Do My Debts Die with Me?

When you die, your debts do not. Your executor will be required to pay them using your assets. That means that any unpaid debt can reduce the wealth you’ve left behind for your heirs. In some cases, your family members could even need to pay your debt.

Reader’s Digest’s recent article, “This Is What Happens to Your Debt When You Die,” explains that not all debt is created equal. With secured debt, like a mortgage or car loans, your estate can either pay off your debts in full or continue making installment payments. Another option is to sell the property or turn it over to the lender to satisfy the debt.

However, any unsecured debt, such as credit cards, bills, or personal loans, is typically just paid from the estate. The estate is everything you own, such as assets, bank accounts, real estate and other property.

Note that student loans are the exception, but there are some caveats. Most federal student loans, along with private loans without a cosigner, are discharged with proof of death. Thus, your heirs won’t be responsible for those loans. However, if your private student loan was cosigned, that person will be required to pay it off. There are also some loans, like PLUS loans, that while technically forgiven, could leave the parent who took it out with higher taxes.

The way to protect both yourself and your family, is to speak with an experienced estate planning attorney to get your affairs in order.

Creating an action plan for your outstanding debt is a critical component of the estate planning process. You also need to ask about other end-of-life plans, like medical directives, wills and trusts to manage your assets, when you pass away.

You should also review your life insurance policy to make certain that it’s up-to-date, and don’t forget to review your named beneficiaries.

If your beneficiaries are assigned correctly, some of your assets may bypass probate and be protected from creditors. Therefore, anyone who’s listed on your policy won’t be forced to hand over their money to satisfy your debt.

Reference: Reader’s Digest “This Is What Happens to Your Debt When You Die”

Suggested Key Terms: Estate Planning Lawyer, Wills, Life Insurance, Trusts, Probate Court, Inheritance, Healthcare Directive, Financial Planning

How Do I Estate Plan for a Child with Special Needs?

Estate planning is important for everyone, but it’s even more crucial for a family with a child who has special needs. It’s difficult to create an estate plan for children with special needs, because you don’t know what type of care he will need, or the type of government benefits for which she’ll be eligible, when she turns 18. People frequently become overwhelmed about special needs planning, because they don’t have a clear picture of what their children will need in the future.

A recent Forbes article, “Special Needs Kids Require Specialized Estate Planning,” says that if you have a child with special needs, it’s critical that you look at your planning options with your estate planning attorney and discuss your child’s health, capabilities and prognosis. You can then customize a plan that works for your child, with as much flexibility as possible.

Those with enough assets often would rather not to have their child get any government benefits and will set aside an amount to cover all the child’s living expenses in trust. Since the parents aren’t concerned with government benefits, the trust can be a discretionary trust that will distribute income and principal at the trustee’s discretion for the benefit of the child throughout the child’s life.

If there is a good chance the child will get government benefits, many parents create special needs trust to supplement (not replace) the government benefits that the child will receive. The trust must be drafted, so the child doesn’t become ineligible for the government benefits. These benefits provide for the child’s basic needs like a place to live, so the special needs trust will defray the cost of extras such as trips and entertainment.

If the parents can’t determine if their child will be eligible for government benefits, another option is for the parents to give their current trustees the authority to create a separate special needs trust at the time of the surviving parent’s death. Therefore, if the child is receiving benefits, the trustee can create the trust at that time, with the goal of preserving the child’s benefits.

All these trusts can be funded now. The parents can establish the trust and transfer cash or other assets to it, or the trust can be created now and left empty until a parent passes away. At that point, money can move into the trust from the parent’s estate, another trust or from a life insurance policy.

Some parents elect not to create a trust for their child and to disinherit him completely. The thinking is that the child can be supported solely by government benefits. Others go with a combination approach. They disinherit the special needs child and leave more assets to their other children, with the understanding that the other children will care for the special needs child. However, this isn’t a great idea. The siblings have no legal obligation to care for his or her sibling with special needs, just a moral one. If the child who inherited the bulk of the estate gets divorced, the assets are also susceptible to division upon divorce. Finally, the assets are liable to a creditor’s claim, if the child is sued.

Estate planning for a child with special needs can be hard, so get a flexible plan in place that will provide peace of mind.

