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Legal

Kathy Adkins

2007-11-01 10:18:00

What do you do when you are a small to medium sized business owner and you want to increase your customer base? Advertising is so expensive.

I recently found a place that anyone can use to advertise their business to a huge target market. Finally, someone has come up with a website development that is simple enough for a 10 year old to set up. Now I know you are thinking, YEAH and how many hundred dollars is that going to cost?

I have walked the trail of tears spending thousands of dollars on website development, not happy with the product, lied to by scam artists, difficult to use, impossible to adjust to your latest sale, sometimes using Flash technology which some people can’t access and it constipates computers still on dial up.

To this very day, I am still trying to get one "website" developer to repay the money he took under false pretenses. What I found is a tool that lets me keep my domain name for the rest of my life if I want, never worry when I change ISP’s and what to do about notifying people of a new e-mail address I now don’t need.

Do you know that when you try to do business with a business savvy person and you tell them your email address is "yahoo" or "hotmail" they just secretly laugh and think you really don’t have a clue what you are doing!

If you can’t set up your own "domain", they are for sure not going to take you serious. Your permanent domain name, "WYSIWYG" (what you see is what you get), technology so simple a 10 year old can operate it, multiple templates to choose from, a back office and referral INCOME can be had by anyone FOR $10.00 A MONTH!!! It gets better!! They let you try it out for a week free, how cool is that?

As soon as you can get 25 minutes free and have a computer with sound, go check this out for your self. HTTP://blesstheday.ws There is a short video that shows you what is possible. What have you got to lose, go try it out.

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Legal

Kathy Adkins

2007-10-01 11:09:00

What would you do if this were YOUR life event story?

Laurie peered out her window from behind the curtain for the- what was it, the tenth time today? The twentieth? She had lost count hours ago. Her world began to spin out of control with the ringing of a telephone. It was one of Laurie’s closest friends, who had called to tell her that the children would not be coming on Monday morning. Haltingly, her friend explained the reason: Laurie was under investigation for child abuse! It had been reported to the school counselor that Laurie was abusing children at her home day care, and the counselor had in turn notified the Department of Human Services. A hammer began to pound in Laurie’s head as she listened, her heart thumping heavily against her chest. Even more shocking was that the report had been made by the son of a friend, for whom Laurie had cared for since he was a toddler. This simply could not be happening! Why would he say such a thing? Her friend went on to warn her that DHS may be sending case workers to investigate. When she finally hung up the receiver, Laurie’s world had been changed forever. The future looked deathly pale and bleak. No answers came to mind-only a choking, overwhelming flood of terrifying questions, who could help answer her questions? At 5 PM on a Friday, Laurie had almost forgotten that she had help available at a moment’s notice. Laurie dialed the phone and trembled as she was sure there would be no answer until Monday. To Laurie’s relief, a voice answered and started asking Laurie questions to help direct her problem to the best source to assist her. Somehow Laurie felt better after she talked to the person and waited for a return call. That call came about 10 minutes later! Laurie was so relieved to have someone who knew what to do direct her thoughts and actions until the world made sense again. Should SRS show up at her door and demand she turn over her own children to them for protective custody, Laurie knew she could call a special number no matter what time of the night it was and have help on the phone to protect her and her family’s rights. How often are innocent people caught in a nightmare maze that occurs so fast and seems overwhelming to handle. Talking to friends and relatives is one thing but having someone who actually knows the right answer for you is another. Not everyone wants their “friends” to know about all their situations. Not all “friends” keep your information private. I sincerely hope you never face anything like what Laurie did, statistics show that we are more likely to have these things happen than to be hospitalized. If I am forced to deal with problems like these I want knowledgeable assistance available and I want it NOW!

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Legal

Kathy Adkins

2007-09-01 09:59:00

: What happens when you reach in your mailbox and you see a return address that sends waves of nausea and fear into your body? That return address happens to be our lovely internal revenue service, The IRS.

Question: What happens when you reach in your mailbox and you see a return address that sends waves of nausea and fear into your body? That return address happens to be our lovely internal revenue service, The IRS. Answer: Ideally, you as an honest taxpayer want to only have slight contact with the IRS sometime around April 15 or before if you are one of the 15% who file early. You either grit your teeth and cough up what they say or you look forward to a small bonus for over paying your taxes (interest free) all year. What if you get a dreaded letter and it says they want the taxes you owe for the many jobs you held in California in the last three years and they want you to pay up NOW?? Your mind reels, WHAT JOBS???? You haven’t even seen Disneyland or the Golden Gate Bridge. Never been to California?? Your social security number has and it has been busy. Daily people who were not born here have social security cards and drivers licenses issues for about $35.00. “You” now get jobs, earn wages, get traffic tickets and do all sorts of things in states you personally have never been to. Now the new “YOU” does not plan to file taxes (why should they?). They don’t pay traffic fines (that would bring them in too close a contact with law enforcement). The new “YOU” just goes on doing what ever the day brings for them to do. Things may show up in 6 months or it may take 2-3 years for enough problems to show up for some sort of enforcement to take place. Suddenly one evening you are stopped in a routine check point and before you know it you are in handcuffs and being transported to jail in the back of a police cruiser with your mind spinning trying to understand what is going on. This isn’t the plot for a new TV show nor is it the latest mystery novel. It is YOUR LIFE circling the drain while you desperately try to grasp what is happening. This is the life of a victim of one of the 5 forms of Identity Theft. It isn’t a cute TV commercial and your credit card company isn’t interested in fixing this problem for you. Just think, while you sleep tonight your social security number and drivers license may be on a whirlwind trip around the United States, Over 2 million people rest easy knowing they have someone watching for these things 24 hours a day 7 days a week. When no one could find the money Saddam Hussein hid who do you think found it? “Kroll.” Pick up any magazine or newspaper and see how many articles you find for Identity Theft, watch Dateline NBC. Your personal information is available for $5.00. Kathy Adkins is a manager with PrePaid Legal and works closely with many families and individuals to help them have peace of mind by protecting the legal rights of their lives and careers. Kathy comes to PrePaid Legal after a long career in nursing and a couple of college degrees from WSU. Kathy is a seminar presenter on several subjects and a “Distinguished Toastmaster”. Kathy works with many area businesses to help protect them from the increased number of Identity Theft issues and regulations that are now part of federal regulations. Kathy is one of a few “Certified Identity Theft Specialists” in the Wichita area and will present free to your group or company to show you how to protect your company and employees. Kathy works closely with the Derby and Haysville Chamber of Commerce and the business referral group “Business Network International.” Kathy can be reached for questions or speaking engagements by phone (316) 529-8565 or by e mail at kadkins3@cox.net Visit the web site www.prepaidlegal.com/hub/kathyadkins to see more on protecting your rights for pennies a day.

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Legal

Kathy Adkins

2007-07-30 15:23:00

Have you ever been driving down the street minding your own business and suddenly you see flashing red and blue lights in your rear view mirror?? Maybe your teenager walks in the door with that sick look on their face and a pink piece of paper that says money and trouble ahead?

Congratulations!! You have just joined 46% of the driving public. Speeding tickets do several things, they cost you time and money, they raise your insurance rates (sometimes for 10 years at a time) and they label you as a bad driver. We all know that teen drivers have really expensive rates to begin with because they tend to have more accidents and less experience. If you are the parent of a teen then you are aware of how troublesome these can be. I will guess that there isn’t ONE driver in Wichita that hasn’t at one time or another exceeded the limit when we weren’t paying attention. We talk on cell phones, eat, talk to passengers and do many things that take our attention away from driving. Kellogg is known for people who want to drive 70-80 MPH and as such the Wichita Police Dept sets up speed checks to slow things down. I am delighted to see the radar guns and lines of police cars set up along Kellogg and 21st street. Some Wichita drivers take driving to a whole new level and it isn’t funny for those around them. Going 10 miles over the speed limit can cost you in excess of $200. Think about this, you reach over to adjust your radio or pick up your ringing cell phone, suddenly there is a terrible accident and someone may have died. Do you have $40,000- $100,000 set aside to take care of those expenses? Your car insurance company isn’t interested in this area of expense. I don’t EVER want to be in that situation but I know full well that things happen we don’t expect so advance planning is the ONLY logical solution. As sure as the sun comes up in the east, one of us is going to wait too long to leave the office, be held up by a train or had a friend stay too long to visit. We MUST be on the other side of town and the minutes to get there are short. You think that maybe just a little over the limit, now what is the “rule?” 5 MPH over and they won’t stop you??? I have news for you, ONE MPH over can get you that undesired piece of pink paper. Are you on vacation in Texas and you honestly didn’t know you were over the limit. Do you think the Texas Highway Patrol cares that you didn’t see that sign 10 miles ago?? No, but you have as Garth Brooks says you have “friends in high places” to take the sting out of that unexpected encounter with out of state law enforcement. Be protected in all 50 states.

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Legal

Kathy Adkins

2007-07-01 16:13:00

What would you do if you were the parent of a teenager bordering on being out of control and your attempts at control were labeled abuse? What if you ran a licensed day care and suddenly you were accused of something horrible by a child or parent? What would you do if your usually compliant child did damage to the neighbors property beyond what you could afford?

Answer: Kids, Courts and Confusion. These situations happen everyday in the real world. A father who is normally gentle and reasonable attempts to keep an angry teenager from leaving the house in a fit of anger by holding an arm. The teen calls 911 and tells them she is being “abused” to retaliate against her parent. Would you know what to do?? Do you know what your legal rights are at this point?? Can you get the proper advice at 2AM when frustrations are running high?? Yes, you can. Let’s say you have run a day care of a few years with never as much as a skinned knee or complaint. Suddenly you have been accused of something you think you only read about in the newspaper. Everyone in the community is whispering and looking at you funny. Your neighbors won’t speak to you and the neighborhood children are not allowed at your home to play with your children. You are a teacher of several years and suddenly you are accused of improper behavior with a student, you are nearly fainting because the things you are accused of never happened. What do you do and who do you call? If SRS showed up at your door at 11PM to remove your children or worse yet arrest you, do you have a defender to call 24/7 to protect your rights?? Your child has been associating with children you are not sure about and one day a police officer is at your door because your child was seen near a neighbor’s property and thousands of dollars of damage has been done to a neighbor’s home. When you don’t know your rights, you effectively don’t have any rights. Often knowing the exact thing to do can save you money and grief. Why wouldn’t you want the correct advice instead of replying on your “gut” feeling? Even when you go to the expense of trying to determine your rights, the “professional” you contacted may not be giving the best advice. People like Oprah and Charles Koch never make decisions without having everything reviewed by their professional staff. If the correct advice could save you hundreds of dollars for the price of a cup of coffee wouldn’t it be worth it?? Parents can breath a sigh of relief when faced with acting out offspring, child care providers can feel secure that they aren’t going to be “tarred and feathered” for something they didn’t do. You won’t be faced with a second mortgage to pay for something your child wasn’t involved with.

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Legal

Kathy Adkins

2007-06-01 09:30:00

What will you do when you start getting collection letters from the local hospital for a surgery you didn’t have? What will you do when the IRS wants $20,000 for taxes for a job you held in California? You have never been in California. What will you do when you are arrested for selling drugs on the street and you don’t even know what drugs look like?

What you are experiencing is IDENTITY THEFT. Identity Theft happens every 4 seconds to someone. This activity is rated above drug dealing when comparing sheer volume and income potential for the thief. In March 2007, Dateline NBC did an extensive 2 part program “To Catch An Identity Thief”. This program detailed that no matter how careful you are, sooner or later you will be a victim. Your personal information is out there for as little as $5.00. In reports from last year, more than 90,000,000 individuals’ information had been stolen by HUGE data breeches from companies that should have protected your information better. The very company that has the funny commercials to warn you about “IDT” was breached and millions of former clients’ information was accessed by the criminal underground. What can you do to protect yourself and your family (children’s’ information is stolen as well as deceased individuals)? There are companies whose ONLY job is to solve these problems for you. Imagine that with one call, you can hand these nightmares to someone else to handle and not have to spend time, money and frustration to RESTORE your peace of mind and your good name? These companies are world wide and well versed in how to handle these problems. Can your credit card company look in all 50 states to see if you have drivers licenses in those states that you knew nothing about? Can your credit card company check to see if you are holding jobs in different states, NO! Will your credit card company assign a licensed investigator to personally clean up any IDT mess and fully RESTORE you to pristine credit? NO! A Wichita college professor waited two extra weeks to take out this protection and in that time someone ran up $40,000 dollars in fraudulent charges against her name and credit rating. A company that specializes in restoration is going to work to clean up this mess but they can’t do as much as they could have since there was not any protection before the incident started. It is not a matter of IF identity theft happens to you, it is a matter of when. Only 5% of identity thieves are caught. When you calmly think “well I have protection from that” what you do not understand is that you can wind up being TOTALLY responsible for the entire bill because you did not notify everyone possible within the allotted time, because you had no idea that this had happened.

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Legal

Chris Mitchell

2005-03-01 10:05:00

: I am starting a business in which I'll be the only owner.  I know there are different business structures, but how do I determine which structure is best for my business?

