How Does the SECURE Act Change Your Estate Plan? – Annapolis and Towson Estate Planning

The SECURE Act has made big changes to how IRA distributions occur after death. Anyone who owns an IRA, regardless of its size, needs to examine their retirement savings plan and their estate plan to see how these changes will have an impact. The article “SECURE Act New IRA Rules: Change Your Estate Plan” from Forbes explains what the changes are and the steps that need be taken.

Some of the changes include revising wills and trusts which include provisions creating conduit trusts that had been created to hold IRAs and preserve the stretch IRA benefit, while the IRA plan owner was still alive.

Existing conduit trusts may need to be modified before the owner’s death to address how the SECURE Act might undermine the intent of the trust.

Rethinking and possibly completely restructuring the planning for the IRA account may need to occur. This may mean making a charity the beneficiary of the account, and possibly using life insurance or other planning strategies to create a replacement for the value of the charitable donation.

Another alternative may be to pay the IRA balance to a Charitable Remainder Trust (CRT) on death that will stretch out the distributions to the beneficiary of the CRT over that beneficiary’s lifetime under the CRT rules. Paired with a life insurance trust, this might replace the assets that will ultimately pass to the charity under the CRT rules.

The biggest change in the SECURE Act being examined by estate planning and tax planning attorneys is the loss of the “stretch” IRA for beneficiaries inheriting IRAs after 2019. Most beneficiaries who inherit an IRA after 2019 will be required to completely withdraw all plan assets within ten years of the date of death.

One result of the change of this law will be to generate tax revenues. In the past, the ability to stretch an IRA out over many years, even decades, allowed families to pass wealth across generations with minimal taxes, while the IRAs continued to grow tax tree.

Another interesting change: No withdrawals need be made during that ten-year period, if that is the beneficiary’s wish. However, at the ten-year mark, ALL assets must be withdrawn, and taxes paid.

Under the prior law, the period in which the IRA assets needed to be distributed was based on whether the plan owner died before or after the RMD and the age of the beneficiary.

The deferral of withdrawals and income tax benefits encouraged many IRA owners to bequeath a large IRA balance completely to their heirs. Others, with larger IRAs, used a conduit trust to flow the RMDs to the beneficiary and protect the balance of the plan.

There are exceptions to the 10-year SECURE Act payout rule. Certain “eligible designated beneficiaries” are not required to follow the ten-year rule. They include the surviving spouse, chronically ill heirs and disabled heirs. Minor children are also considered eligible beneficiaries, but when they become legal adults, the ten year distribution rule applies to them. Therefore, by age 28 (ten years after attaining legal majority), they must take all assets from the IRA and pay the taxes as applicable.

The new law and its ramifications are under intense scrutiny by members of the estate planning and elder law bar because of these and other changes. Speak with your estate planning attorney to review your estate plan to ensure that your goals will be achieved in light of these changes.

Reference: Forbes (Dec. 25, 2019) “SECURE Act New IRA Rules: Change Your Estate Plan”

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

Is There Estate Tax on the Property I Inherited? – Annapolis and Towson Estate Planning

The vast majority of those who inherit real estate don’t end up paying any taxes on the property. However, there are some instances where estate or inheritance taxes could be assessed on inherited real estate. Motley Fool’s recent article, “Do You Have to Pay Estate Tax on Real Estate You Inherit?” provides a rundown of how estate taxes work in the U.S. and what it means to you if you inherit or are gifted real estate assets.

An estate tax is a tax applied on property transfers at death. A gift tax is a tax levied on property transfers while both parties are alive. An inheritance tax is assessed on the individual who inherits the property. For real estate purposes, you should also know that this includes money and property, and real estate is valued based on the fair market value at the time of the decedent’s death.

Most Americans don’t have to worry about estate taxes because we’re allowed to exclude a certain amount of assets from our taxable estates, which is called the lifetime exemption. This amount is adjusted for inflation over time and is $11.58 million per person for 2020. Note that estate taxes aren’t paid by people who inherit the property but are paid directly by the estate before it is distributed to the heirs.

