Blogs
This final piece of
Wynn at Law, LLC’s short Estate Planning series looks at how you can
express your wishes when you’re still alive but might not be able to
communicate. Injuries and illnesses are facts of aging. Our first
article in the series mentioned that fewer than one in three
Americans have a Living Will. Even fewer have a Power of Attorney.
First, a bit about the
difference between the two tools before we get into the types of
Powers of Attorney – or POAs. Both come into play when you are not
able to express your wishes. A Living Will identifies your wishes in
the event of very specific health care situations. While a Health
Care Power of Attorney allows someone else to make your wishes known
on their behalf and make decisions in your best interests. Generally,
a Health Care Power of Attorney grants broad authority to your agent
to act on your behalf, whereas a Living Will gives specific direction
in the event of a defined health situation. Does it hurt to have
both a Living Will and a POA? That is a great question for your
Estate Planning Lawyer (a case-by-case answer you cannot get online),
but in general, no.
Two Powers of
Attorney
The ability to have
someone act on your behalf via a POA can be limited, rather than just
giving your designee – or agent – act unilaterally for you. The
POA is usually viewed as either a Health Care POA or Financial POA.
Health Care POA:
This document gives an individual the power to make medical decisions
for you if you become incapacitated. These decisions can include
institutional admission, life support, or surgery.
Financial POA: This
document designates an agent to manage your finances if you become
incapacitated or are unable to make informed decisions for yourself.
This is also important if a person can still make decisions, but
cannot speak or physically sign his or her name. Rather than adding
an agent as a co-owner of an account, exposing that account to the
agent’s debts, a POA allows them to sign checks you direct them to
sign.
The stats favor
using a POA
Not many Wynn at Law,
LLC clients will legitimately say they enjoy the reality of Estate
Planning. You are, after all, planning for the end of life. Your
life. It’s potentially a warm, caring topic that gets overshadowed by
morbid stigma about death and dying. The disability part of the
conversation is even more difficult because, by nature, we don’t want
to think about being alive but incapable of acting for ourselves.
The statistics say we
need to pay more attention to POAs. The Administration on Aging’s
2018 Profile of Older Americans concluded that 62 percent of
adults over 65 had two or more chronic conditions. And it isn’t just
a concern to wise up to once you retire. More than one in four of
today’s 20-year-olds can expect to be disabled before they reach
retirement according to the Social Security Administration. An
expertly drafted POA can help prevent incapacitation from turning
into an emotional and financial family tragedy.
The post Your Estate Planning Toolbox: Powers of Attorney appeared first on Wynn at Law, LLC.
Many clients have contacted us regarding the discharge of taxes in bankruptcy,
offers in compromise and installment agreements with IRS and recently penalties
assessed by IRS.
The IRS offers 3 types of penalty relief:
1. Reasonable Cause-this appears to be our best chance to abate penalties
2. Administrative Waiver and First Time Penalty Abatement
3. Statutory Exception for example a taxpayer got bad advice from IRS
Reasonable cause is relief we may grant when a taxpayer exercises ordinary business care and prudence in determining
their tax obligations but is unable to comply with those obligations due to circumstances beyond their control.
Reasonable Cause is based on all the facts and circumstances in your situation.
The IRS will consider any reason which establishes that you used all ordinary business care and prudence to meet your
Federal tax obligations but were nevertheless unable to do so.
Typical fact patterns involving reasonable cause for failure to file a tax return, make a deposit, or pay tax when due include:
1. Fire, casualty, natural disaster or other disturbances
2. Inability to obtain records
3. Death, serious illness, incapacitation or unavoidable absence of the taxpayer or a member of the taxpayer’s immediate family
Jim Shenwick, Esq. has an LLM in Taxation from New York University Law School
The Last Will and Testament and other forms of the Will were covered in our most recent Wynn at Law, LLC, article. Often going alongside a Will is one or more trusts. A revocable living trust is the tool in the Estate Planning Toolbox for holding and distributing a person’s assets to avoid probate. In its simplest definition, the Trust is an entity separate from you that allows you pass assets anyone designated in the trust.
