Category Archives: Articles

What role do relationships play in estate planning?

By Attorney Truman Scarborough

Estate planning evolves around two subjects: assets and relationships. Generally, it is the relationships that present the greatest challenges. While it is important to have our financial affairs in order, life presents demands beyond “balancing the checkbook”. An estate plan must respond to many complex relationships that may be in conflict with each other.

With most legal issues there is a logical analysis of factual information. But, the subjective nature of relationships makes estate planning more involved. Estate plans are developed from feelings and desires of the heart as well as rational thoughts of the mind. Other areas of law may focus on specific problems, but with estate planning, there is a holistic approach. A contract for the purchase of a home or a lawsuit addresses particular issues, but in estate planning, we are concerned with all the people, possessions, and values that define and bring meaning to our lives. Because each of us is unique in unseen ways, two apparently similar people may seek significantly different estate plans. Each plan is personal in its own special way.

In estate planning, the primary issue is: Who should inherit? When the first spouse dies, normally everything goes to the surviving spouse, unless there are children from prior marriages. When there are children the question will be: When both parents die, should the children be treated equally? What if the parents provided a less fortunate child with significant financial assistance over the years? Should that child receive a lesser share at the time of death to equalize the distributions? It may also seem appropriate that the less fortunate child be given a greater share at the time of death because his/her needs will continue in the future. What if one child is the parent’s primary care giver? Should the parent leave more to the child who has sacrificed to care for the parent? When should a child be completely excluded as a beneficiary? Perhaps the parents are estranged from a child or one child may not need the funds because he/she is extremely wealthy. When there are no children, there are a number of potential beneficiaries including organizations, friends, siblings, nieces and nephews.

When beneficiaries have problems like substance abuse or just cannot handle money responsibly, it may not be wise to directly distribute their inheritance to them. If a beneficiary has creditor or marital problems the inheritance could be lost in a lawsuit or divorce. For protection, should the gift be distributed to a special trust for the beneficiary? This trust can contain spendthrift provisions to prevent creditors from reaching the trust assets. Should the trustee be also given complete discretion on when and how much is distributed to the beneficiary for added protection?

The next major issue in estate planning is: Who should settle the estate? The child who has the time and is most capable would appear to be the logical choice. But, it can be more than a business matter. Could sibling conflicts make it difficult for a child to administer the estate? Is the solution to have a non-relative or a financial institution settle the estate? Alternatively, is there a need to name Co-Trustees or Co-Personal Representatives so a child would not feel excluded or so he/she can help the other child settle the estate?

 

For further information on estate planning, you may be interested in Attorney Truman Scarborough’s Booklet on Estate Planning in Florida. It is available without charge or obligation by calling (321) 267 – 4770. His office is located at 239 Harrison Street, Titusville, Florida.

 

 

 

 

 

 

 

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Why do some estates take longer to settle?

 

By Attorney Truman Scarborough

 

The length of time it takes to settle an estate depends on: 1] whether the decedent’s records are accessible and organized; 2] the competency and diligence of the administrator; 3] the overall complexity of the estate; 4] whether the estate has to be probated; 5] the type of assets (real estate having the potential of presenting more problems); 6] the nature and extent of creditor claims against the decedent; 7] any difficulties with the decedent’s taxes; 8] whether the heirs have their own financial, marital, or substance abuse problems; 9] whether there is underlying family hostility; and 10] whether someone decides to challenge the Will or Trust in the court.

There are many reasons to bring the administration of an estate to a conclusion as soon as possible. The obvious reasons are to let the beneficiaries enjoy their inheritances and limit expenses (which tend to go up proportionally with the time and work involved). An open estate also allows unforeseen events to complicate and delay settling the estate. Here are three examples:

1] An estate must remain open until all creditor claims are settled. If a car titled in the decedent’s name is in an accident, the estate cannot be closed before resolving the issue of liability.

2] Until the home is sold or transferred to the beneficiaries: it can be difficult to obtain homeowner’s insurance; it will lose the homestead tax exemption; and if unoccupied, it is more likely to be vandalized.

3] If a beneficiary dies before receiving his/her inheritance, a probate estate must be opened to receive the deceased beneficiary’s share. When a beneficiary survives the decedent, his/her interest is vested (locked in) and must be distributed to that individual. The problem is the law does not allow distribution to a deceased individual. Therefore, a probate estate must be opened for the deceased beneficiary to receive the gift. Having to probate the deceased beneficiary’s estate causes delays.

