The Florida Estate Planning and Probate Law Blog is focused on recent federal and state case law and planning ideas.

Showing posts with label estate plan. Show all posts
Showing posts with label estate plan. Show all posts

MEN THAT HAVE CHILDREN LATER IN LIFE ARE ELIGIBLE FOR AN EXTRA SOCIAL SECURITY BENEFIT?

Under existing social security rules, men that have children later in life (it would be gender discrimination but biologically women can’t currently conceive a child after age 60) are eligible for an extra Social Security benefit. Under the rule, when a man files for his social security benefits, each of his children under the age of 18 years is entitled to one-half (1/2) of what he would receive at full retirement age (even if he collects social security benefits early). Eligibility for the child benefit requires them to be: (i) under the age of 18 years; (ii) 18-19 years old if a full-time student (not higher than grade 12). For example, if a 62-year old man with a 10-year old child began collecting social security benefits immediately, not waiting till age 70 years, he would also receive one-half (1/2) of the maximum amount he would have received had he waited to collect at age 70 years, until his child reached the age of 18 years. At present, Donald Trump is receiving an extra $15,000 per year since his son is under age 18.

UTILIZING THE IRA CHARITABLE ROLLOVER

Federal legislation recently made permanent an individual taxpayer ability to make charitable contributions directly from his or her IRA. These contributions are made directly from the IRA to the public charity are not taxed as income to the taxpayer subject to the following requirements: (i) individual making the contribution must be at least 70 1/2 years of age on the date of the contribution; and (ii) contributions of up to $100,000 per individual per year (or $200,000 for married taxpayers filing a joint return ). Contributions in excess of the $100,000 ($200,000) amount are treated as taxed withdrawals which are then donated to charity. Individuals over age 70 1/2 with traditional IRAs or Roth IRAs will benefit the most if they (1) have already used (either directly or via carry-over) their entire charitable deduction allowed under Section 170 of the Internal Revenue Code during the taxable year; (2) want to make charitable contributions but do not itemize deductions; or (3) have income above the applicable threshold such that deductions under Section 170 of the Internal Revenue Code are not “dollar for dollar” deductions.

REASONS TO FUND YOUR REVOCABLE TRUST

You have created a Revocable Trust (aka Revocable Living Trust) as a part of your estate plan and wonder what do you need to do next? The first, and most important thing, that you need to do is ensure that it is properly funded by transferring or assigning ownership of your assets and real property to the Trust. The benefit of properly funding your Trust is that you will not lose any control over or enjoyment of the assets. While you are handling the funding process it is important to recognize why you are doing it: Avoidance of Probate Proceedings. The most common reason individuals create a Revocable Trust is to avoid probate. Probate is the court-supervised transfer of assets from the estate of a deceased person to his or her beneficiaries. However, if all of the decedent’s assets are held in a Revocable Trust at his or her death, they are not subject to probate proceedings in either their state of domicile and any other in which they may own real property. The successor trustee can distribute the assets to each beneficiary without supervision by the court. Management During Incapacity and at Death. Should you become incapacitated the assets maintained in your Revocable Trust can be utilized by your successor trustee, without the necessity of guardianship court intervention, to handle your financial affairs. Similarly, upon your death, the assets can be seamlessly assumed by your successor Trustee, without the need to wait for probate proceedings, and distributed to your beneficiaries. Privacy and Confidentiality. Unlike a Last Will & Testament that will be filed with the probate court, a Revocable Trust is not a matter of public record. Information is reported privately to the beneficiaries and the public will have no access to this information. Every time a new asset is acquired or account opened by you it should be titled in the name of your Trust.

