Do you know a teacher or someone that works for a school district? In the first segment, we explore how public school employees have been sold terrible variable annuities, even as the reps looked like they were endorsed by the district.
Then, do you think that “trusts” are just for rich people? Well, they’re not.
On this week’s Make It Last, Victor discusses the difference between a Trust and a Will and which may be right for you. And Victor discusses the 4 trusts that you absolutely need to consider including in your estate plan.
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Make It Last with Victor Medina is hosted by Victor J. Medina, an estate planning and elder law attorney and Certified Financial Planner™. For more information, visit Medina Law Group or Private Client Capital Group.
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Here is the transcript from this episode…
Announcer: Welcome to Make it Last, helping you keep your legal ducks in a row, and your nest egg secure, with your host, Victor Medina, an estate planning and elder law attorney and certified financial planner.
Victor Medina: Hey everybody, it’s Make it Last radio with Victor Medina. I’m Victor Medina. Welcome back to another episode, and I’m so excited you’ve joined us here today. We’ve got a lot in store for you. I’m going to talk to you about one of my favorite subjects: trust versus wills. I’m going to share a little information about my own personal family situation. They’re all teachers, and what’s going on with teacher investments, but before I get started, I realized that I haven’t spent a lot of time talking to you about the structure of the show. I really put a lot of thought into how I’m going to be doing this, and one of the things I want to do is let you in on that, so you can kind of expect what to do. I mean, how to listen to the show. So, we’re going to be breaking this up into three segments. And what we’re doing is, one of the segments is always going to be today’s timely topics. I’m going to try to address something that’s currently in the news that will be helpful for you to know. And then we’re going to go to today’s straight talk, and that’s going to be our biggest education portion of it. And we’re going to spend some time explaining some new concepts for you. Things that you can take home with you. And then we’re going to end with today’s – what are we calling it? Oh, today’s top tips. There we go. Today’s top tips. So that’s a third segment that we’re going to go in and talk about practical advice for you. Now, many of the times that we’re going to have today’s top tips going to be related to today’s talk, so we’ll take some time explaining something and then give you something to walk away with. And then there’s going to be times where we’re going to have a guest on for today’s talk, and the tips are going to be completely unrelated to that. So that’s going to be the structure, and those three segments are going to be there just about every week. It helps me plan out everything as we’re going to be talking to you, and it helps you understand that you’re going to have something that you’re going to learn on, current events, something that’s going to go deep on, some new planning subjects that we’re going to talk about, and then we’re going to end up with some practical tips. And if you stay tuned with us in every episode, that’s what we’re going to promise to give you, absent a few valiances every once in a while. Maybe I go in a different direction, just to keep things interesting. But for the most part, that’s what we’re going to be doing.
Now, in today’s first segment, talking about the timely topics, I want to talk a little bit about the attack on retirement accounts for teachers. Now, this is a subject that’s very near and dear to my heart, because in my family, there are a lot of teachers and people in public education. Now, my parents, they divorced and remarried. I’m very close with all four of my parents. And I consider them all to be – I got two mothers and I got two fathers. That’s the way that I think about it. But just to keep things clear for you, the listener, I have my mother, and she was a school psychologist. She was a teacher, then a school psychologist, and then an administrator. She spent about 30 years in public schools in Connecticut. My stepfather, he was a special education teacher for over 30 years. My stepmother was a librarian and a media technician in the public schools. And then, my father was a teacher, and then a college professor, teaching sociology, and that has been his career. Then I married a school psychologist. Now, those of you who have been listening attentively – so with your mother a school psychologist and your wife is a school psychologist, there’s got to be some deep-seated meaning to that, and well, there might be. But the most important part about that is that my mom introduced me to my wife, because they were coworkers together. Which works out great in my family, because it means that my wife comes with the ultimate seal of approval. And I say to my mom, “You chose her. She’s your choice here. No complaining. No complaining at all.” Which she never does. So my wife’s a school psychologist. My sister is a special education teacher. There are a lot of people that are involved in the public schools. And education is a big commitment within the family, helping people out. Even a commitment of mine. I’m educating people here, because I just feel so strongly on it.
