10 Types of Trusts: A Quick Look

Considering the myriad of trusts available, creating the right estate plan can seem daunting. However, that is what we, as estate planning attorneys, do every day. We know the laws and will design a plan which addresses your specific situation.

Here is a look at the basics of ten common trusts to provide you with a general understanding of the options available. There will not be a quiz at the end. When we meet, all you need to do is be prepared to share your goals and insight into your family and financial situation, and we will design a plan that incorporates the best documents for your situation.

1. Bypass Trust. Commonly referred to as a credit shelter trust, family trust, or B trust, a bypass trust contains a portion of a deceased spouse’s accounts and property and uses the deceased spouse’s lifetime exclusion amount to reduce or eliminate estate tax. Because the estate tax is calculated at the first spouse’s death, this trust is bypassed for estate tax purposes at the second spouse’s death.

2. Charitable Lead Trust. A charitable lead trust is a trust which provides a stream of income to a charity of your choice for a period of years or a lifetime. At the completion of the period of years, or at death, whatever is left goes to you or your loved ones with significant tax savings.

3. Charitable Remainder Trust. A charitable remainder trust is a trust which provides a stream of income to you for a period of years or a lifetime and then gives the remainder to the charity of your choice with significant tax savings once the period of years or death has occurred.

4. Special Needs Trust. A special needs trust allows you to provide money or property for the benefit of someone with special needs without disqualifying them from receiving governmental benefits. Federal laws allow special needs beneficiaries to receive certain types of benefits from a carefully crafted trust without defeating eligibility for government benefits.

5. Generation-Skipping Trust. A generation-skipping trusts allows you to distribute your money and property to your grandchildren, or even to later generations, without taxation, by using your lifetime exemption to offset any tax that could be due.

6. Grantor Retained Annuity Trust. A grantor retained annuity trust is an irrevocable trust which provides you with an annuity for a specific amount of time based on the value of the property in the trust and upon completion of the annuity period, the remaining money and property is transferred to those you have named. This type of trust is used to make large financial gifts to your loved ones of accounts or property that are expected to grow in value at a higher rate than the annuity rate being paid back to you.

7. Irrevocable Life Insurance Trust. An irrevocable life insurance trust is designed to own high-value life insurance and receive the payment of the death benefit upon the trustmaker’s death. The benefit of this type of trust is that the life insurance proceeds are excluded from the deceased’s estate for tax purposes. However, the proceeds are still available to provide liquidity to pay taxes, equalize inheritances, fund buy-sell agreements, or provide an inheritance.

8. Marital Trust. A marital trust is designed to protect the accounts and property for the surviving spouse’s benefit, as well as qualify for the unlimited marital deduction. These accounts and pieces of property are excluded from estate tax at the first spouse’s death but are included in his or her estate for tax purposes.

9. Qualified Terminable Interest Property Trust. A qualified terminable interest property trust initially provides income to the surviving spouse and, upon the surviving spouse’s death, the remaining money and property are distributed to other named beneficiaries, while still allowing the trust to qualify for the unlimited marital deduction. These are commonly used in second marriage situations and to maximize estate and generation-skipping tax exemptions and tax planning flexibility.

10. Testamentary Trust. A testamentary trust is a trust created in a will. This type of trust is created upon the individual’s death and is commonly used to protect the money and property on behalf of a beneficiary as opposed to transferring the money and property to the beneficiary outright. It can be used when a beneficiary is too young to manage their own money or property, has medical or drug issues, or may be incapable of responsibly managing their own money. The trust can also provide asset protection from lawsuits, or a claim by a divorcing spouse brought against the beneficiary. Unlike a revocable living trust or an irrevocable trust, where property should be transferred into a trust during the trustmaker’s lifetime to work property and avoid probate, testamentary trusts require the sometimes lengthy and expensive probate process before the trust is created.

There are many types of trusts available. We will help you select which trusts, if any, are a good fit for you. Call today to schedule your in-person or virtual appointment. We are waiting to hear from you.

How to Remove a Member of an LLC

As a business grows, its ownership structure may change and an owner may need to be removed. Removing an owner of a limited liability company (also known as a member) may become necessary if a member retires, dies, changes career, commits a breach of conduct, or has a dispute with other LLC members. When members decide that somebody within their ranks must leave the company, the removal can be voluntary or involuntary.
Involuntary removal tends to be more complicated and contentious. However, there are several legal procedures that can be followed to make the removal as smooth as possible. The LLC’s governing documents, as well as state LLC laws, affect the options available for involuntary removal of a member.

