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Grounds for a Will Contest

Alberts Law, Probate & Estate Administration, Topics of Interest, , , , ,

A will contest can be a difficult and costly legal process so the will contestant needs strong grounds before taking this step. Various issues can be used to attack a proposed will. This is a look at some of the most prominent ones and the types of evidence that are needed for proof.

Burden of Proof in a Will Contest

The contestant attempts to weaken the position of the proponent of the will by offering clear and convincing evidence to undermine important facts that would support the probate of the will. This was defined in La Rocca Trust, 411 Pa. 633, 192 A.2d 409 (1963), as testimony by witnesses about the precise facts at issue that is credible, distinctly remembered, clear, direct, and weighty.

This goes beyond the usual “preponderance of the evidence” standard for the usual civil lawsuit. Such heightened scrutiny makes a will contest hard to win without careful, detailed preparation. What must be proven to this extent depends on the grounds on which the will contest is based.

When a Will Contest Might Succeed

Dating back to the 19th century, there are numerous Pennsylvania cases, statutes, and rules that have defined what must be proven to successfully attack a will. The strength of the evidence and the elements of the law must come together to provide a compelling story against probating the proponent’s will. A look at some of the more likely arguments follows.

Testator’s Capacity and Will Execution

The major issue is what constitutes mental capacity in order for a will to be seen as valid. The Pennsylvania Supreme Court consistently has defined the test for testamentary capacity as “whether the testator, at the time he executed the will in question, had an intelligent knowledge regarding the natural objects of his bounty, of what his estate consists, and of what he desires done with his estate, even though his memory has been impaired by age or disease” (from Cohen Will, 445 Pa. 549, 284 A.2d 754 (1971)).

Basically, the person needs to understand her or his ownership of property and how it should be distributed after death, even if age has decreased the sharpness of an individual’s overall memory over the course of time. As for the natural objects of one’s bounty, this often is expressed as the closest living relatives – however, knowing their identities does not mean that the testator will leave any property to them.

A will contest also focuses on capacity at a particular point in time. As stressed in Wertheimer’s Estate, a 1926 decision that remains precedential, the evidence must cover “the period immediately before, at or after [the will’s] execution.” When an alcoholic executed her will at a time when no evidence of her being intoxicated existed, the court found her will to be valid. Furthermore, in Ryman’s Case, 139 Pa. Superior Ct. 212, 218, Judge Keller emphasized that “[o]ne’s mental capacity is best determined by his spoken words, his acts and conduct.” Unless the evidence undermines the presumption of mental capacity at the time in question, events that are not contemporaneous with the will’s execution will not undermine the document’s validity.

In our society with an increasingly elderly population, we have to remember that the law does not look at such matters as physical age when determining testamentary capacity. For example, in Lawrence’s Estate, 286 Pa. 58, 65, 132 A. 786, 789 (1926), Pennsylvania’s Supreme Court stated that “[o]ld age, sickness, distress or debility of body neither prove nor raise a presumption of incapacity.” Additionally, failure of memory does not prove incapacity as long as it is not total or extended to the degree that incapacity becomes practically certain.

A Poor Memory Does Not Necessarily Equal Incapacity

A testator’s memory is not irrelevant in a will contest but its role can be overemphasized depending on the facts and circumstances involved. The Pennsylvania Supreme Court decided in Brantlinger Will from 1965 that a testator with a faulty memory still has capacity to execute a will. Other cases have stated that a complete lack of memory renders a testator incapable of executing a will. This is a matter of degree and is a reason that a will contest sometimes is necessary.

Incapacity Is Not Always Incapacity

One might think that the proponent of a will of a legally incapacitated testator is guaranteed to lose a will contest. 1964’s Lanning Will summarizes the applicable law: an adjudication of mental incapacity made prior to the execution of a will does not require the conclusion that the will is invalid for lack of testamentary capacity. Instead, one must look for the date that the will was executed. If the testator has not been adjudicated as mentally incapacitated, then the contestant bears the burden of proving this by clear and convincing evidence. On the other hand, if incapacity was determined prior to the will’s execution, the will could be valid if the testator can be proven – by clear and convincing evidence – to have had testamentary capacity of the date of execution. The will’s proponent shoulders the burden of proof here.

Eccentricity Is Not Insanity or Even Incapacity

In Higbee Will, 365 Pa. 381, 75 A.2d 599 (1950), those who brought the will contest proved that the testator was forgetful and, at times, confused and subject to rages and tantrums; that she had plenty of money but lived in poverty and filth; she was; she locked herself in her house while alone; that she refused medical attention even when she needed it; and that she was very ungrateful to people who did her favors.

Meanwhile, in her will, she left her property to an agnostic society instead of relatives. While this upset those relatives, two attorneys and a secretary of a trust company testified that she had clear and full testamentary capacity when she executed a will and two codicils. As a result, the testamentary documents survived the will contest.

This case also demonstrates that what appears to be an “unnatural” disposition does not prove an incapacitated testator. This principle is found in Morgan’s Estate, 219 Pa. 355, 68 A. 953 (1908), which states that a will is unnatural only if contrary to what a testator’s known views and intentions would be expected to produce.

Are Insane Delusions Relevant in a Will Contest?

Maybe, yes; maybe, no. Two cases from the 1950s show how the facts must be developed in order to answer this question. Duross Will, 395 Pa. 492, 150 A.2d 710 (1959) involved a testator who had insane delusions but still could have capacity to make a valid will, as long as any delusion did not affect the will’s dispositive scheme. Meanwhile, 1952’s Johnson Will, also decided by the Pennsylvania Supreme Court, stated that, when it appears that the will was the direct result of the delusion and that the will would have been different if the delusion had not occurred, then the will is rendered invalid.

Undue Influence in a Will Contest

Undue influence is a broad term that includes fraud; threats; misrepresentation; and coercion. This was summarized in Hollinger Will from 1945. It noted that, if sufficiently proven, any of these can undermine a will’s validity by prejudicing the testator’s mind, destroying freedom to act as desired, or acting as a present restraint upon the testator making the will.

Direct versus Indirect Proof

Undue influence can be proven directly or indirectly. With direct proof, the will contestant needs to show, by clear and convincing evidence, that acts which prejudiced the testator’s mind or destroyed the testator’s free agency occurred, resulting in the invalidity of the will produced for probate. In these cases, the presumption is in favor of the absence of undue influence.

However, in other cases, there is a presumption that undue influence existed. This “indirect” proof of undue influence arises in situations in which the law shifts the burden of proof to the will’s proponent, who must show the absence of undue influence for the will to be considered valid.

When is Undue Influence Presumed in a Will Contest?

The Pennsylvania Supreme Court followed a three-part rule regarding indirect proof of undue influence, leaving the will’s proponent with the burden of proving that undue influence did not exist. In Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975), the Court held that where (1) a person who is in a confidential relationship with the testator, (2) receives a substantial benefit under the will, and (3) at or around the time the will was executed the testator had a weakened mental intellect, a presumption of undue influence arises. The result is that the burden of proof shifts to the proponent to prove the absence of undue influence.

Confidential Relationships

In a will contest, a confidential relationship is considered a potential indication that parties are not on equal footing. In Leedom v. Palmer from 1922, Pennsylvania’s Supreme Court discussed such relationships and looked for “an overmastering influence” on one side or “weakness, dependence or trust” as indicators of a possible unfair advantage that leads to the presumption that a void transaction. Importantly, confidential relationships are not sufficient to create the presumption. In the 1975 decision in Estate of Thomas, which involved the probate of a will in Allegheny County, there was a recognition that a testator in a weakened state dealing with someone in a confidential relationship would result in a presumed unfair advantage. When these circumstances appear, the law presumes undue influence when the bulk of the estate is left to the will’s scrivener. Proving influence is not required to shift the burden of proof.

Various relationships can indicate the existence of confidential relationships. Kinship and marriage can serve this function; however, Aggas v. Munnell, 302 Pa. 78, 152 A. 840 (1930), specify that these relationships do not automatically equal confidentiality. A financial agent in a power of attorney has been given unequal power – if the agent is a will’s proponent, court believe that this clearly indicates there is a confidential relationship.

 Meanwhile, a substantial benefit to will proponent is relevant. The previously mentioned Estate of Clark noted that a substantial benefit to a will’s proponent would establish a prima facie case in favor of the contestant. Cases have noted that no hard and fast rules exist to define a substantial benefit; instead, this is determined by facts and circumstances on a case-by-case basis. In this way, a will contest does not differ from other court actions – the situation must be investigated, with an understanding of what transpired being carefully explored before a rush to court.

Examples of Circumstances that Are Not Automatically Defined as Undue Influence

When a will’s contestant suggests that the will’s proponent being named as executor is a substantial benefit, the contestant likely will lose. Unless the will provides the power to dispose of an estate in a manner contrary to the will’s specific provisions, the proponent (and executor) reaps no substantial benefit. Attempts to persuade a testator do not pass the test. Any form of restraint of a testator must be contemporaneous with the creation of the will and, additionally, must directly affect the testamentary act. If a testator made statements that might have indicated undue influence, courts have found these to be admissible only when linked with more direct evidence for the purpose of corroboration.

For a will contest to succeed, contestants must understand what must be proven and how it can be proven in order to prevail. Unless they understand and can do this, they will fail in their objective and stand to learn an expensive lesson at the same time.

Undue Influence and Proving Fraud in a Will Contest

As previously noted, undue influence is broadly defined in the context of a will contest. As a result, it generally includes fraud as an element. However, fraud often plays an important role in a will contest so it merits being singled out.

A contestant who raises this issue must prove it directly. Pennsylvania’s Rosenthal’s Estate from 1940 established that the burden of proof does not shift so the contestant must produce clear and convincing evidence in order to prevail.

In re Paul’s Estate, 407 Pa. 30, 180 A.2d 254 (1962), dealt with fraud in the inducement regarding execution of a will. The case set forth two elements that the will contestant must prove. First, the testator had no knowledge of the concealed or misstated fact. Second, the testator would not have made the bequest had the truth been known.

A classic situation in which the Pennsylvania Supreme Court looked the possibility of fraud through nondisclosure occurred in Stirk’s Estate from 1911. This involved a testator who authorized the assistant trust officer of the Land Title & Trust Company to draft her will prior to an operation.

The will’s basic objective was to benefit charitable, educational and religious uses. However, there could be a question of the legality of these bequests if the testator died within 30 days after executing the will. As a result, the scrivener prepared a codicil to deal with the possibility that the bequests might fail and left blank spaces for who would receive the funds if she died during the 30-day period. The testator mentioned that the Land Title & Trust Company as the recipient of what were charitable bequests in the will, and the assistant trust officer from that company inserted this into the codicil for the testator.

She then executed the codicil but died within the 30 days after executing the will. The Court questioned why the codicil substituted a for-profit entity to receive the bequests that intended for charitable uses and also noted that the scrivener’s close connection to the land trust company. Additionally, the fact that the trust officer did not attempt to make sure that this drastic change was what the testator actually intended seen as very problematic. The Orphan’s Court judge called this situation “incomprehensible and almost incredible.” The high court agreed. It decided that the scrivener’s silence under this case’s facts amounted to constructive fraud and reversed the decree that awarded the fund to the Land Title & Trust Company is reversed and remitted the record for a distribution of bequest in accordance with its views as set forth in its opinion.

An Overview of Other Grounds for a Potential Will Contest

While lack of testamentary capacity and various forms of undue influence are grounds commonly raised by contestants, there are a number of additional issues that might be introduced in these cases in order to undermine a will’s validity. Among these are lack of testamentary intent; mistakes in execution; issues concerning lost wills; and forgery. These are summarized, below.

Did Testamentary Intent Exist?

The form and language of a writing are factors to be considered but are not determinative of whether a writing is a will. Instead, an informal instrument may be legally effective as a will if its language shows testamentary intent, which is indispensable to the finding that a document is a valid will. The language must be dispositive in character, and this disposition must be intended to occur after the testator’s death. Instructions and memoranda for use in drafting a will at a future time do not show the requisite intent.

Although form is not a determinative factor, it is an element which may be considered. For example, in In Re Estate of Ritchie in 1978, the Pennsylvania Supreme Court noted that the decedent previously executed a will which was not a sophisticated document but did show some knowledge of the customary form and style used for a will. When a later writing was submitted for probate, the Court gave weight to the writing lacking any elements of the customary form that the testator used previously.

