The new Power of Attorney statute is in effect, as of June 13, 2021. Signed into law late last year, it has been the subject of intense study by trusts and estates attorneys (and many others as well). The new Power of Attorney law makes many substantial changes to the old law. The old law, in effect since only 2009, was cumbersome and difficult to understand, navigate, and execute. The execution of the old form was frequently more involved than the execution of the client’s Will.  Even if everything was done perfectly, one frequently found financial institutions balking at accepting the power of attorney unless their own in-house form was used. The new law seeks to remedy these and other problems created by its predecessor.

Here is a link to The National Law Review and its useful summary of the new law. There are many other resources available on the internet, but all should warn the reader of the need for experienced counsel when contemplating granting a power of attorney to someone.

Finally, what is a power of attorney?   It is the grant of authority that allows an agent to act on a principal’s behalf in a wide variety of legal transactions. The power of attorney is among the most powerful (and dangerous) documents one can sign – it gives powers over your personal and financial affairs that are sweeping. It can also be a great benefit to provide for a loved one’s disability and avoiding the expense and delays that can be associated with its alternative, a guardianship under the Mental Hygiene Law. Many times in the distant past I advised a soldier to refrain from giving the power of attorney to a significant other, against standard Army and National Guard mobilization doctrine. Why?  I have seen too many instances of the soldier returning from overseas only to find his or her significant other gone along with the soldier’s bank account.

The National Law Review:  National Law Review NY State POA Changes

The government just issued its “Green Book,” the summary of the President’s proposed changes to the tax laws. Perhaps the recent leaks from the IRS about the income taxes paid by some of our wealthiest citizens will have an impact on these proposals.

From Wealth Management, an article (see link below) that is a comprehensive and useful review:

“President Biden’s primary plan to tax HNW (High Net Worth) families’ estate-planning structures is by making death, lifetime gifts and exceeding maximum holding periods for assets in trust recognition events for income tax purposes. The resulting income tax would be in addition to the potential gift, estate and generation skipping transfer (GST) taxes that may be imposed. This proposal, while alarming for many, isn’t new.”

And now for something completely different and more enjoyable. Another kind of green book.

A close friend of mine, a retired artist no longer in the world, spent much of his career as a commercial artist in advertising. When he retired to the desert in southern New Mexico (perhaps to get away from the Mad Men and to pursue his art in peace).

Charlie and I kept in touch to share our loves of opera, European Classical Music, American Classical Music (i.e., Jazz),  Notre Dame sports, Bob Dylan, myth, etc. Charlie hated critics with a passion (“those cold and timid souls who neither know victory nor defeat”) that only an artist can understand. When he retired he was able to make a living from his own art rather than the commercial work required of him by his job.

More than a decade ago, after arthritis had prevented Charlie from painting in oils, he took to digital art. I am proud to say that I suggested to him that he translate his images, both oils and digital, to Youtube videos accompanied by the music that he loved, especially from artists we both believed were under appreciated, like Dr. Don Shirley, Oliver Nelson, Gundula Janowitz, and Franco Corelli. His first effort was a selection from Dr. Shirley, the first time his music appeared on YouTube. It opened up a whole new world for my friend and he was thrilled when a relative of Dr. Shirley reached out to thank him for remembering his music. Now there are many YouTube videos of Don Shirley.

Lo and behold, they recently made a movie about Dr. Shirley called Green Book. This other  “green book” was a publication that some Americans had to use to determine where they could stay, where they could eat, how they could travel, even where they could go in the days of Jim Crow because other Americans refused them the right of free association.

For more on the green books, and in honor of my late friend Charlie and in honor of Dr. Don Shirley, here are three links:

The US Treasury’s Green Book.

Hometreasury.gov General Explanations

A review of the government’s Green Book’s impact on estate planning, from Wealth Management.

Wealthmanagement.com Estate Planning Implications

And finally, my late friend’s first venture on YouTube. Charlie was delighted with replies from some grateful listeners. RIP, Charlie. We’ll meet again, by the Sí Mór near Yeats’s Seven Woods or at one of the ancient pueblos of New Mexico where your dear wife’s  Anasazi ancestors lived. Perhaps we’ll meet Dr. Shirley there jamming with Mozart (although you would prefer Beethoven).

