Tag: asset protection

A Creative Idea for “Supercharging” Your IRA – Part 2

Ok, so you read my previous post about the incredible legacy you can create by “Supercharging” your IRA.  The logical questions are: what are the drawbacks to the “traditional” approach to IRA beneficiary planning and how do I do the “supercharged” strategy?  Well, I’m glad you asked.  That is what this post is about.

So, how is IRA beneficiary planning typically done and what are the drawbacks?  Usually, a married couple will name each other as the beneficiary of their IRAs.  This is done for many reasons, two of the most common being love and the additional “rollover” options provided to a surviving spouse by the tax code.  Yet, there is a problem . . . spouses are usually near the same age.  That means when the first spouse dies, the “stretch” tax deferral period of the deceased’s spouse’s IRA will typically be rather short.  This goes against the goal of many IRA holders’ desire to maximize the “stretch” period to take full advantage of the tax-deferred growth of their IRA after their passing.

One option is to name a person from a younger generation as the beneficiary of the IRA.  There’s a problem with that too . . . the surviving spouse is left out of enjoying the “fruits of labor” from the IRA.  The “Supercharged IRA” strategy mentioned above is the way to have your cake and eat it too.

In this strategy, a younger person is named as the beneficiary of the IRA.  Or better yet, an IRA Legacy Trust for the benefit of younger people is named so that you can not only maximize the “stretch” tax-deferral period but also make sure the IRA proceeds are asset protected for future generations (from creditors, predators, divorce and poor spending habits).  As mentioned in my previous post, the required minimum distributions from the IRA are used to purchase a permanent life insurance policy on the life of the IRA holder with the spouse named as the primary beneficiary (or better yet, an Irrevocable Life Insurance Trust purchases and holds the policy so that it is asset protected from the insured’s creditors, predators and potential divorce).

What is accomplished?  The IRA tax-deferral stretch is much greater because a younger person is beneficiary and the surviving spouse doesn’t miss the IRA benefits because he or she receives the insurance proceeds, which can be much greater than the IRA due to leveraging the life insurance premium.  An additional benefit of this strategy is that it can be used for non-traditional couples and single individuals.

Make sure to discuss this strategy with a financial adviser, life insurance agent and estate planning attorney who are familiar with it and accustom to the mechanics of implementing it in your situation.

Michael Lichterman is an estate planning and business planning attorney who helps families and business owners create a lasting legacy by planning for their Whole Family Wealth™.  This goes beyond merely planning for finances – it’s about who your are and what’s important to you.  He focuses on estate and asset protection planning for  the “experienced” generation, the “sandwich generation” (caring for parents and children), doctors/physicians, nurses, lawyers, dentists, professionals with minor children, family owned businesses and pet planning.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

Asset Protection with Discretionary Trusts

Many Grand Rapids families that I talk with have never considered anything other than giving their assets to their family outright – it could be immediately when they pass away or at some later age.  As a Grand Rapids, Michigan estate planning attorney I consider it my privilege to let them know the downside to that approach and what can be gained by putting some restrictions in their Michigan will or trust.

I came across an excellent example in a recent Michigan Court of Appeals case (read it here).  The basics of the case are this: the beneficiary of the trust had been jailed and the State of Michigan was seeking reimbursement for those costs from the trust.  Guess what?  They couldn’t get to the trust assets!  Why?  Because it was a “discretionary” trust.

What is a discretionary trust?  It is a trust that does not distribute the assets outright, but rather leaves the decisions on what is distributed and when it’s distributed to the discretion of the trustee.  You can find the Michigan Trust Code definition here (MCL 700.7103(d)).  You see, because the “inheritance” is not given outright to the beneficiary and the beneficiary does not have a right to demand that the trustee give him or her any of the trust assets, the trust assets are not considered the beneficiary’s assets.

The best part – even though the trust assets aren’t considered the beneficiary’s assets, the beneficiary can benefit from the trust in the trustee’s discretion as guided by the trust language itself.  Think of it this way . . . by setting up your trust this way you are benefiting your family and at the same time protecting them from creditors, predators, divorce and possibly their own poor spending habits.  Now THAT is truly creating a legacy.

