(858) 432-3923 tara@cheeverlaw.com
Think Your Homeowners Insurance Offers Protection From Natural DisastersThink Again

Think Your Homeowners Insurance Offers Protection From Natural DisastersThink Again

From wildfires in California and hurricanes in Texas to floods in West Virginia, hardly any area of the U.S. is immune from the threat of natural disasters. And according to a report released by the government regarding climate change and its impact on Black Friday, it’s only going to get worse. Despite this threat, many homeowners still lack the insurance needed to protect their property and possessions from such catastrophes.

In fact, roughly two-thirds of all homeowners are underinsured for natural disasters, according to United Policyholders (UP), a nonprofit organization for insurance consumers. One contributing factor to this lack of coverage is the mistaken belief that homeowners insurance offers protection from such calamities. In reality, natural disasters are typically not covered by standard homeowners policies.

In order to obtain protection, you often need to purchase separate policies that cover specific types of natural disasters. Here, I’ve highlighted the types of insurance coverage available and how the policies work.

Wildfires

While homeowners insurance typically doesn’t pay for damage caused by natural disasters, most policies do protect against fire damage, including wildfires like the recent ones in California. The only instances of fire damage homeowners policies won’t cover are fires caused by arson or when fire destroys a home that’s been vacant for at least 30 days when the fire occurred.

That said, not all homeowners policies are created equal, so you should check your policy to make certain that it includes enough coverage to do three things: replace your home’s structure, replace your belongings, and cover your living expenses while your home is being repaired, known as “loss of use” coverage.

In certain areas that are extremely high-risk for wildfires, it can be be difficult to find a company to insure your home. In such cases, you should look into state-sponsored fire insurance like California’s FAIR Plan.

Earthquakes

Unlike fires, earthquakes are typically not covered by homeowners policies. To protect your home against quakes, you’ll need a freestanding earthquake insurance policy. And contrary to popular belief, Californians aren’t the only ones who should be worried.

Most parts of the U.S. are at some risk for earthquakes. Indeed, the U.S. Geological Survey found that between the 20 years from 1975 to 1995 earthquakes occured in every state except Florida, Iowa, North Dakota, and Wisconsin. To gauge the risk in your area, consult with the Federal Emergency Management Agency’s (FEMA) earthquake hazard map.

While earthquake insurance is available practically everywhere, policies in high-risk areas typically come with high deductibles, ranging from 10% to 15% of the home’s value. What’s more, though earthquake insurance covers damage directly caused by the quake, some related damages such as flooding are likely not covered. Carefully review your policy to see what’s included—and what’s not.

Floods

Though homeowners insurance generally covers flood damage caused by faulty infrastructure like leaky pipes, nearly all policies exclude flood damage caused by natural events like heavy rain, overflowing rivers, and hurricanes. You’ll need stand-alone flood insurance to protect your property and possessions from these events.

The threat from flooding is so widespread, Congress created the National Flood Insurance Program (NFIP) in 1968, which allows homeowners in flood-prone areas to purchase flood insurance backed by the U.S. government. In some coastal regions, especially where hurricanes are prevalent, you might even be required to buy flood insurance. To determine the risk for your property, consult FEMA’s Flood Map service center.

Even if you live in a location where flood insurance isn’t required, you may want to consider buying it anyway. Indeed, 90% of all natural disasters include some form of flooding, and more than 20% of flood-damage claims come from properties outside high-risk flood zones.

Hurricanes and Tornadoes

Most homeowners policies do offer coverage for wind-related damage. However, it depends on the type of storm that caused the damage. For example, wind damage from tornadoes and even some tropical storms is typically covered, but wind damage from hurricanes generally requires a separate windstorm policy, or in some cases, a hurricane rider.

Because damage from hurricanes is often measured in the billions, these windstorm policies usually have higher deductibles that are often based on a percentage of your home’s value, instead of a fixed dollar amount. Some policies also come with a cap on coverage, so be sure to review exactly what type and amount of coverage your policy offers.

Of course, high winds aren’t the only threat posed by hurricanes. Such tropical systems can also cause severe flooding, which is frequently the storm’s most damaging element. But as mentioned before, whether it’s caused by a hurricane or a tornado, flooding is not generally covered by homeowners insurance. For flood protection, you’ll need to purchase a separate flood insurance policy through the NFIP.

