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Charles Nance Richmond Virginia Attorney

C19 UPDATE: The CARES Act Essentials for Individual Taxpayers and Small Business Owners

April 3, 2020

The recently enacted CARES Act is designed to provide emergency relief to Americans experiencing economic hardships resulting from the COVID-19 Virus.

For Individuals

  • One-time direct deposits of up to $1,200 for individual taxpayers with incomes up to $75,000 and $2,400 for joint filers with incomes up to $150,000. An additional $500 for each eligible child can also
  • Extended unemployment insurance for the self-employed, independent contractors, and gig economy workers–such as Uber drivers.
  • Rules and penalties for some retirement fund distributions and loans have been adjusted or delayed.

For Small Businesses

  • Employers can defer the payment of their portion of 2020 payroll taxes until 2021 and 2022.
  • $350 billion is dedicated to small business relief to prevent layoffs and business closures and includes:
  • Paycheck protection program for up to 8 weeks of payroll coverage.
  • Economic Injury Disaster Loans and Loan Advance federal disaster loans for businesses, private non-profits, homeowners.
  • The 80% rule from the the Tax Cuts and Jobs Act (TCJA) net operating loss is lifted, and losses can now be carried back five years.
  • The excess loss limitation (ELL) rules for pass-through entities are suspended.
  • The limitation on the deduction for business interest expense increased from 30% to 50% for tax years 2019 and 2020.
  • $150 billion is dedicated to state and local governments that are beginning to introduce their own business grant and loan programs in states like Florida, Michigan, and New York. Find specific provisions for your state through your governor’s website; see a full list on the National Governors Association site.

Read more about disaster relief efforts under way on our website.

Resources: Read the full text of the CARES Act: https://assets.documentcloud.org/documents/20059055/final-final-cares-act.pdf

Reference for summary of highlights: https://www.forbes.com/sites/leonlabrecque/2020/03/29/the-cares-act-has-passed-here-are-the-highlights/#257f7e6a68cd

Loss of Stretch IRA is Not Such a Big Deal

April 2, 2020

Yes, the SECURE Act takes away the use of the stretch IRA, which is the ability to pass an IRA down to a child or grandchild and have them take out withdrawals over their lifetime as part of your estate planning. No big deal, says the article “No stretch IRA? No problem” from Investment News. Here’s why.

Only the biggest IRAs are affected. How many IRAs actually make it to the beneficiary that are large enough to justify stretched payouts? According to the Treasury Department, only about 20% of all individuals who were required to take the Required Minimum Distribution (RMD) actually stick to the schedule and take that amount out. Four out of five people who own IRAs take much more money than the minimum. This reduces the amount in the account that is left for their beneficiaries and reducing and even eliminating the possibility of heirs using the stretch IRA option.

There’s no change to spousal beneficiaries. Most married people leave their IRAs to their spouses, and surviving spouses are exempt from the new stretch restrictions. Spouses who inherit IRAs and other assets still have the same options they had before the SECURE Act was passed. Financially savvy spouses (or those with good advisors) will do a spousal rollover and further delay the “no stretch problem” for another generation. By doing this, they postpone the start of the ten-year payout rule. If they use more of the IRA during their own lifetime, again, there’s not that much to worry about.

Most beneficiaries don’t stretch. Not at all. Windfalls usually don’t last very long. How many beneficiaries wait patiently for 30, 40 or 50 years to deplete an inherited IRA? Not many. For many beneficiaries, the new ten-year rule might actually be more realistic. For the smaller IRAs, it may be more logical to empty the account with a lump-sum distribution, especially if it is distributed among several beneficiaries in low tax brackets. However, if the IRA is a Roth, hang on to it and let it grow, tax-free, for as long as possible.

Most beneficiaries are in lower tax brackets. People like to leave their IRAs to their grandchildren, but most grandchildren, under the SECURE Act, will not be able to stretch IRA payouts over their lifetime. If the grandchild is a minor, then the kiddie tax emerges, and the child might have to pay taxes on any withdrawals at their parent’s tax rates. Do your homework with your estate planning attorney.