ANSWER: You must first have a general understanding of the options which are available to you.  The following is a general description of those options.  There are four general types of business structures in Kansas:  sole proprietorships, partnerships, limited liability companies, and corporations.  Partnerships require two or more partners, therefore, since you will be the only owner, a partnership is not an option for you at this time.  The sole proprietorship structure is the most simple and likely the most prevalent structure used among businesses with one owner.  Kansas does not require an individual to make any filings with the Secretary of State to create a sole proprietorship.  A sole proprietorship must be owned by an individual and that individual can be the only owner.  Income from a sole proprietorship is reported on the individual's personal income tax return and the income is subject to self-employment tax.  One significant factor to consider with a sole proprietorship is that personal assets of the individual are subject to the claims of creditors of the business, regardless of whether such personal assets are used in the business. Another option for you to consider would be to form a corporation.  A corporation is formed when the incorporator files the appropriate documents with the Kansas Secretary of State.  Generally, a corporation may be owned by any individual, trust, estate or legal entity.  The stockholders of a corporation elect directors, who then appoint and supervise officers to manage the day to day affairs of the corporation.  In contrast to a sole proprietorship, a stockholder's liability for the claims of any creditors of the business is in most cases limited to the stockholder's interest in the corporation, meaning that the stockholder's other personal assets are not subject to the claims of such creditors.  There are exceptions to this liability protection.  Any wages paid by the corporation to you would be subject to employment taxes.  However, dividends you receive are not.  For income tax purposes, a corporation may either be an S corporation or a C corporation.  An S corporation files an informational return reflecting the income or loss for the corporation, and in turn, the stockholder of that corporation includes his or her share of the income or loss on such stockholder's individual income tax return.  Thus, the S corporation does not pay corporate income tax.  In contrast, a C corporation is required to report and pay corporate income tax.  Thus, a C corporation is subject to a two tiered tax structure.  In order for a corporation to be treated as an S corporation an election needs to be filed with the IRS and certain qualifications need to be met.  In addition, any dividends paid to a stockholder of a C corporation are taxable to such stockholder.  You may also choose a limited liability company as the entity for your new business.  Similar to a corporation, a limited liability company is formed when the organizer files the appropriate documents with the Kansas Secretary of State and may be owned by any individual, trust, estate or legal entity.  Since you would be the sole member of the limited liability company, the limited liability company would be treated the same as a sole proprietorship for income tax purposes and you would not be required to file a separate income tax return for the limited liability company; instead, you would report the income on your personal tax return.  As a single member limited liability company, such income is subject to self-employment tax.  As the single member you may manage the business yourself or you may choose to appoint one or more managers to manage the business for you.  Similar to a stockholder in a corporation, the personal assets of a member of a limited liability company are not generally subject to the claims of business creditors beyond what such member has invested in the limited liability company.There are other issues to consider when deciding upon the choice of business structure for your new business.  You must consider the nature of the business.  What types of assets will be used and owned in the business?  Are you considering bringing in partners or investors into the business in the future?  If so, do you want those partners/investors to have a say in the management of the business?  As you can see, there are many areas to consider in deciding upon the right business structure for your business, and I recommend that you visit with an attorney before making this decision.

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Legal

Troy Purinton

2005-02-01 11:24:00

: I recently bought a refrigerator which was advertised as new, but since found out that in fact it had been returned to the store by a previous buyer after the previous buyer had used it.  I also found out that the same make and model of refrigerator sells for new at other stores for several hundred dollars less.  I tried taking the refrigerator back, but the store manager told me I couldn't return it. This doesn't seem fair.  Is there anything I can do?

ANSWER: Yes there is.  In 1973 the Kansas Legislature passed the Kansas Consumer Protection Act in order to help the consumer overcome the very difficult hurdle of proving fraud, and added some very tough penalties for these kinds of actions.  Even though the Act has been in existence for over 30 years, there are still several consumers who do not know it exists or the protections it offers.The Act prohibits two types of actions by sellers: "deceptive acts and practices" and "unconscionable acts and practices." The statute lists many different types of deceptive acts and unconscionable acts.  An example of a "deceptive act" is in your question-you were sold a used refrigerator when you thought you were buying a new one.  That is a deceptive act.  There is also an "unconscionable act" in your question: selling you an item for a price much higher than others sell it for.  Remember the gas stations right after September 11, 2001, who raised the price of gas to over $5.00/gallon?  It is this law that the Kansas Attorney General got those gas stations with. There are many different types of deceptive acts and unconscionable acts, which an attorney can tell you about if you think you have a problem.  If it turns out that you have a viable consumer complaint action, some attorneys are willing to take your case without payment up front.  This is because the Act provides that if you win, the other side is responsible for payment of your attorney's fees. Further, you the consumer can recover your actual damages (here, the amount you paid for the refrigerator) or a "penalty" of up to $5,000 per violation.

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Legal

William L Townsley

2005-01-01 08:51:00

: We own a small business with six employees.  After slipping in the back room and injuring his back, one of our employees has been receiving workers' compensation benefits.  He recently brought in a work release with work restrictions.  Should we put him back to work with restrictions?

ANSWER: When an employee is injured at work, the employer is liable for costly disability and medical benefits under the Workers' Compensation Act.  As the employer, you can limit your exposure  by utilizing an aggressive return-to-work strategy that will benefit both you and your employee.In most cases, a physician will release an injured worker with temporary work restrictions as the injury begins to heal. In the case of serious injury, an injured worker will be released to return to work with permanent work restrictions. With either temporary or permanent work restrictions, an employers' accommodation of an injured worker minimizes workers' compensation liability. When you as an employer accommodate your employee's work restrictions and return him to work, you will realize the direct savings from reduced workers' compensation disability benefits, both temporary and permanent. When an employee is released to return to work with permanent work restrictions, the Kansas Workers' Compensation Act provides that he is entitled to permanent disability benefits for the physical impairment resulting from the injury. If he does not return to work, you may be liable for more costly "work disability" benefits. The Act states that injured workers can be compensated for "work disability" if they are not earning 90 percent of the pre-injury wage after they are allowed to return to work. By returning injured workers to work for at least 90 percent of the pre-injury wage, employers preclude the potential for a work disability award.For example, if an employee who earns $400 a week sustains a back injury that results in a 5-percent functional impairment and permanent work restrictions and if the employee returns to work for at least 90 percent of the pre-injury wage, the employee is entitled to an award of approximately $5,000. However, the same employee would be entitled to an award of more than $55,000 if he has not returned to work.  The award could be even greater if the employee establishes that he has sustained a task loss as defined by the statute.It is easy to see, therefore, that by returning an employee to work in a position that accommodates the permanent restrictions, you can save thousands of dollars in workers' compensation benefits. These savings result in smaller premiums for workers' compensation insurance which is mandatory for most businesses.  Your company also benefits from the loyalty and allegiance of  employees who recognize and appreciate that you take care of them.An aggressive return-to-work strategy is just as beneficial with respect to temporary restrictions. Some reasons for returning injured workers with temporary work restrictions to work in accommodated positions are:• Temporary disability benefits are terminated. When injured workers return to work, they again earn the same wage, and they are no longer entitled to temporary disability benefits.• Accommodating injured workers allows employees to maintain self-esteem and prevent them from becoming deconditioned during a long layoff.• Injured workers on restrictions can perform jobs that are seasonal or neglected by the regular work force.• Returning injured workers to jobs sends a message to the other employees that workers' compensation is not a free ride, a welfare entitlement or an easy vacation. Rather, it is a means of helping injured workers until they can return to work.It is in your best interest as an employer to provide work to  injured employees that accommodates both temporary and permanent work restrictions. Injured workers benefit by remaining productive members of the work force. The benefit for you as an employer is not only the savings of costly disability benefits, but also your greatest asset - the loyalty of well-trained employees.       The information appearing in this publication is being provided by Fleeson, Gooing, Coulson & Kitch, L.L.C. for informational purposes only and does not constitute legal advice.  This information is not intended to create any type of lawyer-client relationship.

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Legal

Mike Cannady

2004-12-01 10:02:00

: I have read that it is important to do estate planning, but I wonder if that really applies to me.  I'm a widow, and I want all of my property to go to my three children when I die.  Is it necessary for me to do estate planning, and if so, what exactly do I need to do?

ANSWER: Actually, without doing any estate planning, any property which you own at your death will pass, under state law, to your children, in equal shares.  This, however, does not mean that you do not need to do some estate planning.  The estate planning process involves not only the preparation of documents which will provide for the proper distribution of your property upon your death, but also documents which are important during your life.  I would suggest that your estate plan should include the following:Will/Living Trust.  Although state law may provide for the distribution of your property to your children, I would suggest that your estate plan include either a will or living trust.  Either of these documents could not only direct that your property go to your children, in equal shares, but could also contain contingencies for unexpected events.  For example, there is always a possibility that one of your children could die before you do, and if that happens, you could direct that such predeceased child's share is to go to your other children, your grandchildren, or to some other relative, friend, or charity.  Furthermore, if any person receiving a portion of your estate is incompetent or too young to properly manage his or her share, you can provide that such share be retained in trust for that person's benefit.  The use of a will or living trust also allows you to appoint, in the case of a will, an executor to handle your estate upon your death, or, in the case of a living trust, a successor trustee to take over following your death.  Also, if any of your children are still minors, you would name a guardian and conservator for such minor children.   With a living trust, the trustee of the trust holds title to your property, and at the time of your death, the trustee has authority to pay your obligations and taxes, and is responsible for distributing the trust property to beneficiaries, without the involvement of the probate court.  This probate avoidance can result in significant savings to your heirs.  Typically, you will name yourself as the trustee of your own trust during your lifetime, and therefore you can maintain complete control of the trust property.  You may spend trust assets, amend the trust's provisions, and revoke the trust at any time.  Furthermore, no separate trust income tax return needs to be filed, and you will continue to report income from the trust on your individual tax return (Form 1040).In the case of a will, upon your death the will is admitted to probate, and the probate court supervises the administration of your estate.  This is generally more costly than if your property is held in a trust.  In some cases, however, having the probate court supervise the administration is preferable.The primary advantage to a living trust is probate avoidance, while the primary disadvantage is that it is more expensive to draft and fund a living trust than to draft a will.  Whether a living trust or a will is better for you will depend upon a number of issues, and you should discuss these issues with an estate planning lawyer before making any decision.  Financial Durable Power of Attorney.  A financial durable power of attorney authorizes whomever you name to sign documents and otherwise act on your behalf.  You can direct that this document become  effective immediately, or only if you become incapacitated.  In either event, it will remain in effect through any period of incapacity, and will terminate upon your death.  If you do become incompetent sometime during your life, this type of a power of attorney will, in most cases, prevent your family from having to have a conservator appointed for you by a court.  Power of Attorney for Health Care Decisions.  A power of attorney for health care decisions is similar to a financial durable power of attorney in that it authorizes whomever you name to act on your behalf.  The actions taken by the person you name in the power of attorney for health care decisions, however, will not be in relation to your finances, but will be in relation to your personal care.  If you become incompetent sometime during your life, this type of a power of attorney will, in most cases, prevent your family from having to have a guardian appointed for you by a court. Living Will.  A Living Will is a document wherein you direct that you do not wish to be put or kept on life support if two physicians have determined that you are terminally ill, and that the application of life-sustaining procedures would serve only to artificially prolong the dying process.  The Living Will and the Power of Attorney for Health Care Decisions are sometimes referred to collectively by doctors and hospitals as Health Care Directives. In addition to the above documents, there could be a number of other documents which may be of use to you.  For example, depending upon the size of your estate, you may need to do some estate tax planning. There is a federal estate tax and a Kansas estate tax, both of which can be minimized or avoided with proper planning.  Also, if you own your own business, you may need a buy-sell agreement, or some other form of business succession planning. Regardless of how simple you believe your estate to be, there are a number of issues which you should discuss with an estate planning lawyer.  Such a lawyer can look at your particular situation, and advise you on the proper way to proceed.

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Legal

Brian Collignon

2004-10-01 11:05:00

: My wife works for a large industrial company.  She injured her back yesterday at work when she was lifting a box of materials.  She reported the accident to her friend who works at a station nearby and needs to see a doctor as soon as possible.  Does she need to let anyone else at work know about the accident?  Who should be paying for the medical bills?

ANSWER: Your wife may wish to file a workers' compensation claim against her employer.  Certain requirements must be met under the law for her to obtain workers' compensation benefits.  One of the requirements is that she must provide notice of the accident to her employer within 10 days of the accident.  The notice must contain the time, place and particulars of the accident.  She can give the notice orally or in writing.  The 10 day deadline to give notice does not include Saturdays, Sundays or legal holidays.  Even though she has 10 days, she should provide notice as soon as possible.  If she fails to report the accident within 10 days, she should still provide notice and check with an attorney because there may be sufficient cause to extend the deadline.Unfortunately, telling her friend about the accident will probably not satisfy the notice requirement.  She must tell her supervisor.  It would also be wise for her to ask that an accident report be completed.  Her employer is required to complete an accident report whenever an employee has an accident.In addition to the notice requirement, there are other applicable time limitations.  For example, she must tell her employer in writing that she demands workers' compensation benefits within 200 days of the accident or 200 days of the last payment of compensation.  This written claim may be served in person by taking it to her employer and getting a receipt for it, or mailing it by certified mail, return receipt requested.Your wife's employer is required to provide and pay for necessary medical treatment and she should tell her supervisor that she needs to see a doctor.  Your wife should follow her employer's instructions as to what doctor she should see and then follow the doctor's instructions including work restrictions.  If she feels that the medical care she is receiving is unsatisfactory, she should tell her employer that she wants to see a different doctor.  The workers' compensation law is intended to help your wife get healthy and compensate her for missed work and any resulting disability.  If she feels that her employer is not complying with the law, she should contact an attorney.

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Legal

Susan Selvidge

2004-08-01 11:28:00

: What will be the effect of the new Fair Labor Standards Act Regulat-ions on overtime exemptions?

