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Living Trust 5, 10, 15, 20 Years Old? Your Estate May Contain A Problematic A/B Trust

To put it simply, recent estate taxes changes have made most A/B trusts not only unnecessary for approximately 99% of Americans, but also extremely problematic and with many unintended consequences.  The problem is that most couples don’t find out that they have this type of trust until it is too late.

Is my Living Trust an A/B Trust?

First, it is important to learn what an A/B trust is.  Think of the “A” part as representing “above-ground” or the surviving spouse and the “B” part as representing “below-ground” or the deceased spouse.  Mainly beginning five years ago (2013) all the way back to the 80’s, 90’s and 2000’s, spouses drafted A/B trusts to not only avoid probate but also to reduce their estate tax liability.  The problem is that most spouses with these types of trusts, either never really knew what their real purpose was, were never told, forgot, or failed to keep their trusts updated to keep up with the changing tax landscape.  So when one spouse dies, the trust instructions direct that the deceased spouse’s interest in the trust be transferred to the B trust, commonly referred to as the “bypass” or “exemption” trust (if you see these words referenced in your trust then you likely have an A/B trust.)  What does this mean and what problems does this create?

  1. More often than not, if not all the time, the surviving spouse doesn’t have authority to withdraw the principal from the B trust.
  2. Surviving spouse can’t amend the B trust.
  3. A majority of the people we speak to never follow the instructions required by the trust immediately following the death of the first spouse. 
  4. Most people tell us they didn’t even know they had to do anything.
  5. Simply following the instructions in the trust can be very tedious and costly. 
  6. Surviving spouse can have difficulties selling assets.
  7. Managing the A/B trust after the death of the first spouse can be very costly – preparing taxes and ensuring that property is kept separate from that of the surviving spouse.

The problems and unintended consequences don’t stop there as there are many more not listed.

If Both Spouses Are Still Alive, It May Be Time To Amend The Trust Before Its Too Late.

In 2013, some dramatic changes were made to estate taxes that made only a small fraction of people subject to federal estate taxes.  Currently the estate tax exemption amount is $11,200,000 per individual and $22,400,000 for married couples.  The estate tax is now also “portable” between spouses, accomplishing the same purpose as a bypass trust.  This means the if the first spouse to die does not use all of his or her $11,200,000 exemption, the estate of the surviving spouse may use it (provided the surviving spouse makes an “election” on the first spouse’s estate tax return.)  Thus, unless you are married and combined own more than $22,400,000 in assets, an A/B trust is most likely unnecessary.  These types of trusts can still be useful for people in second marriages who want to avoid their new spouse disinheriting their children from a previous marriage.

Do You Have An A/B Trust That You Wish To Amend?

All too often these days our office is seeing more and more people coming to us to make changes to their trust only to find out that they are not legally able to if their spouse has died.  Review your trust and be sure to have Ray Padilla Law, APC or another qualified attorney advise you on the proper steps to take to avoid all of the above.

 

The information contained on this page is for informational purposes only and is not to be considered a substitute for advice from a qualified attorney. If you require legal assistance, we highly recommend you speak to a qualified attorney. By reading this post, you agree this information is for informational use only and agree to hold Ray Padilla Law, APC harmless for any losses or damages as a result of this information.

WHAT CAN ACTUALLY HAPPEN WHEN A PERSON DIES WITHOUT A TRUST (INTESTATE)?

Each individual’s situation is different; however, if you’re like me, you learn better by using and evaluating examples. Therefore, below, I’m going to go through a pretty standard example that we see and hear about. Please understand that this is meant to be a quick overview of the general process and is not meant or intended to be a step-by-step process on how this should be done.   This is not legal advice on how to do an estate administration and the advice of a qualified estate administration attorney should be sought.

 

The first thing that will need to happen is that someone will have to apply, qualify, and be appointed Administrator of the Estate of the decedent. Second, an inventory, accounting and appraisal of the estate will need to be done. Attorneys and other professionals will likely need to be hired.

 

For this example, we will say that the decedent’s estate was made up of a home, savings, IRA, and some stocks as well as personal property such as jewelry which added up to $1,000,000.

 

Notices will have to go out to all potential interested persons as well as creditors. Taxes will need to be paid, property sold, and most significantly, fees will have to be paid. The attorney compensation is statutory which means that the law dictates (for the most part) what the legal fees will be. For this million-dollar estate, they break down as follows:

 

FEE COMPUTATION
4% of the first $100,000 $4,000.00
3% of the next $100,000 $3,000.00
2% of the next $800,000 $16,000.00
1% of the next $9,000,000 $0
Total $23,000.00

 

Thus, for a $1,000,000 estate, the attorney fees alone would be $23,000. That does not include the administrator fee to the administrator/representative that will be the same amount as the attorney fees as well as all the other court fees and financial services costs. Please note that for every additional million in the estate, the fees just mentioned would go up by $10,000.

 

Finally, the remaining funds will be distributed according to California’s intestacy succession laws. This could have a great result by having, for example, your children receive the remainder, or a terrible result by having an estranged sibling get everything.

 

As can be seen from the forgoing, failing to set up a living trust can end up having tremendous financial consequences that can dwarf the cost of setting up a living trust.

 

Attorney Ray Padilla is the founder and President of Ray Padilla Law, APC