Three Myths About Wills & Guns

Sivia Law

Todd Sivia
Managing Partner, Sivia Business & Legal Services

I have written estate plans for a lot of gun owners and I find that they are surprised to learn that transferring a gun is a lot different than willing other forms of personal property. Therefore, I feel it is important to address a few of the myths surrounding the passing down of firearms.

Myth #1 – I do not need to include my guns in my Will. My family knows my wishes.

While your family may know what you want done with your guns, it isn’t always that simple. If you will a firearm to anyone without a valid FOID card (in Illinois), and that person takes possession, then they have committed a felony.

Or, if that person lives in another state and takes the firearms across state lines, it is now a federal felony—punishable with 5 years in prison and a $100,000 fine. That is probably not the “gift” you intended.

But these scenarios are easily preventable with proper planning.

Myth #2 – My guns are noted in my Will. That is enough.

Unfortunately, every item listed in your Will goes through the probate process. Probate is a public hearing where a judge determines who gets the items in your estate.

So not only will everyone know which guns you own and how much your collection is worth, but your beneficiaries will have to pay the transfer tax per firearm–and possibly estate taxes on top of that. Did I mention the lawyer fees?

Myth #3 – I created a Revocable Living Trust online to protect my guns from the probate process.

While a RLT certainly is a helpful estate planning tool, it is not, however, a good place to put your gun collection.

Why? The fact is that an online RLT can be downright dangerous, since they do not contain firearms-specific language. Some boilerplate RLTs have even proved invalid in court. So RLT downloaded from the internet or purchased from a gun shop might seem like a economical option, but it can cost your family more money in the long run.

The most effective method for protection is a gun trust. A gun trust is a special-purpose trust written to hold ONLY your firearm collection. You are trustee and beneficiary. You can appoint successor trustees, lifetime and remainder beneficiaries, and the trust can be amended or revoked at any time.

A gun trust ensures your guns will be handled lawfully after your death or incapacity, allows easier application and ownership of NFA items, permits ownership transfers without the $200 tax, and avoids probate and guardianship.

Most importantly, it protects your firearms from being declared illegal in the future.

Gun collecting isn’t like other hobbies. You’re not stashing away beanie babies in the attic. You’ve invested considerable amount of time and money into your guns. If you are interested in protecting your investment, contact me at 618-659-4499 or email me at info@sivialaw.com. Or, visit our website at www.sivialaw.com/estateplanning.

Top Tips For Preparing a Personal Injury Case

Todd Sivia Managing Partner, Sivia Business & Legal Services

Todd Sivia
Managing Partner, Sivia Business & Legal Services

If you have been involved in an accident, and you think you may have a valid PI case, your actions immediately following the incident can have a critical impact on the outcome of your case. Even if you are unsure if you want to pursue legal action, I recommend following these few simple steps and protect yourself—just in case.

#1. Start a Journal

Write down everything you can remember about the accident—date, time, location, who was present, describe every ache or pain you experience, etc. Be sure to date each entry if you recall additional details a day or two later. It’s a good idea to record the financial impact of your injuries and doctor visits, as well. It can take months or years for a personal injury case to get to trial. Having notes will help keep the incident fresh in your memory. Remember–even the smallest, seemingly insignificant detail can prove vital to your case.

#2. Preserve Evidence

You may want to return to the scene of the accident on the same day of the week and the same time of day as your accident. Write down everything you see. It is also helpful to take photos from several different angles.

If there were witnesses to your accident, talk to them, too. Ask if you can record your conversations and be sure to state the date of the interview.

It is also important to protect physical evidence. If you were involved in a car crash, the damage to the car may demonstrate how hard the collision was. Torn or bloodied clothing shows the extent of your injuries. If you cannot preserve the actual object, be sure to take photos from several angles.

#3. Notify Responsible Parties

It is important that you notify anyone you feel may be responsible for your accident. You do not have to know who was at fault, just whom you suspect might be at fault. All you need to do is send a simple letter to each party(ies) with your name, the time, date and place you were injured, and your intention to file a claim.