TIPS TO AVOID A CHALLENGE TO YOUR ESTATE PLAN AT DEATH

Although a challenge to a Last Will and Testament (“Will”) or Revocable Trust (“Trust”) (an inheritance dispute) are a sad reality there is no guarantee that even with proper planning a contest may be avoided. Will and Trust contests are typically the result of a disgruntled family member or friend challenging the validity of the documents. The have a higher probability of occurring in in blended families, when a child is disinherited or when the children are not treated equally. The following are some proactive steps that can be taken: • Create your estate plan early in life and update it regularly. Many inheritance disputes result from estate planning documents being signed shortly before the death of the testator. • Keep copies of your old estate planning documents. Your old estate planning documents may be reinstated or serve as evidence of your intent if a newer document is successfully challenged after your death. It makes it difficult for Nephew John to challenge your estate planning documents when all your prior documents also excluded him as a beneficiary. • Explain a disinheritance or inequity in distributions. Make sure your estate planning documents include specific language as to why an individual who might be expecting an inheritance is not receiving one, or why your estate will not be equally divided between your children (prior gifts to one child). • Establish your competence with regular medical visits and notes. Have disinterested individuals witness the executed of your estate planning documents to diminish the ability of a challenge of undue influence. • Discussing the general contents of your estate plan with your family. If nephew John knows years in advance that he will not be a beneficiary, it may decrease his motivation to challenge your estate plan.

IMPORTANT 2017 FEDERAL TAX AND EXEMPTION AMOUNTS

Federal Estate & Gift Tax: The Federal estate tax exemption amount will be $5,490,000 in 2017. The annual gift exclusion amount will remain at $14,000 Qualified Plans for 2017: The limit on the maximum amount of elective contributions that a person may make to a §401(k) plan, a §403(b) tax-sheltered annuity, or a §457(b) eligible deferred compensation plan remains unchanged at $18,000. The limit on “catch-up contributions” to a §401(k) plan, a §403(b) tax-sheltered annuity, or a §457(b) eligible deferred compensation plan for persons age 50 and older remains unchanged at $6,000. The dollar limit on the maximum permissible allocation under a defined contribution plan is increased from $53,000 to $54,000. The maximum annual benefit under a defined benefit plan is increased from $210,000 to $215,000. The maximum amount of annual compensation that may be taken into account on behalf of any participant under a qualified plan will go from $265,000 to $270,000. The dollar amount used to identify “highly compensated employees” remains unchanged at $120,000. Social Security Tax: The Department of Health and Human Services has set the maximum taxable wages for the OASDI portion of the social security tax at $127,200 for 2017, which is an increase from the 2016 limit of $118,500.

WHERE THE PRESIDENTIAL CANDIDATES STAND ON THE ESTATE TAX!

Both presidential candidates have proposed changes to the estate tax regime. Mr. Trump calls for a total repeal of the Federal estate tax. No matter how much wealth you accumulate during your life, under Mr. Trump’s plan, there will be no estate tax due on death. The Trump belief is that you have paid taxes your whole life; therefore, you shouldn’t be taxed again at death. However, the repeal of the estate tax comes with a caveat, even under this plan: capital gains held until death will be subject to tax, in some cases. Mr. Trump’s proposal eliminates stepped-up basis on death for estates over $10,000,000. Basically, under this plan, gain, determined using the deceased’s basis on the asset, would be subject to tax when an inheritor sells an asset, not when she or he inherits it on the death of a decedent. The $10,000,000 exemption is similar in amount to the current federal estate tax exemption. It is unclear if the $10,000,000 exemption is per person, or per married couple. Similarly, it is unclear if Trump’s plan eliminates gift and generation-skipping tax provisions as well. The impact of Mr. Trump’s plan would be less felt by the wealthy who believe their children and grandchildren will retain the assets they inherit or those whose assets have not appreciated significantly, and more by those whose children plan on selling the assets they have inherited and whose assets have significant appreciation attached to them. Mrs. Clinton’s plan calls for increasing the Federal estate tax. Originally, Mrs. Clinton proposed reducing the threshold at which estates are taxed, from $5,450,000 per individual or $10,900,000 per married couple to $3,500,000 per individual or $7,000,000 per married couple, and increasing the top estate tax rate from 40% to 45% for the highest-taxed estates. The end result of this plan seems to put the estate tax back to where it was in 2009. Yet, just last week, Clinton’s campaign material referred to an even more aggressive estate tax, with a 50% tax rate on estates over $10 million per individual, a 55% rate for estates over $50 million per individual and an unprecedented 65% tax rate for the largest estates valued at over $500 million per individual. The Clinton plan would also eliminate stepped-up-basis when assets pass to heirs on death. The combination of an estate tax without a corresponding step up in basis is quite novel, and if passed would be the first time in our country’s history that the estate tax system worked this way. The goal of Mrs. Clinton’s estate tax proposal is said to raise additional tax revenue by targeting the wealthiest in our country Proponents of an estate tax, like Mrs. Clinton’s, argue that it helps to stop wealthy people from getting even wealthier, generation after generation. Undeniably, the impact of Mrs. Clinton’s plan will be felt by the wealthiest Americans. The goal according to the Clinton campaign would be use to use the additional revenue collected by the new estate tax regime to help pay for some of her plans which assist the middle class in our nation, like expanding the child tax credit and simplifying small business taxes. Which candidate will win the election? Article courtesy of Brian Cave, law firm.

