J.S. Burton Blog
Wednesday, May 4, 2016
How can I provide for a troubled heir in my estate plan?
When it comes to estate planning, some individuals are faced with the prospect of leaving property to a beneficiary who is not financially responsible or has other issues that may cause him or her to spend through the inheritance. One way to avoid leaving property to an heir who may squander it is to establish a spendthrift trust.
What is a Spendthrift Trust?
In short, a spendthrift trust is designed to limit access to principal in order to protect it from the beneficiary or his or her creditors. Rather than providing trust property directly to the beneficiary, the grantor names a trustee who is tasked with providing a regular payment to, or buying goods and services for, the beneficiary.
Spendthrift trusts are particularly effective when the beneficiary does not know how to handle money, has an addiction to drugs or alcohol, is susceptible to being taken advantage, or has a history of falling behind on debt.Read more . . .
Monday, May 2, 2016
Should I Incorporate My Business?
The primary advantages of operating as a corporation are liability protection and potential tax savings. Like any important decision, choosing whether to incorporate involves weighing the pros and cons of the various business structures and should only be done after careful research.
Once incorporated, the business becomes a separate legal entity, and assets of the corporation are separated from the owner’s personal finances. As a result, the owner’s personal assets generally can be shielded from creditors of the business.
To maintain this legal separation and avoid “piercing the corporate veil,” the corporation must observe certain formalities, including:
Keeping corporate assets and personal assets separate (no commingling of funds)
Holding shareholder and director meetings at least annually
Maintaining a corporate record book including bylaws, minutes of shareholder and director meetings, and shareholder records
Filing annual information statements with the Secretary of State
Filing a separate tax return for the corporation
Many business owners are concerned about “double taxation” of income that affects certain types of corporations known as “C-Corporations”. Double taxation results when the C-corporation has profit at the end of the year that is distributed to the shareholders. That profit is taxed to the corporation, at the corporate tax rate, and then the dividends are taxable income to the shareholders on their personal tax returns. However, the corporate tax and dividend rates can be lower than the individual tax rate that a sole-proprietor would pay on a 1040 Schedule C, and a knowledgeable accountant or tax attorney may be able to advise on how to minimize the burden of double-taxation and indeed pay an effective tax rate which is lower than what a sole proprietor would pay.
For example, a small C-Corporation will likely have a shareholder who is also an employee. Paychecks to the shareholder/employee are, of course, tax deductible to the business. To the shareholder/employee, they are taxable income (as would be the case with a paycheck from any employer). A bonus could be paid to the shareholder/employee in order to lower the corporation’s taxable profit, eliminating the double-taxation. These calculations should be performed by a tax advisor, but shifting income from the corporation to the shareholder/employee (or not, depending on which has the lower tax rate) can be an effective way to lower your overall tax liability. In addition, there are certain advantages that are only available with a C-Corporation, such as full tax-deductibility of medical benefits for a shareholder/employee.
The S-Corporation avoids the double-taxation by offering a tax structure similar to the Limited Liability Company. A corporation with 100 or fewer shareholders can elect to be treated as an S-Corporation. If the corporation is profitable, the shareholder/employee must draw a reasonable salary (and pay employment tax on it), but then all remaining corporate profits flow through to the shareholder’s personal tax return (thereby avoiding the FICA tax on the portion of profits that is taken as a dividend).
An experienced attorney can help you decide which form of ownership is best for your business, help you establish the entity, and ensure the required formalities are observed.
Monday, April 25, 2016
Senior Citizens Comprise Growing Demographic of Bankruptcy Filers
It’s called your “golden years” but for many seniors and baby boomers, there is no gold and retirement savings are too often insufficient to maintain even basic living standards of retirees. However, baby boomers are the fastest growing age group filing for bankruptcy. And even for those who have not yet filed for bankruptcy, a lack of retirement savings greatly troubles many who face their final years with fear and uncertainty.
Another study, conducted by Financial Engines revealed that nearly half of all baby boomers fear they will be in the poor house after retirement. Adding insult to injury, this anxiety also discourages many from taking the necessary steps to establish and implement a clear, workable financial plan. So instead, they find themselves with mounting credit card debt, and a shortfall when it comes time to pay the bills.
