March, 2014 | Shah & Associates, P.C. Estate Planning & Business Law Blog
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Where Not To Die, Part II

March 27, 2014

Filed under: Estate Planning,Estate Taxes,Taxes — Neel Shah @ 1:01 pm

As we told you a week ago, in addition to federal estate taxes, state estate taxes form a crazy quilt of different rules across the country. So much so that Forbes Magazine recently published an article on “Where Not To Die in 2014.”

Tax

Tax (Photo credit: 401(K) 2013)

Any guesses as to which state is the worst?

That’s right. New Jersey. Runner-up: Maryland. Both states impose not only an estate tax, but also an inheritance tax. As the Forbes article states:

“New Jersey, for example, imposes an estate tax between 4.2% and 16% on estates above $675,000, and an inheritance tax of between 11% and 16% on assets left to a sibling, nephew, niece or friend, but no inheritance tax on money left to parents, children or grandchildren. (Any estate tax owed is reduced by the inheritance tax paid.)”

See? We told you it’s a mess. That’s the bad news. The good news is that you can do something about it if you go see a competent estate planning attorney before it’s necessary.

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Some Strategies To Shield Your Money

March 26, 2014

Filed under: Asset Protection,Asset Protection Planning,Inheritance,Insurance,Lawsuits,Trusts — Neel Shah @ 10:00 am

If you wish to protect your money or assets or are about to receive a sudden windfall such as an inheritance, you may want to consider a number of strategies to protect yourself from lawsuits. Simple reason: “The Deep Pockets Theory”; the people with the money are the people who are sued.

judge hand with gavel

(Photo credit: SalFalko)

Here are a few strategies, according to an article in the Chicago Tribune:

    1)  Increase your liability insurance. If you are about to inherit $3 million, call your broker and increase your liability policy to protect that additional $3 million. Do it before you get the money. Rates are inexpensive.

    2)  Consider separating assets. You may not want your spouse to have access to your new windfall. If you put the money in a joint account, that is what will happen.

    3)  Protect yourself from renters. If you have rental property or are going to get rental  property, put the property into a business entity such as an LLC to shield your assets from a disgruntled tenant. That way, they can sue the entity for what it has, but cannot go after you and what you have.

    4)  Create a trust and/or business entity to shield your assets. If you do part-time work you probably are operating as a sole proprietorship. But all of your assets are at risk if you are sued.

    5)  Be careful with partnerships. If you have an informal partnership, you are responsible for the actions of your partner. Form an LLC or other entity to provide legal protection.

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Now What?: Dealing With Remorse After Selling A Company

March 25, 2014

Filed under: Business Succession Planning,Entrepreneurs,Small Business Owner — Neel Shah @ 1:57 pm

Most entrepreneurs have the same idea; build their company and then sell it for big bucks.

But most owners who do that usually end up staying with the firm for a few years after the sale is consummated. What they don’t necessarily expect are the mixed feelings they have, according to an article in the New York Times.

Family Business Awards 2011-68

(Photo credit: Fuller Landau Montreal)

First, they may feel uncomfortable as a “soldier” rather than as a “general.”

Second, their strengths are often in starting up the company – making something from nothing.

Third, even if they are ready and willing to be a good soldier and carry on the work they started, they may feel uncomfortable in the new culture of the new bosses.

Fourth, they may not like the changes that are being made to their “baby.”

In many cases, the sellers find they cannot stay on as planned. Some are able to make the adjustment.

The article says owners who plan to sell their businesses but stay on should give some thought to whether that is likely to be a good idea. Basically, let the seller beware.

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How To Handle Leaving Unequal Amounts To Your Children

March 20, 2014

Filed under: Beneficiaries,Distribution of Assets,Estate Administration,Estate Planning,Inheritance,Wills — Neel Shah @ 10:00 am

Many parents divide their assets equally among their children. That’s the easy way.

Family discussion

(Photo credit: Muffet)

But what if you want to give more to one child than to another? Is that fair? Is it a good idea?

Sometimes it may be the best plan. For example, maybe one of your children earns much more than the others. Does this child really need to share equally in your estate?

Maybe one of your children has several children of his own, while the others are childless or have only one child. That may be a good case for giving the child with the most children a larger share.

Another reason might be that one of your children spent a lot of time and energy caring for you in your old age. Shouldn’t that child get rewarded?