THE NEW 2016 IRS DEFINIATION OF HUSBAND AND WIFE

The Internal Revenue Service (IRS) has formally put into place, effective September 2, 2016, amendments to the regulations that define “who is married for tax purposes.” The new regulations state that it will interpret the term “husband and wife” as any two people who are married to each other, even if they are a same-sex couple. The IRS is addressing this issue as a result of the 2013 U.S. Supreme Court ruling in United States v. Windsor (which struck down the section of the Defense of Marriage Act (DOMA) prohibiting recognition of same-sex marriages for federal purposes) and the 2015 Supreme Court ruling in Obergefell v. Hodges (that made same-sex marriage legal throughout the nation).

CAN MY REVOCABLE TRUST OWN S-CORPORATION STOCK

A Florida Revocable Trust (“Trust”) is a common tool utilized by individuals when creating their Florida estate plans. A Trust is designed to hold assets during the Grantor (the individual who creates the Trust) lifetime and then dispose of those assets at their death (the terms of the Trust will contain the individual’s specific directions as to how the assets will be distributed). In order for a Trust to accomplish its objective it must be funded (assets retitled into the name of the Trust) with all of the Grantor’s assets during their lifetime. This will require the Grantor to retitle real property, bank and investment accounts, and any business interests (LLC interests or stock in an S-Corporation) into the Trust. If a Grantor intends to title S-Corporation stock into the name of their Trust there are specific guidelines which must be adhered to. While a Trust is a permitted shareholder of an S-Corporation, Section 1361 of the Internal Revenue Code only permits certain kinds of trusts (a Qualified Subchapter S Trust or Electing Small Business Trust) from owning the stock. If an unauthorized Trust becomes a S-Corporation stock shareholder, the Corporation will cease to be a qualified S-Corporation and will be taxed as an ordinary C Corporation. Additional pitfalls must be avoided when a married Grantor dies. Upon a Grantor’s death, the Trust assets may be divided and distributed into separate trusts (share for the surviving spouse and one for the deceased spouse). The deceased spouse’s share is typically held in an irrevocable trust for the survivor’s benefit (a “Credit Shelter Trust” or “Bypass Trust”). If the S-Corporation stock is utilized to fund the Credit Shelter Trust, not a grantor trust, then it must qualify as either a Qualified Subchapter S Trust or Electing Small Business Trust and make a timely election with the IRS.

DISCRIMINATION PROVISION IN WILL UPHELD AS VALID

In the New Jersey Appeals Court case of In re the Estate of Kenneth E. Jameson, (NJ App., Aug. 12, 2016), a New Jersey appeals court upheld NJ law which allows discrimination provisions in testamentary bequests. The law does not preclude an "individual from disinheriting his or her child for religiously discriminatory reasons." The Ohio Supreme Court previously upheld a similar provision. The court upheld the specific provision contained in the Will, which disinherited his daughter if she married someone of the Jewish faith, because "neither the New Jersey Law Against Discrimination nor New Jersey public policy bars disinheriting a child based on religion or religious affiliation."

