By A. Thomas DeWoskin
You should read this article if –
- You expect to transfer funds to your descendants through an individual retirement account (IRA); or
- You have inherited an IRA from a relative.
The U.S. Supreme Court has ruled in Clark v. Rameker that the money in an inherited IRA does not qualify for the protection from creditors as provided in the Federal Bankruptcy Code.
The Court concluded that funds in an IRA which was inherited from someone else are not really retirement funds. It gave three reasons for this conclusion. The holder of an inherited IRA:
- Can never invest additional money into the account.
- Is required to withdraw money from the account, no matter how far away retirement may be.
- May withdraw the entire balance of the account at any time – and use it for any purpose – without penalty. Continue reading »
06/27/14 3:06 PM
Bankruptcy, Estate Planning | Comment (0) |
Inherited IRAs – Once Protected – Now Possibly Fair Game for Creditors
By Misty A. Watson
Co-authored by Misty Watson and Samantha Maerz
If you directly inherited an IRA and are facing bankruptcy, these funds are no longer protected from creditors.
In Clark v. Rameker (In re Clark), No. 13-299, the U.S. Supreme Court unanimously ruled that inherited IRAs do not qualify under the “retirement funds” bankruptcy exemption. As a result, non-spouses inheriting an IRA may no longer protect the funds from creditors after filing bankruptcy and spouses have more incentive to “roll over” inherited IRA funds.
Before the Supreme Court decided Clark, there was a split between the 5th and 7th Circuit Courts of Appeals regarding exactly what the “retirement funds” bankruptcy exemption covered. In Chilton v. Moser, the 5th Circuit previously held that inherited IRAs were exempt from the bankruptcy estate because the “retirement funds” exemption never stated that the retirement funds had to be the debtor’s. In Clark v. Rameker, the 7th Circuit disagreed and held that inherited IRAs were not exempt because they were an “opportunity for current consumption, not a fund of retirement savings.” The disagreement stemmed from the interpretation of what “retirement funds” included. Continue reading »
06/23/14 2:38 PM
Bankruptcy, Estate Planning, Trusts | Comment (0) |
Inherited IRAs Not Protected in Bankruptcy
By Misty A. Watson
When you need access to your health care power of attorney and living will, it is often stored in your safe deposit box or safe at home. Personally, I keep my power of attorney on a USB drive on my key chain. This has come in quite handy a few times.
Recently, an app was released called “My Health Care Wishes” at www.myhealthcarewishes.org. The Lite version, called the Personal Advance Directive Manager, allows individuals the ability to store and share their advance care directive plus one additional document with health care providers. Personal & Family Advance Directive Manager is a more robust pro version available for a small fee. It allows “unlimited storage of people profiles and documents.” Continue reading »
05/1/14 1:46 PM
Estate Planning, Special Needs | Comment (0) |
My Health Care Wishes: New App
By J. Clifton Smith
If you’ve ever poked around on the terms and conditions pages of YouTube, Facebook, Twitter or any other website that hosts user-generated content, you may have seen the Digital Millennium Copyright Act (DMCA) mentioned somewhere among the sea of fine print. You may also have seen a notice similar to the following after running a Google search:
DMCA is the federal statute that sets the ground rules for companies who host video, images, sounds, text or other files uploaded by the company’s customers. One of the most well-known and impactful portions of DMCA is the Online Copyright Infringement Liability Limitation Act (OCILLA), enacted as Title II of DMCA. By following a set of rules and procedures specified in the statute, web hosts, social media sites and file sharing services can protect themselves from liability under the Copyright Act for infringing materials uploaded by users.
If you run an online business, it is essential for you to understand the DMCA takedown process and what you need to do to comply with it. Even if your company doesn’t generate revenue online, you may need to become familiar with this process if you discover an unauthorized copy of your intellectual property somewhere on the web, or if your company’s website is targeted with a takedown notice.
Before looking at the takedown procedure itself, it is important to understand that although DMCA gives copyright holders a method to effect the removal of infringing content, the statute actually limits plaintiffs’ ability to file copyright infringement lawsuits. Continue reading »
04/7/14 1:42 PM
Business Law, Digital Media, Intellectual Property | Comments Off |
Digital Millennium Copyright Act Takedown Procedure: An Overview
By Ruth Binger
New regulations require Missouri employers to respond timely to information requests regarding unemployment insurance compensation. The federal Trade Adjustment Assistance Extension Act (“TAAEA” or the “Act”) of 2011 requires, among other things, that states increase employers’ duties regarding unemployment compensation claims. Specifically, the Act provides that states must require employers to respond timely and adequately to Claim Notices, information requests from state agencies relating to unemployment benefit compensation claims. It also requires states to charge the unemployment accounts of employers that repeatedly fail to respond to Claim Notices for unemployment benefits paid to ineligible former employees.