Get the disaster coverage you need today
To make certain you have the necessary insurance coverage to protect your home and belongings from natural disasters, consult with me as your Trusted Advisor.  I’ll help you evaluate the specific risks for your area, assess the value of your assets, and support you to determine the optimal levels of insurance you should have in place and introduce you to a reputable and knowledgeable Insurance broker.

Don’t Forget to Include Your Digital Assets In Your Estate Plan—Part 2

Don’t Forget to Include Your Digital Assets In Your Estate Plan—Part 2

In the first part of this series, I discussed the importance of including your digital assets in your estate plan. Here, I’ll talk about the best ways to get started with this process. 

Today, estate planning encompasses not just tangible property like finances and real estate, but also digital assets like cryptocurrency, blogs, and social media. With so much of our lives now lived online, it’s vital you put the proper estate planning provisions in place to ensure your digital assets are effectively protected and passed on in the event of your incapacity or death.

However, because many types of online assets have only been in existence for a handful of years, there are very few laws governing how they should be dealt with through estate planning. And due to their virtual and often anonymous nature, just locating and accessing some of these assets can be extremely difficult for those you leave behind.

Given these unique challenges, in the first part of this series, I discussed some of the most common types of digital assets and the legal landscape surrounding them. Here, I offer some practical tips to ensure all of your digital property is effectively incorporated into your estate plan.

Best practices for including digital assets in your estate plan
If you’re like most people, you probably own numerous digital assets, some of which likely have significant monetary and/or sentimental value. Other types of online property may have no value for anyone other than yourself or be something you’d prefer your family and friends not access or inherit.

To ensure all of your digital assets are accounted for, managed, and passed on in exactly the way you want, you should take the following steps:

  1. Create an inventory: Start by creating a list of all your digital assets, including the related login information and passwords. Password management apps such as LastPass can help simplify this effort. From there, store the list in a secure location, and provide detailed instructions to your fiduciary about how to access it and get into the accounts. Just like money you’ve hidden in a safe, if no one knows where it is or how to unlock it, these assets will likely be lost forever.
  2. Back up assets stored in the cloud: If any of your digital assets are stored in the cloud, back them up to a computer and/or other physical storage device on a regular basis, so fiduciaries and family members can access them with fewer obstacles. That said, don’t forget to also include the location and login info of these cloud-based assets in case you don’t have a chance—or forget—to back them all up.
  3. Add your digital assets to your estate plan: Include specific instructions in your Will, Trust, and/or other Estate Planning documents about the heir(s) you want to inherit each asset, along with how you’d like the accounts managed in the future, if that’s an option. Some assets might be of no value to your family or be something you don’t want them to access, so you should specify that those accounts and files be closed and/or deleted by your fiduciary.

    Do NOT provide the specific account info, logins, or passwords in your estate planning documents, which can be easily read by others. This is especially true for Wills, which become public record upon your death. Keep this information stored in a secure place, and let your fiduciary know how to find and use it. Consider a service such as Directive Communication Systems to support you here.

    It’s also a good idea to include terms in your estate plan allowing your fiduciary to hire an IT consultant if necessary. This will help him or her manage and troubleshoot any technical challenges that come up, particularly with highly complex and/or encrypted assets.

  4. Limit access: In your plan, you should also include instructions for your fiduciary about what level of access you want him or her to have. For example, do you want your executor to be able to read all of your emails and social media posts before deleting them or passing them on to your heirs? If there are any assets you want to limit access to, I can help you include the necessary terms in your plan to ensure your privacy is honored.
  5. Include relevant hardware: Don’t forget that your estate plan should also include provisions for any physical devices—smartphones, computers, tablets, flash drives—on which the digital assets are stored. Having quick access to this equipment will make it much easier for your fiduciary to access, manage, and transfer the online assets. Since the data can be wiped clean, you can even leave these devices to someone other than the person who inherits the digital property stored on it.
  6. Check service providers’ access-authorization tools: Carefully review the terms and conditions for your online accounts. Some service providers like Google, Facebook, and Instagram have tools in place that allow you to easily designate access to others in the event of your death. If such a function is offered, use it to document who you want to have access to these accounts.

    Just make certain the people you named to inherit your digital assets using the providers’ access-authorization tools match those you’ve named in your estate plan. If not, the provider will probably give priority access to the person named with its tool, not your estate plan.

Truly comprehensive estate planning

With technology rapidly evolving, it’s critical that your estate planning strategies evolve at the same time to adapt to this changing environment. With me as your Estate Planning Attorney I can help you update your plan to include not only your physical wealth and property, but all of your digital assets, too.