First, a word about
probate. Probate is a court process that oversees the administion
and distribution of the assets of a deceased person. As part of the
process, the court system validates a person’s Last Will and
Testament, if they have one. While the probate process is not
“scary,” it can eat up a lot of time and money. That is all the
more reason to turn to an experienced Estate Planning attorney for
help in how to avoid that unnecessary cost and delay.
A Trust skips the
probate process
How does a Trust skip
the probate process? A Trust is an entity separate from you that
holds your assets while your alive and sets forth how you want your
assets handled after your passing. Since a Trust is a separate entity
from personally, when you pass away your Trust continues. Since a
Trust cannot “pass away” anything titled in the name of the Trust
would not be subject to the probate process. Properly titling assets
in the name of a Trust, often referred to as “funding,” avoids
probate on those assets. This is why an experienced attorney will
talk you through the process of retitling assets into your Trust.
Listing assets,
changing titles
After the Trust is set
up, the Trust ‘owns’ the property. A Trust is only worth the assets
that are titled into it. This is the step that trips up many who
don’t use an attorney for the trust. For many things – jewelry or
collections as examples – the trust simply lists the assets in
detail. Real estate is a bit different in that the deed or title (see
related article) has to be changed to list the trust as the actual
owner of the property. This isn’t complicated. Still, when this step
is overlooked, your assets could end up in probate.
Avoid double
counting and under counting
Your retirement plans
and insurance policies already have beneficiaries. This money doesn’t
end up in probate, but the assets also don’t flow into a trust,
unless you’ve set the trust as the beneficiary. That tactic can seem
confusing, but it points out the importance of looking at
beneficiaries of things like life insurance and IRAs at the same time
as the trust is created. You might have even forgotten who you listed
as the beneficiary over the years since opening the IRA or policy.
In the last article, we covered the Pourover Will. The pourover helps you take care of assets you may have overlooked by sweeping them into a trust. In our next article, we’re going to cover Powers of Attorney that will help you take care of yourself.
The post Your Estate Planning Toolbox: Trusts appeared first on Wynn at Law, LLC.
The Last Will and Testament and other forms of the Will were covered in our most recent article. Often going alongside a Will is one or more trusts. A revocable living trust is the tool in the Estate Planning Toolbox for holding and distributing a person’s assets to avoid probate. In its simplest definition, the Trust is an entity separate from you that allows you pass assets anyone designated in the trust.
First, a word about probate. Probate is a court process that oversees the administration and distribution of the assets of a deceased person. As part of the process, the court system validates a person’s Last Will and Testament, if they have one. While the probate process is not “scary,” it can eat up a lot of time and money. That is all the more reason to turn to an experienced Estate Planning attorney for help in how to avoid that unnecessary cost and delay.
A Trust skips the
probate process
How does a Trust skip
the probate process? A Trust is an entity separate from you that
holds your assets while your alive and sets forth how you want your
assets handled after your passing. Since a Trust is a separate entity
from personally, when you pass away your Trust continues. Since a
Trust cannot “pass away” anything titled in the name of the Trust
would not be subject to the probate process. Properly titling assets
in the name of a Trust, often referred to as “funding,” avoids
probate on those assets. This is why an experienced attorney will
talk you through the process of retitling assets into your Trust.
Listing assets,
changing titles
After the Trust is set
up, the Trust ‘owns’ the property. A Trust is only worth the assets
that are titled into it. This is the step that trips up many who
don’t use an attorney for the trust. For many things – jewelry or
collections as examples – the trust simply lists the assets in
detail. Real estate is a bit different in that the deed or title (see
related article) has to be changed to list the trust as the actual
owner of the property. This isn’t complicated. Still, when this step
is overlooked, your assets could end up in probate.
