6 ESTATE PLANNING MISTAKES YOU SHOULD AVOID
You want peace of mind knowing that your loved ones are taken care of after your death. While it may be difficult to think about, preparing a will and revisiting and updating existing estate plans that may have been made years ago are the best way to prevent needless mistakes in the future, many of which could cost your family thousands of dollars.
Attorneys that are experienced in this area can help their clients avoid making these six disastrous estate planning mistakes:
1. Not Having an Estate Plan in the First Place
No estate plan? You can bet there will be some confusion on how your assets should be distributed after your death. The law will decide which family members get your assets, but it does not provide a clear path for how to divide things like real property, interests in a business, or other things that your heirs could be forced to sell in order to divide. Also, the cost of getting through the probate process can eat up 3% to 8% of the value of your estate, which in turn takes that money out of the pockets of the people you mean to take care of with your estate planning.
Even if you have a will, it may not be enough. For example, most people think that all they need is a will, but many assets are typically not named in a will, such as IRA accounts and life insurance. Those assets will pass to whomever you have named as a beneficiary, no matter what your will says. And for a lot of people, these assets can represent most of what you have to distribute to your loved ones. You don't even need a lawyer for this part- you just need to check and make sure that your designations are up to date and accurately reflect who you mean to receive those funds.
2. Not Having Your Estate Plan Examined by a Professional
Do-it-yourself (DIY) wills that you create online might save you a few bucks, but it can cost your family thousands of dollars if it lacks in-depth tax planning strategy. That’s not even counting the costs of hiring a lawyer to mitigate the damage after the fact! In the worst case scenario, the probate court may not admit the DIY will at all. In this situation, assets will pass to those who would receive it, as dictated by state law, which may not be what you intended and may create confusion and stress for your family.
In the age of the internet, it is easy to be misinformed, and it is important to know what your state (meaning the state of your primary residence) requires. For example, there are states that recognize "holographic wills"- a handwritten will signed by the person making it, and you may read about this online. Massachusetts does not recognize any will, handwritten or not, unless it meets the specific signature requirements under state law.
3. Trusting Your Children with More Than They Can Handle at Their Age
Every parent wants to believe their children are fit to responsibly manage and benefit from their inheritance as soon as they turn 18, but that isn’t usually the reality. Most young adults typically aren’t experienced enough to manage large sums of money efficiently. When you add to that the fact that they will be receiving an inheritance at the same time that they are grieving and processing a parent's passing, and you have a potential recipe for poor choices that are hard to undo later. Setting up a trust with provisions regarding when your children can receive their inheritance and what kinds of things a trustee can authorize expenditures for in the meantime can not only protect your children, but also give them a structure and a person they can turn to as the learn how to manage their own affairs.
4. Depending on Family Members to “Do the Right Thing”
Rule of thumb: it’s better to establish a trust than to simply trust. Don’t rely on the goodwill of others to use your assets for the good of another, such as to take care of someone in your family. Anyone, including a family member, can opt to change their mind and oppose how you intended to use your assets after your passing. People's lives also change- the spouse you entrust with managing your assets for the benefit of your children may remarry and have other children competing for the same resources.
5. Not Realizing the Impact Taxes Can Have
Gift, income, and estate taxes all impact the sum passed to your descendants. For example, if you leave life insurance to one child and your Individual Retirement Account (IRA) to another, the child with the IRA will have to pay income taxes, while the one who received the life insurance will not. While you intended was to split your assets between them equally, the final amount they receive will differ. Also remember that in Massachusetts if your estate is worth $1 million or more (counting your life insurance, retirement savings, and real property like your home), your entire estate will be taxed. At $1 million exactly, your approximate tax liability will be $36,000. That is well more than the cost of a little planning ahead of time to avoid or minimize that tax burden.
6. Not Understanding That Specifics Matter
Let’s say you decided to write a will that leaves all of your assets to your “surviving children.” If one of your children passes before you, would you like for your assets to pass to only your remaining children, or for your deceased child’s portion to pass to his/her children? It’s important to be specific when properly drafting an estate plan, factoring any and all worst case scenarios that might arise.
Hiring an attorney will not only save you from making unexpected estate planning mistakes, but also will give you access to immediate legal advice and guidance when revisiting estate planning decisions. Our experienced attorneys at SLN Law will help you create the best plan for you and your family and make sure you receive exceptional legal guidance. When you’re ready to prepare for your family’s future, we are one call away.
