Guardianship Personal Property Sale Limit Increased to $5,000

Here's a change to North Carolina Guardianship law which took place October 1, 2008 that I didn't report earlier.  North Carolina General Statute Section 35A-1251 was modified to allow a guardian of the estate to sell personal property up to $5,000 in value without a court order.  The previous limit was $1,500.  The limit applies in the aggregate to all personal property sold within an accounting period (generally one year).

Guardians must also get a court order before selling real property or spending principal belong to a ward.  Income may be spent without court order, but all transactions must be reported in the accounting due each year.

While guardianship is unavoidable in some cases, the prior establishment of trusts and durable powers of attorney can avoid the time, expense and trouble of guardianship for most minors and incapacitated persons.

 

 

Beware of "Pure" or "Constitutional" Trusts

Here's a great article from Santa Barbara attorney Mark Cornwall - Beware the Pros at Cons.  Occasionally clients ask me about such arrangements, and, of course, and I inform them that's it's a bunch of baloney.   Remember - if it sounds to good to be true, it most likely is!

What Happens if the Federal Estate Tax Law Isn't Changed this Year?

There has been much recent discussion about "death" tax reform, and several bills have been introduced in Congress to that effect (as I have blogged about over the last few months), but so far the law as provided in the Economic Growth and Tax Relief Reconciliation Act of 2001(EGTRA) is still in effect.

EGTRA put into place the following estate tax "phase-out" schedule, which repeals the estate tax for a grand total of one year, and brings bring a $1 million exemption and 55% rate in 2011:

Continue Reading...

Better Report that Offshore Income! The IRS is Coming...

From IRS Commissioner Doug Shulman:

 

March 26, 2009

My goal has always been clear — to get those taxpayers hiding assets offshore back into the system. We recently provided guidance to our examination personnel who are addressing voluntary disclosure requests involving unreported offshore income. We believe the guidance represents a firm but fair resolution of these cases and will provide consistent treatment for taxpayers. The goal is to have a predictable set of outcomes to encourage people to come forward and take advantage of our voluntary disclosure practice while they still can.

In the guidance to our people, we draw a clear line between those individual taxpayers with offshore accounts who voluntarily come forward to get right with the government and those who continue to fail to meet their tax obligations. People who come in voluntarily will get a fair settlement. We set up a penalty framework that makes sense for them — they need to pay back-taxes and interest for six years, and pay either an accuracy or delinquency penalty on all six years. They will also pay a penalty of 20 percent of the amount in the foreign bank accounts in the year with the highest aggregate account or asset value. Just to be clear, this is 20 percent of the highest asset value of an account anytime in the past six years. This gives taxpayers — and tax practitioners — certainty and consistency in how their case will be handled.

We have instructed our agents to resolve these taxpayers’ cases in a uniform, consistent manner. Those who truly come in voluntarily will pay back taxes, interest and a significant penalty, but can avoid criminal prosecution.  [Emphasis added]

At the same time, we have also provided guidance to our agents who have cases of unreported offshore income when the taxpayer did not come in through our voluntary disclosure practice. In these cases, we are instructing our agents to fully develop these cases, pursuing both civil and criminal avenues, and consider all available penalties including the maximum penalty for the willful failure to file the FBAR report and the fraud penalty.

We believe this is a firm, but fair resolution of these cases. It will make sure that those who hid money offshore pay a significant price, but also allow them to avoid criminal prosecution if they come in voluntarily. As we continue to step up our international enforcement efforts, this is a chance for people to come clean on their own. Our guidance to the field is for the next six months only, after which we will re-evaluate our options.

For taxpayers who continue to hide their head in the sand, the situation will only become more dire. They should come forward now under our voluntary disclosure practice and get right with the government.

Safe Kids Week in North Carolina

This week is Safe Kids Week in North Carolina.  While Safe Kids Week is designed raise awareness about protecting children from unintentional injuries, parents also need to plan to keep their kids safe from a financial standpoint should something happen to the parents.  At a minimum, each parent of a minor child should have a Will that names a guardian and establishes a trust for the child.

Without a will, there is no opportunity to designate the individual (guardian of the person) you would like to care for your child in the event of your death, so the court will make that decision.  Also no funds can be distributed to your child from your estate until someone (guardian of the estate) is appointed to handle the funds.  This is expensive, time consuming, and complicated.  In addition, the child will receive all of the remaining funds at age 18, regardless of his or her ability to manage the funds.

Also, you may need life insurance to ensure that there is enough money to raise your kids if you aren't around anymore.

If you want your kids to be safe in as many respects as possible, it is imperative that you have a comprehensive estate plan in place.  Don't leave your children's future to chance.

 

Public Good IRA Rollover Act of 2009

This bill was recently introduced in the U.S. House of Representatives, and is for the expansion of IRA charitable rollovers, which are currently limited to those who have reached 70 1/2, may be no more than $100,000, and must go to a 501(c)(3) organization.