ANSWER: The new Fair Labor Standards Act overtime exemption regulations guide employers in the classification of employees for minimum wage and overtime purposes.  This article is a summary; the regulations are at 29 CFR Part 541.  Either the regulations or your attorney should be consulted before classifying or reclassifying any employees.  There are still exemptions for Executives, Administrators, and Professionals, plus there are specific new rules for Computer employees.  The new rules are similar to the old rules, but somewhat simplified.  The base salary to qualify most employees as exempt is not less than $455 per week.  In general, the overtime exemptions apply to white collar office workers, and not blue collar workers.Executives must supervise at least two or more full time employees, or the equivalent in part time employees; have the primary duty of management of a department or subdivision of the business; and have authority to hire/fire/discipline/promote, or at least their suggestions must have particular weight.  Some assistant managers may be classified as executives (some non-management work is allowed). [$455 rule applies.]Administrators must have the primary duty of office work related to management or general business operations, and must exercise discretion and independent judgment on matters of significance.  ($455 rule applies except for Educational administrators.]Professionals are "learned professionals" such as doctors, lawyers, architects, registered nurses, degreed engineers and accountants, teachers, etc.; mostly jobs requiring at least a four year college degree; or they can perform work requiring "invention, imagination, originality or talent in a recognized field of artistic or creative endeavor" (examples are music, writing, acting and graphic arts).  There is a specific discussion of journalists.  [$455 rule generally applies except for teachers.]Computer Employees may be exempt professionals, especially systems analysts, programmers and software engineers, depending on job duties.  [$455 rule applies.]Outside Sales Employees must have the primary duty of outside sales; and there is no $455 salary requirement.Highly compensated white collar employees (salary no less than $455 per week, plus other compensation to equal or exceed $100,000) are exempt.There are new rules allowing some unpaid disciplinary suspensions without losing the  exemption, involving infractions of written policies (i.e., sexual harassment policy).

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Lyndon Vix

2004-08-01 09:19:00

: We are interested in adopting a child from a foreign country.  Are there any legal proceedings that are required in the United States and will we need an attorney?

ANSWER: The adoption of foreign-born orphans by American parents has become increasingly popular in recent years.  According to the National Adoption Information Clearinghouse, in 1992 there were 6,536 international adoptees brought to the United States.  By 1999, that number had increased to 16,396.  China, Russia, South Korea and Guatemala were the most popular countries for international adoptions by U.S. citizens in 2003.In order to obtain a Kansas birth certificate for a foreign-born child, you must obtain a decree from a Kansas court.  Adoption agencies that specialize in international adoptions may require that, before a child is placed, the prospective parents retain an attorney and promise to complete the process of obtaining a Kansas birth certificate.The process that must be followed for obtaining the necessary court decree depends upon whether the child was actually adopted in his or her home country, or simply released for adoption in the United States. This will vary from country to country.  In situations where the actual adoption has already taken place in the foreign country (as is the case in China, for example), Kansas has created a simplified procedure sometimes referred to as "re-adoption."  This involves simply filing the adoption papers from the foreign country (along with translations) with a Kansas district court.  The court will then enter the necessary decree recognizing the foreign adoption and allowing you to obtain a Kansas birth certificate.In countries in which the child is not actually adopted but is simply released for adoption in the United States (such as South Korea), the procedure is a bit more complicated and takes more time.  In these situations, you must comply with most of the same legal procedures that you would with a domestic adoption.It should also be noted that even after you have a Kansas birth certificate, there may be further steps that need to be taken in order to obtain U.S. citizenship for your foreign-born child.  This will again depend on the country of origin and other factors.Your adoption agency should have specific information regarding the procedures that need to be followed for both adoption and citizenship, and will be able to answer most of your questions.  However, the adoption process cannot generally be completed without the assistance of an attorney who is familiar with this area of the law.

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Kent Meyerhoff

2004-07-01 11:24:00

Question:  What are trademarks, copyrights and trade secrets, and how are they protected?

ANSWER:    Trade-marks are words, phrases, symbols or designs that distinguish goods or services of one business from those of another. Common examples include Pizza Hut®, Starbucks® and "Can you hear me now? Good.®"  These words and phrases bring an instant mental image to most people's minds - and that's what makes a trademark valuable.  From a consumer's standpoint, trademarks ensure you that a product or service comes from a particular company and that you will get a product or service of a particular quality.  From a business standpoint, trademarks are advertising devices that attract consumers and create a demand for products.To protect this valuable asset, many businesses register their trademarks.  Other businesses rely on "common law" protection for trademarks, which is available without registering a mark.  However, registering your trademark gives you many more rights and remedies in the event of an infringement.  Not all words or phrases can be protected as trademarks.  "Generic" marks cannot be protected.  For example, the word "soda" is a generic word in the beverage industry.  It would be unfair to give one company the exclusive right to use the word, because consumers use it to describe carbonated beverages in general.  "Descriptive" marks cannot be registered unless they have developed a "secondary meaning."  This means that when people hear a word or phrase mentioned, or see a particular symbol, they think of a particular product or business. Other words, like "Kodak®" or "Crayola®," are "arbitrary" and have no meaning apart from the products they identify.  These marks are registrable without proving secondary meaning.   Likewise, "suggestive" marks can be protected without secondary meaning.  A trademark attorney can help determine what type of mark you have, whether it can be protected and what steps should be taken to best secure that protection. Like trademarks, copyrights are something most people have heard about but few fully understand. Generally defined, federal copyright law provides protection for any "original works of authorship."  This definition implies - and many people believe - that copyright applies only to books, newspapers or other formal written works.  However, the subject matter of copyright is very broad. You create and use items that are protected by federal copyright law every day.  Copyright applies to everything from letters to photographs to music to an architect's design for a house. Copyright law in the United States has changed many times during the last 20 years.  Under current copyright law, copyright protection exists from the moment a work is created.  And, anyone copying or reproducing the work without permission could be held liable for infringement. Whether a copyright notice must be attached, and what form that notice must take, depends on whether or when the work was first published.  The remedies available for copyright infringement can vary, too.  An attorney skilled in this area of the law can help you answer these questions.Another type of intellectual property that affects many people is trade secrets.Broadly defined, a trade secret is anything that gives a business an advantage over its competitors and is not generally known by the public or others within a particular industry.  Trade secrets can include formulas, patterns and programs, as well as the processes or procedures that a business uses in daily manufacturing. There are two major keys to qualifying something as a trade secret.  The first is fairly obvious: It must be a secret.  The second is that a trade secret must be something that "derives independent economic value from not being known or readily ascertainable by others in the public or same industry."  In plain English, that means the secret is more valuable because you are the only one who knows it. The secrecy requirement does not mean that only one person can know the information, though.  Obviously, some trade secrets are not valuable unless they are disclosed.  For example, if you invented a unique process for refining oil that eliminated all air pollution, it would be a valuable discovery.  However, the discovery would lose its value if it could not be revealed to your employees who had to use the process.  Trade secrets can be revealed, therefore, on a "need-to-know" basis without jeopardizing their status as "secrets."  Nevertheless, strict control measures should be followed in determining to whom this information is revealed. Companies commonly attempt to prevent disclosure of trade secrets by using two types of agreements: non-compete agreements and non-disclosure agreements. In a non-compete agreement, an employee typically agrees not to compete with the employer in a particular area for a particular length of time after his employment.  If you are the employer, it is important to have an attorney knowledgeable in this area of the law draft these agreements to make sure you are adequately protected.  If you are an employee being asked to sign a non-compete agreement, it is important to have your attorney review the agreement to make sure you understand the restrictions it places on you. Like non-compete agreements, non-disclosure agreements are used to help protect valuable trade secrets.  This type of agreement, however, has broader implications. A non-disclosure agreement prevents people from disclosing trade secrets to others.  While a non-compete agreement restricts a former employee from actively competing with a business that alone would not prevent the employee from revealing trade secrets to third parties. A non-disclosure agreement prevents this from happening.  As with non-compete agreements, a non-disclosure agreement should be drafted or reviewed by an attorney who is familiar with the legal requirements for this type of agreement.

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Phil Mellor

2004-06-01 09:38:00

Question:  I own land that may be involved in the creation of the proposed Northwest Expressway, which will connect Highway 96 with Highway 54 at or near Goddard. What can I expect the highway to take from me and how am I to be paid?

ANSWER:  As you are aware, cities, counties and the state department of transportation have the power of "eminent domain," which means that any one of them can take whatever land it needs for right-of-way. You are, however, entitled to just compensation and damages for what is taken from you. The nature of by-pass highways is such that you will not have direct access to the new highway, so don't count on any access benefit.The law provides that your just compensation and damages, if all of your property is taken, is the fair market value of the property. If only a part of your property is taken, you are entitled to the difference between the value of the property before any was taken and the value of the remainder after part of it was taken. These calculations generally require the assistance of experts in the appraisal field. There are several good appraisers in the Wichita area. Before hiring one, you should inquire into the extent of government work they have done, for some appraisers work almost exclusively for governmental agencies.We are informed that the route of the Northwest Expressway has not yet been finally selected.Ultimately, when this has been determined and funds are available, the city or county or KDOT will appraise the damage to your property and make you an offer of compensation if the highway actually goes through your property. This offer may or may not represent the full compensation to which your are entitled. At that point, you probably ought to consult a lawyer to receive a full explanation of the procedure that will be followed in acquiring your land and the remedies you have in seeking fair compensation.Experience and history shows that the involvement of attorneys is essential in seeking just compensation and damages.The information appearing in this publication is being provided by Fleeson, Gooing, Coulson & Kitch, L.L.C. for informational purposes only and does not constitute legal advice. This information is not intended to create any type of lawyer-client relationship.

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Susan Selvidge

2004-05-01 11:35:00

:  An employee submitted her resignation yesterday, effective one month from now, because she is extremely unhappy in her job.  As her manager, I am concerned that her productivity will decrease and that she will have a negative effect on her co-worker's morale over the next few weeks that she is here.   I'd like to pay her for two weeks' work and ask her to leave immediately, rather than have her stay through the whole month.  Is this legal?  What would you recommend?

ANSWER:  Your concerns are legitimate, but what you want to do would change the situation from a resignation to firing the employee.  If the employee does not have a contract and is employed at will, and if your company does not have employee policies which would prevent the termination, it would be legal.  It might or might not be wise.  It would be an easier question if you would be willing to pay her for the one month.  You could just tell her that her resignation is accepted and that she does not need to return to work in that period, but will be paid.  Otherwise, all the concerns that are raised by any discharge or firing are present.  Does this employee have some basis for a lawsuit against the employer?  What is the reason she is unhappy?  Is she being sexually harassed, or having problems based on sex, gender, race, nationality, religion, age or disability?  Is she involved in any situation that involves whistle-blowing against the company for some allegedly illegal company practice?  Does she have a work injury or workers compensation case pending?  If there are any questions along those lines, you need to consult an employment lawyer about what to do, even if you don't fire her now.  It is possible to make an agreement with her to leave early and obtain a release of claims in exchange for severance pay, but there are federal requirements to release some claims.  You would need to consult an employment lawyer to prepare a proper release.  The safest and most economical plan would be to pay her for the month but not have her work any more.

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John Gerdes

2004-04-01 14:42:00

Question:  My husband and I are getting up in years and would like to add our child's name to the title on our house; our house is the main asset we own.  We want to do this to avoid probate.  A friend says that may not be wise.  Why?  What alternatives do we have?

ANSWER: I assume you and your husband do not intend to give your child any ownership interest in your house at this time but rather want him or her to inherit the property after you both die.  I also assume that you were thinking about adding your child to the title on your house as a joint tenant with rights of survivorship.Adding your child as a joint tenant with rights of survivorship will avoid probate by automatically transferring legal title to your house to him or her upon your and your husband's death.  However, as discussed below, this creates potential problems for you and your husband during your lifetimes.Adding your child's name to the title on your house as a joint tenant suggests to the world that he or she currently owns an interest in the house.  That could create a number of potential problems for you and your husband.  A creditor of your child could file a lien (tax or judgment lien) on your house in an attempt to collect your child's debt.  Any such lien would interfere with your ability to sell or borrow against the property.  More importantly, certain creditors could force a sale of your house to collect on your child's debt.In addition to making your house available to your child's creditors, your child could hinder your rights to the property.  For example, he or she may refuse to execute a deed or otherwise cooperate with you in the event you later decide to sell the property or give it to someone else at death.You and your husband might be able to avoid these potential problems by proving that you did not intend to give your child any current ownership interest in the house and that you only added him or her on the title for convenience sake to avoid probate at your deaths.  However, doing this could be time consuming, costly and require litigation.  In addition, after the death of you or your husband, the survivor may not be able to correct these potential problems.     In lieu of adding your child to the title, there are two other means of transferring ownership of your house to your child after death without need for probate.  Both of these methods also avoid the potential problems discussed above.First, Kansas law permits you and your husband to file with the Register of Deeds office a "transfer on death" deed that would transfer ownership of your house to your child after your deaths but would not give him or her any current ownership interest during your lifetimes.  During your lifetimes, you can revoke or replace that deed without your child's cooperation or permission.  This arrangement is similar to a "pay on death" account that you may maintain with your bank, savings and loan or credit union.The other method of avoiding probate would be the creation of a revocable trust (also referred to as a living trust).  You and your husband could then transfer legal title to your house to that trust.  The trust document itself would spell out when your child is to receive your house.  During your lifetimes, you and your husband would retain the right to revoke and amend the trust and you would normally also act as the trustees of the trust.  Since the trust owns the house, there is no need for a probate proceeding to determine ownership of the house after the death of you and your husband.  If it is your desire, the trustee or successor trustee would simply transfer legal title to your house from the trust to your child after your death.  On the downside, preparation of the trust document can be expensive and time would need to be devoted to administering the revocable trust after your deaths.Since your house is your major asset, you may want to use the "transfer on death" deed which is considerably less expensive and time consuming than a revocable trust.  If you had other significant assets that could not be transferred through a "transfer on death" deed or other means to avoid probate, then creation of a revocable trust might be the more desirable option.  Whether you choose to create a revocable trust or utilize a "transfer on death" deed to transfer ownership of your house to your child, I recommend that you consult an attorney to assist you.