In fact, one in every four baby boomers have depleted their savings during the recession and nearly half face the prospect of running out of money after they retire. With the depletion of their savings, many seniors are resorting to the use of credit cards to maintain their standard of living. This is further exacerbated by skyrocketing medical costs, and the desire to lend a helping hand to adult children, many of whom are also under financial distress. These circumstances have led to a dramatic increase in the number of senior citizens finding themselves in financial trouble and turning to the bankruptcy courts for relief.
Whether filing for bankruptcy relief under a Chapter 7 liquidation, or a Chapter 13 reorganization, senior citizens face their own hurdles. Unlike many younger filers, senior citizens tend to have more equity in their homes, and less opportunity to increase their incomes. The lack of well-paying job prospects severely limits older Americans’ ability to re-establish themselves financially following a bankruptcy, especially since their income sources are typically fixed while their expenses continue to increase.
Wednesday, April 20, 2016
What are the tax implications of giving gifts to family members during your lifetime?
If you have substantial assets, it is natural to want to gift your family members from time to time, on special occasions, or to subsidize a particular purchase, trip, start-up business or educational venture. Nonetheless, it is important to be savvy about the tax implications of giving such gifts.
How do lifetime gifts affect your taxes?
Gifts given during your lifetime can affect your taxes on three levels:
- Your individual income taxes
- Your individual estate and gift taxes
- Capital gains taxes potentially paid by the recipient
Current federal law considers estate and gift taxes in combination. You are allowed a cumulative $5.45 million exemption ($10.
Read more . . .
Monday, April 18, 2016
Can You Be Fired for Having Bad Credit?
If you are feeling the pinch, you are not alone. Many Americans have experienced a decline in income, while expenses have continued to increase. Many have taken a significant hit to their credit scores and are considering bankruptcy. Others who are on the eve of foreclosure may be considering a bankruptcy filing to stop an imminent foreclosure sale.
Whatever the reasons, a common concern of many consumers who face mounting debt, or are considering filing bankruptcy, is whether such credit issues can affect their ability to obtain or keep a job or get a promotion. In short, no. Bankruptcy is a protected, fundamental right granted by the U.S. Congress to all Americans. Under federal law, employers are prohibited from discriminating against a worker because of a bankruptcy filing. Bankruptcy courts across the country have weighed in on this issue and have consistently upheld the anti-discrimination protections contained in the U.S. Bankruptcy Code.
Employees who have filed bankruptcy and are subsequently fired must prove that bankruptcy was the primary factor in the termination. If the employer can prove there were other reasons for the termination, the employee’s wrongful termination claim will fail. Similarly, it is a violation of the law to refuse to hire or fail to promote an employee solely on the basis of a bankruptcy filing.
Monday, April 11, 2016
Issues to Consider When Gifting to Grandchildren
Many grandparents who are financially stable love the idea of making gifts to their grandchildren. However, they are usually not aware of the many issues related to what many consider to be a simple gift. If you are considering making a significant gift to a grandchild, you should consult with a qualified attorney to guide you through the legal and tax issues that are involved.
Making a Lifetime Gift or a Bequest: Before making a gift, you should consider whether you want to make the gift during your lifetime or leave the gift in your will. If you make the gift as a bequest in your will, you will not experience the joy of seeing your grandchild’s appreciation and use of the gift. However, there’s always the possibility that you will need the money to live on during your lifetime, and in reality, once a gift is made it cannot be taken back. Also, if you anticipate needing Medicaid or other government programs to pay for a nursing home or other benefits at some point in your life, any gifts you make in the prior five years can be considered as part of your assets when determining your eligibility.
What Form Gift Should Take: You may consider making a gift outright to a grandchild. However, once such a gift is made, you give up control over how the funds can be used. If your grandchild decides to purchase a brand-new sports car or take an extravagant vacation, you will have no legal right to stop the grandchild. The grandchild’s parents could also in some cases access the money without your approval.
You could consider making a gift under the Uniform Gift to Minors Act (UGMA) or the Uniform Transfer to Minors Act (UTMA), depending on which state you live in. The accounts are easy to open, but once the grandchild reaches the age of majority, he or she will have unfettered access to the funds. You could also consider depositing money into a 529 plan, which is specifically designed for education purposes. Finally, you could consider establishing a trust with an estate planning attorney, which can be more expensive to set up, but can be customized to fit your needs. Such a trust can provide for spendthrift, divorce and creditor protection while allowing for more flexibility for expenditures such as education or purchase of a first home.
