New Tax Law Makes Changes to ABLE Accounts

December 29, 2017

Families taking advantage of ABLE savings accounts will have a little more flexibility in planning for special needs as a result of the new Tax Cuts and Jobs Act signed into law by President Trump on December 22, 2017.

As we previously discussed, ABLE accounts, created by Congress via the passage of the Achieving a Better Life Experience (ABLE) Act in 2014, allow people with disabilities and their families to save for disability related expenses, while maintaining eligibility for Medicaid and other means-tested public benefits programs.

Currently, people can contribute up to $15,000.00 annually into qualified ABLE accounts.  A provision in the new tax law allows families who have saved money in 529 savings accounts to roll over up to $15,000 each year from a 529 account to an ABLE account.   The 529 account must be for the same beneficiary as the ABLE account or for a member of the same family as the ABLE account holder.  Many disability advocates had previously pushed for this change via a bill known as the ABLE Financial Planning Act.   Also as part of the new tax bill, while 529 accounts could previously only cover costs for college, they can now pay for a child’s K-12 education in a public, private or religious school.

The tax bill also includes changes to benefit ABLE account beneficiaries earning income from employment. These individuals will be able to make ABLE contributions above the $15,000 annual cap from their own income up to the Federal Poverty Level, which is currently $11,770 for a single individual, provided they do not participate in their employer’s retirement plan. This change was previously proposed in legislation known as the ABLE to Work Act.

The Consortium for Citizens with Disabilities previously voiced opposition to this revision, on the basis that if not properly implemented, it could increase the beneficiaries’ vulnerability to losing public benefits and pose major administrative burdens.

To read the text of the final bill, the Tax Cuts and Jobs Act, click here.

Click here to read more about ABLE accounts from with the ABLE National Resource Center.

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What Is Undue Influence?

Saying that there has been “undue influence” is often used as a reason to contest a will or estate plan, but what does it mean?

Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his or her wishes and to the benefit of the influencer or the influencer’s friends. The pressure can take the form of deception, harassment, threats, or isolation. Often the influencer separates the individual from their loved ones in order to coerce. The elderly and infirm are usually more susceptible to undue influence.

To prove a loved one was subject to undue influence in drafting an estate plan, you have to show that the loved one disposed of his or her property in a way that was unexpected under the circumstances, that he or she is susceptible to undue influence (because of illness, age, frailty, or a special relationship with the influencer), and that the person who exerted the influence had the opportunity to do so. Generally, the burden of proving undue influence is on the person asserting undue influence. However, if the alleged influencer had a fiduciary relationship with your loved one, the burden may be on the influencer to prove that there was no undue influence. People who have a fiduciary relationship can include a child, a spouse, or an agent under a power of attorney. For more information on contesting a will, go here.

When drawing up a will or estate plan, it is important to avoid even the appearance of undue influence. For example, if you are planning on leaving everything to your daughter who is also your primary caregiver, your other children may argue that your daughter took advantage of her position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn’t even drive or accompany you to the attorney’s office. You can also get a formal assessment of your mental capabilities done by a medical professional before you draft estate planning documents. For more information on preventing a will contest, go here.

July 14, 2016

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