Courtesy of Ken Mayer
Serving as Executor of an estate comes with a long list of to do items and adherence to probate and tax law. We attempted to compile some of the general information an Executor should consider when taking on this thankless responsibility of carrying out a will and protecting an estate.
Estate and probate law is in the news based on recently signed State legislation and case law. For instance, North Carolina Governor Pat McCrory signed Senate Bill 279, revising its law on estates, trusts, powers of attorney, and guardianship. It makes valid "a military testamentary instrument executed in compliance with 10 U.S.C. § 1044d(d) or other relevant federal statute shall also be considered self-proved." These revisions apply to estates of decedents dying on or after the effective date of October 1, 2013. Additional changes in laws will likely occur in many States as a result of the recent highly publicized decision in U.S. v. Windsor. Some probate court clerks are a helpful reference to properly complete new forms, but the clerks are usually not attorneys. Licensed attorneys will serve as the most reliable source of advice on these changes in Estate and Probate law.Serving as an Executor is not legally mandated despite the wishes in a person's will. In most cases the person named in a will can refuse to serve as Executor after the decedent's passing, or the Executor can later resign. A probate court will then name an Executor. A court's options for Executor include naming a person, corporate executor, or co-executors.
Accomplishing the Executor's responsibilities requires some knowledge of legal terminology. The most important terminology includes the following:
Most State probate courts will supply information on how to proceed as Executor, but we have included a list of important items typically performed by the Executor of an estate. This list is not exhaustive, but it should provide a good start.
- Probate: the official proving of a will as authentic or valid in a probate court (a special court with power over administration of estates of deceased persons, the probate of wills, etc.).
- Decedent: a deceased person.
- Testator: a person who has died leaving a valid will.
- Executor: a person named in a decedent's will to carry out the provisions of that will.
- Heir: In Common Law an heir inherits some or all of the property of a deceased person, as by descent, relationship, will, or legal process. In Civil Law an heir legally succeeds to the place of a deceased person and assumes the rights and obligations of the deceased, including their debts and the possessory rights to property.
- Will: it usually expresses the desires of a person for distribution of their assets, amongst other things, following their passing. States have different laws on the validity of specific types of wills (i.e. pour-over will, noncupative will, and holographic will). Learn more about a will in our article at Top 5 Legal To Dos for Veterans.
- Beneficiary: a natural person or other legal entity who receives money or other benefits from a benefactor. When naming a beneficiary, make sure to give enough information so they can be easily identified and located.
- Letters of Testamentary: a document issued by the court clerk which states the authority of the executor of an estate of a person who has died.
- If you know that a person named you as an Executor in their will, ask the person to provide the exact location of the will, and if possible, discuss its contents together for a clear understanding of your responsibilities as Executor of their estate;
- Request at least three copies of the Death Certificate, most likely available at the Register of Deeds;
- File for appointment as the Executor;
- After appointment as the Executor, request an EIN from the IRS;
- Create a bank account for the decedent's estate;
- Consider insurance for yourself as Executor;
- File the decedent's will within the Statute of Limitations;
- Contact Social Security Administration and the Department of Veterans Affairs to notify it of the decedent's passing;
- Research potential eligibility for survivor benefits, including burial expenses, which require copies of the veteran’s discharge papers, marriage certificate, and other basic information. For more information, contact the U.S. Department of Veterans Affairs at 800-827-1000 or visit its website at www.va.gov.
- Contact Home and Auto insurance companies;
- Contact utilities to change into the name of the person taking over possession of the decedent's home;
- Contact Bank and Credit Card companies; and
- File all tax returns, including but not limited to, income and estate taxes.
Thank you for reading and please send us your comments.
Disclaimer: This article is intended only to provide general legal information. It does not create an attorney-client relationship. Consult a licensed attorney in your area if you are in need of legal advice.
