Why the wise wealthy need a corporate trustee

Sunday's New York Times offered an interesting discussion of incentive trusts, the pros and cons.

The article quotes a New York estate-planning attorney who gives sound advice about choosing a trustee:

A trust that offers a dollar for every dollar earned can be unfair, the critics say, because it gives big rewards to already-successful business people and much smaller amounts to heirs who may work just as hard but have chosen careers as, say, artists or teachers. (And unless other provisions are made in the trust, homemakers and volunteers may get nothing.) Critics also say that some incentives may go so far as to pay children to provide their parents with grandchildren.

Treating siblings differently can lead to unintended consequences, said Ralph M. Engel, an estate planning lawyer in the New York City office of Sonnenschein Nath & Rosenthal, based in Chicago. "The problem is that there are too many what-ifs," he said. "What if one sibling can do something and the other can't? What if one becomes disabled or depressed or has an accident?"

Instead, Mr. Engel advises clients to write flexible trusts and to be careful in choosing trustees, who make distribution decisions.

"Pick a trustee who has the guts to say no," he said. Professional trustees, like experienced banks or trust companies, may not be easily swayed by emotional appeals. ***

After 32 years, a royal prince’s estate is finally taxed (and how!)

Queen Elizabeth's uncle, Prince Henry, Duke of Gloucester, was the last royal prince to have his baby picture taken on Queen Victoria's lap. He died in 1974, leaving an estate taxable at the rate (there was a real Labour government in those days, remember) of 75%.

Happily, a “heritage property” election allowed the Duke's executors to defer 75% taxation until the death of Princess Alice, the Duke's widow. She died in 2004, at the age of 102.

To pay the tax, Henry's son, the present Duke, put the family treasures (including Henry's christening present from Queen Victoria) up for auction at Christie's. They fetched a handsome sum, according to this Times of London report.

Read to the end of the Times article, and you also will learn why a Maori war dance was performed in the garden at Kensington Palace.

George Foreman on trusts and investing

Quite a guy, George Foreman. Olympic gold medalist, he boxed his way to the world heavyweight championship, retired in 1977 and became a preacher, returned to the ring when his money ran low. In 1994, at age 45, he regained the world championship.

Big George made his really big money hawking George Foreman Electric Grills, initially for 40% of the profits. In 1999 he sold the rights to his name for $127.5 million in cash plus $10 million of stock in the grill-maker, Salton Inc.

In a recent Wall Street Journal interview, Foreman talked a bit about money matters. A few excepts:

On why one of his best investments was a trust

When I first started making money from boxing, I put 25% of all my earnings into a trust fund. I made other investments during that time, in cattle and gas wells, that I lost my shirt on, but I always had the trust fund. When I retired to become a minister, I survived on that money. I learned how important it is to have something to fall back on.

On his reaction as an investor to 9/11

After 9/11 . . . I took a lot of money and told my broker to buy American company stocks. He said, "Don't you want to wait?" and I said "No, this happened to New York for a reason, to scare us." That investment paid off greatly.

On his asset allocation

I have about 35% invested in stocks, about 35% in bonds and the rest in real estate. I like investing in real estate, it's first in my heart. I've bought and sold a lot of property all over the country. I have a ranch in east Texas that I particularly love and will keep until I pass. Then maybe my children can cash it in.

On obtaining investment advice

I have a lot of people who help me, but I've known from my boxing days that you should never rely on just one person. You must be diverse in the information you receive. Because investors are just like boxers, they get punch-drunk, they get burned out, and no one knows it until their legs start wiggling.

On his best investment

I still believe my best investment has been...the money I put into universities [to fund scholarships]. I never call them donations, I call them investments.

Please don't leave me a million!

Trusts are trendy, as we noted recently. Today's example, Karen Hube's discussion of disclaimers in the Wall Street Journal. She puts in a good word for GSTs:

If your benefactor is still alive, the most drastic option is simply to request to be left out of a will. Before going that route, however, you should consider a more flexible, if complicated, alternative: You can ask that the benefactor, rather than naming you directly as an heir, instead establish a "generation-skipping trust" -- one that names your children as the beneficiaries.

Such an arrangement offers several benefits. First, if the need ever arises, you can draw income from the trust, even though you don't own the assets outright. Second, because you don't own the assets, the property avoids estate taxes when you die. Finally, any assets that your children don't tap during their lifetimes can be passed to the subsequent generation free of all but income taxes. If you don't have children, a generation-skipping trust can be set up for another member of the younger generation in your family -- say, a niece or a nephew.

Question is, how rich does someone have to be in order to feel comfortable with the idea of saying “please don't leave me a million"? Surveys suggest that even someone with $10 million believes he or she would be more secure with more substantial wealth.

