatened similar changes and has come close on a few occasions. Most of the bipartisan efforts were defeated because the VA benefit provisions were attached to bigger (doomed) bills that went down in flames.

This time is different because the VA is acting on its own with regulations. Barring something completely unforeseen some close variation of these regulations will become law sometime this year. We just don’t know when.

VA Benefits Background

Veterans who have served 90 days or more active duty during a war time period and have not been dishonorably discharged may be entitled to certain VA benefits if their health care expenses outstrip their income. If the veteran is “no longer with us” his or her surviving spouse may also qualify.

Read my explanation of how the benefit currently works, and then be sure to come back to this article. What you read for the current explanation is about to become HISTORY.

If you do not care to read about the current benefits, here is my 30 second synopsis:

If the veteran or the spouse has qualifying medical expenses, those will be deducted from income to calculate adjusted income. The difference between the VA benefit rate that applies to the individual and the adjusted income is the amount the individual will receive in VA benefits. The current VA 2015 benefits levels are posted on this website.

For example, if Archie qualifies for VA benefits due to his service during the Korean Conflict and he has income of $2,000 monthly but has $1,800 medical expenses, his adjusted income is $200. The maximum monthly benefit he could possibly be entitled to (because he is married to Edith) is $2,120. However, because he has $200 adjusted income, he will actually receive $1,920 ($2,120  ̶ $200).

We’re not done yet.

Next we have to look at Archie’s and Edith’s assets to determine what their net worth is and whether they are over the net worth limit. Not all assets count, but most do. I have explained all that elsewhere. In any event, they cannot have more than $80,000 worth of countable assets . . . but VA claims examiners regularly lower the $80,000 level on a case-by-case basis depending on their evaluation of the claimant’s income, age, health, marital status and the like.

Crazy. Makes applying for VA benefits like Aid and Attendance very interesting.

Finally, there are currently NO  transfer of assets penalties like Medicaid. Theoretically a millionaire could qualify under the asset test by giving everything away and applying the next day. But not for long!

Proposed VA Benefits Regulations:  Turbulence Ahead.

New Asset Counting Rules

MESSIN' with VA Benefits?

You MESSIN’ With My Benefits?

As mentioned above, VA has been applying a muddled asset test of “$80,000 or less” as a standard for qualification. As a practice, we at Mason Law, PC have submitted applications that take a “low ball” or conservative approach. Quite often we attempt to lower the claimant’s asset levels to around $30,000 “just to be safe.”

Perhaps on the positive side, the new regs will add a bright line test. Borrowing from Medicaid rules that allow a maximum community spouse resource allowance (CSRA) of $117,240 (2015 – this is adjusted every year), the proposed regs will allow countable assets plus income for the year (the proposed regs call this “net worth”) that total less than the CSRA in effect at the time of the application to be held without jeopardizing eligibility.

For example, if Archie and Edith had countable assets equal to $80,000 PLUS annual household adjusted income of $30,000 the combined $110,000 (called “net worth”) would be under $117,240 and Archie would pass the asset test. We’ll discuss what assets count, as well as how income is counted, below. Had Archie and Edith had assets of $100,000 Archie would not qualify because their net worth would be $130,000). End of story.

What Doesn’t Count

A principal residence and a “reasonable amount of land” around the house also do not count. Under the proposed rules, the VA will look to look to surrounding properties to determine a “reasonable” amount of land, but will cap it at TWO acres.

In other words, a house sitting on two acres when every other house in the neighborhood is on a quarter acre will result in 1.75 acres being counted. A residence sitting on a 100 acre spread out in farm country will result in one noncountable residence and 98 acres of countable real estate.

As under the current rules, automobiles and household effects (“consistent with a reasonable mode of life”) do not count.  Also “basic living expenses such as food, clothing, shelter, or health care” will lower the asset level.

Asset Recap

To recap, add the value of all assets, subtract the value of the home (subject to the limit on land), subtract reasonable living expenses for food, shelter, and clothing, subtract the value of automobiles (no new Ferraris) and personal effects, and ADD income for the year (discussed below).

See what the total is. If it is less than the CSRA ($117,240 in 2015), you’re good to go. If over, then “Houston, we have a problem.”

New Income Rules

The VA imposes separate rules for income, because if adjusted income is over the VA maximum benefit available to a claimant, the claimant receives nothing. In any event, the benefit payable will only be the difference between the adjusted income and the maximum benefit available. Reminder: You may look up the maximum benefit available on this website. Don’t panic.

Income consists of “payments of any kind from any source.” Social Security? Income. Payments from a trust? Income. An inheritance? Income. A gift? Income.

