JOB POSTING: We Are Looking for a Paralegal/Legal Assistant

Our law firm is looking for a paralegal/legal assistant to support four attorneys in our Buckhead office.  Our offices are located in the Monarch Plaza on Peachtree Road in Atlanta, directly across from Lenox Square.

We are looking for a professional, detail-oriented individual with the following characteristics:

  • Positive attitude.
  • Organized.
  • Proficient in the use of MS Office (Word, Excel and Outlook).
  • Must be able to work independently, without continuous, ongoing supervision.
  • Must be a team player.

Law firm experience is preferred. Candidates must be available 35-40 hours per week.

The position includes a mix of paralegal and administrative tasks.  The daily responsibilities for this position include generally:

  • Dealing directly with clients and attorneys.
  • E-filing court documents (state and federal).
  • Working with our attorneys for the preparation and drafting of correspondence, revising pleadings and discovery documents.
  • Assisting the attorneys with discovery, document production, trial preparation and hearings.
  • Calendaring and litigation-docket scheduling.
  • Assisting with electronic discovery.
  • Office and law firm administrative tasks such as filing, answering telephone calls, maintaining, and organizing both physical and electronic files, and initiating and setting up cases.
  • Maintaining invoices, bank account balances, handling payments to vendors and third-parties.
  • Acting as a Notary Public (or eligible to apply and obtain a notary).
  • Entering time entries for attorneys; generating and maintaining monthly invoices.

Please email your resume to attorney Cheryl R. Treadwell at cheryl@ktlawllc.com

The Privilege of the Proverbial “Finger”

Being a lawyer makes me hyper-attentive to whether anyone’s rights are being denied or limited, and what that person must do to exert the necessary power to address a situation (e.g., through persuasion, litigation, preventive planning, etc.).  In these circumstances, one has to utilize purposeful power to right the situation, rather than merely hoping for some pleasant, affable, go-along / get-along resolution.

With my blog easily at my disposal, and both as a lawyer and individual, I cannot sit back silently in the midst of what I consider to be completely misdirected attacks against Colin Kaepernick and other NFL players voicing their protests.   I refer further below to  a racial epiphany I had a couple years ago relevant to these NFL protests.

I have enjoyed the benefit of white, male privilege my entire life. I grew up in north Fulton county Atlanta. My father was a successful lawyer; he and his three brothers attended college in the 1930s [Vanderbilt, Davidson, and MIT]. All three were Phi Beta Kappa graduates.  My father graduated number one in his Vanderbilt law school class.  He was the only law student in his class who, immediately upon graduation during the depths of the depression, secured a lawyer job (with attorney Bill Sutherland of the then-Atlanta law firm Sutherland, Tuttle & Brennan), and on and on.  Most importantly, during my entire life I have had the liberty essentially to give anyone the proverbial finger, without any thought or fear as to how I am, or may be, perceived.

Here is the epiphany I experienced two years ago.  My wife, kids and I had dinner with a family whose kids go to the same private school as my kids. We are longtime friends. Our friends are black. The father – we’ll call him  “Mark” — and I were having after-dinner drinks. Mark is a successful executive at a large Fortune 500 company.

As Mark and I talked over drinks, I commented — because I was growing my hair longer — that if I were a black guy I would probably have the most militant afro possible.

Mark responded by stating that, as a black man, he cannot sport the afro I referred to (not that he even wanted one). Mark said that having a large afro would create an extended array of additional problems for him.  Possibly more night-time police stops while driving or being characterized as some kind of radical Black Panther, etc. Mark acknowledged that he has to toe the line so as not to create these potential racial misperceptions, and that he has to teach his children to be aware of these same misperceptions.

My reply to Mark was that this burden he and other blacks carry is a consideration I had never in my life had to worry about (or even think about).  For example, I can drive anywhere I wish at night and sport whatever clothing or hairstyle I choose without fear of being misperceived (and even if I am, there will likely be no consequences). I can walk anywhere, or into any store or mall, without people clutching their handbags, or purposely crossing the street to avoid me, etc.  I can disagree with anyone I choose.