I know how valuable online property can be, and unlike many lawyers, I have the experience and skills to ensure these assets are preserved and passed on seamlessly.  Moreover, I can do this while respecting and protecting your privacy rights. Contact me at (858) 432-3923 today to get started.

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Don’t Forget to Include Your Digital Assets In Your Estate Plan—Part 1

Don’t Forget to Include Your Digital Assets In Your Estate Plan—Part 1

If you’ve created an estate plan, it likely includes traditional wealth and assets like finances, real estate, personal property, and family heirlooms. But unless your plan also includes your digital assets, there’s a good chance this online property will be lost forever following your death or incapacity.

What’s more, even if these assets are included in your plan, unless your executor and/or trustee knows the accounts exist and how to access them, you risk burdening your family and friends with the often lengthy and expensive process of locating and accessing them. And depending on the terms of service governing your online accounts, your heirs may not be able to inherit some types of digital assets at all.

With our lives increasingly being lived online, our digital assets can be quite extensive and extremely valuable. Given this, it’s more important than ever that your estate plan includes detailed provisions to protect and pass on such property in the event of your incapacity or death.

Types of digital assets
Digital assets generally fall into two categories: those with financial value and those with sentimental value.

Those with financial value typically include cryptocurrency like Bitcoin, online payment accounts like PayPal, domain names, websites and blogs generating revenue, as well as other works like photos, videos, music, and writing that generate royalties. Such assets have real financial worth for your heirs, not only in the immediate aftermath of your death or incapacity, but potentially for years to come.

Digital assets with sentimental value include email accounts, photos, video, music, publications, social media accounts, apps, and websites or blogs with no revenue potential. While this type of property typically won’t be of any monetary value, it can offer incredible sentimental value and comfort for your family when you’re no longer around.

Owned vs licensed

Though you might not know it, you don’t actually own many of your digital assets at all. For example, you do own certain assets like cryptocurrency and PayPal accounts, so you can transfer ownership of these in a Will or Trust. But when you purchase some digital property, such as Kindle e-books and iTunes music files, all you really own is a license to use it. And in many cases, that license is for your personal use only and is non-transferable.

Whether or not you can transfer such licensed property depends almost entirely on the account’s Terms of Service Agreements (TOSA) to which you agreed (or more likely, simply clicked a box without reading) upon opening the account. While many TOSA restrict access to accounts only to the original user, some allow access by heirs or executors in certain situations, while others say nothing about transferability.

Carefully review the TOSA of your online accounts to see whether you own the asset itself or just a license to use it. If the TOSA states the asset is licensed, not owned, and offers no method for transferring your license, you’ll likely have no way to pass the asset to anyone else, even if it’s included in your estate plan.

To make matters more complicated, though you heirs may be able to access your digital assets if you’ve provided them with your account login and passwords, doing so may actually violate the TOSA and/or privacy laws. In order to legally access such accounts, your heirs will have to prove they have the right to access it, a process which up until recently was a major legal grey area.

Fortunately, a growing number of states are adopting a law that helps clarify how your digital assets can be accessed in the event if your death or incapacity.

The Revised Uniform Fiduciary Access to Digital Assets Act

The Revised Uniform Fiduciary Access to Digital Assets Act, which has been adopted in 37 states so far, lays out guidelines under which fiduciaries, such as executors and trustees, can access these digital accounts.  California adopted the Revised Uniform Fiduciary Access to Digital Access Act on September 24, 2016. The Act allows you to grant a fiduciary access to your digital accounts upon your death or incapacity, either by opting them in with an online tool furnished by the service provider or through your estate plan.

The Act offers three-tiers for prioritizing access. The first tier gives priority to the online provider’s access-authorization tool for handling accounts of a decedent. For example, Google’s “inactive account manager” tool lets you choose who can access and manage your account after you pass away. Facebook has a similar tool that allows you to designate someone as a “legacy contact” to manage your personal profile.

If an online tool is not available or if the decedent did not use it, the law’s second tier gives priority to directions given by the decedent in a will, trust, power of attorney, or other means. If no such instructions are provided, then the third tier stipulates the provider’s TOSA will govern access.

As long as you use the provider’s online tool—if one is available—and/or include instructions in your estate plan, your digital assets should be accessible per your wishes in states that have adopted the law. However, all 50 states are expected to adopt the Act soon, so even if the law isn’t on the books in your state, you should take it into serious consideration when planning.

