Hyden, Miron & Foster, PLLC Law Blog

Friday, March 18, 2016

End-of-Life Medical Decisions as Part of Estate Planning

What is the difference between a medical directive and a DNR?

Sometimes the most difficult part of estate planning is making decisions about how you want to be treated at the end of your life. Though we all know we are mortal, these decisions force us to confront some unpleasant possibilities. Still, making end-of-life decisions can provide reassurance, giving you the peace of mind that comes from knowing your wishes will be followed when you can no longer make yourself heard.

What is a Living Will?

A living will is an important part of estate planning. Since most of us do not die "peacefully in our sleep" without prior illness or injury, we need to make arrangements regarding precisely which types of medical care we wish to receive when we are seriously ill and approaching the inevitable.

If a person is terminally ill, death is expected to occur within a relatively short period of time. In such situations, providing medical care will simply prolong the dying process, not help to provide any kind of quality of extended life. In such cases, individuals have the prerogative to refuse medical care that would artificially prolong their lives.

There is an essential difference, however between medical care that would force the body to stay technically alive, and palliative care that will keep the patient as comfortable as possible during the dying process. Most people, no matter what their feelings about futilely extending life, opt for palliative care to keep them as pain-free as possible at the end of their lives.

What is a DNR?

A DNR, or do not resuscitate order, is a legal document designed to keep a dying patient from being resuscitated if he or she goes into cardiac arrest or stops breathing. It is basically an agreement between the patient and the medical establishment (doctor, hospital, nursing facility or hospice) stating that the patient does not wish to receive cardiopulmonary resuscitation (CPR) or advanced cardiac life support (ACLS) if their body goes through a sudden life-threatening event.

The major difference between a living will and a DNR is that the former is a legally binding document that the person signs, frequently during the estate planning process, and the DNR is a medical order.

Procedures Denied by a DNR

With a DNR document in place, patients will not receive: chest compressions, ventilation, defibrillation, endotracheal intubation, or medications to revitalize them. Relief of choking caused by a foreign body is typically an exception, since it is creating a painful, terrifying situation for the patient. Treatment is also given for painful breathing, injuries and hemorrhage. The rationale is that the patient does not want his or her life prolonged, but is not consenting to a tortured ending.

The Choice Is Yours

Though it is unpleasant to contemplate your own death, it is gratifying to be able to make advance decisions about one's own future care.  Contacting a qualified estate planning attorney is a good first step toward self-determination, not only in how your assets are distributed, but in how you are medically treated at the end of your life. Remember that the choice is yours. If you want your life extended under any circumstances, you certainly have the right to make this clear in your estate plan.


Wednesday, February 24, 2016

Health Insurance Subsidies ay Affect Tax Refunds for Millions

How will Obamacare directly affect you’re your tax return?

The government-subsidized health program instituted by the Obama administration has allowed millions to obtain health insurance. Most of those who signed up for Obamacare, however, were unaware of the long-term tax consequences involved. For many, it is now coming to light that the income estimate they provided to the government when signing up for the program may affect their tax refund.

Those people who underestimated their income during the application process may be receiving too much of a subsidy. This problem even exists for those who estimated correctly at the time but are now making more money. If a person is receiving too much of a subsidy, he or she will have to pay back this money to the government. Where will this refund come from? Out of your income tax refund.

This can be a major problem for those expecting to receive a certain amount back in their tax refunds. Because the tax-related risks are just now becoming apparent for many, it is unlikely that the people affected by this situation were able to use tax planning to lessen the blow. One way to diminish the amount a person might owe is to report the difference in income to the government right away. This will likely lead to higher insurance premiums throughout the year, but will reduce the amount owed at tax time.

The amount that the government can request back from any one taxpayer or family is capped for most. Only those who make over four times the federal poverty level will be liable for an uncapped amount. The IRS can also use any means to collect the amount owed, including tax liens and levies. This means that if a person does not receive enough in his or her tax refund to cover the liability, he or she will have to pay the amount out of pocket.

If you are interested in tax planning in relation to Obamacare or concerned about tax planning for any other reason, you should speak with a qualified Little Rock, Hot Springs and Conway tax planning attorney today.


Thursday, February 18, 2016

Stopping Elder Fraud

What can be done about the financial exploitation of the elderly?

As the life expectancy continues to rise, elders are faced with increasing challenges. One of the most difficult problems these individuals face is the potential of dementia. Moreover, many retirees are forced to manage their own retirement funds as traditional pension plans are becoming rare. This puts many retirees at risk for elder fraud and the problem is going to get worse as more of the baby boom generation heads toward retirement.

In fact, since 1950, the percentage of the population age 65 and over has risen consistently; by 2030, the figure will hit 20 percent. As more people reach the age of 60, complaints of fraud also continue to rise. The statistics are glaring: there were 65,000 fraud complaints by people 60 or older in 2010; in 2014 the number was over 170,000. Furthermore, according to the insurance industry, the cost of fraud in 2010 had reached $2.9 billion.

What is elder fraud?

Elder fraud involves the financial exploitation of the elderly and comes in many nefarious forms, whether small scams by telemarketers or fraudulent schemes conducted by people who are close to the elderly person. There are increasing reports of caregivers, family members and financial advisors who are taking advantage of the elderly by skimming savings or churning investment accounts.

The Role of Financial Professionals

The problem is compounded by the fact that only half the states have mandatory reporting rules for when financial professionals suspect fraud directed at the elderly. Now, however, state security regulators are joining forces in an effort to make it mandatory for financial advisors to report suspected cases of elder fraud. The Financial Institution Regulatory Authority (FINRA), and the Securities Industry and Financial Markets Association (SIFMA) have floated a number of proposals that would require advisors, their supervisors and the firms that employ them to alert state regulators and adult services groups when they suspect fraud.

There has been push back by industry groups who argue that these requirements would expose advisors to liability if they miss fraud, and that regulators are not equipped to handle more oversight. Ultimately, what is needed is more clarity as new or existing regulations need a suitable enforcement mechanism. In the meantime, if you or a loved one is the victim of a financial scam, speak with a qualified elder law attorney.


Friday, January 29, 2016

Estate Planning for Farm Owners

How can you ensure that farm succession occurs as you desire?

While it may seem that farming families have little need for estate planning, the opposite is true. For successful farms to survive for generations, careful planning is necessary. This message was broadcasted loud and clear at the American Farm Bureau Federation's Annual Convention and IDEA Trade Show this past December in Orlando, Florida.

 

Farmers were encouraged to begin planning not only for future growth, but to strategize about how the next generation will take over and manage their existing operations so that prosperity can be maintained. Contrary to the prevailing notion that farms persist under the ownership of one family for scores of years, only 30 percent of family-owned farms reach the next generation. This is often the result of poor planning combined with failed communication among family members. Families with farms should take serious note: a specific, solid, legally binding plan is necessary for inheritance of a farm to succeed.

As with all estate and succession plans, plans for farm continuance have to be individualized according to the specific circumstances involved. There are several things to be considered, including:

  • Are there children interested in taking over the farm?
  • Are there siblings who don't want to be involved in day-to-day operations?
  • Does the aging parent want to remain involved some of the time?
  • Does the parent want to maintain control? Have daily responsibilities?

    As with other inheritance issues, unless such matters are discussed and agreed upon before the owner's passing, it is likely that conflicts, or at least complications, will follow that event. There are several aspects that need to be gone over with a competent estate planning attorney, hopefully well before mortality is closing in. These issues include:

  • How ownership of the farm will be handled
  • How other assets will be divided among inheritors
  • How taxation will be minimized

 

Often, it is best to consider legal structures, such as trusts, to ensure a smooth transition. Farmers frequently use a type of trust known as an Intentionally Defective Irrevocable Trust. In spite of its odd name, this trust can be very helpful since it allows the parent to move assets from the estate, but remain a legal part of the operation of the entity. With such a structure in place, the farmer can continue to receive cash from the business while transferring it to inheritors.

In terms of minimizing tax liability, a number of strategies may be used. One is that farmers can use deferred payment contracts and prepaid expenses to manage their income taxes. Another is that farmers can pay wages, and make donations of commodities, to their children, so reducing tax liability.

It is well worth the time investment to work with an experienced estate planning attorney in advance of the necessity of dealing with end-of-life and inheritance issues. Professionals who understand the legalities involved in transferring assets and minimizing tax liability are certain to make the farm succession process go more smoothly and profitably. 


Friday, January 22, 2016

Planning for Incapacity

What estate planning documents will apply if you haven’t yet passed away but are unable to make decisions for yourself?


It is a common misconception that estate planning documents are only necessary in the event that an individual dies. However, a well designed estate plan will also make arrangements for the possibility of becoming incapacitated. There are a number of documents that describe your wishes should you become incapacitated or are close to death.

The first and most widely known of these documents is the durable power of attorney. A power of attorney is used to appoint another person to make decisions for you should you be unable to do so for yourself. A power of attorney can be appointed to make medical and financial decisions. These documents are flexible and allow you to give whatever powers you would like to the individual named as power of attorney. You can also elect to put the document into effect the day it is signed or at the time that you become incapacitated.

Another estate planning document that goes into effect if you become incapacitated is a living will. This document allows you to formalize your wishes regarding the type of treatment you should receive and any life-sustaining medical procedures you would like withdrawn at the end of your life. This document makes decisions easier for the loved ones who will be responsible for you at this time.

When executing advanced directives, such as a durable power of attorney or a living will, it is always important to also execute a HIPAA form as well. This Health Insurance Portability and Accountability Act form gives another the authority to access your medical records. This can save a lot of time and aggravation for those who will be responsible for your medical care.

In order to have a comprehensive estate plan, you should consult with an attorney that has expertise in preparing these documents as well as those that reflect your wishes after death, such as a will and/or trust.

Thursday, December 24, 2015

How Retirement Income Is Taxed

How does the IRS treat different types of retirement income?

 

Most people receive retirement income from various kinds of investments. State and federal taxation differ in the way they tax these investments, so it is important to consult with a skilled tax attorney in your state to make sure you are receiving the best possible advice. While taxation policies vary from state to state, , here is a list of federal income taxes pertaining to retirement income.

Social Security

Individuals who pay federal income tax on their benefits include:

  • Individual filers whose total income is greater than $25,000
  • Joint filers with a combined income greater than $32,000
  • Married couples who file separate tax returns

 

No one who pays federal income tax on Social Security benefits will be taxed more than 85 percent of his or her benefits.


Pensions

Assuming you have made no after-tax contributions toward your pension plan, your pension payments will be taxed as ordinary income. If you have made after-tax contributions, then your pension payments will be partially taxed. Qualified and nonqualified pensions are treated differently by the IRS..

Stock Dividends
Qualified dividends are typically taxed at your capital gains tax rate. To be recognized by the IRS as qualified, such dividends must be paid out by a company that trades on a regulated U.S. exchange or is eligible to receive certain benefits under the U.S. tax treaty. Some more specific regulations apply, and taxes are based on your tax bracket. Nonqualified dividends are taxed at a normal income tax rate, regardless of your tax bracket.

Real Estate Investment Trusts
Real estate investment trusts (REITs) are required to distribute at least 90 percent of their taxable income in the form of dividends to shareholders, so shareholders are ultimately liable for paying these taxes.

Master Limited Partnerships
Master limited partnerships (MLPs) are publicly traded partnerships that combine the tax partnership benefits with the liquidity of a publicly traded corporation. Despite their complexities, MLP distributions are usually tax-friendly for investors.

Bonds
Bonds can be classified as government, municipal, and corporate. Depending on the classification, taxation of bond income varies. Bond income is generally taxed as ordinary income. Government bonds (e.g. Treasury bills, notes, bonds) are only taxed at the federal level while tax-free municipal bonds are never taxed at the federal level. Corporate bonds are liable for federal, state, and local taxes.

IRA Withdrawals
Traditional IRA withdrawals are taxed as regular income, assuming your plan was funded with after-tax dollars. This tax treatment applies to contributions made by either you or your employer.

Roth IRA withdrawals are tax-free if you are at least 59.5 years of age and the account has been active for at least 5 years.

Annuity Withdrawals
With annuity withdrawals, all earnings and interest (gains) must be withdrawn before the principal amount is withdrawn. The gains portion of this withdrawal is taxed as ordinary income where the principal portion is not. Both IRAs and Annuities have penalties for early withdrawals.

You may also find tax relief in retirement when it comes to proceeds from real estate. Income generated from reverse mortgages is not taxable because it is considered  a loan advance and not income. Contingent on certain IRS requirements, gains made from the sale of a home may be tax-free if the gain is no more than $250,000 for single people ($500,000 for married couples) and the seller had lived in the home for at least 2 of the last 5 years leading up to the sale.

Because of the complexities of taxation relative to retirement income, it is very important to consult with a qualified tax attorney who knows all the ins and outs of how to use tax laws to your best advantage.


Monday, December 21, 2015

Tax Tips for the End of the Year

What can I do at year's end to positively affect my taxes?

This year is rapidly coming to a close and so the end of another tax year.  This is the best time to review your taxes to see if you qualify for  any  deductions and to make any contributions that will work toward your overall benefit.  Here are some tax tips that can help you get the most out of your taxes this year.

Standard v. Itemized Deductions

You should decide whether standard or itemized deductions are right for you.  If you know that your itemized deductions will add up to less next year, you might want to consider shifting some from this year to the next.

Miscellaneous Deductions

It is also necessary  to determine if your miscellaneous deductions add up to an amount close to 2% of your adjusted gross income.  If they do, you might want to obtain what you need to to meet the threshold. 

Flexible Spending Accounts

Many of us have a flexible spending account through our healthcare.  You want to use up all the money you are allotted otherwise you will lose it.  So, determine how much you have and go to doctors, get medications and get things like glasses and hearing aids.

Medical Deductions

If you are under 65 and your qualifying medical expenses are more than 10% of your adjusted gross income they may serve as a deduction.

Retirement Accounts

Determine how much you are allowed to contribute to your retirement account (IRA, 401(k) or 403(b)) for the year and see if you can meet this threshold.  You might be able to contribute up until mid-April but it is worth confirming so you don’t miss your opportunity.

Charitable Deductions and Gifts

If you are in the spirit of giving, now is a great time to donate to your favorite charity or charities.  Just be sure to get documentation of your donation so they can be used to support the amount you are deducting.  If you want to give away some money tax free, you can give up to $14,000 ($28,000 if you are married) to any one person during this or any other tax year.

If you are interested in personal tax planning, an  experienced Arkansas attorney can assist you.  


Saturday, October 31, 2015

IRS Get Transcript Data Breach

In May 2015 the IRS announced that hackers had gained access to approximately 100,000 tax accounts through IRS’ Get Transcript application. This data included Social Security information, birthdays and street addresses. The hackers had to have sufficient information about the victims as the IRS Get Transcript application has a multi-step authentication process. As a result, the IRS has disabled the Get Transcript application until they are able to strengthen the application’s security measures.

Through the Get Transcript application hackers could receive tax return transcripts, tax account transcripts, record of account transcripts, wage and income transcripts. The data obtained by the hackers varied depending on the type of transcript that was selected. A tax return transcript provides information from a taxpayer’s filed tax return. A tax account transcript shows any adjustments the taxpayer or IRS has made to the filed return. A record of account transcript combines the information from the tax return and tax account transcripts. A wage and income transcript contains information reported to the IRS, such as W-2s, 1099s and 1098s.

The IRS believes the attempts started in February and continued through mid-May. The hackers made approximately 200,000 attempts during this time period, with more than 100,000 of those successful in getting through the authentication process. The IRS stated that it will notify taxpayers if their information was obtained by the hackers. The IRS is offering free credit monitoring for affected taxpayers. Those taxpayers will be receiving specific instructions that tell them how to sign up for the credit monitoring. Also, the IRS has flagged those accounts for potential identity theft so that the taxpayers can be protected going forward. In regard to the other 100,000, the IRS will notify the taxpayers that thieves may have their personal information.

If you receive correspondence from regarding the transcript breach and are not sure if it is actually from the IRS, you should contact the IRS. Please note, correspondence from the IRS will not request personal information such as your social security number or credit card or financial information. However, the IRS asks that you do not call the IRS regarding the breach until you have received correspondence from the IRS, as the phone lines remain extremely busy due to staffing limitations.


Friday, October 30, 2015

Tax-Related Identity Theft

Tax-related identity theft can occur in two ways: 1) when thieves file a fake return under the victim’s social security number in order to receive a refund check; and 2) when thieves use stolen information to obtain employment, which makes it seem like the victim had more income than he or she actually earned. Tax-related identity theft is increasing at an alarming rate. In the IRS’s fiscal year for 2014, the IRS assigned more than 3,000 employees to work on identity theft cases. This assignment reduced the number of employees available to handle the IRS’s traditional workload.

How do I know if I am a victim of identity theft?

There are several indicators that you are a victim of identity theft. The main indicator is that you tried to file your tax return electronically, but the return is rejected because another return using your social security number has already been filed.

Other indicators include notices from the IRS regarding the following:

  • stating that you have wages from somewhere you have never worked; or
  • stating you have a balance due, refund offset notice, or have collection actions taking against you for a tax year when you didn’t file a return or receive a refund.

What do I need to do if I am a victim of identity theft?

If you are the victim of identity theft and a fraudulent tax return has been filed in your name, the process of filing your taxes and collecting a refund may be more lengthy and difficult. Identity theft victims have to wait at least six months to have their refunds restored. However, reduced IRS funding and staff levels could result in victims waiting even longer this year.

If someone has filed a false tax return under your social security number you need to do the following:

  • complete Form 14039 Identity Theft Affidavit;
  • print a paper copy of your tax return;
  • make a photocopy of at least one document to verify your identity (passport, driver’s license, Social Security card, or other valid federal or state government issued identification); and
  • mail your tax return, Form 14039 and photocopy of the document used to verify your identity to the IRS (using the appropriate address for your state).

If the IRS notifies you that you did not report all of your income on your tax return you will need to:

  • respond to the letter as soon as possible (explaining that you did not work at that business and that you believe you are a victim of identity theft);
  • complete Form 14039 Identity Theft Affidavit;
  • make a photocopy of at least one document to verify your identity (passport, driver’s license, Social Security card, or other valid federal or state government issued identification); and
  • mail your response, Form 14039 and photocopy of the document used to verify your identity to the IRS (using the appropriate address indicated on the IRS correspondence).

You can also contact the IRS’s Identity Protection Specialized Unit at 1 (800) 908-4490.

If you are a victim of identity theft the Federal Trade Commission recommends that you also take the following steps:

  • Report identity theft to the Federal Trade Commission at www.identitytheft.gov or the Federal Trade Commission Identity Theft Hotline at 1 (800) 438-4338.
  • Contact one of the major credit bureaus to place a fraud alert on your records

 

Credit Bureau Website

Phone Number

www.equifax.com

(800)525-6285

www.experian.com

(888) 397-3742

www.TransUnion.com

(800) 680-7289

 

What precautionary measures can I take to lessen the risk of identity theft?

The IRS recommends the following things that individuals can do to lessen the risk of identity theft:

  • check your credit report annually;
  • check your Social Security Administration earnings statement annually;
  • protect your personal computers by using anti-spam and anti-virus software and by using firewalls;
  • don’t routinely carry your Social Security card; and
  • don’t give a business your Social Security Number just because they ask for it. Only give your Social Security Number when it is absolutely necessary.

 

The IRS also recommends that you do not give personal information over the phone, through the mail or via the Internet unless you are the one who has initiated the contact or you are sure that you know to whom you are sending the information.

What is the IRS doing to combat tax related identity theft?

According to the IRS Global Identity Theft Report issued May 31, 2014, the IRS was able to stop more than 3.6 million returns filed by identity thieved in the 2014 filing season.

For the 2015 filing season the IRS has limited the number of direct deposit refunds to a single financial account or to three pre-paid debit cards. This will also stop tax preparers who improperly deposit client refunds into their own accounts.

The IRS has also created an Identity Protection Pin (IP PIN) that is assigned to victims of identity theft. Each year the victim receives a new IP PIN that is used to file their income tax return.

Thursday, September 17, 2015

Estate Planning for Unmarried Couples

Increasing numbers of couples in this country have made the decision not to marry. Older couples, most of whom have been divorced or widowed, and younger couples, who may be postponing marriage indefinitely, often decide to simply live together rather than to marry. Even same-sex couples, who have recently won the legal right to wed, often choose not to.

It is important for all individuals and couples to become informed about the legal consequences of their decisions concerning whether or not to marry. Several tax issues are at stake.  While legally married couples are permitted to leave their entire estate to the surviving spouse free of the burden of estate taxes, all others will have to pay tax over the exclusion amount. This amount is high -- $5.43 million in 2015-- but there are other inheritance benefits to being married.

In addition to inheritance advantages, married couples enjoy the legal benefits of:

  • Social Security
  • Immigration status
  • The right not to testify against one's spouse
  • Joint bankruptcy filing and protection
  • Surviving spouse benefits (victim's compensation)
  • Hospital visits
  • Healthcare decisions

Since there is no common-law marriage in Arkansas no matter how long a couple has lived together, a Probate Court will not recognize cohabiting couples as legally joined. This means that if one partner dies, the surviving partner is not entitled to any benefits without additional planning.  The "next of kin" of an unmarried partner can file for any property that is left behind, including the home that the remaining partner lives in, even if said partner has contributed to the maintenance of that property for many years.

Because the law, rather than loving commitment, governs estates and inheritance, it is extremely important that bonded couples who are unmarried investigate potential legal ramifications of their status and engage in careful estate planning. Generally for couples with estates under $100,000, a well-prepared will may be all that is necessary, while for couples with larger estates, it will probably be necessary to establish a Revocable Living Trust. In either case, designating agents to make financial and healthcare decisions if one partner is incapacitated are important. No matter how young or old, every couple should consult with an attorney familiar with estate planning and tax law to ensure the future protection of each partner.

If you reside in Arkansas and have any questions or concerns regarding estate planning or tax law, please don't hesitate to contact one of our experienced and skilled attorneys at Hyden, Miron & Foster, PLLC.  We can be reached at 501.482.1787 or 888.770.1848.


Friday, September 4, 2015

Summer Tax Considerations Part 2

The summer is still going strong.  While we have already discussed some of the important tax considerations that come with this season of sunshine and swimming in our previous blog Summer Tax Considerations Part 1, we would like to note a few more.

Day Camps

Though day camp attendance is common for children during the summer months, many parents are unaware that the cost of day camp may qualify them for a federal tax credit. This is true if childcare is required while the responsible adult(s) is working or seeking work. In order to qualify for the Child and Dependent Care Credit, the following criteria must be met:

• The filing status of the client(s) must be single, married and filing jointly, head of household or a qualifying widow(er);          
• Day camp expenses must be for the care of a qualified person, usually a child aged 12 or under;   
• The care must have been provided so you – and your spouse if you are married filing jointly – could work or look for work;           
• If the credit is to be given to a couple filing a joint tax return, spouses must also be qualified;
• Spouses who are full-time students during the months involved qualify, as do spouses who are physically or mentally incapable of self-care;      
• The taxpayer must have earned income in the form of wages, tips, or self-employment; and
• Married couples must file a joint return, unless legally separated or living apart.

Day camps that specialize in a particular activity, such as soccer, drama, technology, may even be a qualifying expense. The tax credit for day camp is worth between 20 and 35 percent of allowable expenses, depending on income level. Total expenses during one year are limited to $3000 for one child or $6000 for two or more.

Certain types of childcare expenses are excluded from the tax credit, including overnight camps, summer school tutoring expenses, care provided by a spouse, by any person under the age of 19 or by anyone the taxpayer claims as a dependent.      

It is imperative that taxpayers keep receipts and records for their tax return filing, including the name, address and taxpayer ID number of the care provider. This information will have to be entered when they complete Form 2441 -- Child and Dependent Care Expenses.

Get a Jump on the Tax Extension Deadline

Just because October 15th is the last day to file tax returns for which you have requested an automatic six-month extension is no reason to endure the pressure inherent in waiting until the last minute. Assuming all the required tax documents are in your possession, you can use the generally quieter summer months to have your tax returns prepared and filed. Filing months before the autumn deadline can help to avoid unnecessary added stress as the school year begins.

If you are in need of assistance with a tax related matter, the Arkansas tax attorneys at Hyden, Miron & Foster, PLLC, can help.  Contact us at either (501) 482-1787 or (888) 770-1848 to schedule a consultation today.


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