Minggu, 24 September 2006

"Living Trusts"

Every week I have clients come to me asking if they should set up a "Living Trust." I first ask them if they understand what a living trust is supposed to be. Usually, they tell me they do not. I next ask them what it is they hope they can accomplish with such a living trust. With this question, they invariably tell me the following:

1. They don't want they government to take their property/They don't want their estate taxed heavily.

2. They want to get everything out of their name for liability protection/medicaid protection.

3. They want to avoid probate, the high costs of probate and probate lawyers, and they don't want individuals to see what's in their estates because probate consists of public records.

While I do have clients that might benefit from such living trusts, after explaining it to them more in depth, they often decide that a standard will and testament will do just fine.

Before you invest in an expensive set of trusts, ask yourself these questions:


1. Just what is a "living trust," exactly? A trust, like a corporation, is an instrument created on paper that takes on a legal life of its own. Basically, someone (the trustor or grantor) gives property for the benefit of someone or some group (the beneficiary or beneficiaries), but the property is held by someone else (the trustee). The most standard trusts are set up to take care of the beneficiary (be it a child, an old person, or whatever) by letting someone with presumably better judgment handle the property for the beneficiary. A "living trust," however, is a subset of this where the grantor, trustee and beneficiary, at the time the trust is set up, are often the same person--you've just created a legal entity to hold it. The idea is that you still get the benefit of it and control it, but you designate how it will go at your death, or who will handle your property for you if you become unable. That's pretty much all it does.

2. Will a Living Trust protect me from the government taking/taxing my property? Probably not. First, some people believe that if they don't have a named beneficiary or will that at their death, the government will take their property. This is incorrect--their "heirs" (as determined by state law) will take their property. The benefit of planning your estate yourself (by will, trust or whatever means) is that you, not the state, get to control who your estate gets left to. As for estate taxes, if your estate is large enough to be subject to taxes (I'll talk more about this in a second), whether your property is controlled by a trust or by yourself or by a will doesn't effect the taxes. It's how you plan your estate (both during your life and at death) that will effect what taxes the government may or may not take.

A secondary question you should ask is, "Am I even subject to estate taxes anyway?" Do you and your spouse's assets, including life insurance policies, come close to $1.5 million? Currently, estates must be almost $2 million to be taxed anyway.


3. What kind of asset protection am I looking for? First, if you've already got a potential claim coming against you (a lawsuit or you've been in an auto accident, etc.), it's too late to get property out of your name anyway--state laws prevent transfers of property to avoid creditors. Second, if you do want asset protection, their are better methods of doing this other than so-called living trusts: corporations, limited liability companies, even family limited partnerships can provide better asset protection than a trust in which you are the grantor, trustee and beneficiary all rolled up into one.

4. What probate issues will I avoid, and are they worth avoiding?
First, let me put some of these probate fears in perspective.
a. The costs: probate fees in the state of North Carolina will usually run, at worst, a couple of hundred dollars. More of my clients than not probate their deceased's own estate without having to resort to a lawyer.
b. The publicity: One of the few completely true statements that trust-sellers always make is that your estate is public record and everyone can know what you owned. When I meet with my client and he tells me that, I then ask him, "If you and your wife are both dead, does it really matter to you if people know what your estate is?" They inevitably tell me, "No." More practically, I go to my local courthouse almost every day, and I can tell you from my experience that I've never seen someone lurking in the courthouse to look up someone's estate file just to see what the deceased owned.

5. Do I really want to go through the hassle of putting all my property in a trust? For it to work like it's supposed to, you'll have to re-title everything--cars, houses, land, etc.--into the name of the trust. Do you want to have to do that? And what if you forget and leave something out? Well, your estate might just have to go through probate anyway!

I'll give you one example that makes my point. A married couple in their early 60s came to me to amend their trust. They'd purchased it for $3,000 from a seminar. It was basically a computer print out form, in a black spiral-bound notebook, with their names in it.