Look to us for guidance
In the second part of this series, we’ll offer practical steps for preserving and passing on your digital assets in your estate plan. Meanwhile, contact me at (858) 432-3923 if you have any questions about your online property or how to include it in your estate plan.

Next week, we’ll continue with part two in this series, discussing the best ways to protect and preserve your digital assets through estate planning.

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When Something is NOT Better Than Nothing—Part 2

When Something is NOT Better Than Nothing—Part 2

Last week, I shared the first part of this series discussing the hidden dangers of do-it-yourself estate planning. In part two, I cover one of the greatest risks posed by DIY documents.

You might think you can save time and money by using do-it-yourself estate planning documents you find online. You’re probably anxious to check estate planning off your life’s to-do list, and these forms offer a seemingly quick and inexpensive way to handle this important task.

You may even realize such generic plans aren’t as high quality as those drafted with an attorney’s help, but with your hectic schedule, a DIY will is just way more convenient. Besides, having “something” in place is better than having nothing, right?

Unfortunately, this is one case in which SOMETHING is not better than nothing.

Indeed, the false sense of security offered by DIY wills can lead you to believe you have things covered and no longer have to worry about estate planning. The reality, however, is that such generic forms could end up costing the loved ones you leave behind more money and heartache than if you’d never gotten around to doing anything at all.

In this way, DIY wills and other legal documents are among the most dangerous choices you can make for the people you love. In part one, I discussed the many ways DIY plans can fail to keep your family out of court and out of conflict, and here I’ll explain how these generic documents can leave the people you love most of all—your children—at risk.

The people you love most
It’s probably distressing to think that by using a DIY will you could force your loved ones into court or conflict in the event of your incapacity or death. And if you’re like most parents, it’s probably downright unimaginable to contemplate your children’s care falling into the wrong hands.

Yet that’s exactly what could happen if you rely on free or low-cost fill-in-the-blank wills found online, or even if you hire a lawyer who isn’t equipped or trained to plan for the needs of parents with minor children.

Naming and legally documenting guardians entails a number of complexities that most people aren’t aware of. Even lawyers with decades of experience frequently make at least one of six common errors when naming long-term legal guardians.

If Wills drafted with the help of a professional are likely to leave your children at risk, the chances that you’ll get things right on your own are pretty much zero.

What could go wrong?
If your DIY will names legal guardians for your kids in the event of your death, that’s great. But does it include back-ups? And if you named a couple to serve, how is that handled? Do you still want one of them if the other is unavailable due to illness, injury, death, or divorce?

And what happens if you become incapacitated and are unable to care for your children? You might assume the guardians named in the DIY will would automatically get custody, but your will isn’t even operative in the event of your incapacity.

Or perhaps the guardians you named in the will live far from your home, so it would take them a few days to get there. If you haven’t made legally-binding arrangements for the immediate care of your children, it’s highly likely that they will be placed with child protective services until those guardians arrive.

Even if you name family who live nearby as guardians, your kids are still at risk because it’s possible they might not be immediately available if and when needed.

And who even knows where your will is or how to access it?

There are simply far too many potential errors you can make when you go it alone.

The Kids Protection Plan®

To ensure your children are never raised by someone you don’t trust or taken into the custody of strangers (even temporarily), consider creating a comprehensive Kids Protection Plan®, which only a select few Estate Planning Attorneys are trained and licensed to counsel you through and prepare.

Get the right “something”
Protecting your family and assets in the event of your death or incapacity is such a monumentally important task you should never consider winging it with a DIY plan. No matter how busy you are or how little wealth you own, the potentially disastrous consequences inherent in such plans are simply too great—often they’re not even worth the paper they’re printed on.

Plus, proper estate planning doesn’t have to be super expensive, stressful, or time consuming. Working with me as your Estate Planning Attorney, planning will not only be as stress-free as possible, but I offer options for all budgets and asset values.

What’s more, many of my clients actually find the process highly rewarding. My proprietary systems provide the type of peace of mind that comes from knowing that you’ve not only checked estate planning off your to-do list, but you’ve done it using the most forethought, experience, and knowledge available.

Act now
If you’ve yet to do any planning, contact me to schedule a Family Wealth Planning Session. This evaluation will allow us to determine if a simple will or some other strategy, such as a living trust, is your best option.

If you’ve already created a plan—whether it’s a DIY job or one created with another lawyer’s help—contact me at (858) 432-3923 to schedule an Estate Plan Review and Check-Up. I’ll ensure your plan is not only properly drafted and updated, but that it has all of the protections in place to prevent your children from ever being placed in the care of strangers or anyone you’d never want raising them.