But within the public education realm, there are people who are working towards a pension as part of their retirement, but they’re also the opportunity to save money. And if you’ve been paying attention to the New York Times, there was a series of articles that came out, basically really examining deeply 403B plans, and the advice that is given in there – and how the advisors get in to sell these teachers some really, really bad investments. Now, 403Bs are an interesting class of retirements, because some 403Bs are covered by the ERISA laws, and therefore, will be covered by the DOL fiduciary law, which we discussed in prior episodes. In fact, I think the last episode we talked about that. But the 403Bs that are covered in K-12 public schools are not covered by that. So what it means is that when the new DOL regulation comes in, there are going to be teachers and people who work for school systems thinking that this new law protects them, and it doesn’t. And it’s really a shame, because when they’re looking for advice, the way that they seem to get it is that whoever is the darling of that school district sets up shop in the cafeteria one day, and they tell you, “Oh, well the investment professional’s here and they want to talk to you about investments in your 403B.” And you sit there, and you sit across from somebody who comes with almost a stamp of approval by the district, because they’re there. But there’s no disclosures, at all, about the relationship that they’re in with you. There’s no disclosures about whether or not they’re working in your best interest. And what they’re recommending tend to be investments that don’t serve you. They’re these terrible variable annuities that cost a lot in fees, and you don’t think anything of it, because if this person’s recommending that, then it must be the right thing for you. This has gone so far that in Connecticut, a representative has introduced a bill requiring more and more disclosures by retirement plan sales people about their conflict of interest. Okay? So if you are a teacher, or if you know a teacher who works in a district, tell them to visit with a fiduciary-level investment advisor – sort of like what we do for our clients – to get a second opinion. When we’ve gone in and examined the statements in here, we’ve been able to pull out all of these embedded fees. One of those frequent recommendations is in the form of a variable annuity. In fact, there’s one company that’s mentioned in the New York Times articles that has really been highlighted for recommending this product over and over and over again.
Now, if you don’t know anything about variable annuities, by the way, don’t feel bad. You’re not alone. That’s most people. But it’s been said that annuities are not purchased, they’re sold. So, people tell you all about their benefits and you decide to buy one, but you would never go up and order one if you were given the option. Part of the reason for that, if you have all of the information, is that these variable annuities are essentially insurance products that wrap around investments. And, everyone’s got to make money. The insurance company’s got to make money, and the investments themselves have got to make money. So what you have is a double layer of fees. And the insurance company takes out their fees in the forms of rider charges or mortality and expense charges. And then the underlying investments that you’re in – those funds have their fees as well. And one of the worst things that happens is that within your investments – in the choices, in the variable annuity, you don’t have the investment options that you have normally out in the world. They don’t have the same breadth of options, the same scope of options. You can’t go in and say, “Well I want this particular thing,” because the investment company has essentially limited your options so that you only have these available. And the ones that they put in tend to be the more expensive kind. And expensive in the sense that they are embedded fees. So if you’re looking at investing in mutual funds inside of the variable annuity, you can go to Morningstar, and put in the fund ticker symbol, and figure out the disclosed expense ratio. Now, that’s not the entirety of the costs that are associated with it, but it will give you a good idea of at least what the published costs are. And the published costs – when you add that to mortality and expense charges – geez, we’ve done the analysis and we’ve found that sometimes there’s as high as 3 percent, annually. And that 3 percent just comes off of these investments, and it would mean that your investments need to significantly outperform that number before you would start to make money. So how likely is it that, on an annual basis, you would be outperforming? But more importantly, what would your account look like if you didn’t have to pay those fees as high as you currently do?
