February 27, 2015

Do I need to create a Special Needs Trust for my child with a disability?

What is a Special Needs Trust?

A Special Needs Trust (also called a Supplemental Needs Trust) for a disabled child is a trust formed by the parent and funded with assets that normally would placed into a regular account for the child, and which "shields" those assets from being considered assets of the child for governmental benefit purposes.

Many times, parents (very responsibly) fund UTMA (Uniform Transfer to Minors Act) or other accounts for their kids. Those funds are considered to be owned by the kids as a result of gifts from the parents to the kids. When the kids are minors, they cannot take legal ownership of the funds – that only happens when they reach the age of majority (either 18 or 21, depending on the actual account set up). Once a child reaches that age, he or she can legally do anything they want with the money. (Yes, sometimes, children don’t really know that the accounts can be accessed by them, and they allow their parents to direct as to how the funds should be spent - such as when the child is in college, and the child “pays” college tuition or other expenses with the funds.)

In some cases, when a child turns 18, (s)he may be eligible for SSI (Social Security Income) and other benefits such as Medicare/Medicaid as a result of a disability. However, for many programs he or she will NOT be considered fully eligible until all of his or her other assets are exhausted. (The government does not pay social security income or Medicare/Medicaid if a recipient has other available funds, and requires the potential recipient to “spend down” those funds before becoming eligible to receive benefits.)

While many parents are very responsible and do their best to provide for their kids, government benefits can be very helpful to a family – even a family with adequate resources – especially where there are other children, retirement and college accounts to fund, etc. So, many families plan in advance to both (1) provide for their child, and (2) arrange the child’s finances so that the then-adult child (age 18) will be eligible to receive government benefits in addition to funds set aside by the parents (or others) as gifts to the child during the child’s younger years.

What a parent may want to do now is set up a Special Needs Trust (also called a Supplemental Needs Trust) (Parent SNT) that will be funded with future gifts from the parents and others (up to the maximum amount per year that is exempt from gift tax – now $13,000 per person per recipient - $26,000 per year from both parents and $13,000 per year from any other person). That trust would also be in existence throughout the life of the child to accept any death benefits payable should either parent or even a grandparent pass away. If set up properly, the funds in the Parent SNT do NOT disqualify the child for government benefits (because the trust, not the child, “owns” the funds and the funds are distributed by a trustee in accordance with the terms of the trust). The trustee (you or any successor) can use the funds in the trust to pay for any supplemental needs not covered by government benefits -- the funds cannot be used to pay for ordinary daily needs that would be covered by governmental benefits. Thus, the child gets the benefit of government help AND other supplemental needs met (such as recreation, education, etc.) from the funds set aside for the child’s benefit.

What if We Already Have UTMA Accounts in the Child's Name?

Here is the kicker. A parent cannot fund a Parent SNT with funds that are already considered to be the child’s (UTMA account in existence), and thereby convert those funds that are already in the name of the child to funds that are not considered the child’s for government benefit purposes. So, even if you set up a Parent SNT now, at age 21 when the UTMA funds legally vest in the child’s name, the UTMA funds may have to be used to  pay back government benefits (s)he had been receiving from the age of 18 and/or the existence of the UTMA accounts will disqualify her for benefits (even if (s)he was previously qualified) if the account still has a balance . So, while a child may have become eligible for and been receiving benefits from the age of 18, once the UTMA funds vest (s)he will become ineligible until those funds are spent to payback benefits already received. After the spend down, (s)he will then be eligible again for government benefits.

Again, when the child turns 18 years old, (s)he may become eligible for certain government benefits, and the UTMA funds vest in him/her when (s)he turns 21.  What some people do is use the UTMA funds already set aside for the benefit of the child with the intent that by the time (s)he turns 21 (s)he has no assets that (s)he owns and legally controls. During the period before the child turns 21, the funds in a UTMA account can be used to pay for supplemental expenses for the child –pay for school, pay for an apartment, pay for camp or a car, etc. If those funds are exhausted before (s)he turns 21, then she will not lose her benefits eligibility as a result of having available funds in her name when (s)he turns 21.