And what if one of your children went down the wrong path? Maybe he became addicted to drugs or alcohol. Should this behavior be reinforced?

These are difficult decisions posed in an article in the Wall Street Journal. And they can lead to hurt feelings, lawsuits and other problems.

If you end up giving different children differing amounts in your will or estate plan, your decision may end up being challenged in court by the child or children who got less. It could turn into a mess.

To make sure your wishes are carried out, make sure to prove that you are of “sound mind” when you drew up your plan. You might want to get a letter from your doctor or psychologist saying so.

At the same time, make sure to talk to each of your children and explain what you are doing and why. This could result in fewer bad feelings.

Perhaps you can establish a pattern by helping those who need the most help while you are alive, as well as helping those who help you by giving them financial support during that time.

You can also include clauses mandating that disputes be settled through mediation or arbitration, not litigation. You can even include a “no contest” clause that says if any of the beneficiaries tries to contest the will, that child’s share is forfeited.

These are tough decisions that your estate planning attorney can help you make when drafting your will or estate plan.

 

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Assisted Suicide Case Dismissed

March 19, 2014

Filed under: Current Events,Elder Law,Lawsuits — Neel Shah @ 10:00 am

A judge in Pennsylvania has thrown out a case of assisted suicide lodged against a nurse who was charged with murder last year for allegedly giving her father a bottle of morphine pills.

Pick Your Painkiller

(Photo credit: sfxeric)

The decision is the latest in a series of developments signaling that courts and states are not interested in criminalizing care that may hasten death, according to a report on NPR.org.

In this case, Barbara Mancini, 58, a nurse, was charged with assisting in the suicide of her 93-year-old father in Feb., 2013.

The father, Joseph Yourshaw, was in home hospice in failing health. A hospice nurse checked on him and found him unconscious. The hospice had him taken to the hospital by ambulance against the wishes of the family. He was revived, but died a few days later.

In a scathing 47-page opinion, the judge wrote that the state did not establish that Mancini had committed a crime — that she tried to help him commit suicide rather than ease his pain.

She said the charges were based on speculation. Mancini said she only wanted to help ease his pain but a hospice nurse and a police officer said she told them she wanted to help end his life. He had previously told hospice workers and family that he wanted to die.

The judge said there was no evidence Mancini fed him the pills and noted that the man was capable of opening the bottle and taking the pills on his own. It was ruled he died of a morphine overdose.

“This case demonstrates that the government has no business interfering in families’ end-of-life decisions,” Mickey MacIntyre of the advocacy group Compassion and Choices said in a statement. “This prosecution could have chilled end-of-life decisions and pain care for millions of future terminally ill patients who simply want to die at home, peacefully and with dignity.”

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Where Not To Die

March 18, 2014

Filed under: Estate Planning,Estate Taxes,Taxes — Neel Shah @ 3:41 pm

Although the federal estate tax exemption has been raised to a generous $5.3 million, what about the states?

The truth is that, despite the large federal exemption, estate taxes still pose a worry in many states. In fact, 19 states as well as the District of Columbia impose estate taxes. The list includes New Jersey.

New Jersey

New Jersey (Photo credit: tico_manudo)

And every state’s rules are slightly different, making it confusing should one be considering moving for whatever reason, whether it be to save tax money or to be closer to grandchildren.

So some wealthy individuals are now consulting estate planning attorneys to help them with what has become known as “domicile planning,” to help them not escape income taxes but estate taxes, according to an article on Forbes.com.

The federal estate tax exemption of $5.3 million is now permanent, with a 40 percent tax applied to anything over that figure.

States typically have far lower exemptions and impose up to a 16 percent tax on anything over the exempt amount. New Jersey’s exemption, for example, is only $675,000. The tax on anything over that is from 4.2 percent to 16 percent.

But some states are making changes. Illinois reinstated its tax in 2011. Delaware made its “temporary” tax permanent.

That’s why estate planning attorneys are counseling some clients to move to Florida where there is no income tax and no estate tax. To benefit, you have to consider Florida to be your home at the time of your death even if you don’t live there all the time. It is a subjective evaluation.

In the meantime, there are moves afoot in some states to try and repeal the tax. Your estate planning attorney will know the latest changes that are being passed or considered.

