Families with special needs children must exercise extra care in making their estate plans. This is true whether their special needs child is still a minor or now an adult, and particularly so when the child is – or in the foreseeable future will be -- receiving needs-based public benefits such as SSI or Medicaid. While planning considerations for such a child will vary depending upon the child’s age, competency, and other family considerations, the goal is always the same: parents want their estates utilized to enhance and enrich the life of their special needs child while maintaining the child’s enrollment in essential public benefits programs. These goals can be met through the use of a properly prepared special needs trust.
The essence of all special needs estate planning is to ensure that the portion of the parents’ estate which passes to their special needs child at the time of their death is not considered an “available asset,” as defined by public benefit agencies. Parents must be mindful of both income and principal, as too much monthly income, as well as too much “cash,” can negatively impact their child’s future eligibility for benefits.
Purpose: Special needs planning works to preserve public benefits for the disabled child while supplementing and enhancing the quality of the child’s life. This type of planning is useful for many different purposes, including
lifetime money management for the benefit of the disabled child;
protecting the child’s eligibility for public benefits; and
ensuring a pool of funds available for future use in the event public funding should cease or be restricted.
Planning Options: The options available to families in making an estate plan for a special needs child who is receiving needs-based public benefits include the following:
Disinherit the child. This is the simplest option, but it does nothing to accomplish the essential purpose of enriching the life of the special needs child.
Give the estate to the brothers and sisters. At the parents’ death the entirety of the estate is distributed to the child’s siblings, with the understanding that they will “take care of” their disabled brother or sister. There are inherent risks with such an approach, including claims by the siblings’ creditors, bankruptcy, divorce, mismanagement of funds, etc. This may be appropriate when the child’s potential inheritance is modest.
Leave an inheritance to the disabled child. The outcome of this planning option will be the almost certain negative impact on the child’s continued eligibility for publicly funded benefits. At the least, benefits may be reduced. In the worst case scenario, the child may be rendered ineligible for SSI and Medicaid, and with this ineligibility for assisted housing, supported employment, vocational rehabilitation, group housing, job coaching, attendant personal care aides, and transportation assistance. The key benefit is Medicaid, as this program represents the child’s ability to access not only essential health care but many other public assistance programs.
Leave any inheritance in a Special Needs Trust. This last option will be preferred by most families in their efforts to provide and ensure a positive outcome for a special needs child. By using a properly drafted – and properly administered – Special Needs Trust, the child will continue to qualify for public assistance programs that would otherwise be unavailable to the child, especially the “means tested” programs that require the child to meet strict financial eligibility criteria. A Special Needs Trust works because the assets held in the trust are not “available” to the child. These types of trusts must be discretionary spendthrift trusts, with strict limits on the trustee’s ability to give money to the child. Under no circumstances can the special needs child force the trustee to make trust money available to the child. An additional benefit of the Special Needs Trust is that because the child is often unable to manage his or her own finances, the parents, in creating the trust, will appoint a trustee to act as the child’s money manager, and in so doing, ensure proper financial management after their death.
During Life or at Death? Families have the option of creating a Special Needs Trust at their death by incorporating a trust within a Last Will and Testament – this is called a “testamentary trust.”
The other option is for the parents to create a Special Needs Trust while alive -- not surprisingly, this is often referred to as a “living trust” (or inter vivos trust). The advantages of the living trust include:
the avoidance of a probate;
the creation of a trust to which other family members can make contributions, most usually the grandparents; and
an opportunity for a co-trustee to gain “hands on” experience in administrating the trust.
Revocable or Irrevocable? Tax considerations come into play in the decision to make the Special Needs Trust either revocable or irrevocable. Generally speaking, the family will make the trust revocable whenever:
the goals include maintaining maximum control over the trust; and
the family is not concerned with income tax considerations.
Correspondingly, the use of an irrevocable trust may be appropriate when the family is concerned with:
income tax considerations; and
if more than a million dollars will be going into the trust, possible federal estate and gift taxes.
Tax planning is beyond the scope of this article, so be sure to consult with your attorney, CPA or financial advisor if there are any special tax considerations in the creation of your Special Needs Trust.
Selecting Your Trustee: The Trustee will be responsible for administering your Special Needs Trust. So selecting your Trustee is one of the most important decisions your family will make in ensuring the long-term success of your Special Needs Trust. Given the natural pressures inherent in all families, someone in your family may consider the funds in the Special Needs Trust as “their” money, rather than the money of your special needs child. This can be a dangerous situation, especially as to your child’s continued eligibility for public benefits. In most families, it is best to consider selecting an independent, non-family member to serve as your Special Needs Trustee. The range of options includes:
a parent, sibling or another “distant” relative;
your attorney;
a Trust company or a financial institution;
a non-profit organization -- especially one with experience in special needs; or
co-Trustees, usually a family member acting with a trust company.
The selection of any of these potential Trustees has both advantages and disadvantages. You should closely counsel with your attorney or financial advisor before making your Trustee selection.
Conclusion: This brief summary is just the start of your enquiry as you begin your special needs estate plan. By working closely with your attorney, your CPA, and your financial planner, you will develop a much greater understanding of the options available to you and your family in making an appropriate estate plan for your special needs child. After making your wishes known and getting the appropriate documents in place, you will have taken crucial steps in assuring that this child will receive proper care when you are no longer able to provide that care yourself.
Reference: www.specialneedsalliance.com
Wednesday, July 25, 2007
Selection of the Trustee of a Special Needs Trust
There are obviously many important considerations to ponder when designing an estate plan for a beneficiary who has special needs. But the most important issue in the planning process is picking the person or persons who will be in charge of managing the special needs trust. This person is known as the "trustee" and he/she has the biggest impact on whether or not the purposes of the trust are actually carried out after you pass away. Pick the wrong person and the whole plan can come crashing down, to the severe detriment of your disabled loved one.
Ideally, you want to have a trustee that is relatively stable and financially savvy since that person may be in charge of investing a great deal of money for your loved one. The trustee should also have a good relationship with the disabled beneficiary. If the trustee interacts with the beneficiary on a regular basis then he/she will have a better understanding of the beneficiary's disability and therefore better able to make appropriate distributions from the trust funds.
A sibling of the beneficiary is often appointed as the trustee in most cases (in the event that the parents are unable to act). This arrangement is usually entirely appropriate. But you should keep in mind that most special needs trusts will indicate that any remaining trust funds will go to the beneficiary's siblings upon the death of the beneficiary. In other words, less scrupulous siblings who have been made the trustee of their sibling's trust may be motivated to withold neccesary distributions to the beneficiary since doing so would water down their future inheritance. This issue is not unprecedented, so it needs to be considered before a sibling is appointed as the trustee.
Finally, you need to have a trustee that is prudent enough to strictly follow the instructions and limitations outlined in the trust language. If the State catches wind of improper distributions from the trust (such as distributions that pays for things that the State is already covering) then there is a risk that the benefits will be cut off. Although this is a self-serving statement, you need a trustee who is wise enough to seek specialized legal guidance if the propriety of a particular distribution is questionable.
In short, you need to give long and serious thought as to who you will name as trustee of your special needs trust. The decision can make or break all of the careful special needs planning you have done.
Ideally, you want to have a trustee that is relatively stable and financially savvy since that person may be in charge of investing a great deal of money for your loved one. The trustee should also have a good relationship with the disabled beneficiary. If the trustee interacts with the beneficiary on a regular basis then he/she will have a better understanding of the beneficiary's disability and therefore better able to make appropriate distributions from the trust funds.
A sibling of the beneficiary is often appointed as the trustee in most cases (in the event that the parents are unable to act). This arrangement is usually entirely appropriate. But you should keep in mind that most special needs trusts will indicate that any remaining trust funds will go to the beneficiary's siblings upon the death of the beneficiary. In other words, less scrupulous siblings who have been made the trustee of their sibling's trust may be motivated to withold neccesary distributions to the beneficiary since doing so would water down their future inheritance. This issue is not unprecedented, so it needs to be considered before a sibling is appointed as the trustee.
Finally, you need to have a trustee that is prudent enough to strictly follow the instructions and limitations outlined in the trust language. If the State catches wind of improper distributions from the trust (such as distributions that pays for things that the State is already covering) then there is a risk that the benefits will be cut off. Although this is a self-serving statement, you need a trustee who is wise enough to seek specialized legal guidance if the propriety of a particular distribution is questionable.
In short, you need to give long and serious thought as to who you will name as trustee of your special needs trust. The decision can make or break all of the careful special needs planning you have done.
Monday, July 2, 2007
Asset Protection - Don't Do It Yourself
Jonathan Alper in the Florida Asset Protection Blog has a great post on how standard off the shelf LLC and estate planning forms by non-experts will generally not protect your assets from lawsuits.
A well-conceived asset protection plan can fail because attorneys use standard, off-the-shelf business forms to create legal entities to hold the debtor’s assets. Case in point is a case I worked on with a creditor’s attorney to penetrate a very complex asset protection plan involving domestic limited liability companies whose membership interests were owned by domestic trusts. The planning attorney used llc forms typically used for operating business and standard estate planning trust forms.
Standard LLC forms and estate planning forms are designed to provide current income to the llc owners and trust beneficiaries. These typical forms often provide for mandatory distributions of all current income. In this instance, we convinced the trial judge to compel the llc manager and trustee of the trust to follow the terms of their documents and make current income distributions to the debtor and his family. We were then able to seize the llc required distributions with charging liens and garnishment proceedings.
Asset protection planning is customized. Each and every document must be carefully and intelligently drafted to maximize protection Many clients want legal work and documents to be simple and inexpensive. That approach often works in simple business arrangements; it usually does not provided effective asset protection.
Before you make a mistake that may cost you everything, consult an attorney well versed in asset protection.
A well-conceived asset protection plan can fail because attorneys use standard, off-the-shelf business forms to create legal entities to hold the debtor’s assets. Case in point is a case I worked on with a creditor’s attorney to penetrate a very complex asset protection plan involving domestic limited liability companies whose membership interests were owned by domestic trusts. The planning attorney used llc forms typically used for operating business and standard estate planning trust forms.
Standard LLC forms and estate planning forms are designed to provide current income to the llc owners and trust beneficiaries. These typical forms often provide for mandatory distributions of all current income. In this instance, we convinced the trial judge to compel the llc manager and trustee of the trust to follow the terms of their documents and make current income distributions to the debtor and his family. We were then able to seize the llc required distributions with charging liens and garnishment proceedings.
Asset protection planning is customized. Each and every document must be carefully and intelligently drafted to maximize protection Many clients want legal work and documents to be simple and inexpensive. That approach often works in simple business arrangements; it usually does not provided effective asset protection.
Before you make a mistake that may cost you everything, consult an attorney well versed in asset protection.
Thursday, April 5, 2007
Watch Out: The NJ Inheritance Tax
New Jersey imposes a transfer Inheritance Tax, at graduated rates, on property having a total value of $500 or more which passes from a decedent to a beneficiary.
If a decedent's death occurs on or after January 1, 1985, property passing to a surviving spouse is entirely exempt from the tax. If a decedent's death occurs on or after July 1, 1988, property passing to a decedent's surviving parents, grandparents, children, stepchildren or grandchildren is entirely exempt from the tax. If a decedent’s death occurs on or after July 10, 2004, property passing to a surviving domestic partner (Domestic Partnership Act) is entirely exempt from tax.
If a decedent’s death occurs on or after February 19, 2007, property passing to a surviving civil union partner is entirely exempt from tax.
In many instances, if all of a decedent's property passes to a surviving spouse, domestic partner, civil union partner, children, stepchildren, parents, grandparents or grandchildren, it will not be necessary to file an Inheritance Tax return with the Division of Taxation. In such cases, Form L-8 may be used to secure the release of bank accounts, stocks, bonds and brokerage accounts and Form L-9 may be used to secure the release of the State's lien on real property owned by the decedent.
When filing an Inheritance Tax return, Form IT-R should be used for resident decedents, and Form IT-NR should be used for nonresident decedents.
In addition to the inheritance tax, New Jersey imposes a separate Estate Tax. An estate may be subject to the New Jersey Estate Tax even though there is no New Jersey Inheritance Tax payable..For decedents with a date of death prior to January 1, 2002 the New Jersey Estate Tax was designed to absorb the maximum credit for state inheritance, estate, succession or legacy taxes allowable in the Federal estate tax proceeding. It did not increase the estate's total estate tax obligation.For decedents with a date of death on or after January 1, 2002 the New Jersey Estate Tax was decoupled from the Federal estate tax proceeding. For more information see New Jersey Estate Tax: Important Provisions and Filing Requirements.The New Jersey Estate tax is based upon the Federal Estate tax credit for state death taxes which was allowable under the provisions of the Internal Revenue Code in effect on December 31, 2001. The Federal Estate tax does not have a provision providing a deduction for property passing to a domestic partner.
However, if the decedent was a partner in a civil union and died on or after February 19, 2007, survived by his/her partner, a marital deduction equal to that permitted a surviving spouse under the provisions of the Internal Code in effect on December 31, 2001, is permitted for New Jersey estate tax purposes. In these cases, the 2006 Form 706 should be completed as though the Internal Revenue Code treated a surviving civil union partner and a surviving spouse in the same manner.
If a decedent's death occurs on or after January 1, 1985, property passing to a surviving spouse is entirely exempt from the tax. If a decedent's death occurs on or after July 1, 1988, property passing to a decedent's surviving parents, grandparents, children, stepchildren or grandchildren is entirely exempt from the tax. If a decedent’s death occurs on or after July 10, 2004, property passing to a surviving domestic partner (Domestic Partnership Act) is entirely exempt from tax.
If a decedent’s death occurs on or after February 19, 2007, property passing to a surviving civil union partner is entirely exempt from tax.
In many instances, if all of a decedent's property passes to a surviving spouse, domestic partner, civil union partner, children, stepchildren, parents, grandparents or grandchildren, it will not be necessary to file an Inheritance Tax return with the Division of Taxation. In such cases, Form L-8 may be used to secure the release of bank accounts, stocks, bonds and brokerage accounts and Form L-9 may be used to secure the release of the State's lien on real property owned by the decedent.
When filing an Inheritance Tax return, Form IT-R should be used for resident decedents, and Form IT-NR should be used for nonresident decedents.
In addition to the inheritance tax, New Jersey imposes a separate Estate Tax. An estate may be subject to the New Jersey Estate Tax even though there is no New Jersey Inheritance Tax payable..For decedents with a date of death prior to January 1, 2002 the New Jersey Estate Tax was designed to absorb the maximum credit for state inheritance, estate, succession or legacy taxes allowable in the Federal estate tax proceeding. It did not increase the estate's total estate tax obligation.For decedents with a date of death on or after January 1, 2002 the New Jersey Estate Tax was decoupled from the Federal estate tax proceeding. For more information see New Jersey Estate Tax: Important Provisions and Filing Requirements.The New Jersey Estate tax is based upon the Federal Estate tax credit for state death taxes which was allowable under the provisions of the Internal Revenue Code in effect on December 31, 2001. The Federal Estate tax does not have a provision providing a deduction for property passing to a domestic partner.
However, if the decedent was a partner in a civil union and died on or after February 19, 2007, survived by his/her partner, a marital deduction equal to that permitted a surviving spouse under the provisions of the Internal Code in effect on December 31, 2001, is permitted for New Jersey estate tax purposes. In these cases, the 2006 Form 706 should be completed as though the Internal Revenue Code treated a surviving civil union partner and a surviving spouse in the same manner.
Sunday, March 25, 2007
Asset Protection Mistakes - 13 Tips
These days, just about everyone should take care to protect their assets from possible lawsuits or other problems.
Here are 13 things to watch out for:
1. Don't keep money in a joint account, even with a spouse.
2. Don't own the car of an adult child, or keep him or her on your policy.
3. Don't own vehicles jointly with your spouse.
4. Don't go without sufficient umbrella liability insurance.
5. Don't own rental real estate in your own name.
6. Don't own real estate jointly with someone other than your spouse without a "buy-sell" or joint ownership agreement.
7. Don't leave property, including life insurance and retirement benefits, directly to minor children.
8. Don't operate a business as a sole proprietor.
9. Don't let other people operate any of your motor vehicles, but if you do, make sure your insurance policy covers them.
10. Don't sign a joint income tax return with your spouse if you have any suspicion that he or she is not reporting all income, over-stating deductions, or is otherwise acting fraudulently or negligently.
11. Don't co-sign or guarantee loans to family members or friends.
12. Don't serve on the board of a non-profit organization unless it has sufficient errors and omissions insurance for directors.
13. Don't get married without a comprehensive prenuptial agreement.
While this list can help get one started on an asset protection plan, there is no substitute for seeking the counsel of an experienced attorney to ensure that you and your family are fully protected.
Here are 13 things to watch out for:
1. Don't keep money in a joint account, even with a spouse.
2. Don't own the car of an adult child, or keep him or her on your policy.
3. Don't own vehicles jointly with your spouse.
4. Don't go without sufficient umbrella liability insurance.
5. Don't own rental real estate in your own name.
6. Don't own real estate jointly with someone other than your spouse without a "buy-sell" or joint ownership agreement.
7. Don't leave property, including life insurance and retirement benefits, directly to minor children.
8. Don't operate a business as a sole proprietor.
9. Don't let other people operate any of your motor vehicles, but if you do, make sure your insurance policy covers them.
10. Don't sign a joint income tax return with your spouse if you have any suspicion that he or she is not reporting all income, over-stating deductions, or is otherwise acting fraudulently or negligently.
11. Don't co-sign or guarantee loans to family members or friends.
12. Don't serve on the board of a non-profit organization unless it has sufficient errors and omissions insurance for directors.
13. Don't get married without a comprehensive prenuptial agreement.
While this list can help get one started on an asset protection plan, there is no substitute for seeking the counsel of an experienced attorney to ensure that you and your family are fully protected.
How to S T R E T C H Your IRA
The stretch IRA concept is a wealth-transfer strategy that can help you extend the period of tax-deferred earnings on your retirement assets. After the owner of the IRA dies, the beneficiaries will also have the longest allowable period of tax-deferral on the required distributions of the IRA assets. This strategy can allow distributions from your retirement assets to be extended over several generations. Because of this, your family could save significant dollars in income taxes over their lifetimes.
A stretch IRA strategy can be established at any time, as long as you have named an individual person as the beneficiary. It's also important to name an individual person as a contingent beneficiary in case your primary beneficiary predeceases you. If set up correctly, your beneficiaries should be able to take their required IRA distributions over their individual life expectancies.
However, there are a number of steps that need to be followed to put this strategy in place. These steps include the following:
1. Selection of individual beneficiaries.
As previously mentioned, you will need to designate an individual beneficiary. Although there might be certain reasons for naming a trust as a beneficiary (e.g., asset protection for the beneficiaries), you should keep in mind that you will jeopardize the ability to use this strategy if you do it. Even with a qualified trust, distributions must be paid out over the life expectancy of the oldest beneficiary. With this in mind, you could jeopardize you ability to stretch out distributions to your grandchildren if you name a trust as the beneficiary.
2. Discuss your plans with an experienced advisor.
The benefits of this strategy could also be jeopardized if the IRA is not set up properly. Therefore, you need to speak with an experienced tax advisor who has worked with this strategy before.
3. Establish and maintain separate accounts for your beneficiaries.
If you have two or more beneficiaries, you need to set up a separate account for each one of them. You should also designate a certain percentage of you IRA assets to each of your beneficiaries. By doing this, each beneficiary can then choose to have their share distributed over their individual life expectancy.
4. Inform your beneficiaries of your plans.
You should also let your beneficiaries know about their future interest in your account when you pass away.
There are a couple of other things to keep in mind. The names of the account holder and the individual beneficiary must appear on the IRA account, and the beneficiary distributions must begin no later than Dec. 31 of the year after the death of the account holder. If these rules are not followed, the funds from the IRA could be exposed to a significant income tax penalty for missing the required mandatory distribution (50% of the distribution that should have been taken).
On a final note, it should be remembered that this strategy may not be suitable for everyone. For example, if you think that you will need access to your IRA money to meet your daily living needs during retirement, then this strategy might not help you. Please note I always advise people to consult with their own qualified legal, tax, and financial advisor prior to making any investment decisions.
A stretch IRA strategy can be established at any time, as long as you have named an individual person as the beneficiary. It's also important to name an individual person as a contingent beneficiary in case your primary beneficiary predeceases you. If set up correctly, your beneficiaries should be able to take their required IRA distributions over their individual life expectancies.
However, there are a number of steps that need to be followed to put this strategy in place. These steps include the following:
1. Selection of individual beneficiaries.
As previously mentioned, you will need to designate an individual beneficiary. Although there might be certain reasons for naming a trust as a beneficiary (e.g., asset protection for the beneficiaries), you should keep in mind that you will jeopardize the ability to use this strategy if you do it. Even with a qualified trust, distributions must be paid out over the life expectancy of the oldest beneficiary. With this in mind, you could jeopardize you ability to stretch out distributions to your grandchildren if you name a trust as the beneficiary.
2. Discuss your plans with an experienced advisor.
The benefits of this strategy could also be jeopardized if the IRA is not set up properly. Therefore, you need to speak with an experienced tax advisor who has worked with this strategy before.
3. Establish and maintain separate accounts for your beneficiaries.
If you have two or more beneficiaries, you need to set up a separate account for each one of them. You should also designate a certain percentage of you IRA assets to each of your beneficiaries. By doing this, each beneficiary can then choose to have their share distributed over their individual life expectancy.
4. Inform your beneficiaries of your plans.
You should also let your beneficiaries know about their future interest in your account when you pass away.
There are a couple of other things to keep in mind. The names of the account holder and the individual beneficiary must appear on the IRA account, and the beneficiary distributions must begin no later than Dec. 31 of the year after the death of the account holder. If these rules are not followed, the funds from the IRA could be exposed to a significant income tax penalty for missing the required mandatory distribution (50% of the distribution that should have been taken).
On a final note, it should be remembered that this strategy may not be suitable for everyone. For example, if you think that you will need access to your IRA money to meet your daily living needs during retirement, then this strategy might not help you. Please note I always advise people to consult with their own qualified legal, tax, and financial advisor prior to making any investment decisions.
Sunday, December 17, 2006
American Bar Association Publishes Article Entitled "Tax Law” in the October/November 2006 issue of American Bar Association’s GPSOLO magazine
American Bar Association Publishes Local Tax Attorney’s Article
Tax attorney Parag P. Patel, Esq. published an article entitled "Tax Law” in the October/November 2006 issue of American Bar Association’s GPSOLO magazine. The GPSOLO magazine is nationally published and widely circulated by the American Bar Association’s ABA General Practice, Solo and Small Firm Division.
The article highlights various aspects of a tax law practice for future professionals.
Tax Law
As Ben Franklin once said “In this world nothing can be said to be certain, except death and taxes.” If that is true, then the practice of tax law is a niche practice area that may always have work.
Few law students, and even fewer attorneys, seem to like tax law. In fact, one tax attorney claims to say that when asked why he wanted to practice tax, he would reply, "because you don't want to."
Seriously, when a law student or new attorney asks me about what is the best area of law, I reply an area that is specialized in which fewer attorneys practice. For me, that area of practice has been tax law. I have been practicing tax law for the past 12 years since graduating from law school and have thoroughly enjoyed the practice area.
What is tax law?
While it may seem to be a narrow practice area, tax law is very broad with many varieties of practices. For instance, in terms of jurisdictions, there are state and local tax areas, federal tax, and international tax. Within each jurisdiction, there are many subspecialties.
Tax attorneys can be found in many employment settings, in both the public and private sectors, including large accounting firms. Clients can include individuals, government bodies, private and public businesses from a small family business to Fortune 500 corporations. Tax attorneys often work closely with attorneys in other practice areas, as well as other professionals, such as accountants and financial advisors.
Virtually everything an attorney does for a client will have a tax consequence, whether it is a marriage dissolution or drafting a last will and testament, or advising and executing complex commercial transactions. Whether the client is an individual or a huge corporation, the tax attorney's goal is to maximize the preservation of assets and the positive impact on the bottom line. This is accomplished through careful tax planning and counseling of clients, and advising clients on the tax aspects of financing such as public and private offerings, debt instruments, equity stakes and other tax-oriented investments.
Path to Tax Law
What initially attracted me to tax law was my business and accounting background. In law school, tax law courses were easier for me because there was a clear answer to the problem. Although very intricate, there are no wishy-washy answers like in other areas of the law. You looked to the tax code, regulations or maybe a case.
Many tax attorneys have undertaken special coursework or training to become familiar with the many substantive areas of tax law. A master of laws degree (LL.M) in taxation is common among tax lawyers and is considered a “must have” credential for many firms’ tax practice groups. In addition, an LL.M in tax law can allow student or new lawyer to become well versed in tax law quickly. There are over two dozen law schools throughout the United States that offer an LL.M in tax law program.
There are literally hundreds of treatises and resources available to tax attorneys. Since tax law is a rapidly changing practice area, there a dozens of tax journals and periodicals providing updates on the latest tax legislation and rulings. Most tax attorneys read or subscribe to at least one resource to keep up to date with tax developments.
The ABA Tax Section is an active section with dozens of subcommittees focusing on different areas of tax law. The ABA Tax Section publishes the Tax Lawyer, a scholarly law journal, as well as several newsletters. In addition, nearly every state and local bar association has a tax section or committee where tax attorneys can share resources and advice. Some bar association’s tax sections even have a mentorship program where new attorneys and law students can be mentored by an experienced tax attorney.
Tax attorney Parag P. Patel, Esq. published an article entitled "Tax Law” in the October/November 2006 issue of American Bar Association’s GPSOLO magazine. The GPSOLO magazine is nationally published and widely circulated by the American Bar Association’s ABA General Practice, Solo and Small Firm Division.
The article highlights various aspects of a tax law practice for future professionals.
Tax Law
As Ben Franklin once said “In this world nothing can be said to be certain, except death and taxes.” If that is true, then the practice of tax law is a niche practice area that may always have work.
Few law students, and even fewer attorneys, seem to like tax law. In fact, one tax attorney claims to say that when asked why he wanted to practice tax, he would reply, "because you don't want to."
Seriously, when a law student or new attorney asks me about what is the best area of law, I reply an area that is specialized in which fewer attorneys practice. For me, that area of practice has been tax law. I have been practicing tax law for the past 12 years since graduating from law school and have thoroughly enjoyed the practice area.
What is tax law?
While it may seem to be a narrow practice area, tax law is very broad with many varieties of practices. For instance, in terms of jurisdictions, there are state and local tax areas, federal tax, and international tax. Within each jurisdiction, there are many subspecialties.
Tax attorneys can be found in many employment settings, in both the public and private sectors, including large accounting firms. Clients can include individuals, government bodies, private and public businesses from a small family business to Fortune 500 corporations. Tax attorneys often work closely with attorneys in other practice areas, as well as other professionals, such as accountants and financial advisors.
Virtually everything an attorney does for a client will have a tax consequence, whether it is a marriage dissolution or drafting a last will and testament, or advising and executing complex commercial transactions. Whether the client is an individual or a huge corporation, the tax attorney's goal is to maximize the preservation of assets and the positive impact on the bottom line. This is accomplished through careful tax planning and counseling of clients, and advising clients on the tax aspects of financing such as public and private offerings, debt instruments, equity stakes and other tax-oriented investments.
Path to Tax Law
What initially attracted me to tax law was my business and accounting background. In law school, tax law courses were easier for me because there was a clear answer to the problem. Although very intricate, there are no wishy-washy answers like in other areas of the law. You looked to the tax code, regulations or maybe a case.
Many tax attorneys have undertaken special coursework or training to become familiar with the many substantive areas of tax law. A master of laws degree (LL.M) in taxation is common among tax lawyers and is considered a “must have” credential for many firms’ tax practice groups. In addition, an LL.M in tax law can allow student or new lawyer to become well versed in tax law quickly. There are over two dozen law schools throughout the United States that offer an LL.M in tax law program.
There are literally hundreds of treatises and resources available to tax attorneys. Since tax law is a rapidly changing practice area, there a dozens of tax journals and periodicals providing updates on the latest tax legislation and rulings. Most tax attorneys read or subscribe to at least one resource to keep up to date with tax developments.
The ABA Tax Section is an active section with dozens of subcommittees focusing on different areas of tax law. The ABA Tax Section publishes the Tax Lawyer, a scholarly law journal, as well as several newsletters. In addition, nearly every state and local bar association has a tax section or committee where tax attorneys can share resources and advice. Some bar association’s tax sections even have a mentorship program where new attorneys and law students can be mentored by an experienced tax attorney.
Tuesday, July 25, 2006
Evaluating the Special Needs Estate Planning Attorney
Consider the attorney’s:
Education, Certifications and Memberships e.g. Special Needs Alliance (SNA); National Academy of Elder Law Attorneys (NAELA); American College of Trust & Estate Counsel (ACTEC); American Bar Association (ABA); and State Bar Associations
Time/experience in trust, estate, and disability practice
Community Involvement
Articles written (commitment to educating the consumer evident?)
Presentations made (especially to peers)
Educational programs recently attended with respect to trust and estate law and disability issues.
Is the attorney experienced in drafting Special Needs Trusts? Has he/she made it an area of focus in his/her practice?
Can he/she provide references, other professionals who would recommend his/her expertise in Special Needs Estate Planning?
What is the attorney’s commitment to completing a comprehensive assessment of your family’s unique "special needs," concerns and goals for your loved one with a disability?
Is the attorney up to date on any state-specific special rules the SSA (Social Security Administration, Medicaid, or the Department of Mental Health might have for key aspects of Special Needs Trusts? (Distribution terms, required accounting, reports, notices, remainder beneficiary etc.)
In the initial consultation, do you get an overall sense of the attorney’s understanding of and empathy for the unique challenges families face in caring for a loved one who is disabled?
Does an attorney’s high ratings in the qualifications listed above guarantee you a high quality SNT guide? Not necessarily
Do your research - find the best attorney you can and remember you are your loved one's most committed advocate. Keep informed and active throughout the process.
Education, Certifications and Memberships e.g. Special Needs Alliance (SNA); National Academy of Elder Law Attorneys (NAELA); American College of Trust & Estate Counsel (ACTEC); American Bar Association (ABA); and State Bar Associations
Time/experience in trust, estate, and disability practice
Community Involvement
Articles written (commitment to educating the consumer evident?)
Presentations made (especially to peers)
Educational programs recently attended with respect to trust and estate law and disability issues.
Is the attorney experienced in drafting Special Needs Trusts? Has he/she made it an area of focus in his/her practice?
Can he/she provide references, other professionals who would recommend his/her expertise in Special Needs Estate Planning?
What is the attorney’s commitment to completing a comprehensive assessment of your family’s unique "special needs," concerns and goals for your loved one with a disability?
Is the attorney up to date on any state-specific special rules the SSA (Social Security Administration, Medicaid, or the Department of Mental Health might have for key aspects of Special Needs Trusts? (Distribution terms, required accounting, reports, notices, remainder beneficiary etc.)
In the initial consultation, do you get an overall sense of the attorney’s understanding of and empathy for the unique challenges families face in caring for a loved one who is disabled?
Does an attorney’s high ratings in the qualifications listed above guarantee you a high quality SNT guide? Not necessarily
Do your research - find the best attorney you can and remember you are your loved one's most committed advocate. Keep informed and active throughout the process.
Sunday, February 5, 2006
Stretching Your IRA to the Next Generation
It's no secret that retirement accounts come in all shapes and sizes ... from the account that is strictly set aside to generate retirement income to an account earmarked for heirs. For those intending to bequeath their individual retirement account funds to survivors, a change in Internal Revenue Service regulations in January of 2001 (followed by an April 2002 revision) created a wealth-transfer strategy that actually allows for the tax benefits of an IRA to be "stretched" beyond the lifetime of the person who established the IRA.
In the past, IRS law had required non-spouse beneficiaries to completely withdraw IRA assets either within five years of the originator's death or heretofore remaining life expectancy. The stretch IRA allows for the IRA to be passed down several generations over the life expectancies of non-spousal beneficiaries like grandchildren, great-nieces, nephews and others.
The biggest advantage to establishing the stretch IRA is its earning power. The smaller required minimum distributions to younger, non-spouse beneficiaries and the extended time for the investments in IRAs to grow at a compounded, tax-deferred rate allow for the payouts to substantially increase. For example, at an 8 percent annual return, $100,000 inherited by a 20-year-old could translate into distributions totaling $2.9 million during the course of the beneficiary's life expectancy.
Financial institutions should be aware of the stretch IRA for customers for whom it is applicable. It has been around for a while but, surprisingly, it's not being utilized as much as it could be. To make it work, encourage clients to work with estate planning attorneys who have stayed current with these laws.
There are some rather tricky areas in terms of structuring the stretch IRA. For example it is imperative that the IRA remain in the name of the original holder for non-spouse beneficiaries to avoid tax consequences. They cannot simply roll it into their own IRA without tax implications.
"Look-through trust options" add additional flexibility and control for stretch IRAs. There are two effective trust dispositive provisions that "stretch" distributions. The "option" method allows the named beneficiary the option of choosing the amount and timing of the distribution of IRA assets over and above the annual required minimum distribution. The "trustee discretion" method allows for the trustee to distribute additional amounts if the trustee deems advisable in terms of health, education, support and welfare.
Stretch IRAs enhance the element of control a holder can exercise over the disposition of retirement assets. There is no down side for incorporating a stretch IRA into one's financial plan, and the upside can provide ongoing income for several generations.
In the past, IRS law had required non-spouse beneficiaries to completely withdraw IRA assets either within five years of the originator's death or heretofore remaining life expectancy. The stretch IRA allows for the IRA to be passed down several generations over the life expectancies of non-spousal beneficiaries like grandchildren, great-nieces, nephews and others.
The biggest advantage to establishing the stretch IRA is its earning power. The smaller required minimum distributions to younger, non-spouse beneficiaries and the extended time for the investments in IRAs to grow at a compounded, tax-deferred rate allow for the payouts to substantially increase. For example, at an 8 percent annual return, $100,000 inherited by a 20-year-old could translate into distributions totaling $2.9 million during the course of the beneficiary's life expectancy.
Financial institutions should be aware of the stretch IRA for customers for whom it is applicable. It has been around for a while but, surprisingly, it's not being utilized as much as it could be. To make it work, encourage clients to work with estate planning attorneys who have stayed current with these laws.
There are some rather tricky areas in terms of structuring the stretch IRA. For example it is imperative that the IRA remain in the name of the original holder for non-spouse beneficiaries to avoid tax consequences. They cannot simply roll it into their own IRA without tax implications.
"Look-through trust options" add additional flexibility and control for stretch IRAs. There are two effective trust dispositive provisions that "stretch" distributions. The "option" method allows the named beneficiary the option of choosing the amount and timing of the distribution of IRA assets over and above the annual required minimum distribution. The "trustee discretion" method allows for the trustee to distribute additional amounts if the trustee deems advisable in terms of health, education, support and welfare.
Stretch IRAs enhance the element of control a holder can exercise over the disposition of retirement assets. There is no down side for incorporating a stretch IRA into one's financial plan, and the upside can provide ongoing income for several generations.
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