The Court in Ritchie also set forth a long-standing principle that, if a further or additional act or writing is contemplated by an alleged testator in order to make a will or codicil, then the current writing is not testamentary in nature. The prior will as well as extrinsic evidence were considered in making this decision.

While extrinsic evidence is not permitted when the intent is unambiguous, the trial court believed that real ambiguity regarding testamentary intent existed so it heard testimony of individuals who were present when the second document was drafted. While it permitted the document to be probated, the Pennsylvania Supreme Court reviewed the testimony introduced by the will’s proponents indicated that the document was a list or memorandum contemplating a will that would be drafted in the future. It concluded that testamentary intent was not present and reversed the trial court’s decision.

Two years earlier, in In Re Estate of Sedmak, 467 Pa. 379, 357 A.2d 142 (1976), the Court stated that, if the instrument is in writing and signed by the decedent at the end, it must be given effect as a will or codicil when it contains a legal declaration of the writer’s intention regarding actions to be performed after the individual’s death. If there is no ambiguity of this intent, then extrinsic evidence is not admissible.

Mistakes in Execution

A classic example of this and how Pennsylvania courts approach the problem occurred in 1959’s Pavlinko Will. In 1949, Vasil and Hellen Pavlinko had their wills drafted by an attorney. The basic estate plan left the property of the first spouse to die to the other spouse. Hellen made the mistake of signing the will prepared for Vasil, who then signed the second will which was supposed to be executed by his wife. Hellen died in 1951, but no will was submitted for probate.

After Vasil Pavlinko’s death in 1957, the will that he signed was offered for probate at the Register of Wills in Allegheny County by the residuary legatee (Hellen’s brother who was identified in the will as “my brother”) named in the will executed by Vasil. Because the document stated that it was Hellen’s will while it was executed by her husband, the Register of Wills refused to accept this to be probated.

Eventually, the case went to the Pennsylvania Supreme Court. It cited Section 2 of the Wills Act of 1947, which stated that every will shall be in writing and shall be signed by the testator at the end thereof. This provision now is found at Section 2502 of the Probate, Estates and Fiduciaries (PEF) Code. The document that was to be submitted as Vasil’s will intended and purported to give Hellen’s estate to Vasil; as a result, it could not be his will but, instead, was a nullity.

The Court noted that the will would need to be rewritten in order to be probated as Vasil’s will, and it was not willing to take this action. The decision emphasized “[h]ow firmly and without exception the courts have carried out the provisions of the Wills Act, when the language thereof is clear and unmistakable” and cited other cases in which the execution of a will did not meet the essential requirements of the statute. The Court did acknowledge the seeming harshness of the result but stated that strictly following the Act was necessary in order to prevent “countless fraudulent claims” from succeeding. When someone submits a will in which mistakes in execution were made, a will contest – if the will would be accepted for probate – has a very good chance of success.

A Will Contest and a “Lost Will”

A “lost” will can be the basis for a will contest. Before doing so, an individual must understand what must be proven in order to proceed. The Pennsylvania Supreme Court’s decision in 1961’s In Re Murray’s Estate involving an unsigned copy of the will of Beatrice J. Murray provided the test for establishing the lost will’s legitimacy as the testamentary document to be probated. The necessary proof includes (1) the testator duly and properly executed the original will; (2) the contents of the executed will were substantially the same as those included in the copy of the will presented for probate; and (3) the testator did not destroy or revoke the will prior to death.

Burns v. Kabboul is a decision from Superior Court that has precedential value when a will contest centers on the status of a lost will. While the case has an interesting fact pattern, it also discusses a number of fundamental legal principles dealing with probate. It begins by noting that estate law in Pennsylvania favors testamentary dispositions of assets over intestate distribution. The policy in Pennsylvania stresses that a will should be interpreted in a way that avoids intestacy if this is feasible. To further this policy, if a later will is contested and determined to be the result of undue influence, a revoked prior will effectively is reinstated.

Burns v. Kabboul reviewed a will contest in which a lost will proved pivotal. Mae Kabboul was named the decedent’s agent in a power of attorney when he executed his final will in 1985. Kabboul was the scrivener and also was named the estate’s executor (who would receive the bulk of the residuary estate). The will was found to be a product of her undue influence and was determined to be invalid. At that point, the law of intestacy apparently would be applied to the estate, and Kabboul would inherit nothing from the decedent.

Then, Ms. Kabboul produced an unsigned copy of a will from 1982. As Pennsylvania strongly favors testamentary dispositions, there are exceptions that permit copies of lost wills to be probated. The test that shows what must be proven to overcome the presumption that a testator destroyed or revoked the lost will is set forth, above.

Kabboul was able to navigate two prongs of the 3-step test with relative ease. There was testimony from witnesses that showed proper execution of the will from 1982. The third prong regarding lack of revocation has met when the 1985 will (which was found to be the product of Ms. Kabboul’s undue influence) was invalidated. The second prong involving proof that the 1982 will’s actual contents were substantially the same as the document purported to be a copy of that will.

The problem with the copy was that the fourth page was missing. The result was that the size of the residuary estate to be received by Ms. Kabboul, again, was uncertain without knowing the provisions on page four. This was why the trial court would not accept this lost will for probate. However, the appellate court chose to attempt to follow the policy that favors testamentary dispositions and ruled that the lower court erred in not examining the document to see if any portion could be salvaged in order to prevent a total intestacy in this case.

To do this, the appellate court looked for the portions of the 1982 will that were not dependent on what may have been stated in the missing page. If possible, it would give effect to those portions so that total intestacy could be avoided. This review revealed that the bequests on the first three pages as well as clause twenty-nine on page five were for determinate sums and merited treatment as valid testamentary dispositions. Meanwhile, the missing clauses only impacted two clauses which concerned the distribution of the residuary estate; since testamentary intent regarding the residuary estate could not be determined, those two clauses were declared void. The court decided that what was apparent from the will’s terms would be subject to probate while the remainder of the estate was distributed according to the intestacy laws of Pennsylvania.

Most will contests that involve lost wills are not as convoluted as Burns v. Kabboul, but the case does demonstrate the problems that can result when old wills are not revoked and destroyed. In this case, a partial copy was at issue. Ms. Kabboul was fortunate that she was able to produce it after a later will was invalidated based on her use of undue influence. If someone else had possession, the PEF Code states what to do. In Section 3137, a party in interest can compel a person having possession or control of a testator’s will to show cause why it should not be deposited with the Register of Wills.

Forgery

While forgery is related to fraud, it is more narrowly defined so it will be discussed briefly here. In 1961’s Kadilak Will, the Pennsylvania Supreme Court stated that the will contestant must directly prove forgery with evidence that is “clear, direct, precise and convincing.” What might be considered as forgery in a will contest?

While an unauthorized signature by someone other than the testator in violation of PEF Code Section 2502 probably would be the typical answer, there are other situations in which courts have invalidated wills and codicils on the basis of document forgery. The latter variation also may be referred to as fraudulent substitution.

The previously mentioned Kadilak Will dealt with allegations of forged signatures. However, there are numerous cases in which contestants have charged others with removing pages of testamentary documents and then replacing them with more favorable pages. For example, Kane’s Estate from 1933 concerned a document bearing the decedent’s signature in which it was alleged that one page had been substituted for the original page and that another page was subjected to alteration. As this occurred nearly 100 years ago, the courts that had to decide on the will’s validity had to scrutinize what was produced by a portable typewriting machine. In the end, the Pennsylvania Supreme Court’s examination of the machine’s output was the same as that of the trial court. The document submitted for probate was riddled with evidence of forgery.

Wide latitude is permitted regarding what can be offered to prove forgery. Over the course of time, the following are among the factors used as proof: comparisons to examples of  the decedent’s handwriting which are positively identified as such and were made as close in time as possible to the date of the disputed document; differences in typing; the presence of extra staple marks; differences in paper used within the document as well as differences in ink; the validity of signatures of witnesses; and the amount of time that elapsed prior to presenting documents for probate as well as explanations for the delays if concerns were raised.

 

A will contest is a difficult and expensive undertaking. However, if there are reasonable grounds for disputing the validity of a document offered for probate, one can succeed in such an action. The grounds alleged and the evidence in support have to be weighed carefully before proceeding to court because the party with the burden of proof must meet this burden by producing clear and convincing evidence to support each element of the cause of action.

AVOIDING JUNIOR MORTGAGES & CHAPTER 7

Alberts Law, Debt Relief & Bankruptcy, , , ,

Bank of America, N. A. v. Caulkett from U.S. Supreme Court (2015) currently is the defining case regarding avoiding junior mortgages in a bankruptcy filed under Chapter 7. It may not be the last word on this issue, but it does set forth the current law.

Caulkett held that a debtor in a Chapter 7 bankruptcy proceeding may not permit avoiding  junior mortgages under 11 U.S. Code §506(d) if the debt owed on a senior mortgage lien exceeds the current value of the collateral while the credi­tor’s junior claim is secured by a lien and allowed under §502 of the Bankruptcy Code (found in Title 11 of the U.S. Code).

CLOSER LOOK AT “SECURED” AND “UNSECURED” CLAIMS IN BANKRUPTCIES

Defining the term “secured claim” is not easy as context plays a large role in this. 11 U.S. Code §506 is the provision in the Bankruptcy Code that defines “[d]etermination of secured status.” However, case law interprets the meaning of statutes. Dewsnup v. Timm from U.S. Supreme Court (1992) defined a “secured claim” in §506(d) to mean a claim supported by a security interest in property, without any consideration of whether the value of that property would be suffi­cient to cover the claim.

The Supreme Court in Dewsnup concluded that an allowed claim (under §502) that is “secured by a lien with recourse to the underlying collateral . . . does not come within the scope of §506(d),” which could permit the debtor to avoid the lien on the collateral. However, there is a “secured claim” under Dewsnup because the claim is supported by a security interest in property, even though the value of that property is not sufficient to cover the claim. Furthermore, Caulkett states that a claim secured by a lien that also qualifies as an allowed claim under §502 cannot be voided under the Bankruptcy Code.

IMPACT OF NOT REQUIRING FILING OF A PROOF OF CLAIM IN A NO-ASSET CHAPTER 7

According to 11 U.S. Code § 502 (“Allowance of claims or interests”), a claim or interest – upon the filing of a proof pursuant to §501 of this Code – is deemed “allowed” unless a party in interest objects. As noted in In re Smoot from the U.S. Bankruptcy Court in the Eastern District of New York (2011), one can argue that, in a no-asset chapter 7 case, the adjudicative process for claims is not even invoked because claims need not be filed; therefore, a junior mortgage claim is going to be deemed allowed under 11 U.S.C. § 502(a).

Here, a filed proof of claim to determine if a claim or interest against the Debtor’s property should be allowed is not required. Whether or not any assets are available for distribution to general unsecured creditors is not an issue in such situations. Instead, the determination of whether a lien or interest against property is unsecured, leaving it disallowed as a secured claim, is made independent of the existence of assets to be distributed to the general unsecured creditors.

“ANTIMODIFICATION” PROVISION IN CHAPTER 13 & ITS NONEXISTENCE IN CHAPTER 7

The “antimodification” provision in (b)(2) of 11 U.S.C. §1322 does not apply regarding avoiding  junior mortgages that are wholly unsecured on a Chapter 13 debtor’s home. The Third Circuit decided that, because the U.S. Supreme Court in Nobelman stated that § 506(a) still applies and determines the “status” of a creditor’s claim, a wholly unsecured junior mortgage ceases to be a secured claim under the Bankruptcy Code and hence is not subject to the “antimodification” clause. However, because there is no similar provision in Chapter 7 of the Bankruptcy Code, this reasoning from the Third Circuit’s In re McDonald cannot be directly applied to the issue of avoiding junior mortgages in bankruptcies under Chapter 7.

LOOKING AT DIFFERENCES BETWEEN JUDICIAL LIENS & MORTGAGE LIENS

When entered of record, the judgment also operates as a lien upon all real property of the debtor in that county — in Pennsylvania, see 42 Pa.C.S. Sections 4303(a)(b), 1722(b), and 2737(3). Due to this, a judgment lien is called a general lien. Meanwhile, a mortgage lien is a specific lien that encumbers a particular piece of real property. Additionally, the Bankruptcy Code and related case law have defined these two liens quite differently, which can explain why they receive different treatment when the issue of avoiding junior mortgages comes into play.