Reference: Forbes (March 27, 2019) “Special Needs Kids Require Specialized Estate Planning”

Suggested Key Terms: Estate Planning Lawyer, Tax Planning, Financial Planning, Elder Law Attorney, Medicare, Medicaid, Special Needs Trust, Medicaid Planning Lawyer, Disability, Life Insurance

Retirement Benefits Disappeared? Here’s Help

It’s not that hard to lose track of accounts, especially if you change jobs or move around a lot.

Sometimes companies change their names, or are sold, and people can’t find them. Some people may not even know that they were automatically enrolled in a 401(k) plan, according to the article “Finding lost retirement benefits” from Albany Times Union. There are also employees who leave in a huff and never complete paperwork. How many HR directors have the time or resources to track down former employees?

There’s no exact number for how many unclaimed benefits there are, but a report released by the GAO (Government Accountability Office) reports that more than 25 million people left at least one retirement plan behind, when they left a job in the years between 2004-2013. Could one of those people, be you?

Here’s what you need to know to start looking for lost retirement accounts:

Start digging through your old files. Depending on how you keep your records, that may mean cracking open the filing cabinets that have been stored in the basement for the last 20 years, or the stack of the stuff you’ve been meaning to file that just keep growing. You might find some clues in old tax paperwork, employment related documents or the folders you received when you started working in a new job, filed and forgot about. If the company has been bought and sold a few times, this may take a while, even if you do finally locate the original paperwork.

Contact your old employer. If you cannot find the company, then try the Department of Labor website for Form 5500 filings. This form would have contact information for the plan. The DOL also has the EBSA — Employee Benefit Security Administration — that offers help over the phone. On the website, you’ll find a searchable database for abandoned pension plans.

There is a federal agency in charge of insuring private-sector pension benefits–the Pension Benefit Guaranty Corp. The PBGC has reported that more than 80,000 people who earned a pension have not yet claimed it, and more than $400 million is waiting for them. The pension amounts range from twelve cents to almost a $1 million.

Check your state’s Unclaimed Property division. Each state has its own database, and there’s also a website called that was created by the National Association of Unclaimed Property Administrators.

Contact the Social Security Administration. The SSA might provide a notice alerting you to potential benefits, when you are ready to claim your Social Security benefits. However, this is only a notice, and does not guarantee that the funds are still there.

Another source to contact is the U.S. Administration on Aging’s Pension Counseling and Information Program, which provides legal assistance at no cost.

A word to the wise, is to keep track of all accounts through your employer with a system of either paper or digital files. If you leave a job, make sure that you have all the necessary documents about all of the benefits offered. If you don’t get to this task until a few months into a new job, that’s okay too — just as long as you get to it before too much time goes by.

Reference: Albany Times Union (March 30, 2019) “Finding lost retirement benefits”

Suggested Key Terms: Retirement Benefits, 401(k), Beneficiaries, Unclaimed Benefits, Pensions, Department of Labor, Social Security Administration, Unclaimed Property

As a New Parent, Have You Updated (or Created) Your Estate Plan?

You just had a baby. Now you’re sleep-deprived, overwhelmed, and frazzled. Having a child dramatically changes one’s legacy plan and makes having a plan all the more necessary, says ThinkAdvisor’s recent article, “5 Legacy Planning Basics for New Parents.”

Take time to talk through two high-priority items. Create a staggered checklist—starting with today—and set attainable dates to complete the rest of the tasks. Here are five things to put on that list:

  1. Will. This gives the probate court your instructions on who will care for your children, if something happens to both you and your spouse. A will also should name a guardian to be responsible for the children. Parents also should think about how they want to share their personal belongings and financial assets. Without a will, the state decides what goes to whom. Lastly, a will must name an executor.
  2. Beneficiaries. Review your beneficiary designations when you create your will, because you don’t want your will and designations (on life insurance policies and investments) telling two different stories. If there’s an issue, the beneficiary designation overrides the will. All accounts with a beneficiary listed automatically avoid probate court.
  3. Trust. Created by an experienced estate planning attorney, a trust has some excellent benefits, particularly if you have young children. Everything in a trust is shielded from probate court, including property. This avoids court fees and hassle. A trust also provides some flexibility and customization to your plan. You can instruct that your children get a sum of money at 18, 25 or 30, and you can say that the money is for school, among other conditions. The trustee will distribute funds, according to your instructions.
  4. Power of Attorney and Health Care Proxy. These are two separate documents, but they’re both used in the event of incapacitation. Their power of attorney and health care proxy designees can make important financial and medical decisions, when you’re incapable of doing so.
  5. Life Insurance. Most people don’t think about purchasing life insurance, until they have children. Therefore, if you haven’t thought about it, you’re not alone. If you are among the few who bought a policy pre-child, consider increasing the amount so your child is covered, if something should happen.