The bill does away with the $100,000 limit, lowers the eligible age to 59 1/2, and expands the permissible recipients for those at least 70 1/2 to split interest entities (e.g. charitable remainder trusts).

Click "Continue Reading" for the full text of the bill.

 

Continue Reading...

NC Income and Sales Tax Changes Considered

The North Carolina Senate Finance Committee is reviewing a plan to cut income and sales taxes while instituting new sales taxes on certain services.

For income taxes, the top rate would drop from 7.75% to 7.5%, while the lowest rate would decrease from 6% to 5.25%.  The calculation of income taxes would also be made easier, using the federal adjusted gross income without having to make further changes to determine the NC taxable income.  Credits would be allowed for charitable contributions and home mortgages, and the child tax credit would increase $25 to $125.

Corporate income tax rates, currently 6.9%, would be reduced over a two year period to 4.5%, but limited liability companies would be required to pay franchise taxes.  The could be bad news for for LLC owners, would are currently required to $200 annually to the state for the privilege of operating the company.

And, to the benefit of professionals and other business owners, state and local privilege licenses would be eliminated.

Finally, the state sales tax would be lowered from 6.75% to 6.00%.  Many counties, however, have local rates than are higher.  Sales taxes would be instituted on heretofore untaxed services/items such as building repairs, extended warranties, and downloaded music and software.

 

 

Saying a Final Goodbye to a Friend

This posting is not about estate planning per se, but rather death, which everyone must contemplate in the course of planning his or her estate.

Yesterday afternoon I stayed at the bedside of a friend of 30 years as he peacefully died in the last stages of Lymphoma.  He was 48 years old.

There is nothing like the experience of holding a loved one's hand as he or she dies to make one realize how precious and unpredictable life is, and how important it is to cherish family and friends.  Readers who have gone through this understand that it brings a certain final maturity to the experience of what it means to be human.

So, my advice is to complete a plan for when the end will come, but then relax, and enjoy family, friends, and new adventures.  There is no better tribute to those we have lost.

 

Tags:

Death Tax Debate Alive and Well

The debate over extending the $3.5 million estate tax exemption versus increasing the exemption to $5 million is discussed in this NY Times article.   Don't our legislators have better things to do than argue over reducing taxes for such a minute percentage of the U.S. population?

Those with estates over $3.5 million simply need to avail themselves of the services of a qualified estate planning attorney to implement measures to reduce or eliminate estate taxes.

Beware of these "Dirty Dozen" Tax Scams

From the IRS Newswire 2009-041:

WASHINGTON — The Internal Revenue Service today issued its 2009 “dirty dozen” list of tax scams, including schemes involving phishing, hiding income offshore and false claims for refunds.

“Taxpayers should be wary of scams to avoid paying taxes that seem too good to be true, especially during these challenging economic times,” IRS Commissioner Doug Shulman said. “There is no secret trick that can eliminate a person’s tax obligations. People should be wary of anyone peddling any of these scams.”

Tax schemes are illegal and can lead to problems for both scam artists and taxpayers who risk significant penalties, interest and possible criminal prosecution.

The IRS urges taxpayers to avoid these common schemes:

Continue Reading...

Last Minute Tax Tips and Reminders from the IRS

From the IRS Newswire issue IR-2009-040:

WASHINGTON — The Internal Revenue Service offers last minute reminders to taxpayers who have not yet filed a tax return, paid what they owe or requested an extension of time to file as the April 15 tax filing and payment deadline approaches.

Continue Reading...

Obama's Budget Proposal - Automatic IRAs

From my CPA colleagues at Virchow, Krause & Company - a summary of the proposals to help expand retirement savings.

Yesterday's Senate Action on the Estate Tax

U.S. Senate goes two ways on estate taxes. 

The U.S. Senate went two different ways on the estate tax, which has been a contentious issue for years — a tax congressional Republicans have villified as the “death tax”.

Senators voted 51-48 to include a provision in the fiscal 2010 budget that called for exempting estates at $5 million for individuals and limiting the tax to 35 percent — though the measure is non-binding and could be stripped out when the legislation is melded with a separate budget that passed the House of Representatives.

The amendment provoked a moment of drama in an otherwise long day of voting in the Senate where Democratic leaders scrambled to find the votes to kill the amendment, which scores some political points to those who have rallied against the estate tax for years.

The amendment was backed by several Democrats, including a couple senators facing tough re-election bids next year, Senators Blanche Lincoln of Arkansas and Patty Murray of Washington.

The New York Times was so incensed by the amendment it wrote the following in its lead editorial on Thursday:

“The proverbial millionaires next door — the plumbers, contra ctors and accountants who amass substantial wealth through hard work and modest living — are not the intended beneficiaries of the proposed cut. The Obama budget already takes care of them, because it retains today’s law, which imposes the estate tax only on couples with property worth more than $7 million, or individuals with property worth more than $3.5 million. That means 99.8 percent of estates will never — ever — pay a penny of estate tax.”