The Bankruptcy Code defines the judicial lien in Section 101(36) as those obtained by judgment, levy, or other legal or equitable processes. Under Section 522(f) of the Code, judicial liens that impair exemptions provided in bankruptcy law can be avoided so liens that fit this definition must be involved. On the other hand, mortgage liens are said to be “bargained for” and consensual, as opposed to judicial liens which are viewed as imposed by the legal system.

Mortgage liens are part of an agreement between lenders and borrowers. People are free to make deals that they later regret, and the government generally does not feel obligated to save them from themselves. This helps to explain why the opportunities of avoiding junior mortgages are more limited. Section 506, in conjunction with Section 502, sets forth the only mechanism in the Bankruptcy Code for seeking to avoid these liens while both methods of avoidance could be explored for avoiding judicial liens.

AVOIDANCE WHEN OBLIGATION IS SECURED BY MULTIPLE AGREEMENTS

When an obligation is secured by more than one agreement, the extinguishment of a debtor’s obligation under one agreement does not necessarily end all of the obligations. However, in In re Stendardo from Pennsylvania, the bankruptcy court concluded that any right the creditor had to attorney’s fees and costs under the note was extinguished once it entered judgment on the note.

The analysis did not end at this point, though. The court went on to hold that the rights created by the continuing lien of the secured creditor’s mortgage and its asset purchase agreement that also secured the debtor’s obligation were not extinguished until the creditor received payment. In addition, the court cited In re Clark Grind & Polish, Inc., 137 B.R. 172 (Bankr.W.D. Pa. 1992), which stated that a confessed judgment on the promissory note did not extinguish the independent provisions of the mortgage and the asset purchase agreement. Since the various debt instruments were not seen as relying on each other for their continued existence, when one ceased to exist, the others still remained in place.

DIFFERENT INTEPRETATIONS OF SECTION 506 IN CHAPTER 13 & CHAPTER 7

U.S. Bankruptcy Court for the Eastern District of Pennsylvania noted in In re Cusato that “a discharge extinguishes only the personal liability of the debtor [while] a creditor’s right to foreclose on the mortgage survives or passes through the bankruptcy.” While the debt that was owed by the mortgagor cannot be obtained from the mortgagor after a discharge, the mortgagee retains the ability to pursue a judgment against the property to obtain a foreclosure sale to satisfy the mortgage lien on the property. This highlights the importance of Section 506’s applicability, as it can result in a mortgage debt being treated as an unsecured debt that would be discharged at the completion of the bankruptcy case, which could be permitted in Chapter 13 bankruptcies. When this occurs, a mortgage lender has no recourse for seeking repayment.

Courts, in the belief that Chapter 7 debtors would reap a windfall if in personam and in rem liabilities were eliminated through the bankruptcy action, have read and applied laws such as 11 U.S. Code §506 more strictly in Chapter 7 cases. The idea that the impact is different for debtors in Chapter 7 versus those in Chapter 13 could be viewed as unfair, but it seems to stem from the belief that a Chapter 7 debtor can walk away from a discharge without paying any money to creditors while the debtor in Chapter 13 will repay some amount on debts under a Chapter13 Plan. However, the justification for differing treatment of debtors regarding avoiding junior mortgages that are wholly underwater and are not subjects to payments under either bankruptcy chapter could be questioned. However, at this point in time, while potentially questionable, it also is unquestionably the applicable law under these circumstances.

HOW TO AVOID SURPRISE MEDICAL BILLS

Alberts Law, Topics of Interest, , , 
By Dan Weissmann
Kaiser Health News

Patients are no longer required to pay for surprise medical bills when out-of-network care given without their consent when they receive treatment at hospitals covered by their health insurance since a federal law took effect at the start of this year.

But the law’s protections against the infuriating, expensive scourge of surprise medical bills may be only as good as a patient’s knowledge — and ability to make sure those protections are enforced.

Here’s what you need to know.

Meet the No Surprises Act.

Studies have shown that about 1 in 5 emergency room visits result in a surprise bill.

Surprise medical bills frequently come from emergency room doctors and anesthesiologists, among others — specialists who are often outside a patient’s insurance network and not chosen by the patient.

Before the law took effect, the problem went something like this: Say you needed surgery. You picked an in-network hospital — that is, one that accepts your health plan and has negotiated prices with your insurer.

But one of the doctors who treated you didn’t take your insurance. SURPRISE! You got a big bill, separate from the bills from the hospital and other doctors. Your insurer didn’t cover much of it, if it didn’t deny the claim outright. You were expected to pay the balance.

The new law, known as the No Surprises Act, stipulates, in broad terms, that patients who seek care from an in-network hospital cannot be billed more than the negotiated, in-network rate for any out-of-network services they receive there.

PODCAST

An Arm and a Leg

Health care — and how much it costs — is scary. But you’re not alone with this stuff, and knowledge is power. “An Arm and a Leg” is a podcast about these issues and is co-produced by KHN.

LISTEN HERE

Instead of leaving the patient with surprise medical bills that insurance will not cover, the law says, the insurance company and the health care provi犀利士
der must work out how the bill gets paid.

But the law builds in wiggle room for providers who wish to try end runs around the protections.

Caution: The law leaves out plenty of medical care.

The changes come with a lot of caveats.

Although the law’s protections apply to hospitals, they do not apply at many other places, like doctors’ offices, birthing centers, or most urgent care clinics. Air ambulances, often a source of exorbitant out-of-network bills, are covered by the law. But ground ambulances are not.

Patients need to keep their heads up to avoid the pitfalls that remain, said Patricia Kelmar, health care campaigns director for the nonprofit Public Interest Research Group, which lobbied for the law.

Say you go for your annual checkup, and your doctor wants to run tests. Conveniently, there’s a lab right down the hall.

But the lab may be out of network — despite sharing office space with your in-network doctor. Even with the new law in effect, that lab doesn’t have to warn you it is out of network, which could result in a surprise medical bill.

Beware the “Surprise Billing Protection Form.”

Out-of-network providers may present patients with a form addressing their protections from unexpected bills, labeled “Surprise Billing Protection Form.”

Signing it waives those protections and instead consents to treatment at out-of-network rates.

“The form title should be something like the I’m Giving Away All of My Surprise Billing Protections When I Sign This Form, because that’s really what it is,” Kelmar said.

Your consent must be given at least 72 hours before receiving care — or, if the service is scheduled on the same day, at least three hours in advance. If you’ve waited weeks to book a procedure with a specialist, 72 hours may not feel like sufficient advance warning to allow you to cancel the procedure to avoid incurring a surprise medical bill.

Among other things, the form should include a “good faith estimate” of what you’ll be charged. For nonemergency care, the form should include the names of in-network providers you could see instead.

It should also inform you of an unfortunate catch-22: The provider can refuse to treat you if you refuse to waive your protections.

It is against the law for some providers to give you this form at all. Those include emergency room doctors, anesthesiologists, radiologists, assistant surgeons, and hospitalists.

To prevent being trapped by surprise medical bills, keep your antennae up on costs. Many patients report they are merely handed an iPad for recording their signature in emergency rooms and doctors’ offices. Insist on seeing the form behind the signature so you know exactly what you are signing.

If you notice a problem, don’t sign, Kelmar said. But if you find yourself in a jam — say, because you get this form and urgently need care — there are ways you can fight back against potentially being subject to surprise medical bills:

    • Write on the form that you are “signing under duress” and note the problem (e.g., “Emergency medicine facilities are not allowed to present this form”).
    • Take a picture of the form with your notes on it. Consider also shooting a video of yourself with the form, describing how it violates federal law.
    • Report it! There is a federal hotline (1-800-985-3059) and a website for reporting all violations of the new law barring surprise bills. Both the hotline and website help patients figure out what to do, as well as collect complaints.

Speaking of that “good faith estimate” …

The new “good faith estimate” benefit applies anywhere you receive medical care.

Once you book an appointment, the provider must give advance notice of what you could expect to pay without insurance (in other words, if you do not have insurance or choose not to use it). Your final bill may not exceed the estimate by more than $400 per provider.

Theoretically, this gives patients a chance to lower their costs by shopping around or choosing not to pay with insurance. It is particularly appealing for patients with high-deductible insurance plans, but not exclusively: The so-called cash price of care can be cheaper than paying with insurance.

Also: It wouldn’t hurt to ask if this is an all-inclusive price, not just a base price to which other incidental services may be added.

It is not enough to ask: “Do you take my insurance?”

It still falls to patients to determine whether medical care is covered. Before you find yourself in a treatment room, ask if the provider accepts your insurance — and be specific since surprise medical bills can result when you do not obtain information that applies to your insurance plan.

Kelmar said the question to ask is, “Are you in my insurance plan’s network?” Provide the plan name or group number on your insurance card.

The reality is, your insurance company — Blue Cross Blue Shield, Cigna, etc. — has a bunch of different plans, each with its own network. One network may cover a certain provider; another may not.

Keep an eye on your mailbox.

Attention to details is crucial if you are to catch any surprise medical bills. To make sure no one bills you more than expected, pay attention to your mail. Hospital visits, in particular, can generate lots of paperwork. Anything billed should be itemized on a statement from your insurer called an explanation of benefits, or EOB.

Notice anything off? Make some calls before you pay — to your insurer, to the provider, and, of course, to the new federal hotline: 1-800-985-3059.

Dan Weissmann is the host of “An Arm and a Leg,” a podcast about the cost of health care. This column is adapted from his newsletter First Aid Kit.

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.

The S Corporation & Estate Planning

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When an estate plan includes an S corporation, a shareholder seeking to protect the Subchapter S election under the Internal Revenue Code (IRC) must be aware how the stock can be passed to others without jeopardizing this status. Restrictions limit the ways that the stock can be transferred, but – within these restrictions – one can find opportunities in the estate-planning context to protect the S corporation election while achieving objectives for the estate plan. Various possibilities will be introduced after a look at why a business owner would make this election in the first place and why its continued existence would be a focus of an estate plan.

WHY PROTECTING THE CORPORATE TAX STATUS MATTERS

In Subchapter S of Chapter 1 in the Internal Revenue Code, the statutes explaining the S corporation election, the purposes for deciding on this status, and limitations and restrictions that must be followed in protect this status are set forth. Small businesses may choose to incorporate, typically becoming C corporations. A hallmark of such entities is “double taxation.” This means that the average corporation is taxed on its profits (if any); then, after the corporate income tax is assessed, the profits that remain can be distributed as dividends, for example, to the entity’s stockholders. They must account for their shares of the corporate profits when they pay their personal income taxes. Since the corporate profits are taxed at these two levels, this is labeled as double taxation.

On the other hand, when a C corporation makes a successful election to become an S corporation, the problem of double taxation no longer exists because S corporations are taxed as if they were partnerships, which are treated as pass-through entities under the IRS’s income-tax laws. In partnerships, the individual partners receive their shares of the profits, and these are taxed only once – i.e., as shares of each partner individually.

While partnerships are not taxed at two levels, there are other problems, including the possibility of partners being personally liable for a portion of the partnership’s liabilities and debts. A major benefit of incorporation is the basic rule that individual shareholders are not legally responsible for the corporation’s debts and damages beyond their investment in the corporation. This look at partnerships and C corporations leads to the reason that the S corporation appeals to many business owners.

Meanwhile, another potential consideration regarding estate planning with an S corporation that has more than one owner of its stock is that a shareholder agreement often will exist. Due to the closely-held nature of the company, this agreement may contain restrictions on transfers of stock because these transfers can disrupt the continued operation of the business. It may require consent from any other shareholders, who want new members who are likely to act in the best interests of the corporation and the current shareholders. Any plan for the future must fit into the parameters of the shareholder agreement, in addition to the legal considerations.

Despite the various limitations and restrictions that S corporations face which result in making estate planning a precarious undertaking for a layperson, an S corporation is an entity that also has distinct advantage over the C corporation and over the partnership that lead many business owners accept these limitations and restrictions to achieve a tax advantageous position. The IRS treats S corporations as pass-through entities, despite their corporate status. This provides the benefit experienced by partnerships – there is no double taxation, and any profits only are taxed at the shareholder level. A shareholder of S corporation stock also does not pay self-employment tax.