So this has gotten me all worked up. Every time that I sit across from a teacher, somebody who works for a school district, I go over this in my own personal life. I told you, I’ve got a lot of teachers that are in my life. And as you might imagine, my first financial planning clients were my parents, right? They’re the ones that will take one for the team on you. And when I was going over the investments that my stepfather and my mother had, they were the picture of this exact story. There were these annuities in there that hadn’t grown very much, largely because of the embedded fees. And the story that was told to them by this advisor was a very flowery tale of why they would want to do it. None of its true. And we couldn’t get them out of it fast enough. And that struck home for me, and I think that it’s important enough for you to be looking around in your life to those people that are teachers or work for school districts and might be under some mistaken belief that the people that are across from them are best choices for their investment professionals. They could be, they could not be. Many times we are finding that these are just sales people, there to sell high-commissioned products. And now, with the new DOL fiduciary rule, they’re going to be selling them without any protections, and even with a little bit of a danger that the general public thinks that they are protected because they’re part of a retirement account, and they read all this DOL fiduciary rule, and it turns out it doesn’t cover them. My recommendation is to go check that out. Be a friend to them. Recommend that they speak with a fiduciary-level investment advisor, whether that’s us or somebody else. I think it’s important for them.
Now, when we come back, we’re going to discuss the number one most misunderstood estate planning document. You want to know what it is? Stay tuned, we’ll be right back.
Victor J. Medina: Hey everybody, it’s Victor Medina. Welcome back. Our second segment on Make it Last, we’re talking about the number one most misunderstood estate planning document, and that is – drumroll please – the trust. Now, in my life, I have a lot of people asking me, “Should I have a trust or a will?” as though it’s like an either or proposition. In fact, I maintain a blog, and if you go into that blog, and you do a search, and you look at the history of what everyone has searched on that blog, the number one post 8 years later is Trust versus Will: Which One’s for You? It’s still a question that people have, and it’s a lot of misunderstanding about this planning document.
Now, a lot of people believe that trusts are only for rich people, and it’s because we suffer from this prejudice in the northeast that the only people with trusts are the rich people. Where if we just go over to the other coast, in California, everybody has a trust there. You can buy one for $250.00 at your neighborhood convenience store, because everyone knows that they need a trust to help avoid probate in California. So this really is a phenomenon that’s located in the northeast, because people tend to think that these trusts are only for rich people.
Now, what I’m going to try to do over this segment is help explain to you why A, that’s not true, B, why it’s not as complicated as you think, okay? And then when we break and come back, I’m going to give you your top tips about which are the trusts that you should be considering in your lives as part of your planning documents.
Now, what is a trust? Well it turns out that a trust, historically, goes back to the feudal times, where somebody was holding something for someone that went off to fight. And they were holding it in trust, it’s like take care of this for me. And when they did that, they were holding it in trust, and their responsibility was to look over this and make sure that they safeguarded it. Now fast forward a few hundred years, and those trusts turn into written documents, with ways to kind of outline what the responsibilities are, and what your instructions are, so you just didn’t leave it to somebody’s interpretation. And you figure out that today, the most common form of a trust is what we would call is a revocable living trust. Now, the best way to describe a trust, essentially, is that it is a way of collecting or organizing your stuff. It is a box for you to put your stuff into and then have a series of instructions that determine what’s supposed to happen in different circumstances. Now, when you deal with the difference between a will and a trust, the trust is often a document that’s created during your life. So you sign a document that establishes the creation of a trust. A will is a document that you sign during your lifetime, but it’s only effective when you die. The only point in time where we figure out whether or not your will is any good is after you’ve passed away. And then we have to submit it to the surrogate, and get it approved. And it works very well as a death-planning document, but it only covers a limited number of assets.
So if we’re thinking about the difference between a trust and a will, a will is only going to cover those things that you own in your individual name. So if you have stuff that are bank accounts, and if you have title to property that you might hold individually, your car, bonds that are in your individual name – a will is going to address those assets. But a will is not going to address assets like your IRA or 401k. It’s not going to address your life insurance. It won’t address any annuity contracts. It will not address anything that is a jointly-held asset. So if you have an account in more than one name. So if you have any kinds of those other assets, they’re not going to be effected by your will. And in fact, you can sign a will that says do one thing after you’re gone, and then these other assets, which we might call beneficiary-designation assets, specifically things like the life insurance and annuity contracts and IRAs, they’re just going to go according to those contract terms. So you might have two different results. Your will says split things evenly amongst three kids, but your life insurance, which you took out so many years ago, only names two kids. What happens? Well, only those two kids get that money. So you can have an oops in there. And so the trust serves to help collect all of this stuff under one umbrella. You would not ever, ever, ever, ever name your will or your estate as the beneficiary of those other assets. There’s too many bad tax consequences for doing so, and it never makes sense to do that. But you could name your trust as the beneficiary of those assets. And in doing so, essentially collects everything under one umbrella. And that way, you could apply one set of instructions. So if you went in saying, “Look, I want everything to go equally amongst three kids” and you have funneled all of your assets into this trust, made it easy to do the estate administration later.