FLORIDA ESTATE PLANNING CONSIDERATIONS WITH LARGE INHERITANCES

Receiving a large inheritance can be an unexpected windfall or curse to a beneficiary. To avoid a negative outcome, it is not uncommon for individuals to evaluate alternative methods to transfer wealth to their beneficiaries. A recent survey found that only thirty-two (32%) percent of baby boomers are confident their beneficiaries are prepared both emotionally and financially to receive an inheritance. Their concern stems from the desire for their beneficiaries to learn about hard work, failure and the joys of success and concern over their ability to handle sudden wealth. In making these decisions, individuals must also be concerned with: (i) the relationships of their beneficiaries (family harmony, divorces, current spouse’s and in-laws); (ii) student loan debt; (iii) establishing a 529 Education Plan for children or grandchildren; (iv) medical issues and a special needs trust; and (v) a drug or gambling problem or other destructive addictions. It is important to consider whether you want a beneficiary to receive their inheritance in one lump sum or distributions spread out over multiple years. All of these issues and more can be addressed in a well-designed estate plan.

NEW 2016 CONNECTICUT POWER OF ATTORNEY LAW



Effective October 1, 2016, the new Connecticut law governing “Powers of Attorney” (written designations of authority) will go into effect (a major update to the 1965 law. The new law, known as the Connecticut Uniform Power of Attorney Act imposes new obligations on banks to whom POA’s are presented by requiring them to either accept a notarized POA or request additional documentation within seven (7) business days. Once the documentation is presented, if the bank requests it from the agent, it will have five (5) days to either accept the POA or reject it (based upon suspected abuse or the bank’s knowledge that the POA has been revoked). In those cases, the bank continues to be free to refuse to accept the POA, without sanction or liability. Alternatively, if the bank refuses to accept the POA without sufficient cause, the attorney-in-fact can obtain a court order mandating acceptance of the POA and potentially recover reasonable attorney’s fees and costs from the bank.



The new law also provides that (i) the commencement of a divorce or separation proceeding will automatically revoke the POA designation of a spouse; (ii) the POA remains effective during incapacity without any additional language; (iii) existing POA’s remain valid; and (iv) the new law’s presumptions, such as revocation of a former spouse’s designation as attorney-in-fact and durability, will apply to prior POA’s. In addition, the new law creates a second, long statutory form that includes estate planning powers, allowing gift giving and other powers.

SAME -SEX COUPLES CONTEMPLATING MARRIAGE SHOULD NOT PUT IT OFF



A recent New Jersey Tax Court ruling, unpublished opinion, emphasizes the importance for same-sex couples to not put-off marriage for estate planning purposes. New Jersey has both an estate tax and an inheritance tax, and taxpayers must pay the higher of the two taxes. The estate tax impacts estates of more than $675,000. Notwithstanding a 31-year relationship, registration as a same-sex domestic partner under New Jersey's Domestic Partnership Act (DPA), and a marriage scheduled to take place with 6 days of his death, the New Jersey Tax Court Judge ruled that the survivor did not qualify as a surviving partner for estate tax purposes under New Jersey law.  As a result of his failure to qualify as a surviving spouse he was not entitled to a $101,041 estate tax deduction under New Jersey tax law.



The Judge, in applying a “very strict reading of the statute,” reached this conclusion based upon the fact that the couple were eligible to enter into either a civil union or a marriage as of the date of the decedent's death and did neither. In 2007, New Jersey had enacted the Civil Union Act which allowed same-sex partners, who entered into a civil union, to be treated the same as opposite-sex spouses for purposes of calculating the New Jersey estate tax. Subsequently, in October 2013, the New Jersey Supreme Court, in Garden State Equality v. Dow, permitted same-sex couples to marry. The New Jersey's statute on domestic partnership is “unequivocal” in providing exemptions only for personal income and inheritance taxes and not the estate tax.  