Up to that night, it had never occurred to me that Mark and his family face any social differences or prejudices compared to others in our network of school friends and families. I simply assumed we all had arrived at the same status in our lives as to  our children, our own college education, successful jobs, comfortable homes, our children’s private school education, social status, etc. The point is I had never even considered or thought about any disparity among our families.

For the first time I realized that even my good friend Mark — although outwardly as successful as (and likely more so) any of our mutual network of family and friends — has to bear a burden of racial bias completely foreign to me.  With this revelation, I realized Mark cannot avoid this ever-present element of race-tainted perceptions of himself and his family members. Nor can Mark use the proverbial finger (or even exhibit the spirit of the finger) as freely as I can. I perceive Mark’s situation as a powerfully insidious and persistent form of inequality and denial of liberty, in a way possibly not yet perceived, let alone understood or acknowledged, by many white males.

Now back to the NFL players. My assumption is that they – in continuing the protests on behalf of themselves and those who are mislabeled and misperceived because of race – understand (and feel) this inequality. And, I believe it is a misdirected fallacy among many critics of these NFL players who express the notion that the NFL players should be thankful and grateful for their money, fame, and success and, accordingly, toe the status-quo line without protest.

My view is that these NFL players, by using the power that the money, fame, and success gives them, are able to more directly and openly draw attention to this racial disparity in a way that now has triggered the closer attention this issue deserves. These players are no longer merely toeing the line, nor should they.

One further comment from my view as a lawyer. Our greatest liberty in the U.S. is the right to protest, dissent and disagree openly. Merely stating someone is disrespecting the flag by kneeling during the national anthem is a knee-jerk platitude that diverts attention away from considering why the NFL players are protesting; and, how we all might be more receptive to try and better understand the rationale and underpinning of these NFL player protests.  My view is that our flag — and the freedoms and rights it so importantly symbolizes – is an icon consistent with why these players can (and may) choose to kneel in protest.

My hope with this blog post is that my white male readers can at least consider the tremendous privilege we have; and, in view of that privilege, be willing to imagine themselves for a moment in the place of these NFL players who, in my opinion, are unselfishly courageous in helping shed more light on these racial issues.

As Edmund Burke aptly said, “The only thing necessary for the triumph of evil is for good men to do nothing.”

Spousal Inherited IRAs; Don’t Fall Into This Trap

The point of this blog post is, generally, to make an immediate spousal rollover to the surviving spouse’s own IRA when the first spouse dies. Avoid the situation where the surviving spouse continues to hold the deceased spouse’s IRA as an inherited IRA.

In most cases the spousal inherited IRA status, caused by a delay in making the spousal IRA rollover, results in the following costly trap if the surviving spouse dies prior to making the IRA rollover.

Assume John has a large IRA that names his spouse Jane as the primary beneficiary. Their children are the secondary (contingent) beneficiaries. John is 63 years old; Jane 52.

John dies. Jane plans to roll over John’s IRA into her own IRA, with the goal of obtaining the following two significant benefits: (1) With her own rollover IRA Jane can wait until she is 70 ½ to begin taking out her required minimum distributions [“RMD”]; and (2) Jane can name their children as the primary beneficiaries of her rollover IRA.  This is an excellent plan in this case.

As to asset protection, Jane’s own rollover IRA will benefit from generous federal and state law protection for her IRA. By contrast, an inherited IRA does not get the same degree of asset protection.

Here is the crux of this blog post: Jane dies before making the rollover to her own IRA.

Absent the rollover at her death, Jane is treated as the beneficiary of John’s IRA, as an inherited IRA.  As a result of Jane’s death occurring after John’s death, John’s IRA contract controls how Jane’s inherited IRA account must be distributed, etc. This is John’s IRA account contract with the financial institution that holds his IRA account.

Depending on the governing terms of John’s IRA contract, John’s IRA likely must be payable either to Jane’s estate or to John’s heirs. As a slight consolation, the duration of the distribution payout to Jane’s estate or to John’s heirs can still be computed over Jane’s life expectancy (her actuarial life expectancy as of John’s death).

Also, absent the rollover, the annual RMD for John’s IRA (Jane’s inherited IRA] must start in the year after John’s death. There is no delay-option until Jane would have turned age 70 ½, etc. In addition, distributions to Jane’s estate or to John’s heirs will likely result in adverse income tax consequences due to the compressed tax rates for an estate, etc.