Youtube.com watch

As a trusts and estates practitioner, part of my practice is to help my clients formulate an estate plan.  The plan usually includes a Will, a Heath Care Proxy, a Living Will and a Power of Attorney.  Some people opt to place some or all of their assets in a Trust.  Assets also can be titled jointly with right of survivorship or with pay-on-death beneficiary designations.  After these documents are executed and the designations made, many people close the book on their estate planning and get on with their lives.  These people are ahead of the curve, unlike those people who do not plan for the inevitable.  However, estate planning is something that is fluid and should be reconsidered periodically, especially if a person’s marital status changes, if one becomes a parent or grandparent, as one’s wealth increases or decreases, and in respect to retirement plans and goals.

There is a nexus between estate planning and planning for one’s retirement.  The nexus gets stronger as we grow older and closer to retirement.  The lesson, though, is that it is never too soon to consider the tie-in between retirement and estate planning.  Both impact on how one’s assets will be used, both during one’s life, and after one passes.  Both impact not only on the person, but also on his or her family, including the next generations.  In that regard, there are two recent articles that address these topics, albeit from different angles.  The articles are food for thought, and I refer you to them.

The first article is from Investor’s Business Daily and is entitled, “Seven Retirement Myths Debunked.”  In the article, author, Donald Jay Korn, rethinks seven common retirement planning techniques, including the tenet that one should maximize one’s 401(k) contributions.

The second article is from Kiplinger and is entitled, “Planning for Retirement Assets in Your Estate Plan.”  Author Kathleen A. Stewart, an Accredited Investment Fiduciary and a Senior Wealth Strategist with BNY Mellon Wealth Management, examines the categories of assets that she recommends one should utilize planning for and during retirement versus the assets a person should pass down to maximize all of one’s assets, hence, the tie-in between retirement planning and estate planning,.

Both article are worth reading and may make you rethink your short-term and long-term planning.  The links to the articles are below.

Investors.com Retirement Planning Mistakes and Commom Myths Debunked

Kiplinger Planning for Retirement

 

 

The challenge of maintaining a law blog is to keep it fresh and to make it interesting to a broader audience than attorneys. One of our recent blog entries discussed the debts of a decedent and whether a decedent’s family would be personally responsible for those debts. (Short answer – no.) This entry will explore a somewhat related topic, the three A’s of estate administration: Apportionment, Abatement, and Ademption. It comes with a promise to make it interesting and even entertaining. ( For the attorneys who may be reading this, the statutory authorities for these concepts can be found in EPTL 2-1.8 (tax apportionment),  EPTL 13-1.3 (abatement), EPTL 3-4.2,  3-4.3 (ademption), and SCPA 1811 (order of decedent’s debts).

Let’s begin with a fictional Will that was admitted to probate. The names of the testator and beneficiaries are all geniuses of the Jazz piano[1] (except the two ringers for you to find).[2] The names are listed in order of their greatness, in your writer’s humble opinion. The values of the testamentary gifts are added in parentheses for later use in hypotheticals. The Will provide as follows:

I, Art Tatum, domiciled in the beautiful borough of Brooklyn in the City of New

York, being of sound mind and disposing disposition, do hereby declare and publish this my Last Will and Testament . . .

 Article FIRST. I give my 1969 ZL1 Camaro (value: $450,000.00)[3] to my dear friend, Oscar Peterson. Should he predecease me, then to my devoted fan Michael P. Ryan.

 Article SECOND.  I give my bank account and all its contents at the time of my death ($400,000.00) in the Alaska Savings and Loan Association, account number 1234567, to my dear friend, Thelonious Monk;

 Article THIRD

                           I give my dear friend McCoy Tyner the sum of $100,000.00;

                           I give my dear friend Bud Powell the sum of $100,000.00;

                           I give my dear friend Mary Lou Williams the sum of $100,000.00;

                           I give my dear friend Ahmad Jamal the sum of $100,000.00;

                           I give my dear friend Nat Cole the sum of $100,000.00;

                           I give my dear friend Eddie Palmieri the sum of $100,000.00;

 Article FOURTH.  I give and devise my home in East Hampton, New York (value: $1,700,000.00) to my dear friend, Herbie Hancock, should he predecease me then to my dear friend Johann Sebastian Bach; and

 Article FIFTH.   I give all the rest, residue, and remainder of my estate wherever situate equally to my two dear friends  Red Garland and Bill Evans (value: $1,850,000.00).

