By Derek M. Johnson

        With all the modern technological advances in society, many people are now going “digital.”  That is, many people now: communicate through e-mail, have online financial accounts, receive electronic financial account statements (via e-mail), pay bills electronically, make online purchases, store files, photographs or videos electronically, have social media accounts (e.g. Facebook, Instagram, Pinterest and Snapchat), own electronic assets (e.g., website domain names, virtual currency such as bitcoin, and electronic designs that are subject to copyright, trademark, or patent laws), etc. (collectively, “digital assets”).  While digital assets certainly make life more convenient for users, questions have arisen as to whether and how someone else can access a user’s digital assets when the user is incapacitated or deceased.  These questions are important because the universe of digital assets is growing immensely, and some digital assets can be very valuable (e.g., a website domain name or electronic copyrighted or patented designs). 

        To help address these issues, a Power of Attorney for Property, Will and Trust can provide your loved ones with access to all of your digital assets in the event you become incapacitated or after you pass away.  However, this does not guarantee access.  For example, even if you grant a loved one access to your e-mails in your Power of Attorney for Property, Will and Trust, a loved one may still have to start probate court proceedings to gain access and, even then, there is no guarantee that your loved one will obtain full or partial access.  

        To overcome these hurdles, we recommend using “online tools” - to the extent they are available.  An online tool is an electronic service provided by custodians of e-mails and digital assets that allows users like you to provide directions for the disclosure or nondisclosure of your e-mails and digital assets to your loved ones if you are incapacitated or after you pass away.  Unfortunately, most custodians currently do not offer online tools.  However, there are two notable exceptions: Google and Facebook.  

              • Google’s Inactive Account Manager.  The Inactive Account Manager allows users with Google accounts (including Gmail) to designate specified persons to have access to the user’s e-mails and other digital assets held by Google if the user’s Google-related accounts have been inactive for a specified period of time (e.g., 3, 6, 12 or 18 months).  For more information about Google’s Inactive Account Manager, please visit https://support.google.com/accounts/answer/3036546?hl=en.    

            • Facebook’s Legacy Contact.  The Legacy Contact allows Facebook users to have their accounts “memorialized” (as opposed to deleted) after he or she passes away and to designate another person to manage the user’s memorialized account.  However, the Legacy Contact does not allow the designated person to log into your account, remove or change past posts, photos or other things shared by you, remove your friends, or read any of your messages.  For more information about Facebook’s Legacy Contact, please visit https://www.facebook.com/help/1568013990080948 and https://www.facebook.com/help/103897939701143?helpref=faq_content.
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If providing access to your e-mail and other digital assets when you become incapacitated or after pass away is important to you, then we recommend that you use all available online tools.

Another New Year is underway, and it’s time once again to share with our clients some information about changes in the estate tax law, and some other ideas and recommendations that may be of interest to you. See below for information and our recommendations regarding:
 

•           Current Gift and Estate Tax Exclusions;
•           Avoiding potential Illinois estate tax if you’ve established residency in another state;
•           Updates to documents, including:
  •           Avoiding Illinois estate tax on first of married couples’ deaths;
  •           Simplifying estate plans for married clients with total estate value of $4,000,000 or less;
  •           For all clients, “digital asset” access by your POA agent, Executor and Trustee; and
•           Gifting opportunities prior to 2026 for clients with larger estates.

 
Current Gift, Estate and GST Tax Exclusions.  The annual gift tax exclusion remains at $15,000 for 2019; the index for inflation resulted in an increase in the lifetime gift and estate tax exclusion and the GST tax exclusion to $11,400,000 in 2019.
 
Primary Residence Established in Another State.  Some of our clients are reading this while sitting poolside, enjoying the sunshine, in a warm state, far from Illinois. More and more of our clients are establishing residency elsewhere, but still maintaining a residence or ownership of other real estate here in Illinois.  We are thinking of ways for our “non-resident” clients to alleviate the potential Illinois estate tax that may be due on death.  If your total estate is worth $4,000,000 or more, even if your Illinois real estate is worth less than the Illinois $4,000,000 estate tax exclusion, there may still be an Illinois estate tax due.  The Illinois estate tax calculation takes into account the value of your entire taxable estate wherever located; the Illinois estate tax is then calculated on that entire value; and the resulting tax amount is pro rated based on the ratio that the value of your Illinois real estate is to the value of your entire estate.  This can be remedied by changing the ownership of your Illinois real estate.  Please contact our office to discuss your particular situation, and we will recommend one of several options to move your Illinois real estate out of the reach of the Illinois estate tax.
 