In addition to organizing records and selecting a competent administrator, one way to shorten the time to settle an estate is to avoid probate. When a person dies, no one is empowered to sign the decedent’s name and property just in the decedent’s name without beneficiaries is frozen. A Power of Attorney does not help, since it is effective only while the creator is living. It is similar to an employer – employee relationship. If an employer goes out of business there are no employees. A Will by itself does not transfer property but works through the probate process. Beneficiaries generally do not receive their inheritance until the end of the formal probate process, approximately six months from the time pleadings are first filed with the court.

The Revocable Trust is frequently used to avoid probate. With a Trust, the successor trustee has immediate control of the decedent’s assets. It is like a corporation, where if the president dies his successor immediately takes control. No court authorization is required.

Perhaps, one of the kindest gifts we can leave our heirs is allowing them to have a prompt smooth transfer of assets so they can move on with their lives. With proper planning, the burden on those we ask to settle our affairs can be reduced and beneficiaries can enjoy their inheritance without unnecessary delays.

 

For further information on your estate planning options you may be interested in Attorney Truman Scarborough’s Booklet on Estate Planning in Florida. It is available without charge or obligation by calling (321) 267 – 4770. His office is located at 239 Harrison Street, Titusville, Florida.

 

 

 

 

 

 

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Are there income tax issues in settling an estate?

By Attorney Truman Scarborough

When a person dies, the successor trustee of a trust and the personal representative (executor) of a probate estate have various responsibilities to the court, the beneficiaries, the creditors, and the Internal Revenue Service. What is required of a successor trustee and a personal representative can be substantially different. For example, a successor trustee should have no involvement with the courts, unlike the personal representative of a probate estate. The specific obligations to creditors and beneficiaries also vary depending on whether there is a trust or probate estate.

In an earlier article, we examined who is responsible for a decedent’s bills. With this discussion, we look at obligations to the Internal Revenue Service for income taxes. While a trustee’s and personal representative’s responsibilities to the courts, creditors, and beneficiaries vary considerably, their responsibilities for income tax are similar.

There is also a responsibility for estate taxes. However, since federal estate taxes only become an issue when an estate is over $5,450,000 in value, the following discussion is limited to income taxes, which apply to all estates regardless of value. There are other related tax topics that are beyond the scope of this article including: “stepped up basis” for appreciated assets; which type of beneficiaries bear the burden of paying the taxes; state estate/inheritance taxes; IRA distributions; and, income tax issues for the beneficiaries.

When someone passes away, a tax identification number (EIN) must be obtained from the IRS for the probate estate and/or trust. The EIN is like a social security number for artificial legal entities, such as corporations, irrevocable trusts, and probate estates. Financial institutions need this number to report income since they can no longer report income under the decedent’s social security number. With a revocable trust, while the creator is living, income is reported under the social security number. But when the creator of the trust dies, the trust becomes irrevocable and income must be reported using an EIN.

Annual income is reported on 1099s. For the portion of the year when the decedent was living, the 1099s will show the decedent’s social security number. Income earned after the decedent passed away is reported on 1099s using the EIN.

A 1041 fiduciary income tax return is filed for income received under the EIN. There is a substantially higher tax rate on a 1041 than on an individual 1040 return. To avoid the higher tax rate, income can be distributed to the beneficiaries. These distributions are shown on Schedule K-1s so the income tax can be paid by individual beneficiaries at the lower rate.

A personal representative and/or successor trustee is required to file these tax returns and can be personally liable to IRS for the decedent’s taxes. This may include taxes the decedent failed to pay in prior years. The accountant who is preparing the returns may suggest filing:

 

  • IRS Form 56 (Notice Concerning Fiduciary Relationship): This is filed when the duties are first assumed and then again when the duties are completed.

 

  • IRS Form 5495 (Request for Discharge from Personal Liability): IRS has three years to review returns to determine if additional taxes are due. When Form 5495 is filed, the review takes place in nine months at which time the personal representative and/or trustee will be released from further personal liability.

 

 

For further information, you may be interested in Attorney Truman Scarborough’s Booklet on Estate Planning in Florida. It is available without charge or obligation by calling (321) 267 – 4770. His office is located at 239 Harrison Street, Titusville, Florida.

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What Happens if a Beneficiary Dies?

senior couple

By Attorney Truman Scarborough

 

All of our beneficiaries (those who inherit our estates) will someday die. Not planning for what will happen if a beneficiary dies can have unexpected and costly consequences. Complications can arise with life insurance policies, payment on death (POD) accounts, transfer on death (TOD) accounts, wills, and trusts. In this article we will look at some of the problems that may be encountered when a beneficiary dies 1] before the person who is making the gift dies, 2] after the person making the gift dies but before receiving the gift, and 3] after receiving the gift.