In the meantime, you can set up a Parent/Third Party SNT and fund that with future gifts to the child. That trust would be mentioned in the parents' wills as the trust that would receive any testamentary bequests from either or both parents, and would maintain eligibility for government benefits for a child who may be eligible.


For more information, consult: www.specialneedsalliance.org;
http://www.socialsecurity.gov/ssi/spotlights/spot-trusts.htm; and a lawyer experienced in handling special needs trusts in your State. 

September 2, 2014

Do I have a right to air my views about an environmental permit application?

Q. Do I have a right to get involved in a situation where the state will be issuing an environmental permit for a property that borders mine?

A. You usually have a right to a notice of the impending permit as well as a right to publicly air your views regarding its impact. And in some cases, you may also have a right to challenge the permit. But first things first—how do you even find out that a permit is being requested? You must look for the public notice.

As a general rule, government agencies must give the community ample notice of an environmental action (e.g., permits/regulations) and an opportunity to comment on them.

Finding that notice, though, can be tricky. Oftentimes it’s buried in the legal-advertisement section of local newspapers; it can also be found in the Federal Register, located at public libraries and online. Since public notices make for some heavy reading, an effective way to keep track of an issue important to you is to contact—in writing—the permitting department of the responsible agency (for example, your state’s department of environmental issues if it’s a state matter; local government if it is a local issue) and ask to receive a copy of all public notices regarding the permit.

After the public has been notified, the community is given a period of time to “comment” on the issue—usually 30 to 45 days. Now’s the time to ask to review the permit and its application. Submit written comments questioning why it is being pursued and look at studies made by the agency showing why it’s necessary.

For interpretation of the documents, ask to speak to a representative of the agency issuing the permit. If you think it’s important that the community give input on the matter, request a public hearing with your state’s environmental agency. While public hearings are often held automatically, they are not always guaranteed. In some instances agencies will not schedule a hearing unless they deem there is enough public interest. Once the hearing is on the calendar, do your homework.

Besides the basics—lining up your questions, gathering information and rallying community support—contact the environmental agency about its ground rules for public hearings.

Are you allowed to present your case for 5 minutes or 10? How many people are allowed to speak? Do you have to sign up in advance? Get all your ducks in a row before you stand before the mike. And once the date comes, make sure you’re at the meeting.

It’s hard to later appeal a permitting decision in court if you didn’t bring up your concerns at the public hearing. What happens if the permit is issued despite strong community opposition? You can appeal the decision in a court of law, but remember, legal action carries a price tag and you should have very compelling evidence that the state’s environmental agency acted recklessly and unreasonably.


You might be wise to try to join forces with a community advocacy or advisory group or an environmental group who may have more money to spend and connections with experienced attorneys.

March 25, 2014

Do I Need a Lawyer for a Contract Review?

The contract might seem incredibly simple. You found a great form online, you’ve gone over the details several times and it looks like you might be able to come to a final agreement. Good intentions have been expressed on both sides. However, as the saying goes, “business is business.”

You might be dealing with a family member or a friend you’ve known for years, but that’s not enough to guarantee peace of mind. There could be legal ramifications if you choose to draft your contract without the assistance of a lawyer. In fact, doing it without a lawyer could lead to problems down the line.

You might choose to go with a verbal contract. They are allowed, but can be difficult to enforce in court. If it’s on paper, you have something on record, and that’s the key if a dispute ever arises. It’s also strongly recommended that you have a lawyer review your contract. Although you’ll find plenty DIY (do-it-yourself) opportunities, your best course is to seek the help of someone who can help you craft the right contract for your needs.

 

Here are some basics to consider when putting your contract together.