WHAT EVERY BUSINESS OWNER NEEDS TO KNOW ABOUT MASSACHUSETTS INDEPENDENT CONTRACTOR LAWS
It is common in many industries to use the services of individuals as independent contractors, or “1099 employees,” rather than putting them on payroll as W-2 employees. This is not exactly paying people “under the table,” as their income is reported on 1099 forms at the end of the year, but it is still a risky practice under Massachusetts law, and one which can cost an employer far more than the savings realized by using independent contractors.
The Law About Independent Contractors
The Massachusetts Wage Act defines an “employee” as any individual performing any services, unless the employer can prove all three of the following:
It is important to understand that all three of these tests must be met, and if any one is lacking, the individual will be considered an employee under the law, not an independent contractor.
It is the second prong that has proven most troublesome for employers. Even if a person functions independently, and “freelances” for other companies in addition to providing services for the business, if what that person does is part of the ordinary operations of the business, the employer could be breaking the law by classifying that person as an independent contractor.
For example, if I hire someone to paint my office, or plow the parking lot, those activities are not part of the usual course of my business as a law firm. If, however, I hire someone for 10 hours a week to do legal research, even on a temporary basis, that person is performing a core function of my business, and likely should be paid as a W-2 employee, no matter how few hours he or she works, or how temporary the assignment.
Ancillary support services (IT consultants, payroll or accounting services) are generally permissible to engage on a contracted services basis, assuming the other tests are met (actual independence and provision of similar services to others), and assuming those are not your core business activities. Gray areas abound. If you operate a restaurant, it is likely that you can hire a webmaster as an independent contractor, but if you operate an online store, an argument could be made that the website is part of your usual course of business, and therefore should be managed and staffed by employees under the law.
But My Accountant Said it was Okay!
We hear this all the time. Your CPA or accountant may have told you that, under the circumstances, it was permissible to classify certain workers as independent contractors. Your accountant is not necessarily wrong- he or she is just applying a different set of rules for a different purpose.
Specifically, your accountant’s job is to make sure you are following applicable tax rules. If you are paying someone as a 1099, you are not paying the employer’s share of employment taxes, and essentially shifting that burden to your worker, who will be responsible for self-employment taxes on that income. Should the IRS decide that the individual really was an employee, it may re-assess responsibility for those taxes to the employer.
To that end, the IRS has a series of factors it considers, referred to as the “20 Factor Test.”
Unlike the Massachusetts Independent Contractor Law, there is no one deciding factor, and the IRS can place different weight on different factors according to the circumstances.
Also unlike the Massachusetts Independent Contractor Law, the 20 Factor Test recognizes things like flexibility of schedule, part time or full time status, location of employee’s work, provision of tools and materials, and contractual terms between the parties as relevant factor. None of these matter under the Massachusetts Independent Contractor Law, if the employer cannot demonstrate all three elements cited above.
Why Is It Important to Get This Right?
It is truly surprising how many businesses in Massachusetts get this wrong, so you should not assume a practice of using independent contractors instead of employees is lawful, even if it is common in your industry. Further, it is important to understand the potential consequences under Massachusetts law of incorrectly classifying workers, even if your classification passes muster under the federal tax rules.
First, a violation of the Independent Contractor Law is a violation of the Wage Act, which means that if an employee wins a lawsuit and proves damages, those damages are automatically tripled and the employer is required to pay not only its own legal costs, but the employee’s as well.
Second, the measure of damages may be greater than you think. These can include the value of benefits that W-2 employees receive, the amount of self-employment tax liability the employee has incurred by being classified as a contractor, the lost opportunity to collect unemployment benefits if terminated, and any overtime pay that person would have been entitled to as a W-2 employee.
By way of example, imagine an independent contractor earning $50,000 per year in a company where W-2 employees receive two weeks of vacation per year, paid federal holidays, and an employer contribution to health insurance of $500 per month. In this scenario, the contractor is terminated and unable to find another job for three months. The damages that individual might claim are:
Even assuming this person never worked overtime (which could add substantially to the damages), there could already be a claim for almost $15,000 in single damages, which if proven would then be tripled by the court.
Then Why Do So Many Businesses Get This Wrong?
One reason is the confusion described above between the federal tax rules and the Massachusetts wage and hour rules. Many businesses rely on their accountants in the first instance to “vet” these decisions. This is entirely appropriate as it relates to taxes, but the employment law analysis is a different animal.
Another reason is that violation of the Independent Contractor law is so common that people assume it is acceptable because so many others are doing it.