 

1] If the beneficiary dies before the person making the gift: The law prohibits us from leaving property to a deceased person. When there are no named living beneficiaries, TOD and POD accounts as well as life insurance policies are paid to the decedent’s estate, requiring probate. While beneficiary designations can be updated if the beneficiary dies, we might forget. Therefore, it is best to plan for the possible death of the primary beneficiary by naming contingent beneficiaries.

 

With a will or trust a gift to a deceased beneficiary will lapse (go away) unless protected under Florida’s anti-lapse statutes (discussed below). When a specific gift (e.g. $10,000 or the home) lapses it becomes part of the residual estate (what is left after distributing specific bequests). If the lapsed gift is part of the residual estate, it goes back into the pot to be divided among the remaining residual beneficiaries. If there are no living beneficiaries, it goes to the decedent’s heirs at law. (These are the persons who would inherit under Florida Statutes when there is no will)

 

The Florida’s Probate and Trust Codes have anti-lapse provisions which provide that a gift will not lapse if the deceased beneficiary is a descendant of a grandparent. In that case, the gift goes to the deceased beneficiary’s lineal descendants: first to children and if a child has died to his/her children. However, rather than relying on Florida Law,   it is always best to specify who will receive a gift if the primary beneficiary dies.

 

 

2] If the beneficiary dies after the person making the gift but before distribution: If the beneficiary survives the person creating the will or trust but dies before receiving the gift, the gift is distributed to the deceased beneficiary’s probate estate. This will delay closing the primary estate until a probate estate is opened for the deceased beneficiary to receive the distribution. A way to avoid this is by having beneficiaries direct who will receive their inheritance should they die before distribution.

3] If the beneficiary dies after receiving distribution: Once a beneficiary has received the property it is his/her’s and will be part of his/her estate when he/she dies. But what if you do not want a child’s spouse to receive the money if your child dies first? A way to prevent this is to hold the child’s inheritance in trust for him/her and specify who will receive the balance upon the child’s demise. The problem is finding a trustee who will be there to distribute the funds to the beneficiary over his/her life time and then at the beneficiary’s demise distribute remaining funds to the final beneficiaries. A contingent trustee must be named in case the initial trustee dies before the beneficiary.

 

For further information you may be interested in Attorney Truman Scarborough’s Booklet on Estate Planning in Florida. It is available without charge or obligation by calling (321) 267 – 4770. His office is located at 239 Harrison Street, Titusville, Florida.

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Operation Gratitude Still Going Strong

by Freddy Groves

 

In just 30 days, Operation Gratitude recently sent 16,000 care packages

to service personnel in harm’s way. It started with a request for 7,000

packages. A week later OpGrat received a request for another 2,200

packages. Almost immediately another request came in, this time for 7,000

more packages. It took hundreds of volunteers, but those packages went

out quickly. The non-profit group has sent out more than 1 million care

packages over the years.

 

Operation Gratitude’s mission is to lift morale, bring smiles to the faces

of service personnel and express our appreciation. Each box is loaded with

goodies, many of them expensive and (thankfully) donated by corporations,

as well as snacks and homemade items — and letters. The personal letters

are one of the most appreciated items in the packages. Check the website

for more information.

 

One big problem is the cost of mailing the packages. Each one costs $15,

and the group doesn’t get any discounts from the U.S. Postal Service.

That’s one area where you can help, especially if you don’t live in

California and can’t assist with packing and the many other details. The

mass mailing in that one month cited above cost $240,000 for shipping

alone. To make a donation, go online to www.OperationGratitude.com and

scroll to the Donate button.

 

Explore the website to find other ways you can help: Donate a phone, and

it nets OpGrat $30. Shop at AmazonSmile. Buy an item on the Operation

Gratitude wish list on Amazon.com to be shipped to them. Sew scarves and

hats for the boxes. Create Paracord Survival Bracelets (see website for

instructions).

 

To send checks (but no other items):

Operation Gratitude

P.O. Box 260257

Encino, CA 91426-0257

 

Freddy Groves regrets that he cannot personally answer reader questions,

but will incorporate them into his column whenever possible. Send email to

columnreply2@gmail.com.

 

(c) 2014 King Features Synd., Inc.