Tax Consequences: If you have a large estate, giving gifts to grandchildren may be a great way to get money out of your estate in order to reduce your future estate tax liability. In 2016, a single person can pass $5.45 million at death free of estate tax, and a couple can pass a combined $10 million without paying estate taxes. In addition, a person can give $14,000 in 2016 to any number of individuals without incurring any gift taxes. A grandparent with 10 grandchildren could give $140,000 per year to all grandchildren (and a married couple could give $280,000), thereby removing that property from his or her estate.
Monday, April 4, 2016
How are cost-of-living increases determined for veterans who receive VA benefits?
Veterans who receive benefits such as disability compensation, payouts for dependants and other Veterans Affairs living allowances typically receive Cost-of-Living Adjustments (COLA) annually, much as the recipients of Social Security benefits do. While COLA benefits for the latter group are automatic, recipients of veterans' benefits depend on intervention by Congress each year to approve cost-of-living increases.
What is a Cost-of-Living Adjustment (COLA)?
A Cost-of-Living Adjustment is an annual increase to Social Security, Supplemental Security Income, and VA Benefits to offset the effects of inflation. These increases are pegged to the percentage increases in the Read more . . .
Friday, March 18, 2016
How are con artists selling seniors unnecessary living trusts?
While a living trust can be an important tool in estate planning, it is not useful in all cases. A living trust serves as a substitute for a will, but, unlike a will, is not subject to probate. The advantages of this are that it is a more private document than a will and is less prone to being contested.
For whom are living trusts inappropriate?
As mentioned, living trusts are not always helpful. They are particularly inappropriate for senior citizens living on fixed incomes with limited assets. Nonetheless, there has been a recent increase in scam artists preying on the elderly by selling Living Trust Kits as if they were essential. These frauds are rounding up seniors by the boatload -- through public seminars and by phone, mail, and door-to-door solicitation -- in order to exploit their trust and naiveté. In this way, too many unsuspecting seniors have been sold estate planning tools that they do not require and can ill afford.
Beware of High-Pressure Tactics
Scammers of all kinds use similar tactics. In this case, where seniors are the targets, the con artists typically approach their victims with teasers they believe will focus on the latter's vulnerabilities, such as:
- Companionship and friendship
- Scare tactics exaggerating death taxes and legal fees
By convincing the seniors they victimize that they (the scam artists) are their friends and will protect them from passing financial hardship onto their inheritors, the unscrupulous sellers rob vulnerable seniors of what few assets they have.
According to the 2015 True Link Report on Elder Financial Abuse, this kind of exploitation is costing U.S. seniors $17 billion annually, since every $20 loss adds to an approximate annual loss of at least $2,000. This is because once scammers gain a senior's trust, they most often manipulate the victim into further financial missteps, such as purchasing additional annuities or unnecessary insurance policies.
How To Protect Yourself from Financial Scammers
In addition to being generally alert and wary of anyone who seems very friendly but is trying to sell you something, you can protect yourself from scam artists by:
- Never signing any document that you don't fully understand
- Not yielding to overly "friendly" gestures, such as gifts or repeated phone calls
- Not giving in to the pressure of time-limited offers
- Checking out any supposed affiliations to familiar organizations or government agencies (AARP for example, does not endorse any company that sells living trusts)
- Be aware of your right under the Federal Trade Commission's "Cooling Off Rule" to cancel any purchase within 3 days if it was made anywhere but in the seller's permanent place of business
It is always wise to do your estate planning with an experienced, reputable estate planning attorney. Resisting the temptation of solicitations of fly-by-night unknown salespeople will keep you safe and protect your assets.
Monday, February 22, 2016
What type of tax and estate planning benefits do trusts offer?
Whether you already have an estate plan or are just now creating one, you may want to consider how helpful trusts can be in achieving your goals.
What is a trust? Simply put, it is a contract between you and a trustee, a person whom you appoint to manage and distribute your wealth as you instruct. Laws in virtually every jurisdiction require trustees to respect the terms of the trust. People at all income levels can benefit from some of the advantages trusts offer.
Probate is a time-consuming process in which a court affirms the validity of your will. It can leave assets in limbo while your heirs wait for estate planning lawyers and the courts to plod through legal procedures. Assets placed in trust, however, can avoid probate.
Just like a will, a trust lets you specify who receives your assets and when. It can be a "revocable trust," meaning that you can continue to control the assets and change your mind up until your death. Additionally, if there are aspects of your estate that you would like to keep private, a trust can help you to do so. A will, on the other hand, may become public as part of probate.
