The Problem of Faithless Trustees

There’s been quite a bit of press coverage of “fiduciary duties” when it comes to professionals giving financial advice.  Bank trust departments and trust companies always have been held to the fiduciary standard, and are proud of it.  Unfortunately, there are some documented cases when individuals with such duties simply ignored them.

Special needs

Lawrence and Millicent Stream, a successful professional couple, had an autistic son, Larry.  Although Larry’s condition was not severe, his parents saved for a trust to provide for him for the rest of his life after they had died.  They accumulated about $2 million in that trust for Larry.

The trustee of Larry’s trust was Layton Perry. We don’t know how the couple knew Mr. Perry, why they chose him as trustee, and why they did not choose a bank trust department or trust company for this important job.  We do know that Perry was a disbarred lawyer.

Fortunately, Perry was not named Larry’s legal guardian.  That job fell to Carolyn Crepps, who had worked as a legal assistant.  She investigated Perry’s management of the trust, and she found that he and his wife had used the assets to buy new cars for themselves, had made mortgage payments on their own home, and had made many personal withdrawals from the trust with no documentation or explanation.  The $2 million fund had been reduced to $200,000.

Crepps asked the probate court to remove Perry as trustee, and he was removed.  The court ordered the sale of the Perrys’ cars and home, with the proceeds returned to the trust.  However, that did not bring the trust fund back to its full $2 million balance.

Larry Streams was not stupid, but he was much too trusting of other people.  As were his parents.

Old Money

James Stillman, onetime Chairman of the National City Bank of New York (which years later would be renamed Citibank), was very rich.  At his death in 1918, his fortune was estimated at $1.8 billion in today’s dollars.  His son Chauncey used a portion of that fortune to create a family retreat, which he named “Wethersfield.”  He purchased art, built a mansion suitable for displaying it, and installed gardens in the style of 17th-century Italy.  A family foundation was created to manage the family’s money and implement their philanthropy.

In 1998 the family foundation was worth $103 million.  Unfortunately, there were no family members on the board of trustees to provide proper oversight.  The trustees made grants to institutions that had nothing to do with the Wethersfield Estate, including their own alma maters, and the ex-president directed over $700,000 for his personal benefit.  By April 2015 the value of the foundation had shrunk to $31 million, after 14 straight years in which grants made by the foundation exceeded its revenue.

The heirs finally woke up and brought suit against the trustees, and eventually, they won a settlement of $4.4 million.  The trustees were replaced, and the board now includes family representation.  The legal settlement won’t be enough to save the Wethersfield Estate, so now the heirs have agreed to sell some of Chauncey’s art collection, including works by Degas and John Singer Sargent.  They are hoping to raise $12 million.

There is a saying: Rags to rags in three generations.  The saying is usually interpreted to mean that the first generation creates wealth; the second conserves it, and the third squanders it.  In this case, it was the untrustworthy managers who squandered the fortune, but the third generation did their part by failing to supervise their advisors properly.

© 2017 M.A. Co.  All rights reserved.

The Wrong IRA Beneficiary?

Sometimes mistakes in an estate plan can be repaired after death. Sometimes not.

Charles Sukenik executed his will on November 4, 2004. His estate was to be divided between his surviving spouse, Vivian, and the couple’s private foundation.  His revocable trust was restated at the same time, giving Vivian certain real property and the balance to the foundation.

Roughly five years later, in 2009, Charles designated Vivian as the beneficiary of his IRA, worth some $3.2 million. 

When Charles died in 2013, the heirs discovered that the estate plan was not very tax efficient. Vivian was looking at potential income taxes of $1.6 million on the IRA distributions.  She proposed to reform the estate plan, giving the IRA to the private foundation in exchange for other estate assets of equal value.  The charity was not opposed to the plan.  Being tax exempt, the new plan would make the income tax obligation that comes with an inherited IRA disappear.  Certainly, this approach would more effectively implement Charles’ testamentary intentions.

The Court couldn’t swallow this one, because “the reformation requested here is prompted by neither a drafting error nor a subsequent change in law. Several years after executing his will and trust, decedent himself thwarted the tax efficiency of his own estate plan by making [Vivian] the beneficiary of the IRA. There is nothing in the record indicating why, after executing these estate planning instruments, [Charles] chose to leave additional assets to his wife in this manner or why, in the four years before his death, he did not take steps to cure the unfavorable tax consequences of his choice of IRA beneficiary.”