Trust of the Month for "transhumans:" The PRT

You can't take it with you, but you can come back and get it, as Wall Street Journal readers learn today from this article.

PRT stands for Personal Revival Trust. Perhaps a dozen or more have been set up. Here's how grantors like David Pizer of Arizona hope to leave millions to . . . themselves!

Like some 1,000 other members of the "cryonics" movement, Mr. Pizer has made arrangements to have his body frozen in liquid nitrogen as soon as possible after he dies. In this way, Mr. Pizer, a heavy-set, philosophical man who is 64 years old, hopes to be revived sometime in the future when medicine has advanced far beyond where it stands today.

And because Mr. Pizer doesn't wish to return a pauper, he's taken an additional step: He's left his money to himself.

With the help of an estate planner, Mr. Pizer has created legal arrangements for a financial trust that will manage his roughly $10 million in land and stock holdings until he is re-animated. Mr. Pizer says that with his money earning interest while he is frozen, he could wake up in 100 years the "richest man in the world."

The Journal reports that Wachovia is trustee of at least one PRT. A Wachovia estate planner recently discussed the concept at the First Annual Colloquium on the Law of Transhuman Persons in Florida.

Trust of the Month: The QPRT

Thanks to this New York Times article, a lot of trust clients and prospects should be asking about Qualified Personal Residence Trusts.

Does anyone care to comment on how QPRTs work out in practice?

If a house passes to several children, for instance, do they easily agree on what to do with the real estate?

If the parents stay on as renters after the end of the QPRT term, are the kids willing to spend some of the rent on maintaining the place in the manner to which the parents have been accustomed? Or do the parents simply keep paying for upkeep, looking at the payments as added "wealth transfers"?

“A startling new retirement-planning need”

Ameriprise (the old IDS that recently severed ties with American Express) has sponsored a new study of retirement.

Most interesting finding: People nearing or in retirement worry a lot about their children's lack of financial savvy.

Coddling could be one reason. The study reports that the number of households with children over age 18 living at home increased by 69% from 2000 to 2004! Also, Boomers tend to feel they've been poor role models when it comes to demonstrating financial responsibility.

I can think of a couple of other reasons for parental worry:

• Couples who delayed having children are more likely to retire before their kids mature.

• Today's young adults tend to carry a far higher debt burden, student loans and credit-card debt, that built up during their college years.

The Ameriprise study, conducted by Ken Dychtwald and Harris Interactive, also reveals regional differences. Westerners, it seems, are more likely to prepare for retirement than easterners.

Why Apple is golden

Last spring the first post on the Trust and Wealth Management Marketing blog concerned Apple computer. So it's none too soon to go slightly off-topic again.

For Christmas your Senior Assistant Blogger received an iPod. Not a video one, not even a Nano. Just a big, old, monochrome-screen iPod. I was expecting something clunky. Instead, there in my hand was a white-and-silver art object of surpassing beauty, demanding to be caressed and cherished. Wow!

Now I see why Apple's market value has soared past Dell's. And why Jonathan Ive, the London-born designer of the iPod, was just honored by his Queen.

The lesson of the iPod, I guess, is that sometimes form is function, and I'm not sure how that applies to marketing financial services. But I do detect a useful reminder in Steve Jobs’ successful marketing of Macintosh computers.

The new "Intel inside" iMacs Steve announced last week run twice as fast as the previous G5 model. The new MacBook laptop is said to run four or five times as fast as the G4 Powerbook it replaces. Yet it wasn't that long ago that Steve was tweaking test statistics to demonstrate that the old models were just as fast as Intel PCs for practical purposes. And the old models were so cool, so convenient and relatively reliable to use, that folks were willing to believe the hyperbole. Macs survived and began to prosper.

Reminds me of our old friend Knute Alphanot, at Lake Woebegone B&T. His trust department's investment performance is never more than mediocre (though rarely less than). But Knute has a winning way of adjusting his returns for volatility, currency fluctuations, and maybe even windage. By the time he's through, he can show his clients he's always above average. Top Quartile, usually.

OK, maybe most of the clients don't believe him. But as many a consultant has pointed out, you can get away with merely decent investment performance if you do the very best you can for your clients in all other respects. Knute's department runs like a Rolex, and client communications — from thoughtful notes and phone calls to newsletters and seminars — are never neglected.

Moral: You don't need great investment returns as long as you offer your clients insanely great service. Make them feel as cherished as . . . an iPod!

P.S. I hope your investment people bought Apple, not Dell!

Notes on the Heckerling Institue

The last time I went to this conference was more than 20 years ago, and it was then always known as the Miami Institute. It’s been renamed the Heckerling Institute since then, and it long ago outgrew the facilities at Bar Harbor. This year saw some 2,600 registrants. I think that $850 is a tremendous bargain for a five-day conference, but on the other hand at these volumes they collect $2.2 million in registration fees.