So what are the elements of a great trust document? Well, one of the things that it should do is clearly outline who’s in charge. So, for a revocable living trust, that’s something that you control during your lifetime, and so you’re in charge of that trust. You’re named as the trustee. But just as important, we’re making sure that you have named who else could be in charge if something happened to you. If you became incapacitated. If you died. You would name who is in charge. Now, if you’re married, you would name your other spouse, but then we would want to think about what happens when that spouse is gone. So the first element of a great trust is that it’s clear about who’s in charge.
The second element is that it’s very clear about what you want to have happen. So we’re not involving a lot of complicated language and if, then statements. But a great trust will essentially say, “Look, I want things split equally amongst three children”. And you can layer that a little bit with, “Okay, well I want $10,000.00 to my godchild, and then I want everything split equally amongst the three children.” But we want very clear language. And in fact, it leads to my next tip, which is a great trust is written in plain English. There’s no legalese in a great trust. And the reason for that is that a trust is nothing more than a contract between you and yourself. And so if there’s any ambiguities about that contract, we have to go get it settled by a court. And the court looks to the plain language of the contract itself as well as your intent. So a great trust is going to take very easy-to-understand language, and it’s going to spell out what you want in very plain terms. In fact, there is no art to making a short trust. Because if you don’t include answers to questions that might come up later, those questions have to be settled by a court. So a great trust is very robust in how long it is and how much it covers. In fact, in the trusts that we write, they’re probably about 80 pages. That’s not impressive, that it’s 80 pages. You know, the reason why it’s so long is we’ve looked at the trust as a book of answers and gone ahead and said, okay, well for every question that might come up, we want to think about what your answer to that question is, and so that we can state that in very plain language in the document itself.
And one other little wrinkle on a great trust – and this is one that I see fail a lot – when we review existing trust languages, we see that this is missing, so I’m going to urge you to take a look at this if you’ve got a trust already – is we want great disability planning language. In fact, the trust is one of the most powerful disability planning tools. Even more powerful than a power of attorney. But you have to have the language in there that states when are you considered to be incapacitated, who is in charge, what are you supposed to do with those assets. All of those things are included in that language, so that it’s very clear and reliable for what’s supposed to happen at any given point in time.
So those are my tips for a great trust, the elements of a great trust. And when we come back, we’re going to talk about the four essential trusts that you have to consider as part of your estate plan if you’re reviewing these things. These are four trusts that you absolutely have to think about putting into your plan, and we’ll discuss those when we come back from the break.
Victor J. Medina: Hey everybody, welcome back to Make it Last with Victor Medina. When we took a break, we were talking about the elements of a great trust, and I promised you when we came back, I was going to talk to you about four trusts that you absolutely need to consider in your life. So we’re going to go right into those.
