Personal Wealth Law News

This is what a father wrote in a will that was brought to me. It illustrates another fundamental point about estate and retirement planning.

The father had decided to make his estate planning easy. “I’ll just buy CDs in my name and in the names of each of my children. That way, when I die, each of them will have a CD now in his or her sole name.” So, to carry out this idea, the father bought one CD with Child No. 1’s name on it in addition to his, a second in the name of Child No. 2 and the father all the way up to five children. The trouble was, he forgot how much he had purchased for each child, so the amounts were uneven. One child would get $100,000, another $10,000.

But Dad planned how to solve that problem. In his will, he wrote: “If any of the CDs I bought aren’t equal among my children, I ask them to straighten it out.” What do you think happened? Wrong, they did straighten it out. In one of those unusual family situations, the children who got more recognized their obligation to the others and entered into a family settlement. Sometimes it snows in April.

It’s important to remember that a will isn’t the only document that determines how assets are distributed. Life insurance beneficiary forms, retirement plan beneficiary designations and joint title on assets are all forms of testamentary dispositions; that is, they are all wills. Most people don’t know where these forms of wills are, sometimes can’t remember what they say and usually haven’t put them together so that they understand what their estate plan is. But it’s important to do this, because not every family (and, in fact, very few) is as close and understanding as the one described above.

Republished with permission of The Legal Intelligencer.

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Or does it seem that just about everyone in America is planning to retire in the next few years? If you watch television or read magazines of almost any kind, you will see constant stories about impending retirement: Are people ready for retirement; What can they do now to get ready; etc.

Of course, not everyone is retiring during the next decade. After all, there are still law firm associates. But the large cohort called the Baby Boomer Generation is approaching retirement and, just as in other times in the history of that generation, it will treat the circumstances it is facing as the most important in the nation’s history.

There are varying views as to what retirement will be like for the Baby Boomers and what effect it will have on the rest of society. Many reports in the popular media suggest a need for more saving and investing. But there have been scholarly studies suggesting that those about to retire are well prepared for it. Are they both right, or both wrong?

A study, to be published later this year in The Journal of Investing, was recently concluded by three individuals connected with Barclays Global Investors, and it provides some valuable insights on the status of retirement preparation and on the effects of changes in elements of that preparation.

The authors describe several ways of measuring the state of retirement preparation, including income replacement rates and comprehensive wealth analysis. They note several disturbing trends: the disappearance of defined benefit pension plans, the decline in personal saving rates and the large proportion of wealth represented by home equity. Not surprisingly, the result is to reduce the stability of retirement security for many people.

Given the long-term insecurity of government transfer programs and the importance of reducing dependence on home equity, the authors suggest several techniques for improving preparation for retirement. These include finding ways, such as automatic enrollment and default contribution rates in retirement plans to increase retirement saving and improving the investment choices made for retirement funds through lifecycle and targeted retirement strategies. Finally, the authors stress the importance of individuals taking a more active role in improving their retirement security. This is certainly the key point: Retirement security is the individual’s responsibility and problem. It is not a societal problem, as to which the individual can expect a societal solution. It’s up to the individual to ensure a comfortable retirement, even in the face of cutbacks in government programs.

Republished with permission of The Legal Intelligencer.

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A new book by Roger Lowenstein, a well-regarded author on financial topics, raises some issues about a problem that is becoming more obvious as baby boomers near retirement- the question of whether they have saved enough. His book, While America Aged: How Pension Debts Ruined General Motors, Stopped the NYC Subways, Bankrupted San Diego, and Loom as the Next Financial Crisis, discusses the way in which pension issues have affected the institutions named. It’s certainly a serious problem, but I don’t believe it’s a problem that’s inherent in the nature of pension plans, and that this is a reason to move everyone to 401(k) plans. You will find in each of the pension crises discussed a failure of careful management that took place over a long period of time. The people managing these plans knew that they were following risky paths, and they chose to follow them because they were, at least for a time, more profitable, and as for the long run, well, that’s someone else’s problem. But these crises have affected what people will have for retirement, and placed more of the saving burden on individuals. This is certainly an era in which individuals must consider their own financial situations and cannot rely upon government or employers to solve their retirement problems.