The main lecture hall seated, by my rough estimate, 2,000 people, which, although enormous, was inadequate. So there were two large video overflow halls. They had three tripod-mounted video cameras aimed at the podium that seemed to have servo motors to permit remote adjustment. Someone was flipping among the three images as appropriate, and the video was simulcast on enormous screens, two in the main hall and one in each of the overflow rooms. The video was so good I found myself watching it instead of the speaker, even when I was in the main room.

With so many attendees, a second hotel was pressed into service, about 1/4 mile away, and shuttles ran between the two hotels. With a crowd this large, the breakout sessions require rooms that can seat 500 people, and the Fontainebleau didn’t have enough rooms of that size, so some of the breakouts were held at the other hotel.

Finally, the main sessions were simulcast into the individual rooms in both hotels, so one didn’t have to rush down to see any of the presentations. And in fact, many didn’t, because although the rooms always seemed full, they never seemed crowded, approaching their capacity.

Because of this fact, and the split between the two hotels, one of the exhibitors I spoke with complained that although registration might be up, her traffic was down. That’s another thing that changed dramatically in 20 years, the vendor list is at about 120, with 146 booth spaces (about 25 used double wide booths). The booths cost $2,000 each this year, so that’s another $300,000 into the kitty.

Lots of banks exhibit, including many of our customers. DB was there, distributing the high-end newsletter that we just bid on, as was Harris, Wachovia, Bank of America, Northern Trust, HSBC, Citibank, others that aren’t popping into my head now. I have the vendor list.

The banks consistently said that they were trying to get referrals from estate planners for the full range of their private wealth management services, and so were there to network. However, the B of A guy made the additional observation that “we want to be exposed to the talent that comes here.” They want relationships with a strong, nationwide network of attorneys. If someone in Connecticut is going to relocate to Arizona, B of A wants their Connecticut banker to be able to give the client the name and number of a recommended Arizona attorney with whom to make contact. If they have this network, they should communicate with it on a regular basis, and that validates the custom newsletter pitch that we made to them about a year ago.

The pace over five days was not relaxed, but neither was it hectic. We started each day at 9, after a one-hour breakfast in the exhibit area. Each day included 1 3/4 hours for lunch, with sandwiches for sale in the exhibit area, and nothing was scheduled in the evenings (program ended at 5:15). That’s to allow for massive schmoozing. The vendors sponsored lunches for their favored planners in the hotel, typically with a speaker (Mass Mutual did one on special needs trusts, for example). They also invited selected participants to social outings in the evenings.

The final big change is that Continuing Legal Education requirements help to drive professionals to this program. More than one attorney mentioned to me that this one conference took care of his requirements for the full year. CLE is also required for the insurance guys, and they typically have to sign in for each session to prove their attendance.

In case some people have trouble transitioning away from the “Miami Institute” name, next year the conference will be in Orlando (the next three years, actually) at the Mariott World Center or something like that. Happily, the whole thing then will happen under one roof, because it is a significantly bigger facility. Plus, and this is key I suspect, it has a bigger exhibition hall. They tentatively expect that the proximity to Disney World ($5 cab ride, but no shuttle connection) will boost attendance by 10%, as families make a big vacation out of it. Some of the vendors, however, wonder if the old timers who always go to the program in Miami will really follow it to Orlando. Only time will tell.

Key estate planning issues

I was pleased to learn that Merrill Anderson has stayed well on top of the most critical issues of concern to estate planners. Number one on that list is the decoupling of state and federal taxes, which has been far more complicated than anyone every expected. I suspect that they were all shocked that any states allowed their death taxes to lapse, but 33 have. In addition, we now have “super-decoupling,” which means that not only do some states rely on the pre-2001 federal credit for state death taxes, they have independent exemption amounts. $1 million seems most common, which creates a big dilemma for the $5 million or so estate. To claim the full federal exempt amount requires payment of a state death tax of probably $100,000 or so. A few states have resolved this with the addition of a state-law based QTIP election. It gets really complicated.

What’s more, some states don’t have a gift tax, and rely on the old federal credit for state death taxes. Trouble is, the federal credit doesn’t take lifetime gifts into account (it comes in before the adjusted taxable gifts are added in to determine the tax rate). Bottom line: In the state of Virginia for sure (and probably many others), if one makes a deathbed gift of one’s entire estate, the state death tax is reduced to nothing (but there’s no effect on federal tax liability). Sounds wild, but it has been happening, and it works.