While the inherited payout is ten years, the tax hit to younger, usually lower income earners, won’t be as bad. However, the kiddie tax could lead to a huge tax hit for your adult children and grandchildren. Another option is naming multiple grandchildren. More beneficiaries will at least stretch out the tax hit over multiple tax returns.

Speak with your estate planning attorney about what needs to change on your estate plan, in light of the new restrictions created by the SECURE Act, which takes away the ability to pass an IRA down to a child or grandchild and have them take out withdrawals over their lifetime. There are strategies that they can discuss with you to minimize tax liability and manage your family’s inheritance.

Reference: Investment News (March 2, 2020) “No stretch IRA? No problem”

 

How to Plan for Nursing Home Care for Parents

April 1, 2020

The median annual cost of long term care in a skilled nursing facility in Richmond, Virginia is $99,648, according to a cost of care survey by long-term care insurance company Genworth. You can’t expect Medicare to cover it. Medicaid coverage doesn’t start in, for a single person, until the value of your assets is reduced to $2,000, says The Columbia [S.C.] Regional Business Report’s recent article entitled “Nursing home care requires advance planning.”

Many people don’t know that for a single person to qualify for Medicaid, your assets have to be spent down to almost nothing. Planning for long-term care includes both insurance and financial planning. However, the long-term care insurance options are limited. There are only a few providers remaining in the industry, but it’s worth the effort to see what they have.

Long-term care insurance is a plan that lets you pay a premium in exchange for coverage for a stay in an assisted care facility, full-scale care facility, or even at home. Without a policy, those financial costs can be catastrophic.

Because the cost of long-term care is so high, begin planning for your later years as soon as possible. It’s likely that in the next few decades, as the baby boomer generation requires long-term or assisted living care, paying for it will be a crisis.

For people who are starting to save for future care needs, financial planners earmark 10% to 15% of your income. If you’re older and see that you don’t have enough money saved, they advise that you put away at least 20% of your income. IRS guidelines include catch-up provisions for people older than 50 for IRAs and 401(k)s.

Some group insurance plans offer long-term care options. There are some additions for life insurance policies that could extend living benefits for elder care. You should plan on paying for three years of long-term care.

How to pay for skilled care is just one of the issues a family may face in later years. You also should have a will, advance directives, medical or health care power of attorney and durable power of attorney in place to help your family with difficult decisions. If you are concerended about the cost of long term care in a skilled nursing facility, you need more than a simple will. Remember to make sure the beneficiaries on your insurance plans are up-to-date, in consultation with your estate planning attorney or elder law attorney.

Talk to an attorney about late-life concerns.

It’s never too soon to develop some kind of plan that can ease the financial burden for you and your family.

Reference:  Columbia Regional Business Report (March 10, 2020) “Nursing home care requires advance planning”

 

will signing

C19 UPDATE: Beware the Rush to Make Your Own Will Online

March 31, 2020

With COVID-19 affecting more and more Americans, people across the country are scrambling to set up online wills and end-of-life directives. Over the last two weeks, online will companies have seen an explosion in users, according  to the article, “Coronavirus Pandemic Triggers Rush by Americans to Make Online Wills,” published by CNBC.com.  However, as online wills grow in popularity, we and other estate and elder lawyers increasingly caution against using them, for several reasons.

  • Will the documents be legally valid? Since most of these do-it-yourself wills are created and executed without any oversight from an attorney, a larger number of wills — including online wills — may not be executed in compliance with the proper will formalities, and that could end up invalidating the will.
  • Do you fully understand the questions and consequences of your answers? There are many nuances in estate planning, as well as a good bit of legal jargon. Confusion over the question or the consequences of a decision can result in costly mistakes … and could even mean your will won’t hold up to a challenge in court.
  • What about asset protection? There is more to estate planning than just giving your stuff away after you die. How you transfer ownership of your assets can mean the difference between a protected inheritance and legacy for many generations … or the squandering or loss of a person’s life’s work within a few years … or months … after they pass away.
  • Is there any planning for long-term care? It’s estimated that more than half of people turning age 65 who will need some type of long-term care services in their lifetimes. Proper estate planning should balance the possibility that you will need assistance paying for nursing home care (Medicaid), with other estate planning goals. Mistakes in this area could disqualify you from receiving assistance should you need it.

