By Associate Attorney Danielle Nodar
After creating your estate plan, you should review your documents after a major life event such as marriage, divorce, births, deaths, or moving to a new state. While most properly drafted estate planning documents are still valid after moving to a new state due to the Full Faith and Credit Clause of the U.S. Constitution, which says that the states must recognize the legislative acts, public records, and judicial states of the other states within the U.S., there may be some state-specific requirements that could impact how the will is interpreted and the difficulty of the overall probate process in the new state.
For example, most states require that the testator, the signer of the will, sign his or her will before witnesses who must also sign the document. The rules between the states vary as to who can serve as a witness and how many witnesses are needed in order for the will be to be valid. Also, some states require that the signatures of the testator and witnesses be notarized. While North Carolina does not require a will to be notarized, having a notary validate the signatures of the testator and witnesses makes the will “self-proving,” which makes the probate process easier because the court can accept the will without contacting the witnesses who signed it first. For people with out-of-state wills, tracking down witnesses could be difficult.
Another important consideration when moving to a new state is whether your chosen executor can or wants to serve in your new state. For example, North Carolina requires that all personal representatives who reside out of state post a bond, with the amount of the bond based on the value of the probate assets. The bond requirement can be waived in a will for any North Carolina resident executors, but it cannot be done for executors residing outside of the state. In order to obtain the bond, the executor will need to locate a surety company, pay a bond premium, and pass a credit check. Additionally, an out-of-state executor must appoint a resident agent residing in North Carolina to accept all legal documents for the estate. This typically results in the executor hiring a probate attorney to serve in this role. The entire bond/resident agent process can be avoided altogether if the executor resides in state and the will expressly waives the bond requirement. For people without friends or family in the state, there is also the option of creating an estate plan that avoids probate altogether through the use of a revocable trust.
Finally, different states have different requirements for witnessing and notarizing durable powers of attorney, healthcare powers of attorney, and living wills. These are documents that third parties would be reviewing and analyzing in the event of an emergency. Even though the documents may be valid under the Full Faith and Credit Clause, you don’t want to risk having your agents have to argue the validity of the document during an emergency. We often recommend that our clients update these documents to conform with North Carolina procedural requirements.
These kinds of small but significant differences in state law that could impact whether your estate plan needs to be revised when moving to a new state. Please call Jesson & Rains if you need to determine that your existing estate plan still works based on your new location and to ensure that it may not be unnecessarily difficult for your loved ones to probate your will in North Carolina.
By Attorney Edward Jesson
In most counties in North Carolina (if not all), every case filed in District or Superior Court there will require some form of mandatory alternative dispute resolution (“ADR”). Generally speaking, if a case is filed in District Court the alternative dispute resolution method will be arbitration. If a case is filed in Superior Court, the alternative dispute resolution method will be mediation. Further, many contracts contain provisions that provide if a dispute arises the aggrieved party must submit their claim to arbitration instead of or before filing a lawsuit.
A third-party neutral person (the mediator) is selected by the parties involved in the dispute, or, if the parties cannot reach an agreement, appointed by the Court. Generally, the mediator will be a local attorney selected by the parties for his or her expertise in the law that is in dispute. While participation in court ordered mediation is mandatory, the nature of mediation means that the mediator cannot force the parties to resolve their dispute, the mediator can only make his or her best effort to get the parties to compromise. Most of the time, the parties will each have the opportunity to give an opening statement and discuss the case together in the same room. Then the parties will move into separate rooms and the mediator will go room to room, discussing the strengths and weaknesses of each party’s case trying to broker a deal to settle the dispute. If the parties come to an agreement, that agreement is reduced to writing and will typically be enforceable by the court. However, if the parties cannot come to an agreement, the mediator cannot force the parties to settle. The mediator is only there to facilitate a negotiation as opposed to being there to decide the case.