Be sure not to provide any detailed information about the accident or the extent of your injuries.

It is also important not to delay sending these notification letters. Although the law does not specify a set time period, submitting notification within 2 weeks of the accident is a good rule of thumb.

Now, you are by no means required to file a claim because you send a notification letter. However, it will help your case if you do send the letters in a timely manner prior to filing suit.

Memories fade quickly, so the sooner you begin documenting your accident, the better. If you need assistance with a PI case or you are unsure if you have a valid PI claim, you can reach me at 618-659-4499 or email me at info@sivialaw.com. For more information on personal injury, visit our website at www.sivialaw.com.

Top Reasons to Have a Living Trust

Todd Sivia Managing Partner, Sivia Business & Legal Services

Todd Sivia
Managing Partner  

Have you have heard the old adage “Only two things that are certain in this life are death and taxes”? Naturally, both of these reasons are often cited as motive for using a Living Trust instead of a simple Will. However, the increase of the estate tax exemption allows most of us to avoid estate taxes. So, is avoiding the expense of probate worth the upfront costs associated with creating a trust? The simple answer is yes. But let me explain.

  1. Revisions are a snap With a living trust, the trust itself is named the beneficiary of all of your assets—including IRAs and life insurance policies.  If you decide to make changes how you want to distribute your assets, you only need to change your living trust and that automatically changes everything on down the line. A Will, however, only covers assets that do not have a beneficiary designation. So changing the terms of your Will means having to also change the beneficiary information for your IRA, life insurance policy, etc., individually.
  1. Executors or Administrators Receive Immediate Authority. A power of attorney dies with the person who gave it.  The Executor or Administrator of an estate is only authorized to act upon being appointed by the court. This means if you have minor or beneficiaries with special needs, funds may not be immediately available. This also means no one is managing financial investments and, if the deceased owned a small proprietorship business, no one is legally in charge.
  1. Financial Information Stays Private.  In any probate proceeding, the name and address of each beneficiary becomes a matter of public record, as does the value of your estate. Often, the court requires a full inventory of every asset within the estate. The inventory, eventually, becomes a matter of public record so that everyone knows the value of the estate.
  1. Avoid a Contested Will.  If a Will contest is filed, the estate cannot be settled or distributed until it has been resolved. With a Living Will, a separate lawsuit must be filed to formerly contest. Since the terms of a Living Trust are generally not public record, the lawsuit would have to be filed blindly.
  1. Protect Estates from Creditors and Ex-Spouses. A Living Trust provides avenues for you to protect the inheritance left for your loved ones from creditors and/or ex-spouses. This protection alone is a compelling reason to have a Living Trust.  
  1. Controlling Your Estate After Your Primary Beneficiary Dies. If you are divorced and remarried with children from the previous marriage, what happens if you die first? Your spouse’s Will is going to control the rest of your estate. Will your children still receive the inheritance you wanted to provide them? You can ensure your children receive that inheritance with a Living Trust. The same holds true if you want to make sure that whatever is left of an inheritance you leave for an adult child goes to your grandchildren, rather than an in-law (or ex-in-law) should your child divorce.
  1. Providing for Special Needs Beneficiaries Without Causing Them to Lose Benefits Eligibility.While a large inheritance is often well intended, receiving an inheritance outright usually causes a person with special needs to immediately lose eligibility for government benefits. A Living Trust can include appropriate provisions for a person with special needs to guarantee your ability to help meet his or her other needs, such as clothing, education, transportation, or recreation, without causing a loss of government benefits. 
 

If you would like more information on the benefits of a Living Trust, or any other Estate Planning tool, feel free to contact me at 618-659-4499 or e-mail me at info@sivialaw.com. Be sure to check out the Estate Planning tab on our website, www.sivialaw.com.