Senate Minority Leader Mitch McConnell argued that “No one should have to be taxed on their assets twice, and no one should have to visit the taxman and the undertaker on the same day. But if we can’t repeal this tax, then we should at least lower it at a time when Americans are already burdened by shrinking retirement savings.”

President had proposed in his budget plan keeping the estate tax exemption at its current level of $3.5 million and tax the rest at 45 percent.

But minutes later the Senate adopted a second amendment that would require a 60-vote threshold to change the estate tax rate and exemption beyond the current levels unless commensurate tax relief was offered those who earn less than $100,000 annually.

Since Republicans now have only 42 seats in the Senate, and 10 Democrats supported the earlier amendment, reaching 60 votes likely would be tough.

In any event, since the amendments are part of the non-binding budget resolution, the votes are really just symbolic.

The Octomom - I bet she hasn't done proper estate planning

The other day I started thinking about Nadya Suleman (the Octomom), the California single mother of 14 who has been in the news so much lately.  A professional hazard, I guess, but I wondered - has she done any estate planning? 

Does she have a Will?  If so, has she named a guardian or guardians for her 14 children (who would want that job!)?  Does she have a trust set up for the kids?  Who's the trustee?

Does she have a general and durable power of attorney in case she becomes incapacitated?

Does she have any (or enough) life insurance to at least partially provide for her children in the event of her death?

My guess is that she doesn't have any of these things.  Given her cavalier attitude about bringing more children into the world than she can possibly rear or support on her own, I bet she just assumes it will all work out.  If the State of California gets involved, which it certainly will if she hasn't done proper estate planning, the kids will most likely end up in custody of the State, placed in separate foster homes, receiving State support.

Octomom - if you care about your kids - go see an estate planning lawyer!

 

 

25th Anniversary of Triangle Community Foundation

The Triangle Community Foundation (TCF) is holding a celebration tonight of its 25th anniversary (I'm pleased to say that I will be attending).  The TCF is a tremendous asset to the greater Triangle area, providing millions of dollars annually in funding to local non-profits.

One feature of such charitable foundations is that one can establish a Donor Advised Fund (DAF) at the foundation for a particular area or areas of interest.  A tax-deductible contribution can then be made to the foundation, even if the funds under the DAF will not be distributed until later.

For example, I could set up a DAF with the TCF, to be focused on childrens' welfare.  I could contribute $10,000 to the TCF on December 31, 2009, and take a tax deduction.  Then, during 2010, I could suggest (advise) to the TCF that distributions be made to the Boy or Girl Scouts, UNICEF, BIg Brothers, Big Sisters, etc.

DAFs can also be established in one's Will or Trust, with one's children or other family members serving as the advisers.  DAFs are much simpler and less expensive than family private foundations, although private foundations do offer more control by family members.  I normally recommend against private foundations unless they will ultimately be funded with at least $1 million.

Happy birthday, TCF!

 

Another Reason to Avoid Probate in NC

The North Carolina Legislature is considering cuts of up to 24% in salaries of judicial system employees, which include Clerks of Court and their staff.  Obviously, this may lead to staff shortages and/or staff turnover, both of which may cause delays in processing probate documents, particularly Annual and Final Account.  As it is now, at times I have had wait several months for the filings to be approved.

Tags:

What You Need to Know to Choose a Nursing Home

Listen to this Podcast on the ElderLawAnswers website.

Religion, Medicine and Death

In this blog, mostly I write about taxes.  Sometimes I write about death or politics.  Often somber topics, but ones that will always be current.  Here's an article from The Economist dealing with death, end-of-life decision making, and religion, so I now I'm adding that subject into the mix.

Wagering on your NCAA Tournament Bracket? What are the Tax Implications?

The Final Four is set for this weekend, and my beloved Tar Heels have a good shot at winning the title.  In North Carolina and across the country, countless Americans have entered into NCAA office pools, and the winners will be determined Monday night.  Winners take heed, however - make sure you know the applicable tax rules.

Under the Internal Revenue Code (and thus in NC also), gambling winnings must be reported as taxable income. You cannot claim an overall tax loss for gambling activities, but you can generally claim losses as an itemized deduction -- up to the amount of your winnings. (Professional gamblers report winnings on Schedule C.)  Losses in excess of winnings are not deductible.

It's important to keep accurate records. Keep a diary or ledger of all your gambling activities that shows the type of gambling activity, the location, and the amounts won and lost. You can support the amounts with receipts, tickets, statements or other records that substantiate your claims.

Gambling income includes, but is not limited to winnings from lotteries, raffles, horse races, and casinos. It also covers cash winnings and the fair market value of such prizes as cars and trips.

P.S.  Don't forget that in North Carolina, as in many states, most gambling activities, inlcuding office sports betting pools, are illegal.  That does not mean that any winnings should not be reported, however.  It's more likely that you will get penalized by the IRS for not reporting gambling winnings than you will be charged with a gambling criminal offense.