Courtesy of Kathryn Decker
Are you ever uncertain whether to fill out the optional questionnaire or section on military service in a job application? Is there a legal argument for skipping or filling out these sections? Potential legal issues include tax benefits, discrimination, and hiring preference. Determine whether to fill out these sections by reading about the following relevant laws.VOW Provides Employer Tax Benefits
Let's face it, most employers primarily focus on how a job candidate will benefit the employer. Military service alone has not always provided enough incentive for employers. Lawmakers have recently provided employers with important tax incentives under the Veterans Opportunity to Work (VOW) to Hire Heroes Act. Employers should become familiar with the requirements of the VOW Act because it provides strong hiring incentives in the form of the Work Opportunity Tax Credit (WOTC) and
Special Employer Incentives (SEI) program. More information on the VOW Act is available at the VA VOW Home.USERRA Protects Against Discrimination
Veterans are protected against employment discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA). An employer must return a servicemember to their civilian job after military service under USERRA, with limited exceptions, and USERRA protects servicemembers from employment discrimination based on their military service. Read about specific cases involving USERRA in "Escalator Principle" in Serricchio v. Wachovia Securities LLC
and Part 1: Future Military Heroes are Lost in Limbo
. In addition, Oregon recently passed a law with greater advantages than USERRA. Reservists and Veterans should consider USERRA and new State laws to be support for the argument to fill out the section on military service. Feds Hire Veterans Based on the Veterans Preference Act of 1944
The Veterans Preference Act of 1944 is the result of a tradition to reward our military heroes with civilian jobs, typically with the Federal government. To be eligible, a servicemember must meet the requirements listed in the law, available at Title 5, United States Code, Section 2108 (5 USC 2108). There is a good explanation of the requirements and system of points provided by Feds Hire Vets. "Preference is also provided for certain widows and widowers of deceased Veterans who died in service; spouses of service-connected disabled Veterans; and mothers of Veterans who died under honorable conditions on active duty or have permanent and total service-connected disabilities." (Source: U.S. Dept. of Veterans Affairs) This Act provides strong support for the argument to fill out the questionnaire area on military service when applying for government positions. The above laws appear to make it advantageous to fill out the application sections with your military experience. If you believe an employer decided against your hiring because of military service then contact
the U.S. Department of Labor at 1-866-4-USA-DOL, your State Attorney General's office, or consult a licensed attorney with a focus on employment law. Check back soon for our upcoming article on unemployment benefits for transitioning military heroes. Thank you for reading! Disclaimer: This article is intended only to provide general legal information. It does not create an attorney-client relationship. Consult a licensed attorney in your area if you are in need of legal advice.
Courtesy of familymwr and WTC
In our last article we provided information about the changes taking effect due to sequestration. Here, we will share general tips containing specific guidance on ways to deal with sequestration changes. Read the following tips carefully, and find help with implementation from your network, including For Love of Country. Some of these tips will merely require your time while others will also require financial changes. Use these five tips and your ability to adapt to overcome sequestration.
1) Research: Do your homework on the legislation and the resulting rules and laws. We are not the only source of information. Seek relevant information from the VA and veterans groups. Sequestration will likely have an impact on current military heroes, veterans and families, however. As you acquire information your fears will subside, and you can continue to move forward with the next step.
2) Reevaluate Your Plan: The above research will guide your new life plan. Consider your current household budget, health insurance, paycheck withholding, and estate/will plan. As a start, visit our Links page to find less costly professional planning assistance from law schools and nonprofits. Check out new additions to our links page at http://wtc.army.mil/about_us/wtc.html (Warrior Transition Command) and http://www.armymwr.com. Ask questions to determine the right professional for your situation.
3) Get Organized: At the beginning of the year, we have the opportunity to start anew. If you are leaving the military, you must stay organized to accomplish a smooth transition. It does not require a professional to get organized. Buy a folder and add it to your safe or lock box to protect important documents. Establish a routine to backup important documents on a free cloud and/or zip drive. When employers and insurance carriers request your military information, you will have it ready to send in a timely fashion.