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Keys To Selling Your Family Business

March 13, 2014

Filed under: Business Succession Planning,Distribution of Assets,Family Limited Partnerships,Life Insurance Policies — Neel Shah @ 3:33 pm

There are plenty of challenges to running a successful family business. But they can look like a hop, skip and a jump compared to the challenges associated with passing your family business along to your children or other relatives.

English: Pugh's Garden Centre A family-owned b...

(Photo credit: Wikipedia)

Only 33 percent of family owned businesses survive the transition from first generation ownership to the next, according to an article in the Vail Daily.

Why so hard?

In some cases, it is because no one in the family is interested in taking the business over.

But more often it is because there no good succession plan in place.

To come up with a workable succession plan, you must collect the thoughts and opinions of all family members as to who wants to be involved and how. You must know who wants to do what kind of work.

You must also discuss retirement goals for family members, cash flow needs and the goals and needs of the next generation of management.

Key decisions, of course, include who is going to be in control and who will eventually own it.

Your succession plan could be based on setting up a family limited partnership, where you, as the general partner, control day to day decisions, but over time sell off shares to family members. Eventually you give up control to who is ultimately going to run it.

Or you could set up a buy-sell agreement, which allows you to name the buyer — it could be one of your children — and establish a price. Then your child could buy a life insurance policy on you and eventually use the proceeds to buy the business.

But there are many strategies that can be considered. Best to consult an attorney with expertise on business succession and business buying and selling.

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Teenager Gets $25 Million Fortune – With One Catch

March 12, 2014

Filed under: Beneficiaries,Current Events,Distribution of Assets,Estate Administration,Guardianship,Inheritance,Last Will & Testament — Neel Shah @ 10:00 am

Actor Paul Walker of Fast & Furious fame, who died in a car accident in November, left his entire fortune of $25 million to his 15-year-old daughter, who had recently left her mother and childhood home in Hawaii to live with him in California.

Paul Walker at the Fast & Furious premiere at ...

Paul Walker at the Fast & Furious premiere at Leicester Square. (Photo credit: Wikipedia)

Walker did not leave a dime to any other family members or even his girlfriend.

But Walker’s will did have one catch. His daughter, Meadow, will not be able to touch the money until she becomes an adult. Nothing unusual there, except that Walker named his own mother to be Meadow’s guardian.

According to an article on cafemom.com, this is a bit unusual and could be tricky. One wonders why he named Meadow’s grandmother as her guardian rather than Meadow’s own mother, Rebecca Soteros.

However, the matter will be decided by a judge later this month. In the meantime, Meadow is back in Hawaii living with her mother.

Walker was a very private person and not much is known about the circumstances of his breakup or the decision to have Meadow come live with him in California.

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‘Gifting’ May Be Penalized By Medicaid

March 11, 2014

Filed under: Gifting,Medicaid,Nursing Homes,Spending Down,Trusts — Neel Shah @ 4:44 pm

While people can “gift” up to $14,000 each to anyone they want to each year without tax penalty, that tactic is not going to fly if it is being done to “spend down” in order to get Medicaid to pay for nursing home care.

Centers for Medicare and Medicaid Services (Me...

Centers for Medicare and Medicaid Services (Medicaid administrator) logo (Photo credit: Wikipedia)

If a person is “gifting” money to family or friends in order to spend down to reach the resource limit for Medicaid nursing home coverage, it better be done five years ahead of time, according to an article in the New York Daily News.

Gifts made within five years of applying are likely to disqualify the gift giver from obtaining coverage for a period of time based on how much was given. The larger the gifts, the longer the wait.

Medicaid will presume the gifts were made to get around the criteria for coverage.

The penalty period is likely to be in place even if the gifts were put into a trust.

Because Medicaid planning and the use of trusts is complex, the article suggests consulting with a qualified estate planning or elder law attorney.

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Florida Court Ruling Provides Guidance For Those Using Trust For Asset Protection

March 6, 2014

Filed under: Asset Protection,Beneficiaries,Estate Planning,Trustees,Trusts — Neel Shah @ 4:30 pm

A recent appellate court ruling in Florida gives former spouses the legal grounds to take funds from a type of trust that was thought to be unavailable to them.

State flag of Florida

State flag of Florida (Photo credit: Wikipedia)

Discretionary trusts are set up by the wealthy to give a trustee the authority to make or not make distributions from the trust. But the ruling late last year in Florida gives ex-spouses and the children of beneficiaries more leeway to gain access to those funds in certain circumstances.