Avoid double
counting and under counting
Your retirement plans
and insurance policies already have beneficiaries. This money doesn’t
end up in probate, but the assets also don’t flow into a trust,
unless you’ve set the trust as the beneficiary. That tactic can seem
confusing, but it points out the importance of looking at
beneficiaries of things like life insurance and IRAs at the same time
as the trust is created. You might have even forgotten who you listed
as the beneficiary over the years since opening the IRA or policy.
In the last article, we covered the Pourover Will. The pourover helps you take care of assets you may have overlooked by sweeping them into a trust. In our next article, we’re going to cover Powers of Attorney that will help you take care of yourself.
The post Your Estate Planning Toolbox: Trusts appeared first on Wynn at Law, LLC.
The Last Will and Testament and other forms of the Will were covered in our most recent Wynn at Law, LLC, article. Often going alongside a Will is one or more trusts. A revocable living trust is the tool in the Estate Planning Toolbox for holding and distributing a person’s assets to avoid probate. In its simplest definition, the Trust is an entity separate from you that allows you pass assets anyone designated in the trust.
First, a word about
probate. Probate is a court process that oversees the administion
and distribution of the assets of a deceased person. As part of the
process, the court system validates a person’s Last Will and
Testament, if they have one. While the probate process is not
“scary,” it can eat up a lot of time and money. That is all the
more reason to turn to an experienced Estate Planning attorney for
help in how to avoid that unnecessary cost and delay.
A Trust skips the
probate process
How does a Trust skip
the probate process? A Trust is an entity separate from you that
holds your assets while your alive and sets forth how you want your
assets handled after your passing. Since a Trust is a separate entity
from personally, when you pass away your Trust continues. Since a
Trust cannot “pass away” anything titled in the name of the Trust
would not be subject to the probate process. Properly titling assets
in the name of a Trust, often referred to as “funding,” avoids
probate on those assets. This is why an experienced attorney will
talk you through the process of retitling assets into your Trust.
Listing assets,
changing titles
After the Trust is set
up, the Trust ‘owns’ the property. A Trust is only worth the assets
that are titled into it. This is the step that trips up many who
don’t use an attorney for the trust. For many things – jewelry or
collections as examples – the trust simply lists the assets in
detail. Real estate is a bit different in that the deed or title (see
related article) has to be changed to list the trust as the actual
owner of the property. This isn’t complicated. Still, when this step
is overlooked, your assets could end up in probate.
Avoid double
counting and under counting
Your retirement plans
and insurance policies already have beneficiaries. This money doesn’t
end up in probate, but the assets also don’t flow into a trust,
unless you’ve set the trust as the beneficiary. That tactic can seem
confusing, but it points out the importance of looking at
beneficiaries of things like life insurance and IRAs at the same time
as the trust is created. You might have even forgotten who you listed
as the beneficiary over the years since opening the IRA or policy.
In the last article, we covered the Pourover Will. The pourover helps you take care of assets you may have overlooked by sweeping them into a trust. In our next article, we’re going to cover Powers of Attorney that will help you take care of yourself.
The post Your Estate Planning Toolbox: Trusts appeared first on Wynn at Law, LLC.
After bankruptcy credit card offers come faster than you think Have you heard the lie? The lie that filing filing bankruptcy means seven years with bad credit. You after bankruptcy credit will be better than most people expect. The truth about after bankruptcy credit. The truth is the opposite of that bad credit lie. […]
The post Credit Card Offers Come Faster Than You Expect by Robert Weed appeared first on Robert Weed - AE.
After bankruptcy credit card offers come faster than you think Have you heard the lie? The lie that filing filing bankruptcy means seven years with bad credit. You after bankruptcy credit will be better than most people expect. The truth about after bankruptcy credit. The truth is the opposite of that bad credit lie. […]
The post Credit Card Offers Come Faster Than You Expect by Robert Weed appeared first on Robert Weed - .