The Court concluded that if reformation were allowed in these circumstances, the decision “would expand the reformation doctrine beyond recognition and would open the floodgates to reformation proceedings aimed at curing any and all kinds of inefficient tax planning.”

Did Charles have any understanding of the tax time bomb that he included in his estate plan?  It appears probable that he did not consult his attorney before designating his wife as his IRA beneficiary, which is an ordinary, everyday occurrence.  But he should have.

© 2017 M.A. Co.  All rights reserved.

More Trouble for Long-Term Care Insurers

More than 400,000 long-term-care insurance policies were sold in 1992, according to figures published by The Wall Street Journal.  These are the policies that help seniors cover the costs of nursing home stays at the end of life.  At least 400,000 additional policies were purchased each year in the subsequent ten years, peaking at about 750,000 in 2002.

Then sales collapsed, and never again reached the 400,000 level. Last year, reportedly only 105,000 such policies were sold.  What’s more, two Pennsylvania providers of long-term care insurance were on the verge of being liquidated in December.

The need for long-term-care insurance never has been greater.  What happened to the market?

Actuarial errors

A series of actuarial errors were made when long-term-care insurance was first introduced.  The most important of these was the “lapse rate,” the number of policies that will be terminated without ever paying a benefit. This occurs either because the insured stops paying premiums or the insured dies without making a claim.  The actuaries chose a fairly conservative lapse rate of 5%.  At that rate, if 1,000 policies were sold in year one, only 400 would be in force 20 years later.  As it turned out, the buyers of long-term-care insurance thought of their purchase primarily as an investment, not as insurance, and so the lapse experience was closer to 1%, which implies that 800 of every 1,000 policies still will be in force after 20 years.  That led to far higher payouts than projected.

When the unanticipated expenses started to pour in, insurance companies had to raise their rates.  However, in many cases, state insurance regulators would not approve the full amounts requested for existing policyholders.

Two more errors compounded the damage.  The first is that medical advances have lengthened life expectancies, which, in turn, increases the likelihood of making a claim on a long-term-care insurance policy. The second is that the actuaries generally assumed a 7% rate of return on the invested premiums on these policies.  That assumption was fine in the 1990s, but interest rates have been at historic lows since 2008.  When long-term-care policies are priced today, the projected rate of return on premiums is likely to be 2% to 3%, which drives premium costs still higher.

Getting coverage

If you already have a long-term-care policy, you probably want to hang on to it.  For the most part, those who have purchased these policies have profited from them.

New long-term-care policies still are available, although they are more expensive than in the past, and the terms may be less favorable than older policies.  Insurance companies are now using much more conservative actuarial assumptions.

Hybrid policies that combine life insurance with long-term-care coverage have emerged, and they have proved popular as well.

The poorest seniors may have the costs of their long-term care picked up by the government through Medicaid.  The wealthiest may be able to cover the costs without insurance—even though a year’s stay in a nursing home can easily run to $100,000 or more.

For everyone in the middle, planning is necessary. Despite the price increases, long-term-care insurance will prove an important part of that plan for many affluent families.

© 2017 M.A. Co.  All rights reserved.

Retirement Tax Trap

Dear Garden State Trust Company: 

My wife and I have been spending our winters in our Florida home for several years.  What steps do I have to take to change my residency to Florida, so I can stop paying income taxes in my home state?  —FLYING THE COOP

Dear Flying: 

This is a complicated problem, with some angles that you may have overlooked.

My friend Jerry and his wife, Liz, successfully became Florida residents.  About five years later, they decided to sell their lifelong home here.  They had paid $30,000 for it 35 years ago and were told that it now was worth $400,000.  They were excited by the prospective windfall.  Then their accountant gave them the bad news.

Because Jerry and Liz were now Florida residents, their northern home was no longer their principal residence.  Accordingly, the sale of that home would not be eligible for the exclusion from taxes on the capital gain for the sale of a principal residence (up to $500,000 for married couples).  The entire $370,000 profit would be taxed, and the bill might easily come to $100,000.

They immediately took the home off the market.

You should see a lawyer before taking the step of formally changing your residency.

Do you have a question concerning wealth management or trusts? Send your inquiry to contact@gstrustco.com.

(March 2017)

© 2017 M.A. Co.  All rights reserved.