Total estate:

$ 450,000.00

   400,000.00

   100,000.00

   100,000.00

   100,000.00

   100,000.00

   100,000.00

   100,000.00

1,700,000.00

5,000,000.00            gross probate estate

Hypothetical 1:   The estate owes the IRS an estate tax of $300,000.00 , and the Will is silent as to how those taxes are to be paid. Who pays the tax?

Answer: Because the Will is silent on the payment of taxes, the tax is apportioned equally among the beneficiaries under EPTL 2-1.8. ($300,000 ÷ $5,000,000 = 0.06, or 6%). Therefore, each beneficiary must contribute 6% of his or her legacy to the taxes. If one or more balks? The relevant statute covers that situation and empowers the executor to bring suit to collect the share and to receive legal fees for the effort. But the IRS doesn’t care and holds the executor primarily liable for the payment, and requires the fiduciary to “chase” the beneficiary for reimbursement.

Hypothetical 2: What if the Will contained a provision that read, “All taxes of my estate are to be paid as administration expenses.”

Answer: The governing statute, EPTL 2-1.8, is a default statute and can be varied by the will. Here, the Will requires the taxes be paid from the residuary estate. Did the testator intend that result? Does an attorney ever discuss with a client the tax payment clause? Who knows? Here, the $300,000 comes out of the residuary bequest to Red Garland and Bill Evans.

Hypothetical 3:  If Art’s estate owes Louis Armstrong[4] the sum of $2,450.000.00, how is the debt discharged from estate assets?

Answer: Debts of the decedent, apart from taxes, are paid in an order established by statute, EPTL 12-1.2 (unless changed by the will). The order of payment is:  distributees; then residuary beneficiaries, then general or demonstrative beneficiaries, and then finally from specific beneficiaries. Therefore, the entire residuary gift to Red Garland and Bill Evans is wiped out and so too are all of the general legacies to McCoy Tyner, Bud Powell, Mary Lou Williams, Ahmad Jamal, Nat Cole, and Eddie Palmieri.($1,850,000 + $600,000 = $2,450,000)

Hypothetical 4:  If Art’s estate owes Miles Davis[5] the sum of $3,000.000.00, how is the debt discharged from estate assets?

Answer: Once the residuary estate and the general bequests are wiped out, the estate is left owing Mr. Davis the sum of $550,000. That sum must be paid from the specific bequest of the Camaro, the specific bequest of the bank account, and the specific devise of the beach house. Their value exceeds the amount owed ($2,550,000 vs. $550,000). The amount owed is app. 22% of the value of these testamentary gifts so each beneficiary should contribute that share to the remaining amount owed. If not, then there are remedies for the executor but we need not get into that.

Hypothetical 5:  If Art’s estate owes the IRS an estate tax of $3,000,000.00, and if Art’s estate owes Dizzy Gillespie a debt of $4,000,000.00, then how are these liabilities paid?

Answer: This one is easy, the obligations are more than the estate’s value. The IRS gets its $3,000,000. The IRS always gets its money The remaining $2,000,000 of assets in the estate are sold and the proceeds used to pay the debt to Mr. Gillespie. In other words, the creditor gets $0.50 on the dollar. Can Mr. Gillespie choose to take the assets in kind? Yes, and they may be excellent investments.(Especially that Camaro.)

Hypothetical 6:  If Art’s estate owes its attorneys and accountants $1,000,000.00, and if Art’s estate owes Clifford Brown a debt of $2,000,000.00, then how are these liabilities paid?

Answer: Administration expenses like attorneys’ fees, accountants’ fees, etc., are favored more than private debts, more then taxes in many respects. If they weren’t, then who would ever represent an estate? Here, the $1 million in fees reduces the residuary from $1.85 million to $850,000. Mr. Brown gets that $850,000 and the remaining $1,150,000 he is owed wipes out the general bequests totaling  $600,000, leaving an amount still owed of $550,000 that must be shared by the beneficiaries as calculated in Hypothetical 4.

Hypothetical 7:  If Art’s estate owes its attorneys and accountants $1,000,000.00, and if Art’s estate owes Wynton Marsalis a debt of $2,000,000.00, Arturo Sandoval a debt of $2,000,000.00, and Fats Navarro a debt of $2,000,000.00, then how are these liabilities apportioned?

Answer: Again, as in Hypothetical 6, administration expenses like attorneys’ fees, accountants’ fees, etc., are favored. Here, the $1 million in fees reduces the residuary from $1.85 million to $850,000.The remaining value of the estate ($4 million) is less than the debts owed of $6 million. Therefore, each creditor receives 2/3 of the amount owed ($4 million / $6 million).