Reference: ThinkAdvisor (March 7, 2019) “5 Legacy Planning Basics for New Parents”

Suggested Key Terms: Estate Planning Lawyer, Wills, Capacity, Guardianship, Executor, Trusts, Trustee, Asset Protection, Probate Court, Inheritance, Intestacy, Beneficiary Designations, Life Insurance

Why Am I Being Charged More for Medicare?

Many seniors have their Medicare premiums paid automatically from their Social Security benefits.  However, now some are getting a separate monthly Medicare premium bill, in addition to the amount that is taken from their monthly Social Security benefits.

Kiplinger’s recent article, “How Changes in Income Affect Medicare Premiums,” says they are receiving the extra bill because they’re now subject to the Medicare high-income surcharge, or the “Income-Related Monthly Adjustment Amount (IRMAA).”

The bill should indicate “IRMAA.” This means that a senior must pay this surcharge, because his modified adjusted gross income, plus tax-exempt interest income, was higher than $85,000 if single or $170,000 if married filing jointly on his last tax return on file (usually 2017 for 2019 premiums).

This surcharge ups the monthly Medicare Part B premiums from the standard $135.50 in 2019 to a range of $189.50 to $460.50 per month, depending on income. Medicare Part B (medical insurance) is part of Original Medicare. Part B covers medical services and supplies that are medically necessary to treat a health condition. This can include outpatient care, preventive services, ambulance services and durable medical equipment.

In addition, if a senior has Medicare Part D prescription-drug coverage, he may also have to pay an extra $12.40 to $77.40 per month, in addition to his Part D premiums. If a senior and his spouse file jointly and are both receiving Medicare benefits, they’ll both be subject to the high-income surcharge.

If a senior’s income has dropped since 2017 because of certain life-changing events, like marriage, divorce, death of a spouse or retirement, he can ask to have his Medicare premiums based on more recent income, which could reduce or eliminate the surcharge. The senior must file Form SSA-44 with the Social Security Administration, along with evidence of the eligible life-changing event (such as a statement from your employer with the date of your retirement) and an estimate of your reduced income for the year.

If a senior’s income was unusually high in 2017 for other reasons (e.g., because he sold investments for a profit or rolled money over from a traditional IRA to a Roth), he won’t be able to get his premiums reduced this year. However, the senior may go back down next year when his premiums will be based on his 2018 income.

Reference: Kiplinger (February 19, 2019) “How Changes in Income Affect Medicare Premiums”

Suggested Key Terms: Financial Planning, Elder Law Attorney, Medicare, Social Security

How Can I Protect My Child’s Inheritance, If They Have a Substance Abuse Problem?

Kiplinger’s recent article, “Selecting the Right Trustee and Protector for a Substance Abuse Trust,” explains that selecting the trustee for a substance abuse trust should start with a good idea of the duties they will perform. Next, find a person or institutional trustee that’s most qualified to fulfill those obligations. Parents should then think about naming a trust protector, who serves in a supervisory role to ensure that the trust is being properly administered.

The basic duties of a trustee include a fiduciary duty to administer the trust in good faith and in accordance with its terms and purposes; loyalty to the beneficiaries, by acting solely in their interests; invest the trust property prudently by considering the purposes, terms, distributional requirements, and other circumstances of the trust; and to act impartially, when there are multiple beneficiaries.

There may also be special duties of the trustee. For a child with a substance use disorder, the trustee’s duties for distributions could be linked specifically to paying for the costs of rehab, job training, professional service fees and other items that are part of the treatment plan developed by the beneficiary’s treatment team. Tying distributions into the treatment plan would mean the trustee, and maybe someone familiar with treatment management, would have to work closely with the treatment team to carry out the plan.

If the trust has incentive clauses, the trustee will also have to determine if the beneficiary has attained the goal (like sobriety for a certain period of time) and if so, the benefit to which he or she’s entitled. These can be hard to administer, since it can be hard to verify if the beneficiary has actually met the goals.