But wait! Casualty losses (the insurance payment for the wrecked car)? Don’t count. Capital gains from the sale of an asset? Don’t count – BUT the proceeds may be added to assets next year.

And finally, medical expenses are deducted from income.

Bear in mind the regs do TWO things with income. They use one year’s income as an add-in to asset values to calculate “net worth” discussed above. They also use income to determine whether you have income less than or more than the maximum benefit available to determine how much you may actually receive.

For example, you can deduct food, shelter and clothing from the combined income and asset level (“net worth”) to see if you are under $117,240. But you can only deduct medical expenses from income to determine if the adjusted income is less than the maximum benefit available.

You have to pass BOTH TESTS.

Example. Archie and Edith have combined unadjusted income of $4,000. Archie is in the assisted living facility and they pay $3,000 for that (assume the assisted living facility expense is a qualified medical expense). The maximum monthly benefit available for a veteran with one dependent is $2,120. Assuming no other deductible expenses, the adjusted income is $1,000 ($4,000 – $3,000), and Archie will be entitled to a maximum VA benefit of $1,120 ($2,120 – $1,000). HOWEVER, they can still deduct food, shelter, and other expenses to see if they meet the “net worth” rules above and are under $117,240.

Clear as mud!

VA Transfer Penalties

This is where things get really interesting.

Currently the VA rules impose no transfer of assets penalty. They will soon.

When the VA receives an application they will ask for information concerning any transfers of assets that have been made within three years. Assets more than three years old they will not care about.

Once the VA determines a penalty, the penalty can be as long as ten (TEN!) years. Obviously, if an applicant is looking at a long penalty, it is better not to apply within three years after a transfer. Rack up a long penalty and apply, say, in 2 ½ years and you are toast; wait six more months and you are fine.

The penalty is calculated by dividing the value of the transfer by the Aid and Attendance maximum monthly benefit in effect at the time of the application and available to the applicant. For example, if Archie transfers a $212,000 asset (say the family farm) and, applies within three years, the VA will calculate a penalty period of 100 months based on the Aid and Attendance maximum rate available to married couple ($212,000 ÷ $2,120). The penalty runs from the time of the transfer. So, if Archie applies 10 months after the transfer, the penalty will be 90 months.

Grandma shockedHowever, if Archie and Edith transfer property, and 10 months after Archie dies Edith applies for VA benefits the result will be different. Because the maximum VA Aid and Attendance benefit available to a widow is just $1,149, the penalty will be 184 months ($212,000 ÷$1,149). Because she applied 10 months after the transfer, the actual penalty applied will be 174 months.

No fair? Yeah, well . . . .

The Take Away

The time to start planning is NOW. If you (or someone you know) think that VA benefits might be more than slight possibility within three years, now is the time to take action to protect assets.

As I often tell people, “No plan is a plan; no decision is a decision.”

We at Mason Law, PC have plenty of solutions.

Questions? Comments? Chime in below!

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2806supb

Not Really Bob

ASHEBORO, NC — Jan. 21, 2015: Minneapolis-based Law & Politics, publishers of Super Lawyers magazines, announced that Asheboro, NC, elder law and special needs law attorney Robert A. Mason has been named to the 2015 edition of North Carolina Super Lawyers. Each year, no more than 5 percent of the lawyers in the state receive this honor. Mason was also named in the 2009 and 2010 editions of North Carolina Super Lawyers.

Mason has been selected for inclusion in Super Lawyers and was listed in the January edition of Charlotte magazine, and his profile and was included in The New York Times (Charlotte edition), as well as the 2015 edition of North Carolina Super Lawyers magazine, which is distributed to attorneys in North Carolina and ABA accredited law school libraries.

Mason is the owner of Mason Law, PC, Asheboro, NC, and of counsel to the Brunswick, Georgia law firm of Ligon, Lindberg & Lanier, PC. Both firms are devoted to meeting the legal challenges of seniors, the disabled and their families, using an array of sophisticated legal techniques.

Mason, one of the first attorneys in North Carolina to be designated a Board Certified Specialist in Elder Law by the NC State Bar Board of Legal Specialization, is also a Certified Elder Law Attorney by the National Elder Law Foundation, twice past Chairman of the Elder Law Section of the North Carolina Bar Association, a member of the North Carolina Board of Legal Specialization, and a frequent speaker on elder and disabilities law issues. Mason especially focuses his practice on advanced asset protection techniques, trust law issues, and special needs trusts.

Mason has a Bachelor of Science in Communications from Northwestern University, Evanston, Illinois, and a Juris Doctor cum laude from Mercer University’s Walter F. George School of Law, Macon.

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