Hypothetical 8: Before his demise, and through no fault of his own, Mr. Tatum’s Camaro was totaled in an accident. The insurance proceeds were paid to his executor a month after his death. Do the insurance proceeds belong to the specific legatee, Oscar Peterson?  If not, then how are they distributed?

Answer: Yes, but only because they were paid post-mortem. If they were paid to Mr. Tatum before he died, then they would be assets of the residuary estate (EPTL  3-4.5) and the bequest to Mr. Peterson would “adeem” (i.e., end, be ineffective) and he would be entitled to nothing from the estate.(Likewise, if Mr. Tatum no longer owned the beach house when he died, then Herbie Hancock is entitled to nothing from the estate.).

Thank you for coming this far. If anyone would care to dispute my ranking of these greats, please feel free to let me know and we can battle it out. Future efforts will next deal with the great drummers, bassists, saxophonists, etc. Consider yourself warned.

And last but not least, this blog entry is being published on the occasion of Bob Dylan’s 80th birthday. Happy birthday, sir, many healthy and happy returns of the day to our most worthy Nobel Laureate.

[1]  Inspired by the music itself, and the opinions of Dr. Billy Taylor and Max Roach, your writer prefers the term “American Classical Music” as a companion to “European Classical Music.”  It was difficult to leave out  many other artists, but what can one do? Duke Ellington, Count Basie, Horace Silver, Bebo Valdéz, Chucho Valdéz, James P. Johnson, Dave Brubeck, Chick Corea, Earl Hines, Fats Waller, Erroll Garner (who does not own a copy of his “Concert by the Sea”?), Eddie Palmieri, Ramsey Lewis, Joe Zawinul, Brad Mehldau, Albert Ammons, Keith Jarrett, Kenny Barron, Wynton Kelly, Cecil Taylor, Dr. Billy Taylor.   All great,  all worthy of your attention.   And then there is the “younger” generation of musical genius like Hiromi, Gerald Clayton, Vijay Iyer, Gonzalo Rubalcaba, Renee Rosnes, Bill Charlap, Fabian Almazan, Ashley Henry, and many others.

[2]  Of the two ringers, one of them no more belongs on this list than does Fred Flintstone, the other is a Baroque genius who could swing with any of these artists. In fact, the Baroque period of the European Classical tradition shares many features with the America Classical tradition, i.e., Jazz –  the musical inventiveness, the love of improvisation,  origins in dance rhythms,  roots in religious music,  speed, experiments with harmony and melody, and  the “cutting” contests between masters.

[3]  Yes, $450,000. This Camaro was among the most beautiful and perhaps the rarest, meanest muscle car ever to come off the American assembly line. Few did, hence their current value.

[4]  The creditors are the immortals of the trumpet, again listed in order of importance, in your writer’s opinion. Feel free to mock, criticize, or change my order in the comments if you like. Who among us does not own an album by Louis Armstrong?

[5]  Who among us does not own the album Kind of Blue? You don’t? Shame on you.

The late great country singer, George Jones, had a hit with the title “Who’s Going to Fill Their Shoes?” It was a lament on the state of country music as it lost its connection to its roots and became more commercial. This entry has nothing to do with either country music or the complaints by old timers against the faults of young whippersnappers. Instead, it is going to focus on the confluence of two topics of concern to trusts and estates – the looming massive generational wealth transfer, and the continuation of a family business. This entry is more of a collection of recent articles and publically available resources than it is a comprehensive analysis, but perhaps one or more of the links will spur the reader to seek proper advice.

  1. The Great Wealth Transfer is Coming! It has been variously estimated that as the baby boomers pass from the scene, they will leave to their loved ones among Generation X and the Millennials huge amounts of wealth, estimated to range from $15 trillion,[1] $30 trillion,[2] $59 trillion,[3] or even $68 trillion.[4]

It remains to be seen if these large amounts of wealth will be sufficient to pay for more than three semesters of college for the grandchildren or great grandchildren of the baby boomers, but they’ll be gone so they won’t have to worry about it.

Nevertheless, it certainly is time to think about estate planning, given the proposed tax changes. Regardless of any changes to the tax laws, proper estate planning involves more than tax efficiency. It also involves avoiding problems that could lead to litigation and its consequent expenses. The three major sources of litigation are: a) inattention to family dynamics and the failure to plan accordingly so as to avoid the disgruntled distributee from making trouble; 2) the careless drafting of testamentary documents that result in litigation and some third party, i.e., the court, trying to “guess” the intent of the testator from the words he or she (or more likely his or her attorney) chose; and 3) the choice of the wrong fiduciary.