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Marc C Davis

2003-12-01 10:58:00

: Should one always consent to a Breathalyzer test, or are there some instances when I should not?

ANSWER: It depends. I must start off by saying that under Kansas Law, you will be asked to submit to a breathalyzer test, or B.A.T., once the arresting officer has determined that he/she has established probable cause for requiring the blood, breath or urine test. Of course you can refuse, but you must understand that refusing to submit to a B.A.T. will have some repercussions. The risk is a one-year loss of driving privileges. However, this risk must be balanced against the likelihood of you providing law enforcement with solid evidence of impairment. For example, if you were facing a third or subsequent D.U.I. in your lifetime, you would be charged with a felony, in which case you would be facing one year in jail versus one year's loss of driving privileges. However, if probable cause is not established the results of a B.A.T. could be suppressed or the use of that evidence could be limited. It is easier to explain this question by discussing what generally has to happen before a person is asked to submit to a B.A.T.

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Marc C Davis

2003-10-01 11:35:00

: The recent flooding tragedies of the turnpike between Wichita and Kansas City have left me baffled and confused.  How does a wall of water hit like it did?  How does one know whether to stay in or abandon his/her vehicle as water continues to rise?

ANSWER: I don't know whether or not I am an authority on being able t answer your question, but I was there.  I can attest. there are many things one might think of doing given the time to think.  It happened to quick.  Here's my story:   I was heading North on I-35, thinking of nothing but a long, enjoyable and well-deserved weekend in Kansas City.  I thought, "I sure hope this rain lets up or it's not going to be as enjoyable as could be."  I was about 7 miles North of Emporia.  The rain had now turned in to literal 'sheets' of rain.  I was heading downhill to a valley when I noticed a car stopped in the middle of the road.  I could not see clearly.  As I slowed down, I began to notice people getting out or their cars.  Something was not right.  Little did I know at the time of the horrifying ordeal I was about to witness.    About the only thing I can remember as I entered this valley was all the cars. people outside of them. and the concrete barriers to my right. After about 20 minutes, troopers arrived and began clearing an emergency access lane. Looking ahead to the valley, I could see what seemed like a 'wall' of gushing water.  Across this water were more cars, coming from the South, in the same situation I was in.  Cars on both sides of the valley had no idea how deep the water was between us.  With the rain still coming down ever so hard, and the water in the valley rising noticeably, I could see this was about to become a very serious situation.  Over 90 minutes passed.  The water in the ditch had risen at least 2 feet.  White caps began forming not only in the ditch, but also in the valley ahead of me.  I watched a man just two cars in front of me get out of his car and ask people to back up.  The water had risen so his tires were covered with water.  After the cars behind him made room, he tried to turn around. The water was too high.  His car was swept first into the ditch, then into the massive valley of water below.  It was then that the concrete barriers gave way, adding to the already grave situation.  I learned later this was the man from Texas who lost his life.   At this point, it seemed like there was about 40 people in this valley of terror.  Looking north, I saw what appeared to be people waving flashlights.  After a couple of minutes, to my horror, I realized the lights I saw were actually the headlights of cars that were under water.  As the cement barriers gave way, it reminded me of a fully-loaded water cannon from a fire truck, only times three.    Three hours had passed.  The rain had not eased.  I thought to myself, “This is it,  there’s no getting out now.”   I began to plead with the drivers behind me to please back up.  I turned to look North. The van directly in front of me had vanished, swept away by the raging water.  I knew I was next.  If I have ever panicked in my life, I panicked then.  A couple of minutes seemed like an eternity. The cars behind me began to creep back, just enough to allow me room to make a u-turn and pull out.  One by one, the cars behind me followed what I had done.  As I neared the top of the hill I thought, “This may not have been what they mean by a 'near death experience,' but that is what I will always call it.”

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John Gibson

2003-08-01 13:57:00

: Do employees have the right to express unpopular political views at work?

John Gibson Question: Do employees have the right to express unpopular political views at work?Answer: Yes, as a general principle employees have the right to express their views at work, with certain restrictions. The First Amendment to the United States Constitution guarantees freedom of speech and freedom of the press. The United States Supreme Court has ruled in various cases, however, that such freedoms are not absolute nor do they occupy a preferred position. The Court has held that they may be limited so as to protect the rights of others or to guard against subversion of the government and the spreading of dissension in war time. Protection of the rights of others includes the rights of employers. Employers may impose reasonable work related rules depending upon the type of business and the work being done. For example, an employer may require employees to wear protective gear, to wear uniforms, etc. An employer also has the right, if it is reasonably necessary in the work place, to restrict certain speech in the work place if the restrictions have the purpose of enhancing the work place, halting disruption, and protecting the rights of the employer and other employees. All of these restrictions by an employer have to be legitimately necessary for the work being done and to enhance or protect the work place. The key is that any restriction placed by an employer has to be legitimate, has to be for the benefit of the work place, and has to be reasonable. Thus, an employer may restrict conduct and speech in the work place if the above conditions are met. The other primary restriction placed on freedom of speech is not imposed by the employer, but by law; that is the prohibition against slander. Slander is the speaking of defamatory words that tend to prejudice another in his or her reputation, office, business or means of livelihood. Whether in the work place or anywhere else, slanderous words cannot be spoken. To summarize, employees do have a right to free speech at work, including expression of unpopular political views, subject to the restrictions discussed above.

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John Gibson

2003-08-01 11:22:00

: I own a small business with about twenty employees, half of my employees are men and half are women.  I've read about employers being sued for allowing an employee to sexually harass, usually a male sexually harassing a female.  I have several questions: first, since my firm is so small, is it subject to sexual harassment laws?  Is it true that an employer can be held liable for an employee's sexual harassment conduct?  What if I don't know it's happening?  Finally, what kind of activity constitutes sexual harassment?  

ANSWER: In recent years, sexual harassment has received greater media attention, reaching all the way to the White House.  This illustrates the answer to your first question: since my firm is small, is it subject to sexual harassment laws?  The answer is that all employers, even the President of the United States, are subject to sexual harassment laws.  Employees receive equal protection, regardless of the size of the company for whom they work.   Sometimes companies face sexual harassment charges directly, and other times they are accused of sexual harassment because of a worker's actions.  This brings up your next question: can an employer be held liable for an employee's sexual harassment conduct?  The answer is, it depends.     So what does it depend on?  The key is company awareness, which relates to your third question: what if I don't know it's happening?  If the sexual harassment comes from an agent such as an owner, supervisor, or manager, the company will be strictly liable, even if the company was not aware of the harassment.   On the other hand, if the sexual harassment came from a non-management worker, the company will not be liable if it had no reason to know of the harassment.  For example, if the harassment took place when no other workers were around, and the victim did not tell anyone about it.  However, if the company knew or should have known of the harassment, it will be liable unless it takes immediate and appropriate action to eliminate the problem.    So now that you know when your company will be liable, how can you answer your last question:  what kind of activity constitutes sexual harassment? The name itself can be misleading, because sexual harassment need not be sexual, nor intended as harassment.  So if a supervisor told his secretary, "You're a woman, what do you know?" he would be committing sexual harassment, even though it is not sexual.  In the same way, if a male coworker complimented a female coworker by saying, "You look sexy today" he would also be committing sexual harassment even though he did not intend to harass her.   When lawyers say "sexual harassment," they usually mean "gender-based discrimination."  This happens anytime a worker officially "notices" the gender of a coworker.  This can happen in a number of ways, from asking for sexual favors in return for some work benefit, to off-color jokes at the water cooler.  In all of these situations, the victim is placed in an uncomfortable situation because the other person is "noticing" the victim's gender in an inappropriate way, and it can be construed as sexual harassment.   As an employer you should be aware of the rules relating to sexual harassment, and should educate your employees about what will not be tolerated.  Also, if you learn of any activity that may constitute sexual harassment by any employee, you should intervene.

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John Gibson

2003-07-01 10:56:00

: Can I deduct divorce payments for my federal income tax? 

ANSWER: Payments made to a former spouse certainly can qualify, but do not always qualify, for the alimony deduction.  In order to qualify the payments must be properly structured as alimony or support payments for the former spouse or separating spouse.  The proper preparation of the written divorce or separation documents are very important to the question of deductibility.  For example, in a recent case a man claimed that a payment made to his former wife's attorney qualified as alimony and was therefore tax deductible.  The Court disagreed and disallowed the deduction because it found that, under state law, the man would remain liable for this obligation to the attorney even if the spouse died.  As a general rule, in order to qualify for an alimony deduction payment, it should be described as alimony or spousal support in a written divorce or separation document.  This also will require that the recipient will have to include the payment in his or her gross income.  That is, the man can exclude the alimony payments from his gross income, but only if the former wife includes the payment in her gross income and pays tax on it.  Further, such documents should specifically provide that the liability for payment terminates upon the death of the spouse that is receiving the payment.  Make sure you seek advice from a legal or tax professional before entering into such an agreement.

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John Gibson

2003-04-01 11:53:00

:   I love my job, terrific benefits, and a great opportunity for advancement.  I am also in the Kansas Air National Guard, and because of the situation in Iraq my unit has been put on notice it may be activated.  Although my employer is patriotic and supports the military, he will have to put another person into my job if I go to active duty.  My concern is my job status when I return from active duty in one or two years.  Will I have a job?  Will I lose my salary or seniority?  What if I am wounded and can't return to work for three or four years?

ANSWER:   You raise valid concerns, not only for employees that are military reservists and Guard members, but for their employers as well.  There are potential hardships for both employee and employer.  The questions you raise, however, are essentially answered in your favor.  In 1994 Congress passed a law that makes it illegal for an employer to discriminate an employee serving in the military.  The law requires that if a reservist or Guard member is activated, he or she is entitled to reinstatement upon return from service, including reinstatement of seniority and all benefits.For the benefit of the employer the law requires the military employee give a reasonable notice of the time of a call-up.  Therefore, you should tell your employer immediately of any activation or possible activation information you have. The law also clearly states that the employer does not have to pay the employee while on military leave.  When the employee returns from active duty there are set time limits which range up to 90 days (depending on length of service) to reapply for the job. You should check and determine the time period that you have to reapply when your tour of active duty is over.  An employer is not required to keep a job open for more than five years, unless it is war time.  If the military leave is more than 90 days the employer has the option to return the employee to a similar job, but does not have to give the employee back the same job.You asked the question about being wounded.  The deadlines for requesting reinstatement may be extended for up to two years if the employee is recuperating from an injury incurred in military service.  If the employee suffers a long term disability, the employer has an obligation to offer a reasonable accommodation to help the employee return to his or her job.You asked about seniority.  As already stated you will have seniority reinstated upon return to work.  In addition the law allows an "escalator principle" which requires that if the employee was to receive certain benefits as a result of seniority, reinstatement must be to the level he or she would have been at had he or she not taken leave. In other words, the seniority continues to accumulate while the employee is on military leave.  The law also requires the employer to offer medical benefits on a continuing basis to the employee, for a period of at least 18 months, while the employee is on military leave.  This allows for continued coverage for the family of the employee.The law is simply an attempt to help the employee not lose ground while on active military duty, yet not work too great a hardship on the employer.  I hope this answers your questions.

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John Gibson

2003-03-01 11:49:00

:  As a widow I am considering changing the title of my real estate to joint tenancy with my two children.  I have heard this will avoid probate, but I have also heard there may be some problems with joint tenancy.   Is joint tenancy a good estate planning tool?  Is there a better way to pass title to my real estate to my children without probate?

ANSWER: Generally, it is not advisable to use joint tenancy as an estate planning tool, to pass real estate to children.  We should understand how joint tenancy works.  Real estate ownership in joint tenancy is created by a deed to two or more persons with language clearly expressing an intent to create a joint tenancy.  The principle feature of joint tenancy is survivorship.  The advantage to joint tenancy is that upon the death of a joint tenant his or her entire interest in the property automatically and instantly passes to the survivor or survivors of the joint tenancy, and eventually to the last survivor.  A joint tenant may freely dispose of his or her interest but only of his or her interest - not the entire ownership.  Also, such disposition will "break" the joint tenancy and cause the transferee a tenant-in-common with the other joint tenants.  The primary advantage of joint tenancy ownership is avoiding the requirement of probate to pass title at death.  There are disadvantages.  The primary disadvantage of joint tenancy is that it effectively restricts ownership of real estate to those situations where the owners desire their interests to pass at death to their joint tenants.  Once property is put into joint tenancy it is effectively owned by the joint tenants as well as the transferor.  It may become subject to debts and obligations of the joint tenants.  Also, if you want to sell the property and it is in joint tenancy you must get the permission and signature of the joint tenants.  It is not unheard of for a child to refuse to sign a joint tenancy deed to allow a parent to sell the property.  A better alternative in many situations for transferring an interest in real estate at death and avoiding probate is titling the real estate in "transfer-on-death".  In 1997 the Kansas Legislature passed a "will substitute" bill.  It allowed, for the first time, a "transfer-on-death" ownership for real estate.  A transfer-on-death deed will transfer ownership of the interest upon the death of the owner, automatically and instantly, to the transferees named in the deed.  This avoids having to go through a probate proceeding to transfer the real estate.  The beauty of the transfer-on-death deed is that the property remains solely owned by the transferor, being the parent in your situation.  The children are not owners of the property, have no say so if the parent later wants to sell the property, and the property is not subject to creditors of the children. Thus, the transfer-on-death deed accomplishes the same thing as a joint tenancy deed, being the automatic and instant passage of property upon the death of the transferor.  But, the transfer-on-death deed keeps the property solely in the name of the transferor, without the encumbrances of other persons that go along with joint tenancy.For the above reasons, in most parent/child situations, a transfer-on-death deed for real estate is preferable to  joint tenancy.  For the same reasons, a "payable-on-death" bank account, which works the same as a transfer-on-death deed, is a preferable way to hold ownership in a bank account as opposed to joint tenancy.