If the beneficiary is eligible for government program benefits, like SSI or Medicaid or from private health insurance, another set of duties will be placed upon the trustee to make certain that distributions won’t be classified as “maintenance” or “support.” If so, it could result in the child being declared ineligible. Since distributions from the trust are meant only to supplement the benefits that SSI or Medicaid is providing (and not duplicate or supplant them), the trustee will have to closely watch the uses of the distributions, so they aren’t support and maintenance.

You must next look at potential candidates to see who’s best suited for the role of trustee. There are two categories of trustees: individual and institutional. Individual trustees can include family members. The advantage here is that they’ll know the beneficiary and can give more personalized service than an institutional trustee. However, appointing a family member or friend as trustee may ruin the relationship, if the trustee denies the beneficiary’s demands.

You can appoint a trust company, bank trust department, or a corporate trustee connected to a brokerage firm to serve as the trustee to avoid possible family conflicts. However, some institutional trustees may be more focused on their investment performance, than on tending to the mental and physical needs of their beneficiaries. In the case of a substance abuse trust, “hands-on” involvement with the beneficiary is vital.

One alternative may be to appoint an individual and an institutional company to serve as co-trustees. The individual could be personally involved with the beneficiary and their treatment plan, and the institutional trustee could deal with and handle the investments. However, both trustees should make distribution decisions. The best type of institutional trustee for a substance abuse trust, would be one that works primarily in administering special needs trusts. These are created for the benefit of children with disabilities. These trustees will be knowledgeable about SSI and Medicaid eligibility rules.

A trust protector, depending on applicable state law, acts as the settlor’s surrogate. This continues even after the settlor dies. This allows the trust to adapt to changing circumstances. The trust protector could also direct the trustee’s actions concerning how the trust assets would be invested and could approve or deny proposed disbursements from the trust. The trustee would be obligated to comply with such directions, unless they would be manifestly contrary to the trust’s terms or a breach of the protector’s duties.

As far as a substance abuse trust, a trust protector can provide supervision, if the trustee doesn’t possess experience in coordinating trust distributions with a substance abuse treatment plan, or with monitoring the beneficiary’s eligibility for government aid programs. Instead of the trustee appointing agents to assist in these matters, the protector would actively monitor the progress of the beneficiary’s recovery and, if necessary, direct the trustee to engage a treatment manager for the beneficiary or an advocate to secure SSI and Medicaid benefits.

Support from all parties will help the beneficiary continue on the road to recovery, which is the ultimate goal of the trust.

Reference: Kiplinger (March 8, 2019) “Selecting the Right Trustee and Protector for a Substance Abuse Trust”

Suggested Key Terms: Estate Planning Lawyer, Substance Abuse Trust, Trustee, Disability, Trust Protector, Medicaid, Social Security, Special Needs Trust

How Working and Taking Social Security Benefits Works Or Doesn’t

It seems too good to be true — the idea of working at your regular job, receiving your regular salary and giving yourself a little extra income by applying for Social Security benefits at the same time. However, as explained by the article “Working and Taking Social Security at the Same Time? Watch Out for This” from Yahoo! Finance, there are some real pitfalls to doing this, unless you are very careful.

If you are under your Full Retirement Age (FRA), which depends on when you were born, the government may reduce your benefits, if your paycheck exceeds certain thresholds. This is formally known as the Social Security Earnings Test. You’ll need to work all the numbers to see if this strategy might work for you. Don’t expect it to, by the way, because that’s not what Social Security is all about.

The Social Security Earnings Test calculates how much you will lose in Social Security benefits, if you are under your FRA and if you’re earning over a certain amount every year from a paycheck. In 2019, that limit is $17,640. Note that this only applies to earned income. It does not apply to any other government benefits, investment earnings or pension income. For every $2 you earn more than $17,640 in 2019, the SSA (Social Security Administration) deducts $1 from your monthly benefit.

Let’s say you are entitled to a $1,000 benefit every month ($12,000 per year) and you also earn $2,400 from your job. You’ll lose $3,180 in benefits and you’ll get only $8,820 for the year.