I asked them out of curiosity why they bought a trust, and they gave me all the reasons listed above. After some discussion with them, I determined that their estate was probably less than
$300,000, they had no liability issues, and that with some simple planning, the first spouse's estate was so simple it wouldn't have needed probating anyway. They'd been sold something they really didn't need!

And the worst yet--they had me do a will for them too!

Granted, there are individuals with sophisticated estates who probably could use a trust; but most of the individuals I know who've bought them just think they've got a sophisticated estate.

Before you go through the expense and trouble of setting up a so-called living trust, talk to your attorney, or a tax professional. You might just find that it's unnecessary. If you have any further questions, or would like to set up a consultation, contact me at wldeaton@vnet.net .

Sabtu, 16 September 2006

I saved a client $40,000 this week... pt. 2

This week, a client of mine sold a property he'd purchased only one month earlier for $135,000 profit. But he paid no taxes. How? Read below, and see how he saved $40,000.

The Internal Revenue Service has written a rule in its code in Section 1031 that provides a way in which people who sell property (usually, though not necessarily, real estate) can defer the taxes on their profits--indefinitely!

The original way in which taxes were saved was through a swap. For example, you bought a piece of land at the beach for investment for $100,000. Five years later, it's worth $200,000. You'd like to get rid of this land, and buy yourself a duplex. As it so happens, I have a duplex that I bought for $100,000 which I'm willing to sell for $200,000. We work out a deal by which we just swap properties. Although technically, we've each sold property for $100,000 more than we paid (thus usually triggering a tax), Section 1031 lets us defer any gain or taxes because we performed a simultaneous exchange.

Of course, this type of exchange is pretty limited. Usually, if you find someone willing to buy your property at the price you set, they're not going to have a like-kind property you could swap. Section 1031 provides another way to defer taxes called the "non-simultaneous like-kind exchange."

In short, the non-simultaneous exchange (commonly referred to as a "1031 exchange" or "like-kind exchange") allows you to sell your property, put your money into a sort of holding tank (technically called a "qualified intermediary"), find another piece of property you want, take the money out to buy it, and not pay any taxes.

Of course, it's not quite that simple. You've got to pick out the other property (called the "replacement property") within 45 days, and you've got to buy the replacement property within six months after you sold your original property.

Furthermore, the property has to be roughly similar. In other words, you can't sell a piece of land, and do a like-kind exchange with stock or bars of gold. On the other hand, the code doesn't require that the property has to be identical. If you sell a beach lot, you don't have to buy another beach lot--you could replace it with, for example, a duplex.

Back to the original example: let's say a buyer came along willing to pay you $200,000 for your beach lot you bought five years ago for $100,000. To do a like-kind exchange, you'd sell it, and the money would be held by the intermediary. You'd have 45 days to find a replacement property. Let's say after three weeks, you find a rental duplex that you like, which also happens to be roughly the same in value, and sign a contract to purchase. You'd then notify the intermediary, who would provide the money at closing. In this example, not only did you not have to pay taxes on your $100,000 gain, but you converted a non-income-producing property (raw land) into an income-producing property (of course, you'll have to pay income tax on any rentals you receive).

In my real life example, my client purchased a lakefront house and lot for investment at the beginning of August for an excellent price. Last week, he sold it to a buyer for $135,000 more than he'd paid for it.

For the last year, my client had been dickering and negotiating with an individual to buy a 70-acre tract of land my client wanted for investment purposes. They eventually came to an agreement on price. However, my client really didn't want to sink a bunch of cash into the purchase, but he also didn't want to borrow that much money for the land, which would likely sit there for a period of years without earning any income. When I explained the 1031 exchange to him, it was a Godsend. He took the profit from his lake sale, and used it to purchase the acreage he'd wanted. He benefitted in two ways: first, he basically was able to buy the acreage without borrowing money, but also without coming up with any money out of his pocket. Second, he made $135,000 profit, without paying a nickel of taxes--a savings of at least $40,000.