Finally, in our experience many business owners are simply not doing the math correctly, and assume that putting employees into W-2 status is more expensive and burdensome than it really is. Yes, you do have to assume the employer’s share of payroll taxes (7%), pay into unemployment, and take out workers compensation insurance. At the present time, you are not obligated to provide health benefits unless you have 50 or more employees, which exempts all or most of the businesses we encounter.
Whatever the costs, it is important to compare them to the costs of answering a misclassified employee’s civil lawsuit, including the costs of your own legal representation.
Have more questions? Contact our team at slnlaw LLC for more information on independent contractor classifications in Massachusetts and what it means for your business.
ARE YOU PREPARED FOR THESE 5 MAJOR LIFE MOMENTS?
There are some moments in life it’s impossible to prepare for on an emotional level. But when it comes to your finances and estate planning, it is possible to be proactive. An estate planning lawyer can help. Estate planning can help you at all times in your adult life, but you will see the greatest benefit the earlier you begin. Here are five key milestones where estate planning is essential:
1. When You Get Married
Before marriage, you probably only had yourself to think about. Now, you have a partner who may rely on you in some way for support. Even if you don’t provide for their quality of life, you likely would prefer that they receive your belongings, such as your home, car and valuables…or would you?
After you’re married, if you don’t want certain belongings to pass to a spouse if you die, you will need a will to clearly state your wishes. Do you want your parents to receive some of your assets? Once you are married, the law will assume that the vast majority (the first $200,000 and 3/4 of all remaining assets) will go to your spouse, with 1/4 of the remaining assets to go to your parents. You may want everything to go to your spouse, or you may want to take care of a sibling or some other relative- if this is the case, you need to have at least a will to set out your wishes in a legally enforceable way.
There are additional ways an estate planner can help when you’re a newlywed. You can set up power of attorney for each spouse as well as fill out healthcare proxy forms. Make sure you can each make financial and medical decisions for the other in the event of an accident or injury – you’ll be thankful you did if you ever find yourself in a critical situation.
Getting married is a joyous occasion that you may not want marred by long discussions about death and disability, but this is a major life change, and now is the time to talk it out with your new spouse and your estate planner.
2. When You Have a Child
Is there anything more life-changing than welcoming a child into the world? Now you truly do have another human being depending on you for support, and estate planning helps you make sure you do just that.
If you do not have a will, and your children are also the children of your spouse, the law will give everything to your spouse. This tracks what most parents of young children would instinctively prefer- that the other parent has all the resources needed to take care of the children- but it does not necessarily protect your children if your spouse were to later die or remarry and start a new family.
Other questions you will need to answer as you become a parent include who will care for your children if you die? How will your assets be distributed among your children? Comprehensive estate planning includes detailing your wishes, setting up a trust and planning ahead so your family receives as much support as possible in the event of your death.
3. If You Get Divorced
No one goes into marriage with the intention of divorce, but sadly, it’s a reality. Divorce brings a whole range of estate planning questions. Have you changed the name of your account beneficiaries? Would you like to change your healthcare proxy and power of attorney? Should you rename your will executor?
After divorce, you may wish to marry a second time. Again, an estate planning lawyer can help with key issues at this stage. What should a second spouse receive if you die? How will children of a second marriage be provided for? Answer these questions now and save your family hours in probate court and thousands of dollars in lawyer fees.
4. When a Parent Dies
When your parents reach the end of their life, there is a high likelihood that you will be called upon to take over their finances and make their medical decisions. If you and your parents don’t talk about estate planning before they become ill or pass away, it can be very difficult for you to access their accounts and provide the support they need.
What is the correct role for adult children and what are your parent’s wishes? Meeting with an estate planner with your parent beforehand can help you prevent trouble with banks and avoid contention within families.
5. When a Spouse Dies
If you or your spouse were to pass on, are you prepared for all of the imminent financial decisions that will result? Do both of you have at least some immediately liquid assets (like joint savings or life insurance policies) that will help the surviving spouse deal with expenses right away? Working with an estate planner ensures either you or your spouse has a strategy to deal with estate tax and bypass probate.
Why Work with Us
Slnlaw LLC is a full-service estate planning firm that also offers individual services. In other words, we will design a service package that fits your specific needs. We understand no two people are alike, but everyone needs a detailed, knowledgeable estate planning lawyer to navigate the often confusing laws and regulations. Let us help – call today to set up a consultation.