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Legal

John Gibson

2003-02-01 15:30:00

: Are there special things to look for in an agreement if you are considering changing your home to an assisted living facility, or if you are thinking about moving a loved one into an assisted living residence?

ANSWER: Yes.  Assisted living residential agreements are very important, every bit as important as a contract to buy a house, and they should be carefully reviewed.  "Assisted living residence" is a type of housing available for senior citizens and anyone else who needs a little help with their daily routine. It's a mixture of nursing home and hotel.  In an assisted living facility residents pay rent for, or in some cases purchase, an apartment or small townhouse unit.  The resident receives all the help they need bathing, dressing, getting around and even eating. Their health is constantly monitored to make sure the residents take their medication, do their therapy, and go to doctors appointments.  Meals usually are provided, as well as laundry and housekeeping services.  An added benefit is that there are facilities for group activities, and group activities are usually conducted by the assisted living facilities to be enjoyed with the other residents.Although there are many good things about assisted living facilities, it is a relatively new service and the industry is still working out the details. That is why it's so important to review the assisted-living residence agreement carefully with your attorney. Many questions should be asked about the agreement.  For example, does it spell out exactly what services are included for the base rental rate (or monthly fee in a purchase situation), and which services incur an additional fee? While assistance with bathing and dispensing of medication may be standard services, housekeeping and laundry service may be extras.  You must get a detailed list of what services are provided and what charges are made.  Even if the contract says that services like housekeeping are included, is the frequency of service within the control of the facility or is there some objective measure of how often the room will be cleaned and the linens changed? Does the contract specify how many meals a day are included? Is there a registered dietician in charge of preparing meals?  What does the contract say about termination of the rental agreement or termination of the monthly fee if the resident's condition deteriorates to the point where he or she needs a nursing home or hospital care?  In cases where the living unit is actually purchased what are the "sale-back-to-the-facility" requirements and at what sale price?Another area to consider is the extent to which the contract tries to limit the facility's liability for harm to the resident. In some states, including Kansas, such provisions are illegal. The contract also may take away a resident's right to sue the facility if something goes wrong, and substitute mandatory arbitration.  Arbitration is a method of resolving a dispute that a resident may want to agree to at the time the dispute occurs, but may not want to sign an agreement requiring mandatory arbitration in every situation. If the assisted-living candidate suffers from a significant level of disability and does  not have the capacity to enter into a contract, then someone else with a legal right to act for the person must enter into the assisted living agreement.  This would be a court-appointed guardian and conservator, or a person that holds a durable power of attorney.  He or she must take all the steps necessary to review the assisted living contract on behalf of the would-be resident.  A person considering an assisted living residence, or the court-appointed guardian or power of attorney on the person's behalf, must also make sure that sufficient funds are available to pay for the assisted-living care in the short term, and perhaps for the remainder of the resident's life. For this reason it is important to absolutely confirm, in writing and preferably as part of the written contract, any cost increases that the facility may impose over a five- or ten-year period of time. It would be a tragedy to have to move from the facility after the resident had come to love it.An assisted-living contract will govern the resident's quality-of-life in his or her last years, and the "last years" could turn out to be many years. It is essential that all the details of the resident's everyday life are provided for in that contract.  It is also essential that the contract satisfactorily covers all of the issues that may arise in the assisted living situation. (Answer adapted from the Gilliland & Hayes, P.A. Legal Advisory, Fourth Quarter, 2002).

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Legal

Linda Kirby

2002-11-01 15:46:00

:  My husband and I wrote our Wills years ago when our children were small.  Our children are now grown now and have children of their own.  We named each other to be the Executor because we do not want our estates to go through probate.  We own everything jointly.  Do we need to re-write our Wills?

ANSWER:  Dear Reader, let me first clear up some common misconceptions about Wills.  A Will "goes through probate."  Your Will is your written instructions to the court about who is to handle your estate at your death and how it is to be managed and distributed.  You only nominate an Executor in your Will; the court must appoint the Executor after a hearing.  The Executor has no authority to act until the court has made that appointment.A Will is not a document of title.  Your assets and property are not transferred directly by your Will to the new owner.  Instead the court must order the transfer of probate assets after all expenses, debts, taxes and other costs are paid.In answer to your specific question about re-writing your Will, because your family's needs have changed since your children were young, you should review your estate plan with an attorney who customarily does estate planning.  While, your children no longer need a guardian or a conservator, there are other reasons that a Will may be important to you.  You indicated that everything you own would go to the survivor at the first death because you and your husband own everything jointly.  First, many of us believe that we own everything jointly only to discover too late that such was not the case.  Also your estate plan may not deal with what will happen to your estate after both you and your husband have died.  And you may not have considered your grandchildren in your estate plan.  When you speak with an attorney remember:  Some wills are more effective and cost saving than others.  Write or review your own Will with the following time- and money-saving provisions in mind.  An effective Will should include:-Your full legal name and your residence.  All court proceedings must have your correct legal name in addition to any other names in which you own property.  Your residence determines where your Will may be offered for probate.-The full legal names of your (potential) heirs, their whereabouts and their relationship to you.  These are the people who would receive your probate estate at your death if you did not have a Will.  Listing their names does not mean that you are giving them any part of your estate.  It does assure that you have made the gift provision of your Will with all your potential heirs firmly in mind.  Your heirs include your spouse, children, grandchildren or parents.  If you do not have relatives who are this close, your brothers, sisters, aunts, uncles or cousins will be your heirs.-The full legal names and whereabouts of the persons you wish to nominate as your Executor, and if you choose, Trustee, Guardian of minor children and Custodian under a Uniform Transfer to Minors Act.  These can be one person or different people.  The court will accept your nomination unless a person is shown to be unfit.  Once appointed, each person will be responsible as a fiduciary and will be held accountable by the court.-The full legal names and whereabouts of the persons you wish to nominate as alternate Executor, Trustee, Guardian or Custodian in case the first person cannot serve.  If you do not name an alternate and your first choice cannot serve, the court will have to appoint someone else to serve.  It is far better that you make your preferences known.-Special provisions to take advantage of the Unified Credit allowed against the Federal Estate and Gift Tax in the estates of both spouses for larger estates.-A clear description of the gifts you wish to make.  These provisions are the reason for writing the Will in the first place, but are often given little thought.  Very careful consideration should be given to the types of assets that you own, the difficulties in managing and transferring those and the need of the people who will be receiving those assets.-Gifts of specific personal property.  The personal and household items, furniture, clothing, jewelry, family photos have a special protection under the law to be sold only as a last resort for debts, taxes and expenses, if they are given separate and apart from the Residue.  If these personal things are given as part of the balance of the estate called the Residue, they are subject to sale in the same manner as all the other assets for payment of debts, taxes and expenses-Gifts of specific real estate.  Specific parcels of real estate have special protection of the law to be sold after the Residue but before gifts of specific personal property for debts, taxes and expenses, if they are given separate and apart from the Residue.  If these specific parcels of real estate are given as part of the Residue, then they are subject to sale in the same manner as all the other assets for payment of debts, taxes and expenses.-Gifts of the balance of the estate.  The balance of the estate is called the Residue.  If the Residue is given to two or more people, this gift is often given in percentages or proportions. The Residue often is required to pay all the debts, expenses and taxes on the entire estate unless special care is taken in writing the Will.  -Full legal names and whereabouts of those who are to receive each gift.  -Full legal names (or clear legal description such as descendants, per stirpes or per capita) and whereabouts of those who are to receive the gifts if the first person named does not survive.-Instructions regarding who pays taxes on gifts.  For convenience, taxes are often paid from the Residue.  Because many estates pass property outside of probate by joint tenancy and with beneficiary designations, the taxes for those assets are paid by the person who would have received the. You may wish to have a more evenhanded requirement that each person to pay his share of the taxes for what he receives.-Provisions that avoid conservatorships if it is possible that minors or disabled adults might receive gifts.  Trusts, Uniform Transfers to Minors provisions and specific powers for the Executor may be used.-Powers of the Executor.  A well-written will can give the Executor power to avoid unnecessary costs and greatly ease the handling of the estate.  There are many possible powers; only a few of the most commonly used are listed here.-To sell real estate without court supervision.-To sell personal property without court supervision.-To make tax elections without court approval.-To serve without bond.-To settle legal cases for or against the estate.-To use discretion in distributing assets.-To distribute assets to a minor or disabled person without a Conservatorship.-To invest assets of the estate in a less restricted manner than the statutes require.-The date the Will was signed.  -Name and address of the attorney who wrote the Will.  The court requires the name of the scrivener of the Will in the pleadings.  You should have to search no further than the document to find that name.  However, this does not mean that the attorney is to be the Executor.  Evaluate your own situation to determine the best person to serve as Executor.-The date the Will was signed.  -Identifiable signatures of at least two competent Witnesses at the end of the Will -Self-Proving clause signed by the same Witnesses and notarized.If your Will is missing any of these provisions, discuss it with your estate planning attorney.  A cautionary word of about self-drafted Wills created with a computer program.  These computer-generated Wills are, by definition, simplistic, cookie-cutter Wills programmed to be one-size-fits-all.  These Wills may or may not fit your unique set of family relationships, individuals' needs and your personal inventory of assets.  The laws of each of the 50 states is different with regard to Wills; some states are community property states, such as Texas and California, and some states are common law states, Kansas is one of these.  These laws have important consequences for your estate.  A Will written without an understanding of these laws may have unintended consequences for your loved ones.  A computer-generated Will that fails to include important powers for the Executor or that creates a confusion is far more expensive to handle than a well-written Will that follows the laws of the state where it will be probated.

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Legal

Tim Larson

2002-10-01 11:53:00

:  I have a revocable living trust.  I saw that the Kansas Legislature passed the "Uniform Trust Code."  How will this affect me? 

Tim Larson Question:  I have a revocable living trust.  I saw that the Kansas Legislature passed the "Uniform Trust Code."  How will this affect me?  Answer:  It may well affect your planning, and you should discuss this with the attorney who drafted your trust.  During the term of the 2002 Kansas Legislature, Kansas adopted a comprehensive new set of laws affecting trusts, both revocable trust and irrevocable trusts, and both those created during the maker's lifetime and those created at death through a will.  The new law is known as "The Uniform Trust Code."  Although someday it may truly be adopted on a widespread basis by many states, Kansas is the only state in the nation to have adopted the act in any form.  Therefore, to recognize it as a uniform law as applied to all states is certainly inaccurate at this time.  The new law becomes effective in Kansas on January 1, 2003.For many years there has been a National Conference of Commissioners on Uniform State Laws that has recommended various Uniform Sets of Laws for all fifty states.  Regarding this new law affecting trusts, only ten states have considered the enactment of the "Uniform Trust Code," with Kansas being the only sate to adopt the proposed set of laws affecting trusts.  Further, as is common with many proposed Uniform State Laws, the Kansas legislature adopted the proposed set of laws after amending parts of the proposed act based on recommendations from various interested groups.In part, the new law sets forth as codified law much of the existing "case law" as has been determined in Kansas as a result of our appellate courts' interpreting documents and applying the law to the facts of individual cases.  To this extent, things really don't change.  However, there are some provisions that may well affect the operation of the trust and the responsibilities of the trustee.Highlights of the Uniform Trust Code include the following:It encourages non-judicial resolution of disputes, while at the same time it gives Kansas Courts greater discretion in approving the acts of a Trustee, settling disputes, and for modifying and terminating the trust.It sets forth the requirements for establishing a valid trust agreement and when and how it can be moved from one state's jurisdiction to another. It sets forth creditor rights as to the interests of beneficiaries and outlines when and how spendthrift protection of beneficiaries' interest is effective.It sets forth the policy that a revocable living trust is the functional equivalent of a will, sets forth a standard of capacity for those making revocable living trusts, and prescribes the procedure for revocation or amendment of trust documents.  This includes direction as to when a trust can be modified or terminated other than by its express terms.  The Uniform Trust Code sets forth those particular provisions of the law that cannot be overridden by the express terms of a written trust, including the power of a court to adjust a trustee's compensation that is determined to be "unreasonably low" or "unreasonably high."  It covers in some length the rules governing trustees, including duties and powers as well as responsibility under an included uniform law, the "Uniform Prudent Investor Act."  The liability of those acting in a fiduciary capacity as Trustee and the rights of those dealing with Trustees are also part of the new law.It provides how and when notice and information is required to be provided by a Trustee to beneficiaries, when such information is requested.  It also sets forth time limitations for bringing actions against a Trustee (Statute of limitations).It provides for how the trust is to be certified and how and when information should be provided to those who are requesting specific information from the Trustee.  Further, it sets forth when creditors and others have the right to rely on such information.