The estate and gift taxes in the U.S. are part of a unified system. The IRS allows an annual exclusion amount that exempts many gifts from any potential transfer tax taxation. In 2020, it’s $15,000 per donor, per recipient. Although money (or assets) exceeding this amount in a given year is reported as a taxable gift, doesn’t mean you’ll need to pay tax on them. However, taxable gifts do accumulate from year to year and count toward your lifetime exclusion. If you passed away in 2020, your lifetime exclusion will be $11.58 million for estate tax purposes.

If you’d given $3 million in taxable gifts during your lifetime, you’ll only be able to exclude $8.58 million of your assets from estate taxation. You’d only be required to pay any gift taxes while you’re alive, if you use up your entire lifetime exemption. If you have given away $11 million prior to 2020 and you give away another $1 million, it would trigger a taxable gift to the extent that your new gift exceeds the $11.58 million threshold.

There are a few special rules to understand, such as the fact that you can give any amount to your spouse in most cases, without any gift or estate tax. Any amount given to charity is also free of gift tax and doesn’t count toward your lifetime exemption. Higher education expenses are free of gift and estate tax consequences provided the payment is made directly to the school. Medical expense payments are free of gift and estate tax consequences, if the payment is made directly to the health care provider.

Remember that some states also have their own estate and/or inheritance taxes that you might need to consider.

States that have an estate tax include Connecticut, Illinois, Maine, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont and Washington. The states with an inheritance tax are Iowa, Kentucky, Nebraska, New Jersey and Pennsylvania. Maryland has both an estate and an inheritance tax. However, there are very few situations when you would personally have to pay tax on inherited real estate.

Estate tax can be a complex issue, so speak with a qualified estate planning attorney.

Reference: Motley Fool (December 11, 2019) “Do You Have to Pay Estate Tax on Real Estate You Inherit?”

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What Should I Know About Being an Executor? – Annapolis and Towson Estate Planning

You’re named executor because someone thinks you’d be good at collecting assets, settling debts, filing estate tax returns where necessary, distributing assets and closing the estate.

However, Investopedia’s article from last summer, “5 Surprising Hazards of Being an Executor,” explains that the person named as an executor isn’t required to accept the appointment. Prior to agreeing to act as an executor, you should know some of the hazards that can result, as well as how you can address some of these potential issues, so that being an executor can run smoothly.

  1. Conflicts with Co-Executors. Parents will frequently name more than one adult child as co-executor, so they don’t show favoritism. However, for those who are named, this may not work well because some children may live far way, making it difficult to coordinate the hands-on activities, like securing assets and selling a home. Some adult children may also not have the financial ability to deal with creditors, understand estate tax matters and perform effective accounting to satisfy beneficiaries that things have been properly handled. In addition, multiple executors mean additional paperwork. Instead, see if co-executors can agree to allow only one to serve, and the others will waive their appointment. Another option is for all of the children to decline and allow a bank’s trust department to handle the task. Employing a bank to serve instead of an individual as executor can alleviate conflicts among the children and relieves them from what could be a very difficult job.
  2. Conflicts with Heirs. It’s an executor’s job to gather the estate assets and distribute them according to the deceased person’s wishes. In some cases, heirs will land on a decedent’s home even before the funeral, taking mementos, heirlooms and other valuables. It’s best to secure the home and other assets as quickly as possible. Tell the heirs that this is the law and share information about the decedent’s wishes, which may be described in a will or listed in a separate document. This Letter of Last Instruction isn’t binding on the executor but can be a good guide for asset disbursements.
  3. Time-Consuming Responsibilities. One of the major drawbacks to be an executor is the amount of time it takes to handle responsibilities. For example, imagine the time involved in contacting various government agencies. This can include the Social Security Administration to stop Social Security benefits and, in the case of a surviving spouse, claim the $255 death benefit. However, an executor can permit an estate attorney to handle many of these matters.
  4. Personal Liability Exposure. The executor must pay taxes owed, before disbursing inheritances to heirs. However, if you pay heirs first and don’t have enough funds in the estate’s checking account to pay taxes, you’re personally liable for the taxes. Explain to heirs who are chomping at the bit to receive their inheritances that you’re not allowed to give them their share, until you’ve settled with creditors, the IRS and others with a claim against the estate. You should also be sure that you understand the extent of the funds needed to pay what’s owed.
  5. Out-of-Pocket Expenses. An executor can receive a commission for handling his duties. The amount of the commission is typically determined by the size of the estate (e.g., a percentage of assets). However, with many cases, particularly smaller estates and among families, an executor may waive any commission. You should pay the expenses of the estate from an estate checking account and record all out-of-pocket expenses, because some of these expenses may be reimbursable by the estate.