Finally, as an illustration of how this issue is gaining wide currency, how can one resist an article on the website Vox titled “The impact of inheritance, A ‘great wealth transfer’ may be on the horizon. Will a gift from grandma save the middle class?” If the title is not catchy enough, then how about its lead sentence, “Technically, Megan is a farming heiress.”[5]

  1. Business Succession Planning.

It’s one of the most common issues related to the future of a family-owned business: How do the owners pass the business to their children? Moreover, how do they know if their children will even want to take over the business, let alone make it profitable for the long term? This is a complicated issue, involving issues of corporate governance, income taxation, gift and estate taxation, family dynamics, commercial transactions, etc. In an excellent article from Crain’s New York Business we read:

A shocking number of U.S. businesses lack a detailed, written succession plan. When you look at family businesses and companies with annual revenues below $50 million, the absence in planning becomes especially pronounced. In its 2019 US Family Business Survey, PwC Private Company Services found that only 18% of family businesses said they have an effective plan.

This is particularly troubling considering that succession plans govern far more than scheduled exits. They can also serve companies as a powerful tool for navigating unforeseen transitions. The social and economic fallout from the coronavirus pandemic only underscores the need for businesses to account for force majeure events in planning for their future.[6]

There is a wealth of information on this topic available on the internet and should provide the reader with an introduction to the complexities of the issues presented and the need to seek out experienced and knowledgeable advice.[7]

[1] https://www.nytimes.com/2019/12/18/arts/design/great-wealth-transfer-art.html

[2] https://www.forbes.com/sites/markhall/2019/11/11/the-greatest-wealth-transfer-in-history-whats-happening-and-what-are-the-implications/#1ecf10c74090

[3] https://www.bankrate.com/personal-finance/great-wealth-transfer/

[4] https://www.cnbc.com/2019/10/21/what-the-68-trillion-great-wealth-transfer-means-for-advisors.html

[5] https://www.vox.com/the-highlight/22320272/inheritance-money-wealth-transfer-estate-tax

[6] https://www.crainsnewyork.com/crains-content-studio/succession-planning-long-lasting-business

[7]  For example, see this article on Investopedia, “How to Create a Business Succession Plan”:

https://www.investopedia.com/articles/pf/07/succession_planning.asp

 

They told him, “Don’t you ever come around here”

“Don’t wanna see your face, you better disappear”

The fire’s in their eyes and their words are really clear

So beat it,  just beat it.

The Beatles certainly had taxes on their minds when they wrote and sang “Taxman” in their seminal album Revolver in 1966, but does it strain belief  too much to think that the late Michael Jackson had the IRS in mind when he wrote the lyrics for his hit “Beat It” on the equally classic and seminal  Thriller album in 1982? After all, what comes to mind but the IRS when you encounter lyrics like “[t]he fire’s in their eyes and their words are really clear.”

The estate of Michael Jackson has long been in litigation with the IRS over issues related to the valuation of the late artist’s estate.  A person’s taxable estate is usually easy to measure because assets generally consist of easily valued properties. But what is an artist’s image and likeness worth? Reasonable minds may differ. Elvis Presley’s estate made more money in 2020 than the singer had in 1977, the year he died.

The IRS looks to maximize the estate tax liability by increasing the value of the assets while the estate looks to minimize it by downplaying the value of the same assets. “Experts” are retained by both sides to testify that what is up is down and what is down is up (depending upon which side they represent). The issues of valuation were particularly acute with Michael Jackson’s estate because of the troubled nature of his reputation at the end of his life and his efforts at making a comeback in what had been a long and brilliant career in music. As The New York Times reported:

But there was another matter that has taken more than seven years to litigate: Jackson’s tax bill with the Internal Revenue Service, in which the government and the estate held vastly different views about what Jackson’s name and likeness were worth when he died.

The I.R.S. thought they were worth $161 million . The estate put it at just $2,105 [yes, dear reader, there were “experts” ready, willing, and able to testify to those two extremes]— arguing that Jackson’s reputation was in tatters at the end of his life, after years of lurid reporting on his eccentric lifestyle and a widely covered trial on child molestation charges, in which Jackson was acquitted.