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Legal

John Gibson

2002-09-01 11:00:00

: A friend of mine recently created a family limited partnership and placed most of the family’s assets into the family limited partnership. What are the advantages in doing so? What are the disadvantages?

John Gibson Question: A friend of mine recently created a family limited partnership and placed most of the family’s assets into the family limited partnership. What are the advantages in doing so? What are the disadvantages?Answer:  A Family Limited Partnership is simply a limited partnership applied to a family situation. A limited partnership is one form of business organization in Kansas. Other forms are the corporation, general partnership, limited liability company, etc. All of the different forms of business organization in Kansas including a limited partnership were discussed in more detail in the March, 2002 issue of the Q & A Times, in an answer provided by accountant Larry Sell and myself. A copy of that previous Q&A Times can be obtained by calling Chart Marketing at (316)-721-9200.  A limited partnership is a business entity that has some characteristics of a general partnership and some of a corporation. A limited partnership has at least one general partner and at least one limited partner. The role of the general partner is to manage the business, and is similar to that of a general partnership partner in that each general partner is liable for all of the partnership debts and liabilities. Usually, in FLPs the general partner is the person that controls the family business or family assets. Often the general partner is one or both of the parents. Limited partners are similar to stockholders in a corporation in that they are insulated from liability as a stockholder, and are liable only to the extent of the limited partnership’s ownership value. Typically, in FLPs the limited partners are the children of a family. The thrust of the FLP is to allow parents to transfer assets or the family business to the children while maintaining control.Use of FLPs has been increasing in the past few years as a vehicle for estate planning, most notably in large value estates and/or in family business situations. However, the current changes in the federal estate tax rules, as discussed in the July, 2002 issue of the Q&A Times, may make FLPs not as attractive as in the past. Tax savings has been one of the motivating factors for creation of an FLP, although not the only factor.The basic advantages of an FLP are:1.Control. The FLP allows the owners of assets, generally the parents, to transfer the ownership of assets to family members, but at the same time maintain control. Individuals who have accumulated significant assets desire to monitor or control the use of those assets even though they often do not wish to retain the ownership of the property. The FLP therefore effectively provides to the general partner (parents) a method to control the assets within the partnership, even though other individuals (children) may become the owners of the interests in the partnership.2. Asset Protection from Creditors. The creditor of a limited partner is not entitled under the law to become a limited partner and therefore cannot effectively take ownership to the limited partnership asset. A creditor is entitled to receive income distributions from the partnership interest, but not the partnership interest itself. Since the general partner can control the timing of distributions it may be difficult for a creditor to attach even the earnings from the partnership. This benefit has to be very carefully handled, however, to avoid charges of defrauding creditors.3. Asset Protection from a failed marriage. If the child’s limited partnership interest is owned solely by the child, and cannot be taken over by another under the law, it may be difficult in a failed marriage for the spouse to secure partial ownership of the asset.4. Estate/Gift Tax Savings. One of the traditional FLP goals is to reduce federal income tax of high income individuals by redistribution to other family members. As stated, however, recent tax law changes reduce the benefits of this goal.5. Avoiding Probate. Property placed into the FLP are removed from the estate of the parent. Accordingly, for any asset of the parent placed into the FLP there is no need for probate. Some of the disadvantages of a Family Limited Partnership are:1. Cost. A FLP can be fairly costly to set up, register with the State of Kansas, pay annual fees, and operate appropriately as a business. For estates with lessor value or not involving family businesses, different types of estate planning entities, such as living trusts, can be created less costly.2. Government restrictions and regulations. Limited partnerships must strictly follow statutory rules for being established, must register with the State, and must maintain a good standing with the state of Kansas. In addition, limited partnerships must follow certain rules and guidelines established by the Internal Revenue Service. None of these governmental regulations are onerous or difficult to follow, but it must be kept in mind that all governmental rules relating to limited partnerships must be followed.3. Lack of marketability. Except for transfers between limited partnership members, i.e., family members, creation of the family limited partnership and placing assets into it can definitely hinder the marketability of an individual limited partner’s interest.Family Limited Partnerships as an estate planning device certainly are not for everyone. They are most advantageous in larger estates and/or family business situations. In the right situation, however, FLPs are a very worthwhile estate planning device.

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Legal

Linda Kirby

2002-09-01 10:41:00

:  My 85-year old mother has been living with me for the past three years.  She is in good health, usually has a clear mind but sometimes forgets things.  I am already on her bank account so that I can pay her bills.  I have a brother in town who helps with mother when he can and a sister who lives out of state.  My mother asked me to be the Executor of her Will.  She told me that her Will gives one-half of her estate to me and one-fourth each to my brother and my sister.  Can you tell me what an Executor does?

Linda Kirby Question:  My 85-year old mother has been living with me for the past three years.  She is in good health, usually has a clear mind but sometimes forgets things.  I am already on her bank account so that I can pay her bills.  I have a brother in town who helps with mother when he can and a sister who lives out of state.  My mother asked me to be the Executor of her Will.  She told me that her Will gives one-half of her estate to me and one-fourth each to my brother and my sister.  Can you tell me what an Executor does?Answer:  Being named as an Executor is an expression of your mother's trust in your honesty and her confidence in your ability to handle property and to resolve conflicts.  However, you are wise to question exactly what will be expected of you as an Executor.  Your official duties as Executor begin when the court appoints you Executor and signs the Letters Testamentary.YOU MUST FILE THE WILL.  If you have your mother's Will or know where it is, you have a duty to properly present it to the court after her death.  In order to properly present the Will to the court, you must file a petition or request for the court to determine that this is the valid Will and to appoint you as the Executor.  (If there are no probate assets, the Will can be preserved without a full probate proceeding.)  This Petition must follow all the state laws regarding Wills and proper notice must be given to all interested parties.YOU MAY REFUSE TO SERVE AS THE EXECUTOR.  Even though the Will names you as the Executor, you do not have to serve.  If you are unable or choose not to serve, the court will appoint the person named as the Successor or Alternate Executor in the Will or the court will appoint an Administrator C.T.A. to handle the Will.YOUR FIRST DUTY AS EXECUTOR IS TO ACT IN THE BEST INTEREST OF THE ESTATE.  This means that you must follow all the state laws and the directions in the Will to disburse the assets of the estate to pay creditors, taxes and expenses as well as distribute the gifts given in the Will.  This duty is called a fiduciary duty.  You must make all reasonable efforts to discover what the law and the Will require or you will be held personally liable for your mistakes.  Your good intentions and ignorance of the law will not protect you.USE YOUR POWER AS EXECUTOR VERY CAREFULLY.  The Letters Testamentary signed by the court allows you to act as the absolute owner of the estate property.  You may sell, liquidate and transfer all the assets on your own signature.  You answer only to the court.  However, this broad power is to be used only to carry out the law and the instructions in the Will.  The Executor is not permitted to enforce personal choices or opinions with the estate assets.  Let me give you a couple of examples of well-intentioned mistakes that might surprise you.The Executor, trying to do a good job by being prompt and thorough, pays the estate's bills as they arrive in the mail.  Within the first week of her appointment the Executor receives and pays the credit card, care home and pharmacy bills which total $15,000.  There is now only $1,000 left in the estate.  The funeral bill that must be paid within 30 days is $5,000, the hospital bill that arrives after insurance has paid its part is $1,500 and the expenses of administration that will be paid at the close of the case are expected to be about $2,000.  These unpaid bills of $8,500 are first, second and third class expenses and have priority over the fourth class credit card, care home and pharmacy bills that the Executor has already paid.  Even though the Executor meant well, she must either recover the overpayments from the credit card company, care home and pharmacy or pay the $7,500 from her own pocket.Another common example of an expensive mistake that an Executor with good intentions can make occurs when the Executor distributes assets to those named in the Will before the court has ordered distribution.  If there is not enough value in the estate to pay the expenses, debts, claims and taxes, all the assets, including the personal property, must be sold.  The Executor will have to recover any assets given away or pay the value of those out of his own pocket.  TO PROTECT YOURSELF AND THE ESTATE, GET GOOD LEGAL ADVICE.A probate proceeding may take from six months to a year (and if there are special problems such as tax or ownership issues, it may take longer) to complete all the necessary steps.  Because at death each individual has different property and unique heirs, devises and legatees, no two cases are alike.  What follows is an overview of the duties of the Executor.DUTIES OF THE EXECUTOR-HAVE THE ESTATE ATTORNEY FILE ALL THE REQUIRED LEGAL PAPERS.-TAKE POSSESSION OF ALL THE DECEDENT'S ASSETS, PROPERTY AND MONEY-MAKE A COMPLETE INVENTORY WITH LEGAL DESCRIPTIONS AND DATE OF DEATH VALUES-MANAGE, INVEST OR SELL ALL THE ASSETS-FILE ALL NECESSARY FORMS AND RETURNS (There may be as many as 11 different types due.)-DETERMINE WHICH CREDITORS AND TAXING AGENCIES ARE TO BE PAID-DETERMINE THE DISTRIBUTION OF THE ESTATE-TRANSFER THE ESTATE'S ASSETS-COMPLETE FINAL ACCOUNTINGS AND CLOSE THE ESTATEDear Reader, you are fortunate that you still have your mother with you.  It would be wise to review your mother's Will with her to assure that all the necessary powers are included to reduce the cost of handling the estate.  It is also a good idea to make a complete list of her assets, their location and an estimated value while your mother can assist you.  Beware of the verbal instructions that your mother may give you.  Those words have no legal effect and may be difficult or impossible to carry out.  Help your mother assure that all her wishes are clearly written in her Will.

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Legal

Tim Larson

2002-09-01 09:27:00

:  I am going to inherit some property.  What taxes do I have to pay?

Tim Larson Question:  I am going to inherit some property.  What taxes do I have to pay?Answer:  There may not be any tax due.  However, whether or not any taxes are due depends on several different factors, such as the amount you are going to inherit and whether or not the person who died was a resident of the state of Kansas or owned property in Kansas.  Further, there are different kinds of potential taxes and rules that set forth what source the taxes are paid from.  Sometimes a tax may be due, but is paid from a source other than what you are receiving.  In addition to potential income tax, there are two types of "death" taxes.  The first, "estate" tax, is determined based upon the value of the entire estate of the decedent and is based primarily on the federal estate tax system.  Kansas law provides for an "estate" tax in this fashion:A tax is hereby imposed on the estate of every resident decedent (person who died a resident of the state of Kansas), and every nonresident decedent, who died holding an interest in property with a Kansas tax situs, whose estate is required by federal law to file a return for federal estate taxes.  (For the most part, this only includes an estate greater than one million dollars.)  The amount of such tax shall be equal to the amount of the maximum credit allowable by section 2011 of the internal revenue code against the tax imposed on the transfer of the estate of the decedent by section 2001 of the internal revenue code.  Because there is a credit against the federal estate tax for the amount that is paid to the state of Kansas, the Kansas estate tax is not in addition to the federal estate tax, but is deducted from the federal estate tax.  What this means is if there is tax due under the federal estate tax, a portion of that amount will be paid to the state of Kansas and it will be determined by looking at section 2011 of the internal revenue code, which determines the amount of the maximum available credit.  In essence, if tax is due, there will be two checks, one to the Kansas Department of Revenue and one to the IRS.The second type of "death" tax is usually referred to as an "inheritance" tax.  This type of "death" tax is imposed based upon what an individual beneficiary is inheriting and the rate is determined based upon the beneficiary's relationship to the decedent.  Kansas has a system of inheritance tax for many years, however Kansas Inheritance Tax was repealed in 1998.  The 2002 Kansas legislature has re-imposed the inheritance tax in part.The new law adopted by the 2002 Kansas legislature reads as follows:In addition to the tax imposed by the Kansas Estate Tax Act, a tax is hereby imposed on the privilege of succeeding to the ownership of any property . . . within the jurisdiction of this state by any relative, or stranger in the blood, of a decedent other than the spouse, brothers and sisters, lineal ancestors, lineal descendants, step-parents, step-children, adopted children, lineal descendants of any adopted child or step-child, the spouse or surviving spouse of a son or daughter, or the spouse or surviving spouse of an adopted child or step-child or the lineal descendant of an adopted child or step-child of the decedent.  In the case of an adopted child or stepchild, or spouse or surviving spouse of an adopted child or stepchild or the lineal descendant of an adopted child or stepchild of the decedent, such person shall file with the department of revenue an affidavit setting forth the relationship of such person to the decedent.  The persons most likely affected by this tax will be those not part of the decedent's immediate family, such as friends, nieces and nephews.  For these beneficiaries, on amounts up to $100,000 the rate of tax is 10%.  From $100,000 to $200,000 the tax rate is 12%.  On all sums in excess of $200,000, the rate of tax is 15%.  This inheritance tax is in addition to any estate tax that is owed.Other potential taxes include Generation Skipping Tax (if property by-passes a generation) and income tax on assets for which there is  "income in respect of a decedent."   In the event you inherit some asset for which income tax has never been recognized, such as inheriting some EE bonds or an IRA for which the income tax has not been paid, when the funds come out of the bond or IRA to you, you will owe income tax.  This is completely separate and distinct from the "death" taxes discussed earlier.   There is no easy answer to such a question without knowing the specific facts, and I suggest that you consult with an accountant or attorney regarding your specific situation. 