YOU’RE RICHER THAN YOU THINK- MASSACHUSETTS ESTATE TAX
What You Need to Know About Massachusetts Estate Tax
Everyone has an estate. It may not look like a sprawling mansion in the countryside, complete with a butler and a carriage driver, but in the eyes of Massachusetts law, if you have any assets to your name (even just a bank account), you have an estate.
It’s highly likely that your estate makes you richer than you think, and here’s why: your estate is more than just your home and your current bank account balance. It includes life insurance, annuities, business interests, retirement accounts and more.
This is why you should consider estate planning: lowering the tax burden on your estate could help your family save tens of thousands in taxes, significantly adding to the inheritance of your loved ones. And whether you realize it or not, your assets likely add up to more than $1 million, which is when Massachusetts estate tax will begin to affect you. Under the current Massachusetts graduated estate tax rates, if all of your assets combined are worth even just a little over $1 million, your family will pay approximately $36,000 in estate taxes. If your assets combined are worth $999,999, they will owe nothing. This means the time and money (far less than $36,000!) invested in planning is well worth it if you can bring your taxable estate below that threshold.
The $1 Million Threshold in Massachusetts
If your assets are worth more than $1 million, your estate will owe Massachusetts estate tax when you die. And you won’t just owe taxes on the amount above $1 million – you’ll pay taxes on all of your assets over $40,000.
Massachusetts has graduated tax rates that range from 0.08% to 16%. You’ll pay about $36,500 in taxes on an estate just over $1 million, but you could pay nothing if you were able to keep your total estate at $1 million or less. That's a big difference, and far more than you will have to pay an attorney to draft a comprehensive estate plan and help you avoid or minimize this liability.
Are you close to the taxable threshold? Most people are closer than they think.
For example: If you have a $400,000 life insurance policy, stock holdings, an average 401(k) retirement and you own a home, chances are, you’re definitely close if not over the limit. And most of these assets will only grow in value as time goes by. It’s worth it to explore the tax saving benefits you could employ with conscientious estate planning. You may not think of yourself as “rich,” but Massachusetts will take its share upon your death unless you structure your assets in a way to benefit your heirs the most.
Giving Is a Great Solution
What’s a great way to reduce estate tax burden in Massachusetts? Give it away.
If you plan on leaving money to your children after your death, and you know your estate is over the $1 million Massachusetts exemption amount, why not begin to impart financial gifts now? You will get to see the benefits your money can provide to your heirs and you will actively reduce the amount they would have to pay in taxes after your death.
Giving is a sensible way to expedite the inheritance process without having to pay estate taxes, but state and federal laws have been established to put a limit on your ability to exercise this option.
In Massachusetts, any gifts in excess of $15,000 per year per receiver that were gifted after December 31, 1976 will reduce dollar for dollar the amount of assets you can have in your estate before incurring estate tax. You can give away up to $54,000 per year, per receiver without paying a federal gift tax, but if you die within three years of any size gift, even one within the $15,000 limit, it will remain part of your estate for tax purposes. Who counts as a "receiver?" Anyone. If you have an adult child who is married, you can give $15,000 to your child and another $15,000 to their spouse. If they have children, you can give $15,000 for each child into a trust or education savings plan.
Married couples can give away $30,000 per year to their heirs. They could conceivably gift $30,000 per year to each of their three children and reduce the value of their gross estate by $270,000 over the course of three years, without having to reduce their allowed exemption amount (the $1 million per person described in the section above.)
If you own a business or an interest in a closely held company (closely held means it is not publicly traded, which is the case for most small businesses), there are ways to leverage your giving limits. The IRS permits a discount on the valuation of a business because it is not publicly traded, and if you gift minority interests, there is an additional allowable discount. What this means is that you can give away an interest that may have a real value of more than $15,000, but can be valued for gift and estate tax purposes at $15,000 or less. It is also worth considering this kind of asset in a gifting strategy, because it does not necessarily take liquid assets that you may need in your own lifetime out of your pocket, and helps facilitate the transfer if you intend for family members eventually to take over the business.
Using Trusts to Minimize Tax Liability
There are many ways to use trusts to minimize your estate tax liability. If you are married, you can use trusts to basically pool your $1 million exemptions, making it effectively a $2 million exemption. You can also use irrevocable trusts as another way to give away assets but maintain some kind of say about how they are used. For example, you could place assets into a trust that allows you to receive income from the assets but earmarks the assets themselves for a beneficiary (a child or grandchild, for example).
What Else Can You Do to Reduce Your Tax Burden?