Furthermore, as a corporation, this entity’s owners have the same protections that stockholders in any C corporation have regarding personal responsibility for corporate debts and damages. Of course, there is a price to be paid for receiving this favorable treatment. As noted earlier, estate planning with an S corporation presents difficulties that must be navigated in order to protect the corporate designation permitted by the Internal Revenue Code. Methods that can allow the transfer of S corporate shares while not causing the revocation of the S election exist and must be considered when an estate plan is being constructed.

LEGAL LIMITATIONS AND RESTRICTIONS TO WORK AROUND

The fact that business owners who successfully elect to benefit from the advantages of being an S corporation also must accept certain limitations and restrictions that are tied to this election has been noted. As these elements are a major concern when an individual prepares an estate plan, an introduction to the limitations and restrictions that exist is necessary. One needs to understand why the transfer of S corporation shares is not straightforward in the way that it is with an ordinary C corporation and then have some knowledge of what options are available as a result.

The Internal Revenue Code places restrictions on the number and types of shareholders that S corporations can have. For example, an S corporation faces a limitation on the maximum number of stockholders who can own its stock. Currently, this number is one hundred – exceeding 100 owners violates the law and results in a forfeiture of the S election. While a family-owned business might not be large enough for this to prove troublesome, any plans for succession and stock transfers must be set up in order to avoid allowing ownership to expand beyond this total.

In terms of the shares themselves, an S corporation can have only one class of stock according to IRC Section 1361(b)(1)(D). However, within this class, shares may be classified as voting or nonvoting. The use of nonvoting shares allows transfers of significant value to be made without also transferring control.

The estate plan also must be drafted with a clear idea of the types of individuals and entities that are permitted to own S corporation stock; without such careful consideration, an estate plan can undermine the objective of protecting the S election. Non-resident aliens cannot have an ownership interest; the owner’s estate should be set up so that all shares will pass to U.S. citizens, resident aliens, certain tax-exempt organizations, and certain types of trusts.

The restrictions on ownership ensure that profits, which pass through the S corporation to its shareholders, will not escape annual taxation by the IRS. The limited group of potential owners eliminates most corporations, partnerships, and LLCs, for example, from owning any stock in an S corporation if it is to retain its tax status under the Internal Revenue Code.

INCLUDE QUALIFIED OWNERS TO PERPETUATE THE BUSINESS

When developing an estate plan, a current owner of stock must focus on choosing “qualified” owners – these are individuals and entities who meet the requirements to own shares in an S corporation, which are set out in the Internal Revenue Code. Otherwise, the business could lose this status, meaning that any current shareholders are likely to suffer financially. While a large number of entities and individuals are eliminated from consideration by tax laws, there are specific categories of entities and individuals qualified under the tax code to be owners. When estate planning, an owner needs to understand this so that she or he can determine the choice that is appropriate based on the owner’s vision of the corporation’s future and the best course of action to turn the vision into reality.

Of course, for a business to survive as an ongoing concern, an individual owning shares in an S corporation not only must choose a new owner who falls within the group of qualified owners but also must choose a successor who can perpetuate the business. Beyond looking at individuals, the person could name a trust or a tax-exempt organization to receive the available shares from the estate. This becomes a difficult decision that involves considering multiple options.

 THE CATEGORIES OF POTENTIAL SHAREHOLDERS UNDER THE IRC

While looking at these options, an individual must be sure that the any succession plan accounts for two major decisions that are vital to preserving S corporation status. First, the plan must avoid transferring any shares of the corporate stock to ineligible shareholders, the categories of which already have been reviewed. Second, the individual must detail necessary elections (e.g., the Qualified Subchapter S Trust or Electing Small Business Trust election) that protects against termination of the S corporate status when the grantor dies as well as post-mortem elections that may be required to prevent termination.

With these concerns in mind, the planner generally can look at only a limited number of possibilities. The choices for the transfer of stock ownership include the following: family members, “key persons” who are involved with the S corporation, the decedent’s estate (for a limited period of time), various types of trusts, and certain tax-exempt organizations.

TRANSFERS TO HEIRS OR BENEFICIARIES

With a family business that involves an S corporation, a number of options for ownership transfer can be available. If not specified in the estate plan, a decedent’s shares would pass to the individual’s heirs. This probably is not the optimal choice. For example, the heirs who receive shares based on laws of intestacy may not have the skills or interest to be involved in running a business. A will could be set up to transfer shares to beneficiaries chosen by the testator who had the will drafted to distribute her or his stock.

AN ESTATE CAN BE A QUALIFIED OWNER … FOR A LIMITED TIME

If stock is passed according to a decedent’s will or via a state’s intestacy laws, the ownership of the shares does not transfer to beneficiaries or heirs immediately. In addition, stock does not pass to a trust or a tax-exempt organization, both of which will be reviewed in more detail later, at the time of death. When going through the estate planning process, the shareholder needs to understand that her or his estate can own stock of an S corporation.

However, the length of time that this situation can exist is not open ended. Eventually, these shares will be owned by individuals (as noted above) or entities (as will be noted below). The estate’s personal representative can maintain ownership in the estate for a “reasonable” time. This is not defined in terms of days but is defined by the diligence of the personal representative, who cannot permit an unreasonable delay in transferring ownership from the estate to the new owner as chosen by the decedent or, if the decedent as not set up a comprehensive estate plan, by the defaults established under the law.

If the time frame is determined to be unreasonably long, then the S election may be terminated. What is “unreasonable” is not defined with precision. Instead, it depends on the facts of the case because, the more complicated the estate, the longer the period in which it can reasonably be the owner of the S corporation stock. In the end, though, no estate can last forever so, at some point, the stock must move out of the estate and go to a qualified owner pursuant to the Internal Revenue Code.

GIFTING SHARES COULD BE A USEFUL ESTATE-PLANNING OPTION

Of course, not every estate or succession plan calls for transfers to be made after death. There are ways that the current owner can look to transfer shares prior to death. One possibility is the use of gift giving during one’s lifetime. Often, a parent wants to pass interests in a business to the parent’s issue when they might be considered appropriate successors to the parent. These transfers could be made to individuals or, if distribution is to occur to those individuals in the future, to a trust for this purpose.

Using gifts to make the transition necessitates looking at gift-tax implications. The plan may avoid gift taxation by making gifts each year to each individual that are valued at no more than the annual exclusion for gifts, which is $16,000 per individual for 2022. Other possibilities exist, but the ones mentioned are used commonly to pass business interests from one generation of a family to the next.

BUY-SELL AGREEMENT: CURRENT OWNERS MAY PURCHASE STOCK

There may be reasons why a plan to bring new family members into the business might not be feasible. A shareholder may plan for the S corporation to have an agreement in place that permits a “key person” within the business to purchase a decedent’s shares. In conjunction with the buy-sell agreement, the current shareholder could facilitate this transition by arranging for a life-insurance policy to fund the purchase.

When setting up such a plan, the shareholder should have a qualified appraiser determine the fair market value of the stock since the shares are not publicly traded – valuation always is a concern when an S corporation is involved. Also, this plan only works when there are at least two shareholders in the corporation since the person buying the shares must be an owner at the time.

ESTATE PLANNING AND ELIGIBLE ENTITIES AS SUCCESSOR OWNERS

The current owner may determine that passing shares to individuals does not fulfill the intent behind the estate plan. As long as the shareholder is not bound by an agreement to offer the stock to particular individuals, she or he is in a position to consider specific entities as the new owner of S corporation stock via the estate plan. Some of these options exist prior to death while the others occur post mortem.

Trusts Are the Most Common Entities to Consider

Commonly, an owner in this situation will look at the various types of trust are allowed to own S corporation shares. This requires a thorough understanding of the different purposes that trusts can serve so that an informed decision regarding which is best suited to carry out the intent of the estate plan can be implemented. A brief review of the various possibilities follows.

There are numerous variations among the universe of trusts. However, while purposes may differ, they share common elements. For example, a trust is a legally distinct entity in which assets are managed for the benefit of a select group of beneficiaries. It is created when the grantor (sometimes known as of the settlor) provides trust property that generally should grow in value; this corpus (or principal) is intended to increase in value so that the beneficiaries, under specified conditions, will share in thus benefit. Finally, the trust property is under the control of a trustee – the legal owner of this property – who must manage and invest the trust’s principal on behalf of the beneficiaries.

There are a variety of reasons for using a trust, as opposed to an outright gift to beneficiaries, which is why different types of trusts exist – they have their own characteristics that establish their character and their usefulness in certain situations. The estate planner must be aware of this and select the type of trust(s) that fits with the grantor’s intent in setting up the trust.

Only a Few Trust Types Can Own Subchapter S Stock

Meanwhile, with an S corporation, only a handful of trust types can be used. The grantor has to understand the purpose of creating a trust as well as creating the type of trust that not only fulfills this purpose but also fits into one of the permissible categories.

In estate planning, an individual is limited in the types of trusts that can be established, and various options will depend on elections made after the individual’s death. The Internal Revenue Code includes the following among the trusts that can be eligible S corporation shareholders: grantor trusts; trusts established by the shareholder who also is the deemed owner of the trust at death can continue for two years after the date of death; testamentary trusts created within two years of receipt; Qualified Subchapter S Trusts (QSSTs); Electing Small Business Trusts (ESBTs); and voting trusts. The Internal Revenue Code spells out these choices within Section 1361, in which the IRS also defines what an S corporation is. Considerations regarding each of these are set forth below.

Grantor Trusts

The grantor trust can be relatively easy to establish, but there are certain requirements if it is to hold S corporation stock without jeopardizing the S election. The grantor who sets up the trust must be a U.S. citizen or resident. Additionally, the stock and other assets of the trust must be treated as owned by the grantor. This means that person who puts the assets into this type of trust maintains control over the trust, including the ability to determine distributions from the trust. As a result, the grantor is responsible for any income taxes incurred due to the operation of the trust, as opposed to the trust having any obligation for their payment.

As long as the trust meets these requirements when the grantor dies, it does not have to terminate at that time. Instead, the IRC permits the trust to continue its existence for up to two years after the death of the deemed owner. During this period, it remains eligible to hold S corporation stock, with the estate of the deemed owner becoming the new shareholder.

A grantor also can create a trust that is irrevocable, with control over the assets placed in the trust being surrendered by the grantor. By surrendering this control, the grantor generally is not responsible for paying taxes on the trust’s income. This would eliminate the use of this type of trust for the transfer of S corporation stock.

Intentionally Defective Grantor Trusts: A Twist on the Grantor Trust

However, trusts and the laws and regulations that pertain to them can be quite complex. There are trusts in which the grantor surrenders control over assets placed in the trust – which usually would lead to taxation of the trust for income that is generated and prevent it from holding S corporation stock – receiving some treatment by the IRS as a revocable trust. This is known as the “intentionally defective grantor trust” (IDGT).

This is one of the more complicated trusts among those that can be used with S corporation stock – it must be drafted very precisely to succeed here. An IDGT relies on specific rules in which the IRS permits an irrevocable trust to employ certain conditions that will allow an irrevocable trust to be treated as a revocable trust to a sufficient extent when a S corporation in involved. Usually, this starts with a grantor trust that is drafted with an intentional flaw that will require the individual to remain responsible for paying taxes on income produced by the trust.

The assets in the IDGT will not be part of the estate of the former S corporation shareholder – this is in contrast to a revocable trust in which the grantor remains the actual owner of the property held in the trust. These assets are transferred to an IDGT by either gift or sale. The typical beneficiaries will be the grantor’s children or grandchildren, who benefit by eventually receiving the trust’s assets without a reduction in value due to income taxation because the grantor already paid these. The intentionally defective grantor trust can be a useful tool when an S corporation is involved but only when enough care has been taken to structure it so that it does not run afoul of the applicable rules.

Time-Limited Usefulness of a Testamentary Trust

While an intentionally defective grantor trust can be rather complicated to include in an estate plan, a testamentary trust is simpler to establish. After the shareholder’s death, the estate’s personal representative must work to establish a functional trust. The trust must be funded, with steps taken to permit it to hold the S corporation stock without jeopardizing the corporation’s election. The problem with this option is that it is time limited by definition.

A testamentary trust can retain the stock for no more than two years after the shares are received. If this trust is intended to be an irrevocable trust, the language establishing it must be examined and modified, if necessary, so that the testamentary trust ceases to hold the S corporation stock beyond the time limitation.

Before this period has expired, the trust must qualify as a type of trust that the Internal Revenue Code permits to own S corporation stock. If the terms will not allow the steps required to turn this into an eligible trust to be taken, then the stock should not be placed in the trust in order to protect the S election.