No matter what you do, make certain you have a “something” that’s actually better than nothing. Contact me as your Estate Planning Attorney today, and I’ll provide you with that level of confidence—and so much more.

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When Something is NOT Better Than Nothing—Part 1

When Something is NOT Better Than Nothing—Part 1

Go online, and you’ll find tons of websites offering do-it-yourself estate planning documents. Such forms are typically quite inexpensive. Simple Wills, for example, are often priced under $50, and you can complete and print them out in a matter of minutes.

In our uber-busy lives and DIY culture, it’s no surprise that this kind of thing might seem like a good deal. You know estate planning is important, and even though you may not be getting the highest quality plan, such documents can make you feel better for having checked this item off your life’s lengthy to-do list.

But this is one case in which SOMETHING is not better than nothing, and here’s why:

A false sense of security
Creating a DIY Will online can lead you to believe that you no longer have to worry about estate planning. You got it done, right?

Except that you didn’t. In fact, you thought you “got it done” because you went online, printed a form, and had it notarized, but you didn’t bother to investigate what would actually happen with that document in place in the event of your incapacity or when you die.

In the end, what seemed like a bargain could end up costing your family more money and heartache than if you’d never gotten around to doing anything at all.

Creating a DIY Will can lead you to believe that you no longer have to worry about estate planning. In the back of your mind, you might even promise that one day you’ll revisit and update your plan with something better, but chances are, having done “something” will lead you to put this off until it’s too late.

By doing nothing, on the other hand, at least you won’t be lulled into a false sense of security, and estate planning will still be at the top of your life’s to-do list, as it should be until you handle it properly.

Not just about filling out forms
Unfortunately, because many people don’t understand that estate planning entails much more than just filling out legal documents, they end up making serious mistakes with DIY plans. Worst of all, these mistakes are only discovered when you become incapacitated or die, and it’s too late. The people left to deal with your mistakes are often the very ones you were trying to do right by.

The primary purpose of Wills and other estate planning tools is to keep your family out of court and out of conflict in the event of your death or incapacity. With the growing popularity of DIY Wills, tens of thousands of families (and millions more to come) have learned the hard way that trying to handle estate planning alone can not only fail to fulfill this purpose, it can make the court cases and conflicts far worse and more expensive.

The hidden dangers of DIY Wills
From the specific state you live in and the wording of the document to the required formalities for how it must be signed and witnessed, there are numerous potential dangers involved with DIY Wills and other estate planning documents. Estate planning is most definitely not a one-size-fits-all deal. Even if you think you have a simple situation, that’s almost never the case.

The following scenarios are just a few of the most common complications that can result from attempting to go it alone with a DIY Will:

  • Improper execution: For a Will to be valid, it must be executed following strict legal procedures. Such procedural requirements are designed to prevent foul play and vary by state. For example, many states require that you and every witness to your Will must sign it in the presence of one another. If your DIY Will doesn’t mention that or you don’t read the fine print and fail to follow this procedure, it can be worthless.
  • Court challenges: Before the assets covered in a Will can be transferred to your heirs, the Will must go through the court process called probate. During probate, creditors, heirs, and other interested parties have the opportunity to contest your Will or make claims against your estate. Though Wills created with an attorney’s guidance can also be contested, DIY Wills are not only far more likely to be challenged, but the chances of those challenges being successful are much greater than if you have an attorney-drafted Will.
  • Thinking a Will is enough: It is almost never the case that a Will alone is sufficient to handle all of your legal affairs. In the event of your incapacity, you would also need a health care directive and/or a living Will plus a durable financial power of attorney. In the event of your death, a Will does nothing to keep your loved one’s out of court. And if you have minor children, having a Will alone could leave your kids’ at risk of being taken out of your home and into the care of strangers, at least temporarily.

In many ways, DIY Will planning is the worst choice you can make for the people you love because you think you’ve got it covered, when you most certainly do not.

Next week, I’ll continue with Part Two in this series on the hidden dangers of DIY estate planning.

If you’ve yet to do any estate planning at all, have DIY documents you aren’t sure about, or have a plan created with another lawyer’s help that hasn’t been updated or reviewed in more than a few years, meet with me, a knowledgeable and experienced Estate Planning Attorney.  Take action to ensure that your family will be kept out of court and out of conflict if something should happen to you. Contact me at (858) 432-3923 today to learn more.