Have a Plan

In most cases, it’s fine to create an outline of what you’d like your contract to be. Whatever specifics you want in the contract should be included.  You will need to ensure that all terms are put the contract, even those seemingly innocent verbal agreements. Additionally, if your business partner resides in a different state, it’s a good idea to decide which state’s law will apply to the contract (you’ll have to choose which state). Leave nothing to chance. Have your attorney work with you to create a plan that works best for you.

 

When Things Don’t Work Out

Nothing’s ever perfect and even the best plans can be waylaid. That’s where a detailed contract can come into play. It gives you insurance against a worst-case scenario if your business venture doesn’t work out. The contract can spell out exactly the way you’d prefer to resolve any differences, whether it’s through mediation or arbitration. Your dispute doesn’t have to always be solved in court.

 

Protect Your Intellectual Property

When it comes to creative ventures, as much as you’d like to ignore the business aspect, the reality is that a well drafted contract will save you a headache (and legal fees down the road). If you’re engaged in a publishing business, whether you’re writing the next great novel or inventing a new technology, you need to take protecting your intellectual property very seriously. Even if the contract seems straightforward, you should always have an attorney review the document.

 

 

It’s About Your Best Interests

No matter how you decide to move forward with your business venture, having a contract is the first step to protect you and cover your bases if something goes wrong. More importantly, a contract is essential to keep your best interests covered, and a skilled attorney can deliver the content (and protection) that you need. A contract review attorney can help steer you in the right direction, so everyone involved can rest easy and feel confident.  

March 11, 2014

The Importance of Property Succession

Whether you decide to sell, retire, or leave your business due to health reasons, it is important that you plan for the day you will no longer be able to run your company. Succession planning is a very important part of business planning and is something that you should address when you first go into business. Small businesses have unique challenges if one of the owners or managing partners can no longer fulfill his or her duties running the business, and this is especially true for businesses that have only one owner (sole proprietors) who are responsible for making all business decisions. Simple transactions such as paying bills or payroll may not be able to be done without a court order.

 

Unfortunately, succession planning is not often a priority among small business owners. A survey conducted by Zen Wealth found that sixty percent of small business owners do not have a succession plan in place.

 

What this means for your business is that the details of how your business is run could be at risk at any time. Do you even know who will inherit the business? That’s the person who’ll be making all of the important decisions about how it operates—can you afford to leave that role open to chance?

 

A succession (or exit) plan outlines who will take over when the owner leaves, and also identifies the best way for the owner to exit the business. Creating a succession plan will help you implement factors far in advance that will future-proof your business for sale or transfer of ownership when the time comes.

 

Here are some typical problems that a succession plan can address:

§  the business owner “is” the business, leaving the company unable to function without the owner

§  the business is reliant on a few large clients with an undiversified revenue stream

§  there is a non-transferable lease on business properties

 

All these things are correctable if they are caught beforehand.

 

A succession plan also allows you and your successor time to prepare for the transfer of ownership. Your successor will need to go through certain training before they’ll be ready to take over your business. The time you’ll need for adequate training will depend on the complexity of your business. It’s best to achieve this training over a gradual period of time, so that you’re available to help your successor make the transition. You should not put off this preparation until the last minute.

 

 

Lastly, having a succession plan in place is important because you need to know how much your business is worth if you intend to sell your business, which means you have to identify the factors that determine your business’ fair value. You should be able to document the changes in your business’ revenue over time, thus showing past growth and profitability, which can then be used as estimates for future earnings. The U.S. Small Business Administration (SBA) offers resources to help with your succession planning. If in doubt, it never hurts to consult with an attorney during this planning process.

February 28, 2014

What do you do when a neighbor encroaches a structure on your property? Here's some advice.

Real Estate and Boundary Disputes

 

Q. What should I do if a neighbor’s structure encroaches my property?

 

A. As the saying goes, fences make great neighbors. But sometimes fences (or sheds, home additions, driveways, patios, etc.) cause significant disputes when one owner believes the other owner’s structure has encroached onto their own property.