Two Statutory Elections that Can Replace a Testamentary Trust

Assuming that an eligible trust can be created, there are numerous variations of trusts that meet the requirements set out in IRC Section 1361. Since grantor trusts are eligible, an estate planner could use the previously described intentionally defective grantor trust. There are two trusts set forth within Section 1361 that a testamentary trust could become with a timely election.  These are the Qualified Subchapter S Trust (QSST) and the Electing Small Business Trusts (ESBT). A brief review of each follows.

A Qualified Subchapter S Trust Election and Its Effect on the Estate Plan

Section 1361(d) of the Internal Revenue Code introduces the Qualified Subchapter S Trust as a trust that can own stock of an S corporation. However, a trust that elects to have this subsection apply to it has to meet specific criteria. One of the requirements is that the trust can have only one current income beneficiary who can receive benefits from the S corporation stock.

Additionally, any distributions of the QSST’s assets can be made only to that beneficiary, who must be a U.S. citizen or resident. The current beneficiary’s interest ends with this individual’s death. However, if the trust terminates prior to this beneficiary’s death, then the beneficiary will receive all of the trust assets

The timing of a QSST election is important. For example, a testamentary trust that becomes the owner of S corporation stock must elect to be treated under this subsection within two months and 15 days after it becomes a shareholder. If this deadline is missed, then the opportunity to make this election is lost unless late-election relief under Revenue Procedure 2013-30 is obtained.

Electing Small Business Trust and the Impact of its Election

A second option that can be considered before the period that a testamentary trust can hold S corporation stock expires is found in Section 1361(e) of the IRC. Like the QSST, the Electing Small Business Trust (ESBT) must be a domestic trust; this means that a U.S. court exercises primary supervision over its administration and at least one U.S. person controls all of its substantial decisions (26 CFR Section 301.7701-7). It also has a period of two months, 15 days after the trust becomes an S corporation shareholder or the business becomes an S corporation to elect to be an ESBT.

QSST v. ESBT: Advantages and Disadvantages under the IRC

An area in which the Electing Small Business Trust differs from the Qualified Subchapter S Trust involves beneficiaries. A QSST is limited to one income beneficiary while the ESBT is more flexible, allowing there to be more than one “potential current beneficiary” (as defined in Section 1361(e)(2)).

The EBST also permits the multiple beneficiaries to receive income from the trust, but each is required to be eligible to be owners of S corporation stock. The list of possibilities includes U.S. citizens and residents, estates and qualifying tax-exempt organizations (see below).

While the ability to have more current beneficiaries than a QSST can have may be advantageous in terms of the estate plan, the income distributions to the trust’s beneficiaries are likely to face higher tax rates since the ESBT is taxed on this income and generally will pay at a higher marginal tax rate than individual beneficiaries. Meanwhile, the QSST’s income is taxed as income to its current beneficiary. The respective limitations of these two trusts have to be considered before choosing one in the context of an estate plan.

What are Potential Purposes of a Voting Trust?

There is another trust that can hold S corporation stock which is mentioned in Section 1361 that can hold S corporation to be considered here: the voting trust. It is not really an estate planning option because it involves owners of stock creating a trust via a written agreement that delegates their voting rights to one or more trustees. The individual owners of the shares are taxed on any income generated, and the trust is subject to termination on a specific date or upon the occurrence of a specific event. Such trusts can be important when an S corporation is facing a hostile takeover, loss of control, and potential conflicts of interest. The voting trust is mentioned in the interest of completeness since its purpose of pooling voting rights of shareholders would arise after the estate plan’s purpose of transferring ownership to the shareholders is fulfilled.

Viewing Tax-Exempt Organizations Alone or Within a Trust

Another estate-planning option for an S corporation shareholder centers on certain tax-exempt organizations (see Section 1361(c)(6)) that are permitted to be shareholders under the Internal Revenue Code. These include Section 401(a) organizations (pension, profit-sharing and stock-bonus plans) as well as Section 501(c)(3) charitable organizations that are tax exempt under Section 501(a) of the IRC.

Some Section 501(c)(3) organizations merit further scrutiny because they are private foundations instead of public charities. Private foundations usually receive most of their contributions from a primary donor and are controlled by a small group of individuals. As a result, they lack public accountability, and this has led to them facing additional restrictions and excise taxes that can reduce the impact of contributions. This is worth considering if you would look at a private foundation to become an S corporation shareholder in an estate plan.

SOME CONCLUDING CONSIDERATIONS

When there is no shareholder agreement that specifies to whom or what an owner’s shares can be transferred, then an S corporation shareholder’s options fall into the above categories. The person looking at estate planning must work within the limited structure provided by the Internal Revenue Code. Gifting of shares those eligible under the Internal Revenue Code, passing ownership via will to eligible individuals and entities, and placing stock into certain types of trusts are the basic choices available for the estate planner here. Of course, there is no perfect solution, but one must start with well-defined objectives regarding an estate plan to be developed. Then, each of the possibilities can be reviewed to find the best way to meet the objectives. Often, the assistance of experienced professionals is crucial in order to navigate this complicated process to lead to the development of the desired estate plan.

Digital Assets in Estate Planning & Administration

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Digital assets are a relatively recent part of everyday life but become important piece in estate planning and administration. Their role is bound to become a larger issue in Pennsylvania in 2021 with the passage of the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) during July of this year. The new law will be found in Chapter 39 of Title 20 of the Pennsylvania Consolidated Statutes in January.

Even without the statute, digital assets could not be ignored due to their increasing presence. The first step in dealing with them is to understand what they are and then to take an inventory of the ones that you have. The number and the pervasiveness of these property rights may not be realized from day to day, but a thorough inventory will demonstrate that they need to be an important part of your estate plan.

Pennsylvania’s 2021 Law Regarding Digital Assets & Fiduciaries

As have most states, Pennsylvania has passed the uniform law defining a digital asset as an electronic record in which an individual has a right or interest while not including an underlying asset or liability that is not an electronic record. As an example, an online banking account would be a digital asset, but the money in the account is a physical asset not covered by this law. However, as technology continues to advance, the possibility that the underlying asset also is a digital asset has grown. If the currency in the account is a virtual currency, such as bitcoins, then all of the relevant assets in this situation are digital in nature. In addition, these types of assets generally have associated “metadata,” which is additional information about the specific assets that are intended to make finding and using them easier.

Start with a Comprehensive Digital Asset Inventory

Generating a comprehensive list of digital assets to include in an inventory probably is the best way to begin estate planning for this category of property. The problem with this approach is that the list of possible assets continues to expand so, while comprehensive today, any list soon could become outdated. If you have an idea of the types of digital assets that exist, this will aid you in recognizing other possibilities when you creating or updating your estate plan.

Since the universe of digital assets seems to expand exponentially, you should look at information and data that are stored in electronic form on numerous devices (such as personal computers, external hard drives, and flash drives) as well as online and, increasingly, in the cloud. The following are among the common categories that you might have: emails; text messages; photos; videos; audio recordings; social media; records and other documents; websites, blogs, and domain names that belong to you; and digital wallets.

Your estate plan should deal with the different types of digital assets in an appropriate manner. You may want some to be saved and others deleted. Various accounts may need to be transferred so that they can continue to be used. If the property has a monetary value or generates revenue, then you have to look at who should possess it when you can no longer use it. Of course, digital assets may be subject to contracts or terms of service that must be reviewed when planning because they can control what can be transferred and this would be accomplished.

Importance of a Uniform Fiduciary Access to Digital Assets Act

While digital assets continue to grow in importance, people may not always have a plan in place for a time when they might require someone to step into a fiduciary role and handle these assets when are not able to do so. In the past, this has caused some difficulties with digital assets. The enactment of RUFADAA will set various default rules when these scenarios arise in Pennsylvania in the future. A look at these defaults will take place a little later in this review.

States have control over laws that establish duties of fiduciaries, who must act make decisions for the benefit of individuals for whom they are acting. States often will set the rules to follow when other provisions have not been made. Legislation, such as Pennsylvania’s RUFADAA, can play an important role by “providing consistent rules and procedures from state to state,” according to the Uniform Law Commission that drafted the Uniform Fiduciary Access to Digital Assets Act in order to achieve this objective.

While there can be, and are, some differences among states in the laws that have been passed after the uniform law for fiduciaries was drafted, they do accomplish uniformity from state to state to a great extent. One must remember that, when reading the following overview of Pennsylvania’s new law, the law in any given state with a uniform law may be similar but cannot be assumed to be identical.

The Revised Uniform Fiduciary Access to Digital Assets Act in Pennsylvania applies to a fiduciary acting under a Will or Power of Attorney; a personal representative acting on behalf of a decedent; a proceeding for the appointment of a guardian of the estate for an allegedly incapacitated individual as well as someone named as the guardian; and a trustee acting under a trust (20 Pa.C.S. Section 3903). The basic idea behind this law is that default rules are needed if you have not stated your preferences.

Limitations of the New Law’s Scope

However, these rules are limited in their scope because they cannot trump federal privacy laws, for example. This can lead to the situation involving emails in which so-called “envelope” information – which can include the identities of senders and recipients as well as time of transmission – generally is not within privacy protections while the actual content of the email is granted such protection under the uniform law. It should be noted that even the envelope is shielded from the government and law enforcement agencies.

While the default rules serve a purpose when an individual does not create a plan regarding access during incapacity or after death, the individual can deal with digital assets similarly to the way that control over tangible assets can be directed. The same legal tools may be employed, although important differences can exist.

Some New Definitions to Learn

When a “custodian” (as defined in Section 3902 of Pennsylvania’s Title 20 of its Consolidated Statutes) stores a digital asset of a “user” (i.e., a person having an account with a custodian), the custodian might offer an “online tool” that permits the user to choose a “designated recipient” to control decisions about the digital asset involved.

The definition of an “online tool” also is found in Section 3902. However, what it means probably is less obvious than other terms that have been mentioned, but it likely is the most important one to understand. Section 3902 defines it as “an electronic service provided by a custodian” allowing a “user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions” regarding disclosing digital assets to third parties. Under RUFADAA, the online tool will control access, but not every custodian provides this tool and not every user takes advantage of its existence when one is offered by the custodian. Therefore, the uniform law establishes a hierarchy of other possibilities that can apply.

RUFADAA’s Hierarchy for Access After Online Tools

For example, when there is no online tool to provide direction, Section 3904(b) of Pennsylvania’s version of RUFADAA provides for the rung in the hierarchy just below online tools. At this point, the appropriate person who is named in a Will, a Trust, or a Power of Attorney as the fiduciary regarding any or all digital assets will be able to obtain the information that the user has permitted pursuant to the relevant legal document. Of course, being higher in the hierarchy, an online tool can override the terms of these legal documents.

The law also defines a third level of the hierarchy, which is the terms-of-service agreement. When the agreement does not require the user to act “affirmatively and distinctly from the user’s assent to the terms of service,” the user can provide for either of the first two instruments to “override a contrary provision” in the agreement (as noted in Section 3904(c)). Otherwise, the terms-of-service agreement can be followed to determine the rights to access and to use digital assets.

The Role & Authority of a Fiduciary under RUFADAA

The role of a fiduciary has been mentioned throughout this article. Unless the law provides authority for tools or orders, for example, that would override the powers given to a fiduciary, anyone who is named to fill this position can have considerable authority and corresponding responsibility. However, RUFADAA does provide limits. For instance, relevant terms of service cannot be ignored; additionally, a fiduciary is subject to other applicable laws, such as copyright laws.

Other limitations come from the duties of a fiduciary that include the duty of care, the duty of loyalty, and the duty of confidentiality. Also, due to potential obstacles that can delay the fiduciary’s efforts, there may be a temptation to take a short cut that, essentially, involves the impersonation of the user, which may be possible if the username and password of the user are known to the fiduciary. While it may be the easier to proceed this way, the law does not permit this tactic. Fiduciaries can use authority provided by the user in accordance with Section 3904 but can be held accountable if they go beyond this scope.

Section 3915 specifically deals with what fiduciaries can and cannot do regarding digital assets. Unless the right to a digital asset is held by a custodian or is controlled by a terms-of-service agreement, the fiduciary will have the right to access digital assets that belonged to the user as long as the fiduciary has been given authority over the assets of this individual. The fiduciary will be viewed as an authorized user of the property of a decedent (estate), settlor (trust), principal (power of attorney), or protected person (guardianship) under such circumstances. The new law also sets out what a fiduciary will need to do in order to request that an account be terminated when the time is deemed appropriate.