LLC Membership Structure and Governance
An LLC is a business entity that combines aspects of a traditional corporation and a partnership. However, unlike a partnership, LLCs can have one member. There is no upper limit on the number of members allowed in an LLC, unless it is taxed as an S corporation.

LLC ownership is typically expressed as a percentage of interest in the company. Depending on the provisions of the LLC’s operating agreement, the ownership percentage may affect members’ voting rights and rights to profits generated by the LLC.

Upon formation, an LLC must submit documentation to the state where it is organized. States do not require an LLC operating agreement, but having one is highly recommended for internal purposes because it describes how the LLC is to be run and often provides a mechanism for removing a member.

Removing a Member according to Governing Documents
An LLC member voluntarily withdrawing from the company is the best scenario. If the member is not willing to withdraw voluntarily, the next best scenario is having an operating agreement that provides a procedure for involuntary withdrawal (i.e., expulsion).

An LLC’s operating agreement may explain the grounds for, and means of, ousting a member. The usual method of involuntary removal is a vote by the other members followed by a buyout based on the departing member’s interest or share in the company. Member buyouts may be addressed in a buy-sell agreement or another internal governing document.

Absent a documented, formal procedure for removing a member, the LLC could negotiate a buyout deal on a voluntary basis, which would keep the matter out of court, saving time, money, and headaches.

Removing a Member according to State Law
If the LLC lacks an operating agreement that specifies a method for involuntarily removing a member, and if a voluntary departure cannot be negotiated, the removal will need to be resolved judicially in accordance with state law.

While state LLC laws vary, many are based on the Revised Uniform Limited Liability Company Act (RULLCA). Twenty-one states and the District of Columbia have adopted the RULLCA, which provides three situations in which the court, when petitioned by the LLC, may order the expulsion of a member:

1. The member engages in “wrongful conduct” that “adversely and materially” affects the company’s activities.

2. The member has “willfully or persistently” committed a “material breach of the operating agreement” or materially breached their duties to the company.

3. The member engages in conduct that “makes it not reasonably practicable to carry on the activities and affairs with the person a member.”

Importantly, in cases where the court acts to expel a member from an LLC (known in the RULLCA as “dissociation”), the member does not necessarily lose all of their rights and interests. Although they lose the right to participate in the LLC’s activities and no longer have fiduciary obligations, they are still entitled to receive distributions. In some states, including New York, however, the court may order the sale of a dissociated member’s economic interest in the LLC.

Dissolving the LLC

Rather than petitioning the court to remove a member from an LLC, members can petition the court to dissolve the LLC. An LLC must be dissolved in order for it to be terminated, i.e., for it to legally cease to exist. The LLC cannot enter into new contracts, although it may be required to satisfy existing agreements. Its creditors must also be paid and its assets must be distributed among members. Members of the LLC who wish to continue working together are free to begin a new LLC and operate under the terms they establish.

Final Steps
Once an LLC member has left the company, whether voluntarily or involuntarily, the company’s records should be updated to reflect the change. This may involve filing documents with the state where the company operates, as well as notifying financial institutions, insurance companies, investors, the Internal Revenue Service, and other stakeholders. If the existing operating agreement does not adequately address involuntary removal of a member, it should be updated to address this issue.

If you are in the process of removing a member from your LLC, schedule a consultation with our team. We can guide you in crafting a removal plan that helps you effect this change as smoothly as possible.

Make Gifts That Your Family Will Love but the IRS Won’t Tax

Do not let constant political and financial speculation prevent you from making tax-free annual exclusion, medical-payment, and educational gifts to or for the benefit of your loved ones.

Make Annual Exclusion Gifts 

Annual exclusion gifts are transfers of money or property in an amount or value that does not exceed the annual gift tax exclusion. In 2021, the annual gift tax exclusion is $15,000 per recipient. Therefore, this year you can give up to $15,000 per person to as many individuals as you choose without having to file a federal gift tax return (Internal Revenue Service Form 709). In other words, the Internal Revenue Service (IRS) does not consider gifts that are equal to or less than the annual exclusion amount to be taxable gifts at all. You may need to file a gift tax return if your gifts either exceed or do not qualify for the annual exclusion amount. Your estate planning attorney or accountant can guide you.

Married couples can take double advantage of the annual exclusion and gift $30,000 in 2021. However, in some situations, a couple may still need to file a gift tax return if the amount of the gift is to be split between them. They should consult with their estate planning attorney or accountant to be sure.

 Make Payments That Qualify for the Medical Exclusion

 A payment that qualifies for the medical exclusion is another type of transfer that the IRS does not consider to be a gift for gift tax purposes. Payments qualify for this exclusion if they are made on behalf of an individual to a person or an institution that provided medical care or medical insurance to the individual. In general, medical expenses that qualify for this exclusion are the same ones that are deductible for federal income tax purposes. Therefore, in 2021, you can pay the cost of your grandchild’s emergency appendectomy and, in the same year, give your grandchild an additional $15,000 without having to file any gift tax returns. 