4) Be Persistent: Rome was not built in a day, and it was not built by one person. There will be obstacles to implementing life changes. Make the difficult decisions using others as sounding boards. Remember to seek advice and help from your network of family and friends. As you transition into civilian life, utilize the tremendous social network available on veterans websites and professional websites including www.linkedin.com.
5) Start Today: It's the beginning of 2013. The beginning of the year is always a time for resolutions. Doing a little each day and week will lead to a successful transition. In addition, feel free to ask general questions and share your new found knowledge in our NEW Community Forum.
Also see our financial resources article at http://www.forloveofcountry.net/1/post/2012/09/three-apps-for-managing-money.html.
(Courtesy of DVIDSHUB)
What do the terms "to sequester" or "sequestration" mean to the military? These terms generally mean to remove (property) temporarily, or to keep separate or apart (Sources: Dictionary.com and Law.com). Politicians and the media used these terms often during the past couple months because of the relevance to the fiscal cliff problem.
Let's dig a little deeper into why sequestration is relevant. According to the Congressional Report Service, "sequestration" is a process of automatic spending reductions ... first authorized by the Balanced Budget and Emergency Deficit Control Act of 1985. More recently, Congress included sequestration as an enforcement tool in the Budget Control Act of 2011 (BCA), and as a result, if Congress failed to act or appropriated more discretionary spending than allowed then sequestration would reduce discretionary spending. Because Congress did not act on January 15, 2012, by law, the first automatic sequestration cuts would take effect on January 2, 2013 (Source: FAS.org).
Did the recent actions of Congress prevent sequestration of all property and spending relevant to the military or its members? Not really. Details of the Budget resolution are still coming out since it was drafted on the eve of its passage, but we searched for recent examples of cuts to Department of Defense appropriations. We found reports that "Due to the cliff agreement, overall Pentagon cuts will be smaller – $42.7 billion in 2013. But after 2013, cuts would be the originally written $54.7 billion a year until fiscal 2021." (Source: http://blogs.marketwatch.com/election/2013/01/11/how-the-sequester-would-cut-spending)
The fiscal cliff problem clearly sparked the discussion of Department of Defense cuts, but will the affects of these cuts trickle down to be felt by current service-members and veterans? Initially, the reports are the deal spared programs including Social Security, Medicaid, food stamps and veterans’ benefits, however. All Americans will see an immediate increase in their taxes due to the end of some Bush era tax cuts. Tax increases are unlikely to be the only changes.
During the debate on the debt ceiling, some congressional members intend on revisiting the possibility of cutting entitlement programs, and possibly TRICARE and veterans benefits. Some cuts began already, specifically, TRICARE Prime is no longer available to veterans living over 40 miles from bases, and so these veterans must switch to TRICARE standard. Sequestration and any deal on the debt ceiling will likely force additional changes in military benefits. Stay tuned to www.forloveofcountry.net for a report on any future changes.
Disclaimer: This article is intended only to provide general legal information. It does not create an attorney-client relationship. Consult a licensed attorney in your area if you are in need of legal advice.
Courtesy of Apple and The McGraw-Hill
There is a new way to manage finances if you have access to a smartphone or tablet. It's the Military & Money App just released from The Better Business Bureau and The McGraw-Hill. A couple of other more tested apps are also available to assist with managing money.
According to the App Store, Military & Money "includes training videos, articles and interactive tools to help manage credit cards and credit scores, pay off debt, create an effective budget and establish a savings plan. Best of all the app is FREE. Even if you do not have access to the app store, Military & Money is available online at www.militaryandmoney.com
There are no ratings posted on the app store website, however. Several websites have provided positive feedback on the app, including http://www.forthoodsentinel.com/story.php?id=9764
. Let us know what you think about the app by leaving comments below.