Updates to Documents.  It’s always recommended to have your estate plan reviewed periodically.  If you haven’t reviewed your documents with us in five (5) years or more, it’s time.  Here are some of the updates that have been most commonly needed by clients in the past several years:
 

• Since 2009, it has become important to include in married clients’ documents language regarding the Illinois “QTIP” election, to ensure that there will not be a potentially large Illinois estate tax due upon the first of the spouses’ deaths, due to the inclusion of outdated formulas in documents prepared prior to 2005 or so.

 

• Since the federal estate tax exclusion increased at the end of 2010 to $5,000,000*, and increased again at the end of 2017 to $10,000,000*, we have been able to simplify many of our married clients’ estate plans by eliminating unnecessary splits of the assets into separate “Family” and “Marital” Trusts, making it easier and more flexible for the surviving spouse to manage and use the assets after the first death.

 

• In 2016, Illinois passed the Fiduciary Access to Digital Assets Act, which adopted law regarding the authority of an agent under a Power of Attorney, a Trustee, or an Executor to access your “digital assets” (your on-line accounts, e-mail accounts, social media accounts, etc.).  If your documents do not include that authorization, contact us to update them.

 
Gifting Extra Exemption Amount Through 2025.  The increased gift and estate tax exclusion amount of $10,000,000* is in effect through 2025.  It is scheduled to revert to $5,000,000* on January 1, 2026. The IRS issued Proposed Regulations providing that any gifts made in excess of the current exclusion amount will not be “clawed back” if the exclusion amount does in fact drop back down to the lower amount.  For clients with larger estates, you have an opportunity to make gifts  to reduce the potential estate tax on your estate, utilizing the extra $5,000,000 of gift tax exemption prior to the end of 2025.  Contact us to discuss your options.
 
*The federal estate and GST tax exclusion amounts are indexed for inflation annually.
 
Please contact our office any time, to discuss these or other questions or concerns.  We look forward to hearing from you!

By Derek M. Johnson

By Derek M. Johnson

By Derek M. Johnson

It’s a good idea to have your estate planning documents reviewed every 5 to 10 years or if there is a significant change to your family situation or finances, or the law. The importance of having an estate planning attorney review your current estate planning documents can the mean the difference between the smooth administration of your estate and trust when you pass away and unintended consequences such as property being left to someone you no longer intended to receive property, property being tied up in a needlessly complex estate plan or, even worse, the imposition of estate taxes. Case in point, a married couple had estate planning documents (including revocable trusts) prepared for them back in 1985 (for those of you that can’t remember back that far, that was the year the Bears went 15-1 and won the Super Bowl in 1986). Unfortunately, the husband passed away in 2016 and never had his documents changed during those 30+ years. When the family came to us to help administer his estate and trust, the husband’s estate owed $300,000 in Illinois estate taxes! To make matters worse, if the husband had his estate planning documents reviewed prior to his passing, his documents (in particular, his trust) could have been amended to avoid Illinois estate taxes entirely!
 
Fortunately, we were still able to help the family avoid all Illinois estates taxes through a process known as decanting. Briefly, decanting allows the trustee of a trust under limited circumstances to transfer trust assets to a new trust. In this case, the husband’s trust qualified for decanting and we drafted a new trust to which assets from the husband’s trust were transferred to avoid the Illinois estate taxes. I know. I’m just as surprised as you are, but the State of Illinois allows trusts to use the decanting process – if the trust qualifies – to avoid Illinois estate taxes.
 