As COVID-19 keeps people home, meeting with a lawyer to create a will could not be easier. Under Governor Northam’s executive orders, a lawyer’s services have been deemed “essential,” so long as we use apppropriate social distancing. We are doing everything we can to make our services as easy and convenient for you as possible, including meeting over telephone, online video services such as Zoom Meeting, and other innovative ways to ensure you get the planning you need while complying with all safety measures. We are pushing the Governor’s office for relief from traditional rules that a will has to be witnesses “in person”.  There is no change yet, but we’re working on it.

Resource: Coronavirus Pandemic Triggers Rush by Americans to Make Online Wills, https://www.cnbc.com/2020/03/25/coronavirus-pandemic-triggers-rush-by-americans-to-make-online-wills.html

 

Aretha Franklin’s Niece Resign as Executor

March 27, 2020

Sabrina Owens, the niece of soul singer Aretha Franklin, recently announced her resignation as executor in probate court filings, stating: “Given my aunt’s love of family and desire for privacy, this is not what she would have wanted for us, nor is it what I want … I hope that my departure will allow the business of the estate to continue, calm the rift in my family and allow me to return to my personal life.”

Rolling Stone’s recent article entitled “Aretha Franklin’s Niece Resigns as Estate Executor” reminds us that Franklin died in August of 2018, and, because she reportedly was intestate, Michigan law states that her assets are to be distributed equally among her four sons. Her sons agreed upon Owens as executor, but new family politics came up last May after three wills allegedly authored by Franklin were discovered in a notebook under some couch cushions.

“That is when relationships began to deteriorate with the heirs,” Owens wrote of the discovery of the wills. She added that she accepted the executor role on the condition that “no fractured relationships develop within the family” and that the family “did not end up in court disputes over disagreements with the Estate.” Both, Owens wrote, have happened.

Owens’ resignation, however, will not become effective immediately. Instead, she will keep serving as executor for the immediate future. It’s also unknown who will be appointed executor after she does leave.

Franklin’s youngest son, Kecalf, has attempted to gain control, since one of the documents from 2014 appears to state that Franklin wanted him to take on that role (in August, a probate judge approved Kecalf’s request to have a handwriting expert analyze the documents that were found).

Although Kecalf has the support of his brother Edward, his plan is opposed by Franklin’s third son, Ted White, as well as the guardian for her eldest son, Clarence, who has special needs.

A hearing on the future of the estate is scheduled for early this spring.

The ongoing battles surrounding Franklin’s estate continue, as it gets ready for two significant posthumous projects: one is a biopic movie starring Jennifer Hudson, “Respect.” The other is an installment in the biographical anthology series, “Genius,” with Cynthia Erivo playing Franklin (both are currently in production).

In the last year, Owens, as executor, oversaw the release of the documentary, ‘Amazing Grace,” while at the same time managing the estate’s complicated finances, including $6.3 million owed to the IRS in back taxes.

Reference: Rolling Stone (Feb. 3, 2020) “Aretha Franklin’s Niece Resigns as Estate Executor”

 

C19 UPDATE: If You Have Not Yet Named Someone as Agent under Your Medical Power of Attorney, Do It Now

March 26, 2020

If you have not yet named someone as your agent under a Medical Power of Attorney, stop procrastinating and get this crucial planning in place now.

What is a Medical Power of Attorney?

A medical power of attorney is a legal document you use to give someone else authority to make medical decisions for you when you can no longer make them yourself.  This person, also known as an agent, can only exercise this power if your doctor says you are unable to make key decisions yourself.

Other Terms for Medical Power of Attorney

In Virginia, a medical power of attorney and a living will, together, are called an “Advance Medical Directive.” Depending on the state where you live, the medical power of attorney may be called something else. You may have seen this referred to as a health care power of attorney, an advance directive, advance health care directive, a durable power of attorney for health care, etc. There are many variations, but they all mean fundamentally the same thing.