The numbers are a little different, if you are reaching your FRA at some point during 2019. The 2019 earnings limit when a person has reached FRA is a lot larger at $46,920, instead of $17,640. In this case, for every $3 you earn over the limit, the SSA will reduce benefits by $1.

Here’s the sweet spot: as soon as you hit your FRA, the rules no longer apply, and you can earn as much as you can. The SSA won’t take deductions from your paychecks.

There is a Retirement Earnings Test Calculator on the Social Security website. You must enter your date of birth, estimated earnings and your estimated Social Security benefit. It will provide further information on how earnings will be calculated.

If you are counting on Social Security for most of your living expenses during retirement, consider working longer, at the very least until you reach your FRA. You can also keep working full-time and delay taking Social Security benefits, so when you do start getting that monthly benefit it will be bigger.

For every month you delay taking Social Security beyond your 62nd birthday, benefits increase by 2/3 of 1%. You’ll reach 100% of your benefits at FRA, and if you can keep delaying benefits until age 70, benefits increase by a significant amount: 132% if your FRA is 66, or 124% if your FRA is 67.

Reference: Yahoo! Finance (Feb. 25, 2019) “Working and Taking Social Security at the Same Time? Watch Out for This”

Suggested Key Terms: Social Security Earnings Test, Retirement, Full Retirement Age, FRA, Benefits, Income Thresholds, Earned Income

How Will My IRA Be Taxed?

The most common of IRA tax traps results in tax bills through Unrelated Business Taxable Income (UBTI). The sources of business income from stocks, bonds, and funds like interest income, capital gains, and dividends are exempt from UBTI and the corresponding tax (the Unrelated Business Income Tax or UBIT).

Fox Business’s recent article, “Your IRA and taxes: Don’t get a surprise tax bill” explains that IRAs that operate a business, have certain types of rental income, or receive income through certain partnerships will be taxed, when the total UBTI exceeds $1,000. This is to prevent tax-exempt entities from gaining an unfair advantage on regularly taxed business entities.

UBIT can take a chunk from an IRA, and the Tax Cuts and Jobs Act of 2017 replaced the tiered corporate tax structure with a flat 21% tax rate. That begins in tax year 2018 (this tax season). These tax bills often have penalties, because IRA owners aren’t even aware that the bill exists.

Master Limited Partnerships (MLPs) held within IRAs are a good example of how UBTI can catch investors by surprise. MLPs are fairly popular investments, but when they’re held within an IRA, they’re subject to UBIT. When the tax is due, the IRA custodian must get a special tax ID number and file Form 990-T to report the income to the IRS. That owner must pay the tax, and is typically unaware of the bill, until it arrives as a completed form to be submitted to the IRS (completed and signed on behalf of the owner). In some instances, the owner may have to pay estimated taxes throughout the year. This can mean a significant underpayment penalty.

Working with prohibited investments will also result in a tax bill. Self-directed IRAs can violate the rules. Alternative investments such as artwork, antiques, and precious metals (with some exceptions) are generally considered as distributions and are subject to taxes.

Prohibited transactions are a step above prohibited investments and can result in the loss of tax-deferred status for the entire IRA. This includes using an IRA as security to obtain a loan, using IRA funds to purchase personal property, or paying yourself an unreasonable compensation for managing your own self-directed IRA. Executing a prohibited transaction can result in the entire IRA being treated as a taxable distribution to you.

Therefore, like fund holdings, ETFs, and other investments, it’s critical to understand exactly what you own and how to deal with the tax liabilities.

Reference: Fox Business (March 6, 2019) “Your IRA and taxes: Don’t get a surprise tax bill”

Suggested Key Terms: Estate Planning, Tax Planning, Financial Planning, IRA, Self-Directed, Unrelated Business Taxable Income (UBTI)

When Should I Review My Estate Plan?

When a person hits the age of 18, they should at least have powers of attorney to designate who will make their healthcare decisions and handle their finances, in the event of any incapacity. When a person starts to accumulate assets and have children, it’s critical to have an estate plan in place.

Bankrate’s recent article, “Estate planning triggers: When to re-evaluate your estate planning strategy,” says the risk of not having a current estate plan and will that state your wishes is significant. When  people fail to put any plan into place, it leads to confusion, chaos and unintended consequences. Use this list of important life events as triggers to remind you to discuss your current situation with a trusted attorney.