Call us at 616-827-7596 to discover how you can provide these incredible benefits to your family!

Michael Lichterman is an estate planning and business planning attorney who helps families and business owners create a lasting legacy by planning for their Whole Family Wealth™.  This goes beyond merely planning for finances – it’s about who your are and what’s important to you.  He focuses on estate and asset protection planning for  the “experienced” generation, the “sandwich generation” (caring for parents and children), doctors/physicians, nurses, lawyers, dentists, professionals with minor children, family owned businesses and pet planning.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

Michigan LLC Charging Order Asset Protection

So you’ve read my post about charging orders against Michigan LLCs and are thinking, “so what?!”   Well, the key is not so much what it is, but whether it is the only remedy a creditor may have or just one of many.

Much review and comment has been made about a 2010 Florida case, Olmstead v FTC, 44 So 3d 76, and the effect it may have on the level of asset protection provided by a Single-Member Limited Liability Company.  Why?  Because the court determined that, under Florida law, a creditor is not limited to a charging order as a means of collecting on the judgment.  That could mean the creditor could “step into the shoes” of the LLC Member, effectively taking all ownership in the company and directing it as the creditor sees fit.  I think all Michigan LLC owners can agree, that’s a bad thing.

Well, Michigan business attorneys and the Michigan legislature were listening to the scuttlebutt.  What came out of it was a change to Michigan law via a 2010 amendment to the Michigan Limited Liability Company Act (the MLLCA).  Section 507 (MCL 450.4507) of the MLLCA now makes it clear that the charging order is the “exclusive remedy” by which a judgment creditor of a Member may satisfy a judgment out of a Member’s membership interest.

And THAT is a good thing for asset protection.  It limits the creditor to distributions from the LLC.  No distributions = nothing to the creditor.  And the creditor is not able to have any say in the LLC’s actions . . . it leaves the Member in control of the company.  And that is a great thing for Michigan business owners!

Important Note: there is still some belief that a court could find that a charging order is not the only remedy in certain circumstances involving a single-member LLC.   Make sure to meet with a Michigan business lawyer before making any decisions.

Michael Lichterman is a relationship-based business attorney who leverages his business, marketing and legal knowledge to help business owners and entrepreneurs create a Foundation for Business Success™.  This goes beyond merely drafting a set of documents – it’s about  proactively preparing the business and the business owner for continued growth while remembering the “human side” of running a business.  He best serves small business owners (less than 50 employees) and entrepreneurs.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients  and their businesses – many of which have become great friends and trusted confidants.

What Is A Michigan Charging Order?

As a Michigan Business Attorney and Estate Planning Attorney I have worked with numerous business owners and individuals to help protect their business and/or their family assets.  In many cases that protection involves forming a Michigan Limited Liability Company (an LLC).  One of the main reasons for forming LLCs is right there in their name . . . limited liability.

Many Michigan business owners desire to limit their personal liability for their business activities.  The idea being, if the business is liable for some damage to a person, business or property, the business owner does not want his or her personal assets (home, financial accounts, cars, etc.) at risk for the business liability.  Simply forming the LLC is not enough, but it is a good first step.  I will discuss additional liability limiting steps in a future post.

It’s a fact of life for many businesses and business owners . . . the dreaded lawsuit.  And what happens if you lose?  Well, you become a “judgment debtor,” meaning you are a debtor to the individual(s) or business(es) that won the lawsuit against your business.  And they have all sorts of “remedies” – actions they can take to collect on the court judgment amount.  One of those is commonly referred to as a charging order.

A charging order is a court-authorized right granted to a judgment creditor to attach distributions made from a business entity (such as a LLC) to a debtor who is a Member in the entity.  In a way, it is similar to garnishment of wages or income.  It does not give the creditor ownership or management rights in the LLC.

Remember that a charging order was just one of the “remedies” available to a judgment creditor?  Well, many business owners and individuals who want to protect their assets would like it to be the only remedy.  Can you guess why?  Let me know what you think by commenting on this post.  I will let you in on the reason in my next post and uncover the Michigan law relating to the “charging order only” remedy.