In contrast, the arbitrator is there to decide the case. The arbitrator will decide which party is entitled to relief and what that relief is based on the claims presented. The arbitrator, in effect, gets to act like a privately hired judge and jury in deciding points of law and factual issues based on witness testimony. In North Carolina District Court, the parties are ordered to an early arbitration which is limited in time to one hour. At the end of that hour, the arbitrator (who is appointed by the court from a panel) decides who “wins” the case. It is important to note that in mandatory district court arbitration, if one party disagrees with the decision (which almost always happens), that party can appeal the arbitrator’s decision, and the parties will simply continue with the litigation process.
That is in stark contrast to voluntary arbitration: In voluntary arbitration, the arbitrator (again, selected by the parties for his or her expertise in law being contested) is permitted to make a final decision, and, absent a very limited set of exceptions, the arbitrator’s decision is final and can generally be enforced by the court if need be. Often, contractual arbitration is governed by the American Arbitration Association (“AAA”). AAA has a certain set of rules and requires the parties to select arbitrators from certain “panels.” While one advantage of arbitration is often said to be that it is more cost effective than litigation, that is not always the case, especially if you get involved with three arbitrator panels from the AAA or for particularly complex cases.
Like most things involving disputes and dispute resolution, there is no “one size fits all” approach. If you, your business, or someone you know, is involved in a legal dispute, it is best to seek counsel of an attorney that has experience dealing with that specific type of dispute. As always, the attorneys at Jesson & Rains, PLLC are ready and willing to help!
By Attorney Kelly Jesson
Jesson & Rains, PLLC, is offering a couple of new business plan packages that include discounted legal services.
Our clients are busy and they sometimes forget to keep their information updated with the Secretary of State’s Office or file their annual reports; they pay for a registered agent who does nothing more than forward their mail; and they sometimes fall victim to scams like this and this.
We’re offering a yearly plan that includes serving as our client’s registered agent and filing their annual report, among other things. A description of the plan is attached to this email. This plan helps to ensure your privacy (if your business is ever sued, the lawsuit will be delivered to our office’s address); you will be less likely to fall victim to a scam (we will sort through and destroy junk mail); you will be more organized and have less paper (we will scan and forward your mail immediately to your attention after sorting); and we will ensure that corporate records and Secretary of State records are kept up to date.
We’re also offering an upgraded yearly plan that includes unlimited access to attorneys throughout the year. No more billing for .1 emails or .2 telephone calls. We want to encourage people to contact us anytime they need us instead of being afraid to get a bill from us.
This is a continued effort from us to offer flat fees instead of hourly billing. Annual reports are due April 15, and they can be filed now, so this is a great time to switch over to having Jesson & Rains handle it. Please contact us if you’re interested, and please forward to any busy business owners you think may need our help!
By Attorney Kelly Jesson
This year, make a resolution to prioritize estate planning. Estate planning allows you to gain control and peace of mind over difficult and unpredictable situations. We have previously written about the difficulties caused by dying without a will in North Carolina and the pitfalls of the probate process in North Carolina; however, many of the “worst-case” scenarios can be avoided with proper planning. Let us help you make 2021 the year you plan for emergency scenarios and protect your business and personal assets for the benefit of your loved ones through estate planning.
Unfortunately, COVID-19 has shown us that there are no guarantees, but it has also highlighted what is most important to each of us: family. Estate planning allows you to plan for what happens when you pass away, including naming a trusted person to handle your final affairs, name guardians for minor children, and distribute your assets according to your wishes. In addition to planning for death, our office drafts durable and health care powers of attorneys, where you can name agents to make both financial and medical decisions for you if you are incapacitated and cannot communicate.
There is no reason to wait to do planning, and as the pandemic continues to be a part of our “new normal,” you should get a plan in place before it is ever needed. If you do become incapacitated or ill, it may be more difficult or impossible to get documents in place, as you must have testamentary capacity to create valid estate planning documents.