When a Fiduciary Seeks Content of Electronic Communications

When fiduciaries have authority that goes beyond “envelope” information, they will be faced some specific challenges. This would be a situation in which a deceased user extends the fiduciary’s power to dealing with digital assets to the actual content of electronic communications after the user’s death. This can be a very touchy area due to information that those communications may contain. If there is a custodian involved, the decedent’s personal representative, acting in a fiduciary capacity, may find that obtaining the content can be time consuming and, sometimes, extremely difficult. The decedent may have made this task easier by consenting to the release of the content of communications sent or received. Otherwise, the personal representative will have to explore asking the court that is involved to issue an Order that the information can be disclosed.

In both scenarios, the fiduciary for the estate then can request that the custodian provide the electronic communication’s content. However, the request may seem simple to make but can be much harder to implement; Section 3907 explains the steps. First, the personal representative needs to send a written request for disclosure in physical or electronic form, along with a certified copies of the death certificate and the grant of letters (either testamentary or of administration), plus a copy of the Will or other record that shows that the user consented to disclosure of the content.

Finally, the law can permit the custodian to request information that identifies the account as that of the decedent, with evidence linking the account to the user or a finding by a court specifying that the user had the account in question, that the information sought is “reasonably necessary” for the estate’s administration, and that federal privacy laws or other applicable laws would not be violated by the disclosure. As digital assets continue to proliferate, fiduciaries need to be prepared to overcome hurdles such as these in order to fulfill their duties and meet their responsibilities.

This brief look at digital assets and laws that are supposed to deal with them provides an idea that how the world’s increasing complexities since the internet age began in the mid-1980s. As technology advances, we must be ready to keep pace in life and in death. New laws have to understood, and we must attempt to keep up with additional laws that will be on the horizon. Then, the changing technological – and legal – environment must be part of the estate planning process. The last link involves fiduciaries who must be willing and able to understand what they can do and how they can do it as they are tasked with administrating estates, running trusts, implementing power of attorney, and carrying out guardianships. The future may not get any easier, but we have to be ready to face its inevitable challenges.

SOCIAL SECURITY BENEFITS & EARNED INCOME

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Many people work after they retire and start to receive Social Security benefits. If you are considering this possibility, you also need to be aware of the potential impact that earned income can have on these benefits. To the extent that your circumstances allow you to plan ahead, you should understand your options as well as the tradeoffs that making choices always entail. What follows is a look at common consequences of various paths that you might consider when eligibility for retirement benefits nears and also after you have begun to receive these benefits.

Your Full Retirement Age is the Key if You Work after Retiring

To figure out the impact of earned income on Social Security benefits after retirement, you need to know your Full Retirement Age (FRA). As a side note, the Social Security Administration  (SSA) sometimes discusses Normal Retirement Age. Whenever you see that term, you need to realize that it actually is the same as Full Retirement Age, which is the term that will be used here. Now, assuming that you decide to take early retirement but decide that you want, or need, to supplement your benefits by continuing to work, you also should understand how your age and earnings will affect the monthly amount that you are entitled to receive from the SSA. Before looking at the specifics, some discussion of the meanings of the terminology used by Social Security should be set forth.

Your Full Retirement Age depends on your date of birth. If you review Social Security’s FRA chart, you will see that this term actually applies to eligibility for retirement, spouse’s, and widow(er)’s benefits. The focus here is on the worker so what follows is specifically about retirement (or “old-age”) benefits, but the underlying concepts can be adapted to the other categories as well. With this in mind, a worker’s Full Retirement Age can range from 65 to 67 years under the current law.

If you were born on January 1, 1938 or earlier, your FRA was reached on your 65th birthday. At this point, your age will not affect your Social Security benefits, but, as will be mentioned later, your earnings still could play a role. In fact, anyone born before 1954 will have reached the applicable Full Retirement Age prior to 2020. As the chart regarding FRA shows, a person born before January 2, 1955 has a FRA of 66. As of May, 2020, those born after this date will have a Full Retirement Age that increases by 2 months every year until it reaches 67 years for everyone born after January 1, 1960. With this in mind, we will look at who is eligible for early retirement and also consider the impact of earnings on their Social Security benefits.

Also, you should remember that, even if you do not earn income, you will receive reduced Social Security benefits if you choose to retire prior to your Full Retirement Age. How this is calculated will not be detailed here. However, if you want to see how the SSA determines the reduced benefits, you could review RS 00615.001 of the POMS regarding Reduced RIB (i.e., Retirement Insurance Benefits).

Criteria for Eligibility for Early Retirement Benefits

If you want to retire prior to reaching your Full Retirement Age, you must be at least 62 years old and fully insured to be eligible for early payment of your Social Security benefits. You also must file an application with the Social Security Administration. If you turn 62 on the first day of the month, you could be entitled to early retirement benefits for that month. Otherwise, you could apply and be entitled to your Social Security benefits for the following month (POMS RS 00201.001). Finally, with this overview of early retirement as a foundation, we can explore the ins and outs of earned income for Social Security recipients.

For Years Prior to the Year When FRA is Reached

For a person who will not reach Full Retirement Age during the current calendar year the Social Security Administration uses two formulas for calculations when there is a cost-of-living adjustment for Social Security benefits announced in December of the preceding year. Of the two calculated figures, the larger monthly amount is multiplied by 12 to determine what is called the Lower Exempt Amount, which is used during the years prior to the year that you reach your FRA. As the calculations involved can be difficult to follow, Social Security publishes a chart of the Lower Exempt Amounts through the current year. For example, in 2020, the applicable amount is $18,240.

Simply put, your Social Security benefits are not affected if your earned income would not exceed $18,240 for all of 2020. However, as soon as you earn your first dollar above this amount in this year, your retirement benefits will be reduced. It should be noted that the reduction in benefits before you reach your Full Retirement Age are not permanently forfeited. Instead, after reaching your FRA, your retirement benefits will be adjusted to an increased amount that repays the amounts that your Social Security benefits were reduced due to earnings in any prior months.

In any calendar year prior to the year in which you reach your FRA, you are permitted to earn up to the Lower Exempt Amount while still being entitled to receive your entire early retirement benefit amount. For every $2 in earned income above the Lower Exempt Amount, you will lose have $1 of your Social Security benefits. Since the annual earned income limit is $18,240 in 2020, this is what you can earn without retirement benefits being affected.

As an example, if you would receive $12,000 in Social Security benefits during the year but also earned $42,240 from working, then – after subtracting the $18,240 from your total earnings – you would have $24,000 in income remaining. The remaining amount will lead to a reduction in these benefits. Since the amount is $24,000, this would result in a reduction of $12,000 in your Social Security benefits for 2020. In the end, you would not be entitled to any of payments from the SSA for 2020.

However, this reduction begins with the month that you first are eligible to receive Social Security benefits. In other words, in the year that you start to receive these benefits, your earnings prior to the month that your Social Security starts are not included in the calculation of the reduction of your benefits. Whenever you receive benefits throughout the entire year, then the Social Security Administration tracks your earned income for all 12 months of the calendar year and will base any reduction in Social Security benefits on all of your income for the year. If you began to get Social Security in July, then the SSA looks at earnings for July through December when determining if you exceeded the Lower Exempt Amount.

In Year that You Reach FRA

In the year of your birthday when you reach your Full Retirement Age, the Social Security Administration approaches earned income from a different perspective. Annually, it calculates a Higher Exempt Amount, which is the earned income that a person can receive before work could lead to a reduction of your Social Security benefits. For 2020, this equals $48,600 (according to the chart of exempt amounts since 1984 on the SSA website) – this amount is adjusted every December based on any cost-of-living increase announced by Social Security. In 2020, you can earn income up to $48,600 during the months prior to the month of your birthday when you will attain your FRA. As an example, if your birthday is in September, you would face a reduction in your Social Security benefits only if your earnings through August exceed $48,600. Provided that this occurs, the SSA also uses a different formula to calculate the benefit reduction. In this situation, the reduced Social Security benefits will equal the loss of $1 for every $3 of earned income.

In the Month that You Reach FRA and the Rest of the Year

As of the month that you reach Full Retirement Age, your earnings no longer can have a negative effect on the amount of your Social Security benefits. Put simply, no matter how much you earn after this point, the Social Security Administration will pay the entire benefit amount to which you are entitled.

In Any Year After You Have Reached FRA

For every calendar year after the year that you have reached your Full Retirement Age, you do not have to worry about reductions due to earned income. Under the current law, you are not subject to any annual earnings limit that will reduce your Social Security benefits.

Income Always Can Indirectly Reduce Social Security Benefits

Taxation of benefits can apply whenever you receive Social Security benefits. The IRS looks at unearned as well as earned income. Its basic definition of “income” will focus on your adjusted gross income plus nontaxable interest income plus half of your Social Security benefits. The Internal Revenue Code has two income brackets that determine when income taxes are levied on Social Security benefits due to income. Under the current Internal Revenue Code, individuals with income between $25,000 and $34,000 and married couples filing jointly whose combined incomes range from $32,000 to $44,000 can have up to 50 percent of their benefits subject to income taxation. Additionally, if an individual’s income (as defined above) exceeds $34,000 or a married couple filing jointly has income exceeding $44,000, the IRS can tax up to 85 percent of Social Security benefits. For a more detailed look at this subject, Publication 915 from the Internal Revenue Service is a good source.

Can Work Have a Beneficial Effect on Social Security Benefits?

The answer is yes, and the reason is that your future benefits can increase when FICA taxes are deducted from your earnings and then credited to your work record by the Social Security Administration. The key is the level of earnings in any year that you worked while receiving benefits.

Generally, the SSA determines your Social Security benefits using earnings from your work history before you retired. However, if your earnings during a post-retirement year are more than what you earned in a year used in the initial calculation, the post-retirement year is substituted for the year with lower earnings, and the SSA will undertake a recomputation of retirement benefits. Payment of the new higher amount actually begins in January of the year that follows the year when you had the post-retirement earnings so you also may receive retroactive benefits equal to the increase in benefits starting from that month to the present time.

A Final Note: Contacting the SSA about Changes in Earned Income

If you decide to retire early, you should contact the Social Security Administration whenever there are changes in your earned income. This will reduce the possibility of overpayments that the Social Security Administration may attempt to recover when delays in adjusting your benefits after your earnings rise, which would cause your Social Security benefits to be overpaid. When the SSA realizes that this has happened, it will seek to recover this amount. Because the SSA changes its benefit payments to you based on the amount that you expect to earn in a given year, you would want to report updated (and more accurate) earnings information during the year. This particularly is true if you underestimate your income at first since this would lead to an overpayment of Social Security benefits during the year, and that excess amount will be deducted from your benefits during the following year. Bear in mind that, when the Social Security Administration determines that you have been overpaid, it might keep at least part your monthly Social Security benefits until the amount that has been withheld equals the amount of the overpayment. Quick reporting of changes of your earnings is your best bet for avoiding these problems.

Can a Third Party File Bankruptcy for Another?

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A third party may be able to file a bankruptcy for someone else. For example, a Power of Attorney may be used to start a bankruptcy action party, but bankruptcy courts have limited the authority of individuals to take this step. The third party in this situation is the agent named by the principal (the would-be debtor in the bankruptcy) in the principal’s Power of Attorney (POA). Since the Bankruptcy Code does not prohibit a third party from taking this action but does require the debtor to be involved in the bankruptcy case, such a filing relies on factual determinations and legal interpretations by the Bankruptcy Court where the case was filed, which is the focus here.

Power of Attorney and State Law

With state law playing a large role in what powers can be granted through a POA and the language that is needed in the document, the courts that have interpreted the filing by a third party via a Powers of Attorney using similar ideas but oft times have reached divergent decisions. Pennsylvania is the primary focus here, but opinions from other states cannot be ignored as they are considered by courts during their decision making.

The principal for whom a Power of Attorney is drafted needs to have the language fit the law that will be applied in the individual’s state. If the agent is supposed to be able to file a bankruptcy for the principal, the Bankruptcy Court looks at the intent from the POA’s wording. At this point, a review of various approaches in different jurisdictions may give a clearer understanding of how the law evolves from jurisdiction to jurisdiction.