There are many additional estate planning strategies we recommend at slnlaw. From opening a credit shelter trust to establishing a Family Limited Partnership, you have options and we have explanations.
Find out if you’re close to the $1 million threshold – schedule a free consultation with our estate planning team to figure out what you’ll owe and how to lower (or erase) your projected Massachusetts estate tax bill.
5 REASONS A WILL ALONE ISN'T ENOUGH
Even though it’s not a topic you like to think about on a day-to-day basis, you know you need to prepare for your family’s life after your death.
A will is one of the most common estate planning documents, but surprisingly, this legal document probably doesn’t suffice and won’t guarantee your wishes are carried out. If you’re relying on a will as your sole estate planning document, you could be leaving your family unprotected. While writing a will is a great start, it isn’t comprehensive enough to account for all of the complexities of your finances and your life.
Here are the top five reasons you need more than a will when it comes to planning your estate:
1. A will is just a suggestion of your wishes and must be validated by a judge through a process known as probate.
Probate is public, lengthy, expensive, and leaves your will and wishes open to contest or challenge by parties who think they should be included. The more assets that pass automatically to your heirs outside of the probate process the better. Probate could prevent your family from gaining possession of your assets for up to a full year following your death, when they may have immediate needs for cash to take care of themselves, pay the bills, pay any estate tax you may owe, and much more.
The probate process is estimated to eat up between 3% and 8% of the value of your estate, which could be a significant sum. You may not be able to avoid the probate process entirely, but a careful and comprehensive estate plan can help ensure as many assets as possible pass outside of probate, and that to the extent you need to go through the probate court the process is streamlined and simplified.
2. A will is often inflexible.
Once a will is written and signed, it is set. It can only be revoked by destroying the original document, leaving you without a will, amending the will through a document called a codicil which still requires the same formalities as a will in order to be legally valid, or going through the entire will drafting process again and signing a new will.
At your death, a valid will, once probated, is set. There can be no changes. A will drafted 15 years ago does not have the flexibility to deal with the unexpected.
On the other hand, while a trust is also indelible, a trust has an appointed trustee. This living person who you trust to follow your wishes is also able to react and deal with the unexpected more appropriately and with more finesse than an aged document that is unable to contemplate every potential circumstance.
3. A will alone won’t fully protect your estate from taxes.
Alone, a will is unable to shield your assets from federal and state taxes, which can significantly reduce the total left to your descendants. This is most likely more relevant to you and your family than you might think: if you have a life insurance policy, equity in your home, and typical retirement savings, your taxable estate could easily exceed the $1 million exemption under Massachusetts estate tax laws, which could cost your family $36,000 or more in taxes. There are additional documents and strategies, including trusts and family gifting plans, which can help you minimize or avoid altogether this additional tax burden on your family.
4. A will is limited to property that does not already pass automatically to beneficiaries.
Simply because you choose to distribute your property equally to your three children, does not mean that all your property will go to your three children. Only property passing under your will and included in your estate will go to your children. Other assets, such as retirement plans, life insurance proceeds, and certain property held jointly, pass automatically to whoever is named as the beneficiary or who owns the property jointly with you. Your will cannot override deeds or beneficiary designations. Whether you have a will or not, it is important to periodically check your beneficiary designations to make sure they have kept up with changes in your life and are consistent with what you want.
5. A will names who will take care of your minor children, but is limited in describing how your children should be raised.
A will can name a conservator and guardian for your children, but the details of how you want your children raised, such as education and religion, are not topics people typically feel comfortable including in a public document.
A will is just a note with your basic wishes expressed. But a comprehensive legal document like a trust has the power to do more than state your expectations. You can delay monetary distributions until your children are old enough to handle such distributions. You can provide more direction for your chosen guardian in terms of education, religious upbringing, and more. You can also protect your children from misuse of trust funds.
Another thing a will cannot do is protect you and your family if you are incapacitated. A will only takes legal effect upon your death, so it cannot control who makes medical decisions for you, or financial or legal decisions, if you are alive but unable to do so yourself. This is why most comprehensive estate plans include two key documents: a health care proxy and a durable power of attorney. These two documents allow you to designate decision makers ahead of time.
Protect Your Family
Estate planning may not be as straightforward as drafting a simple will, but an experienced estate planning lawyer can help you find peace of mind by creating the set of documents, including wills and trusts, that will address your specific situation and goals. Get the confidence that comes with knowing your loved ones are protected – contact slnlaw today for a free estate planning consultation.