Be aware that each state has their own laws about medical powers of attorney, so it’s important to work with a qualified estate planning attorney to ensure your decisions will be enforced through legally binding documents. Also, medical professionals in some states may not honor documents from other states, so even if you made these decisions and created documents in another state, it’s wise to review with an estate attorney to ensure they are legally valid in your state now.

What Can My Medical Agent Do for Me?

Just like there are many different terms for the medical power of attorney, there also are different terms for the medical agent – this person may be referred to as an attorney-in-fact, a health proxy, or surrogate.

Some of the things a medical power of attorney authorizes your agent to decide for you:

  • Which doctors or facilities to work with and whether to change
  • Give consent for additional testing or treatment
  • Give consent to pain relief in excess of standard dosages
  • Determine who can, and cannot, visit you in the hospital
  • How aggressively to treat you
  • Whether to take part in medical studies
  • Whether to disconnect life support

When the terrible campus shooting occurred in Blacksburg, Virginia in 2007, there were so many injuries that students were taken to dozens of hospitals in cities and towns up and down the Shenandoah Velley and beyond. Frantic parents placed calls to many of them, desperate for information on their children. Some got right through. Others were told they could not disclose patient information due to privacy concerns since there was no medical power of attorney named.

This means advance medical directives and HIPPA disclosure forms are not just for older Americans. Everyone over the age of 18 should have them. Now, while most college students are home on furlough from campus due to the Covid virus is a good time to ask an estate lawyer about health planning documents for everyone.

 

fundamental estate planning

What Is So Important About Powers Of Attorney? (Especially Now?)

March 19, 2020

Powers of attorney can provide significant authority to another person, if you are unable to do so. These powers can include the right to access your bank accounts and to make decisions for you. Having the right power of attorney, right now, is more important than ever.

AARP’s article from last October entitled, “Powers of Attorney: Crucial Documents for Caregiving,” describes the different types of powers of attorney.

Just like it sounds, a specific power of attorney restricts your agent to taking care of only certain tasks, such as paying bills or selling a house. This power is typically only on a temporary basis.

A general power of attorney provides your agent with sweeping authority. The agent has the authority to step into your shoes and handle all of your legal and financial affairs.

The authority of these powers of attorney can stop at the time you become incapacitated. Durable powers of attorney may be specific or general. However, the “durable” part means your agent retains the authority, even if you become physically or mentally incapacitated. In effect, your family probably won’t need to petition a court to intervene, if you have a medical crisis or have severe cognitive decline like late stage dementia.

In some instances, medical decision-making is part of a durable power of attorney for health care. This can also be addressed in a separate document that is just for health care, like a health care surrogate designation.

Virginia is among the states that recognize “springing” durable powers of attorney. With these, the agent can begin using her authority, only after you become incapacitated. Other states don’t have these, which means your agent can use the document the day you sign the durable power of attorney.

A well-drafted power of attorney helps your agent help you, because she can keep the details of your life addressed, if you cannot. That can be things like applying for financial assistance or a public benefit, such as Medicaid, or verifying that your utilities stay on and your taxes get paid. Attempting to take care of any of these things without the proper document can be almost impossible.

A poorly drafted power of attorney, or one not tailored to your needs now, could make it difficult or impossible for a loved on to apply for important government health care benefits you could need down the road. (Or sooner!)

In the absence of proper incapacity legal planning, your loved ones will need to initiate a court procedure known as a guardianship or conservatorship. However, these hearings can be expensive, time-consuming and contested by family members who don’t agree with moving forward.

Don’t wait to do this. Every person who’s at least age 18 should have a power of attorney in place. If you do have a power of attorney, be sure that it’s up to date. Ask an experienced elder law or estate planning attorney to help you create these documents. And we have no-contact consultations available right now via phone or Zoom Meeting.  Call us now.