We see much discussion of individual attitudes toward retirement saving. Many writers warn us that Americans are saving virtually nothing for retirement. It’s misleading to lump everyone together, of course, because many people have saved for retirement, and those nearest to retirement are reported, again on a general basis, to be fairly well prepared for it. But there is no doubt that many people fall outside this generalization.

In future entries, I will review the conflicting evidence about saving, because some of the methods used in determining saving seem to be misleading. But there seems little doubt that Americans don’t save as much as they could in our high consumption society, and this attitude will affect their retirements and their family and estate planning.

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There are so many books, guides, television shows, magazines and web sites on investing that it amounts to information overload. Sometimes, the reaction to so much information is to do nothing. The Morningstar web site has a short article with the author’s (David Kathman) suggestion for a handful of books for the beginner (which is most of us) who wants some guidance on investing:

The Only Investment Guide You’ll Ever Need, by Andrew Tobias

Buffet: The Making of an American Capitalist, by Roger Lowenstein

TheBogleheads’ Guide to Investing, by Taylor Larimore, Mel Lindauer & Michael LeBoeuf

A Random Walk Down Wall Street, by Burton G. Malkiel

Stocks for the Long Run, by Jeremy Siegel

All About Asset Allocation, by Richard A. Ferri

I would add two others: Against the Gods, by Peter Bernstein and Devil Take the Hindmost: A History of Financial Speculation, by Edward Chancellor.

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For many people, their largest financial asset will be the balance in their retirement plan. The growth in 401(k) plans and the increases in the limits on deductible contributions to retirement plans have resulted in growth of such plans to overall levels of trillions of dollars. This growth has generated a number of issues, but a requirement covering all such plans and raising many issues is the necessity of taking withdrawals from such plans beginning at a specified age and at a specified rate.

Why are there such rules, called minimum distribution rules and imposed by Section 401(a)(9) of the Internal Revenue Code, and a mountain of IRS regulations? The ability to deduct contributions to such plans causes a loss of tax revenue to the Treasury, and they want the money back…eventually. The longer the wait to get the lost tax revenue, the less value it has to the Treasury. So the specified age for beginning distributions is 70.5, and the rate can be over life expectancies or a specified number of years. The failure to comply with these rules can result in a penalty of 50 percent of the amount that should have been taken out but was not. This creates a powerful incentive to take distributions as required by law.

But the rules are complicated, and it’s easy to make mistakes and to forget to take distributions when they are required. This is especially true when the plan owner dies and leaves the remaining benefits to family members. The naming of individuals as beneficiaries, or trusts for a group of beneficiaries, or separate trusts for each beneficiary can lead to different requirements for minimum distributions. Several books have been written on the subject of retirement plan distributions, and even they don’t cover every situation.

In private letter rulings, the IRS responds to inquiries by and on behalf of taxpayers. The responses they give are to the particular taxpayer and fact pattern, and they cannot be relied upon as authority for other transactions. Despite this limitation, they are useful in showing the thinking of the IRS on difficult tax questions. A recent private letter ruling, No. 200811028, illustrates a solution to a problem of late distributions. In this ruling, a decedent’s IRA was left to a beneficiary. The IRA indicated that distributions were to be made to the beneficiary over his life expectancy, unless he elected a faster payout over five years. The beneficiary did not make such an election, but he also forgot to start taking distributions over his life expectancy. Those distributions should have begun a year after the year of death of the IRA owner, and the first few payments were missed. When this error was discovered, the beneficiary caught up on the late payments, and he paid the 50 percent penalty tax on the late payments. The IRS ruled that he could continue payments over his life expectancy, enjoying the stretched-out deferral of tax, despite having missed the first few payments. In effect, the IRS said that the failure to take the necessary payments was not an election of the shorter five-year payout method.

The lesson of this private letter ruling, and many others on the subject of required minimum distributions, is that considerable care is needed in choosing how and when retirement benefits are to be paid, especially to beneficiaries. But if the distribution process gets off to a rocky start, there are some techniques available to preserve the favorable tax treatment for retirement distributions.

Republished with permission of The Legal Intelligencer.

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Unless you’ve been on a deserted island for the past two weeks (today is April 3, 2008), you will know of the near-collapse of the investment bank Bear Stearns.  Bear Stearns stock closed at $169.61 per share on January 12, 2007. The initial sale price to JP Morgan was $2 per share, since raised to $10, but this still represents a 94% decline from the high to the sale price. Many very wealthy investors in Bear Stearns are much less wealthy. Perhaps there isn’t a great deal of sorrow over their plight, but losses have been suffered by many people working at Bear Stearns who weren’t in the multimillionaire category, or in any case aren’t anymore.