In my Atlanta area bankruptcy practice I sometimes get calls from a very anxious man or woman who tells me that their payroll office has received a wage garnishment order but the employee has no idea why or where it came from. What should they do? Here is how I would approach this problem.First, understand that you have to move quickly. If your employer receives an order of continuing wage garnishment, they have to honor it within 45 days – here is what the summons looks like.If your employer does not honor the garnishment and withhold wages, your employer can be “punished” for not obeying the order by having the entire judgment held against the employer. debt. Needless to say, your employer does not want to get stuck paying your debts.Who is the Plaintiff?Your first step should be to find out who the plaintiff (creditor) is in your case and the basis of their claim. If the holder of the garnishment order is a student loan creditor or a taxing authority, different rules apply and you need to speak to a lawyer immediately.If the claim is from a collection agency, there is a good chance that this debt has been sold multiple times by creditors and collection agencies so you may not recognize the name of the collection agency.For example, if you owe a debt to Chase Bank for a credit card, Chase may have sold that debt to Allied Systems, who may have sold it to LVNV or some other agency. Do not assume that the claim is bogus simply because you do not recognize the name of the plaintiff.When was a Lawsuit Filed Against You?If a creditor has obtained a judgment against you that means that the creditor has previously filed a lawsuit and obtained a judgment. About 95% of judgments on consumer loans are default judgments, meaning that the creditor filed a lawsuit and no one filed a written answer or otherwise responded.You may be able to find out the details of the lawsuit by using online court records. Most magistrate, state and superior court clerks in the Atlanta area offer online case search so you may be able to discover a case number and the name of the collection agency’s lawyer.If you reach out to the collection lawyer you may or may not get very far. Most collection law firms in the Atlanta area are volume practices that file dozens of cases every day. They also hear all kind of stories and denials from upset defendants. If you can get hold of someone who will talk to you, ask for copies of the lawsuit and a copy of the “return of service” showing when and by whom you were served.Was Service of the Lawsuit Valid?Before a judgment can be entered, you have to be legally served with a copy of the lawsuit. Usually sheriff’s deputies handle service. I have seen many cases where service was invalid – a busy deputy knocked on the door of whatever address is on the lawsuit, handed whoever answered the door a stack of papers then left.If the address on the lawsuit was inaccurate, or old, the deputy may have served someone who is not you and you would never have known.Sometimes the judgment against you is a “domesticated judgment” from another state. In these cases, a plaintiff sued you at an address they had for you in another state. Here, too, if no one answered they would get a judgment in that state then they would hire a lawyer in Georgia to “domesticate” the judgment in the county where you live or work.The rules of service can vary from state to state but generally speaking, you can be considered legally served if the sheriff’s deputy confirms you live at a residence and then hands the lawsuit to a competent person.This means that service may be valid if the sheriff’s deputy knocked on your door and handed the lawsuit paperwork to your teenage son, or to your 85 year old mother. If the “return of service” paperwork shows that the sheriff’s deputy came to the address where you lived and handed the lawsuit paperwork to someone in your household it will be very difficult for you to convince a judge that you were not properly served.On the other hand, if you have a common name like Smith, Johnson or Thompson and the address on the lawsuit is one where you never lived, it will be much easier to prove that you were not properly served.If service was bad, you can make a “collateral attack” on the judgment. This means that you are not addressing the merits – do you owe the debt or not – but you are asking the judge to undo the judgment because service was bad and you were denied your legal right to respond.My experience has been that if you can prove that service was defective most collection lawyers will voluntarily vacate the judgment and the garnishment. They may then start the process over again using the correct address but you will have weeks or months to either negotiate a settlement, mount a defense or file bankruptcy.Your Credit Reports May Reveal Essential InformationAnother part of your research should be to request a copy of your credit reports. You can do this for free at AnnualCreditReport.comAnnualCreditReport.com. Your credit reports should document to whom you owe money and if a lawsuit has been filed.Your immediate goal in the case of an unexpected wage garnishment is to stop the garnishment to give you time to decide what to do. If you really do not owe the money, you can ask for your day in court or perhaps your day at a mediation table. If you do owe the money, you will want time to either negotiate a settlement or to talk to a bankruptcy lawyer.As I noted at the beginning of this article, do not delay in taking action. Getting money back from a garnishing creditor is much more difficult than preventing the wage garnishment in the first place. Further, even if the debt is not legitimate, you could end up legally owing it if you do not assert your rights.Ginsberg Law helps men and women in the Atlanta area deal with debt problems. If you are facing a lawsuit or a wage garnishment, we’d be happy to help you. Our number is 770-393-4985.The post What Should You Do About a Surprise Wage Garnishment? appeared first on theBKBlog.