Reference: AARP (October 31, 2019) “Powers of Attorney: Crucial Documents for Caregiving”

C19 UPDATE: Bookmark this Page from the IRS for Ongoing Coronavirus Updates

March 19, 2020

The IRS has established a special section focused on steps to help taxpayers, businesses and others affected by the coronavirus. This page will be updated as new information is available. https://www.irs.gov/coronavirus

For health information about the COVID-19 virus, visit the Centers for Disease Control and Prevention (CDC) https://www.coronavirus.gov

Other information about actions being taken by the U.S. government visit https://www.usa.gov/coronavirus and in Spanish at https://gobierno.usa.gov/coronavirus.

The Department of Treasury also has information available at Coronavirus: Resources, Updates, and What You Should Know https://home.treasury.gov/coronavirus

C19 UPDATE: Emergency Estate Planning Decisions to Make Right Now

March 18, 2020

Though it is hard not to panic when our grocery store shelves are empty, the number of confirmed cases of COVID-19 keeps rising — a friend of mine just posted his positive diagnosis yesterday — and we see sobering statistics here and across the globe It is clear we will not overcome this challenge with a panicked response. Or by failing to act.

Clearly, there are things we all need to be doing right now – and Virginia public health officials are the best resource on how to stay personally safe and help prevent the virus from spreading.

When it comes to the seriousness of this outbreak, however, there also are some critical estate planning decisions you should make – or review – right now.  You nay be sitting at home mire this week.  It is a good time to ask yourself these questions:

  1. Who will make medical decisions for me should I become severely ill and unable to make these decisions myself?
  2. Who will make my financial decisions in that same situation — for example, who will be authorized to sign my income tax return, write checks or pay my bills online?
  3. Who is authorized to take care of my minor children in the event of my severe illness? What decisions are they authorized to make? How will they absorb the financial burden?
  4. If the unthinkable happens – what arrangements have I made for the care of my minor children, any family members with special needs, my pets or other vulnerable loved ones?
  5. How will my business continue if I were to become seriously ill and unable to work, even remotely … or in the event of my death?

These are the most personal decisions to make right now to protect yourself and your loved ones during this emergency. Now is also a good time to ask yourself if you have plans in place for the smooth transfer of your assets and preservation of your legacy.

We are ready to help walk you through these decisions, understand the ramifications of your choices, and memorialize your plans in binding legal documents. The Nance Law Firm is currently offering no-contact initial conferences remotely, including consultations via Zoom Meetings. In other words, you may be able to use some of your down time to take care of decisions you may have put off.  Book a call now and let us help you make the right choices for yourself and your loved ones.

Charles Nance Richmond Virginia Attorney

C19 UPDATE: Employers Now May Help Employees with Tax-Free Direct Disaster Relief Assistance

March 17, 2020

As the coronavirus pandemic emergency unfolds, it’s clear that increasing numbers of employees will likely suffer financial impacts … from quarantines, illnesses, workplace closings, etc. President Trump’s declaration of a national emergency on March 13 now allows employers to make direct disaster-relief payments to assist employees affected by the virus.

These types of payments are not treated as income/wages to the employees and are deductible to the employer as ordinary and necessary business expenses. There is no specific cap on the amount of assistance that may be provided to an employee other than it must be “reasonable and necessary” and must not be for an expense reimbursable by the employee’s insurance.

Section 139 of the Internal Revenue Code, allows that a “qualified disaster relief payment” of any amount may be paid to reimburse or pay reasonable and necessary personal, family, living or funeral expenses (not otherwise compensated for by insurance) incurred because of a “qualified disaster.” The term “qualified disaster” includes a federally declared disaster or emergency under the Stafford Act. Accordingly, due to the Declaration, Coronavirus is now a “qualified disaster” for Section 139 purposes, so disaster relief may be provided to employees on a tax-free basis (assuming all the requirements of Section 139 are satisfied).

Now. If only our small business clients had more income to share!

As always check with your CPA or tax attorney before implementing any tax planning strategy for your business.

Read more at The National Review, Coronavirus National Emergency Declaration Permits Employers to Offer Tax-Favored Financial Assistance to Employees, March 14, 2020

 

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