Interpretation Left to Bankruptcy Courts

As in Pennsylvania, the courts that have been responsible for determining what a given state’s law requires have been hesitant to prohibit the use of a Power of Attorney regarding bankruptcy in all circumstances. Fairness has been a concern that actually has resulted in positions from state to state that can support a given POA in one state while finding that it is not sufficient in another state. This can make the choice of law to be applied perhaps the most important decision in this area of law – in fact, this is a reason why a Power of Attorney should clearly indicate which state’s laws formed the foundation for the drafting of this legal instrument if it is to be used to file for bankruptcy by a third party.

Various jurisdictions over the years that have addressed the POA issue. There have been influential decisions from bankruptcy courts in Virginia, Missouri, and Pennsylvania. These will be highlighted to show how the issues has been approached by the federal judiciary and to demonstrate how the standards for what constitutes an acceptable document tend to differ, despite some commonalities overall.

Important Decisions from Virginia

A number of the opinions have been authored by judges within the Bankruptcy Court for the Eastern District of Virginia. A 1980 decision looked at when, during a bankruptcy action, an agent might be able to proceed in place of the principal. Specifically, In re Killett revolved around a third party seeking to appear at a reaffirmation and discharge hearing when the debtor, who was an active member of the Armed Services, was in England and was unable to return for this hearing. Section 524(d) of the Bankruptcy Code was at issue.

The Court pointed to its language stating that a debtor shall appear at this hearing. The law views “shall” as is a word that communicates a duty so that the individual has no choice about what must be done. However, despite this, the Bankruptcy Court noted that, as a court of equity, it had to weigh the facts to determine its decision, despite the use of “shall” within the Code’s provision. The Judge concluded that, under the circumstances that existed, the debtor would and could rely on the counsel of his attorney and allowed a third party to appear in the debtor’s place. The Court noted that “any loss of rights is on [the debtor].”

Subsequent cases from Virginia seemed to take a harder line against the use of Powers of Attorney in bankruptcy courts, however. These opinions – like In re Killett – often came from the Bankruptcy Court for Virginia’s Eastern District. 1981’s In re Raymond involved spouses in which only the wife was present at the time of filing. Since the husband had to be out of the area and could not be easily reached, the wife decided to file a bankruptcy on behalf of herself and her husband via a Power of Attorney in which he named her as his agent. The Court refused to permit this to proceed as it emphasized that bankruptcy is the personal exercise of a privilege – not a right – that has serious implications. The Court stated that, too often, a third party will abuse the POA in general and would not permit this to occur in bankruptcy actions.

Then, there was a 1990 case (In re Smith) from the same Bankruptcy Court, with another spouse seeking to file a joint bankruptcy case but, again, having to rely on a Power of Attorney to do so because the husband was physically disabled and could not execute the necessary documents. Again, the Court would not allow this filing. It also pointed to some considerations regarding third party filings, such as the lack of language in the document that set forth a specific power that authorized such a bankruptcy filing.

Notably, the Court would not point to the absence of this language for its denial and wrote that a guardian or a “next friend” could possibly file such a bankruptcy if a court with the necessary power issued an Order regarding this appointment and also included sufficient authorization to the third party filing. A “next friend” is someone who applies to a court based on an individual’s medical incapacity or minority.

The next friend would have to be in possession of evidence (usually an opinion letter) from a licensed, qualified physician to show medical incapacity. Then, the Bankruptcy Court would require the next friend to have the all of the information needed to file a bankruptcy; after this party filed the petition, schedules, and related forms, the Court would proceed with the naming of a guardian (who could be the next friend) to handle the remainder of the case. These decisions did not appear to view a Power of Attorney as sufficient by itself to justify a third party filing.

Other State Courts Also Have Looked at POAs

Courts continued to struggle with the issue of a Power of Attorney being sufficient to allow third party filings. For example, In re Harrison, a 1993 bankruptcy case from Florida, stated that a Power of Attorney could provide authority for a bankruptcy filing in unusual circumstances, such as someone in the service during an active conflict, or in a hospital, or in a state of incapacitation. The court went on to note that a non-debtor cannot be granted authority to sign a verification under oath unless this person has personal knowledge of the facts involved. This is due to Rule 9011 of the Federal Rules of Bankruptcy Procedure, known as the “certification rule.” The Court scheduled a hearing about the possibility of sanctioning the third party for signing the statement that verified facts known only by the debtor.

Courts throughout the United States have continued to struggle with the effect of the Power of Attorney in the context of a bankruptcy filing. Before getting to Pennsylvania, a few other decisions show how what begins as a similar perspective can lead to further confusion among the federal bankruptcy courts. Vermont was the source for an opinion from 2001 that bears similarity to the reasoning found in some leading Pennsylvania cases. The Bankruptcy Court in In re Curtis decided that an agent can file for relief for a debtor under 11 U.S.C. Section 109 but required something more than a simple general Power of Attorney.

In this case, the debtor actually came forward to oppose the agent’s action after the latter filed the petition. The Court’s decision was that the agent lacked authority from the time of the original filing because the Power of Attorney did not include specific language that permitted the bankruptcy filing or allowed the agent even to pursue any litigation or legal proceeding while it had language involving business transactions, gift giving, and other matters. The authority on which the third party relied was seen as too general, resulting in the case’s dismissal. Courts commonly discuss the requirement of “specific language” in such cases, but the problem is practice is that different courts have different ideas about what words are specific enough to be necessary words.

Then, In re Eicholz, a decision from the Western District of Washington state in 2004, opined that, under Rule 9001(c) of the Federal Rules of Bankruptcy Procedure, an agent can file for bankruptcy on behalf of the principal under appropriate circumstances. The language within the Power of Attorney again was crucial to whether or not a bankruptcy filing was within the POA’s scope. Here, the language had to expressly grant authority to start a bankruptcy action. Otherwise, the principal had to ratify the third party’s actions, which looked at the passage of time as well as the acceptance of a benefit from agent’s act or the assumption of an obligation imposed by this act.

One last opinion before reviewing how Pennsylvania is consistent with the overarching idea about the need for specific language comes from the middle of the country. In re Sapp from the Northern Division of Missouri’s Eastern District in 2011 looked at a joint bankruptcy in which the wife was found to be mentally incapacitated and physically disabled (which was defined to mean that she would be prevented from participating in the case in person, by phone, via the internet, or in any other manner). While the case actually involved a guardianship, the Court still stated in this decision a Power of Attorney could not justify a third party filing a bankruptcy action unless the POA specifically set out the agent’s power to file for bankruptcy for the principal. Again, the exact language that would meet this standard did not appear.

Pennsylvania: Third-Party Filings and Powers of Attorney

As noted previously, Pennsylvania decisions are basically consistent with the reasoning found in other jurisdictions. The Bankruptcy Court for the Eastern District of Pennsylvania has two decisions that date back to the 1980s but remain important even now. 1987’s In re Zawisza dealt with a Chapter 13 action filed by a “next friend” and determined that a next friend or guardian ad litem could pursue a bankruptcy under appropriate circumstances.

However, In re Sullivan from 1983 focused on the use of a POA, making it more relevant here. The situation involved a monk who was a Pennsylvania domiciliary but would be in Holland for approximately five years. Meanwhile, he faced financial difficulties in Pennsylvania, which led him to give his brother a Power of Attorney that contained a specific right to sell his real property. Unfortunately for the monk, the language was limited to this action and did not mention bankruptcy. Despite this, the brother – as the monk’s agent – filed a Chapter 7 bankruptcy on behalf of the monk to prevent further deterioration of his financial position. In response, the Bankruptcy Court dismissed this filing because the limited POA that existed did not provide legal authorization for a third party filing. From Holland, the monk amended his Power of Attorney to include a specific grant for his agent to pursue personal bankruptcy on his behalf.

The brother now was authorized to do whatever the unavailable principal could do if he were personally present. Furthermore, in addition to filing the bankruptcy that originally was to be dismissed, the agent also could attend the §341 Meeting of the Creditors in his brother’s place, despite the mandate in the Bankruptcy Code that the debtor must attend this meeting. Being that the Bankruptcy Court is a court of equity, the decision from the Eastern District of Pennsylvania permitted the monk’s agent to attend the meeting while the monk was deemed unavailable due to his five-year commitment in Holland.

Thoughts about the Power of Attorney & Bankruptcy in PA

This case probably sets forth the best blueprint for an agent’s use of a Power of Attorney to file a bankruptcy in Pennsylvania. The POA needs to have specific language that authorizes the agent to file an action under the Bankruptcy Code. The principal also must be unavailable. The cited case involves a debtor who is unable to be physically present to pursue relief under the Code.

Although no definitive statement can be made with absolute certainty, the bankruptcy courts in Pennsylvania are likely to seriously consider and, quite possibly, permit a third party to pursue a bankruptcy for the principal using a Power of Attorney containing language specifically authorizing such a filing under very specific circumstances. These would include debtors who can be proven to be mentally incapacitated or physically unavailable (either due to a significant physical disability or due to inaccessibility). The reasoning behind this is that this facts would prevent meaningful (if any) participation by the debtor and also would amount to a denial of due process if a third party with authority (e.g., through a valid POA) would be prohibited from pursing this matter.

Limited Liability Company & Personal Debt in Pennsylvania

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The Limited Liability Company (LLC) is a creation of state law. Depending on the state, the applicable law may be more business friendly, as it is in Delaware and Nevada, for example. However, Pennsylvania is not in this category, and its laws – like those of states with similar views of business – tend to be less specific in certain areas. This ambiguity means that many of the laws applicable to LLCs can be interpreted differently by different courts. The result is that, at the moment, how certain situations will be handled is somewhat of a guessing game. When looking at financial difficulties of a member of the company, the impact on the LLC itself can be difficult to predict right now.

Single Member and Multiple Member LLCs

As will be seen, Pennsylvania provides more direction and clarity for a Multiple Member Limited Liability Company (MMLLC) than it does for the Single Member Limited Liability Company (SMLLC). Both will be reviewed in the context of the law that was enacted in 2016 to provide some idea of where a member in the LLC stands when this individual or another member suffers from a financial downturn.

Look to State Laws Regarding LLCs Currently

One must bear in mind that, while federal law can preempt state law, this does not as yet apply to a member of an LLC. Federal bankruptcy law does not have any provisions that deal with LLCs specifically so this has left bankruptcy courts faced with issues regarding these entities to handle these matters on an ad hoc basis.

The LLC is becoming an increasingly popular type of business entity because of its hybrid nature. It is a pass-through entity in terms of income in the same way that a partnership is. Meanwhile, like the corporation, it generally is viewed as a separate entity, which serves to protect from liability for the business’s debts. Due to the increasing popularity, this area of law is likely to become more uniform in the future, as federal law adjusts to the changing landscape. At the moment, though, state law controls for the most part so one must consider where to establish the business – and also needs to realize that, if the LLC operates in multiple states, no state is bound to apply the law of a different state to a legal dispute that arises in its jurisdiction.

What is a Member?

Before looking at SMLLCs and MMLLCs, one should understand some definitions that are important for a Limited Liability Company. While an organizer often is employed to form the LLC and the operating agreement may specify that it will be run by a manager instead of its members (15 Pa.C.S. Section 8847), the member of the LLC is the most important component in the formation of the business. In the general definitions of Pennsylvania’s law, a “member” is defined; however, this definition is rather vague. Among the other definitions, one can gain a better understanding of what a member is. A person must provide a contribution that can consist of “property transferred to, services performed for or another benefit provided to the limited liability company;” an agreement to transfer property, perform services, or provide another benefit to the company; or a combination of these (Section 8842). In return, the individual gains a transferable interest to receive distributions from the Limited Liability Company (Section 8812).

The Importance of a “Transferable Interest”

The member is most easily viewed as an owner, but what does the member own? Section 8851 specifies that a transferable interest, which is what a member of an LLC actually owns, is personal property. This could be viewed as analogous to shares of stock in a corporation and, as will be seen, can play a large part when a member is forced to consider personal bankruptcy.

Personal Debt and Charging Orders

A brief review of the Pennsylvania Uniform Limited Liability Company Act of 2016, particularly the parts that are relevant to members with personal debt, is the necessary starting point. As already noted, Pennsylvania defines a member’s transferable interest as personal property. This is linked in the statute to potential consequences of a member’s personal debt. In Section 8853, the risk of a “charging order” and its negative implications for an LLC member is set forth. Basically, judgment creditors with unsatisfied judgments against a member can apply to the court for a charging order, which amounts to a lien on the member’s transferable interest.