Michael Lichterman is a relationship-based business attorney who leverages his business, marketing and legal knowledge to help business owners and entrepreneurs create a Foundation for Business Success™.  This goes beyond merely drafting a set of documents – it’s about  proactively preparing the business and the business owner for continued growth while remembering the “human side” of running a business.  He best serves small business owners (less than 50 employees) and entrepreneurs.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients  and their businesses – many of which have become great friends and trusted confidants.

Asset Protection Planning for Physicians

Growing up with a mom who has worked in the medical field for over 35 years, I know of the sacrifice and struggle that Michigan physicians face on a constant basis.  They are constantly targets of malpractice lawsuits as well as other legal actions such as employee lawsuits for sexual harassment, unfair termination and discrimination; and business and practice-related litigation.  And it seems that Physicians are targeted for every ill-conceived investment idea.  Yet they sacrifice their time and expertise to help care for others.  It is truly a noble profession.

Do they deserve to be in these cross hairs?  I sure don’t think so.  That’s why I’ve been working on better serving physicians and their families.  Contrary to what many believe, asset protection planning is not all about offshore trusts and Swiss bank accounts.  It is about adopting advanced planning strategies that legally place assets beyond the reach of creditors, discouraging lawsuits by lowering a physician’s financial profile so that they become a far less attractive target, and enhancing leverage in negotiations if a lawsuit is filed.

Know that although asset protection planning is confidential, it is NOT based on secrecy or fraudulent transfers, does NOT involved hiding assets and is NOT a tax dodge.  Professional and personal convictions don’t allow such unethical (and potentially illegal) methods.

It is important for Michigan physicians to work with an estate planning attorney who is both well versed in these advanced planning strategies AND can understand the threats Michigan Physicians face and the constantly changing environment in which they work.  Are you a Phyisican or do you know a Physician?  Please share your thoughts.

Michael Lichterman is an attorney specializing in estate planning and helping provide peace of mind to families and businesses throughout Grand Rapids and West Michigan.  He specializes in Whole Family Wealth™ planning for professionals with minor children, doctors/physicians, nurses, lawyers, and the “sandwich generation” (caring for parents and children) – and does so from a Christian perspective.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

Why You Should Care About Estate Planning: Professionals

Moving along in my Intro to Estate Planning series, we will continue to look at why planning is important for  family of different types and at different life stages.  I started by uncovering the many benefits estate planning holds for parents with children under 18.  If you are a parent with children under 18 years old and still have questions, contact me to have your questions answered.

The next group we’ll look at is more of a “type” of family rather than a stage of life: professionals.  My definition of a “professional” is broad, including doctors, lawyers, certified public accountants (CPAs), accountants, bankers, financial advisers, nurses, teachers, middle- to high-level company managers, CEOs, company Presidents, and other similar positions.  I view this group so broadly because they all share similar concerns, at varying degrees.

Some important reasons proper estate planning is critical for professionals (and their families) include:

  • Guardianship remains one of the most important reasons to estate plan if you have children under 18 years old.  Without designating who you want to raise your children in your absence, a court will decide who will care for them. If you haven’t named guardians for your children, you should run, not walk to an attorney specializing in estate planning (and focusing on guardianship decision).  If you have named guardians, you most likely made at least 1 of 6 common mistakesContact me to learn more!
  • Asset Protection. As a professional with a special skill, you face a greater threat of liability.  You have worked hard to accomplish great things and are building a secure financial future for your family.  Don’t leave it exposed to future divorce, lawsuits and creditors.  And this pertains as much to you as it does to your children and grandchildren (and on down the line).  You can pass your financial wealth on to them protected from divorce, lawsuit and creditors as well.
  • Planning for your incapacity to avoid bitter conflict about your finances and your health care. You need to give people you trust the legal authority, guidance and direction on how to handle your finances and your health care.  Enhanced Powers of Attorney, EnhancedPatient Advocate Designations, and Living Trusts are key components to making sure your wishes are recognized and followed.
  • Avoiding probate.  Without a proper plan in place, your hard earned wealth will go through a time consuming and often costly court process. Wouldn’t you rather your family be able to benefit right away and receive more of what you worked so hard to accomplish?
  • Passing on your “whole family wealth,” not just your money.  This includes your values, insights, stories and experiences – who you are and what is important to you.  In my experience this is THE most overlooked part of estate planning.  The professionals I’ve worked with have accomplished a lot and continue to reach new levels of accomplishment.  Yet in most circumstances they have not taken the time to explain their struggles, how they overcame, and what they learned – these are far more important than money to their kids, grandkids, and future generations.