The next point also is important and frequently overlooked. In this example with Jane dying after John, John having named the children as secondary beneficiaries no longer has any effect. John’s secondary beneficiary designation was relevant only if Jane had predeceased John. With Jane’s death occurring after John’s death, John’s secondary beneficiary designation for his IRA account means nothing. The overlooked point is that there is no look-back to John’s secondary beneficiary designation as a result of Jane’s subsequent death.

One final ancillary point about the above inherited IRA: John and Jane also must each include express language in their financial powers of attorney allowing the agent to make a spousal IRA rollover. This is critical if Jane is incapable of making her IRA rollover at the time of John’s death (due to her age, disability, etc.). The power of attorney needs also to authorize and spell out the agent’s authority and the naming of the primary beneficiaries for the rollover IRA.

 

Estate Planning for Our Children

I plan over the next two weeks to get my teenage kids to sign basic Last Wills and Testament, financial powers of attorney, and health care directives. Georgia law allows a person age 14 or older to have a Will.

There are two reasons why consistently I had put off this task until now. One, and I admit a degree of nervousness as I type this sentence, is that we parents simply do not wish to contemplate or envision any possibility of our children dying or becoming incapacitated. Getting them to sign their own estate planning documents can feel like we are pushing our kids too fast, and too far along, the pathway of life (and ultimately toward death).

Two is that for many families the hourly law firm rates for estate planning make basic, core planning appear overpriced, and a task, therefore, for some other day. Also, frankly, I failed for many years up until now to take time during my busy work-load to develop and create a well-written basic Will. I simply never had a basic Will I offered to clients.

In view of my own family situation, I finally stopped and took time to design and prepare an excellent, basic Last Will and Testament. It will work perfectly for my kids, and will be effective until they later get married or accumulate assets that warrant revisiting their estate planning. Or, it will continue effectively in place even if my kids get married (but with no Will provisions for their spouses). The Will has a no-revocation provision in the event of marriage.

This basic-Will task also demonstrates that creating simplicity is not easy. I spent time designing, tinkering, and deciding on what elements are optimal for a fine, basic Will. I am pleased with the result.

This Will, among its various provisions, refers to tangible and non-tangible property, tax and expense apportionment; “electronic communications content” [internet access]; allows, in accord with Georgia law, the executor to name custodians for property under the Transfers to Minors Act if necessary; includes a “No-Contest” clause that imposes litigation fees and related costs on a contesting beneficiary who initiates an unwarranted dispute over the Will or the estate; an express acknowledgment that the individual signing the Will is not in a relationship with anyone that he or she considers is, or creates, a common law marriage in any state, as the date of execution of the Will, etc.

I also believe my kids will find their moment of signing these estate planning documents a positive, notable point of progression of their continuing maturity and developing adulthood.

I urge you to consider having your age 14 and over kids sign similar documents.  I provide these documents on a flat-fee basis.

It’s Irritating. Estate Planning is Vastly Complicated.

This blog gives you some brief thoughts about how to begin thinking about this topic.

In my daily lawyer world of trust/estate planning, disputes, problems, and litigation, I remain frustrated that the system of estate planning is way too complicated. Most people, inevitably captive to this system, understandably find it so daunting that inaction becomes the most comfortable and common reaction.

This complexity does not stem only from tax planning concerns. But keep in mind, these tax concerns now actually are affecting a larger number of clients as we move closer to a Canadian capital-gain-at-death system. Income tax savings at death with creative use of the FMV stepped-up cost basis is becoming a top priority for estate planning.

Even if tax concerns were off the table, for all of us there is the ever-present risk of what happens to our property if in getting older we end up with age-related incapacity, and when we die.

Will we lose our property to someone taking advantage of us, a greedy caretaker, remote family member, an old-age second marriage, elderly investment scams, nursing home expense, identity theft, etc.?

And for many of us after our death, the universal question will arise about whether we protected our surviving spouse.

Will someone dupe our spouse into an elderly marriage and dissipate the assets? Scam him or her? Pad the investments with oversold penny stocks? Put excess pressure on our spouse to make early gifts and give financial handouts to others? For our children, what happens to our property in the event of their divorce, their own elderly years, etc.?

