Change to the Tennessee Inheritance Tax Proposed

Governor Bill Haslam and Republican leaders in the state legislature have proposed changes to the Tennessee Inheritance Tax as discussed recently in an article in The Tennessean (see full article here).  The current Tennessee Inheritance Tax Exemption amount is $1 million with inheritance tax rates ranging from 5.5% – 9.5%.  The proposal would raise the exemption to $1.25 million and will continue to raise the exemption incrementally over the next several years to $5 million.  The current Federal Estate Tax Exemption amount is also $5 million.

The cut in inheritance tax would cost the state of Tennessee approximately $14 million a year and is paired with a proposal to a reduction in state sales tax on food.  Democrats have expressed little opposition to cutting both taxes.  Haslam plans to cover the tax loss with rising revenue from other taxes.

The change to the Tennessee Inheritance Tax would keep wealthy residents from leaving Tennessee and avoid the sale of family businesses to pay death taxes.

Law/Medical Tip: Some Tips to Avoid Potentially Fatal Pharmacy Mix-Ups

Most pharmacists do a wonderful job. However, preventable mistakes occur more often than you might think.

We recently posted the news story about the poor pregnant woman who was mistakenly dispensed a cancer drug with side-effects that included induced abortion.  Moreover, in just the past few years, our firm has personally represented 2 different plaintiffs in cases involving 2 separate national chain pharmacies that mistakenly dispensed the wrong medication. And unfortunately, it had serious consequences in those couple of instances — so bad, in fact, that we ended up settling those cases for amounts exceeding six figures to cover the medical bills and impairment of life.  Feel free to call us if you or a family member find yourself in a similar situation and need help.

Of course, the best option is to avoid being a plaintiff in the first place. So protect yourself on the front end.  Resolve to be a responsible partner in your own healthcare. Communicate with your pharmacist and other healthcare providers. Don’t fall victim to the “white coat mentality” where you are intimidated to follow-up or ask what you might think is a stupid question.  ALWAYS ASK EACH AND EVERY QUESTION YOU MAY HAVE, NO MATTER HOW DUMB YOU THINK IT MIGHT BE.  Also, stay vigilant about your medications. Know what your pills are supposed to look like, and what your dosage is supposed to be, and then check all prescriptions carefully (even refills) to make sure you have the correct medication.

SPECIFIC TIP:  For all new medications or changes in generic drugs or dosages, utilize one of the online pill identification tools that can be found here, or here, or here.  You can type in a description of the pill, and the online sites will literally show you a picture of what you have, and then confirm the type of drug and dosage for you.  That way, you can make certain that you have the medication you’re supposed to have.

It could save your life.

Too Many Cooks in the Kitchen

There are a lot of different phrases and slogans to describe a situation where you have too many people in charge. Democracy may be preferable in some situations, but your estate plan is often not one of those situations. People often tell me they want to be fair so they want to name all their children as executors, trustees or powers of attorney at their death or incapacity. They feel that naming everyone will insure that things go smoothly and that there is no tension among the siblings that one child was treated preferentially. In fact, naming multiple children does not relieve tension or promote harmony…it creates tension, confusion and sometimes complete chaos.

As I frequently tell the disgruntled sibling who is upset that his or her brother or sister was named as trustee or executor, serving in these roles is a job, not a privilege. As a beneficiary, you get to sit back, let someone else do the work and then collect the proceeds. As an executor or trustee, you have to do all the work, deal with the disgruntled beneficiaries and then receive, in many cases, the same proceeds as the person who got all the benefits without any of the work.

The decision as to who will serve in these important roles is a big decision and should not be taken lightly. But in many cases, less is more. One person or entity is often the best choice. Two can insure that checks and balances are in place in case one person is out of line. More than two guarantees administrative headaches, fighting and taking sides. The administrative process of probate and trust administration is challenging enough because it usually involves families and money, two very emotionally-charged topics. When you add the grief from the loss of a loved one, too many cooks in the kitchen adds insult to injury. Instead of looking at what will be viewed as the most fair, consider who is the best-suited for the task and the most able to navigate family issues and money. In so doing, the result is often more fair for everyone. Unfortunately, fair or not, too many cooks in the kitchen rarely leads to a desirable result.

Law Talk: Submit your claim online to recover free money/property!

Ever wonder what happens to money and property that gets “lost in the shuffle” so to speak? 

Examples: that old utility deposit or lease deposit you or your wife forgot to follow up on before you moved; or the last interest payment that was due in your old savings account that you closed; or maybe your mom or dad forgot about an old safety deposit box containing old jewelry or family heirlooms? 

It’s actually VERY common.  Indeed, if you forgot about a deposit (or didn’t even know about it), how could you possibly even know to claim your refund, right?

