Dividing Assets Among Adult Children

When children are young, the primary concern of parents is to provide for them. After they grow up, parents usually still want to provide for them in their estate plans.

If you have more than one child, and you plan for them to inherit your estate, you may wonder how to divide your assets. To help decide how to allocate your estate, answer these questions:

Are you comfortable distributing assets to your children outright?  If substantial assets are involved, you may want to set up trusts to distribute them gradually. For example, you might want them to be dispensed in thirds when each child reaches age 25, 30, and 35. You can always give the trustee discretion to make early distributions for expenses that you deem appropriate, such as paying for college, starting a business, or purchasing a home.

 

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North Carolina vs. Florida: Creditor Protection & Taxes

Many North Carolinians have winter homes in Florida, and even more Floridians have summer homes in the North Carolina mountains.  For those who live part-time in each state, there may come a time when they want to think about changing domicile from one state to another.  Others may simply be trying to choose between Florida and North Carolina to which to retire or otherwise move.  When it comes to offering protection for one's assets and less taxation, Florida wins hands down over North Carolina.   However Florida has high property taxes and homeowners' insurance rates, and there are many quality of life issues to consider. 

For a comparison chart of North Carolina and Florida on Creditor Protection and Taxes, click "Continue Reading."

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Take Advantage of Recovery Act Tax Credits

The White House has launched an Tax Savings Tool on its website to assist middle-class taxpayers in getting the most out of the various Recovery Act tax credits. 

The tax wizard asks for input about one's  filing status, salary range, recent home purchases, college expenses, and other questions relating to various tax credits provided by the Recovery Act.

Vice President Biden stated that “The big guys know all the credits and deductions to claim during tax season, but we want middle-class families to know just how much is out there for them this year thanks to the Recovery Act and how to take advantage of it.  From help with college expenses to credits for cost-saving, energy-efficiency home improvements, these Recovery Act tax credits not only provide some needed relief for working Americans, but also help them invest in their families’ futures.”

Thanks to Brian Dooley, CPA, for this news.

Tax Consequences of Equitable Distribution

My article, Tax Consequences of Equitable Distribution, which discusses the income tax issues involved in the division of property due to divorce, was just published in Core Compass, an online newsletter for real estate investors and their advisors.

NC Medical Society Website - A Resource for Advance Directives

In addition to attorney-prepared health care planning documents like Health Care Powers of Attorney, Living Wills and HIPAA Authorizations, I often talk to clients about Do Not Resuscitate (DNR) Orders and the newer Medical Order Scope of Treatment (MOST) Form.  These two forms can be obtained only from one's physician, and must be signed by the physician to be valid.

Laypersons often get Living Wills and DNRs confused, and many physicians are unaware of the MOST form.  For those who are elderly or seriously ill, a conversation with one's physician about whether or not to use a DNR or MOST is in order.  The North Carolina Medical Society's website contains quite a bit of information and sample forms.

 

Update on Health Care Surtax

The Reconciliation Bill (H.R. 4872),  which passed the House and has gone to the Senate contains a 3.8% surtax on investment income for single taxpayers with modified adjusted gross income (MAGI) over $200,000, and married taxpayers with MAGI over $250,000.  The tax, which will begin in 2013, is levied on interest, dividends, rents, royalties and capital gains, beginning in 2013, but not retirement benefits.

Health Care Reform Will Bring Higher Taxes

 The Health Care Reconciliation bill includes a new 3.8% Medicare tax on investment income, which includes IRA distributions, interest income (including tax exempt), dividends, capital gains, rental income and oil royalties. 

Under H.R. 3590, there is also a 1% increase in the employee Medicare tax on all earnings.  Taxpayers with income under $100,000 will benefit from partial exemptions.

Congress has promised the two new taxes are temporary (10 years or so)- but don't hold your breath.

 

10 Year Minimum GRAT Approved by Ways and Means Committee

The House Ways and Means Committee has approved H.R. 4849. The "Small Business and Infrastructure Jobs Tax Act of 2010," which contains a provision instituting a 10 year minimum for Grantor Retained Annuity Trusts (GRATs).  GRATs are commonly used to transfer wealth to younger generations at no or little gift tax costs.  The restriction would be effective upon enactment of the law.