Our office has created new procedures due to COVID-19. Our office staff wears masks, and masks are required by every person entering the office. We also social distance as much as possible, with witnesses watching you sign the documents through the conference room windows. We do not share or reuse pens that may be used by clients and we wipe down all surfaces before someone comes in to do a document signing. We are also meeting our clients in the parking lot, where they can remain in the car while signing documents, which limits their exposure to germs in the building. For all appointments prior to the signing appointment, we offer virtual appointments so we can still “meet” our clients while reducing risks of exposure.
Some of our clients delay estate planning because they do not have any friends or family members they trust to serve in fiduciary roles. In some circumstances, members of the firm may serve in these roles for the client if the client feels comfortable. It is better for you to take control and name someone yourself than to have the government appoint someone in an emergency or when you pass away.
We want to help you take CONTROL in 2021! Please call Jesson & Rains if you have questions about getting your estate plan in order or updating an existing estate plan. While You Build, We Protect.
By Attorney Kelly Jesson
After a lot of delay on both sides of Congress and the President, we have a new COVID-19 stimulus law. The President signed the “Consolidated Appropriations Act, 2021” on December 27, which contains a lot of government funding measures in addition to the COVID relief/stimulus provisions. Below are some highlights – what we think individuals and business owners would like to know:
Foreclosure, Evictions, and Student Loans
There are no provisions in the new law extending foreclosure forbearance or student loan forbearance. However, the President and government agencies have taken matters into their own hands since the first CARES Act was originally passed, frequently extending these deadlines. Currently, student loan deferment is scheduled to expire on January 31, 2021. FHA borrowers through February 28, 2021, can request forbearance of up to 12 months of mortgage payments.
The new law does extend the eviction moratorium (for tenants with less than $99,000 annual income) through January 31, 2021, but again this can be extended by the government at any time. Lots of money was appropriated to the states for rental assistance programs.
Pandemic unemployment assistance will continue for up to an additional eleven weeks if eligible, through March 14, 2021. If eligible as of that date, a worker who has not yet received the maximum amount of benefits may continue to receive benefits through April 5, 2021. Eligibility requirements did not change.
Workers with at least $5,000 in self-employment income may be eligible for an additional $100 per week benefit as part of the Mixed Earner Unemployment Compensation.
Federal Pandemic Unemployment Compensation (the extra payments of $600 per week) will be reduced to $300 per week but will continue for up to an additional eleven weeks if eligible, through March 14, 2021. Eligibility requirements did not change.
Many eligible individuals (eligibility requirements did not change in this new law) will receive another tax rebate in the following amounts:
• $600 ($1,200 in the case of eligible individuals filing a joint return), plus
• $600 for each qualifying child
• But the credit shall be reduced by 5 percent of so much of the taxpayer’s adjusted gross income as exceeds:
• $150,000 in the case of a joint return,
• $112,500 in the case of a head of household, and
• $75,000 in the case of a taxpayer not described above.
This means that a married couple filing jointly with no children will not receive any credit if their income is $174,000.
Paycheck Protection Program (“PPP”)
Lots of exciting news here! Congress has allocated funds to a “second draw PPP loan program.” The available loan amount is the same, and the business must have been in business on February 15, 2020 (like before) to be eligible, but the second draw is only available to businesses with not more than 300 employees (first round was 500). Like before, there are special rules for seasonal businesses and those with more than one location. At least 60% of the loan must be spent on payroll, like before, to be forgiven; however, Congress did broaden the types of permissible expenditures.