Item two is the shifting federal tax law, and planners’ growing impatience over getting a resolution. There is strong sentiment for killing carryover basis, there is an expectation that rates may be brought way down, to the 15% or 20% range. The one-year repeal is intensely unpopular, but it remains a serious possibility, given the rising tide of partisanship in DC. One school of thought says that 2005 was the year for transfer tax compromise. 2006 is an election year for Congress, and the next Presidential contest will be starting in 2007, making tax reform that much more difficult. On the other hand, the biggest tax reform perhaps in US history happened in 1986, which was a Congressional election year.

The final big item on the agenda (everything else seemed second tier to me, although there was also a ton of talk about FLPs and the Strangi case) was Circular 230. There is tremendous fear and loathing over this. I went to a breakout session on it, and I heard Roy Adams speak on it from the podium.

Roy believes that the sky is falling rapidly. He believes that the club IRS has raised is real, will be very hard to deal with, and that practitioners will have to pay close attention. On the other hand, he acknowledges that some of the routine estate planning advice given out by lawyers may be protected by one of the several exceptions to the new rules. However, on Roy’s reading of the requirements I would guess that FLPs are pretty much history, because they will require a “covered opinion letter” which Roy thinks will be so expensive to create that only the super rich can afford them.

Lou Mezzulo, on the other hand, is not so very worried (though he is concerned). He doesn’t believe that any of his written communications fall within the new requirements, because in all cases the primary purpose of his advice is not how to avoid taxes but how to pass property to the next generation (albeit on a tax-efficient basis). Even FLP communications are safe, in his analysis, because the big issue—their estate inclusion based upon IRC 2036—is determined not by his advice or the documents he drafts, but by the client’s subsequent conduct. Mezzulo said that he has not once included the 230 disclaimer on any of his client correspondence. Roy didn’t say, but I’m pretty confident that he uses a disclaimer with some regularity. However, clients tend to be upset when they read that they can’t rely upon advice for which they have paid good money.

It’s clear that Circular 230 doesn’t apply to our newsletters, which are in the nature of a treatise and not advice to specific clients. It’s equally clear that newsletter publishers are ignoring this reality and putting 230 disclaimers on their products anyway.

Conclusion

One thing is clear: Estate planning is not going away. Banks continue to recognize it as a hot button and entry path to the high net worth market. Planners are preparing for a life without the estate tax to goad people into action, and they are concerned about that. Lawyers pay more for their direct mail than bankers or brokers pay. And evidently, the public continues to have a thirst for estate planning information.

The conference was a great experience, and I should not wait 20 years before going again.

For safety's sake, choose a corporate trustee

Corporate trustees may not be perfect, but more than $1 trillion has been entrusted to their care for good reason.

Corporate safeguards protect trust funds from the temptations to which the flesh is heir to. And if these safeguards fail, the corporate entity usually has the resources to replace what its employee stole.

Here's a case, chronicled in The New York Times, where a “disinguished” individual trustee succumbed to temptation to the tune of $400,000.

Until 2001, [Roland] Amundson, 56, was a highly regarded judge who sat on the Minnesota Court of Appeals, the state's second-highest court.

Mentioned in legal circles as a likely nominee to the State Supreme Court, he was a popular public speaker, served on charitable boards in Minneapolis, and seemed to know everyone. Colleagues described him as brilliant and charming.

Then he was caught taking $400,000 from a trust fund he oversaw for a woman with the mental capacity of a 3-year-old, money he spent on marble floors and a piano for his house as well as model trains, sculpture and china service for 80, all bought on eBay.

Admundson is due to be released from confinement almost two years early. Not everyone thinks that's a good idea:

“‘I don't think he feels like he did anything wrong,’ said Karen Dove, a guardian for Mr. Amundson's victim.”

Financial Newsletters Really Work!

Of course at Merrill Anderson we've always said that newsletters provide results (even if the results are hard to quantify) but now we have independent verification. This article,Newsletter News: An informal survey of advisers shows that there are many reasons to have a newsletter. (registration required), reports that in an informal survey of fee-only and fee-based independed advisors, 72% said that having a newsletter "was an important part of their business building efforts." 65% mail quarterly, 13% monthly, the rest on some other basis.

What does a newsletter accomplish? The respondents say what we've long said at Merrill Anderson:

* Client communication and retention
* Visibility strategy
* Credibility building (reputation)
* Deliver planning and investment education
* Reinforce investment and business philosophies
* Create new business.

I love getting that third party validation.

Who busted my three-legged stool?

Remember when financial security during retirement rested on a three-legged stool?

One leg, Social Security, is shaky but doesn't matter too much to the HNW market.

The second leg, pensions, is another matter. Many highly-paid executives count on funded and unfunded employer pensions to help support a jet-set retirement lifestyle.

With pensions in jeopardy, that leaves personal savings and investments to carry the retirement load.

Sounds like professional wealth management is a must, wouldn't you say?