These are just a few of the reasons professionals need an estate plan.  Can you think of more?  Please share your thoughts and experiences.

With my next post in the series, I will look at the “sandwich generation” – people who have concerns about their parents and their children.

Michael Lichterman is an attorney specializing in estate planning and helping provide peace of mind to families and businesses in Grand Rapids, Grandville, Cascade, Forest Hills, Ada, Byron Center, Caledonia, and the surrounding areas.  He specializes in “whole family wealth” planning for professionals with minor children, doctors, nurses, lawyers, and the “sandwich generation” (caring for parents and children) – and does so from a Christian perspective.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

Make sure you pass on your “whole family wealth,” not just your money.  This includes your values, insights, stories and experiences – who you are and what is important to you.  In my experience this is THE most overlooked part of estate planning.  It happens to be one of the most fulfilling privileges I have when working with families.

Why Should I Care About Estate Planning?

Having figured out what estate planning “is” in my previous post, let’s move on to why estate planning is important.  Because the topic is so broad, I’m going to break it down and address it based on common life stages.  If you are curious how it applies to YOU, contact me and let’s talk about it.

Let’s start by looking at how critically important estate planning is for parents with kids under 18 years old.  It really doesn’t matter if all or some of your children are under 18.  These important issues apply if any of them is under 18:

  • Establish guardianship for your children under 18 – not doing so will leave their care up to a court to decide.  Someone who doesn’t know you and what’s important to you, your family dynamics, and your desires for your children’s future, will be the one making the decision who will raise them.
  • Establish temporary guardianship for your children – not doing so could leave them in the hands of child protective services or temporary/permanent foster care.
  • Make sure you have a comprehensive protection plan for your children so your babysitter, family, friends and guardians/temporary guardians know what to do if something happens to you and have the legal documentation to prove it.  We include instructions for these important people and even include a family emergency ID card for your wallet/purse.
  • Have your estate structured so your kids don’t succumb to “lottery winner syndrome” when they receive all of their inheritance outright at 18 years old.  Think about that for a second.  Let’s take an example: 2 children and an estate valued at $500,000 (and remember life insurance is included in the amount they receive).   Each child will receive whatever amount of their $250,000 share is not used up by the time they are 18.  Can you imagine?  Let’s say that ends up being $100,000.  How would you have handled $100,000 when you were 18?  I know how I would have handled it and it’s not pretty.  I read one study that said over half of outright inheritances are spent within 3 years of receiving themno matter how much was received.
  • If you are a professional and subject to potential liability, make sure you structure your plan in a way that ensures your assets are there to benefit your kids and not lost to lawsuits, creditors and other liabilities.
  • Make sure you pass on your “whole family wealth,” not just your money.  This includes your values, insights, stories and experiences – who you are and what is important to you.  In my experience this is THE most overlooked part of estate planning.  It happens to be one of the most fulfilling privileges I have when working with families.
  • Have a health care directive (patient advocate designation) in place for yourself and your children to minimize conflict about your medical care.

These are just a few of the reasons families with kids under 18 need an estate plan.  Can you think of more?  Please share your thoughts and experiences.

With my next post in the series, I will look at why planning is vital for “professionals” – and you may be surprised how many families are in that group.