Forgivable business expenses now include covered operations expenditures (payment for any business software or cloud computing service that facilitates business operations, product or service delivery, the processing, payment, or tracking of payroll expenses, human resources, sales and billing functions, or accounting or tracking of supplies, inventory, records and expenses), covered property damage costs (related to property damage and vandalism or looting due to public disturbances that occurred during 2020 that was not covered by insurance), covered supplier costs (essential to the operations of the entity and made pursuant to a contract that existed prior to the covered period or perishable items), and covered worker protection expenditures (related to making customers and employees safe from COVID-19). Additionally, the forgivable health insurance expense clause in the CARES Act was amended by the new law to include other type of insurance, such as group life, disability, vision, or dental insurance. If a business has already applied for and received forgiveness for its first PPP loan, it cannot go back and amend the application to include these new expenses. However, if a business has not had its first PPP loan forgiven yet, it can go back and calculate money spent on these new permissible expenditures and include these on its forgiveness application for the first round of PPP loan.
In order to qualify for a second draw PPP loan, the business must have suffered an at least 25% drop in gross receipts for a quarter in 2020 than the same quarter in 2019. If the business wasn’t in business in 2019, then it must have suffered a 25% drop from the first quarter of 2020 as compared to one of the other three quarters of 2020.
Any amounts forgiven under the PPP will no longer be included in the business’s gross income. The new stimulus law also created a simplified certification process for forgiveness of loans no greater than $150,000.
EIDL Emergency Grants
A business no longer has to pay back / deduct from the PPP forgiveness amount money it received as part of the emergency grant of up to $10,000. If you’ll recall, the SBA limited the grants to $1,000 per employee, and the money ran out at some point. The new law provides additional funding for these grants, and there is no language in the law limiting the grant to $1,000 per employee (although the maximum amount is still $10,000). To qualify, the business must: be located in a low-income community; have suffered an economic loss greater than 30%; and employ not more than 300 employees. In addition, the business must qualify as an eligible entity as defined in the CARES Act. If a qualifying business has already received a partial grant, it can apply for the remaining balance of the $10,000.
Recipients will enjoy an additional three months of payments paid by the SBA, and some qualifying businesses may receive eight months. The maximum amount of payments is still $9,000 per borrower per month.
The refundable payroll tax credits for paid sick and family leave, enacted in the Families First Coronavirus Response Act, have been extended through the end of March 2021. The CARES Act rules dealing with retirement distributions have been extended through April 30, 2021.
By Associate Attorney Danielle Nodar
With the holiday season upon us, many people are considering how they can give back to their communities, particularly after a year where many have been adversely impacted due to the longstanding impact of COVID-19. Like many industries and people, the pandemic has also taken a toll on nonprofit organizations. Revenue streams have been reduced due to limits on regular fundraising activities and economic hardships befalling individual or corporate donors. This strain on nonprofits is coupled with an increase in demand for many services provided by nonprofits, particularly those combating difficulties caused by the pandemic, such as food insecurity, homelessness, and elder and medical care.
The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) provides several provisions that increase tax incentives for charitable contributions by both individuals and corporations, which may be an added incentive for people to make gifts at a time when they may be most needed. The CARES Act provides that individual taxpayers who do not itemize their deductions can now deduct up to $300 for cash gifts made to public charities in 2020. Another bonus to this new change is that it will not expire this year unless the legislation changes; however, to take advantage of it this tax year, all cash or check gifts must be received or postmarked by December 31, 2020. Individuals who itemize their deductions may now deduct cash contributions to public charities up to 100% of their Adjusted Gross Income (AGI), an
increase from the 60% Adjusted Gross Income limit that used to apply before the CARES Act.
For both groups of people, these gifts must be made to a public and not private non-operating foundations, donor advised funds, supporting organizations or split-interest trusts such as charitable remainder trusts. Also, keep in mind, you must provide a receipt to show proof of cash gifts of $250 or more.
Finally, this spirit of giving is not limited to individuals as the AGI limit for cash charitable contributions was also increased for corporate donors with the changes made by the CARES Act. Corporate donors can now deduct up to 25% of their taxable income, an increase from the 10% in previous years.
In order to ensure that your charitable contribution is maximized, you should consult with your tax professional and attorney. For questions about how you can incorporate charitable giving in your estate plan, please contact Jesson & Rains!
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