Being an executor can be a challenge, but somebody must do it. If that person’s you, be sure to know what you’re getting into before you agree to act as an executor.

Reference: Investopedia (June 25, 2019) “5 Surprising Hazards of Being an Executor”

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

How Do I Plan for My Incapacity? – Annapolis and Towson Estate Planning

The Post-Searchlight’s recent article, “How to go about planning for incapacity,” advises that planning ahead can make certain that your health-care wishes will be carried out, and that your finances will continue to be competently managed.

Incapacity can strike at any time. Advancing age can bring dementia and Alzheimer’s disease, and a serious illness or accident can happen suddenly. Therefore, it’s a real possibility that you or your spouse could become unable to handle your own medical or financial affairs.

If you become incapacitated without the proper plans and documentation in place, a relative or friend will have to petition the court to appoint a guardian for you. This is a public procedure that can be stressful, time consuming and costly. In addition, without your directions, a guardian might not make the decisions you would have made.

Advance medical directives. Without any legal documents that state your wishes, healthcare providers are obligated to prolong your life using artificial means, if necessary, even if you really don’t want this. To avoid this happening to you, sign an advance medical directive. There are three types of advance medical directives: a living will, a durable power of attorney for health care (or health-care proxy) and a Do Not Resuscitate order (DNR). Each of these documents has its own purpose, benefits and drawbacks, and may not be effective in some states. Employ an experienced estate planning attorney to prepare your medical directives to make certain that you have the ones you’ll need and that all documents are consistent.

Living will. This document lets you stipulate the types of medical care you want to receive, despite the fact that you will die as a result of the choice. Check with an estate planning attorney about how living wills are used in your state.

Durable power of attorney for health care. Also called a “health-care proxy,” this document lets you designate a representative to make medical decisions on your behalf.

Do Not Resuscitate order (DNR). This is a physician’s order that tells all other medical staff not to perform CPR, if you go into cardiac arrest. There are two types of DNRs: (i) a DNR that’s only effective while you are hospitalized; and (ii) and DNR that’s used while you’re outside the hospital.

Durable power of attorney (DPOA). This document lets you to name an individual to act on your behalf. There are two types of DPOA: (i) an immediate DPOA. This document is effective immediately; and (ii) a springing DPOA, which isn’t effective until you’ve become incapacitated. Both types end at your death. Note that a springing DPOA isn’t legal in some states, so check with an estate planning attorney.

Incapacity can be determined by (i) physician certification where you can include a provision in a durable power of attorney naming one or more doctors to make the determination, or you can state that your incapacity will be determined by your attending physician at the relevant time; and (ii) judicial finding where a judge is petitioned to determine incapacity where a hearing is held where medical and other testimony will be heard.

Reference: The Post-Searchlight (December 13, 2019) “How to go about planning for incapacity”

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What Does an Estate Planning Attorney Really Do? – Annapolis and Towson Estate Planning

Vents Magazine’s recent article, “Understanding What an Estate Planning Attorney Does,” explains that estate planning is a legal set of instructions for your family about how to distribute your wealth and property after you die. Estate planning attorneys make sure the distribution of property happens according to the decedent’s will.

An estate planning attorney can provide legal advice on how to prepare your will after you pass away or in the event that you experience mental incapacity. She will have all the information and education on all the legal processes, beginning with your will and moving on to other important estate planning documents. She will also help you to understand estate taxes.

An estate planning attorney will also help to make certain that all of your savings and property are safe and distributed through the proper legal processes.

Estate planning attorneys can also assist with the power of attorney and health care directives. These documents allow you to designate an individual to decide issues on your behalf, in the event that you become mentally incapable of making decisions for yourself. They can also help you with a guardian who will look after your estate.

