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On January 20, 2021, President Joseph R. Biden Jr. quickly initiated a broad immigration reform agenda through a multi-pronged approach of issuing a series of executive orders on his first day in office, proposing comprehensive legislation to Congress, and freezing the “midnight regulations” of the prior administration to allow the new administration time to review last-minute regulatory changes.

Executive Orders Issued

From reversing the travel ban targeting primarily Muslim countries to ending “harsh and extreme immigration enforcement”, Biden issued a series of executive orders on his first day in office, reversing many of the prior administration’s immigration policies.

Biden’s Legislative Proposal for Employment-Based Immigration Reform

President Biden’s proposed legislation, the U.S. Citizenship Act of 2021, sets forth goals to “modernize[] our immigration system,” prioritize family unity, “grow[] our economy,” and “ensur[e] that the United States remains a refuge for those fleeing persecution.” The bill proposes changes to several areas of immigration: from employment- and family-based immigration to asylum and refugee protections.

In addition to eliminating green card quotas and proposing a path to citizenship for undocumented immigrants living in the United States who were brought to the U.S. as children, President Biden’s proposed legislation also targets improving efficiency and reducing lengthy backlogs for employment-based work visa programs. However, the legislative proposal does not address high-skilled worker visas (e.g., H-1Bs or L-1s) and would still need to be passed by both the U.S. House of Representatives and Senate before being signed into law.

Regulatory Freeze on “Midnight Regulations”

Also on January 20, in an effort to halt or delay the Trump Administration’s “midnight regulations,” President Biden’s administration issued a freeze memo to “pause any new regulations from moving forward and give the incoming administration an opportunity to review any regulations that the Trump administration tried to finalize in its last days.”

Trump’s last-minute “midnight regulations” included restrictions on high-skilled worker visas through changes to the H-1B lottery selection process, adjusting the U.S. Department of Labor’s prevailing wage requirements for H-1B visa holders to higher salary percentiles, and creating additional obligations for both employers that place visa workers at third-party client sites and on the end-client companies where those workers are placed.

President Biden exercised this authority under the oversight authority of the Congressional Review Act, which allows a president and congress to undo last-minute “midnight regulations” issued by a prior administration during a certain look-back period. For regulations that have not yet taken effect within 60 days of the election and pending rules not yet published in the Federal Register, prior to enacting any new regulatory activity, federal executive agencies are directed to confer with the director of the Office of Management and Budget. Additionally, all pending rules that had not yet been published in the Federal Register are withdrawn.

List of Biden’s Executive Actions

In addition to Biden’s Executive Order reforms to U.S. immigration policy, below is a chart showing all of the executive actions signed by President Biden on his first days in office, including changes to business immigration policy measures and other executive actions that have followed or are expected.

Subject Matter Type of Executive Action Date
Re-engagement with World Health Organization (WHO) End withdrawal process Jan. 20
Combating sexual orientation, gender identity discrimination Executive order Jan. 20
Creation of COVID-19 response coordinator position Executive order Jan. 20
Ending “harsh and extreme immigration enforcement” Executive order Jan. 20
Launching an initiative to advance racial equity Executive order Jan. 20
Requirement for ethics pledge for executive-branch personnel Executive order Jan. 20
Requirement for masks/distancing on all federal property and by federal workers Executive order Jan. 20
Reversing travel ban targeting primarily Muslim countries Executive order Jan. 20
Revoking certain executive orders concerning federal regulation Executive order Jan. 20
Revoking order that aims to exclude undocumented immigrants from the U.S. Census Executive order Jan. 20
Revoking permit for Keystone XL pipeline, pause energy leasing in ANWR Executive order Jan. 20
Extending protection from deportation for Liberians in U.S. Memorandum Jan. 20
Freezing any new or pending regulations Memorandum Jan. 20
Modernizing and improving regulatory review Memorandum Jan. 20
Preserving DACA Memorandum Jan. 20
Stopping border wall construction Proclamation Jan. 20
Asking agencies to extend eviction/foreclosure moratoriums Request Jan. 20
Asking Education Dept. to extend student-loan pause Request Jan. 20
Rejoining Paris climate agreement Sign an “instrument” Jan. 20
Supporting international response to COVID-19, “restore U.S. global leadership” Directive Jan. 21
COVID-19 vaccination campaign goals Directives Jan. 21
Establishing a COVID-19 Health Equity Task Force Executive order Jan. 21
Establishing COVID-19 Pandemic Testing Board Executive order Jan. 21
Improving collection/analysis of COVID-related data Executive order Jan. 21
Increasing access to COVID-19 treatments and clinical care Executive order Jan. 21
Invoking Defense Production Act to supply shortfalls in fight against COVID-19 Executive order Jan. 21
Issuing OSHA guidance for keeping workers safe from COVID-19 Executive order Jan. 21
Providing guidance on safely reopening schools Executive order Jan. 21
Requiring face masks at airports, other modes of transportation Executive order Jan. 21
Increasing FEMA reimbursement to states for National Guard, PPE Memorandum Jan. 21
Asking agencies to boost food aid, improve delivery of stimulus checks Executive order Jan. 22
Restoring collective bargaining power for federal workers Executive order Jan. 22
Repealing ban on transgender people serving openly in U.S. military Executive order Jan. 25
Tightening ‘Buy American’ rules in government procurement Executive order Jan. 25
Reinstating coronavirus travel restrictions on Brazil, most of Europe Proclamation Jan. 25
Ending Justice Department’s use of private prisons Executive order Jan. 26
Combating racism against Asian-Americans, Pacific Islanders Memorandum Jan. 26
Directing agencies to engage in consultations with tribal governments Memorandum Jan. 26
Directing HUD to address discriminatory housing practices Memorandum Jan. 26
Pausing new oil and gas leasing on U.S. lands/waters, elevate climate change as national-security, foreign-policy priority Executive order Jan. 27
Re-establishing President’s Council of Advisors on Science and Technology Executive order Jan. 27
Directing agencies to make decisions on best available science, evidence Memorandum Jan. 27
Reopening Obamacare marketplaces, lowering recent barriers to joining Medicaid Executive order Jan. 28
Lifting certain restrictions on abortion funding Memorandum Jan. 28
Keeping aluminum tariffs on U.A.E., removal of exemption from Trump administration Proclamation Feb. 1
Ending “Remain in Mexico” program, restoration of U.S. asylum system Executive order Feb. 2
Creation of task force to reunite migrant families separated at the U.S.-Mexico border Executive order Feb. 2
Implementing a roll back of the “public charge rule,” which imposes a wealth test on would-be immigrants Executive order Feb. 2
Retroactive reimbursement states fully for FEMA-eligible costs tied to COVID Memorandum Feb. 2