On Monday [May 3, 2021], in a closely watched case that may have implications for other celebrity estates, Judge Mark V. Holmes of United States Tax Court ruled that Jackson’s name and likeness were worth $4.2 million, rejecting many of the I.R.S.’s arguments. The decision will significantly lower the estate’s tax burden from the government’s first assessment. . .

The Jackson case has been watched closely as a guide for how celebrity estates may be valued, and for their tax liabilities. Among the major estates with large tax issues still before the I.R.S. are those of Prince and Aretha Franklin.[1]

Issues of valuation are rarely as large or as publicized as was the case with the late Mr. Jackson, but they remain a prime concern of the estate attorney when preparing or defending the estate tax return. The IRS initially valued Michael Jackson’s likeness and image as worth about $434 million at death (later graciously amended down to $161 million), while the estate said it was only worth about $2,000.

If you are interested in reading the judge’s decision (and it is a long but interesting  one), it is available at: Assets KPMG

By the way, what did the judge decide? He valued the asset at $4.1 million, a win for  the estate and some useful guidance for future valuation cases.

[1]  New York Times Michael Jackson Estate

 

Parents who have children approaching adulthood, in New York, that being when the child reaches his or her eighteenth birthday, know that even such a happy occasion can bring its own version of angst.  Watching one’s child undertake the rights and responsibilities of adulthood involves letting go of the control the parent has had since the child was born.  What parent does not wonder, “Is my child mature enough to make responsible decisions?  Will he or she exercise good judgment?”

Parents of children who are intellectually disabled or developmentally disabled and who approaching their eighteen birthday face a myriad of issues.  On the one-hand, the child will be legally recognized as an adult and, as such, the only person allowed to make his or her medical, financial and personal decisions; on the other hand, the particular child, because of his or her disabilities, may never be able to make these decisions.  The child may not have the intellect or the proper development to choose where to live, to make medical decisions, or, in the worst-case scenario, end-of-life decisions.

There is a legal mechanism that allows parents, and legal guardians, of an intellectually disabled or developmentally disabled child to become that child’s legal guardian when that child attains legal adulthood.  It is Article 17-A of the Surrogate’s Court Procedure Act.  It requires commencing a proceeding in Surrogate’s Court in the county where the child resides.  After the proper application is made, there is typically a hearing where it must be proved to the satisfaction of the court that the person is either intellectually disabled or developmentally disabled, or both, such that the person is incapable of managing his or her own affairs because of the disability, and that the disability is permanent or likely to continue indefinitely.

The statute requires the certification of the intellectual or developmental disability by one licensed physician and one licensed psychologist, or by two licensed physicians, at least one of whom must be familiar with or has professional knowledge about caring for and treating individuals with the particular intellectual or developmental disability.  Further, the court will consider whether the appointment of a guardian or guardians is in the best interests of the allegedly disabled person and whether the applicant or applicants are suitable for the position.

If these requisites are met, after the hearing, the court will appoint a guardian or guardians for the intellectually or developmentally disabled person.  The guardian or guardians will have the right to make that person’s decisions indefinitely.   Since this deprives a person of the rights he or she would otherwise have as an adult, the court takes this type of appointment seriously, as one would expect.  In fact, the court-appointed guardian or guardians will have to account on an annual basis for all of their ward’s finances, and they are subject to removal if the court finds any financial or other improprieties.

Article 17-A is the solution to what would otherwise present an untenable situation.

 

 

Today’s blog entry is short and “sweet,” devoted to recent articles from Forbes, RealMoney,[1] and MarketWatch[2] that are worth your time. The Forbes article is called “How To Beat Massive Estate & Income Tax Hikes.”[3] A quote from the article that will suffice to keep this blog current and informative:

“If ever there was a time to do smart estate planning, now is it. If you move quickly you can still shelter millions – even tens of millions – using the right sort of trusts, but if you wait until the law changes and the threshold drops, you’re pretty well sunk, grandpa or no.”

That being said, Jim Cramer at Real Money is unafraid of changes in the capital gain tax. In the linked article he states a couple of his investment rules:

One of my oldest rules, from my days of helping wealthy individuals at Goldman Sachs, is pretty controversial: you must never fear the tax man. I do not care if you have a 44% tax rate or a 20% capital gains rate, if you are driven by concerns about paying that tax more than you care about the fundamentals, you might end up losing a lot more money than you would ever pay the government.

