The Personal "Front" - Home and Retirement

An article by Lee R. Phillips, Esq., taken from the July/August issue of HBMA Billing.

Business is where you make your money and home is where you have your family and want to retire. This final installment of my series will concentrate on ensuring that you protect your personal residence and provide for your retirement. This will not be your standard retirement advisor's pep talk.

How to Protect Your Home

The personal residence may be the hardest asset to protect from your business failures, lawsuits, creditors, and other wolves. Most states have some sort of "homestead act," but the law only protects a minor value in your home ($15,000 - $60,000). If you live in Florida or Texas, you are home free, because those two states have a basically 100% homestead act: your house is protected. For the rest of us, losing the house can be an issue.

To protect your house from many of your "personal acts," a homeowner's insurance policy with a good umbrella provision is the first step. It is inexpensive insurance for the asset protection that you need to protect yourself from the kid jumping on the trampoline in your backyard, the neighbor falling on the sidewalk, your kid doing something by accident to your neighbor's house, and lots of other problems. Verify that your insurance has broad coverage, then beef it up while making sure that your policy provides replacement-value coverage for fire, theft, and other eventualities.

I hear lots of "plans" where the house is held in an LLC, corporation, land trust, or some version of the three. Those plans won't work.

Note that a land trust is different than a living revocable trust. In theory, it is a revocable trust, but the folks who are pushing them don't tell you the whole story.

You need to know that revocable trusts do not provide any asset protection. No matter how fancy the land trust advocates are, there is not going to be any asset protection using these trusts. Additionally, you will be giving up the tax benefits of your personal residence and any homestead protection that you might have.

Your personal residence is one of your most important tax shelters. You can deduct the mortgage interest payments, then you can sell the house and claim any profit tax-free – within the limits.

When you put your residence into a company (corporation, LLC, limited partnership, most land trust structures, etc.), you are giving up ownership, and the place you live is no longer your "personal residence." It is simply a building, owned by a company, that you happen to live in. You have lost all of the advantages offered by a "personal residence."

Have the Spouse Own the House

In non-community property states (the 42 common law states), if you are married and your spouse doesn't have a high-liability profession, it may be a good idea to own the house under your spouse's name. If the house is in his or her name, then if you are sued, as a business owner or for any other reason, the house is not an asset that you own. Consequently, it cannot be drawn into your fight unless your opponent can draw your spouse into the fight as well.
Note that you and your spouse may be filing a joint tax return. Therefore, you will not lose the personal residence tax shelter by having your spouse own the house.

Love has nothing to do with ownership of assets. Be smart and divide the ownership of assets in your marriage. Done properly, all of your assets aren't in one basket anymore. Have the assets owned by your living revocable trust or your spouse's living revocable trust instead of having the assets owned directly. That way, if your spouse (or partner) dies, you will not have to probate the house that you live in. Remember, a trust doesn't offer any asset protection of its own – it just avoids probate and gives you management options.

In order to ensure that an asset is not considered yours, have your spouse make all of the mortgage payments and pay the taxes on it. If your spouse is a stay at home spouse and doesn't directly earn money, you can provide him or her money by paying a salary.

I am paid from my company, deposit the check into an account that is owned by my personal trust that only I sign on, and then I write a check out of that account for 95% of the payroll amount to my wife. I am a kept man, but over the years I have worked my way up to where I get to keep 5% of what I make!

When my wife receives the check, she deposits it in her trust's checking account and then pays all of the house payments and other personal bills out of that account. If anything is left over, she does whatever she wants with it. My wife saves it in one of her savings accounts. All of those savings accounts (held in my wife's trust) are outside the reach of my creditors and problems.

If the non-working spouse receives a salary and does whatever they want with the money, the courts have held that any mortgage payments, savings account deposits, etc., are not coming from you. Consequently, the assets paid for by your spouse and held in his or her trust cannot be tied back to you.

Retirement and Benefits

Retirement plans come in lots of different forms. Everybody concentrates on retirement plans as a tax shelter – and they are great tax shelters – but they are a problem if you want to put a ton of money away and not pay a fortune to take care of your employees.

Retirement plans are basically 100% asset-protected, and they grow tax-deferred. (Remember the "dollar doubled 20 times" illustration? Tax-free or tax-deferred growth is a big deal.) The government ensures that you can't put any money into a retirement account without paying for all of your employees, and today the laws are very tight.

First, make sure you always fund an IRA for yourself, your spouse, and your children. Figure out a way to get them the money that they need to fund their IRAs. It can be a regular IRA for you and your spouse if you are making too much money and can't meet the adjusted gross income (AGI) requirements for a Roth IRA. Make sure your children start a Roth IRA – they can do things with a Roth later in life, regardless of how much money is in it. Note that the IRA has nothing to do with your business: it is absolutely personal.