The Signals of Success

Todd W. Sivia Attorney-at-Law

Todd W. Sivia
Attorney-at-Law

I recently read an article featuring a law firm that leased expensive cars as a way to signal the firm’s success. This got me thinking about what signals I want to use—and which ones to I wish to avoid.

While I can certainly appreciate anyone’s desire to drive an expensive car, I think I want people to associate my firm’s success with something more substantial. A flashy car may make a good initial impression, but it doesn’t demonstrate my experience or skill as an attorney.

I think Albert Einstein was right when he said, “Try not to become a man of success, but rather try to become a man of value.” I believe success comes from the satisfaction of the people you serve.

In fact the greatest affirmation of success, to me, is a referral from a client.

A referral is the tangible result of someone else’s trust. Once you earn a client’s trust, that person becomes an advocate for you. And you can’t put a price on that kind of success. It doesn’t come easily, but success rarely does.

For the last 8 years I have worked hard to cultivate a firm where clients are confident in our abilities and know we have their best interests at heart. It isn’t about what we drive or how big our building is. It is about the relationships we build with our clients simply by providing superior service at a reasonable price.

Sure, I could lease a Mercedes. Maybe that would impress some people and, possibly, lead to a few new clients. But instead of getting a fancy car and increasing my fees to pay for it, I think I will drive my GMC and continue building strong partnerships with my clients—my signal of success.

Is it Time to Incorporate Your Business?

Todd W. Sivia Attorney-at-Law

Todd W. Sivia
Attorney-at-Law

One of the questions I get a lot from small business owners is ‘Do I need to incorporate?’

This is a big decision and it has significant implications for your business. There are three primary reasons to incorporate your business:

  1. Protecting your assets
  2. Gaining tax advantages
  3. Building credibility

If you are a small business owner already up and running, the principal advantage to incorporating immediately rather than waiting until the beginning of the New Year, is to minimize the risk to your personal assets. The longer you remain unincorporated, the longer you are exposing yourself to unwanted losses.

We often encourage entrepreneurs who are considering incorporation at the end of the year to consider a delayed effective date. A delayed effective incorporation date accommodates business owners by allowing them to choose a date one to two months in the future for the official formation of a corporation or an LLC. This action enables business owners to manage paperwork in 2014, for example, and to ask for an effective date in January 2015.

There are a couple ways a delayed effective incorporation date can benefit small business owners: 

(1) Saving money. By delaying the date of incorporation, business owners can avoid being taxed and avoid filing an annual report in the current calendar year.

(2) Saving time. By filing before the end of the year, you can avoid getting your filing stuck in the backlog that may occur at the beginning of the year.

So if you were to begin the process with us now, many states will allow us to indicate an effective date of January 1, 2015 on the Articles.

If you wait until the beginning of January to begin, you may not get filed until mid-January or later. This option also has its benefits: you can save self-employment taxes by incorporating before the end of the year. However, a mid-year incorporation typically results in excessive time and expense to file two tax returns.

Incorporating your business certainly has its advantages. If you have questions regarding incorporation, or the formation of any other business entities, you can reach me at 618-659-4499 or email me at info@sivialaw.com. Be sure to check out  our business practice webpage at www.sivialaw.com/business_law.

Have An IRA? Protect It With An IRA Trust

Todd W. Sivia Attorney-at-Law

Todd W. Sivia
Attorney-at-Law

The IRA Trust is a stand-alone trust that would be the beneficiary of an IRA, and will satisfy all of the regulations related to the distribution of IRAs and retirement benefits. This tool provides beneficiaries the ability to take advantage of their inherited benefits over their lifetime, maximizing the return on your investments.