Several other sources could be helpful to complement this new app. For instance, USAA offers a free app to manage finances and make insurance claims. In addition, Navy Federal Credit Union provides a free highly rated app to help with banking and finances. Check out our article for guidance regarding property tax appeals at http://www.forloveofcountry.net/1/post/2011/09/understand-the-tax-code-and-the-assessment-appeal-process.html
All of these sources are good ways to develop a plan and stay organized. It is also important to consult a legal, investment and tax professional during any change in life circumstances.Disclaimer: This article does not constitute an endorsement of any products. For Love of Country is not affiliated with and does not receive any compensation from the companies mentioned in this article.
Courtesy of theakshay.
We know not everyone is interested in climbing Mt. McKinley like the Wounded Warriors in our articles available at http://www.forloveofcountry.net/1/category/fitness/1.html
. For those looking for a family experience, there is a new nonprofit sports camp opening in October 2012 in North Carolina.
According to a camp representative, "Our mission is to reconnect wounded warriors and their families in an environment that is therapeutic, builds a healthy spirit and solid family relationships." There appears to be no fee to attend the camp, and the organization claims to have received 501(c)(3) status so donations can be made on its website. More information about the camp is available at www.eaglerockcamp.org. If you are a Wounded Warrior interested in attending the camp, use their Contact Us tab on the above website to request an application.
If you are interested in researching the status of a charity as a 501(c)(3), then request from the charity their entity name submitted to the Internal Revenue Service. A search of 501(c)(3) organizations is available at http://www.apps.irs.gov/app/eos/
. It is often a lengthy process to receive official 501(c)(3) status from the IRS. Once the organization receives 501(c)(3) status, donations "are deductible as charitable contributions on the donor's federal income tax return." (Source: http://www.irs.gov/publications/p557/ch03.html#en_US_2011_publink1000200026
)Disclaimer: For Love of Country is not affiliated with any organization mentioned in this blog article. This article does not constitute an endorsement of any organization referenced in this article. We encourage those interested in donations to research charitable organizations by requesting information from the organization and using tools available on the internet.
Courtesy of David Reber
Last week we considered the protections afforded to recruits and officers. In this article we look for potential benefits provided to employers of the recruits and officers under the Vow to Hire Heroes Act of 2011 and the tax code. An employer can likely claim the Work Opportunity Tax Credit (WOTC) if an employee fall into a certain group. Figure out whether your company might qualify by applying the analysis below to your situation.Second Issue:
Do the new Acts apply to provide benefits (i.e. Work Opportunity Tax Credit) for employers of recruits and officer candidates, before and/or during training?Analysis:
One crucial element to the analysis of eligibility for benefits is likely the classification of the military's officer or recruit. USERRA provides a useful definition as follows:
(13) The term "service in the uniformed services" means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to any such duty, and a period for which a person is absent from employment for the purpose of performing funeral honors duty as authorized by section 12503 of title 10 or section 115 of title 32.
Under the above definition, it's likely an employer will be eligible if it employs a recruit or an officer candidate training for reserve duty. The credit(s) should be available to employers of recruits or candidates attending college if these persons fall into "inactive duty training."
The WOTC eligible groups also include a "16-17 year-old summer youth -- individual who works for the employer between May 1 and September 15, and lives in an [Empowerment Zone]." See Form 8844 below
These Empowerment Zones include Chicago, IL, New York, NY and Fresno, CA. As a result, employers can probably claim the WOTC for a recruit falling into this age group located in an Empowerment Zone. The length of employment is likely a factor when claiming the WOTC. For profit and tax exempt organizations both qualify for the WOTC. For more information , read the WOTC Veterans Brochure available at http://www.doleta.gov/business/incentives/opptax/
To determine eligibility for benefits, employers should use the definition of "service in the uniformed services." If an employee informs your company of their military application, use the analysis provided in this two-part series. The threat of lawsuits should be enough to persuade your company to retain the military applicant, but remember there are advertising and tax benefits available to employers of service members and veterans.
Source: U.S. Department of Labor Publications
Source: U.S. Internal Revenue Service FormsDisclaimer: This article is intended only to provide general legal information. It does not create an attorney-client relationship. Consult a licensed attorney in your area if you are in need of legal advice.