Second, maximize your "standard office" retirement plan. By including only full-time and long-term employees, you will be okay on costs. Restrict participation in the plans as much as you can under the law, and keep in mind that if you can't legally restrict an employee's participation in the retirement plan, they are probably a valuable asset to you and you should take care of them.

Third, use "non-qualified" plans. A qualified plan is one authorized under the Employee Retirement Income Security Act (ERISA). All of the numbered plans (401(k), etc.) are ERISA plans, while a non-qualified plan is one that the financial industry has created to mimic the qualified plans.

How can you make money grow tax-free or tax-deferred without having a qualified retirement plan? You can use benefit plans, but they are ERISA plans that must be extended to the employees. IRAs qualify, but you can't put enough money in them through contributions. The other option is a non-qualified plan.

The most popular non-qualified plan is a life insurance policy. Don't check out on me here. Life insurance is a hated topic, because inside your gut you know they are cheating you. It's true! But, there are two reasons to own life insurance.

One reason is the death benefit. I promise you (because I've been there) that when they walk in and say you only have a couple of weeks left to live, you'll think first of your family and how you love them. Next, you will think of the economic impact that your death will have on them. Inevitably, somewhere in there you will think of the words, "life insurance."

You need death benefits unless you are retiring and have lots of money to see your family through. If you have financial responsibilities for your family, you need a lot more death benefits than you think you do. Beef up your death benefits now!

The other main reason for owning life insurance is the tax benefits. You can make a life insurance policy absolutely mimic a Roth IRA. Money goes in after tax, grows without a tax, and you can spend it without a tax. There is a "cost of insurance," but if the policy is designed right, the tax benefits will quickly overshadow the cost of insurance.

In your gut you still know it's a bad deal. You're right! Except… you can do it right, but it's hard. In our office, we have studied hundreds of life insurance contracts. Our CPA is an expert in evaluating insurance policies and contracts. You have to pick the right company and get the appropriate contract, or a non-qualified plan will not be that good.

The concept is: you put money into the savings portion of the life insurance contract. You may want to use some type of a universal life contract rather than whole life. The money grows tax-free. Then, you borrow the money out and spend it tax-free. When you die, the death benefit pays back all the money that you borrowed. While it all sounds easy, keep in mind that there are many traps.

Picking the right policy for investment options is a challenge, and assuming you get that right, getting your insurance agent to play ball may be a big problem. When you pay an insurance premium, some of the money has to go to death benefit coverage – the cost of insurance – and the rest of it can go into "savings." Basically, the agent only gets a commission for the amount that goes into the death benefit, so where do you think your money is going to be spent?

If the policy is designed to follow "guideline premiums," you will put the maximum amount into the savings part of the policy as dictated by federal law. Agents may choose not to give you guideline premiums because they receive a low commission on this. When the life insurance agent gives you an illustration, someplace on the example it has to say the guideline premium amount. Your agent may not point it out to you, but now you know to look for it.

Next, the borrowing provisions in the contract are critical. If there is an interest rate on the borrowed money, you will lose. Your agent will ask, "But, where else can you borrow money for only 1.5% interest?" That is true, but remember, it's your money. You would kill to lower your mortgage rate 1.5% since you know that, over the years, 1.5% is a huge difference on your home mortgage interest payments. Guess what. It's the exact same thing on money borrowed from your life insurance savings.

The policy will say the current practice is that, "We don't charge interest." Got ya again. Fifteen years down the road, when you want to borrow, "current practice" will be different – guaranteed. At that point there will be nothing you can do about it. When an insurance company needs its stock to go up, they simply raise the interest rate on borrowed money.

You have to purchase a policy that absolutely states the interest rate is zero – no possible changes. There are a couple of companies that have those policies. If you get a "zero wash" policy and guideline premium with a good company, you've almost got a Roth IRA duplicate.

With non-qualified plans, there is no obligation to employees. It is your policy and has nothing to do with your business. Also, there aren't any contribution limits – we have clients who put $100,000 a year into a life insurance (non-qualified plan) policy.

Summary

In this series of six articles, we have covered a broad range of topics for you as a small business owner. The law touches everything you do. You don't need to be an attorney, but you do need to know what the basics of the law are and understand the concepts well enough to make sure your advisors aren't leading you down the primrose path.

HBMA members tend to be busy, and they may want advisors who they can trust to do everything for them. When you blindly trust your advisors and ask them to set you up, you may get exactly what you asked for – a setup. When you take your eyes off the ball, the ball will be lost every time.

As a small business owner dealing with lucrative billing accounts, you are in the wonderful position of having the earnings potential to make good money. If you avoid one or two of the legal and financial traps that so many fall into, that will be the difference in a reasonable retirement and a great retirement and life. I really do hope this series has helped make a difference.

Attorney Lee R. Phillips is a nationally recognized expert in the field of financial and estate planning. Lee is licensed to practice law before the United States Supreme Court and also holds licenses in insurance and securities.