Whenever making loans — to anyone — there should be a written promissory note that spells out the amount borrowed, whether interest is being charged and how repayments are to be made. It’s fine if it’s merely a demand loan and there’s no repayment schedule. But parents should also specify, in their wills or trusts, how the loan should be handled after they die. Require it to be repaid? Forgive the loan? Offset it with interest? Without interest?
A loan is not a gift; if you’ve spoken with a bank representative or a particularly pennywise
relative. We talk a lot about gifts when it comes to estate planning, but loans are just as important, as evident in a recent piece on the New Old Age Blog. A loan must have a minimum rate of interest as determined by a flucating interest rate published each month by the IRS. Failure to charge that minimum interest rate could result in unanticipated taxable income called "deemed income." I advise all my clients to distinguish between a gift and a loan. When making a loan, the loan should be in wiriting and include typical terms such as the term of the loan and the interest rate.
In the article, a piece by Craig Reaves, past president of the National Academy of Elder Law Attorneys, a family had their mother’s estate plan in shambles. The culprit? A small notebook found under her bed. Apparently, there were many disagreements, but none so deep seated as those caused by the notebook. Why? Because it has a little ledger of the “loans” she had made to
all the family members.
Some of the family members hadn’t received any money, but at least one had received $20,000. Other family members had repaid in full and some had not so much as begun to do so. This
case raises an important question: To what extent does the amount of an unpaid loan get added to the decedent’s estate, and does it simply come out of each family member’s share in proportion to their loans?
One thing that’s clear, of course, is that the money is not gone and out of the estate. Why, it’s a loan and not a gift, after all. The second thing that’s clear is that the mother hadn’t thought about how these “loans” figured into her estate.
That family aside, it should be noted that any loan evidenced by a signed promissory note can become an asset in the estate. And, even if it’s a family loan, the promissory note has
to be repaid.
An estate planner can ease this problem with a bit of foresight. For example, the loan can be forgiven, meaning they relinquish any expectation of being repaid. For that matter, too,
the loan can be “offset” and thereby deducted from any assets made available through inheritance.
While there are a number of things that can be done, forgetting the loan is not one of them. After all, the IRS is waiting just within earshot and has a trained eye to recognize the difference between a loan and a gift, as well as the additional tax burdens it can assign if it spots a gift or a poorly executed loan.
Reference: The New York Times – The New Old Age Blog (November 15, 2011) “Ask the Elder Law Attorney: Family Loans”
Holden-Campbell, LLC, Annapolis Estate Planning Attorneys