However, estate planning experts are divided over whether this ruling establishes a precedent for other states, according to an article on fa-mag.com.

In this case, Bruce Berlinger challenged a lower court ruling that allowed his ex-wife, Roberta Casselberry, to obtain funds from a discretionary trust fund after he stopped paying her $16,000 a month alimony. The trust had been paying the money directly to her and not to him.

Usually, a creditor may not garnish funds in a discretionary trust if the trustee does not make the distributions to the beneficiary. In this case, the court ruling the ex-spouse was deemed to be an “exception creditor “and could seek distributions from the trust to satisfy her alimony requirements.

About 30 states have some form of “exception creditor” provision in their trust codes.

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Hoffman’s Will Raises Legal Issues

March 5, 2014

Filed under: Asset Protection,Beneficiaries,Distribution of Assets,Estate Administration,Estate Taxes,Inheritance,Last Will & Testament,Trusts — Neel Shah @ 4:07 pm

Actor Phillip Seymour Hoffman, who died of a drug overdose in February, had not updated his will in years. The mistake could prove troublesome for two of his daughters and their mother.

Philip Seymour Hoffman won a Academy Award for...

Philip Seymour Hoffman (Photo credit: Wikipedia)

The will was signed in 2004 when the actor had just one child, Cooper, now 11. But he subsequently had two daughters, Tallulah and Willa, neither of whom are mentioned in the will.

This may or may not be a problem.

The award-winning actor, who was just 46 when he died, left everything to his longtime companion, Marianne O’Donnell, the mother of his three children. But that’s just the beginning of the story, according to an article on Forbes.com.

Since Hoffman and O’Donnell were not married, she does not get any of the estate tax breaks available to spouses. You can give an unlimited amount to your spouse during life or in an estate plan, with no federal or state tax applied.

Hoffman was worth an estimated $35 million at the time of his death. The federal estate tax exemption is $5.3 million, but the rest is taxed at up to 40 percent. New York has its own estate tax of up to 16 percent for non-spouses, with a $1 million exemption.

In all, Hoffman’s estate will be taxed at more than $15 million. And since they were not married, any assets that remain at O’Donnell’s death would be taxed again.

There may be a way out for O’Donnell, however, The will allows for her to turn down all or part of her inheritance and put it into a trust. Any assets that go into the trust bypass her estate and cannot be taxed when she dies.

But the fact that only Cooper was mentioned in the will, complicates the matter. The will provides that he get half the principal of such a trust when he turns 25 and the other half when he turns 30. However, the law of New York and most states protects children not named in a will that has not been updated from being disinherited.

The article suggests that O’Donnell, who is the executor of the will, should appoint a guardian to represent the two sisters.

Other matters that could complicate matters include if Hoffman had set up a retirement account or a life insurance policy.

But all the confusion could have been avoided if Hoffman had included a clause in the will stipulating that any reference to Cooper includes any other children born after him.

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What To Do When Your Elderly Parents Move In With You

March 4, 2014

Filed under: Caregivers,Elder Law,Finances — Neel Shah @ 5:36 pm

More and more, elderly parents are moving in with their grown children. With the increasing costs of nursing homes, this makes financial sense for many people. But what should you and your parents do to prepare for such a dramatic move?

English: My parents.

English: My parents. (Photo credit: Wikipedia)

Issues that must be considered range from the financial to the emotional, according to an article on elderlawanswers.com.

The first thing to consider is the financial details. If the adult children who are taking in their parents have siblings, they should work something out so that the other siblings (those not taking in the parents) contribute something towards the costs of rooming and boarding the parents.

Costs can mount up. Besides food, one may need to do renovations or hire a home care aide.

Consider having your parents sign a contract under which they pay their children for taking them in. Maybe the parents can contribute to the remodeling or gift their own house to their children. There may be tax consequences to these actions to consider.

To avoid or reduce resentment and guilt down, family members should discuss everything out in the open at the outset. An elder law attorney can help work these things out.

Once the decision has been made, one should consider making the home senior-friendly. This may involve putting on an addition to the home, installation of  grab bars in the bathrooms, installation of ramps or conversion of a room on the first floor into a bedroom if necessary.

You may also be able to take a tax deduction by claiming your parents as dependants.

And make sure to seek out support from organizations such as local agencies that work on aging issues.

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