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Legal

Levi Goossen

2002-08-01 11:37:00

:  What is the difference between an income withholding order, an earnings garnishment for support and an earnings garnishment for general judgments?

Levi Goossen Question:  What is the difference between an income withholding order, an earnings garnishment for support and an earnings garnishment for general judgments?Answer:  An income withholding order is used to collect ongoing child or spousal support.  There is no judgment amount given and no termination date.  It will require you to withhold from 50% to 65% of an employee's wages.  Bankruptcy is not a stay on an income withholding order, nor are they suspended for sick leave.  Income withholding orders are continuous and take priority over all continuous earnings garnishments.Earnings garnishments are used to collect judgments.  An earnings garnishment for support is used to collect a judgment amount of past due child or spousal support.  The required withholding amount will also be 50%-65%.  An earnings garnishments for general judgments is used to collect judgment debts of all kinds, usually resulting from small claims or limited action proceedings.  The amount withheld for a general judgment garnishment is generally 25% of disposable income, subject to the Federal Consumer Protection Act limitations.  Bankruptcy acts as a stay on all types of garnishments, and they may be suspended if a sick leave affidavit is filed.  General judgment garnishments are considered to be of a lower class than garnishments for support because the amount exempted from garnishment is higher.The difficulty comes allocating the different withholdings between creditors.  Income withholding orders always take priority, so that amount can be removed from disposable earnings for purposes of calculating garnishment deductions.  And if all garnishments had the same exemption, it would be easy to simply split the withholdings equally between the creditors each month.  Unfortunately, that is usually not the case.The highest class garnishment controls the amount to be withheld.  Although there is no priority between garnishments, and all are concurrent and presumably share equally, the employer cannot give money to creditors subject to higher exemptions that would have prohibited withholding that amount.  So, even though you may be withholding 50% of an employee's wages because of a garnishment for support, a lower class creditor is not entitled to share in all of it.  You can't just divide the money equally between all the classes of creditors.A. This means that the employer must first allocate to the higher class support order creditor the difference between the amount taken by his garnishment, applying the lower exemption, and the amount that would have been taken if he had been a lower class creditor and therefore subject to the higher general judgment exemption.B. Then, because the higher class garnishments are also concurrent with the lower class garnishments, the employer must calculate the division of the remainder between both the support order creditor and the general judgment creditor or creditors, applying the higher general judgment exemption of 75%.C. The support order creditor is paid the total amount allocated to him by A and B above.  The general judgment creditor gets only what is allocated to him by B.This sounds complicated because it is.  It is important that employers make these calculations carefully, as failure to withhold properly could lead to a judgment against your company.

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Legal

John Gibson

2002-08-01 10:47:00

: I have a workers’ compensation claim. It is a back injury. I am having a hard time however finding an attorney to represent me. I am a postal worker. When I tell them this they say they can’t take the case. What is up with this? If I cant’ find a workers’ comp attorney to represent me can I just sue my employer in court?

John Gibson Question: I have a workers’ compensation claim. It is a back injury. I am having a hard time however finding an attorney to represent me. I am a postal worker. When I tell them this they say they can’t take the case. What is up with this? If I cant’ find a workers’ comp attorney to represent me can I just sue my employer in court?Answer:  Perhaps I should begin with a little background review of workers’ compensation claims and how a "work comp" claim is different from civil personal injury claim. Then I’ll try to address why you may be having a hard time retaining an attorney for your back injury claim.The "workers’ compensation" system for compensating an injured person is relatively new; it began to develop in the United States about 90 years ago (which indeed is relatively new for a legal process). It is solely a creature of legislation, meaning it has not evolved through the common law or court pronouncements, but exists only because each state has enacted workers’ compensation laws. Kansas passed our workers’ comp law in 1911 and, although it has been revised by our Legislature many times, it is still on the books and is actively in force today.

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Legal

Linda Kirby

2002-07-01 12:22:00

Question: What is a Pre-Marital Agreement?

Answer: A Pre-Marital Agreement provides a clear, written understanding of one of the most difficult issues in a marriage, the economic expectations!  Discussing economic expectations does not mean you do not trust your beloved.  It does means that each of you is mature enough to realize that your expectations may differ.  An honest and frank discussion before marriage will promote a strong marriage.  To obtain a valid Pre-Marital Agreement the Bride and Groom must follow certain guidelines: ˜  The Bride and the Groom should list all their own assets, debts, income and expected inheritances.˜  They should discuss their personal expectations for handling finances with their future spouse• during the  marriage  • in the event there are children• in the event of a divorce      • in the event of the death of one of  either the husband or the wife˜  The Bride and Groom must each visit with her or his own attorney without the other present.  (One attorney will write the Pre-Marital agreement and the other attorney will review it.)˜  The Bride and Groom must sign the Premarital Agreement in the attorney's office well before the wedding.You can complete this simple checklist to see if you may need a Pre-Marital Agreement.

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Legal

John Gibson

2002-06-01 17:41:00

Question: What is the difference between a durable power of attorney and an attorney-in-fact?  Do you need either or both of them? If you have a living trust, do you need one?  When is a power of attorney a good idea?

Answer:  You may designate another person to carry out your wishes and make decisions for you, in other words, act on your behalf.  When you sign a document giving someone this power the writing is called a "Power of Attorney".  You may decide, for example, that because you will be traveling for a long period or may suffer from an illness, you would prefer someone to make financial decisions for you while you are unavailable.  You may also want someone to make medical decisions for you. The person you select for either or both will be your "attorney in fact". You may choose an attorney-in-fact to manage your business, vote your stock, manage your investments, sign your tax returns, deposit checks or write checks on your account, make retirement plan elections, end or continue contracts, sell or buy assets, and forward your mail.  In creating this document, you decide what tasks the person should do.  A Power of Attorney for Health Care Decisions would give a person you select the power to make medical decisions for you.  The power would allow the person to make choices in treatment, request second opinions, review your medical records and generally direct your medical care.  This Power of Attorney can act together with any written directions you give in the form of a Living Will or Health Care Directive.A general Power of Attorney will end at your death or at any time a doctor finds you incompetent unless you specifically sign a durable power of attorney document.  The durable power allows your attorney in fact to act even if you are mentally incompetent. Typically, the durable power will be designed to begin if your doctor ever certifies that you are unable to make decisions on your own behalf.  The Durable Power of Attorney will take the place of a court proceeding known as a conservatorship in most cases.  This will save the time and cost of the court proceeding and will allow your incompetency to remain private and not a matter of public record.I routinely recommend any adult, of any age, have a Durable Power of Attorney to begin if you should become incompetent and unable to make your own decisions.  This can be a temporary time period, during a recovery from a serious accident for example.   It may also be permanent, in the instance of an Alzheimer's patient perhaps. The reality is that you do not suspect you will need someone to act for you.  It is important to plan ahead and appoint someone now to act if such a situation ever occurs.  If you wait until the time a doctor declares you incompetent, without a durable power of attorney, it will be a court and not you who has the right to decide who will act on your behalf. If you have a living trust you may still need a Power of Attorney. Your living trust will give powers to your trustee that may include the power to act as your attorney in fact for health and financial decisions.  In this case, it is best to look over your trust and see whether the things you might need someone to do on your behalf are covered.  Often, medical decisions are not discussed in your trust.  If not everything is covered, you may amend your trust or sign a separate Durable Power of Attorney.

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Legal

John Gibson

2002-04-01 16:17:00

Question:  Why are many national contests in the United States void in Rhode Island?  What does "void where prohibited" mean?

Answer:  Lottery winners' entitlement to a prize is governed by principles of contract law. The existence of the contract is governed by the concepts of offer and acceptance. For instance, one who purchases a lottery ticket or enters a sweepstake has the burden to read and understand the rules before accepting by purchasing a ticket or completing an entry form. Many states, through their constitutions or statutes, outlaw specific games or contests of chance like lotteries. National sweepstakes mailings and lottery tickets often contain the disclaimer, "void where prohibited" to alert prospective participants in those states that the contest or lottery might not be valid in their state.  In such states,  although a contestant may have actually won a nationally sponsored contest or lottery, the entry or ticket is not valid, because the game is illegal in that state. Rhode Island is just such a state and outlaws not only private lotteries, but also many other types of promotions that may only faintly resemble games of chance. Therefore, many contests are void within its borders.  Rhode Island even regulates individual business door prizes if the amount is over $500.00.   In Kansas it is legal to participate in lotteries and sweepstakes games.  Thus, the "void where prohibited" language does not apply to Kansas.Some states, including Rhode Island, have also enacted prize promotion statutes that restrict permissible advertising language and protect consumers against promoters' misrepresentations. These type of statutes prohibit promoters from utilizing mailer language like "congratulations,"  "you have  won," and "you are the winner of…," unless the contestant actually won and will receive the prize or gift shortly after receiving the communication. Such statutes typically require mandatory disclosure of prize value, promoter identity, number of prizes available, odds of winning, and the language "no purchase required."In 1994, the Kansas legislature also enacted a prize promotion statute which requires similar disclosures. Potential contestants and hopeful winners should look and listen beyond the promoters' attention grabbing lines. They should read the fine print and ask questions in order to make an informed entry decision. Knowledge can be more powerful than blind luck.         

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Legal

John Gibson

2001-11-01 17:37:00

Question: We have been married for nearly 60 years and are both in our early 80's. We have 1300 acres of farm ground and 320 acres of pasture land. Our home and out buildings are probably valued at around $200,000. Our farm equipment is worth around $100,000. We have CDs in the amount of around $800,000. We have 6 children, all grown. Our second oldest son takes care of the farm and cattle. We want our children to equally have all of our property after both of us have passed away. We both have a will. Do we need a trust? If so, what kind and why?

Answer: From the information you have provided the answer is yes, you and your children can benefit from a trust, and perhaps save a lot of money by having a trust. As I will discuss below a living trust not only can save money, but can assure you that your property will be properly managed and will be used to care for you as long as either of you is alive.You are facing three separate issues: The first issue is how best to preserve and manage your property for your benefit as long you are alive, and if you become incapacitated? The second issue is what is the best and most efficient way to assure your property is distributed to your children upon your death? The final issue is taxes. Will your estate owe federal or state death taxes? And if so, is there something you can do about it?When a person is incapacitated or dies owning property (real or personal), the law will provide a caretaker for that property. The caretaker is a court-appointed guardian and conservator if the person is alive, or a court-appointed estate administrator when the person dies. If the person has not named a caretaker, the law steps in to do so. If, on the other hand, the person has a trust or will, the state will step back and allow the person's own choice of caretaker to govern.While most people know that a will can be used to select a caretaker for their property after their death, few people are aware that a trust can provide a choice of caretaker for their property while they're alive. That caretaker - called a trustee - can even be themselves or a trusted professional. All that is needed to create a trust is a person with property and a trustee for that property.The most common type of trust is a "revocable" trust, meaning you have the power to revoke or change the trust anytime you wish. The revocable trust is also sometimes called a "living trust". It has this name because it is established and operates while you are alive. You put your property in a living trust and still maintain control over it as trustee. Most important, the trust document provides for a successor trustee who will assume control of the property. What is the advantage of this? If you are incapacitated, your family does not have to apply to the court for a conservator or guardian to be appointed. The successor trustee simply takes over. The same is true after you die. The successor trustee simply carries on without missing a beat - no court-appointed administrators or executors are needed. Your property stays out of probate, saving your heirs time and money. Living trusts are quite versatile because they can be changed at any time. You can direct that property be transferred into and out of the trust as your needs dictate. Successor trustees and the powers of the trustee can be changed at any time by you.There also are significant estate tax advantages to be gained from certain types of revocable living trusts. Your estate presently is in the taxable range and even though significant changes are taking place over the next few years in the estate tax laws, you should keep taxes in mind as you do your estate planning. A type of revocable living trust referred to as an "A-B Trust" or a "Marital Deduction Trust" could possibly carry a distinct tax advantage in your situation. There are several variations of this type of trust that could provide advantages to you. Certainly, your estate could benefit tax wise from a properly prepared trust.Trusts are sophisticated legal documents and they should be prepared only by professionals. Together with a will that simply leaves everything to the trust - called a "pour-over" will - they can provide a complete estate planning package. An estate plan that will guarantee your property is used properly to take care of you while you are alive, that will distribute your property to your children exactly as you wish upon your death, and that could save significant taxes.

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Legal

John Gibson

2001-11-01 11:57:00

Question: The article in a recent issue of The Q & A Times… 'Estate Recovery'… was very informative. My sister and I own farm ground together from an inheritance. The farm ground provides some income to us. Her interest in the farm is the only asset of any value that she had. My sister has become ill and several weeks ago she deeded her share over to her children to get on Medicaid. My sister is a 54 year old widow, and is not eligible for Medicare. After her death, will the state try to recover her Medicaid expenses? Could the state contend fraudulent intent? Can the state come after her children and me?