If you're interested in a 1031 exchange for your property, please consult an attorney. If you're interested in discussing it further with me, please contact me by phone at 704-460-7398 or by email at wldeaton@vnet.net.

Jumat, 15 September 2006

Minggu, 10 September 2006

North Carolina Limited Liability Companies--twice the protection of a corporation

Most individuals who start their own business--and the attorneys who represent them--understand that there are certain legal benefits to incorporating their business. By setting up the business into a corporation or limited liability company (LLC), if followed properly, the owner's personal assets are safe from potential lawsuits against the business.

For example, if Jim owns a painting service, called "Jim's Painting," he might have four employees, each driving a "Jim's Painting" truck. If one of the employees injures a person in the worktruck, Jim will be sued for his employee's acts. If a jury finds Jim's employee at fault, it will also likely rule against Jim, subjecting both his business assets and his personal assets to levy and seizure. Suddenly, Jim could potentially lose everything to a judgment!

By correctly incorporating, Jim's personal assets would be safe. In the above scenario, if an employee of "Jim's Painting, Inc." injured someone, Jim's Painting, Inc. could be sued--but if a jury returned a verdict of liability, Jim's personal home and assets would be safe.

All of this, of course, is fairly common knowledge. But what many business owners and entrepeneurs don't know is that there are ways to incorporate so that you can protect some of your assets from personal liability judgments--and it's perfectly safe and legal! It's the Limited Liability Company.

In North Carolina, the two common liability protections are corporations and limited liability companies. Though they operate a bit differently (a corporation has a bit more formality attached to it, while an LLC is a bit less formal and operated more like a partnership), they both have the goal of protecting personal assets from liabilities attaching to "company" activities.

What many people don't know is that the LLC offers one more layer of liability! Let's go back to the example above of Jim. Let's assume he correctly incorporated, his business has grown, and now Jim's Painting, Inc., is a successful business with 20 trucks, a large cashflow, and more than 100 employees. What if Jim got sued for something unrelated to his business--say, an auto accident in his own car? In that case, he could be sued individually. If the jury returned a large verdict (larger than his insurance would cover), the plaintiff would be entitled to satisfy the judgment against Jim by levying own and selling almost anything Jim owned in his own name: his cars, his bank account--and even Jim's shares of stock of Jim's Painting, Inc. Suddenly, Jim could face the real threat of losing his company to a judgment that had nothing to do with the lawsuit or judgment!

This is where the LLC offers one more layer of protection! Unlike a corporation, an individual's ownership in an LLC is not subject to a judgment levy. See Herring v. Kessler, 563 S.E.2d 614 (2002). The blurb for that case reads as follows:

"Judgment creditor filed motion seeking an order directing judgment debtor's membership interests in certain limited liability companies (LLC) be sold and the proceeds applied towards the judgment, and requested a charging order that pending the sale of debtor's membership interests in the LLCs, any distributions and allocations of those interests be applied towards the satisfaction of the judgment. The Superior Court, Wake County, Jack W. Jenkins, J., entered judgment, enjoining creditor from seeking the seizure or sale of debtor's membership interests in the LLCs, denying creditor's motion, insofar as he sought to have debtor's membership interests in the LLCs sold or transferred, and granting creditor's motion for a charging order. Creditor appealed. The Court of Appeals, Greene, J., held that creditor's remedy in having the judgment satisfied did not include seizure and forced sale of debtor's interests in the LLCs.Affirmed."

Therefore, whereas if your business is in the form of a corporation in North Carolina, your stock could be subject to seizure for personal judgments--your limited liability shares will not!

There are two limitatiosn, however, of which you need to be aware.

First, you cannot place property into an LLC to escape liability or a judgment that is already looming against you. If you are sued, and convey your property to an LLC, or a spouse or parent, the Plaintiff, if he obtains a judgment, can usually successfully get the conveyance undone as being fraudulent.

Second, North Carolina law does allow an individual's membership interest to be "charged," in pursuit of collecting a judgment. What this means is that if the LLC declares profits, and distributes the profits to members in proportion to their interests, the judgment creditor does have the right to intercept these payments by getting a "charging order" from a court.