THE IMPORTANCE OF A LAST WILL & TESTAMENT



SARASOTA, Fla. -- It's something that experts say you don't want to have running away from you. If you pass away without a will in the state of Florida, the state statutes would decide where your assets go. "Everyone should have a will, because what it does, it shows the court and all the beneficiaries how you want your assets to pass," said Marc Soss, a Sarasota attorney. According to estate planning attorneys, around two-thirds of people don't have a living will. Many folks we talked with at Bayfront Park on Thursday are in the same boat. "At this point we do not have a will and it's something we do need to take care of," said Shannon Ashburn. "We just haven't gotten around to it yet." "I have had a will and it was up to date," said Donna Wilson, "but I divorced and that's null and void now, so I need a new one but you know you put that kind of thing off." It's a little bit of smoother ride for Joe Giannetti. Several years ago he had an attorney put together his will. "We have two children, they're both married and we have grandchildren," said Giannetti. "I feel we're in great shape if something should happen." Attorneys say the will process is typically quick and easy with costs running as low as $100 for an attorney to do it. "Creating a will is actually a very simple process," said Soss. "In most cases, a simple will can take less than 15 minutes." Following the death of Prince, because it's reported he had no will, a bank has officially been appointed to handle his assets said to be worth hundreds of millions of dollars. Marc Soss says this a lesson everyone can learn from. "Whether you have minimal assets or multi-millions of dollars people fail to plan for the important things in life," said Soss.


ONLY ONE RESIDENCY TAX EXEMPTION AT A TIME: DON'T BE GREEDY

FloridaHomestead law provides two major benefits: (i) creditor protection; and (ii) partial exemption from ad valorem tax. However, each of these benefits can be lost if you claim a residency based tax exemption in another state (you can’t be a resident of two states at the same time). The recent Fourth District Court of Appeals ruling in Venice L. Endsley, Appellant, v. Broward County, Finance and Administrative Services Department, Revenue Collections Division, Appellees. 4th District. Case No. 4D14-3997. March 23, 2016, makes that fact abundantly clear.

In Endsley, a husband, with a residence in Indiana, and a wife, with a residence in Florida, simultaneously received residency based property tax exemptions. In August 2006, the Broward County Property Appraiser, in reliance on Article VII, Section 6(b) of the Florida Constitution ("[n]ot more than one exemption shall be allowed any individual or family unit or with respect to any residential unit") challenged the wife’s eligibility for the Florida Homestead exemption. The challenge dated back to 1996, the first year the couple had simultaneously claimed a residency based property tax exemption in Indiana and Florida, and removal of the Save our Homes protection. Both the trial court and 4th DCA found that the plain language of the Florida Constitution meant that only one homestead exemption was allowed, regardless of location.

CHARITABLE PLANNING WITH YOUR RETIREMENT ACCOUNT



 
 
For the past several years, Congress has employed a last minute temporary rule that allowed IRA owners to exclude their required minimum distributions (RMDs), from their adjusted gross income, by making a direct contribution of the funds to a qualified charitable organization. However, this last minute action made planning difficult for taxpayers. Finally, in December 2015, the Qualified Charitable Deduction (“QCD”) provision became a permanent part of the U.S. Tax Code.  This allows taxpayers to comfortably utilize the provision and establish long-term planning strategies around it moving forward.
 

Eligibility and Advantages:

Any IRA owner or beneficiary who is at least 70.5 years old, no exceptions, can use the QCD rule to donate their required minimum distribution or up to $100,000 per year to charity and exempt the funds from taxation. All contributions and earnings inside the IRA are QCD eligible but are classified as a nondeductible contribution. Taxpayers may not utilize a joint gifting strategy for the purpose of QCDs. 

The biggest benefit of utilizing the QCD provision is the ability for a taxpayer to lower their adjusted gross income, since the gifted funds do not count as taxable income to them. This can allow a taxpayer to stay in a lower income tax bracket, reduce or eliminate the taxation of Social Security or other income and remain eligible for deductions and credits that might be lost if the taxpayer had to declare the RMD amount as income. Another advantage is the taxpayer will not have to itemize deductions in order to qualify for this deduction (since the exclusion applies to adjusted gross income and not taxable income).

Rules

In order for the donation to qualify under the QCD rules it must be made directly to the charity. The IRA owner or beneficiary can personally receive the check and deliver it to the charity, but they cannot deposit the funds and then make out a check to the charity. The recipient charity must also be a qualified 501(c)3 organization and a charitable gift annuity will not qualify. The charitable donation amount must be substantiated by the charity with a written receipt.

PREPARING FOR YOUR ESTATE PLANNING MEETING

Many individuals become overwhelmed with the decisions that they need to make when preparing or updating their estate planning documents. The purpose of this list is to help you analytically consider all the questions and issues that must be addressed, provide you with time to reflect on them and work your way through what will be discussed at your meeting with your estate planning attorney. The goal is to achieve your planned result.