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5 Reasons to Protect Your Retirement Accounts Now

5 Reasons to Protect Your Retirement Accounts Now

During your lifetime, your retirement account has good asset protection, but as soon as you pass that account to a loved one, that protection evaporates. This means one lawsuit and POOF! Your life long, hard earned savings could be gone. Your heirs could be left penniless.

Fortunately, there is a solution to this problem. A special trust called a “Standalone Retirement Trust” (SRT) can protect inherited retirement accounts from your beneficiaries’ creditors.

When your spouse, child, or other loved one inherits your retirement account, their creditors have the power to seize it and take it as their own.

If you’re like most people, you’re thinking of protecting your retirement account so your family can benefit – rather than the creditors. Here are 5 reasons to protect your retirement account:

  1. You have substantial combined retirement plans. Spouses can use an SRT to shield one or the other from creditors.
  2. You believe your beneficiary may be “less than frugal” with the funds. Anyone concerned about how their beneficiary will spend the inheritance should absolutely consider an SRT as you can provide oversight and instruction on how much they receive – and when.
  3. You are concerned about lawsuits, divorce, or other possible legal actions. If your beneficiary is part of a lawsuit, is about to divorce, file for bankruptcy, or is involved in any type of legal action, an SRT can protect the inherited retirement accounts from those creditors.
  4. You have beneficiaries who receive assistance. If one of your beneficiaries receives, or may qualify for, a need-based governmental assistance program, it’s important to know that inheriting from an IRA may cause them to lose those benefits. An SRT can be drafted to avoid disqualification.
  5. You are remarried with children from a previous marriage. If you are remarried and have children from a previous marriage, your spouse could intentionally (or even unintentionally) disinherit your children. You can avoid this by naming the spouse as a lifetime beneficiary of the trust and then having the remainder pass onto your children from a previous marriage after your spouse’s death.

You’ve Worked Hard To Protect & Grow Your Wealth – Let’s Keep It That Way

You worked hard to save the money in those retirement accounts and your beneficiaries’ creditors shouldn’t be able take it from them. Give me a call at (858) 432-3923 and let me show you how an SRT can help you protect your assets as well as provide tax deferred growth.

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Estate Planning Considerations for Benefits Open Enrollment

Estate Planning Considerations for Benefits Open Enrollment

The fall, generally late-October or early-November, is the time when employers send out summaries of employee benefits offered by the company and give employees the option to enroll in these benefits. These can generally include retirement plan options, health care, dental, vision, short and/or long-term disability, and life insurance coverage. Your employer may pay 100 percent of the premiums, split the costs with you, or you may have to pay all of the premiums yourself. Below are several considerations you should keep in mind once open enrollment begins.

Benefits Explained

When considering any retirement plan offered through your employer such as a 401(k), 403(b), or 457 plan, you will need to consider: what percentage of income you choose to contribute and whether the contribution must be made pre-tax, after-tax, or to a Roth plan (if available). How much you can contribute, and whether pre- or post-tax, depends on your specific financial circumstances. Remember to also consider any “matching” contributions your employer may make since these contributions can help improve your overall retirement savings.

Healthcare benefits may include the ability to enroll in a Health Savings Account (HSA), in addition to enrolling in the usual healthcare, vision, and/or dental coverage. HSAs allow plan participants to set funds aside, tax-free, for health care costs.

Employer-provided life and disability insurance coverage will provide your beneficiary with a stated amount of money if you die while employed by your employer or become disabled. The coverage generally expires when you no longer work for that employer.

Perhaps the most important thing to do during your employer’s open enrollment period is to review the employer-provided benefit package to determine what should remain and what should be changed. If you do not understand the options being provided to you, contact human resources right away for more information.

Beneficiary Designations

While you are reviewing your benefit package, you should consider your beneficiary elections or those who will inherit these assets upon your death or incapacity. A primary beneficiary is the first to inherit. Should he or she pass before you, or with you, assets would then go to any secondary beneficiary you have designated. These are often referred to as contingent beneficiaries.

Even if you have previously enrolled, you must review your beneficiary designations on your employer-provided benefits to ensure they are still how you want them. Benefits that may require a beneficiary designation are life insurance policies, retirement accounts, health savings accounts (HSA), as well as disability insurance.

If there are any new providers for your employer-sponsored benefits, this means that the insurance company has changed. Keep in mind that your previously chosen beneficiaries, and possibly coverage, may not have carried over. It is always better to review these documents, even if you are not planning any changes.