In my Atlanta area bankruptcy practice I sometimes get calls from a very anxious man or woman who tells me that their payroll office has received a wage garnishment order but the employee has no idea why or where it came from. What should they do? Here is how I would approach this problem.First, understand that you have to move quickly. If your employer receives an order of continuing wage garnishment, they have to honor it within 45 days – here is what the summons looks like.If your employer does not honor the garnishment and withhold wages, your employer can be “punished” for not obeying the order by having the entire judgment held against the employer. debt. Needless to say, your employer does not want to get stuck paying your debts.Who is the Plaintiff?Your first step should be to find out who the plaintiff (creditor) is in your case and the basis of their claim. If the holder of the garnishment order is a student loan creditor or a taxing authority, different rules apply and you need to speak to a lawyer immediately.If the claim is from a collection agency, there is a good chance that this debt has been sold multiple times by creditors and collection agencies so you may not recognize the name of the collection agency.For example, if you owe a debt to Chase Bank for a credit card, Chase may have sold that debt to Allied Systems, who may have sold it to LVNV or some other agency. Do not assume that the claim is bogus simply because you do not recognize the name of the plaintiff.When was a Lawsuit Filed Against You?If a creditor has obtained a judgment against you that means that the creditor has previously filed a lawsuit and obtained a judgment. About 95% of judgments on consumer loans are default judgments, meaning that the creditor filed a lawsuit and no one filed a written answer or otherwise responded.You may be able to find out the details of the lawsuit by using online court records. Most magistrate, state and superior court clerks in the Atlanta area offer online case search so you may be able to discover a case number and the name of the collection agency’s lawyer.If you reach out to the collection lawyer you may or may not get very far. Most collection law firms in the Atlanta area are volume practices that file dozens of cases every day. They also hear all kind of stories and denials from upset defendants. If you can get hold of someone who will talk to you, ask for copies of the lawsuit and a copy of the “return of service” showing when and by whom you were served.Was Service of the Lawsuit Valid?Before a judgment can be entered, you have to be legally served with a copy of the lawsuit. Usually sheriff’s deputies handle service. I have seen many cases where service was invalid – a busy deputy knocked on the door of whatever address is on the lawsuit, handed whoever answered the door a stack of papers then left.If the address on the lawsuit was inaccurate, or old, the deputy may have served someone who is not you and you would never have known.Sometimes the judgment against you is a “domesticated judgment” from another state. In these cases, a plaintiff sued you at an address they had for you in another state. Here, too, if no one answered they would get a judgment in that state then they would hire a lawyer in Georgia to “domesticate” the judgment in the county where you live or work.The rules of service can vary from state to state but generally speaking, you can be considered legally served if the sheriff’s deputy confirms you live at a residence and then hands the lawsuit to a competent person.This means that service may be valid if the sheriff’s deputy knocked on your door and handed the lawsuit paperwork to your teenage son, or to your 85 year old mother. If the “return of service” paperwork shows that the sheriff’s deputy came to the address where you lived and handed the lawsuit paperwork to someone in your household it will be very difficult for you to convince a judge that you were not properly served.On the other hand, if you have a common name like Smith, Johnson or Thompson and the address on the lawsuit is one where you never lived, it will be much easier to prove that you were not properly served.If service was bad, you can make a “collateral attack” on the judgment. This means that you are not addressing the merits – do