Several lawsuits have already been filed as a result of the decline in value of Bear Stearns.  One investor has sued, alleging that the company issued false and misleading information about its financial situation.  A second was filed by a Bear Stearns employee, claiming that the company and its executives breached their fiduciary duty, causing losses to the employee stock ownership plan that is a principal shareholder of the company. A day later, another employee sued on similar grounds. Many people at Bear Stearns who had much of their retirement funds in Bear Stearns stock are facing a grim retirement picture, and it’s almost certain that more suits will be filed. Sometimes it’s a good idea to put all of your eggs in one basket, but if you drop the basket, it might be difficult to find more eggs.

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Megatrends is a name given to important changes in the economy or in the behavior of many people. People write books and articles about megatrends, hoping to identify them before others do and to benefit in some way (usually by selling more books). There are several megatrends that have a definite impact on trusts and estates work, and that will be discussed in future blogs:

• People are becoming wealthier, even with the current stock market setbacks. This is a worldwide phenomenon and contributes to the international flavor of much estate planning.
• A large number of people (the always demanding baby boom generation) are getting close to retirement and to a “final” disposition of their assets.
• There is a strong interest in business succession planning, particularly in this part of the country, where there are so many family-owned businesses. To deal with these issues, trusts and estates lawyers often have to act like psychologists, or at least hire them.
• People want to protect their assets against litigation and divorce, among other threats.
• There is and will continue to be a need for increased tax revenues, which leads inevitably to more complex tax laws and the need to plan for them. When Congress talks about tax simplification, tax lawyers go car shopping.

The combination of these megatrends demonstrates the growing importance of the broad practice area of trusts and estates, often referred to by more general names such as personal wealth, private client or wealth transmission, and ensures that this will be an area of growing importance for lawyers, one that focuses not on death but on the enjoyment of life.

In the next blog, we’ll review the campaign to repeal the federal estate tax and the likely future of the tax and the exemption from tax, as well as efforts to repeal the Pa. inheritance tax.

Republished with permission of The Legal Intelligencer.

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We now know what will consume the time and efforts of many thousands of people over the next ten to fifteen years: surveying people about their retirement plans. How long will you work? Where will you live? Who will handle your investments? What can I sell you? We already see almost daily surveys from all corners, attempting to find out what will actually happen to the Baby Boom generation. Of course, there’s a simple explanation for this trend: whatever this generation does, it will have a lot of money to spend, and many people want to know where that money will be spent.

A survey just issued reports that existing retirees stopped working at an average age of 58. Those who have not yet retired plan to work until age 68, on average, suggesting a disconnect between what workers want and need to do and what they will actually do. Almost half of pre-retirees did not have a formal retirement income plan. Both statistics reveal that Baby Boomers are in many cases not thinking seriously about retirement and are hoping that “something will happen”, like a government bailout of retirees. Why not? Everyone else seems to get a bailout.

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We’re seeing another aspect of the Baby Boomer syndrome: whatever stage of life baby boomers are in, there are massive resources created and applied to meet their needs. There are now many organizations, both commercial and educational, dedicated to the issues arising out of the impending retirement of this generation. For example, Boston College has a Center for Retirement Research (http://crr.bc.edu). Another organization, the National Endowment for Financial Education, doesn’t focus solely on retirement, but has resources, including its Smart About Money web site and its Nefe Digest, that offer valuable advice about retirement (www.nefe.org).

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The American Association of Individual Investors has an interesting article on retirement myths on its web site: www.aaii.com/features/retirementplanning.cfm. It lists some misconceptions people have about what they will do in retirement. Here are a couple of them.

One is the idea that only men retire, that women, especially those who haven’t worked outside the home, just keep doing what they were doing. Not true. Everyone needs to plan for retirement. Another myth is that retirement is easy, because it’s just the absence of the problems experienced in the working world. Again, not true. Here’s a third: it will cost a lot less to live in retirement, for a variety of reasons that usually don’t pan out. As we’ve said a few times, retirement takes some thinking ahead, to avoid financial surprises and a crushing sense of boredom and loss.

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