1. Create A List Of Your Assets And Liabilities. Knowing what you own can make the estate planning process a lot simpler. Your asset list should include your house (and mortgage), bank accounts, investment accounts, business interests, personal belongings with value (e.g., artwork or jewelry), insurance policies on your life and retirement accounts. For each asset on the list, include an estimate of its value or current balance, as well as whether you own the asset in your individual name or in joint name with another person, such as your spouse. It is equally important to make a list of your debts and legal obligations (mortgage on home, lines of credit, business loans that you have personally guaranteed, etc..

2. Decide Which, If Any, Personal Belongings You Want To Leave To A Specific Person. You should consider what you own and to whom you want it to pass upon your death. The value of the item should not be a consideration as it may have great sentimental value to the recipient. Most couples provide that all of their household furnishings, jewelry, collections, etc., pass to the surviving spouse, when the first spouse dies, and then everything will be divided equally among their children when both of them are gone. If there is a concern that your children or heirs may fight over items which have nothing more than sentimental value you should consider empowering an independent individual to be the ultimate decision maker.

3. Who Should Be The Personal Representative(s). A Personal Representative is the individual or entity appointed to administer your estate at death.  Their duties include collecting your assets, paying debts, expenses and any taxes that may be due and then distributing the assets as directed by your estate plan. People typically name their spouse and then child(ren) to serve as the personal representative of their estate. Florida law only requires that the individual named be (i) a state resident; or (ii) family member.  You can also name more than one person to serve as your Personal Representative.

4. Outright Distributions or Creation of Trusts For Your Children And Grandchildren. Since it is your hard earned money, at your death you can decide how and to whom you want it distributed.  You can elect to have it all distributed to your surviving spouse and then child(ren) or held in trust for their benefit and distributed to future generations. Other options include dividing the trust property into equal/unequal shares, with each share held in trust for a child or grandchild until they reach a specified age (e.g., 1/3 at age 30, 1/3 at 35, and the balance at 40), or their entire lifetime (Florida allows a trust to exist for 360 years after the creators death) or attain certain accomplishments (college or post-graduate degree). Two benefits of holding an inheritance in trust is that (i) the property can be insulated from the claims of that beneficiary’s creditors, including a divorcing spouse; and (ii) it can prevent rapid depletion of the funds by a youthful recipient. 

5. Who Should Be The Trustee(s). As with the appointment of a Personal Representative, the individual or entity that select as the trustee of your trust, following your death, can be a family members, friend and/or professional.  The trustee will be responsible for managing the assets and making sound distribution decisions, so there will be adequate resources to meet your spouse’s and/or your children’s needs after you are gone. Unlike a Personal Representative, there is no restriction on who you can select to serve as a trustee.

6. Who Should Make Medical Decisions For You If You Are Incapacitated. Your health care surrogate is appointed as your agent to make health care decisions for you. Make sure the individual(s) selected are capable of performing their responsibilities on your behalf. There is no restriction on who you can select to make these decisions on your behalf.

7. Who Should Take Care Of Your Financial Affairs If You Are Unable.  Your power of attorney appoints the individual(s) to act as your agent with regard to financial matters during your lifetime. In Florida, a power of attorney is in effect immediately after execution, even if you are not incapacitated. There is no restriction on who you can select to make these decisions on your behalf.

FLORIDA CLOSER TO GUARDIANSHIP REFORM

 
Guardianship reform has been an issue growing in prominence due to the many abuses found in systems across the nation. Florida is in the process the guardianship reform movement and a step in the right direction as the state Senate is set to have a final vote on a bill that would create a team to oversee the state guardianship system. Scandals have rocked Florida in recent years including one case where a judge was appointing his wife who would then initiate lawsuits on behalf of the ward which family members saw as unnecessary and intended as a vehicle to increase the fees paid to the supposed protector. However, this is not the first attempt at reformation after a bill was passed in recent years which supposedly ended judicial favoritism towards specific Florida guardians although advocacy groups argue that it did little to deter judges. Let us hope this new bill does the trick since guardianship abuse undermines public confidence in the legal system and harms the most vulnerable members of our society.
 