Estate Planning Concerns

If you are contemplating any changes to your beneficiaries, give me a call at (858) 432-3923 so I can ensure your beneficiary designations work as expected with your current estate plan or so I can properly prepare a plan that carries out your ultimate goals for you and your family. Once you have updated your beneficiaries, make sure to obtain written confirmation of this from your employer’s human resources department and share this information with my office. If you have any questions, please feel free to contact me. We’re here to help.

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Your 2018 Taxes – Get Started Now

Your 2018 Taxes – Get Started Now

While we are not yet at the end of the year, even though it is fast approaching, now is a great time to take a moment and start your year-end tax planning for 2018. It particularly necessary this tax year because of the changes to the tax law that became effective in 2018. As a result of the significant changes in the law, your taxes may look different this year, so you should allow for some extra time in the preparation. Getting started early is even more essential if you are a business owner, have moved to another state, or plan to make charitable contributions before the year ends.

Things to Consider

Now is the best opportunity to make use of tax strategies to take advantage of tax-deferred growth opportunities, charitable-giving opportunities, as well as tax-advantaged investments among others. During this tax planning process, you will also want to make sure you maximize deductions and credits ahead of the busy tax season. As you consider your year-end options, make sure to sit down with your attorney and financial advisors to review your investments to ensure they still align with your goals, the economic landscape, and the current tax law. This conversation can help you identify where adjustments may be necessary for the future.

What You Need

Know that the “traditional” year-end planning still applies to your 2018 taxes. Make sure you are harvesting losses to offset your gains, are contributing the appropriate amount to your Individual Retirement Account (IRA) and/or Health Savings (HSA) accounts, and have taken the necessary required minimum distribution from your IRA (if this applies to you). Other things to consider is fully funding employer-sponsored retirement plan contributions such as 401(k, 403(b) or 457 plans before the end of the year. The same is true for college savings plans, such as 529 plans. You may even want to consider converting a traditional IRA to a Roth IRA.

Beyond these important points, also make sure to start gathering the necessary documentation you may need for any deductions that you are claiming. These may include copies of statements or receipts regarding your property taxes, medical expenses, dental expenses, child care expenses, education expenses, moving expenses, and heating/cooling expenses. For business owners, the new 199A deduction for business income will have additional paperwork requirements. It’s best to work with your bookkeeper and accountant at gathering those records now, rather than waiting until the hectic tax season.

Seek Professional Advice

With changes to the U.S. tax code now in effect, it is especially important to make the right decisions when it comes to your year-end financial moves. A skilled tax attorney or financial advisor can help explain your options under the law and provide you with guidance so that you can make the best decisions for you, your family, and your future. If you have any questions, feel free to contact me at (858) 432-3923.  I look forward to being of service to you.

 

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The Cost of Misclassifying Employees as Independent Contractors

The Cost of Misclassifying Employees as Independent Contractors

The rise of the “gig economy” has led to a dramatic increase in the number of businesses using independent contractors (IC) instead of traditional W2 employees. At the same time, there’s been a sharp rise in the number of companies being penalized and/or sued for misclassifying workers as ICs.

Indeed, within the past 10 years, there’s been heightened scrutiny from regulatory agencies at all levels and numerous lawsuits filed over the issue. These lawsuits have forced companies like FedEx, Uber, and Citigroup to pay out hundreds of millions of dollars to those they’ve misclassified.

State-level studies show that between 10 and 20 percent of employers misclassify at least one employee as an IC, and you can be penalized regardless of whether or not you did it intentionally. Given this, you should carefully scrutinize all of your workers and have the proper contracts in place to shield your business. Fortunately, with legal guidance from me, you can easily avoid these risks and stay totally compliant.

However, since you can save an estimated 20 to 40 percent on labor costs by not contributing to a worker’s Social Security, Medicare, and other benefits, you may be tempted to take your chances and pass off some of your employees as ICs. But in doing so, you’re risking serious consequences, which have the potential to destroy your business.

Getting busted
It’s easy for the IRS to be alerted to a potential misclassification. A worker can file an SS-8 form, alleging you’re in violation of the law, or he or she might simply receive a 1099 and W-2 in the same year. Beyond that, you can also get caught if a worker tries to claim unemployment or disability, as this results in an audit of your business.

Plus, because there’s no single test to determine a worker’s classification, it can be easy to misclassify a worker by mistake. And regardless of whether or not the misclassification was intentional, if the allegation proves valid, you’re potentially on the hook for paying back taxes, benefits, and numerous fines.