Ever wonder what happens to that money or property?

This is referred to legally as “unclaimed property,” and by law the holder of the property (i.e. the bank, the landlord, the utility, etc.) must turn it over to the State along with information about the name and last known address of the owner.  They CANNOT keep the property; however, they are not required to track down the owner, either.  They can simply turn it over to the State and be done with it.

Literally MILLIONS of dollars in unclaimed funds are turned over to the State of Tennessee each year.  But here’s the good news — the State maintains a website where you can do a name search and then claim your property at no cost.  Click HERE to perform a search.  You can search for yourself, your parents, your kids, your friends, etc.  And then just submit a claim form with identifying information as needed and the State will turn the property over to you.

As noted above, it is QUITE common for people to forget about small deposits here and there.  I personally learned about an old utility deposit from back when I was in college and got my refund!  It wasn’t much, but every little bit helps!

Use the Comment section below and share any success stories you have finding old/lost property or funds.

[TIP: Be sure to also search in other states where you may have lived, transacted business, or maintained accounts. Just type in Google the words “unclaimed property” and the state you want to search.]

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Reminder: Estimated Tax Payments due Jan. 17 (for self employed persons, etc.)

For all you estimated tax filers, here’s a friendly reminder that your next payment (using Form 1040-ES) is due next Tuesday, January 17, 2012.  (The ordinary deadline of the 15th is extended because the 15th falls on a Sunday, and the next day is the MLK holiday which is also a postal holiday.)

NOTE:  Estimated taxes are generally paid by self-employed persons, although others are potentially required to file. According to the IRS website instructions: ”Estimated tax is the method used to pay tax on income that is not subject to withholding. This includes income from self-employment, interest, dividends, alimony, rent, gains from the sale of assets, prizes and awards. You also may have to pay estimated tax if the amount of income tax being withheld from your salary, pension, or other income is not enough.”

MORE: Previous Blog Post —  What is an Estimated Tax Payment?

Law FAQ: What is Digital Estate Planning?

Death in the digital age is a lot more complicated than it used to be.  In the past, it was easy to search paper records and watch the mail for bills and account statements to gather information about an estate.  It’s not so easy today.  Now many, if not all, records are filed or transmitted electronically, online.  And unfortunately, people have not left the passwords and location for the electronic records that the surviving family members will need.

In many cases, survivors may not even be aware of the existence of accounts or assets, prompting a load of questions: Can we find this stuff? Which computer is it on? Is it stored in the cloud? What about the smartphone? Can we circumvent the password or decrypt the data?

But there are other potential pitfalls, too. What, for example, happens to your social-network accounts when you die? Some people want them perpetuated while some people them destroyed.  Instructions should be provided and included with the list of passwords that are going to go to their survivors.

You should also consider potential liabilities lurking in your digital estate. For example, what if you have trade secrets or other sensitive information on your computer and, after your death, your family donates the computer for recycling without wiping the hard drive clean? If that trade secret falls into the wrong hands, your estate might be liable.

Digital-savvy estate planners advise clients to take three basic steps. First, do a complete inventory of all digital accounts and assets (see Digital Assets Checklist below) so that your estate administrator will know just what you have of potential value (or liability) and where it is. Second, assemble a list of all passwords. Third, select a fiduciary and give them the proper power to administer your estate and follow through with your wishes.

Digital Assets Checklist

• Home-security systems

• Smartphones

• Computers

• Voice mail

• Email accounts

• Cloud storage

• Social-network accounts

• Web pages and blogs

• Financial accounts (banks, stock trading, tax, etc.)

• Online sales and purchasing accounts

• Domain names

• Intellectual-property rights (manuscripts, music, photographs, etc.)

• Video games and virtual worlds

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Texting while driving… some practical solutions

Every cell phone owner has repeatedly heard about the dangers of texting while driving, yet texting continues to be one of the major contributing factors in vehicle accidents.  Here are some eye-opening facts that show the true dangers of texting while driving:

  • Five seconds is the average time your eyes are off the road while texting. When traveling at 55mph, that’s enough time to cover the length of a football field. (2009, VTTI)
  • A texting driver is 23 times more likely to get into a crash than a non-texting driver. (2009, VTTI)
  •  Of those killed in distracted-driving-related crashes, 995 involved reports of a cell phone as a distraction (18% of fatalities in distraction-related crashes). (2009, NHTSA)
  • Drivers who use hand-held devices are four times as likely to get into crashes serious enough to injure themselves. (2005, Insurance Institute for Highway Safety)
  • 49% of drivers with cell phones under the age of 35 send or read text messages while driving. (2011, Harris Poll)
  • 60% of drivers use cell phones while driving. (2011, Harris Poll)
  • For more facts, please see here