A link to the bill can be found at:

2015 YEAR END TAX PLANNING CONSIDERATIONS

2015 Year-End Planning Moves:

·  Realize losses on stock while substantially preserving your investment position. There are several ways this can be done. For example, you can sell the original holding, then buy back the same securities at least 31 days later.
·  Postpone income until 2016 and accelerate deductions into 2015 to lower your 2015 tax bill. This strategy may enable you to claim larger deductions, credits, and other tax breaks for 2015 that are phased out over varying levels of adjusted gross income (AGI). These include child tax credits, higher education tax credits, and deductions for student loan interest. Postponing income also is desirable for those taxpayers who anticipate being in a lower tax bracket next year due to changed financial circumstances.
· Consider converting traditional-IRA money invested in beaten-down stocks (or mutual funds) into a Roth IRA if eligible to do so. Keep in mind, however, that such a conversion will increase your AGI for 2015.
·  If you converted assets in a traditional IRA to a Roth IRA earlier in the year and the assets in the Roth IRA account declined in value, you could wind up paying a higher tax than is necessary if you leave things as is. You can back out of the transaction by recharacterizing the conversion, transferring the converted amount (plus earnings, or minus losses) from the Roth IRA back to a traditional IRA via a trustee-to-trustee transfer.
·  Use a credit card to pay deductible expenses before the end of the year. This will increase your 2015 deductions, even if you don’t pay the bill until 2016.
·  If you expect to owe state and federal income taxes when you file your return next year, ask your employer to increase withholding of state and federal taxes (or pay estimated tax payments of state and federal taxes) before year-end to pull the deduction of those taxes into 2015 if you won’t be subject to the alternative minimum tax (AMT) in 2015.
·  Estimate the effect of any year-end planning moves on the AMT for 2015, keeping in mind that many tax breaks allowed for purposes of calculating regular taxes are disallowed for AMT purposes. These include the deduction for state property taxes on your residence, state income taxes, miscellaneous itemized deductions, and personal exemption deductions. Other deductions, such as for medical expenses of a taxpayer who is at least age 65 or whose spouse is at least 65 as of the close of the tax year, are calculated in a more restrictive way for AMT purposes than for regular tax purposes. If you are subject to the AMT for 2015, or suspect you might be, these types of deductions should not be accelerated.
· You may be able to save taxes by applying a bunching strategy to “miscellaneous” itemized deductions, medical expenses, and other itemized deductions.
· Take required minimum distributions (RMDs) from your IRA or 401(k) plan (or other employer-sponsored retirement plan). RMDs from IRAs must begin by April 1 of the year following the year you reach age 70- 1/2. That start date also applies to company plans, but non-5% company owners who continue working may defer RMDs until April 1 following the year they retire. Failure to take a required withdrawal can result in a penalty of 50% of the amount of the RMD not withdrawn. If you turned age 70- 1/2 in 2015, you can delay the first required distribution to 2016, but if you do, you will have to take a double distribution in 2016, the amount required for 2015 plus the amount required for 2016. Think twice before delaying 2015 distributions to 2016, as bunching income into 2016 might push you into a higher tax bracket or have a detrimental impact on various income tax deductions that are reduced at higher income levels. However, it could be beneficial to take both distributions in 2016 if you will be in a substantially lower bracket that year.
· Increase the amount you set aside for next year in your employer’s health flexible spending account (FSA) if you set aside too little for this year.
·  Make gifts sheltered by the annual gift tax exclusion before the end of the year and thereby save gift and estate taxes. The exclusion applies to gifts of up to $14,000 made in 2015 to each of an unlimited number of individuals. You can’t carry over unused exclusions from one year to the next.

