How will proposed tax reform affect your estate plan?

Posted January 30, 2015 in Business Law, Estate Planning, Probate by Jennifer Mispagel.

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January 30, 2015
How will proposed tax reform affect your estate plan?
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On January 20th, 2015, President Obama stood before a joint session of Congress and delivered the annual State of the Union address. Some of the topics discussed were the current State of the Union, College Savings Plan reform, his legislative agenda as well as several White House proposed tax reforms for the upcoming fiscal year.

While many of his new policies will affect all Americans in some way, several of his proposed tax increases will particularly affect upper-income persons and financial corporations. One in particular is a proposed change to the tax on appreciated estate property, otherwise referred to as the “trust-fund loophole.”

Taxation on Appreciated Estate Property

The term Capital Gain stands for the profit realized on the sale of a non-inventory asset that was purchased at a cost amount that was lower than the amount realized on the sale.  In the United States, individuals and corporations pay U.S. federal income tax on the net total of all their capital gains just as they do on other sorts of income. “Long term” capital gains are generally taxed at a preferential rate in comparison to ordinary income.

Currently, the law states that property which has appreciated in value that is owned by an estate is generally not subject to tax at death. Under this tax scheme, children and other heirs typically receive and sell property with little or no capital gains tax since most property receives an increase in basis to fair market value. For example, a parent who dies can pass along a valuable asset to their child or heir with no capital gains tax being due. When the child or heir eventually sells the asset, the current law limits the eventual tax bill by figuring the taxable gain only since the parent’s death. While this is a feature commonly known as a stepped-up basis the administration refers to this as the “trust fund loophole” and is looking to change it.

The White House proposal is to tax this appreciated estate property. The proposal states that the tax will be at 28% if the difference between the cost of the property and the fair market value at death exceeds $100,000 per person. There would be a separate exclusion for a personal residence of $250,000 per person. The proposal would not include clothes, furniture and most other personal items.

In arguing its case for revising this aspect of the tax code, the White House claims that all of the gain on valuable property or assets that occur prior to the death of a parent unfairly escapes tax. The White House claims it is in good company. Critics of the current tax code say that it is outdated. They claim that while the current policy reduces disputes over prices paid for assets long ago, they acknowledge that revision to the tax code would unlock capital by removing an incentive for holding valuable assets for generations.

Many experts, such as USC tax expert Edward Kleinbard, agree. Mr. Kleinbard notes that the capital gains tax is our only truly voluntary tax. Taxpayers can defer it for a considerable amount of time simply by withholding on the sale of their taxable assets. He argues that if you’re rich enough to hang onto your stocks and bonds, or can utilize financial strategies to enable you to exploit their value without selling them, you can defer paying capital gains tax your entire life.

Whether the White House prevails in passing this legislation remains to be seen. It seems clear, however, that negotiations on tax policy will continue in attempts by the current administration to eliminate tax loop-holes. Eliminating the lock-in effect, where holders of appreciated assets avoid selling because of the taxes imposed on the sale, could have a major impact on estate planning strategies and should prompt concerned individuals to look more closely at their estate plans, which should be revised periodically to ensure the best treatment of ones assets.

These are issues that make estate planning a complex field. Whether you are concerned with devising a plan for either a family estate or that of a business, it is important to get good advice. The attorneys at Lonich & Patton have decades of experience handling complex estate planning matters including business succession plans, wills, and living trusts. If you are interested in developing an estate plan or reviewing your current estate plan, contact the experienced estate planning attorneys at Lonich & Patton for further information as we are happy to offer you a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

 

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Divorce Month is Half Over

Posted January 16, 2015 in Family Law by Lonich and Patton.

This coming Monday, January 19, 2015, has been marked as “blue Monday” or the unhappiest day of the year. Experts predict the following factors contribute to blue Monday: weather conditions, debt level, time since the holidays, time since failing our new year’s resolutions, low motivational levels, and the feeling of a need to take action. On a similar note, every January also experiences a noticeable increase in the number of individuals seeking divorce advice and ultimately filing for divorce. The president of the American Academy of Matrimonial Lawyers says the number of divorce filings is one-third more than normal, starting in January and continuing until early March. Like blue Monday, this trend is rather melancholy but makes sense for a couple of reasons.

First, an unhappy spouse may want to wait until the new year to file for divorce in order to avoid the associated social stigma. Most spouses probably do not want to explain why their spouse was served with divorce papers right before the holidays, a time traditionally for family. Additionally, waiting until January avoids “ruining” Christmas for the children and keeps the status quo until the children return to school.