If you are considering a GRAT, now is the time to act!

Click "Continue Reading" for the pertinent text from the report by the staff of the Joint Committee on Taxation.

 

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Airplane Kills Jogger Story offers Example of Necessity of Estate Planning

Most everyone in the country has heard about the Georgia husband and father, Robert Gary Jones, who was killed by an airplane while jogging on the beach on Hilton Head Island, South Carolina.  This accidental death will no doubt spur a lawsuit against the pilot of the plane, Edward I. Smith.

As an estate planner, this tragic story prompted several questions in my mind:

  • Did Mr. Jones have a will or trust that would help save taxes and protect his assets for the benefit of his family?
  • Did he have sufficient life insurance to provide support for his wife and young children, including college education for the kids?
  • Had he discussed his wishes for funeral arrangements and disposition of his remains with his wife?
  • Does Mr. Smith have sufficient liability insurance coverage to pay the damages that will be demanded from Mrs. Jones?
  • Did Mr. Smith arrange his assets in a way that will help protect him and his family from the devastating effects of a wrongful death lawsuit?

 This event is an example of the fact that one never quite knows what will happen, including a sudden death.  Don't leave yourself and your family exposed - contact an estate planning attorney today.  Preparation may not prevent incidents from occurring, but it sure can ease the effects of the aftermath.

 

 

 

 

 

The 2010 "Dirty Dozen" List of Tax Scams

From IR-2010-32:

WASHINGTON — The Internal Revenue Service today issued its 2010 “dirty dozen” list of tax scams, including schemes involving return preparer fraud, hiding income offshore and phishing.

“Taxpayers should be wary of anyone peddling scams that seem too good to be true,” IRS Commissioner Doug Shulman said. “The IRS fights fraud by pursuing taxpayers who hide income abroad and by ensuring taxpayers get competent, ethical service from qualified professionals at home in the U.S.”

Tax schemes are illegal and can lead to imprisonment and fines for both scam artists and taxpayers. Taxpayers pulled into these schemes must repay unpaid taxes plus interest and penalties. The IRS pursues and shuts down promoters of these and numerous other scams.

The IRS urges taxpayers to avoid these common schemes:

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Caring for an Elderly Parent - Letting Go

For those who have been through a similar experience, this poignant article Letting Go of My Father, which details Jonathan Rauch's struggles in caring for his elderly father, will solicit empathy.  For younger readers, it can provide a glimpse of things to come.

While the article does not cover the issue, the legal aspects of caring for an elderly relative can be greatly simplified by making sure a durable general power of attorney, health care power of attorney, living will and HIPAA authorization are in place early on.  Once an elder becomes mentally incapacitated, it's too late. 

Also, geriatric care managers can provide invaluable assistance, even when an elder is in facility, by monitoring health care, medications, etc.

Thanks to attorney Kathe Joyce for bringing the article to my attention.

 

 

Special Needs Trusts: Allowable Expenses

Special Needs Trusts (SNTs), also sometimes referred to as Supplemental Needs Trusts, are used to provide supplemental benefits to disabled or elderly persons receiving governmental benefits (such as Medicaid and SSI) while not disqualifying them for the benefits. 

There is a distinction between "self-settled" or "first party" trusts, which are funded with the disabled persons own assets, and most often called special needs trusts, and "third party trusts", which are set up by another person and funded with that person's money.  The latter are often referred to as supplemental needs trusts.  The laws regarding SNTs are very complex, and such trusts should be drafted only by attorneys experienced in that area of the law.

The administration of SNTs is also complex.  Only certain types of expenditures are allowed.  The wrong type of payments from the trust can disqualify the beneficiary from receiving governmental benefits.  I currently serve as trustee for several SNTs - given the many needs of a disabled beneficiary, it can be a demanding job.

For examples of what expenditures from an SNT are allowable, and those that aren't, click "Continue Reading."