Tax Factors for Consideration:

Higher-income earners have unique concerns to address when mapping out year-end plans. They must be wary of the 3.8% surtax on certain unearned income and the additional 0.9% Medicare (hospital insurance, or HI) tax. The latter tax applies to individuals for whom the sum of their wages received with respect to employment and their self-employment income is in excess of an unindexed threshold amount ($250,000 for joint filers, $125,000 for married couples filing separately, and $200,000 in any other case).  The surtax is 3.8% of the lesser of: (1) net investment income (NII), or (2) the excess of modified adjusted gross income (MAGI) over an unindexed threshold amount ($250,000 for joint filers or surviving spouses, $125,000 for a married individual filing a separate return, and $200,000 in any other case). As year-end nears, a taxpayer’s approach to minimizing or eliminating the 3.8% surtax will depend on estimated MAGI and NII for the year. Some taxpayers should consider ways to minimize (e.g., through deferral) additional NII for the balance of the year; others should try to see if they can reduce MAGI other than NII, and still other individuals will need to consider ways to minimize both NII and other types of MAGI.

The 0.9% additional Medicare tax also may require year-end actions. Employers must withhold the additional Medicare tax from wages in excess of $200,000 regardless of filing status or other income. Self-employed persons must take it into account in figuring estimated tax. There could be situations where an employee may need to have more withheld toward the end of the year to cover the tax. For example, if an individual earns $200,000 from one employer during the first half of the year and a like amount from another employer during the balance of the year, he would owe the additional Medicare tax, but there would be no withholding by either employer for the additional Medicare tax since wages from each employer don’t exceed $200,000. Also, in determining whether they may need to make adjustments to avoid a penalty for underpayment of estimated tax, individuals also should be mindful that the additional Medicare tax may be overwithheld. This could occur, for example, where only one of two married spouses works and reaches the threshold for the employer to withhold, but the couple’s combined income won’t be high enough to actually cause the tax to be owed.

Tax Breaks Not Extended, as of Yet:

Some of these tax breaks ultimately may be retroactively reinstated and extended, as they were last year, but Congress may not decide the fate of these tax breaks until the very end of 2015 (or later). These breaks include, for individuals: the option to deduct state and local sales and use taxes instead of state and local income taxes; the above-the-line-deduction for qualified higher education expenses; tax-free IRA distributions for charitable purposes by those age 70- 1/2 or older; and the exclusion for up to $2 million of mortgage debt forgiveness on a principal residence.

FLORIDA GUARDIAN DENIED FEE FROM MEDICAID RECIPIENT'S ASSETS

On November 25, 2015, the Second District Court of Appeals, in the case of Lutheran Services Florida, Inc. v. Department of Children and Families (Fl. Ct. App., 2nd Dist., No. 2D13-5840, Nov. 25, 2015) held that the guardian of a Medicaid recipient may not deduct a guardianship fee from the recipient's income because the fee is not medically necessary. The case originated from a court order which authorized a professional guardian to deduct a monthly sum from an indigent and incapacitated individuals income and patient responsibility amount. The professional guardian then petitioned the Department of Children and Families (DCF) to deduct the monthly guardianship fee on their behalf, which they denied to do. DCF took the position that the fee could not be deducted from a Medicaid recipient's income because it is not "medically necessary" under state law. A hearing officer upheld the determination, noting that state law defines medically necessary as services provided in accordance with generally accepted standards of medical practice and reviewed by a physician. The 2nd DCA affirmed the decision on appeal.

SELECTING THE RIGHT TRUSTEE FOR YOUR TRUST

Upon creation of a Revocable or Irrevocable Trust (a legal arrangement through which a trustee holds legal title to property for another person), you will need to appoint an individual or trust company to serve as its trustee (person or entity in charge). With a Revocable Trust, that individual is typically the creator of the Trust. With an Irrevocable Trust, this can be either an individual or individual (but not the creator). Regardless of the type of Trust created, it is important to appoint an individual or institution to serve if the named individual or institution is unable to continuing serving for the Trust. Selection of the right trustee can be crucial to making sure the intent of the Trust is fulfilled and your goals accomplished. Their responsibilities include making proper investments, paying bills, keeping accounts, and preparing tax returns. The main consideration when selecting a trustee is whether they are trustworthy and can manage the assets in the beneficiary's best interest. Regardless of whom may be selected, it is important to revaluate the selection every few years to ensure they are the right individual or entity for the job and still capable of fulfilling their obligations to the beneficiaries. The right individual or institution today may not be right tomorrow.