Standby Guardian For Minor Children

Posted on March 31, 2009 by John O'Brien

One of the most important aspects of planning for parents is the appointment of a guardian for their minor children.  For parents, this is often times one of the most difficult decisions they have to make.  Once made, the appointment is made in the parents' respective Wills and is, more often than not, left that way. 

The problem with this scenario is that the appointment only becomes effective upon the death of the parents.  What if both parents, or the surviving spouse, are simply incapacitated and have not passed on.  Well, the appointment in the Will is simply ineffective for this scenario.  Thus, all parents must also avail themselves of Connecticut General Statutes Section 45a-624 and make an appointment in a separate written instrument of a Standby Guardian For Minor Children.  The written appointment would take effect upon the occurrence of specified contingencies and remain in effect until these contingencies have passed.  In the absence of such a written appointment, the probate court would make an appointment, but why allow a disinterested judge to do it when you, as parents, can clearly spell out who you want.

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Guardianship For Minor Children

Posted on March 24, 2009 by John O'Brien

A client was referred to me recently regarding annuities that had been left to her daughter by the client-mother's deceased brother through beneficiary designation.  The annuities were relatively significant and the client-mother wanted to make some changes with the annuities.  She contacted the company and was promptly advised that she could not do anything regarding the annuities unless she was appointed as her daughter's guardian.  The client-mother protested and indicated "I'm her mother, of course I'm her guardian."

Not necessarily so.  The Connecticut General Statutes Section 45a-631 indicates "A parent of a minor . . . shall not receive or use any property belonging to a minor in an amount exceeding ten thousand dollars."  This does not relate to money held in a custodian account but rather property belonging to the minor, outside of a custodial account -- like an annuity contract received from a beneficiary designation.  To do anything with the annuity contracts -- the client needed to be appointed by the probate court as the guardian for her minor daughter's estate.  So parents, don't just assume.  Consult with your legal counsel.

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Maximize Gifting As A Planning Strategy

Posted on March 17, 2009 by John O'Brien

Effective use of gifting can have a substantial impact on reducing an otherwise taxable estate.  In this context, we are referring to the use of annual exclusion gifts and payment of tuition and medical expense gifting.  There are other forms of gifting to take account of valuation discounts, but that is left for another Blog.

For 2009, each individual is entitled to make an annual tax-free gift of $13,000 to as many individuals as he/she wants.  A named couple may thus give away $26,000 to as many individuals they want.  The numbers are obvious.  A well orchestrated annual gifting strategy can help reduce a taxable estate.

Importantly, a gifting strategy often overlooked by individuals, is the fact that under the Internal Revenue Code, one can make payment of tuition and/or medical expenses for another and not have these payments count against the annual exclusion amount.  Yes, this means that you and your wife can pay grandson's tuition and give him $26,000 in the same year thereby reducing your estate and not incurring any gift tax.  The payment must be made directly to the school and/or medical provider and tuition means tuition -- not room/board and incidentals.

The tuition expense exclusion can be used to prepay multiple years of tuition payments.  Tuition is prepaid to the school and must not be refundable.  This strategy is best suited for people concerned that they might not live long enough to pay each year's tuition.  Who can afford to make the payments now and not be concerned that the school will get to keep the money regardless of the student's status at the school.  (What happens if grandson gets expelled or voluntarily leaves?)  Not a problem.  To address this concern, we drafted for clients a Health Education Exclusion Trust ("HEET") .  Properly done, you can place significant sums into the Trust earmarked for tuition expenses and not be concerned with having prepaid tuition to a school that grandson leaves.  Moreover, this type of Trust can benefit multiple generations free of future gift, estate and generation skipping taxes.

To all, we strongly suggest implementation of well-crafted gifting strategies.

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