 

 

About the Author:

Angela Schulz is the Managing Attorney of The Law Offices of Angela C. Schulz, PLLC in North Carolina and corporate and business immigration law for small to mid-sized entities (SMEs), serving the international needs of clients with cross-border transactional and business immigration matters in a variety of industries, including technology, hospitality, pharmaceutical, healthcare, financial services, biotechnology, real estate, and energy infrastructure.

Amazon released new transparency data this weekend in its bi-annual transparency report, citing a record number of international government data demands in the second half of 2020.

According to the report, Amazon processed 27,664 government demands for user data, which includes data on customer shopping searches as well as data from Amazon Echo and Ring devices. The report shows an 800% spike in requests, up from only 3,222 data demands in the first six months of 2020.

Of the government requests, Germany made 42% of all requests, followed by Spain (18%) and the U.S. (11%).

Key Players Are U.S.-Based Cloud Companies

In the wake of COVID-19, governments and businesses alike increasing use of cloud technology and services. Cloud services offer many advantages, from accessing your company’s files or email from anywhere to purchasing applications and software ‘on demand’ in lieu of needing to purchase expensive individual software or hardware packages. Companies like Google, Oracle, Microsoft, Amazon, and IBM are constantly developing new technologies to sync the world into a convenient, communal virtual workplace.

European Regulators Express Concern Over Lack of Exclusive Privacy Jurisdiction

Many non-U.S. regulators, however, have concerns that U.S. cloud companies like Google, Oracle, Microsoft, Amazon, and IBM are not exclusively subject to European data protection law, such as the General Data Protection Regulation 2016/679 (“GDPR”), a regulation in European law on data protection and privacy in the European Union and the European Economic Area. U.S.-based cloud companies are also subject in the U.S. to the Clarifying Lawful Overseas Use of Data Act (the “CLOUD Act”), which amends the Stored Communications Act of 1986 allowing federal law enforcement agencies to compel U.S.-based cloud companies to issue warrants or subpoenas to request stored data regardless of whether the data is stored on U.S. or foreign soil.

The Amazon report does not comment on the cause of the sharp rise in government information demands, however, German government authorities have expressed increasing concerns over the storage of sensitive data with U.S.-based cloud providers, citing concerns of a lack of exclusive jurisdiction and Europe’s dependency on U.S.-based cloud companies.

European Privacy Dependency on U.S. Cloud Providers

While foreign governments may be making more use of cloud technology and services, Europe is still heavily dependent on U.S.-based cloud companies to do so. Take, for example, the German Federal Police using Motorola devices and Amazon services to store bodycam footage in the absence of a European cloud provider alternative, because Amazon was the only company in Germany with a certificate from the Federal Office for Information Security. According to research conducted by the think tank Ceps, approximately 90 percent of the world’s Western data is stored in U.S.-based data centers.