"In this case, despite Plaintiff's attempts to have Defendant's membership interests in the LLCs seized and sold, his only remedy is to have those interests charged with payment of the judgment under N.C.Gen.Stat. § 57C-5-03." Herring.

However, a judgment creditor would be powerless to attach or charge any payments made by the LLC to the member as an employee of the company, any payments made by the LLC to the member for reimbursements, and any LLC property which the member may use (such as a company car, etc.).

In the example above, if Jim had incorporated as "Jim's Painting, LLC," the judgment creditor couldn't take Jim's company from him. At most, the creditor could obtain a charging order against any profits declared to Jim as a member. But you know what? Jim doesn't ever have to declare profits!

The long and short of it? The LLC can protect assets from an individual's judgments--so long as the LLC doesn't declare profits to the member, and the member hasn't used the LLC fraudulently as a holding tank to secrete assets.

Think about it...

The Sovereign Society

For business owners, high-net-worth individuals, or attorneys representing either of these groups of people, asset protection, estate planning, and tax planning should be a concern.

The Sovereign Society is an organization, in its own words, has as its mission

" to help you achieve Total Wealth - the peace of mind that comes with knowing your financial affairs are kept private, your assets are fully (and legally) protected and that you have unfettered access to the world’s top performing investments. We've identified the safest and most private nations around the globe, where our members can find the best offshore banks, tax havens, legal structures, insurance vehicles, investment opportunities and tax management solutions. Our Global Council of Experts - experienced lawyers, estate planners, tax consultants, investment analysts, money managers, trust providers and currency traders - all specializing in offshore finance, are at your service. Take advantage of our offshore asset protection and global investment strategies and feel the freedom of total wealth."

Pretty tall talk, but this organization does a good job. You can sign up for free "A-Letters" published daily during the week, which are very informative, and if you're further interested sign up for additional services.

www.sovereignsociety.com

For a sample article about offshore planning:

http://www.sovereignsociety.com/offshore1802.html

Rabu, 06 September 2006

Case Review

On Tuesday, the Court of Appeals came down with its bi-weekly rendering of opinions. Listed below are a few that might be of interest to the business owner or business law practictioner:

Hickory Orthopaedic Center, P.A. v. Nicks: Doctors entered into a Professional Association (P.A.), and further entered into a shareholder agreement, the basic provisions of which involved whether severance pay and buyout provisions would apply, and also how, if the exiting doctor's stock was to be repurchased, the stock would be valued. The Defendant left after his doctor declared him psychologically unable to continue his practice. The Corporation and he differed (1) on whether he voluntarily left or left due to disability (which would make a difference in his severance pay and (2) how to value his stock on the stock repurchase. Specifically, the defendant stated his stock was worth more than $600,000, and the plaintiff corporation stated it was worth slightly more than $8,000. Though the trial court valued the defendant's stock at more than $600,000, the Court of Appeals reversed, finding there to be insufficient evidence of such value, and remanded for further hearings. The Court of Appeals further agreed with the trial court's ruling that the defendant left because of a disability.

IMPORTANT POINTS TO REMEMBER: When drafting a shareholder's agreement, pay very close attention to the language regarding when shareholders can be bought out, and the value of their buy-out. In this case, the language used in the agreement used "Full Book Value," "Net Book Value," and "Book Value," somewhat interchangably, even though their definitions were somewhat different. When setting up a corporation or limited liability company involving more than one owner, set up very clear guidelines as to how the parties can either dissolve their company, or buy one another out.

Selasa, 05 September 2006

The purpose of this blog

Are you a business owner? An entrepeneur? Or perhaps you, like me are a professional who represents these people, such as an accountant or an attorney. If you fall into on of these categories--or want to--then this blog is designed for you.

The purpose of this blog is to advise readers of interesting events in the business world. Specifically, I will be writing about issues affecting your money, your business, and your financial freedom.

If you have any questions, feel free to contact me at the email listed on this blog.