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Start Planning Now for Holiday Visits

by Freddy Groves

 

It’s not too early to start planning a holiday party for local veterans

in hospitals, nursing homes or rehab centers. The first step is to look

at your resources. Are you in a veterans service group? Or will you be by

yourself?

 

Call the intended location about hosting a holiday party. Inquire about a

date in December and its setup. Is there a dining room where you can hold

a party? Or will you be going from bed to bed in a ward? How many beds?

Decide what you can afford to do. A box of small gifts for each veteran —

complete with tissue paper, holiday wrapping paper and a bow — is ideal.

If that’s not possible, host a pizza/snack party. Estimate costs now so

you’ll be prepared, and start taking cash donations from your group. Get

your friends and group members to start collecting shoeboxes, the ideal

container for gifts.

 

Ask medical staff for suggestions for the gift boxes, but consider puzzle

books and mechanical pencils, handheld games, military caps or T-shirts

(call local recruiters), pens and stationery, thick socks, handkerchiefs,

small calendars, phone cards, $5 hospital canteen coupons and small

baggies of holiday candies and chocolates.

 

If you’ll have a space for a party, arrange for decorated tables. Ask what

the facility can provide to save money. Use a portable CD player with

holiday music and have a Christmas carol sing-along. Even better: Invite

someone you know who plays an electronic piano. Find a Santa suit and

someone to wear it.

 

Enlist helpers from your group of retired military. If you have active

military contacts, contact them too. Remember: The best gift you can give

hospitalized veterans is your presence and your ear.

 

Freddy Groves regrets that he cannot personally answer reader questions,

but will incorporate them into his column whenever possible. Send email to

columnreply2@gmail.com.

 

(c) 2014 King Features Synd., Inc.

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Adaptive Sports Get VA Grant

by Freddy Groves

 

The Department of Veterans Affairs is putting up $8 million for grants

to providers of adaptive sports opportunities for disabled veterans and

members of the armed forces.

 

A lot goes into providing events and opportunities: training, supplies,

coaches, equipment, recreation therapists, program development and more,

right in the veteran’s community. For more advanced athletes, there

are the Paralympic and adaptive sport programs on regional and national

levels. The grant money will be very welcome and might even result in

additional programs being created across the country. (In addition, when

training for the Paralympics, there’s a monthly training allowance.)

A few examples of upcoming events: Summer Sports Clinic in San Diego,

Sept. 7- 12; Tee Tournament in Iowa City, Iowa, Sept. 8-11; Warrior Games

in Colorado Springs, Colo., Sept. 28-Oct. 4; Creative Arts Festival in

Milwaukee, Oct. 27-Nov. 2.

 

To learn more about these events, go online to www.va.gov/adaptivesports.

If you wonder if one of the adaptive sports programs is for you (or

someone you know), go to the website and click around. Look at the Mission

Re-Defined video. (Warning: There is a 3-second IED explosion at the 25-

second mark on the video. It passes quickly.)

 

To find ongoing activities and sports clubs near you, click on Search by

Location and put in your ZIP code. (Don’t search by your state because I

found at least one that was misfiled.) You’ll see a list of clubs along

with contact information, including phone and email. Click on each entry

to see which activities are offered and which disability groups are

supported.

 

The variety of available activities is wide ranging: paddle sports,

basketball, shooting, wheelchair tennis, rugby, water skiing, cross-country

skiing and much more. There’s something for everyone.

 

Freddy Groves regrets that he cannot personally answer reader questions,

but will incorporate them into his column whenever possible. Send email to

columnreply2@gmail.com.

 

(c) 2014 King Features Synd., Inc.

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The Devil’s in the Detail

by Freddy Groves

 

The Department of Veterans Affairs has issued a Notice of Funds

Availability (NOFA) to provide transitional housing and support services

to veterans with special needs. A $5 million grant will go to 25

organizations (if they reapply for funding) in 11 states to provide

housing services to veterans who are women, frail elderly, terminally ill,

chronically mentally ill or who care for minor dependents.

 

Eligible programs must provide up to 24 months of housing or services,

such as case management, crisis intervention, counseling and so on. The

goal, quoting from the news release, is to help “homeless veterans achieve

residential stability, increase their skill levels and income, and gain

greater self-determination.”

 

Sounds great, but the fine print is confusing. A notice in the Federal

Register outlines the details. Here are some of the services provided:

* Frail elderly are to receive services for safety, opportunities to stay

mentally and physically agile, walkers or other necessary devices, and

monitoring of medications.

 

* The terminally ill program will help address end of life issues, provide

transition and closure actions, and provide legal counsel and pain

management.