 

Before you get into a dispute with your neighbor, check your deed, property stakes and any survey to locate descriptions of your property lines. If, indeed, it seems the structure is encroaching your land, try and talk to your neighbor first.

 

If an actual dispute exists, your next step should be to hire a surveyor to prepare a boundary survey or both properties — at a cost of several hundred dollars or more per lot — to draw up a new survey of the land. It’s not uncommon for deeds that are decades or more old to be less than accurate; a new survey will set the record straight for you both. Whether you pay for the survey or split the cost is an arrangement you have to make with your neighbor.

 

In some cases, the property lines will be so different from what you thought was yours, you and your neighbor may mutually agree upon where your property begins and his ends. With the help of a real estate lawyer, you can draw up and sign a new deeds which redistribute the property boundaries. This can be problematic, however, if the property is in a subdivision. Also, for those with a mortgage, it’s important that you get the mortgage holder’s approval before the new deed can become official.

 

As a last resort, if you feel confident that your property is being encroached upon, you can file a claim in court and ask a judge to decide the boundaries—but the more you involve the legal system, the more cost you will incur.

 

Whatever course you take, however, there are some important points to remember: Don’t remain quiet. If you let the construction go forward and you never speak to your neighbor about the discrepancy, then it’s likely that if you ever do want to fight the boundary lines, a court of law will assume you gave up rights to the land long ago. What’s more, if you go to sell your house, a title company may refuse to issue a title to the home because your neighbor’s structure is on your property

 

Additionally, if you and your neighbor do agree on new deeds, sign them and get them filed in your county’s land records office. A deed that isn’t signed and/or properly filed really isn’t worth the paper it’s written on.

February 13, 2014

CEF Meeting with Zoning Board - Chapelgate Presbyterian Church

CEF Meeting with Zoning Board - Chapeldate Presbyterian Church

2600 Marriottsville Rd., Marriottsville

3/5/14 at 7PM

 

February 1, 2014

There is No Such Thing as a "1099 Employee"

An independent contractor by definition is a person or can be another company even, who is hired to perform a job for another person or business. How, where, and when the job gets done is under the sole control of the contractor, not the hiring company. On the other hand an employee is a person hired by a company to perform a job function within a business and the hiring company controls how, when, and where the job is performed. There is no such thing as a “1099 employee.” The two are totally separate classifications under law and can’t be combined into one. Someone who does work for your company is either an independent contractor or an employee and cannot fall under both categories.

One of the major differences between independent contractors and employees are that independent contractors are responsible for paying their own taxes from their earnings. The hiring company is not responsible for withholding state and federal taxes, Social Security or Medicare taxes for a contractor or vendor. Employers are responsible for paying the income of their employees as well as withholding all taxes and offering healthcare benefits under law.

The IRS has a 20 point checklist to help businesses properly classify their workers as either independent contractors or employees. Here are the major points used to classify independent contractors:

  • Who has control? A worker is an employee if the person for whom he works has the right to direct and control him concerning when and where to do the work. The employer need not actually exercise control; it is sufficient that he has the right to do so.

  • Right to fire. An employee can be fired by an employer. An independent contractor cannot be fired so long as he or she produces a result that meets the specifications of the contract.

  • Training. An employee may be trained to perform services in a particular manner. However, independent contractors ordinarily use their own methods and receive no training from the employer.

  • Set hours of work. Workers for whom you set specific hours of work are more likely to be employees. Independent contractors, on the other hand, usually establish their own work hours.

Misclassifying an employee as an independent contractor can result in serious fines and penalties by the IRS. 1099 refers to the form companies issue to independent contractors for tax purposes. It’s very important you aren’t issuing a 1099 designation to someone who should be classified as an employee and receive W-2 forms instead, which documents how much money was withheld throughout the year for federal, state, Social Security and Medicare taxes. To help you determine the right classification for your workers, consult the complete IRS checklist. If you’re still unsure, it might be best to consult an accountant or a business attorney who specializes in small business and corporate laws.