More and more, children and grandchildren are skipping the traditional bank and obtaining loans from parents or grandparents. Unfortunately, we have all heard stories of families torn apart because of disagreements over money. So, what can you do to make sure your intra-family loans help — rather than hurt — your family?
As far as estate planning is concerned, money you lend to others is legally an asset. If you have lent money to a family member, the presence of these assets in your estate can be problematic for your surviving family members. This is because your executor and successor trustee are under a legal requirement, known as fiduciary care, to collect the outstanding obligation, even if the other party is a family member.
If the amount of money that you have lent out is significant — and “significant” can be relative — it is important to document it as you plan your estate. For example, if you wish to forgive the debt there are special terms that must be included in your trust or will for this to happen. On the other hand, you may want the debt to be paid out of the inheritance the borrower is otherwise receiving. In that case, the payment of the debt from the inheritance must be addressed in your estate planning documents.
A Brief Loan Primer
A loan is a legal and financial arrangement where money is borrowed and is expected to be paid back with interest. Generally, a loan involves a promissory note, which is a signed document by the borrower containing a written promise to repay a stated sum of money to the lender in accordance with a schedule, at a specified date, or on demand. In some cases collateral, like real estate or other property, is used to secure the loan. Collateral is something pledged as security for repayment of the loan. If the borrower quits making payments, then the collateral can be taken by the lender.
Lending as an Estate Planning Tool
When properly structured and well documented, loans can be a smart estate planning tool for many families. This is because lenders (usually grandparents or parents) can essentially give access to an inheritance without any immediate gift or estate tax problems, generate a better return on their cash than they could with bank deposits, and borrowers (usually children or grandchildren) can take out loans at interest rates lower than commercial rates and with better terms. In fact, the Internal Revenue Service allows borrowers who are related to one another to pay very low rates on intra-family loans. Furthermore, the total interest paid on these types of transactions over the life of the loan stays within the family. If structured and documented properly, intra-family loans may effectively transfer money within the family, for the purchase of a home, the financing of a business, or any other purpose.
Sometimes loans can be used in sophisticated estate tax planning strategies as a way to shift assets into special estate-tax saving trusts. One variant of this technique is sometimes called an installment sale to a grantor trust. Although this sophisticated strategy and others like it are usually only appropriate for those with a net worth of at least several million dollars, other types of intra-family loans, perhaps for home improvement, an automobile purchase, or a business, can help families across the wealth spectrum.
There are a few important points to keep in mind regarding these types of loans: the loan must be well-documented, lenders should usually ask for collateral, the lender should make sure the borrower can repay the loan, and the income and estate tax implications should be examined thoroughly.
Deciding What You Want
While you were kind enough to help a member of your family by lending him or her money, do not let this become a legal dilemma in the event of your incapacity or after your death. Instead, use your estate plan to specifically express what you want to have happen regarding these assets. Before lending money, it is important to carefully consider how the loan should be structured, documented, and repaid. If you or someone you know has lent money and has questions about how this affects your estate plan, let us know and we’ll help you find the answers.
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It’s the start of a new year, which means tax season—and this year’s April 17th IRS filing deadline—is just around the corner. Soon you’ll be receiving tax forms such as your W-2 or 1099s, and you’ll start thinking about the life events that could affect your taxes in various ways.
2017 is now fading into the rearview mirror. As we all look ahead to 2018, let’s consider a few things to watch regarding estate planning, so you and your family can be completely protected.
There is a common misconception that estate plans are only for the ultra-wealthy – the top 1 percent, 10%, or some other arbitrary determination of “enough” money. In reality, nothing could be further from the truth. People at all income and wealth levels can benefit from a comprehensive estate plan. Yet sadly, many will never sit down to get their legal house in order.
Now is the perfect time to start working on an estate plan—because, as newlyweds, you may not have a list of your accounts, but you’ve effectively just done a working inventory of your possessions—as you’ve figured out how to consolidate two households into one. You’ve already been working on the new banking and shared responsibility of bills and taxes and so forth.
Like many of you, I watched the remembrances and commemorations covered on television Monday, September 11, this past week. I thought a lot about that fateful day 16 years ago, my memories of watching the towers come down still vivid in my mind. The horror, the sadness, still heavy on my heart. The heroic actions of so many brave men and women still giving hope to my soul.
Many people think that if they die while they are married, the law dictates everything they own goes directly to their spouse or children. They’re thinking of state rules that apply if someone dies without leaving a will. In legal jargon, this is referred to as dying “intestate.” In California’s case, the specifics will vary depending on the type of property held and the number of children you have, if any. However, the general rule is that your spouse will receive a certain share and the rest will be divided among your children.
The legal concept of “portability” is still relatively new in estate planning, having become available only after 2011. Since then, it’s been both a blessing (for its tax saving benefit) and a curse (because of rules that seem to be constantly shifting). Fortunately, the IRS has recently clarified some important details about portability.
Most people know estate planning can help you pass along your material wealth, but what about your intangible wealth like your wisdom, values, and life experiences? Studies show that intangible wealth is valued by heirs even more highly than tangible wealth. It is also the wealth that lasts the longest, and the wealth that’s lost forever if care isn’t taken to preserve and pass it along.
According to a March 2017 survey by 