Now the first trust, we’ve already discussed in the prior segment, but I want to go a little deeper about why it is a great tool. And that is a revocable living trust. Now a revocable living trust, as I said, is the most common version of a trust. Most people who have a trust have this kind of a trust, because it is a great organizational tool. What I had to say to people is, look, you’ve got a lot of cats running around in your life, and these are your assets, and your desires about what you want to have happen. You might have accounts over on the left-hand side, on the right-hand side, different kinds of accounts. A great revocable living trust is essentially a way of herding those cats in your life in one spot while you have the time to do this planning. So, we’re going to want to think about a revocable living trust as essentially an open-top box. So it sits there as an organizational tool. We’ve collected everything, and then we just give some good life-planning elements to that kind of document. We’re going to say who is going to be in charge after you’re gone. We’re going to talk a little bit about what might happen if you’re disabled. But we’re also going to talk about where your stuff should go when you’re gone. And so a revocable living trust is a very elegant way of collecting your stuff, your assets, and putting it in one spot. One of the reasons why it is a great tool, and so powerful, is that if you need to make a change later in life, it’s easy to make the change once in the trust, as opposed to having to go to all of these different assets and make changes along the way. If you recall from the last segment, we talked about the difference between what a will covers and what a trust covers. And a will only covers a limited number of assets. So if you only make a change to your will, you could have a different result if you don’t also go ahead and change the beneficiary designations on those assets. It’s really inefficient to do that work twice. If you had collected everything into this revocable living trust, if you want to make a change about where your stuff is going or who might be in charge, you can just do it at that level, and that change essentially would help cover everything.
Now you might think to yourself, geez, if I sign a will, how many other documents might I have to sign during my lifetime, and how many times do I have to change it? Well, the answer is I don’t know, but we want to build in the flexibility to be doing it regularly. There are three things that could change throughout your life, and those three things could affect your estate planning. The first is that you could have different personal and financial circumstances. So, the idea there is that your assets could change, people in your lives could change. You could go ahead and have somebody get married, or get divorced, pass away, new kids, new grandkids. All of those are changes which could affect the way that you have your plan designed. The second thing that could change is that the state of the art, or the technology around during planning could change. Now, we’re not talking about actual computers or anything like that, but it could be that within trusts – I’ll give you a good example. Trusts these days, good ones, include these things called trust protectors. We’ll spend a whole other program talking about that. But that wasn’t the case 20 years ago. It wasn’t the case 10 years ago that they were automatically included. So when we’re in there, you may want to be able to make adjustments so that the planning document that you have is the most state of the art. It’s the most up to date kind of document. Now, the third reason is the most important reason, which is that the laws themselves and the taxes around those could change. We’ve seen that happen even here in New Jersey. New Jersey has had a recent repeal of estate taxes, where in the year 2018 there will be no estate taxes. But already we are hearing rumors that after the governor has changed over, we’ll see that come back with another exemption. It will go from unlimited to some other number. If you put all your eggs in a blanket – a basket that said, “I’m never going to have an estate tax again”, you might need to make a change on that. And in fact, your planning could go upside down if you rely on the old document. So it is important to make sure that you have the ability to update your documents over time. And a revocable living trust is a great way of doing that.
Now, a second trust hasn’t really been explained on the show yet, but it’s one of our most powerful planning tools for people that are looking to protect assets in case they need to go into an assisted living or a nursing home situation. And that is our Home Sweet Home trust. So we use this trust to help protect the home, because for many people that might be the single largest asset that they have. All of the equity that has accumulated in there is one of their best sources of retirement, and if there’s an emergency that happens. It’s the thing that they’re most concerned about protecting to make sure that they can’t get thrown out of the house, or nothing bad would happen to that. And so protecting that kind of asset, that home, a Home Sweet Home trust is a great way of making sure that if you need assisted living or nursing homes in the future, that that asset is protected.
Now there are a whole bunch of rules around that. You have to start that planning within the time before your assisted living facility stay, or your nursing home requirement. You need to transfer the title to that home inside of that trust. And you need to think about a whole bunch of tax planning consequences that come with that. But we find that that trust is a better tool than, for instance, transferring it to your kids’ names. Some people say, “Well look, I’m just going to put my daughter’s name on the trust” and geez, I just put my hands up in the air and I say, “Stop! Don’t do that!” That’s probably the worst thing that you can do. Because if you put the home in the name of your daughter, or even adding her name to the deed, essentially what you’ve done is given that home to her. And when you give that home to her, anything bad that happens to her, happens to your home. If she gets into a car accident, that home’s not protected if there’s a judgment that comes later. They can force-sale that home. The sheriff can sell that home, because it’s just investment property. Since she doesn’t need that to live, it’s not protected the way her home, her own personal residence is protected. And the second reason has to do with tax planning. If you give her that home, she didn’t pay anything for it, when that home sells later, either because you’ve passed away or you just want to sell that home, she has to owe all the capital gains on the difference between the sale price and what you bought it for, times 15 percent on a federal level. So we want to avoid those tax-planning consequences. This Home Sweet Home trust is a great tool to do that.