It’s important that you select the right estate planning attorney to execute the legal process, as you’ve instructed in your estate plan. You should only retain an attorney with experience in this field of law because other legal counsel won’t be able to help you with these issues—or at least, they may say they can, only to find out later that they’re not experienced in this area.

You also want to feel comfortable with your estate planning attorney because you must disclose all your life details, plans and estate issues, so she can create an estate plan that’s customized to your circumstances.

If you choose the right attorney, it will save you money in the long run. She will help you save from all the estate taxes and make all the processes smooth and easy for you and your loved ones.

Reference: Vents Magazine (December 12, 2019) “Understanding What an Estate Planning Attorney Does”

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Get Withdrawals from Retirement Accounts Right to Avoid Harsh Penalties – Annapolis and Towson Estate Planning

The next part of retirement is the “distribution” phase. That means spending those assets you’ve worked so hard to accumulate. Planning for this phase doesn’t always get the same attention as saving. However, it is just as important.

Forgetting to take required minimum distributions (RMDs) from IRAs by the due date, brings a nasty penalty: 50%. Let’s say you were supposed to withdraw $4,000 and didn’t. You’ll need to write a check to Uncle Sam for $2,000. To avoid this and other surprises, says Yahoo Finance in “Retirees Should Know These 3 Facts About Required Minimum Distributions.”

The IRS rule requires account owners to withdraw a specific amount from any qualified accounts, when the owners reach 70½. The reason is to make sure that people take the money, so the government gets tax revenues. Without it, people would live from other income and never pay taxes, leaving money to family and keeping it from the IRS.

Here’s what retirement account owners need to know about RMDs:

Retirement Accounts with RMDs include: IRAs 401(k)s,. 457 plans, TSPs, 403(b)s, SEP, Simple IRAs.

Required Withdrawals begin by April 1 of the year following the calendar year in which you turn 70½. For every subsequent year after a required beginning date, RMDs must be taken by December 31. Roth IRAs do not have RMDs.

How do you Calculate the RMD Amount? This can get a little tricky, so don’t hesitate to ask your financial advisor or CPA for help. Divide your earlier year’s December 31 retirement account balance by a “distribution period,” based on your age. Here is an example, let’s say that Marcey is 70 and must take her first RMD in the year she reaches 70½. The year-end balance of her IRA was $100,000. Her “distribution period” factor is 27.4. Dividing $100,000 by 27.4 is $3,649.63. That’s the amount she must take for the calendar year in which she turns 70½.

Reference: Yahoo Finance (December 13, 2019) “Retirees Should Know These 3 Facts About Required Minimum Distributions”

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How to Spot Problems at Nursing Homes – Annapolis and Towson Estate Planning

The best time to shop for a nursing home, is when you do not need one. If you wait until you can no longer safely or comfortably live on your own, you probably will not be in a position to do a lot of legwork to investigate facilities. Do your research well ahead of time, so you know the nursing homes in your area that provide high-quality care and, more importantly, the ones that have significant problems.

As you evaluate and compare facilities, you need to know how to spot problems at nursing homes. The marketing brochure, website and lobby might be lovely, but you should base your decision about a long-term care facility on much more data than those things. Here are some tips on how to dig for possible problems at nursing homes:

  • Online search. Check out the nursing home’s website to get an overview of the services it offers and the industry affiliations or certifications it has. Look at the daily menus to see if the meals are nutritious and have enough variety. Most people would not enjoy eating the same main course two or three times a week. Look at the activities calendar to see if you would be happy with the planned social events. On some websites, you can view the floor plans of the resident rooms.
  • Ask your primary care doctor to name a few facilities he would recommend for his parents, and those where he would not want them to live.
  • Local Office on Aging location. Every state has an Office on Aging. Contact them to get as much information as you can about safety records, injuries, deaths, regulation violations and complaints about local nursing homes.
  • Your state’s Long-term Care Ombudsman (LCO). Every state also has an Ombudsman who investigates allegations against nursing homes and advocates for the residents. Your state LCO should have a wealth of information about the facilities in your area.
  • State Online Database or Reporting System. Some states have online databases or collect reports about nursing homes.
  • Medicare’s Nursing Home Compare website. Medicare maintains an online tool, Nursing Home Compare, that provides detailed information on nursing homes. Every nursing home that gets any funding from Medicare or Medicaid is in this database. You can enter the name of a specific nursing home or search for all the facilities in a city or zip code. The tool includes information about abuse at long-term care facilities. On the webpage, you can explore the Special Focus Facility section to find nursing homes with a history of problems.
  • Word of mouth. Ask your friends, relatives and neighbors to recommend a quality nursing home. Personal experience can be extremely valuable.
  • Make a short list of the top candidates. After you collect as much information as you reasonably can, narrow your options down to four or five facilities that best meet your needs and preferences.
  • Visit your top choices. There is no substitute for going to a nursing home and checking it out in person. Pay attention to the cleanliness of the place throughout, not just in the lobby. Give the facility the “sniff” test. Determine whether they use products to mask unpleasant odors, instead of cleaning thoroughly. See whether the residents are well-groomed and wearing fresh, clean clothes. Observe the interaction of the staff with the residents. Notice whether people who need assistance at mealtime, get the help they need without having to wait.
  • Take online reviews with a grain of salt. Fake reviews are all over the internet. If you see a nursing home with only a few reviews, and they are all five stars, be skeptical.

Once you gather this information, you will be ready in the event you need to stay in a nursing home for a short recuperation from surgery or longer term.

References:

AARP. “Finding a Nursing Home: Don’t Wait Until You Need One to Do the Research.” (accessed December 5, 2019) https://www.aarp.org/caregiving/basics/info-2019/finding-a-nursing-home.html

CMS. “Find a nursing home.” (accessed December 5, 2019) https://www.medicare.gov/nursinghomecompare/search.html

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

How is My Retirement Income Taxed? – Annapolis and Towson Estate Planning

Based on the state in which you retire, state income taxes could vary by thousands of dollars. However, as a recent Kiplinger article, “State Taxes on Retirees Differ by Types of Retirement Income,” tells us, it’s not just a state’s tax rate that matters. The type of income you get in retirement frequently has a bigger impact on your state taxes than your tax rate, because each state has its own method of taxing specific types of retirement income.

Let’s look at the taxes on Social Security benefits. The federal government can tax up to 85% of Social Security benefits, but most states don’t tax Social Security benefits. There are seven states—Alaska, Florida, Nevada, South Dakota, Texas, Washington and Wyoming—that don’t tax Social Security benefits because they don’t have any income tax. New Hampshire and Tennessee only tax interest and dividends. Social Security benefits are exempt from tax in DC and 28 states: Alabama, Arizona, Arkansas, California, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Virginia, and Wisconsin.

That leaves 13 states where part of Social Security benefits may be taxable. New Mexico, Utah, and West Virginia currently tax Social Security benefits to the same extent they are taxed on federal returns, but West Virginia plans to phase out its tax on Social Security benefits in 2020. Taxation of Social Security benefits in the rest of the states—Colorado, Connecticut, Kansas, Minnesota, Missouri, Montana, Nebraska, North Dakota, Rhode Island, and Vermont—is based on your income and, in many instances, on your filing status. Some of these states may also exempt Social Security for taxpayers under certain income thresholds.

As far as retirement plan payouts, state taxation of payouts from retirement plans, such as pensions, IRAs, and 401(k)s, can be more complicated. States without an income tax or that just tax interest and dividends don’t tax retirement plan payouts. However, with the other states, it’s all over the board. Mississippi and Pennsylvania are the most generous—they typically don’t tax any retirement income. However, California, D.C., Nebraska, and Vermont offer few or no tax breaks for retirement plan payouts. In some cases, the type of retirement plan involved makes a difference.