Bear in mind, though, that decanting is allowed only under limited circumstances and should not be relied upon as a cure for outdated estate planning documents. Rather, the better and more cost-efficient option is to have your estate planning documents reviewed every 5 to 10 years or if your family situation, finances or the laws change; and, if necessary, amend your estate planning documents. No one has a crystal ball and can predict what will happen as life goes on. People go through significant changes throughout their lives and estate plans should likewise be amended to reflect those changes. An estate plan should not be viewed as something that is static and never needs to change. Rather, estate plans should be viewed as fluid and flexible – something that can and should be changed if your unique family and financial situation, or changes in the law, call for it.

As everyone knows, a major tax reform bill was approved by Congress on December 20, 2017.  It is expected to be signed into law by the President on or before January 3, 2018.  The bill contains many changes to the income tax laws, as well as changes to the federal estate, gift and generation-skipping transfer (“GST”) tax law.  Below is a summary of the changes to the estate, gift and GST tax laws, and a few other items included in the bill that will affect the counsel we provide to our clients in our practice.  Please call us if you would like to discuss how these changes affect your plan.

Federal Estate, Gift and Generation-Skipping Transfer Tax

The current federal gift and estate tax exclusion of $5,000,000, which, with indexing for inflation, has increased to its 2017 level of $5,490,000, is increased to $10,000,000, indexed for inflation from 2011.  This would make it $11,200,000 in 2018.  This means each person may transfer, either during lifetime via intervivos gifts, or upon death via testamentary bequests, a total of $11,200,000 to family, friends, or other intended “objects of their bounty.”

The GST tax exclusion, which allows a donor to transfer assets, either directly to beneficiaries who are two or more generations younger, or in trust in such a manner as to avoid the estate tax on wealth transfers from children to grandchildren, is likewise increased to $10,000,000, indexed for inflation, or to $11,200,000 in 2018.  

The annual gift tax exclusion, which is $14,000 in 2017, is not affected by the new law, and will increase as expected to $15,000 in 2018.  The unlimited marital deduction remains unchanged.  The “portability” election, made on the first of married spouses’ deaths to preserve the deceased spouse’s unused exclusion amount, also remains unchanged.  Charitable bequests are still deductions offsetting the estate tax.

When considering these new transfer tax provisions, there are three issues to remember:

∙    Those of us living in Illinois still have to be mindful of the Illinois estate tax on estates over $4,000,000 (first dollars over exemption amount are taxed at 28%).

∙    After 2025, the changes to the federal estate, gift and generation-skipping transfer tax law will revert back to $5,000,000, indexed for inflation.

∙    No tax law is permanent....


A few of the Income Tax Law Changes

Charitable income tax deductions remain unchanged, with an increase of the limit on the annual deduction from 50% of AGI to 60% of AGI.

The Qualified Charitable Rollover, whereby a taxpayer may roll his or her IRA annual required minimum distributions up to $100,000 directly to a charitable organization, remains available to taxpayers over the age of 70-1/2.

by Kim Coogan

Part 5 of a 5 part series

Just like many business owners who are “too busy with their businesses” to think about planning for its succession, I am guilty of getting 80% through the process of writing this series on business succession planning, and then putting aside the task of writing the final chapter, while I was busy attending to my clients’ needs.  Part 1 of this series emphasized the importance of starting the process of business succession planning well in advance of your anticipated exit date, since the transition of both ownership and management will ideally take place over an extended period of time.  In Part 1 I suggested having an emergency plan in place, in the event your timeline doesn’t roll out exactly as you would have hoped.  Part 2 raised the issue of identifying not only those who will own the business, but also those, who may not be the future owners, who will manage the day-to-day operations, as well as continue to develop the company’s long-term strategy and guide the future direction of the business.  Part 3 discussed entering into a written buy-sell agreement among the owners, which memorializes the terms under which ownership interests may be transferred, whether by sale, upon death, or otherwise.  Part 4 laid out various options for funding the buy-out of an ownership interest.

A business owner may decide that once he or she has made it through steps 1 through 4, they can put their shiny new plan on the shelf, and go back to what they would rather be doing, i.e., running the business.  But it is important to pull out the business succession plan on a regular basis-perhaps annually-to determine whether changes have occurred such that the plan that made sense last year may need to be adjusted this year.  You may have a clearer perspective as to how those individuals you had identified as successor owners and/or managers or directors are performing.  You may have had a change in health or lifestyle that precipitates the need to accelerate your timeline for the business transition.