Now, there’s two additional trusts that are related, in the sense that they help protect an inheritance. These are not trusts that you put in place to help you. The first two trusts are about you. The revocable living trust: great organizational tool for you, disability planning for you. The Home Sweet Home trust helps you protect that asset in case you get sick. But these other two trusts are really about an inheritance. And so we’re going to talk about an IRA inheritance trust, and what we might call an inheritance capsule.
Now, if you have read our legal-planning book, which is called Make it Last: How to Get and Keep Your Legal Ducks in a Row, there’s an entire chapter dedicated to these inheritance capsules, but what they really are, are these trusts that you create for the benefit of your children. When you leave this money away, it might be really important for you to make sure that that money is protected against a future divorce. So if your daughter gets divorced from your son-in-law, you want to make sure that your inheritance stays with her, and that there isn’t a judge in the world that’s going to be able to give him some of your money, simply because they got divorced. The same thing would be the case if there’s a creditor situation, but just as importantly in many of our families, they want to make sure that the assets that they leave behind are assets that follow a bloodline. They want to make sure that the money that they leave their daughter ends up going to their grandchildren, and not to somebody else. And you might think to yourself, geez, is that really a problem? I mean, if I leave it to my daughter, and she leaves it to my son-in-law, I like him. He’ll just leave it to the kids, right? I mean, it’ll eventually get to my grandchildren along the way. Well not always. Every state has these things called elective share laws, which essentially just give a spouse the rights to take money from their estate whether or not they’re named in the documents. So imagine a scenario where your daughter who has received the inheritance has died and left it to your son – your son-in-law, excuse me. And then that son-in-law gets remarried. Well the elective share rules would say that this new bride gets to take some of your money before it goes to the kids. That’s how the elective share law works. So if you set up a great plan including the creation of trusts later for the future, these inheritance capsules, you can insure that the money that you leave behind to your daughter is left directly down the bloodline. And you can leave it so that your son-in-law’s still is in charge of that, if you love your son-in-law, that’s great. You can put whoever you want in charge. But we’re thinking about making sure that that asset has got no place to go but to go to the grandkids’ benefit. Because this is the money that you’ve accumulated during your lifetime. So you might call that a love and protection trust, we call it an inheritance capsule, but the idea is that it follows that bloodline and it is divorce and creditor protected.
This other trust I talked about is really for an IRA, because IRA is a distinct asset. We want to ensure stretch out of that asset. We want to delay the taxes as long as possible, allow it to grow tax-deferred on a compounded basis. Well, because of the special rules around the IRA, when we see a client that might be above, I don’t know, $500,000.00 in the IRA, we recommend an IRA inheritance trust. Something specifically to hold the IRA because of all of its requirements and rules.
So those are the four trusts. And our top tips for today are to make sure that you review your estate plan and meet with a qualified estate planning attorney to go over those four trusts to see if they fit in your life. If you don’t know whether or not you have those in your document portfolio, or estate planning portfolio, do you know if you even need them? If you want more information, you can call us at the Medina Law Group, we’re at 609-818-0068. And in fact, for our listeners, what we’ll do is we’ll give you an opportunity to qualify for a free estate planning evaluation. So you just call 609‑818-0068, talk to us and we’ll see whether or not you’re eligible for a free estate planning evaluation where you can figure out whether or not these trusts are right for you.
Well that’s it for today. Thanks so much for listening. Coming up in future episodes we’re going to discuss the four pillars of retirement income, and how to evaluate your options for assisted living with a special guest. So thanks so much for listening today to the Make it Last show with Victor Medina. Stay tuned and we will catch you on a future episode.
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