While the best solution is to turn your cell phone off as you drive, here are a few free smart phone apps that have been designed to lessen the dangers associated with texting while driving:

  • http://www.parkthephone.org/ – This free app is great for parents of teenage drivers.  It has the ability to detect when a person is in a vehicle, and if the person is driving, the app will silence the phone, auto reply to text messages, send calls to voice mail, and monitor speed and report speeding exceptions [Note: this app is not yet available for the iphone].
  • http://www.drivesafe.ly/ – DriveSafe.ly is a free mobile app that reads text (SMS) messages and emails aloud in real time and automatically responds without drivers touching the mobile phone.
  • http://www.vlingo.com/ – This app has been likened to Siri on the iPhone 4S.  For driving purposes, this app will allow you to speak a text message or ask for directions without having to type anything on your phone.

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25 Documents to have before you die

I ran across this Wall Street Journal list today and am reminded of how important it is to get certain life affairs in order.  The start of the new year is as good of a time as any. 

Number one on their list should come as no surprise.  An original will is the most important document to keep on file.  If you don’t have a will and you do have kids, call a lawyer and make an appointment.  If you do have a will, pull it out and read it.  You may want to update certain provisions or maybe even remove certain beneficiaries who haven’t been as nice to you as you would like.

If you need help organizing your estate, call us.  There is no fee for our initial estate planning meetings.

Law Talk Series: The Legal Issues in the Sandusky-Penn State Saga

I regularly follow the Litigation & Trial Blog of Pennsylvania lawyer Max Kennerly.  He frequently provides tips and discusses legal issues relevant to the work of trial lawyers.

Being on the ground there in Pennsylvania, Mr. Kennerly is uniquely positioned to follow and explain the Pennsylvania law applicable to the various civil and criminal aspects of the sordid tale of Jerry Sandusky and Penn State.  His most recent post summarizing the current state of events is a must-read article for those interested in understanding the saga as seen through the eyes of a Pennsylvania lawyer.  Click here for the blog post.

Credit Application and Small Business

credit application small business lawyerMost small business vendors and suppliers require a company officer to sign a Commercial Credit Application or Agreement to buy goods and supplies on account.

Watch out, though!

Signing a Credit Application on Behalf of a Company Could Subject You to PERSONAL Liability

Carefully examine the language of the Credit Application or you may find yourself personally liable for the debt even if you don’t have any ownership in the company!

In 2011, the Tennessee Supreme Court considered a credit application in  84 Lumber Company v. Smith that contained the following language:

BY SIGNING BELOW I HEREBY … UNCONDITIONALLY AND IRREVOCABLY PERSONALLY GUARANTEE THIS CREDIT ACCOUNT AND PAYMENTS OF ANY AND ALL AMOUNTS DUE BY THE ABOVE BUSINESS….

Mr. Smith signed the Credit Application as “R. Bryan Smith, President.” This manner of signing is typically referred to as signing in a “representative capacity” to denote that it is being executed by the company only, as compared to signing your name without a title to indicate that it is being signed personally.

However, the  Court ruled that the attempt to sign in a representative capacity did NOT  trump the unmistakable language of the Application, and held that Mr. Smith was personally liable for the debt as well.  This same logic would presumably apply not just to company presidents like Mr. Smith but also even to junior employees who might have signed such an agreement.

Credit Application Best Practices

So what should you do if faced with this situation?

  1. Strike through offending language. In order to avoid personal liability, you would at a minimum need to physically strike through the personal guarantee language AND then also sign the document in a “representative capacity” (i.e. name + title).
  2. Make an Informed Decision.  Many suppliers and vendors require a personal guarantee in order to do business, and so you may have to decide whether to go ahead and sign the agreement, shop around, or try to negotiate a better deal (e.g. perhaps provide for a maximum limit on the guarantee, or secure a bank letter of credit instead, etc.). At least you will be making an informed decision.
  3. Ask a “Higher Up” to Sign. If you’re just an employee or junior officer of the company then you should probably take the agreement to a superior to make certain that the right person is signing the agreement. A regular employee (i.e. someone with no ownership interest) should not fairly be expected to personally guarantee the obligations of his or her employer.
  4. Go see an attorney! The above tips are intended only as general legal advice. Each agreement, contract, and situation is different, and you should seek legal advice tailored to your specific situation.

We are Small Business Lawyers.

Check out our team at Wiseman Bray PLLC.  If you need help with your small business contracts, agreements, or forms, or if you have a question about business litigation, please call us at 901-372-5003 or email us here. We have offices in Memphis and Nashville TN.