Using time to your advantage is a key to a successful business succession plan.  If you plan to transfer ownership to family members, you want to do so in a tax efficient manner, perhaps taking advantage of annual gift tax exclusions, or your lifetime gift and estate tax exclusion.  There are many options available to get a bit more “bang for your buck” from your gift tax exclusions.  Transferring non-voting and/or minority business interests enables you to take a discount on the value of the transferred interest, as reported to the IRS on a gift tax return.  Engaging in systematic annual gifting over many years not only gives you the opportunity to maximize use of your annual gift tax exclusions, but also gives you a chance to see whether your original plan remains in line with your intentions year after year, or if adjustments to your future gifting may be desired.

On the other hand, perhaps you’re ready to transfer a larger portion of the ownership interest.  A gift to a grantor retained annuity trust might make sense if you prefer a method that uses very little or none of your gift tax exclusion.  Or you may consider an installment sale of a portion or all of the business to a grantor trust for your family members, enabling you to defer, or perhaps eliminate, the capital gain you might otherwise have to recognize and take into income as a result of a sale transaction.  If you’ve concluded that the best succession plan is to sell while you’re still in control of the business, then an outright sale of the business might be more appropriate.  The process of hiring the right broker, and locating the right buyer, willing to pay the right price, can take considerable time and patience.

Regardless of which method of ownership and management transition of your business best fits your situation, I know one thing for sure, without even having met you yet-you need to start now, or if you’ve started, you need to continue, to develop a business succession plan.  Gather your team of professional advisors, and get the ball rolling.  Whether you plan to work forever, or are dreaming of days on the golf course or beach in the not-so-distant future, you’ll rest easier knowing your succession plan is in place for a smooth business transition whenever the time comes.

by Kim Coogan

The latest from Hinsdale Hospital Foundation's series on gift and estate planning topics.

Top Ten Ways to Simplify Your Estate Plan

Things change. Your circumstances and those of your family may have changed over the past several years. And estate tax laws have certainly changed. Our Planned Giving Council's Kimberly Coogan, Esq., offers the following suggestions to help you keep up with these changes and, most importantly, make things easier for your surviving spouse or family members. Here's her "Top Ten List" of opportunities to simplify your estate plan:

Quick and Easy

10. Update your Executor and Trustee appointments. Things do change. Avoid unnecessary cost and wasted time later by making sure these parties are you're the parties you'd choose today.

9. Review your Powers of Attorney. Perhaps your children are now old enough to be named to make financial and health care decisions for you if you become unable to act for yourself.

8. Confirm your IRA beneficiaries. If your children were younger the last time you signed IRA beneficiary designation forms, or if you named your trust as the beneficiary of your IRA, you may need to change the wording so your beneficiaries can take advantage of the inherited IRA rules with the fewest number of "hoops" to jump through to achieve the most income tax advantage.

7. Revisit your asset titling to ensure your assets pass as simply as possible to your beneficiaries. If you have a trust, make sure your after-tax accounts and real estate are titled in the trust. If you don't have a trust, you might consider ways to keep your estate out of probate. This will save time and money for your beneficiaries.

A Little More Detailed

6. Learn about the new estate tax laws, and how they affect your estate plan. If your estate is $4.0M or less, the tax formulas used in your old documents may result in unnecessary complication after your death. (Look at these changes over past 14 years: The federal estate tax exclusion amount was $675,000 in 2001; it is $5.34 million in 2014. Illinois passed its own estate tax in 2003; currently it applies to estates over $4.0 million.)

5. Would a TODI work for you? A "Transfer on Death Instrument" is a document that names a beneficiary to whom your primary residence will pass upon your death. This is a new Illinois law, providing an alternative for keeping your residence out of probate.

4. Consider using disclaimers to keep it simple. Providing for everything to pass to your surviving spouse unless he or she signs a "disclaimer" after your death, is one way to build flexibility into your estate plan and yet keep things simple for the surviving spouse. Your Will or trust agreement would provide that the disclaimed portion be held for the surviving spouse's benefit, but the disclaimed portion will not be subject to estate tax on the second death.