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Inherited IRAs - the continuing saga in bankruptcy

I previously blogged about inherited IRAs being subject to the claims of creditors, both in (In Re: Jarboe) and outside of (Robertson v. Deeb) bankruptcy, and one case (In Re: Nessa) where an inherited IRA was determined to be protected under federal law.

Here's a summary of the latest ruling, which contradicts the Nessa holding, courtesy of Robert Keebler, CPA:

In In Re: Chilton, the United States Bankruptcy Court for the Eastern District of Texas found that an inherited IRA is not equivalent to an IRA for purposes of determining whether the account contains “retirement funds” that may be exempted from the bankruptcy estate under U.S.C. § 522(d)(12).  The Court also found that an inherited IRA is not a traditional IRA exempt from taxation under IRC § 408(e)(1).   In Re: Chilton, 105 AFTR 2d 2010-XXX, 03/05/2010;

There is really no way to reconcile the holdings in Nessa and Chilton, but the Nessa decision is clearly the minority view.  If you want to protect your IRA from your heirs creditors, it is vitally important to utilize a standalone IRA trust .
 

 

 

Battle to the Death (Tax)

Here's the latest on the fight over the future of the estate tax tax, from Bloomberg.com.  In general, Republicans and business lobbyists are pushing for a $5 million exemption and a 35% rate, while the Obama administration is counting on a $3.5 million exemption and a 45% rate.  If nothing is done, 2011 will bring a $1 million exemption and a 55% rate.

Does the IRS owe you money?

The IRS has announced that about 39,100 North Carolinians have unclaimed tax refunds, averaging $539 per person.  The total due North Carolina residents is $32,919,000.

However, to collect the money, a return for 2006 must be filed with the IRS no later than Thursday, April 15, 2010.

Some people may not have filed because they had too little income to require filing a tax return even though they had taxes withheld from their wages or made quarterly estimated payments. In cases where a return was not filed, the law provides most taxpayers with a three-year window of opportunity for claiming a refund. If no return is filed to claim the refund within three years, the money becomes property of the U.S. Treasury.

For 2006 returns, the window closes on April 15, 2010. The law requires that the return be properly addressed, mailed and postmarked by that date. There is no penalty for filing a late return qualifying for a refund.

The IRS reminds taxpayers seeking a 2006 refund that their checks will be held if they have not filed tax returns for 2007 or 2008. In addition, the refund will be applied to any amounts still owed to the IRS and may be used to satisfy unpaid child support or past due federal debts such as student loans.

By failing to file a return, people stand to lose more than refunds of taxes withheld or paid during 2006. For example, most telephone customers, including most cell-phone users, qualify for the one-time telephone excise tax refund. Available only on the 2006 return, this special payment applies to long-distance excise taxes paid on phone service billed from March 2003 through July 2006. The government offers a standard refund amount of $30 to $60, or taxpayers can base their refund request on the actual amount of tax paid. For details, see the Telephone Excise Tax Refund page on IRS.gov.

In addition, many low-and-moderate income workers may not have claimed the Earned Income Tax Credit (EITC). The EITC helps individuals and families whose incomes are below certain thresholds, which in 2006 were $38,348 for those with two or more children, $34,001 for people with one child and $14,120 for those with no children. For more information, visit the EITC Home Page.

Current and prior year  tax forms and instructions are available on the Forms and Publications page of IRS.gov or by calling toll-free 1-800-TAX-FORM (1-800-829-3676). Taxpayers who are missing Forms W-2, 1098, 1099 or 5498 for 2006, 2007 or 2008 should request copies from their employer, bank or other payer. If these efforts are unsuccessful, taxpayers  can get a free transcript showing information from these year-end documents by calling 1-800-829-1040, or by filing Form 4506-T, Request for Transcript of Tax Return, with the IRS.

From IR-2010-24.

 

Asset Protection for the Rest of Us

Members of America's middle class should be a lot more concerned about protecting their assets from creditors than from the so called "death tax."  While the very wealthy can use offshore trusts and other complex entities, such planning is cost prohibitive for most of us.  However, there are many other things that can be done to protect one's assets.  Check out this concise post by fellow attorney Ike Devji that reflects what I tell my own clients: Asset Protection for the Middle Class?