Here are five threshold points to consider:

One. Have you identified individuals you absolutely can trust to step-in and handle your property and affairs in the event of your incapacity or death?  This is the number one difficult question, as it requires your subjective conclusion in making these choices. Also this question is unavoidable. Someone will in all cases take up this oversight role. Optimally you make the choice as part of your planning, rather than later someone else or a court making the choice;

Two. How will the above trusted individuals step-in on your behalf in the event of your old-age or incapacity? This point goes to you having a revocable living trust in place now, and a comprehensive financial power of attorney document;

Three. Who do you trust to handle your financial management?  I have finance undergrad and MBA degrees and believe strongly this trust factor is number one in making this choice. I remain appalled at the hype we all read and hear every day for questionable investment seminars, scams, and get-rich schemes;

Four. Do you have the necessary built-in bells and whistles adaptive down the road for optimal estate, gift and income tax savings? This also gets into what I mentioned above about the ever-increasing income tax exposure as a result of death; and

Five. Have you provided protection (using a trust set-up) for your children for the property you leave them in the event they later get into a nasty divorce? This loss of property occurs far too frequently due to divorce property division and alimony. Your children’s divorce exposure can be reduced dramatically with effective trust planning. And, in my opinion with better effectiveness than simply a prenuptial agreement.

Bottom line, there are no good, alternative options for clients who avoid getting into this irritating, complex planning. This complexity is a reality, simply boiling down to a cost-benefit equation. Who pays the time and expense of your planning?  And, is this time and expense something you deal with now or let your family address later at your incapacity or death?

Rethinking: “That’s the way we’ve always done it” and a Surviving Spouse’s Elective-Share [Estate Planning]

The provisions in this Will for my husband are in lieu of any statutory share, including, but not limited to, any forced share, minor’s allowance, surviving spouse allowance, year’s support, or otherwise.

The above provision for 40+ years has been included in most Last Wills and Testament. It centers on the law in most states that generally does not allow a spouse to cut the other spouse out as an estate beneficiary. Even if a spouse is purposely left out of a Will, the surviving spouse under most state laws has a right to a portion or all of the deceased spouse’s estate. This surviving spouse right is called, for example, an “elective share” or “widow’s allowance”. Georgia law refers to this surviving spouse right as “year’s support”.  A court generally has to approve the surviving spouse’s request for an elective share, and the request allows the court to consider objections from other estate beneficiaries and creditors.

The above in-lieu-of provision has the effect of forcing a surviving spouse to decide and choose (i) whether to take whatever is provided for him under the deceased spouse’s Will or (ii) to seek a state-law elective share. My point is that this forcing-of-a-choice is no longer a preference in many cases. For reasons I do not cover in this blog post, this forced-choice approach has been used most often to protect against an inadvertent loss of the marital deduction for estate tax purposes. An elective share typically does not qualify for an estate marital deduction.

Practitioners need to rethink whether to include this longstanding forced-choice provision in a Will. Here are the four points to consider:

·       One. For most clients the marital deduction is not a material concern due to the inflation-adjusted $5.43 million estate exemption. And, with good tax counsel a surviving spouse can avoid chilling the marital deduction even without this in-lieu-of provision, if the marital deduction is essential.

·       Two. The elective  share in many cases is an award of property to the surviving spouse that is superior to unsecured creditor estate claims, such as if the first spouse dies with a substantial amount of unpaid bills and credit card debt (including unpaid property taxes in some cases). In other words, the elective share property can pass to the surviving spouse without the property being otherwise used to pay the deceased spouse’s unsecured debts.

·       Three.  This is important.  If for some reason the court does not allow the full amount of the elective share sought by the surviving spouse, without this in-lieu of provision the surviving spouse still retains the fallback of getting property under the provisions of the deceased spouse’s Will. By contrast, the in-lieu-of provision can have the adverse result of a surviving spouse failing to obtain the elective share and, having made the choice, losing his benefits under the Will.   Remember, the in-lieu-of provision mandates a choice.

·       Four. In some situations this elective share approach can help protect against Medicaid estate recovery, again, as property passing to the surviving spouse is generally superior to debts.