Further, a new year comes with new year’s resolutions, most of which are aimed at achieving personal happiness. If a spouse is in an unhappy marriage, then a divorce may be an appealing option.

Lastly, it may be logistically easier to wait to file until the holidays are over. This may streamline the divorce process, making it more likely that the divorce will be finalized before the end of the year. Courts often experience backlog during the holiday season, as spouses rush to finalize their divorce before January for tax purposes (they want to file as single for the new year).

Whatever the reason, if you are in an unhappy marriage right now, you are probably not alone. On a positive note, many spouses have completely different and new lives in front of them after divorce. Hence, January is also the busiest time of the year for online dating websites, which experience a similar 38% increase in registrations from December through February. According to a study published in the National Academy of Sciences, around one-third of American marriages now begin online and are less likely to end in divorce than those who did not meet online.

If you are considering filing for divorce at any time of the year, the Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  Please contact the Certified Family Law Specialists at Lonich & Patton for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Your Holiday Child Custody Visitation Schedule

Posted December 12, 2014 in Family Law by Lonich and Patton.

December is a holy time of the year, encompassing the celebration of many religious holidays and spiritually significant days. December may also, unfortunately, be the time of year that religious differences arise between ex-spouses, which may not have been present during marriage. When parents have divergent religious beliefs, it may be difficult to come to a visitation agreement during the holidays.

The general rule is that the custodial parent has the authority to make decisions relating to their child’s religious upbringing. For example, a Jewish father who is the custodial parent has the right to raise his child as Jewish and to celebrate any related religious holidays, such as Chanukah, with the child. At divorce, this may raise some concerns if the parents do not agree on what religion to raise their child. Courts will not prohibit the noncustodial parent from discussing religion with the child or from involving the child in his or her religious activities, in the absence of a showing that the child will be harmed.

Further, courts are unwilling to get involved in religious disputes between parents because of the potential for interference with the First Amendment’s guarantee that the government shall not prohibit the free exercise of religion. Thus, courts will never make any ruling based solely on religion. Courts will, however, uphold child custody visitation agreements between the parents that concern religious issues.

If religious differences may become an issue during or after divorce, it is important that you and your ex-spouse discuss the importance of all religious holidays and how they will be incorporated into your visitation schedule. Parents will usually alternate custody between holidays each year, but this is not always the case if one parent values certain holidays more than others, or if parents of different faiths want to celebrate holidays that fall on the same day. Whatever you and your spouse agree on with regards to the custody schedule, it should be determined well in advance and with the child’s best interests in mind. Additionally, any custody agreement should detail exactly what will happen in these situations.

The Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  If you have any questions about your child custody visitation schedule, please contact the Certified Family Law Specialists at Lonich & Patton for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Surviving The Holidays During A Divorce

Posted December 3, 2014 in Family Law by Michael Lonich.

The holidays are a time for family, friends, and togetherness. For the recently divorced or those in the process of a divorce, the holidays can be a very sad, confusing, and lonely time; especially for those couples with children. Lonich & Patton, LLP have put together three tips to get you through the holidays this year: plan ahead, socialize, and create new traditions.

Plan Ahead

The first and most important step to ensuring you survive the holidays is planning ahead. This includes planning out where your children will spend their holidays and with whom. Depending on your custody plan, there are inevitably going to be holes in your schedule and during those time, loneliness may be unavoidable. One way to avoid being lonely during these times is to get activities on the calendar.  If your children will be with your former spouse this year, plan activities with friends and family to keep you busy. While keeping yourself busy may be essential to surviving the holidays, it is also essential to leave some time for rest and reflection, so try not to over commit yourself.

Socialize

The more the merrier. It is common knowledge that the more people you surround yourself with, the better your mood will be. Just because your children are with your former spouse, does not mean you have to spend the holidays home alone. This holiday season, be sure to interact with others, whether it be with family or friends. Socializing will help you avoid feelings of sadness, loneliness, and depression. If you used to spend your holidays with your in-laws, find somewhere else to go this year. Do not be afraid to crash a holiday party or two. And remember, it is normal to feel out of place and uncomfortable, but the more you socialize, the better you will feel.