you owe the debt or not – but you are asking the judge to undo the judgment because service was bad and you were denied your legal right to respond.My experience has been that if you can prove that service was defective most collection lawyers will voluntarily vacate the judgment and the garnishment. They may then start the process over again using the correct address but you will have weeks or months to either negotiate a settlement, mount a defense or file bankruptcy.Your Credit Reports May Reveal Essential InformationAnother part of your research should be to request a copy of your credit reports. You can do this for free at AnnualCreditReport.comAnnualCreditReport.com. Your credit reports should document to whom you owe money and if a lawsuit has been filed.Your immediate goal in the case of an unexpected wage garnishment is to stop the garnishment to give you time to decide what to do. If you really do not owe the money, you can ask for your day in court or perhaps your day at a mediation table. If you do owe the money, you will want time to either negotiate a settlement or to talk to a bankruptcy lawyer.As I noted at the beginning of this article, do not delay in taking action. Getting money back from a garnishing creditor is much more difficult than preventing the wage garnishment in the first place. Further, even if the debt is not legitimate, you could end up legally owing it if you do not assert your rights.Ginsberg Law helps men and women in the Atlanta area deal with debt problems. If you are facing a lawsuit or a wage garnishment, we’d be happy to help you. Our number is 770-393-4985.The post What Should You Do About a Surprise Wage Garnishment? appeared first on theBKBlog.
Supreme Court Might Allow FDCPA Suits More than a Year After Claim Arises
Holding: Statute of limitations begins to run when the alleged FDCPA violation occurs, not when the violation is discovered.
Rotkiske v. Klemm, 18-328 (US Supreme Court, Dec. 10, 2019) The Fair Debt Collection Practices Act (FDCPA) authorizes private civil actions against debt collectors who engage in certain prohibited practices. An FDCPA action must be brought “within one year from the date on which the violation occurs.” 15 U. S. C. §1692k(d). Respondent Klemm & Associates (Klemm) sued petitioner Rotkiske to collect an unpaid debt and attempted service at an address where Rotkiske no longer lived. An individual other than Rotkiske accepted service. Rotkiske failed to respond to the summons, and Klemm obtained a default judgment in 2009. Rotkiske claims that he first learned of this judgment in 2014 when his mortgage application was denied. He then filed suit against Klemm, alleging that Klemm violated the FDCPA by contacting him without lawful ability to collect. Klemm moved to dismiss the action as barred by the FDCPA’s one-year statute of limitations. As relevant here, Rotkiske argued for the application of a “discovery rule” to delay the beginning of the limitations period until the date that he knew or should have known of the alleged FDCPA violation. Relying on the statute’s plain language, the District Court rejected Rotkiske’s approach and dismissed the action. The Third Circuit affirmed.
Held: Absent the application of an equitable doctrine, §1692k(d)’s statute of limitations begins to run when the alleged FDCPA violation occurs, not when the violation is discovered.
MUSINGS FROM DIANE:
For decades collection companies (and some creditors) have ignored the law because they knew no one was watching. If their bad acts were discovered, they merely close the door (perhaps pay a large fine, but far less than what they earned) and start a new business with the same immoral attitude about collecting debts. Then Consumer Financial Protection Bureau (www.CFPB.gov) was established. Unfortunately, the Consumer Financial Protection Bureau was gutted by Mr. Trump, but I am certain that under the next administration the organization will return to its original goal of protecting consumers.
This case shows the tide is somewhat changing and we can only hope that momentum continues.
How Can I Help You?
The post Supreme Court – Statute of Limitations under FDCPA appeared first on Diane L. Drain - Phoenix Arizona Bankruptcy & Foreclosure Attorney.
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