Answer:   For the benefit of everyone reading this let's begin by defining some terms and concepts that you have referred to.  "Medicaid" is the program administered by the State of Kansas through which the State pays the medical bills of eligible persons that cannot afford medical care.  If a person's income exceeds a certain amount that person is not eligible; this is referred to as the "Income Test".  Or, if the person owns property with a value over a certain amount that person is not eligible until the property has been "spent down" by paying medical or other necessary bills; this is called the "Resource Test".Since your sister's only valuable asset is her share of the farm ground, she apparently has reasoned that if she gives the farm to her children she will have no income or assets and, therefore will be eligible for free medical care from Medicaid.  As a general rule, taking the course of action your sister took is not wise.  In her particular situation, though, her actions may prove to be okay.Medicaid eligibility rules are complicated, and it seems, for every rule there are several exceptions.  In this case farm ground is an exception from the "Resource Test".  Therefore, your sister could have kept the farm ground and would still have been eligible for Medicaid benefits.Another concern you have raised is what happens after your sister passes away if she has received Medicaid benefits.  If she should die, can the State of Kansas take the property back or try to recover back the Medicaid benefits?  In this particular situation it appears there is no ability to make such a recovery.  Generally, the State has a right to recover Medicaid payments from the estate of the Medicaid recipient if there is property in an estate.  (There are a number of exceptions to this general rule.)  Also, the State can void certain transfers of property made prior to death by the Medicaid recipient if the transfer was without adequate consideration.  When a transfer is voided, the property is brought back into the estate so that Medicaid can make a claim to it.  Fortunately, your sister is not yet a Medicaid recipient and the law infers that a transfer such as your sister made, that is before she goes on Medicaid, is not voidable and cannot be brought back into the Medicaid recipient's estate.  The caveat to all of this is that the law in this area is still evolving and it cannot be said with 100% accuracy what the courts will do in any given situation.  In summary, since the property your sister transferred is farm property the transfer will not affect her ability to receive Medicaid benefits.  Because the transfer was made before your sister has applied for Medicaid, it would appear the State will not have a right to try to recover Medicaid benefits from  your sister's estate, or to void the transfer of the farm property.  There would be no basis for the State to come after either you or your sister's children.  This is a complicated area of law.  Without question, anyone contemplating "Medicaid planning" should seek professional advice.

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Legal

John Gibson

2001-10-01 09:51:00

Question: My husband and I are in our 50s.  His parents died recently, but prior to their deaths he had to deal with putting his father into a nursing facility and paying the bills from his mother's hospitalizations.  I have just recently been forced to assist my mother in the care of  my father who is suffering from Alzheimer's.  All of this has made me think about my daughter and what she will have to deal with to care for her father and myself.  Is there anything we can do to prepare for these same things she may have to experience with us?  How can we make it an easier transition financially?

Answer:   There are some specific things you can do now in the way of elder and estate planning to make it easier for your daughter to deal with your elder care needs when the time comes.  I will discuss those below.  One thing to keep in mind as you do your estate planning is that, since you are only in your 50s, your daughter may not have to deal with these care issues for 20 or 30 years.  Therefore, regardless of what planning you do now you must remember to thoroughly review it at least every five years to assure your plan fits your changing situation over the years.General Financial Planning.  One of the first things you can do, and continue to do over the years, is make sure your general financial structure is in proper order.  This makes it much easier for someone else such as your daughter to assist you with your financial and personal issues later on.  For example, having good investments that can be transferred fairly easily, having an assessable bank account, having your retirement plan and benefits in order, having appropriate insurance (life, health, property, long term care, etc.) arranged for, assuring that real estate is properly titled, all are examples of getting your general financial house in order.  It is much easier for someone to take over and assist with running a well organized financial household as opposed to one that is in chaos.Health Care Power of Attorney.  Kansas law provides that a person can execute a health care power of attorney granting to another the authority to give consent for health care if the person is unable to do so. Executing such a health care power of attorney, granting the power to make such decisions to a spouse and then the successor power to a child, simplifies this decision making process.  A health care power of attorney is activated only when the individual is unable to make health care decisions for themselves.Business Power of Attorney.  As with a health care power of attorney, a person can execute a business power of attorney granting to another the authority to make business decisions in the event the person  becomes not competent. This allows another individual, such as a child, to make necessary business decisions when a parent is no longer able to make  decisions. Caution should be used, however, since not all institutions or government entities will honor a business power of attorney.Instructions and Information for your Personal Representative.   Part of organizing your financial and estate planning, and making plans to ease the transition for a child to assist with your elder care when the time comes, is to talk to your child.  Tell your daughter what you desire and how you want things to happen.  Just as important, in fact probably more important, is to additionally write it all down for her.  Organize on paper all of your financial and business information, and instructions regarding how you wish certain things handled.  For example, the names, addresses and phone numbers of your accountant, attorney, insurance agents, investment brokers, and others, are very helpful to a personal representative when taking over the handling of property and assets.  Lists of what property you own, where deeds and other important papers are kept, where all of your investments are, etc., are extremely helpful.  There are forms for this that can be purchased from book stores, are available on financial software, or may be obtained through your attorney, accountant or financial advisor.  Finally, get all your important papers, deeds, insurance policies, and estate planning documents together in a safe and accessible location, and let your daughter know where they are.Property Management during your Life.  There are various things you can do to make arrangements to have someone else manage your property for your benefit during your lifetimes, if you become unable to do so.  These include utilization of powers of attorney as discussed above, voluntary guardianship and conservatorship under court direction, utilization of joint accounts, use of trusts, and others.  Each of these methods have pros and cons, and your should discuss your own situation with your financial advisor, accountant or attorney.   With proper information and advice you can develop a plan that fits you.Transfer of Property on Death.  There are many different vehicles that may be used to transfer your property upon your death, and to assure your property is distributed according to your wishes.  You can utilize payable on death accounts, transfer on death deeds, joint tenancy, gifts prior to death, various types of trust instruments, wills, and other estate planning tools. Again, there are pros and cons to each of these methods of property distribution, each situation is unique, and you should sit down with your financial advisor, accountant or attorney to determine how you wish to plan for distribution of your property on your death.To summarize all of this, being in your 50s you and your husband have a golden opportunity and most likely ample time to organize and plan your finances, elder care and estate distribution to make it easier for yourselves, and certainly to make it easier for your daughter to take care of you and your finances when the time comes.  The most important thing is to begin the process now, to utilize the competent professional help that is available, and to develop and put into effect an elder care and estate plan.  Finally, and to repeat what was initially stated, the planning you do now should be reviewed and updated at least every five years.

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Legal

John Gibson

2001-09-01 11:30:00

Question: My two sisters and I don't agree on a timetable to settle dad's estate. My sister Doris is the court appointed executor of dad's will. My other sister, Lucy, has many thousands of dollars in her account that dad put there before his death since he had no access to the bank. Mom died several years before dad died. Dad and his beneficiaries (us 3 girls) agreed that the money would be put in Lucy's name only for safeguarding. I know I must be reasonable about all of this, but how long should I wait until the home is marketed and sold? I am so afraid this home will remain unsold and a shrine to my dad. What about the thousands being held by my sibling? Lucy agrees all of the money in her account is to be divided 3 ways between us, but is slow in getting it done. In addition, I feel the executor is dragging her feet.

Answer: A lot of questions, and potential problems, are raised by the question. Let's first deal with the money that has been put into Lucy's account by your father for convenience. Legally, once this money was put into Lucy's name by your father, it belongs to Lucy, and she may have no legal obligation to give any of it to you or your sister. If Lucy were to claim it all belonged to her, you may be faced with a difficult situation. You could try to compel Lucy, through court action, to divide the money based upon an implied trust or oral agreement to do so. As the third party beneficiary of such an oral agreement, however, it is not guaranteed you could enforce this agreement. Fortunately, Lucy agrees that the money is to be divided evenly, and apparently is going to do so. As far as a timetable, you are pretty much at her mercy. There is no legal requirement that she distribute the money to you on your demand or within a specified period of time. You and your sisters are going to have to work out a timetable for the distribution of the money that is in Lucy's account. The lesson to be learned from this situation is that it is dangerous to attempt estate planning by putting money into an account in the name of a child or in a joint account with a child, where other children or heirs are involved. The actual owner of the money, in the above case the father, loses a certain amount of control over the money during his life. Further, upon his death there is no guarantee that the account holder will not claim the money as his or her own, and refuse to distribute to others as desired by the parent. Putting money or investments into joint tenancy with another, or into the name of another for purposes of convenience, with the request that the account holder distribute the property a certain way upon death, is poor and dangerous estate planning.The second question posed relates to the property that remains in your father's estate, and how soon the estate can be settled. Of particular concern is the question of whether the house which is part of the estate can be timely sold. Kansas law provides several deadlines relating to the administration of an estate, including deadlines for producing and filing a will, deadlines for claims to be made against the estate and deadlines for tax returns to be filed. A bench mark for the completion of an uncomplicated estate in Kansas is 9 months from the date of death. Unless unusual problems exist, it would be expected that an estate can be completed and closed, and distribution made soon after the 9 month period is passed. The soonest an estate can be closed is 6 months. For complicated estates it may take several years.Sale of a house can occur before the estate is closed, primarily because sale is necessary to pay bills. Unless there are unusual problems or there are objections by some of the heirs, the executor of an estate has the ability, in order to pay bills and with court approval, to sell the real estate. Or, if the will specifically allows the executor to sell real estate then the executor may do so with court approval. Otherwise, real estate is usually not sold by the executor and a house is simply distributed to the heirs when the estate is closed. The attorney that is handling the estate should be consulted about this. Finally, you should be aware that the law allows for early distribution of a portion of the estate assets in proper circumstances. If all demands against the estate have been paid, the tax obligations have been resolved, and there is not a reason to hold back all of the estate assets until closing, the executor may, with court approval, make an earlier partial distribution. Again, the attorney representing the estate should be consulted about this.

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Legal

John Gibson

2001-07-01 16:07:00

Question: My husband and I are in our late 70’s. We have one son and his wife, our daughter-in-law.  Their 3 children are ages 15, 18 and 20. Even though the 18 and 20 year olds are "of age", they have not demonstrated the greatest maturity to manage money. We want to take advantage of the annual $10,000.00 tax-free gift provision of the tax laws by giving such a gift to our son, daughter-in-law, and each of our grandchildren. However, we've heard that if we attach conditions to a gift or keep control of the gift the IRS will not recognize it as a gift. We've been told that the IRS says a transfer of money is not a gift - that is, you are not really giving it away - if you keep any control over the money. Is there a way to give these gifts tax-free, yet keep enough control to assure the grandchildren will be prudent?

Answer: Fortunately, there is a way to do what you desire. You can accomplish both goals of giving the cash gifts tax-free, and maintaining a measure of control. Strange as the name may sound the estate planning concept is the "Crummey" procedure, and the document you need is a "Crummey Trust". It was named after the taxpayer whose case established the Crummey trust concept.One of the basic ways to save estate tax is to use the annual gift tax exclusion during your lifetime. This provision enables you to give away up to $10,000.00 each year to a donee without them having to pay any Federal tax on the gift (up to $20,000.00 for a joint gift by a married couple).When you make an outright gift to a donee however, you give up control over the assets. In other words, you run the risk that the money may be squandered, especially if the donee is young or irresponsible. On the other hand, if you give the gift, but keep control over it, the IRS declares it is not a gift and therefore is taxable. The Crummey trust was devised as a way around this problem. You can establish a trust and place the gift money into the trust with the grandchildren as beneficiaries, and appoint a trustee to manage the property.  The beneficiaries (the grandchildren)  of the trust are granted the right to withdraw the gift money from the trust immediately after the gift is made to the trust. By giving this right of withdrawal the IRS considers that the grandchildren have the unconditioned gift given to them, and the gift therefore qualifies for the gift tax exclusion. Through a specific legal document however, the grandchildren/trust beneficiaries waive the right to withdraw the money, thus the gift is able to be controlled by the giver through the trust.  The money in the trust can be used for the benefit of the grandchildren and can be paid out to them at certain ages, depending on what the trust says.  At the same time, the property in the trust does not have to be paid out when the beneficiary reaches a certain age, so the trust can continue for a long period of time if the givers so wish.

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Legal

John Gibson

2001-07-01 12:31:00

Question:  The most frequent questions asked of me as an attorney are, "Do I need a will?" and "What happens if I die without a will?"

Answer:  Before answering the question, I should briefly address a preliminary topic that usually comes up, that is, by having a will am I causing a probate of my estate?  The answer is ‘no’.  Whether you have a will or not has no relationship to the necessity of probate.  Probate or no probate is determined by the nature of the property and how the property is titled, not by whether or not you have a will.  The primary purpose of a will is to designate how and to whom your property should be distributed upon your death.  It also allows you to state your choice for a Guardian and Conservator if you have minor children, and to state your desire for who will serve as the Executor of your estate.  Let me touch on joint tenancy property.  A will affects only property that is in your name alone; that is... property owned solely by you.  Property that is in your name as a joint tenant with someone else is transferred automatically, by operation of law, to the name of the joint tenant when you die.  With joint tenancy property the transfer is automatic, no probate, and no need for a will. For property not in joint tenancy, however, you likely will need a will.If you die without a will, the property you own in your name will pass to your heirs according to a plan established in the Kansas statutes, known as "intestate (no will) succession".  For example, if you are married and have no children, your spouse is your sole heir and will inherit your property by statute. If you have children and no spouse, your children are your heirs and will receive all of your property.  If you are married and have children, your spouse is heir to half of your property and your children are heirs to the other half.   The common misconception that if you die without a will your wife will receive all of the property that is in your name, even if you have children, can create problems.  If you have no surviving spouse or children, the Kansas statutes provide that other more remote relatives will receive your property.  If there are no heirs at all, and no will, your property then becomes the property of the State of Kansas.   In addition, in the absence of a will, the court will decide who is to serve as the Administrator of your estate and who is to be the Guardian and Conservator should you have any minor children.Many other questions arise regarding wills.  Are there restrictions on the way a person leaves property in a will? Is a revocable living trust a substitute for a will?  How long is a will valid?  Can I prepare my own will from a "will kit"?  The answer to these and other questions will be addressed at a later time.