3. Does portability help in your situation? Portability, a provision of the 2010 federal tax act, allows the surviving spouse to file an election to retain any unused estate tax exclusion amount from the predeceased spouse's estate. Consult an attorney before relying on portability, since it does not apply to the Illinois estate tax, and presents certain other potential pitfalls.

2. Does generation-skipping transfer tax ("GST" tax) planning still make sense for you? If your old plan includes GST exemption planning, you may want to revisit it. The GST exclusion was much lower years ago, so avoiding estate tax in your children's estates may not be a priority now.

Easiest of All: Doing Good

1. Consider lifetime gifts to charity if your estate is potentially subject to estate tax. You'll make a difference for the charity of your choice and might be able to get the value of your estate below the estate tax exclusion amount. That means not only avoiding the tax, but saving your beneficiaries from having to file your estate tax return. If your age is over 70 ½ , you may roll your annual IRA required minimum distribution over to a charity, thereby avoiding paying any income tax on your IRA RMD.

These are just a few suggestions for ways in which the new estate tax laws, and other new developments in the law, afford you the opportunity to simplify your estate plan. Please contact your attorney for more detailed information as it applies to your personal situation.

by Kim Coogan

Part 4 of a 5 Part Series

You know you need to establish a succession plan for your business; you've identified and continue to develop individuals to whom the management, executive decision-making, and ownership of your business will pass. You recognize the importance of documenting your intentions for the future ownership of your business using a "buy-sell agreement."

Now you have to ask yourself the not-so-simple question, "If I pass away or retire and my interest is sold, how will I, or my family, be paid?" Or, "If my partner dies or wants out, how will I pay him or her, or his or her family, if I have to buy out his or her interest?" The answers to these questions will be different if the buyout occurs during lifetime as opposed to upon the death of an owner.

The buy-sell agreement should set forth the terms of payment of the purchase price, which will be determined in accordance with the valuation provisions of the agreement. In the event of the departure, retirement, disability or other lifetime buyout event of an owner, typically the agreement will allow for a promissory note evidencing the obligation to pay the purchase price over time. The term of the note may be principal and interest payments over 5, 10, or more years. The interest rate will be set at the time of the buyout, based on an index, e.g. prime rate, or the applicable federal rate, as published by a specific source. The note will most likely be secured by the pledge of the business interests being purchased.

Upon the death of an owner, the buyout may be funded either in the same manner as a lifetime buyout, or more commonly, with the proceeds from a life insurance policy on the life of the deceased owner. If the buy-sell agreement is a redemption agreement, whereby the business entity buys out the interest of the deceased owner, then the business entity will own the life insurance policies on the lives of the business owners. Upon the death of an owner, the business entity will pay out the agreed purchase price to the business owner's estate, or trust, depending on how the business interests were owned. The business interests will be transferred by the deceased owner's successor in interest to the business entity.

If the buyout is a cross purchase, then the surviving business owners will pay the agreed purchase price to the deceased owner's successor in interest. If there are two owners, then each would own a life insurance policy on the life of the other. In the case of a business with multiple owners, insurance can become more complicated. For example, with three owners, each would have to buy life insurance on two other owners. In total, there would be six life insurance policies. This can become somewhat cumbersome. An alternative might be a trusteed buy-sell agreement, whereby one life insurance policy on each of the owners is owned by an escrow agent (or "trustee"). Upon the death of an owner, the trustee collects and pays out the insurance proceeds to the deceased owner's successor in interest in exchange for the shares in the business. The escrow agent then allocates the shares among the surviving owners.

Congratulations! You've consulted with your professional advisors; you've done the hard work of considering who will carry on your vision for your business after you step away from it; you've laid the groundwork for management, leadership and ownership succession; and you've documented all of this in a well-written buy-sell agreement. You've obtained the proper life insurance or other mechanism to fund a potential buyout. You are doing great! But your work isn't done. It's a work in progress. You should revisit your business succession plan annually, and re-evaluate your management and leadership to ensure your plan is on track, and make any necessary adjustments. Your attorney, accountant, and insurance professional should work together with you to make sure your plan is the best it can be for you and your business.

by Kim Coogan