Photo Courtesy of the United States Air Force
Times sure have changed since a recruiter told a recruit to get their affairs in order and report back in a week or less to ship to basic training. Today, it is not unusual for recruits and officer candidates to wait for 6 months or more to go to basic training or Officer Candidates School (OCS). Many of these future military heroes will graduate and face a difficult job market while they wait to ship. If they become employed, are their jobs protected under current laws or court opinions? In addition, a significant number of lieutenants will return home for several months at a time between phases of training. Did lawmakers intend the new laws to extend to future military heroes like the benefits and protections received by reservists? First Issue:
Does USERRA and the case of Staub v. Proctor Hospital
apply to protect the jobs of future recruits and officer candidates?Analysis:
The relevant section of USERRA is Title 38 U.S.C. 4301-4335, which provides in pertinent part "(a) that a person who ... applies to perform ... service in a uniformed service shall not be denied initial employment, ... retention in employment ... on the basis of that ... [person's] application for membership ..." It further prohibits this type of action by a person's employer unless the employer can prove it would have been taken in the absence of the application for membership. See below the text of Title 38 U.S.C. 4301-4335 (a - c)
The case of Staub v. Proctor Hospital
involves a similar situation in which the court interpreted this section of USERRA.
At the beginning of 2011, Staub was one of three U.S. Supreme Court decisions related to the military. The U.S. Supreme Court ruled in favor of Army reservist Vincent Staub, who was fired in 2004 from his civilian position at Proctor Hospital in Peoria, Illinois. He claimed the firing was related to his supervisor's negative comments about his military obligations, and therefore, he sued the hospital under the Uniformed Services Employment and Reemployment Rights Act (USERRA). This Act prohibits denial of re-employment, retention in employment, promotion or any benefit of employment based on a reservist’s military obligations. USERRA requires employers to provide Reservists with time away from their jobs to perform military duty. See our article and the attached text of Staub at http://www.forloveofcountry.net/1/post/2011/12/cats-paw-in-staub-v-proctor-hospital.html
Based upon the decision in Staub, employers are also likely prohibited from firing a recruit, an inactive lieutenant or veteran with plans to return to military training. Employers might not realize the amount of protection provided under the above section of USERRA, but Staub
is a good reason for corporate counsel and HR to carefully analyze every situation. In the past an employer would have attempted to keep a trained individual for as long as possible, however. The substantial number of qualified unemployed individuals might prompt an employer to fire a recruit or person in training limbo to hire another individual. This hypothetical employer's action is likely discrimination because these persons are protected under USERRA Title 38 U.S.C. 4301-4335. Check back next week for Part 2 of this series in which the issue is whether new Acts apply to provide benefits for employers of recruits and officer candidates?
Source: U.S. Department of Labor, http://www.dol.gov/vets/usc/vpl/usc38.htm#4301
Title 38 U.S.C. 4301-4335
(a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.
(b) An employer may not discriminate in employment against or take any adverse employment action against any person because such person (1) has taken an action to enforce a protection afforded any person under this chapter, (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this chapter, or (4) has exercised a right provided for in this chapter. The prohibition in this subsection shall apply with respect to a person regardless of whether that person has performed service in the uniformed services.
(c) An employer shall be considered to have engaged in actions prohibited-
(1) under subsection (a), if the person's membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service; Disclaimer: This article is intended only to provide general legal information. It does not create an attorney-client relationship. Consult a licensed attorney in your area if you are in need of legal advice.
One of the best ways to attract an employer is to differentiate yourself. Being a U.S. military hero now has even more benefits in this competitive job market. Hiring a U.S. military hero will benefit employers, but not all employers are aware of the recent financial and tax benefits made available to them.
According to the U.S. House Committee on Veteran Affairs, there are 900,000 unemployed veterans in the United States. In an attempt to reduce this figure, the U.S. government recently amended and expanded the Work Opportunity Tax Credit (WOTC) with the VOW to Hire Heroes Act
signed into law by the President on November 21, 2011.