The beneficiaries of the IRA Trust can be the same as those of a traditional Living Trust or Will. The terms of distribution may be different and often are more restrictive in the IRA Trust to ensure that the IRA Trust assets will be available to help support your beneficiaries. The IRA Trust can divide assets between different groups of beneficiaries and can maximize the value of the IRA asset. An IRA Trust also assists beneficiaries in more difficult or complex situations, such as those who are:

  • Spendthrifts or unable to handle/manage money
  • Children under the age of 18
  • Children with addictions
  • Children with creditor issues
  • Children with bad or difficult marriages
  • Children or grandchildren with special needs—even those who qualify for government benefits

In these situations, the IRA Trust can provide professional management of the IRA Trust assets, allowing assets to grow tax deferred, except for required distributions, and ensure that waste of the assets does not occur. You can also place restrictions on how the IRA is spent, limiting when and how much each beneficiary can withdraw.

When individuals are beneficiaries of an IRA Trust, they can immediately cash out the IRA and spend the money as they wish. In those circumstances, the stretch out of the required minimum distribution over the beneficiary’s life expectancy is lost, and 100% of the amount withdrawn will be included in the beneficiary’s taxable income in the year withdrawn. Distributions from a 401(k) plan or traditional IRA are subject to income tax and ordinary income tax rates.

With an IRA Trust, you can prohibit beneficiaries from immediately withdrawing from the IRA or selecting the Five-Year Growth plan. Beneficiaries are restricted to minimum distributions based on life expectancy. However, unlike a traditional IRA, which calculates minimum distributions by using the oldest beneficiary’s age, an IRA Trust can be drafted to create sub-trusts for each beneficiary—thereby maximizing the required minimum distribution based on each beneficiary’s own life expectancy.

Naturally, an IRA Trust isn’t beneficial for everyone. But, for example, individuals aged 30 with $125,000 in their IRA or those 60+ with over $500,000 in an IRA, will far exceed any attorney fees by extending the life of the IRA and decreasing applicable taxes through an IRA Trust. If you would like more information on IRA Trusts, please feel free to contact me so I can further explain how this tool may benefit you and your family.

 

Changes in Medicare Benefit IL Residents

Todd W. Sivia Attorney-at-Law

Todd W. Sivia
Attorney at Law

The Center for Medicare Services (CMS) revised certain regulations that will now make it easier for chronically ill individuals to receive Medicare coverage for home heath care, skilled nursing home stays and outpatient therapies. Previously, CMS required individual to demonstrate a likelihood of medical or functional improvement before approving Medicare funds for skilled nursing care and therapy services. Under the “improvement standard,” individuals whose condition stopped improving were denied therapy that might be necessary for them to maintain their current level of functioning. But with the new revision, however, Medicare will pay for such skilled services if they are needed “to maintain the patient’s current condition or prevent or slow further deterioration”—even if the patient’s condition is not expected to improve.

This policy revision has significant financial and planning implications. Most importantly, this means that Medicare may also cover related services—including the cost of room and board in a nursing home. Upon meeting certain conditions, Medicare will pay for up to 100 days of nursing home care.

Under the “improvement standard,” Medicare often only paid for nursing home care for those who qualified an average of 25 to 30 days. Now if you have a loved admitted to a nursing home on “Medicare days,” and you are told that Medicare coverage is ending because he or she is no longer showing improvement and you must begin private pay, you should claim that the wrong standard is being applied. You can file a Medicare appeal so that your loved one continues to receive necessary therapy in order to maintain his or her current condition or to prevent further deterioration.

Similarly, if you are trying to keep a loved one at home for as long as possible before a transition to nursing home care becomes necessary, making sure that the correct standard is being applied could extend the time when your loved one can stay at home.  This additional time may afford you enough time to select the best facility for your loved one, or give you extra time if your loved one is on a waiting list.

The new standard also has important beneficial implications for Medicaid eligibility planning.  It takes time to complete the final stages of planning necessary toward establishing eligibility, followed by the filing of a Medicaid application. The extra days of coverage means that Medicare, rather than you or your loved one, may pay for nursing home care while the process is finalized. The financial benefit of additional Medicare coverage alone can save your loved one more than the cost of the legal help needed to effectively and efficiently plan for long-term care.