 

* For the chronically mentally ill, it will help participants engage with

the community, facilitate reintegration and ensure opportunities to re-
establish relationships with family.

 

* For those who care for minor dependents, the program will provide

transportation, offer referrals for child care and ensure health needs are

met, especially immunizations.

 

* For women, it will ensure transportation, especially for health and

education, and will address safety and security issues.

Doing the math, the $5 million could give $200,000 to each organization,

if divided evenly … except the fine print of the Federal Register notice

says that $3.5 million is expected to be made available.

 

Where’s the other $1.5 million?

 

Freddy Groves regrets that he cannot personally answer reader questions,

but will incorporate them into his column whenever possible. Send email to

columnreply2@gmail.com.

 

(c) 2014 King Features Synd., Inc.

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Women Veterans React Differently to TBI

by Freddy Groves

 

Treatment of veterans with Traumatic Brain Injury has been difficult

because of the many symptoms that the illness presents. Now add another

barrier … there are differences in symptoms between men and women.

Women veterans with TBI suffer from chronic pain, joblessness, PTSD,

homelessness and depression in greater numbers than male veterans. They

are more likely to suffer from anxiety, neurological problems and sleep

disorders. Additionally, women veterans are more likely to suffer from

multiple symptoms. If PTSD is part of the package, women likely take

longer to heal.

 

Odette Harris, associate professor of neurosurgery at the Palo Alto

Veterans Affairs Health Care System) studied the effects of TBI on women

veterans. She began with the fact that women veterans are more likely to

be single parents and more likely to suffer from harassment and assault

related to gender, both of which add to stress of TBI.

 

Her research concluded that women veterans with TBI are:

–Four times more likely than male veterans to have substance-abuse

problems.

–Seven times more likely to be homeless, and 2.7 times more likely to be

unemployed.

–30 percent more likely to also have PTSD. (The good news here is that

women are more likely to ask for help and respond to treatment as well as

men, if not better.)

 

Harris produced video narratives of women veterans describing their

conditions in the hope that fresh approaches to treatment will come out of

the new paradigm: men and women who have TBI need different care because

they have different symptoms.

 

To learn more, visit the Veterans Resource Center on nami.com, the site

for the National Alliance on Mental Illness. Also see the VA’s TBI site

at www.polytrauma.va.gov. The www.ptsd.va.gov site has information for

veterans, and friends and family of veterans with PTSD.

 

Freddy Groves regrets that he cannot personally answer reader questions,

but will incorporate them into his column whenever possible. Send email to

columnreply2@gmail.com.

 

(c) 2014 King Features Synd., Inc.

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VA Stonewalls Congress Over Deaths of 40 Vets

by Freddy Groves

 

Rep. Jeff Miller, R-Fla., chairman of the House Committee on Veterans

Affairs, has called for a complete investigation into the travesty of the

40 veterans who died while awaiting care at the Department of Veterans

Affairs medical center in Phoenix. In his statement, Miller wrote of

the “growing pattern of preventable veteran deaths and patient safety

incidents at VA medical centers across the country,” and specifically

mentions Atlanta; Columbia, S.C.; Augusta, Ga.; Pittsburgh; and Memphis.

A week later, Miller wrote directly to VA chief Eric Shinseki about the

delay in preserving evidence of “secret” wait lists at the Phoenix VA. He

cited several witnesses to the fact that paper lists were shredded, and he

had requested more specific information about the who, what and when of

it. He got nada — even though he’d made a request for the preservation

of the documents as far back as April 9. It turns out the VA’s general

counsel hadn’t passed along the request for eight days … plenty of time

to shred a lot of documents.

 

Miller is someone to watch. A few months ago, he launched a program called

the VA Honesty Project, which is “designed to highlight the Department of

Veterans Affairs’ lack of transparency with the press, and by extension,

with the public.” He pointed out that the VA has 54 full-time employees

who are tasked with handling media requests … or ignoring them, as the

case may be.

 

Miller’s project documents 70 cases so far in which the VA failed to

respond to questions, saying that the VA’s “media avoidance strategy can’t

be anything other than intentional.” The Veterans committee itself has

been waiting on more than 100 information requests dating back to 2012.

To view the evidence, see: http://veterans.house.gov/VAHonestyProject.

 

Freddy Groves regrets that he cannot personally answer reader questions,

but will incorporate them into his column whenever possible. Send email to

columnreply2@gmail.com.

 

(c) 2014 King Features Synd., Inc.

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