Hence another rule of mine. I never care what your basis is, where you bought it, higher or lower than the current stock price. It means nothing to me. What constitutes a stock that should be sold regardless of the taxman? I think you need to ask yourself if the company you own stock in might be facing an existential crisis. If that’s the case, say, because it is a so-so retailer in a series of so-so malls or because it might be a company with no earnings or prospect of earnings any time soon or because the company’s out of money with no prospects of becoming profitable, then it should be sold whether Biden succeeds in changing the tax code or not.

[1] https://realmoney.thestreet.com/jim-cramer/jim-cramer-if-the-capital-gains-taxman-cometh-be-ready-for-anything-15633239

[2] https://www.marketwatch.com/story/biden-has-pledged-to-tax-the-rich-but-precisely-how-will-he-do-that-experts-consider-his-options-11619110923

[3]  https://www.forbes.com/sites/jeffcamarda/2021/04/15/how-to-beat-massive-estate–income-tax-hikes/

 

For the 99.5%.

A funny thing happened on the way to President Biden’s inauguration. What had been a trickle in the few years before the election became a flood after November 2020.[1]  Famous artists started selling their song catalogs. Bob Dylan sold his songs for a reported $300,000,000. He was not the first to do so.  Paul Simon,  Blondie, Shakira, Barry Manilow, Neil Young, Chrissie Hynde, and many other notables of the music world have sold their publishing rights for millions of dollars.

Why?

A website frequented by the rich and famous, Celebrity Net Worth,[2] tells us that “[p]erhaps the most intriguing reason musicians may sell their catalogs: they’re privy to a special tax rate on self-created works. Musicians owe 20 percent in capital gains tax rates on their music. That includes album sales, streaming, licensing, and any other royalty income. If they had to pay ordinary tax rates, a musician could be taxed up to 37 percent on their earnings. ” While this does not tell the complete and accurate factors involved, it is certainly a reason why the recent popularity in selling song catalogs. For example, with interest rates at historic lows, professionals in the music industry saw an opportunity that not only benefited the artists but also provided a leveraged income stream for many years to come that would vastly outweigh the purchase price. Hence, the rise of companies like Primary Wave and Hipgnosis Songs.

Why now?

Perhaps the times they are a-changin, and perhaps the tax benefits given to artists will soon disappear.  Bernie Sanders, the senator from Vermont, recently introduced his “For the 99.5% Act” in the Senate. [3] A concise overview of the proposal can be found at the website of Wealth Management. Com.[4]  The proposal includes federal estate tax rate increases to 45% for estates over $3.5 million with further increased rates up to 65% for estates over $1 billion. The basic exclusion amount will be a $3.5 million estate tax exemption and a $1 million lifetime exemption for gifts. The basic exclusion amount will be a $3.5 million estate tax exemption and a $1 million lifetime exemption for gifts. But so what? The current law was scheduled to sunset in 2025 anyway and few expected the rates to remain as they are now. One thing is certainly blowin’ in the wind, the capital gains tax is likely to increase and artists are taking advantage of the current law now.

The article from Wealth Management lists some planning strategies in light of possible changes in the law.[5] They are worth reviewing .

Conclusion?

Will the most radical of Sen. Sanders’ proposals be enacted into law? Most professionals do not believe so. But then again, who knows? Even President Biden has proposed imposing a top long-term capital gains tax rate of 39.6%. We all remember what the poet sang:

Come writers and critics

Who prophesize with your pen

And keep your eyes wide

The chance won’t come again

And don’t speak too soon

For the wheel’s still in spin

And there’s no tellin’ who

That it’s namin’

 

[1] https://www.rollingstone.com/pro/features/famous-musicians-selling-catalog-music-rights-1114580/. Tell me that you’ve ever seen Rolling Stone quoted in a Trusts and Estates blog?

[2] https://www.celebritynetworth.com/articles/sports-news/why-are-so-many-musicians-selling-their-catalogs/

[3] https://www.sanders.senate.gov/press-releases/sanders-and-colleagues-introduce-legislation-to-end-rigged-tax-code-as-inequality-increases/

[4] https://www.wealthmanagement.com/high-net-worth/senate-bills-propose-changes-estate-tax

[5] Obvious disclaimer, this is not offered as legal advice, nor is it intended to be relied upon by readers. If you find yourself in the 0.5% targeted by Sen. Sanders then congratulations on your great success and start seeking advice soon.