One of the advantages to this Act is it improves the transition process from military service into civilian life. For instance, a service member is now encouraged to apply and receive veterans preference status before leaving military service. Furthermore, the Act provides the opportunity to refine skills during one year at a community college or technical school.
What do employers need to know? This Act expands the definition of WOTC’s veteran target groups, and the changes apply to veterans hired after November 22 until December 31, 2012. Due to the recent amendment, employers are encouraged to hire all types of veterans and disabled veterans after which the employer will receive a credit from $2,400 to $9,600. To learn more about applying for this credit follow the links as follows:
- Individual Characteristics Form (ICF) Work Opportunity Tax Credit Form 9061
- Conditional Certification, Work Opportunity Tax Credit, ETA Form 9062
- Pre-Screening Notice and Certification Request for the Work Opportunity Tax Credit, Form 8850
In these difficult times make full use of these available benefits and information to secure a new job. Ensure that you catch a prospective employer's attention by mentioning these possible financial and tax benefits at the appropriate time during the hiring process. This type of helpful information might even boost your starting salary. Good luck!Disclaimer: This article is intended to provide general legal information to the readers. Consult a licensed attorney in your state for legal advice on your situation.
Internal Revenue Service, www.irs.gov/pub
Hiring Veterans – Tax Credits in a Nutshell, February 2, 2012, Karin Durkee
If you are a current or former member of the United States military you should take advantage of the available tax benefits. Benefits include exemptions due to military service. In addition, like other citizens, you have the ability to appeal your real property assessments within a certain amount of time under the law in your area. Consider consulting professionals to assist you with an appeal.
Do not let the tax code intimidate you into not claiming certain service related benefits and exclusions. You can access the links to all of the states at http://www.military.com/benefits/content/veteran-state-benefits/state-veterans-benefits-directory.html
. Also look for the link to your State's department of veteran affairs. A real property tax exemption is one type of military service related tax benefit. For instance, North Carolina provides an exclusion for "$45,000 of the appraised value of the permanent residence of an honorably discharged veteran who has a total and permanent disability that is service-connected..." Law students and/or legal professionals are available to assist service members and veterans, and you can find their contact information under Clinics & Resources at www.forloveofcountry.net/links
In some locations it is a straightforward process to appeal your property assessment while in others the process will challenge a person's ability and patience. Remember that you are actually appealing your property assessments. When you decide to start the process, get a copy of the government's documentation on which it based your property taxes (i.e. assessments). Next, perform research and document your research. Identify comparable property sales in your area for the previous 3 years, which date range could vary depending on your location. Include printouts from sales you plan to use to persuade the government representative(s). Study and summarize the sales research before your negotiation with the local government representative. Additional information is available online for some areas, such as Cook County Illinois at http://www.ehow.com/how_6982515_do-assessment-cook-county_-illinois
. Whether your initial appeal is successful, there are sometimes additional ways to appeal, but identify the deadlines.
As with any legal process a professional's advice might prove highly beneficial. You should consider consulting a realtor friend to assist with the research. If in doubt, consult a licensed real property/tax attorney in your area. Prior to consulting an attorney, attempt to get legal assistance through ABA Home Front and contact the veteran's legal clinic in your area (See Clinics & Resources at www.forloveofcountry.net/links
). Even if you are not eligible for help from a clinic, some private attorneys will not charge more than their consultation fee if the attorney is unsuccessful in lowering your taxes. An attorney might find an appeal will likely increase your taxes. Finally, consider an appeal every year because a property owner could make successful appeals on an annual basis depending on the real estate market.
Do not procrastinate if you believe you qualify for the benefits and programs mentioned above. You could save significant amounts of money.Disclaimer: This article is not intended to endorse the services of any vendor mentioned herein. It is intended to make readers aware of available government benefits and resources. Consult a licensed attorney in your jurisdiction for legal advice.