Furthermore, the court has the authority to make all necessary orders regarding the charging order so that the creditor will be paid in full. If the judgment creditor can make a showing to the court that the charging order will not result in the debt being satisfied within a “reasonable time,” Subsection (c) of Section 8853 allows the court to foreclose on the lien and to order that the transferable interest be sold.

MMLLC’s Advantage If a Member Has Financial Problems

This produces a different outcome for a MMLLC and a SMLLC. As long as the Limited Liability Company has more than one member, the purchaser does not become a member. The former member would be forced to dissociate from the LLC, however; Section 8863 explains the implications. When an SMLLC is involved, the same judgment debt can be fatal to the member’s business because, if the sole member of the LLC is dissociated, ownership will change if the Limited Liability Company is to continue. A member of an SMLLC cannot afford to be in a situation that could result in foreclosure if the individual wants to continue in business.

“Dissociation” as Dictated by Pennsylvania Law

In Section 8861 (“Events causing dissociation”), Pennsylvania lists various situations in which a member of a member-managed LLC will be required to withdraw from the company. Subsection (8)(i) states that a debtor in bankruptcy must dissociate from the Limited Liability Company. How this would work with a MMLLC is fairly straightforward. However, this is a provision in which there is a need to interpret how it would be implemented when there is a single member. If applied as written, whenever the sole member of an SMLLC would seek protection under the bankruptcy laws, this person automatically must dissociate from the LLC. This leads to a scenario in which no one would be in position to manage business as soon as a bankruptcy is filed.

A more reasoned approach is necessary because the SMLLC can be a significant asset in the bankruptcy estate so leaving it rudderless is of no benefit to anyone involved in the bankruptcy. As previously noted, a member of an LLC owns a transferable interest, which is not the business itself; instead, this is considered personal property that could be viewed as similar to corporate stock. The transferable interest becomes part of the bankruptcy estate, to the extent that it cannot be exempted. If a Chapter 7 trustee holds the entire transferable interest of the Limited Liability Company, then the trustee could step into the shoes of the debtor, with the same management rights in addition to the ability to sell the LLC’s property to acquire funds to pay the debtor’s personal debts.

Should the SMLLC Consider Adding Another Member?

To protect the SMLLC from this fate, the member can look at potential actions that could be effective. However, none of them come with any guarantees of success, and they certainly have potential downsides. For example, when the individual has a significant personal debt load and realizes that action must be taken on the personal and business fronts, the person may think about bringing in a second member, who would have to have sufficient funds to pay fair market value for interest being transferred – it cannot be a sham transaction. Of course, this is not without risk. After all, a person establishes an SMLLC with a vision in mind that could be undermined when an additional member is recruited to participate in the Limited Liability Company.

Bankruptcy Could Equal Liquidation for SMLLCs

Bankruptcy itself is an option with obvious risks as well as possible opportunities for an attempt to save the business. When the member files for bankruptcy, the individual’s interest in the LLC will be part of the bankruptcy estate. Liquidation of its assets is a distinct possibility. On the other hand, this is not a foregone conclusion. Since the Limited Liability Company actually has not filed for bankruptcy, its equity position is a major factor in the trustee’s decision regarding what should happen to the business.

An Option to Consider when Liabilities Exceed Assets

The debtor could decide to explore ways to achieve a result that salvages the business entity. The first step is preparing balance sheet with a good methodology underlying its numbers. If the document reveals that liabilities exceed assets, then the trustee would not be fulfilling a trustee’s duty of paying the creditors as much as is feasible to limit what they would lose based on the impact of the bankruptcy. There is no positive value in liquidating the LLC so the bankruptcy trustee lacks an incentive to take pursue this approach. This leaves open the possibility that the debtor may be able to arrange to continue running the business depending on the circumstances that exist with the company and the ability to make a good-faith argument in its favor.

An Option to Consider when Assets Exceed Liabilities

Even if the balance sheet that the debtor presents to the trustee reveals that equity exceeds liabilities, the debtor still has nothing to lose by approaching the trustee before the trustee starts to liquidate the Limited Liability Company. Again, the member must have well-prepared balance sheet that the bankruptcy trustee will believe is sufficiently accurate when making the decision about the business’s fate. The debtor, if possible, could offer to pay the LLC’s liquidation value to the trustee – this is roughly is the dollar amount by which the assets exceed the liabilities.

Of course, the trustee does not have to accept, but, again, the trustee has a duty the debtor’s creditors to attempt to recoup as much money as possible to pay them for the debts that they are owed. The debtor would take the position that this duty is best met by agreeing to the amount proffered by the debtor. If the trustee agrees, then the debtor can be well positioned to salvage the Limited Liability Company and also be in a good position for a “fresh start” after a discharge is granted in a personal bankruptcy filed under Chapter 7.

LLCs Can Survive Personal Debt, But There’s No Guarantee

In the end, there are no guarantees regarding what will become of a Single Member Limited Liability Company in Pennsylvania when its sole member faces dire financial straits on a personal level. The future is easier to predict if the LLC has multiple members. However, in either situation, there are times when a person has run out of options other than bankruptcy, and this will affect the Limited Liability Company to some extent. Especially with an SMLLC, one must look at what potentially viable strategies exist and – if feasible – pursue an option that can allow both the debtor and the business opportunities to survive a bankruptcy positioned to make fresh starts and avoid facing a similar situation in the future.

Surrender of Property in Consumer Bankruptcy

Alberts Law, Debt Relief & Bankruptcy, , , , ,

When individuals with sizable debts decide to file for bankruptcy, they face other decisions that include whether or not to surrender property in their possession. The property to be surrendered secures debt that no longer can be paid. The implications of this decision are defined by definition of “surrender.” This is the necessary starting point.

What Does Surrender Really Mean?

The Bankruptcy Code does not provide a definition of the word. Instead, one is left to reviewing cases to determine what actually happens when property is surrendered. Also, property surrender can occur in Chapter 13 as well as Chapter 7. The main focus is on Chapter 7 bankruptcies since it is more often seen in this context. Following this post is a look at instances in which Chapter 13 surrenders can differ from those under Chapter 7 as well as what the differences can mean to debtors.

One Analysis of Surrender

In re Kasper is a 2004 case involving a Chapter 7 bankruptcy decided by the U.S. District Court in Washington, D.C. It provides an extensive analysis of relevant parts of the Bankruptcy Code to interpret “surrender.” The debtor had filed for bankruptcy under Chapter 7. As a result, he had to file a Statement of Intention regarding what he planned to do with property that acted as collateral for secured loans according to Section 521 of the Bankruptcy Code.

The debtor filed this form but did not select any of the choices that were listed. Instead, since he was current with the loan payments owed to Ford Motor Credit Company, the debtor’s stated intent was to “retain possession” of the car (which had a loan balance greater than the car’s current value).

Before the estate closed, Ford filed a motion to compel the debtor to file a statement in which he had to make one of three choices: surrender the property; redeem the property; or reaffirm the debt. Redemption would involve the payment of the amount of the allowed secured claim on the property. Reaffirmation restores personal liability that would cease with the closing of the case, although the car itself still would be collateral for the debt.

Defining “surrender” was the key to the court’s decision regarding the motion. The court focused on the 3 options listed with the retention of property in the Statement of Intention. These are exempting property, redeeming property, and reaffirming debt. A person who decides to retain property can choose among these options “if applicable.”

This interpretation led the court to see “surrender” as meaning turning over property to the trustee (and not directly to the lienholder) for administration under the debtor’s surrender obligation in  Section 521(a)(4) of the Code. Essentially, this would result in the car being subject to any lien enforcement rights under nonbankruptcy law that the creditor could exercise after the Chapter 7 automatic stay ended. The court denied Ford’s motion, believing that the debtor actually stated the intention to surrender the collateral to the trustee’s administration. This would result in Ford eventually having the option to enforce its rights under nonbankruptcy laws to get the car returned to it.

Courts Have Differed In Interpreting Surrender

Other courts, including the Bankruptcy Court for the Western District of Pennsylvania, have not made as an extensive of an analysis of “surrender” and have found a simpler meaning that seems to leave out a step (although the Bankruptcy Code’s lack of a clear definition for “surrender” makes this debatable). For example, in In re Losak (2007), the Western District of Pennsylvania decided that surrender means that collateral is given to the lienholder, which then can decide to pursue its rights under nonbankruptcy law. In re Failla, from Florida’s Southern District in 2014, focused on surrender meaning that a debtor agrees to not fight the lienholder’s exercise of rights under nonbankruptcy law. Of course, the endpoint is the same, and, ultimately, this is what matters.

When property that secures a debt is surrendered, a lienholder can pursue enforcement rights via nonbankruptcy law while the debtor indicates no intent to fight these actions, as long as those laws are not violated (see In re Ryan, 560 B.R. 339 (2016), from Hawaii that makes this point). However, until the creditor acts, the debtor retains title or ownership in the property. This last point is the main concern: surrender, by itself, does not change the owner of property.

Implications of Surrender for the Debtor Remain the Same

Since the owner has not changed, who is responsible for the property has not changed unless there is further action. Many debtors who have decided to surrender property seem to be caught unaware of the implications of this.

The Statement of Intention in Chapter 7 provides a blueprint for the future because the debtor does not transfer ownership or title immediately to the creditor. The implications are easiest to see if real property is involved. When a house secured by a mortgage note is surrendered, the debtor’s obligation regarding the mortgage payments and any deficiency balance that may exist will cease after the bankruptcy. While personal liability ends, there remains a property lien on which the creditor can foreclose. Obligations that arise after the date that the bankruptcy was filed belong to whoever is the named owner on the deed.

Problems When the Creditor Is In No Hurry to Foreclose On a House

The debtor’s problem is that the creditor may decide not to foreclose, and, until a foreclosure sale occurs, the debtor remains the person whose name is on the deed. This leads to consequences that a debtor often did not anticipate when the surrender option was chosen.

As long as the debtor in bankruptcy remains the owner on the deed, this individual remains responsible for property taxes that will be assessed. In addition, if a third party gets injured while on the property, the record owner of the property could face liability. This means that insurance should be maintained, despite the surrender of the property. Maintenance and upkeep also must be considered – for example, some utilities may need to remain turned on, and the debtor will get the bills.

The individual could look at options to get rid of the property when the creditor is in no hurry to foreclose. The property potentially could be sold, but anyone who has a lien in place must agree to the sale. Offering a deed in lieu of foreclose is a possibility, but acceptance by the creditor is not likely. Then again, the debtor could wait for the foreclosure process to occur, although a Chapter 7 bankruptcy as well as nonbankruptcy laws do not provide ways to force the issue. However, even after a surrender of this property, the debtor could decide to remain there as long as possible because ownership has not changed. Depending on the condition of the real estate, this could be the best choice.

Consider Possible Problems When Surrendering Property

Other types of property securing debts that were surrendered during the course of the bankruptcy can present similar problems, although on a somewhat smaller scale. A car must be maintained and insured, for example. If the debtor’s name remains on the title, then the debtor will be responsible for the collateral. Therefore, whenever property surrender is the chosen method of dealing with secured debt, the debtor filing the Statement of Intention under Chapter 7 first must consider the consequences since surrender does not mean an instantaneous change in ownership.

A Few Words about Surrender in Chapter 13

A Chapter 13 bankruptcy can involve surrender of property, too. This can occur when the Chapter 13 plan does not provide for payments regarding property that secures a debt. The creditor in this situation may pursue a deficiency claim and follows this by participating in the distributions to unsecured creditors. This debt must be handled in this way because, after the collateral has been surrendered under this chapter, the debt that had secured specific property becomes unsecured debt.

However, the surrender of property in Chapter 13 does not automatically change ownership of that property so debtors are in the same position here as with a Chapter 7. There is a potential mechanism for a surrender to result in the creditor being forced to take ownership in a Chapter 13 bankruptcy. When a debtor’s Chapter 13 plan is confirmed, the case does not end because the plan may take 3 to 5 years to be completed. During this time, the Bankruptcy Court continues to have jurisdiction over issues involving the plan. If a confirmed plan’s success is jeopardized when a creditor leaves property to be returned in limbo, the Court could issue an order that forces the completion of the transfer.