Create New Traditions

                Divorce means letting go. This includes letting go of certain family traditions. Now that you are divorced, your holiday traditions are bound to change. This is your opportunity to keep the traditions you enjoy, get rid of those you do not, and create new and better traditions with your children. Take this time to try something you have always wanted to do, were too scared to do, or something your former would never let you and the children do. Also, if your children are spending this holiday with your former spouse, consider celebrating the same holiday with your children on an alternate day.

These are just some of the many tips available to survive the holidays during your divorce. The Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  If you are interested in learning more about scheduling where your children will spend the holidays, please contact Lonich & Patton for further information.  Keep in mind that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Who gets the family pet in a divorce?

Posted October 27, 2014 in Estate Planning, Family Law by Lonich and Patton.

If I had to ask you to put a price on your dog, cat or your pet hermit crab, could you? For some, perhaps they could but the vast majority would likely agree that their pets are priceless. However, disputes regarding who gets the family pet in divorce proceedings has become commonplace in family law.

Earlier this year, Melanie Griffith and Antonio Banderas made a statement that they were ending their two-decade marriage but vowed to remain friends and to move forward lovingly. However, shortly after, reports surfaced that a custody battle was flaring up – not over their 17 year old daughter, but over the couple’s three dogs.

Although these days some people treat their pets better than their own children, in the eyes of the law pets are still only considered the property of their owners, much like their furniture is[1]. Legal experts agree that pet owners invest hundreds sometimes thousands of dollars and hours researching proper training, good food choices, and the perfect toys, groomers and veterinarians for their pets. Those same individuals might also take precautions with their estate by writing a prenuptial agreement. But how often do those pet owners think about legal issues associated with pet ownership?

Family law attorneys agree that the best way to handle a situation with a pet is to put it in a prenup. If you came into your relationship with Maxwell, put it in writing that if you are to leave the relationship Maxwell is coming with you. If you and your significant other purchased a pet together during the relationship, but you both agree that one of you should have the pet in the event of a breakup, a post-nuptial agreement would make sure that in the event of a divorce or separation the pet would go with the spouse more bonded with the animal.

Without something in writing, trouble could land you arguing in court. Last year a New York judge granted a divorcing couple the right to engage in oral arguments over pet custody for the first time in the state’s judicial history. The landmark legal showdown was ultimately averted. The couple settled out of court.

In the event of a heated breakup, pets can be protected.  If a party feels that he/she and the pet is in danger at the hands of the other party, California law provides for the family pet to be included on a protective order. Since 2008, courts have had the ability to make an order that the restrained person stay away from the pet. Family Code Section 6320 provides that upon a showing of good cause, the court may include in a protective order a grant of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by the spouse or minor child resident in the residence.

Family Code section 6320 makes strides toward addressing the established connection between animal abuse and family violence commonly referred to as the “Link.”[2] One of the first studies that described this Link found that of a survey of women with pets who had entered a shelter in northern Utah, seventy-one percent reported that their partner had threatened or actually hurt or killed one or more of their pets.[3]Another study of fifty of the largest shelters in the United States found that eighty-five percent of battered women and sixty-three percent of children with pets had experienced incidents of pet abuse.[4] An alarming consequence of these studies is that victims may feel that they cannot leave their abuser because they worry for the safety of their pets.

The Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  If you are interested in learning more about prenuptial or post-nuptial agreements, please contact the Certified Family Law Specialists at Lonich & Patton for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.


[1] Kimes v. Grosser (2011) 195 Cal.App.4th 1556

[2] Am. Humane Ass’n, Learn About the Link, http://www.americanhumane.org/site/PageServer?pagename=lk_about (last visited Aug. 4, 2007); see also Senate Judiciary Committee, Committee Analysis of SB 353, at 2-5 (Mar. 27, 2007) (explaining the connection between animal abuse and family violence). There are also several studies that report that children who witness abuse, or are abused themselves, tend to, in turn, abuse animals. See Phil Arkow & Tracy Coppola, Expanding Protective Orders to Include Companion Animals 5 (2007), http://www.americanhumane.org/site/DocServer/PetsinPO2007.pdf? docID=5061 (describing the harmful effects upon children of witnessing domestic violence).

[3] Frank R. Ascione, Battered Women’s Reports of Their Partners’ and Their Children’s Cruelty to Animals, 1 J. Emotional Abuse 119, 125 (1998).

[4] Frank R. Ascione et al., The Abuse of Animals and Domestic Violence: A National Survey of Shelters for Women Who are Battered, 5 Soc’y & Animals 205, 211-12 tbl.1 (1997), available at http:// www.syeta.org/sa/sa5.3/Ascione.html.

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