Instead of simply handing off wealth, trusts ensure that your legacy is handled in the manner you choose. You can choose a trustee to manage and distribute the wealth according to terms you set. You can provide safeguards to protect children who are not yet ready to handle wealth, and you can safeguard assets in the event of a divorce. Trusts can also shield assets from creditors.
"Irrevocable" trusts remove assets from your estate, potentially reducing or eliminating estate taxes. Some trusts, such as so-called Grantor Retained Annuity Trusts (GRATs) allow you to hold onto principal while giving away only future appreciation of your assets, reducing estate taxes on those gains while preserving your peace of mind.
Varieties of Trusts
There are many types of trusts, such as life insurance trusts or charitable trusts, each established to accomplish a different set of goals and each offering different advantages. Some can be a win-win financially, offering tax benefits now and more wealth for your family later. The advantages of trusts should not be overlooked. An estate planning attorney or financial advisor can help you determine how a trust may fit into your financial plan and help you maximize your estate and your legacy.
Friday, February 19, 2016
Can hybrid life insurance help to pay the costs of long-term care?
Long-term care insurance is designed to cover a wide range of services for care of the elderly, including personal and custodial care in a variety of settings, such an individual's home, a community organization, or other facility. These insurance policies reimburse policyholders for certain amounts of services to assist them with daily activities such as bathing, dressing, or eating.
The cost for long-term insurance is based on a number of factors, including:
- A person's age at the time the policy is purchased
- The maximum amount that a policy will pay per day
- The length of time (days or years) that a policy will pay
Currently, the cost of long-term care insurance is becoming more expensive. Moreover, many consumers may not qualify for such insurance, depending on their age and any pre-existing health conditions. In light of these situations, one alternative is so-called "hybrid" life insurance policies.
What is a hybrid life insurance policy?
Hybrid policies are essentially life insurance policies with a long-term care rider, or additional coverage that can be added to an existing policy. Some common riders include the accidental death rider, the guaranteed insurability rider, the waiver of premium rider, and the family income benefit rider.
Do I need a long-term care rider?
Hybrid life insurance policies are well-suited for individuals in their later 40s to early 70s who are concerned about rising long-term care costs as well as protecting the value of their estates. These policies are also more cost-effective than traditional, stand-alone long-term care insurance. However, a long-term care rider cannot be added after life insurance has been purchased.
Who is eligible for hybrid life insurance?
In order to qualify for hybrid life insurance, an individual will need to undergo a medical exam and insurers may also require copies of medical records and physician statements. Ultimately a long-term care rider will provide assistance in the event of an illness or injury that prevents an individual from performing daily activities like eating or bathing.
In the end, there are limits to how much protection long-term care insurance and hybrid life insurance can provide. If care is needed for an extended period of time, the policy could be depleted and other assets may be needed to pay for long-term care. The best way to protect the assets of an estate and ensure for long-term care is to consult with a qualified estate planning and elder care attorney.
Friday, January 29, 2016
What are the risks of waiting to create an estate plan?
It is a common belief that estate planning is only for the elderly, terminally ill and very wealthy. However, everyone can benefit from a well-drafted estate plan, regardless of his or her age, health or socioeconomic status. Failing to have an estate plan can expose an individual to a number of risks. While nobody wants to think about death, or the possibility of becoming disabled or incapacitated. Unfortunately, incapacity happens more frequently than people realize. With people living longer the chances of becoming incapacitated have increased significantly. Therefore, a well designed estate plan will take this into account. Without the appropriate estate planning documents, such as a durable power of attorney and advanced medical directives such as a living will for example an individual’s wishes will not be followed or worse, will be totally unknown.
Another problem with waiting to create, or totally foregoing, an estate plan, is that it will make it much less likely that the wishes you have relating to after your death will be followed. Whether you want your assets distributed in a certain way, you want a particular send off or you desire a particular guardian for your children, without an estate plan it is unlikely that these wishes will be fulfilled. This is because without a will the law of your state will dictate how these matters will be handled. These laws do not take into account the deceased’s desires.
If you have particular wishes about how your matters relating to the end of your life or the time after your death are handled, it is best to have an estate plan so that your wishes are carried out. An experienced trusts, estates and elder law attorney
can help you put together a comprehensive plan.