Tom’s father recently passed away.  We have been friends for many years and share a love for movies and plays. Tom is a film and theatre historian and writer of some note. Needless to say, I am neither (hence, “movies and plays”). Tom, even with his vast erudition, is gifted with a profound lack of pretension and a genuine interest in the next person’s opinion. We are both great fans of the movies of Stanley Kubrick, Terrence Malick and the plays of Conor McPherson, Tom Stoppard. To listen to the two of us discuss favorite movies or plays would be like listening to Albert Einstein happily conversing with a high school physics student. In fact, Dr. Einstein did just that with an acquaintance of mine, an attorney who wrote to the great scientist when the attorney was a student at the Bronx High School of Science. Upon graduation from law school and marriage and leaving home, his parents discarded all his baseball cards and all his letters from Einstein!

When Tom’s father died, Tom’s great worry was that his father’s debts would become his debts. After a brief discussion on the nature of his father’s assets and how they were titled, I was able to reassure Tom of two things: 1) that not only could Tom’s assets not be used to pay his father’s debts, but also 2) that much of his father’s modest estate would pass to him without being subject to those debts. Why? Ah, thereby hangs a tale. Let’s tell it.

When a person dies, what happens to his or her debts?   Attorneys are allergic to categorical statements or answers. Hence, the attorney’s typical answer to any question is “yes and no,” or “it depends.”  In this case, however, it is accurate to say that debts survive the decedent and must be paid from the decedent’s estate assets before any beneficiary receives a legacy, provided these debts are valid and timely, and provided that they were part of the decedent’s probate or intestate estate.

What do we mean by a decedent’s probate or intestate estate? The term has a few meanings. There are several types of assets of a decedent that may be immune from the clutches of creditors because they do not “pass” through the decedent’s estate. It might be useful to illustrate this fact with an example.

Mom dies.  Her wealth consisted of the following:

  1. The house in which she lived. However, seven years before her death she deeded the house to her son and even filed a gift tax return.  At the date of transfer and death the house was worth $320,000 and $500,000, respectively.
  2. A bank account in the mother’s name showing a balance of $143,000.00.
  3. Another bank account opened with the mother’s money but created as a joint account with right of survivorship with her son.  The account contained $88,000.00.
  4. A 401k account that held $160,000.00 in assets and designated the decedent’s son as the beneficiary.
  5. A life insurance policy in the amount of $100,000.00 with the son designated as the beneficiary.
  6. An outstanding balance on the decedent’s American Express account of $18,000.00.
  7. An outstanding balance on the decedent’s MasterCard account of $22,000.00.
  8. An outstanding balance on the decedent’s Visa account of $11,000.00
  9. A private, unsecured debt supported by a promissory note on a loan from a friend in the amount of $200,000.

Decedent’s Will gave her entire estate to her son.  How much was in her probate estate?  The mother’s only asset that was subject to the Will is $143,000.00, the amount in her name alone in the bank account.

Decedent’s “total” estate assets (at least as it might be calculated by the IRS for estate tax purposes):

$500,000        The house[1]

$143,000         The bank account

$88,000         The joint bank account

$160,000         The 401k account

$100,000         Proceeds from the life insurance policy

$991,000         Total estate passing or passed to the son

 

Decedent’s “probate”[2] estate

$143,000         The bank account

 

Decedent’s Debts:

$18,000       American Express balance

$22,000      MasterCard balance

$11,000       Visa balance

$200,000      Loan balance

$251,000      Total Indebtedness

One might think that there were plenty of assets owned by the mother to satisfy all the debts. One would be wrong. The creditors of mother’s estate would be able to collect on their debts only from the $143,000 bank account, and that amount would be reduced by administration expenses (like attorney’s fees, heh, heh, heh). Mom’s remaining assets passed to her son by operation of law or by the designation of a beneficiary. They are immune from her creditors. I know, I know, you attorneys reading this will be saying to yourself, “but what if,” and “but suppose…” This is why we attorneys hate definitive answers to any questions. It is conceivable that there are circumstances under which some of these non-probate assets could be brought back into the estate and collected by the creditors.

But not likely.

[1]  Although the house was gifted to the son years before the mother’s death, and the transfer was a legitimate gift that did not render the mother insolvent, its value may still find its way into an estate tax return as an “adjusted taxable gift.” Happily for the reader, there is no need to consider this concept in any detail here.

[2] The “probate” estate consists of assets that will be governed by the decedent’s Will. The assets excluded from this list are not probate assets because they are governed by beneficiary designations or by the operation of law.