Reference: Kiplinger (October 28, 2019) “State Taxes on Retirees Differ by Types of Retirement Income”

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

How Do I Decide to Retire or Keep Working? – Annapolis and Towson Estate Planning

Fed Week’s article, “Many Factors Affect Choice of Retiring or Continuing to Work,” says that the Congressional Budget Office found that after declining for decades, the share of those ages 55 to 79 who were employed began to go up in the mid-1990s. In 1995, 33% of those in that age range worked, but by 2018, 44% did. The Congressional Budget Office pinpointed some factors that are motivating people to work longer. Let’s look at some of these:

  • Those with a college degree are more apt to be employed at any age than those without one. The percentage of individuals with degrees has been increasing over time, especially among women.
  • From the mid-1990s to 2018, the health of people ages 55 to 79 improved significantly. This shows the gains in self-reported measures and longevity. Improvements in health impact employment, both because healthier people are physically able to work longer and because increased life expectancy may motivate people to spend more years working, in order to pay for their retirement.
  • Job Characteristics. Over time, fewer people worked in blue-collar jobs. Due to the fact that blue-collar jobs typically have greater physical demands than other jobs—and workers in those jobs tend to retire earlier—that decrease impacts some of the rise in employment of people 55 to 79.
  • Increased Employment of Women. Research has shown that the increased employment and delayed retirement of married women over the period, might have contributed to the increased employment of married men because many couples retire at the same time.
  • Employer Policies. The move from defined benefit to defined contribution retirement plans lowers the incentive to retire at a particular age. The added burden for workers to save on their own also creates more motivation to work longer. Private sector companies have also cut back on health insurance coverage for their retirees. Only 37% of workers now have employer-based health insurance that covers retirees between 55 and 64, compared with 69% in 1992. As a result, workers have an incentive to work at least until 65, when they become eligible for Medicare.

Reference: Fed Week (November 7, 2019) “Many Factors Affect Choice of Retiring or Continuing to Work”

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Should I Use a Home Equity Loan to Float my Retirement? – Annapolis and Towson Estate Planning

Many retirees—and those nearing retirement—have put much of their savings in traditional IRAs or 401(k)s, which are tax-deferred methods for accumulating wealth. In addition, taxpayers may decide to use other tax-deferred accounts to avoid interest, dividends, and capital gains from spilling into their tax returns. These strategies can help taxpayers decrease income and taxes.

However, Kiplinger’s recent article, “How You Can ‘TAP’ into Home Equity to Help Keep Your Retirement Stable,” says that once we “turn on the faucet” and withdraw money from these tax-deferred accounts, additional income will have to be claimed on our tax returns. Instead, retirees can make moves that will help them reduce taxes. A lesser-known tool to look at for tax-free income is a home equity line of credit, or HELOC, on your home.

Let’s examine two scenarios in which a HELOC may make sense in retirement:

An IRA drawdown. Let’s say that a typical married retired couple wants to stay in the 12% tax bracket as joint filers. They can withdraw up to $78,950 of taxable income from their IRAs to stay in this bracket in 2019. That amount goes up to $103,350, after adding the standard deduction of $24,400. Then, for any additional funds they may need during the year, they can use a HELOC. For example, if they take $15,000 out, they will actually receive $15,000 tax-free. However, if they take the same amount from their IRA, it would move them into the 22% tax bracket. As a result, they’d owe $3,300 in federal taxes, in addition to any state or local income taxes. Therefore, they only receive about $10,000 after taxes from their IRA withdrawal. The HELOC is tax-free, and the interest rate charged on a HELOC is generally low at this point. Depending on your purpose for the money, that interest may be tax deductible, and repayments can be planned over a multiyear term to be covered by future IRA distributions or other investment income. This spreads out the tax impact to continuously stay under tax bracket thresholds, keeping as much of your money in your hands as possible.

Emergency money. Unexpected expenses can arise, and if you don’t have funds available in a checking or savings account, the emotion of a stressful emergency may drive you to make impulsive (and costly) financial decisions. Instead of using a high-interest credit card or cashing out investments, a HELOC can be a wise move. Note that there are some HELOC disadvantages. The interest rate is variable, which means the monthly payment can be unpredictable, especially during times of rising interest rates.

There are other ways to use the equity in your home to create cash flow in retirement, but a HELOC may be best for some retirees, based on its flexibility for scenarios, such as future downsizing or the potential need for the cost of assisted living facilities down the road. A HELOC can be a very useful tool for a proactive and comprehensive cash-flow plan in retirement.

Reference: Kiplinger (October 8, 2019) “How You Can ‘TAP’ into Home Equity to Help Keep Your Retirement Stable”

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys