Wednesday, May 18, 2016
Friday, May 13, 2016
Business succession planning is a topic that many business owners sweep under the rug – waiting until they absolutely have to address it, if they do so at all. These business owners give little attention to succession planning. They think it’s an issue that will work itself out. But what they don’t realize is that statistically most businesses fail to successfully transition to subsequent generations. Indeed, less than one-third of businesses successfully pass to the second generation, and that proportion is substantially less for the third and fourth generations and so on. In our experience, family conflicts are the primary contributor to unsuccessful business succession. The main family conflicts concern (1) the unwillingness to change traditions and adapt, which is required to operate a successful business, (2) the interjection of emotion in what should be logical business decisions, (3) the unrestrained willingness to hire unqualified family members, and (4) the lack of family unity. Unaddressed, these conflicts can relegate a business to the category of failed business succession, where statistics say two-thirds of businesses end up. However, with proper planning and counseling an otherwise prosperous business can be passed from generation to generation providing benefit to each.
|Michael D. Lum|
If you are a business owner and have not planned your business succession or have not visited the topic in a while, please contact an attorney at JEFFREY BURR who can help introduce you to a team of professionals and participate with your current advisors to help you plan for business succession.
Tuesday, May 3, 2016
Limited Liability Companies (“LLCs”) are a type of business entity recognized in all fifty states. LLCs provide the protections of a corporation and the flexibility and tax advantages of a partnership.
An LLC possesses the corporate characteristic of limited liability for all its members. This characteristic generally shields the individual LLC members from personal liability beyond their investment or capital commitment to the LLC for the debts and obligations of the LLC. Thus, members are protected from being liable for debts incurred by the company, but the company’s assets are also protected from a member’s individual creditors. In Nevada (along with only a handful of other states), a charging order is the exclusive remedy for creditors of LLC members, which means that those creditors can generally only get money or property that is actually distributed to the liable member. The manager of the LLC, or the controlling member or members of the LLC, has some flexibility in withholding distributions to ensure that the creditor of the liable member does not get the company’s property. Additionally, an LLC possesses the income tax flow-through attributes of a partnership, avoiding the double taxation problems typically associated with traditional corporations.
The LLC also has extremely valuable estate planning uses, such as for gifting and reducing estate tax liability, protecting family assets, and insurance planning considerations. Thus, the LLC is an extremely versatile tool from both business and estate planning perspectives. To determine whether an LLC could work for your business or as a part of your integrated estate plan, contact one of the attorneys at JEFFREY BURR today.
Wednesday, April 27, 2016
We are left to wonder how Prince would have wanted his estate / legacy divided? Will his wishes be met? Read the article published by wealthmanagement.com, a division of Trust and Estates Magazine:
Don't hesitate to create some sort of estate plan. Contact the Law Offices of JEFFREY BURR to discuss preserving your legacy.
Friday, April 22, 2016
The Census Bureau tells us that 1 in every 6 families now has a disabled person within their extended family. This means there are an increasing number of disabled adults who will become orphans as their parents age and pass.
We suggest parents with a disabled child create a formal care plan to prepare for the time when they are no longer able to care for their disabled child. This plan should address the particular needs of the child, the manner for the delivery of care and how the child’s care needs might be paid for over the expected lifetime of the child.
These plans are an essential component of an estate plan. In our experience they are a lot of work, both emotionally and in terms of time and commitment. The care plan should include the child’s adult siblings and grandparents, as these plans work most effectively when they are inter-generational, comprehensive and have coordinated planning goals, especially as to public benefits planning.
For instance, if grandparents wish to remember a disabled grandchild in their Wills and should leave a large bequest for the benefit of a disabled grandchild who is receiving publicly funded medical care, the result is the likely termination of the grandchild’s essential public health care benefits. Not a good result and certainly not what the grandparent’s envisioned when making their estate plan.
However, grandparents (and other family members, too) in consultation with the child’s parents, could leave a bequest for the benefit of a special needs grandchild in a Special Needs Trust without the loss of the grandchild’s medical benefits.
In most states, Nevada included, a disabled person can have only $2,000 in assets and still qualify for Medicaid or Social Security Supplemental Security Income (SSI). These programs, while helpful, and often essential, rarely provide the level of care needed by a disabled person. With a Special Needs Trust, the extended family can leave gifts that effectively enhance the quality of life for their special needs child or grandchild and still preserve basic public benefits.
If you are a parent, grandparent, or a sibling of a special needs brother or sister, be sure that your family has coordinated their planning for the preservation of basic public benefits. Usually, one Special Needs Trust is sufficient for the entire family of a disabled individual.
At Jeffrey Burr, our experienced attorneys have helped many families with the complexities of comprehensive planning for special needs beneficiaries.
Tuesday, April 12, 2016
Upon the death of a person who created a revocable or living trust the trust agreement typically provides for distributions of the Trust assets among various beneficiaries. A beneficiary of a Trust understandably wants his or her inheritance as soon as possible. Trustees also desire to complete the administration of the Trust, including distributions to the beneficiaries, as quickly as possible after the period for filing creditor claims has expired. The Trustee may also be a beneficiary or related to the Trust beneficiaries and these interesting “family dynamics” can put additional pressure on a Trustee to distribute the Trust quickly. Regardless of all these facts and competing interests for a quick termination of the Trust, it is good practice for a Trustee to retain a certain amount of the Trust monies from the final distribution to the beneficiaries. This retention is often called a “holdback.”
The amount of the holdback depends on the particular facts of each case. Oftentimes there is a final income tax return (Form 1040) of the decedent due the following calendar year that cannot be prepared and filed until after January 31 of the following year. For example, a person dies on June 1, 2016 with a Trust. The Successor Trustee is responsible for filing the deceased person’s final Form 1040 (or a state tax return if state income tax is involved) regarding any taxable income of the decedent from January 1, 2016 to the date of death. This final income tax return is due on or before April 15, 2017, and should be filed by the Trustee or Executor. However, the decedent’s forms 1099s, W-2s, W-4s, Schedule K-1s, et cetera for the 2016 calendar year will not be issued by the decedent’s employer or other sources of income until on or about January 31, 2017. And realistically the tax preparer may not complete the income tax return until March or April, depending on their workload. Accordingly, the Trustee needs to holdback a sufficient sum to pay the fees of the tax preparer and for payment of any income tax that may be due on the decedent’s final income tax return.
Additionally, the IRS has 3 years from the filing date of a tax return to audit the return. If there is a likelihood of an audit of the 2016 return or the 2 previous income tax returns of the decedent, there may be additional tax, penalties and interest owed. If this occurs there will be accountant and attorney fees incurred in an audit. Additional monies must be held back in the likelihood of an audit. It is common for a Trustee to retain a holdback until the 3 year audit period has expired, after which the remaining holdback is distributed to the beneficiaries.
Holdbacks are also utilized when a federal estate tax return is filed. (Estate tax returns are required if the estate value is above $5.45 million for a single deceased individual or up to $10.9 million for married deceased taxpayers).
The most important reason for a holdback is that a Trustee is personally liable for any tax due to the extent that Trust assets were under the Trustee’s control, even if the Trust assets have already been distributed to the beneficiaries. Accordingly, a Successor Trustee should always consult a knowledgeable trust attorney before making distributions. At Jeffrey Burr, Ltd., our trust administration attorneys have assisted numerous individual and corporate Trustees in performing their duties.
John R. Mugan, Esq.
Trust Administration Attorney
Wednesday, March 30, 2016
It is common for a person (hereinafter the “trustor”) to create a living trust to avoid the expense and time of probate. The creation of the trust is not the sole step in avoiding the probate process – the trust must be “funded”. “Funding” a trust is the process of the trustor conveying the title of his or her property into the name of the trust. For real property, this process requires the preparation, execution, and recordation of a deed. Some initially fear that their mortgaged real property cannot be conveyed to their trusts. The fear is based upon the “due-on-sale” clause contained in the mortgage agreement. Fortunately, federal law has brought clarity to the issue of mortgaged property and trusts. What is known as the Garn St. Germain Act prevents a lender from exercising its “due-on-sale” clause option to take action for “a transfer to an inter-vivos [living] trust in which the borrower is and remains a beneficiary”. There are a few limitations with regard to what type of dwelling would fall under this exemption, but for the person who has a single family residence or condominium such relief is applicable.
If you should have any questions regarding real property and trusts or want to discuss further, feel free to contact the law firm of Jeffrey Burr for assistance.