Fines, Back Payments, and Penalties
If you misclassify an employee, you face fines from the U.S. Department of Labor, IRS, and state agencies that can total millions of dollars. Moreover, you can be held responsible for paying back-taxes and interest on employee wages, along with FICA taxes that weren’t originally withheld. Failure to make these payments can result in additional fines.

You can also be held liable for failing to pay overtime and minimum wage under the Federal Fair Labor Standards Act as well as under state laws. Such claims can go back as far as three years if it’s found you knowingly made the misclassification.

If the IRS believes your misclassification was intentional, there’s also the possibility of criminal and civil penalties. Additional penalties and fines can be assessed depending on the severity of your misclassification.

Back benefits and a tarnished reputation
Outside of the fines paid to state and federal agencies, if an employee is misclassified, they’re eligible to claim employee benefits he or she missed out on. These can include healthcare coverage, stock options, 401(k) matches, PTO, and even unpaid break time.

Don’t Take The Chance
’With such severe consequences, it’s simply not worth taking the chance of misclassifying your workers. To this end, you should consult with me to make sure you have all of your bases covered.

Whether you need help reviewing your IC classification practices or would like assistance with creating sound employment contracts, I can be of service to you. Contact my office at (858) 432-3923 to get started.

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I’m Starting a New Business – Should I Use an LLC (Taxed as a Partnership) or an S Corporation?

I’m Starting a New Business – Should I Use an LLC (Taxed as a Partnership) or an S Corporation?

Entrepreneurship has been called the new American dream.  Being self-employed starts with an idea that develops into a business plan, but not without careful financial and legal considerations. Among the decisions that new business owners grapple with is whether to form a limited liability company taxed as a partnership (LLC) or a corporation making an S election (S corp).* There are similarities and differences between LLCs and S corps that business owners should understand before choosing between the two.

Similarities

  • Both entities are created by filing the necessary paperwork with the state. Unlike a sole proprietorship or a general partnership, LLCs and corporations are not recognized under state law until the filing has been made. In addition to state filings required to form the corporation, a special filing on Form 2553 is required for the state-law corporation to elect S status for federal tax purposes.
  • Both entities provide owners with limited liability, meaning the owner’s personal assets are protected from any business creditors’ claims.
  • Assuming an LLC does not make an election to be taxed as a corporation, both LLCs and S corps are pass-through tax entities, allowing business profits and losses to flow through and be reported on the owners’ personal tax returns.

Differences

  • Unlike LLCs, which can have an unlimited number and type of owners, S corps are subject to strict ownership rules. S corps can have no more than 100 shareholders, may not have non-U.S. citizens as shareholders, and cannot be owned by corporations, LLCs, partnerships, or many types of trusts.
  • As opposed to LLCs, which have flexibility in structuring the economic arrangement among its owners, S corps cannot issue classes of stock with different economic rights. However, an S corp can issue voting and non-voting classes of stock.
  • S corps are subject to mandatory requirements as to how the entity is managed. For example, S corps are often required to adopt bylaws, issue stock, hold regular meetings, and maintain meeting minutes within its corporate records. LLCs, on the other hand, are not subject to these types of requirements.
  • Owners of S corps, unlike LLCs, may be able to reduce or eliminate the need to pay self-employment tax. An S corp owner can be treated as an employee and paid a reasonable salary. Employment taxes are withheld from the reasonable salary, while corporate earnings in excess of that salary may be distributed to the owners as unearned income, free of self-employment tax.
  • S corp owners must share profits equally based on their percentage of ownership, while LLC owners have wide latitude to split profits and losses in any manner that is agreed upon.
  • LLCs are generally cheaper to form and operate.
  • S corps generally provide enhanced asset protection, as the structure creates more separation between the owners and the company.

*For the sake of simplicity, this brief overview is based on the assumption that (i) any reference to “LLC” is to an LLC taxed as a partnership, and (ii) any reference to “S corp” is to a corporation taxed as an S corporation. These entities are easily confused, in part because an LLC can make an S election. In that case, you have a state law LLC taxed as an S corporation under federal law. Why would anyone choose to do that? In many cases, it is the business owner’s desire to avoid strict state law corporate compliance coupled with the desire for favorable S corp taxation.

Each business has its own set of circumstance to consider and it is important to obtain competent legal advice when staring your own business.  I am here to discuss how to properly structure, form, and protect your business. Please give me a call at (858) 432-3923 to schedule a consultation.

 

 

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