In Missouri, an employee that satisfies all the unemployment insurance benefit eligibility requirements may still be disqualified from receiving benefits for voluntarily quitting without good cause or for being discharged for work misconduct. Once a terminated employee files a claim for unemployment benefits, the Missouri Division of Employment Security (“DES”) mails the former employer a Claim Notice, which requires a response within 10 days. The Claim Notice permits the employer to protest an unemployment benefits claim because the former employee quit voluntarily or was discharged for misconduct. If the claim is not in dispute, the employer must still respond to acknowledge the claim.
Some employers routinely fail to respond to Claim Notices. They may systematically choose not to respond to Claim Notices to avoid becoming involved in a former employee’s benefits appeal. Continue reading »
03/26/14 2:22 PM
Business Law, Employment Law | Comments Off |
Unemployment Insurance in Missouri: Should Employers Respond to Claim Notices?
By Misty A. Watson
The IRS has released Rev. Proc. 2014-18 to provide taxpayers the opportunity to obtain an extension of time to make a portability election under certain circumstances.
Portability allows a surviving spouse to receive the unused estate tax exemption of the predeceased spouse for gift and estate tax purposes. The estate tax exemption for 2014 is $5,340,000.
Under the new revenue procedure, an extension to file for this election will be granted under the following conditions:
(1) The taxpayer is the executor of the estate of a decedent who: Continue reading »
01/28/14 4:49 PM
Estate Planning | Comments Off |
IRS Grants Extension to Elect Portability Under Certain Circumstances
By Laura Gerdes Long
A story concerning the death of a female athlete by suicide, her alleged rape, and the role played by the university she attended in the tragic facts has placed the issue of patient confidentiality squarely in the headlines. The story highlights the care that must be taken to protect a patient’s ability to speak candidly and honestly to his or her medical provider without fear that such information will be divulged to anyone else without the patient’s permission.
The female student athlete had committed suicide in 2011, approximately 16 months after her alleged rape in 2010 by another student athlete at the school. According to an email posted to Mizzou’s website on January 24, 2014, an ESPN producer of “Outside the Lines” wanted to know if University of Missouri officials planned to investigate or notify law enforcement about the alleged rape. Just hours before publishing the story, the ESPN producer asked university officials: Continue reading »
01/27/14 3:53 PM
Healthcare | Comments Off |
Mizzou Story Highlights Tension Between Doctor-Patient Privilege and Protecting the Patient
By David A. Zobel
Missouri has once again amended its credit agreement statute of frauds to limit the ability of borrowers and guarantors to assert claims against lenders and the parties’ written credit agreement based upon oral promises or commitments. Specifically, Senate Bill 100, effective late 2013, extends Missouri’s prohibitions to reach not only oral, but now also unexecuted agreements or commitments to loan money, extend credit, or to forebear from enforcing repayment of a debt if the parties’ credit agreement contains certain disclaimer language as provided in the statute.
Extending the prohibition specifically to unexecuted agreements between the parties became necessary after Mo. Rev. Stat. 432.047 was limited by the Missouri Court of Appeals in its Bailey v. Hawthorne Bank decision. In that case the Court of Appeals broadly construed several different bank documents, including a bank loan summary which was never delivered to the borrower, to find a “credit agreement” as that term is used in the statute. Continue reading »
01/16/14 1:36 PM
Banking and Finance, Litigation | Comments Off |
Missouri Changes Its No-Oral-Credit Agreement Disclaimer Language Requirements for Lenders
By Misty A. Watson
Prior to saying “I do,” those getting married for a second time have many more estate plan considerations to take into account than a first-time marriage.
Children from the previous marriage and spouses often have different interests and expectations about inheritance. If a large difference in age or health status exists between the new spouses, further complications can arise.
Without some type of waiver of spousal rights, a surviving spouse may have a right to elect against the estate plan that is put in place. In Missouri, this means the surviving spouse may receive one-third (1/3) of the estate, even if the will only provides for the children. Continue reading »
12/6/13 8:42 AM
Estate Planning, Family Law, Trusts | Comments Off |
Estate Planning for Second Marriages
By David A. Zobel
A St. Louis bookkeeper recently pled guilty to wire fraud for embezzling more than $70,000 from his condominium association. His scheme spanned more than two years and involved more than 50 unauthorized wire transfers from the association’s financial accounts to the bookkeeper’s own personal bank accounts. Unfortunately for condominium and homeowner associations, this type of activity is all too common and demonstrates the critical need for associations to prepare and implement systems of financial checks and balances.
What each association’s system should entail to sufficiently reduce the risk of improper financial activity (while also recognizing the need for effective and responsive management) will vary from association to association depending on several factors, including association size, level of involvement from the homeowners, and governing rules. However, many effective systems begin with distributing financial supervision and actions between several individuals. This practice includes: Continue reading »
11/18/13 1:58 PM
Litigation, Real Estate | Comments Off |
Condo Association Embezzlement Case Demonstrates Need for System of Financial Checks and Balances