Getting married. You and your future spouse probably have had some financial conversations before getting engaged. However, if you haven’t, once wedding plans are set, it’s vital to discuss all aspects of each partner’s financial situation and the desired distribution of assets. You should decide whether to sign a prenuptial agreement, the totals of your separate and joint assets and who you want inherit those assets should on or both spouses pass on. In light of these factors and the prenuptial agreement, an estate plan that satisfies both parties must be created.

Starting a family. The decision to have a child comes with the responsibility of planning for that child’s care. You and your partner will want to determine the amount of your assets you want to pass to your children in the case of a death, at what age your children will inherit those assets and name a legal guardian.

Divorce. If a couple decides to divorce, it’s important to update their separate estates. If you fail to change the beneficiary designations for a trust or life insurance policy after getting divorced, your ex-spouse may receive the life insurance that was supposed to be paid out to the trust to provide liquidity to pay off debts and administration expenses.

Retirement. Beneficiaries are named when setting up a 401k or Roth IRA account. If you started the account years ago, the beneficiaries may be out-of-date. Retirees should look at their total retirement assets and update their beneficiaries to reflect their current relationship and financial circumstances.

Other life events. Any significant change in assets, a move to another state, the death or disability of a person named in your estate plan, a change in tax laws, a disability of a beneficiary that arises after the initial plan is executed, and/or the birth, adoption, or death of a child are all important life events that should trigger a revision of your estate plan.

Reference: Bankrate (March 4, 2019) “Estate planning triggers: When to re-evaluate your estate planning strategy”

Suggested Key Terms: Estate Planning Lawyer, Will Changes, Guardianship, Inheritance, Intestacy, Beneficiary Designations, Life Insurance, Pre-nuptial Agreement

What Should My Fiancé and I Discuss About Finances Before We Say “I Do”?

If you’re older and remarry, you may have more assets and you probably have children. That’s different than a first marriage, where people often enter as financial equals. In subsequent unions, situations are more complicated—and the stakes are higher. You should protect your money in the event of divorce and protect your children in the event of your death.

Barron’s recent article, “How to Manage Your Money When You’re Remarrying,” says the subject of money should be easier this time around. Money talk might have been taboo going into your first marriage, but experience—and the battle wounds of divorce—tend to make this dialog much easier.

The best strategy for navigating the financial side of remarriage is to be direct and give yourself plenty of time before the wedding to work out the details. All good financial plans start with a broader discussion that has more to do with identifying and setting goals, than it does about dollar signs.

Consider what you hope to achieve individually and as a couple over the next year, five years, decade, and so on. Discuss your priorities and intentions, be specific, and write it all down. Your conversation will be the groundwork for the specific financial planning decisions the two of you will need to make, when it’s time to formalize your plans for merging finances or—as the case may be—keeping them separate.

Prenuptial agreements, or “prenups,” are becoming more frequently used by millennials because they are marrying later and bringing more assets and debt to the marriage. In the case of remarriage, a prenup should be strongly considered by most couples. This legally-binding agreement details how assets and liabilities will be divided, in the event of divorce.

Many experts suggest keeping separate checking, savings, and investment accounts—but setting up joint accounts for shared lifestyle expenses. Having a joint account removes the need for constant discussion about how you’ll divide expenses. Create a monthly joint budget and agree on the fairest way to split it. Some couples divide it down the middle, while others base it on a percentage of their respective incomes.

You don’t need to have all of your estate plans settled before the wedding but be certain to update key documents where appropriate—such as your wills, medical advance directives, retirement plan and insurance beneficiaries.

A big trouble spot for couples remarrying—especially if there are children and grandchildren from other marriages—is how assets will be divided in the future. Without a clear estate plan, if you die first, then the assets will pass to your spouse and then to that spouse’s children. That can be a big source of family strife—even for families who aren’t wealthy. A good solution is to set up revocable livings trusts that say exactly how you want your respective and joint assets to be distributed when you die.

Reference: Barron’s (March 2, 2019) “How to Manage Your Money When You’re Remarrying”

Suggested Key Terms: Estate Planning Lawyer, Revocable Living Trust, Asset Protection, Probate Court, Inheritance, Power of Attorney, Healthcare Directive, Living Will, IRA, 401(k), Pension, Beneficiary Designations, Life Insurance, Pre-nuptial Agreement

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