Category: Corporate Governance

As we enter the last few months of 2022, we want to remind you that it’s a great time to start thinking about ways to end your year strong so you can truly celebrate over the Holidays. Here’s a brief checklist:

1. Annual Gifting.   With the lifetime estate and gift tax exemption amount still at all time highs, many are not giving much consideration to the Estate Tax that can consume 40% of the asset value that exceeds the Exemption Amount. However, the only Exemption Amount that applies for the Estate Tax is the one for your year of your death, which is not yet known. It’s very likely this exemption amount will both increase and decrease before you die. Therefore, consider whether Annual Giving to children or grandchildren makes sense.  Annual exclusion gifts are not subject to gift tax and fall completely outside of the unified tax system making it a valuable estate planning component. Currently, the annual exclusion amount is $16,000 per child, or $32,000 for a married couple (choosing to split gifts) per child.
2. Review Your Estate Plan.   As each year passes, circumstances change. Before you get too deep into Holiday travel, we recommend reviewing the key areas of your estate plan to ensure that it still meets your needs and aligns with your goals. Here at Stewart Law, we provide clients with a one-sheet diagram that serves as an Estate Plan Overview, including their assets, disposition, and named fiduciaries. It’s a good time of year to review not only this information but also your beneficiaries named on life insurance policies and retirement accounts. You should also see that assets are titled properly.  We are always happy to have a consultation about these items and any tax law or other legal changes that could have ramifications for your plan.
3. Corporate “Clean Up”.   With so many other “To Do” items on a business owner’s list, many times we see a tendency of falling behind in ensuring the corporate records are not only in good standing with the Secretary of State, but also in good order internally. All too often this comes to light when businesses are looking at bank financing, a potential sale, or simply needing to have the appropriate persons sign an important legal document.  While there are many good reasons to do it, a well-ordered and organized corporate minute book is a must for every business over the long term.
4. Children’s POAs.   As we draw nearer to the Holidays, we want to remind you that this is a great season for your child(ren) off at college to utilize their time at home by getting Powers of Attorney in place. Recall that in North Carolina minors become adults at age 18 and need to provide for their own legal planning. Accordingly, please take this time to ensure peace of mind when your child(ren) are back from school by letting Stewart Law help them with legal documents memorializing the persons who will make financial and health care decisions for them in case of a temporary incapacity.
5. Family Meetings.   Families benefit significantly from knowing there is a plan in place to protect the family’s lifestyle, even in case of an incapacity or death. In fact, over the last several years we have found that introducing your children to your advisor team and letting your family know that you have thought about, and have a plan for, their long-term wellbeing provides an increased sense of security for your family. Everyone benefits from building an open line of communication between your family and the professionals with direct knowledge of your situation. In a Family Meeting, we can work together to continue to educate your family, as well as develop a focus on being good stewards of business and personal wealth. Bottom line, YOU choose what YOU want to accomplish in your Family Meeting and we will help you make it happen.

If you would like to discuss any of these checklist items to help you accomplish an end of year goal, please contact one of our attorneys.

About the Author

L. Mackenzie Reid
Legal Project Manager
Senior Paralegal

If you have a family member who is disabled or who faces special challenges, you know that solutions to their needs often require an individual touch.  When addressing your estate planning needs, consider using a Supplemental Needs Trust to allocate some of your resources to alleviate the unique needs or burdens of your loved one with special needs.

A threshold question for parents of children with special needs or family members of disabled individuals is how to leave funds to help these individuals without threatening the support they may receive from the Federal or State government or otherwise creating a burden despite good intentions.  Direct transfers to individuals who are disabled or considered incompetent for financial purposes may create a need for a guardianship or conservatorship.  If a minor or incompetent donee receives significant assets but is not able to manage his or her finances, his or her caregiver will likely need to petition the courts to establish a custodial fiduciary relationship.  Essentially, the caregiver needs the court’s permission to open an account for the benefit of the incompetent person.  The caregiver acts as a manager of the account for the incompetent person’s benefit, and he or she must prepare routine accountings for court approval; the assets may be restricted for use for particular purposes.  This process can be expensive and may take months.  Additionally, the assets may still disqualify the beneficiary from receiving government benefits.

Instead of making outright bequests or gifts to a disabled or incompetent individual, a supplemental needs trust can empower a manager or caregiver to improve the quality of life of the beneficiary without threatening their existing (or potential future) benefits and without the burden of a court process.

Supplemental Needs Trusts are a form of third party planning; this means that the funds for the trust come from a third party, not the person who needs the benefit of the assets.  The donor or provider of the assets sets up the Supplemental Needs Trust for the benefit of the individual with special needs.  First party planning is a separate matter outside the scope of this article.

Supplemental Needs Trusts are intended to do just that: supplement the other assets available to the individual.  When assets are left directly to the individual or are put into an instrument with provisions that provide for the trustee to use the assets for the benefit of the individual in ways that overlap with purposes of government funds, the government may reduce the amount of support provided to the individual on the basis that his or her needs are being met.

Many standard estate planning vehicles include language where the trustee is directed to provide for the health, education, maintenance, or support of the beneficiary.  However, Supplemental Needs Trusts should avoid use of this language so that there is no question that these funds are not for overlapping purposes.  Instead, the trustee should be given discretion for how to use the funds.  The grantor’s intent should be clear: that the trust assets are to supplement and not supplant other benefits.

By adding supplemental needs planning to your legacy or by creating a current Supplemental Needs Trust, you can greatly improve the quality of life of an individual with special needs.  This planning can be delicate and should take the individual’s existing and potential future benefits into account.  Plan for the potential elimination of additional benefits caused by well-intentioned but insufficiently focused planning.  When combined with the right trustee and the sound advice of a team of professionals, a Supplemental Needs Trust can be the most impactful piece of your estate plan.  Contact our office today to further discuss how best to achieve your supplemental needs planning goals.

About the Author

S. Blaydes Moore, JD
Associate Attorney