 To qualify for the medical exclusion, a payment must meet two critical requirements.

• You must make payment directly to the person or institution that provided the medical care or medical insurance. If you give the money to the individual who received the medical care or insurance benefit, even with explicit instructions that it be used to pay for the medical care, your payment will be considered a gift to the individual and not payment of a qualified medical expense.
• The amount paid must not have been reimbursed by the individual’s insurance company. Any reimbursed amount is not eligible for the unlimited medical exclusion from the gift tax, and that amount will be treated as having been made on the date the individual received the reimbursement.

Make Payments That Qualify for the Educational Exclusion

 A payment that qualifies for the educational exclusion is another type of transfer that the IRS does not consider to be a gift for gift tax purposes. For example, in 2021, in addition to paying for your grandchild’s emergency appendectomy and giving them $15,000 (see above), you can pay their college tuition costs without having to file any gift tax returns or pay any gift tax. 

To qualify for the educational exclusion, a payment must meet two critical requirements.

• You must make payment directly to the institution providing the education rather than to the individual receiving the education.
• Your payment must be for tuition only, not for books, supplies, room and board, or other types of education-related expenses.

If your payment fails to meet either of these requirements, it will be considered a gift to the individual.

 Giving gifts can be an effective way to provide financial assistance to your family members. If you have any questions about how to make gifts of money or property to your family without also giving money to the IRS, please contact our office. We are available for in-person and virtual consultations.

Navigating Mineral and Surface Contracts

It can be a time of excitement when a landowner is contacted regarding some sort of mineral or surface rights proposition. Be it a cell tower, wind turbines, a pipeline, or the sale or lease of mineral rights, landowners need to be certain they are protecting their interests. As well as some landowners know every inch of their property, oftentimes that knowledge is no more than six inches deep and stops long before drilling is fruitful.

According to Crystal McDonough, landowners are periodically at a disadvantage when negotiating such contracts because the other party is the one with the data of geologists, professional landmen, and even surrounding contract values for comparison. Simple mistakes- like entering automatically renewing contracts- can be avoided by utilizing a seasoned natural resources attorney.

A cattleman attempting to quickly learn the oil and gas, surface use, or mineral rights leasing finer points is much like an oil and gas man walking into the livestock auction to purchase cattle with only a basic understanding of the business. An expert at your proverbial elbow could prevent a multitude of mistakes and avoid trouble as deep as the shale.

Knowing what mineral and surface rights might bring in a competitive bid situation can also be important information for a landowner hoping to identify a buyer. Perhaps most importantly, an experienced oil and gas attorney can ensure that a landowner knows exactly what type of rights they own in addition to surface rights.

With contract negotiations, the more data and information a landowner has, the more bargaining power they have and that is worth more than even a steadily bobbing oil derrick or wind turbine.

 

Property Due Diligence:​
Going Beyond Title

Property ​Rights ​To ​Consider​

• Mineral Ownership​​
• Water Ownership​​
• Renewable Energy​​
• Easements​​
• Zoning​​
• Liens ​​
• Mortgages​​
• Covenants​​
• Environmental and Operational Concerns​​
• Lease Analysis​​
• Regulatory Analysis​​
• CRP and other Government Land Programs​​
• Other Contractual Obligations​

Understanding ​How They Relate ​and Work Together​​

Title​​

• Mineral Ownership​​
• Water Ownership​​
• Easements​​
• Lien​s​
• Mortgages​​
• Covenants​​
• Recorded Leases​

Regulatory Analysis​

Federal​​

• EPA​​
• Federal Energy Regulatory Commission​​
• Bureau of Land Management​​
• U.S. Fish and Wildlife Service​​

​​Colorado​​

• Colorado Oil and Gas Commission​​
• Water Resources Division​​
• State Land Board​​
• Colorado Health Department​​

Local​​

• County, city and municipal zoning and ordinances​
• Contractual Obligations​
• Purchase Sale Agreements​​
• Grazing Leases​​
• Farming Leases​​
• CRP​​
• Other Government Land Programs​​
• Rental Agreements​​
• Lease Agreements​​
• Housing Agreements​​
• HOA Bylaws and Covenants​​
• Existing Permits (for example water permits)​​
• Zoning Variance Permit​​

Putting It All Together

Legal Analysis To Understand…​

• Risks​
• Recommendations​
• Cloud On Title (Quite Title, Det. Of Heirship, Probate, etc.)​
• Permit Applications​
• Cost Benefit Analysis​

Drive Greater Resilience, ​
Less Risk in a ​
Post-COVID World​

Click here to view video with more details and information.