Michael Lichterman is an attorney specializing in estate planning and helping provide peace of mind to families and businesses in Grand Rapids, Grandville, Cascade, Forest Hills, Ada, Byron Center, Caledonia, and the surrounding areas.  He specializes in “whole family wealth” planning for professionals with minor children, doctors, nurses, lawyers, and the “sandwich generation” (caring for parents and children) – and does so from a Christian perspective.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

Michael Lichterman is an attorney specializing in estate planning and helping provide peace of mind to families and businesses in Grand Rapids, Grandville, Cascade, Forest Hills, Ada, Byron Center, Caledonia, and the surrounding areas.  He specializes in “whole family wealth” planning for professionals with minor children, doctors, nurses, lawyers, and the “sandwich generation” (caring for parents and children) – and does so from a Christian perspective.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

What Is Estate Planning?

Based on some recent conversations, it has become clear to me that there is much confusion about estate planning.  What is it?  What does it mean?  Why do it?  How to do it?  Why work with an attorney?  And many more questions I hear on a regular basis.  So, I’ll be doing a series of blog posts introducing estate planning and its various components.  I don’t know how many posts it will be.   I’m pulling many of the topics from my day-to-day conversations, so I’ll keep the series going as long as there are questions.  If you have questions, please ask! I’ll make sure to work your questions into this series.

So, the first question – what is estate planning?  Wikipedia defines estate planning as “the process of anticipating and arranging for the disposal of an estate.”  I believe a much better definition is one I heard from a colleague of mine from Wealth Counsel:

“I want to control my property while I’m alive, take care of me and my loved ones if I become disabled, and give what I have, to whom I want, the way I want, and when I want.  Furthermore, if I can, I want to save every last tax dollar, professional fee, and court cost legally possible.”

The one item I always add to that definition is: “to make sure that my children are cared for by who I want, in the way I want.”  Of course, this applies only to parents who have minor and/or disabled children.

So here we have the definition, the starting point.  Within the definition are many more considerations.  To accomplish these goals of estate planning, the following documents are commonly used: wills, trusts, general durable power of attorney, and health care powers of attorney/patient advocate designation.  And if you work with a comprehensive Grand Rapids estate planning attorney, there are additional considerations and documents meant to help you pass on your “whole family wealth” – not just what you own, but who you are and what’s important to you!  Because if you think about it, the money and the “stuff” will still be around when you pass away, but it is who you are as a person that will be lost – your values, insights, stories and experiences.  Check back for the next installment in this series to discover some additional considerations that are vital to having a great estate plan for your family.

Michael Lichterman is a dedicated estate planning attorney helping provide peace of mind to families and businesses in Grand Rapids, Grandville, Cascade, Forest Hills, Ada, Byron Center, Caledonia, and the surrounding areas.  He specializes in the needs of professionals with minor children, doctors, nurses, and those in the “sandwich generation” (caring for parents and children), and does so from a Christian perspective.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

Make Your Heirs Rich, Not Your Lawyer

Say what?  Yes, you read that right.  It is the title of an article I read at the Motley Fool (read it by clicking here).  The main focus of the article is how you want to be remembered after you are gone and how your estate planning (0r lack thereof) can greatly influence your legacy.  They put quite an emphasis on wills, which is interesting because many of the more complex situations the article talks about are far better handled through a trust.  And in some of the examples, a will is almost completely inadequate.  I would also suggest that you review your plan every 3 years, at a minimum, rather than the 5 suggested by the article.  Think back three years and ask yourself how much the law, your life, and what you own has changed.  Those items change on a regular basis – so should your plan.

I’m happy to see them mention estate planning in the context of disability planning.  This is often overlooked . . . sadly, even by some lawyers.  Estate planning is not just “death planning.”   It is more than that . . . it is ensuring that the right decisions are made on your behalf if you are unable to make them yourself due to incapacity or disability.

What do you think about the article and the issues raised by it?  Please feel free to share – I enjoy reading and responding to the comments and emails.

Be Careful Who You Pick As A Trustee

Although statistics show that the number of people who have an estate plan is not increasing, I do see a larger portion of individuals and couples making the decision to have a trust-based estate plan.  That is, an estate plan where a trust is the main document that controls how things are distributed when they pass away.  One of, if not the, most important decisions you make with a trust-based plan is who will be the trustee and who will be the backup (“successor”) trustees.  The trustee is the person/people/entity that makes sure the terms of the trust are followed.  Depending on the trust’s design, the trustee may have a large amount of discretion on who receives money/property from the trust, how they receive it, and when they receive it.  Yet, in many cases, the decision on who will be the trustees/successor trusties is made hastily, without much thought.