Crystal McDonough, Owner and Attorney McDonough Law Group​

Karen Breen, CPA, Embark Finance & Accounting Advisory Services, Managing Director​

Judith Pearson, Woodruff Sawyer Family Office and Trustee Liability Group Leader​

Don’t Become a Statistic​

1. Business Stress Test™​

– Legal, Risk, Finance​

2. Get out of the Firefighting Mode that COVID created​.

3. Seize Control of Your Insurance Program​

– Understanding the current insurance marketplace in the context of historical challenges​.

– New world new risks​.

Business Stress Test™ – Legal​

According to a 2014 Forbes article, between 36% and 53% of US businesses are involved in at least one legal or court proceeding in any given year. ​

​Many of those businesses are sued by employees, contractors, vendors, clients, customers, and even business partners. ​

​What’s even more concerning is the fact that many of these legal issues and disputes could be prevented, or at least minimized, with the proper legal planning and compliance. ​

​It is important to do a thorough review of your operations, procedures, and legal documents to identify any holes or weaknesses that are leaving your business vulnerable to liabilities, lawsuits, and other disputes.​

Regulatory Compliance Ever Changing Rules (federal, state, local, etc.)​

Return to work policies and potential claims. ​

Layoffs may increase as stimulus packages and PPE loans go away – may trigger alleged wrongful termination, demotion, or failure to promote an employee.​

Families First Coronavirus Response Act (FFRCA) requires employers to receive paid sick leave.​

Family & Medical Leave act (FMLA)​

Negligent in adhering to employment-related policies and procedures, such as improper training​.

Americans with Disabilities Act (ADA) how will long haulers be classified? What accommodations must be made?​

Privacy and HIPPA laws​

Worker Adjustment and Retraining Notification (WARN) Act claim for unpaid wages.​

OSHA guidelines​

Will your company require vaccines? ​

Yes, but some employees may be excluded.​

-​ Employees with disabilities​.

-​ Employees with sincerely held religious beliefs.​

-​ Employees covered by collective bargaining agreements. ​

​What accommodations must be provided?​

​Can I require proof of vaccinations of employees and guests? ​

​How does this affect my employment practices, fiduciary liability and workers compensation policies be affected?​

Business Stress Test™ – Risk​

Seize Control of Your Insurance Program​

Understanding the current insurance marketplace in the context of historical challenges​.

New World New Risks​

While the magnitude of D&O claims isn’t different ​the types claims are challenging.​

Adequacy of disclosure in your financial/business environment.

Balancing and prioritizing diverse and complex interest of stakeholders (shareholders, employees, customers, beneficiaries).

Regulatory compliance

Reputational risk

Business Stress Test™ – Finance​

Build RESILIENCE & REINVENT How Finance Teams Operate ​

Cash Remains King!​

Optimize Working Capital​.

Don’t just focus on P/L at the expense of the balance sheet​.

Accelerate receipts, manage inventory turn, extend payments.​

Review tax planning and seek accelerated refund claims​.

Current ratio above 1.0 is key​.

Always Be in a State of Finance Readiness​

GAAP vs cash basis financials​.

​Agile Forecasting – run multiple scenarios, stress test debt covenants​.

​Ensure financials enable a lender or investor to understand your business.​

Sell side due diligence – act as though you’re going to sell and prepare the documents that a buyer would be interested in​.

Revenue, Expenses, Margins, Trends, Client Concentration, Forecasts, Working Capital, etc​.

Finance Automation is Front and Center​

Reduce Time to Close = Better + More Timely Decision Making​

​Digital Transformation.

Automation of manual processes.

Integrate Disparate Systems – Move out of Excel!

Data analytics, Dashboard/Management Reporting.

What gets measured gets managed.

Why do it? ​Per KPMG ​2021 Report​

A transformed finance function transformed can deliver:​

45% cut in general accounting costs​.

15% improvement in working capital​.

50% reduction in manual reconciliations​.

Digitization of the Workplace – Legal/Risk​

Contracts and Agreements​

Subcontractors’ vs Employee agreements, vendors, leases, licenses, etc.​

Cyber: Combination of Increased Threats, Cyberattacks and Malware Continue​
in Remote Workplace​

1. Lack of two factor authentication​.

2. Cloud based breaches.​

a. Misconfigured security measures​.

b. Lack of monitoring security.​

3. Employee connectivity not as robust as corporate environment​.

4. Cyber security staffing (4 million cybersecurity jobs unfilled)​.