This can be a big mistake!  If you have done your planning correctly and fully “funded” your trust (e.g., transferred assets to it), your trust will have most (if not all) of your assets.  Considering that the trustee will make certain decisions relating to the trust, the choice should not be taken lightly.  The trustee should be someone you trust (no pun intended . . . ok, yes, the pun was intended).  However, don’t stop the inquiry there.  It should also be someone who has sufficient financial management and administrative ability (or is wise enough to hire professionals to handle those tasks for them).  And consider the option of splitting the trustee role  among one or more people/entities.  For example, you could have a “distribution trustee” who determines when to make distributions, and an “administrative trustee” who keeps track of all the accounting, tax, and other detailed financial matters.

I recently had a conversation with a great client.  She shared with me that her father had a trust set up and properly “funded” (I say bravo to him, because not “funding” the trust is the single biggest mistake I see when reviewing estate plans).  He named a local bank as the trustee for distribution and administrative purposes.  He set out several scenarios in his trust about how he wanted to provide for his children (education, businesses, homes, etc.).   One of the main assets in the trust was stock in a certain company.  Long story short, the stock dropped significantly in value and the trustee (the bank) would not sell it.  It believed the stock would come back and that to sell it at the depressed price would violate the bank’s duty as trustee.  This all happened about the time this client was supposed to be getting a distribution to help with education.  She never did get the distribution for education (or much else for that matter).  The good part is that she did a great job on her own and is quite successful today.

I’m not saying you shouldn’t consider a bank or trust company as a trustee, I give the example to show how important it is to fully consider the various options for who the trustee is.  Each situation is different.  That is why you need to make sure your estate planning attorney takes a client-centered relationship approach to your planning . . . not a transactional approach.

The Game Is On: Billionaire Dies – Stakes Raised On The Estate Tax Issue

As mentioned in this article over at The Trust Advisor Blog, the stakes are now raised on what Congress will do about the estate tax as a billionaire recently died.  With no estate tax in 2010 (as it stands now), it seems he may have passed his $9 billion (with a “b”) estate to his heirs completely free of estate tax.  If last year’s estate tax rules were still in effect now, the IRS could have collected roughly $4 billion (with a “b”) in estate tax on the estate.

As the article points out, it must be awfully tempting for Congress to reinstate the estate tax in 2010 at its 2009 level and, they say, make it retroactive to the first of the year.  I have to imagine that, given the amount of money at stake now, any attempt at retroactively enacting the estate tax would be challenged tooth and nail by an army of lawyers on Mr. Duncan’s behalf.  It will be very interesting to watch, that’s for sure.  I’ll make sure to keep you updated as I learn more.

A BIG Oops! How Do-It-Yourself Estate Planning Can Disinherit Your Children

Wondering how that could be possible?  Rania Combs, a Texas Wills and Trusts lawyer, has a great blog post entitled “Do-It-Yourself Estate Planning Mistake Disinherits Child.”  Take the time to read the article – it is a quick read and very well done.  The article is especially poignant, as I have had more cases recently involving children from previous marriages.  Rania’s post is just one of several ways that Do-It-Yourself planning can harm a family and just one of several ways that no planning (or inadequate planning) can hurt a mixed family.

There are only two things I will add to Rania’s excellent post:

  1. Not only does Jack’s new wife have complete control of Jack’s assets and no obligation to use them for Rose’s benefit, but what if the new wife gets remarried?  If she remarries and doesn’t do any planning herself (or does typical planning), there is a very real likelihood that Rose won’t get anything.  I’m not just conjecturing . . . that is based on circumstances I’ve seen.
  2. Not only could Jack have set aside all or a portion of his estate in trust for Rose’s benefit, he could have set the trust up to protect those assets from Rose’s creditors, judgments, estate taxes in her estate, and even her own divorce.

Have you had this happen to you or know someone who has?  I am interested in the story, if so.  Please share via comment on this post or emailing me via our Contact Us page.