Meanwhile in the U.S., Ring, the video doorbell and home security startup company that Amazon purchased for $1 billion, now has 2,000 law enforcement partners, allowing police departments across the United States to access homeowners’ doorbell camera footage.

 

If you have questions about developing or updating your company’s cybersecurity standards, legal guidelines, and/or compliance programs, call The Law Offices of Angela C. Schulz, PLLC today at 704-755-5254 or email info@acslawnc.com to schedule an initial consultation.

About the Author:

Angela Schulz is the Managing Attorney of The Law Offices of Angela C. Schulz, PLLC in North Carolina and practices data protection and information technology law. She practices corporate law for U.S.-based SMEs, serving the international needs of clients and negotiates domestic and cross-border transactional matters in a variety of industries, including technology, hospitality, pharmaceutical, healthcare, financial services, biotechnology, real estate, and energy infrastructure.

“Securing cyberspace is one of the most important

and urgent challenges of our time.”

-Senator Jay Rockefeller, Former Chairman of the Senate Commerce, Science and Transportation Committee

Small Businesses Face Cybersecurity Challenges

According to the Verizon Business 2020 Data Breach Investigations Report (“DBIR”), almost a third or 28% of data breaches in 2020 involved small businesses. 

small business cybersecurity

If you are reading this, it is a good indication that you or your company is committed to protecting itself, as well as its employees, partners, and clients from damaging cyber security breaches that are intentional or unintentional. Domestic and international laws alike are increasing privacy standards for how and when companies should take efforts

to prevent the disclosure of confidential client information. Whether sensitive or confidential data is passively stored on office computers, hidden in metadata while transmitting an electronic communication, or inadvertently transferred through other means, companies should pursue multiple options to minimize the risk of disclosing confidential information.

When companies choose an appropriate compliance mechanism to establish adequate safeguards for data importers and transferees, they should carefully analyze their particular situation, industry, and scope of domestic, interstate, or international commerce.

The Danger to Small Businesses

According to DBIR, the dividing line between small and large businesses is increasingly smaller, in part due to the movement toward the cloud and its numerous web-based tools, as well as the continued rise of social attacks. These factors have led the criminals to alter their forms of attack to get the information they need in the quickest and easiest way. Whether it is a threat of spyware, backdoor malware, physical tampering, phishing attempt, use of stolen credentials, or other hacking attempt to a company’s eCommerce site, blog, V-log, podcast, or other digital assets, companies should actively and routinely take steps to protect its domain and privacy compliance standards.

This not only ensures company and client data is safe, but a robust security platform becomes one more tool companies can use to attract new customers.

Cybersecurity: Protecting Small Business Personal and Client Data

What is reasonable cybersecurity protection for a company depends upon the circumstances including, for example, the sensitivity of the confidential information that may be disclosed, the potential adverse consequences from disclosure, any special instructions or expectations of a third-party or client, and the steps that the company takes to prevent the disclosure of metadata.

COVID-19: New Risks to Cybersecurity

The COVID-19 pandemic is also responsible for changing the way businesses are operating. As remote working surges in the face of the global pandemic, end-to-end security from the cloud to employee laptop becomes paramount. In addition to protecting their systems from attack, we urge all businesses to continue employee education as phishing schemes become increasingly sophisticated and malicious.

Developing Comprehensive Small Business Protocols and Compliance Standards

Since effective security is a team effort involving the participation and support of every user that interacts with a company’s data and/or systems, it is a necessity for your company’s information security requirements to be made available or published to all users in an format that is understandable and concise.

The development of corporate policies ensures users, employees, and company vendors have a means to understand their day-to-day security responsibilities and the threats that could impact a company within the industry it operates.

In developing corporate policies, companies should consider:

  • Detecting the different ways hackers can access employee files and business systems
  • Identifying new and emerging cyber threats
  • Isolating weaknesses in your company systems
  • Recognizing various tactics to thwart system threats

Implementing consistent security documentation will help your company comply with current and future legal obligations to ensure long term due diligence in protecting the confidentiality, integrity and availability of data and systems.

Encrypting files to Protect Your Business

One simple, practical tool for small businesses?

Encrypting files is a critical security measure considered by privacy experts to be one of the best first steps a business can take to keep business data secure.  Encryption is useful for anywhere your employees might have sensitive or confidential data: computers, laptops, mobile phones, tablets, portable media such as USB drives, etc. 

If an encrypted device is lost or stolen, it will not be possible for someone to access the contents without the encryption password.  For small businesses, Windows 10 has a built-in tool, BitLocker, and Mac OS has its FileVault option that can be easily configured and turned on by your IT department as a free and easy to use solution to add to your company’s cybersecurity protocol.

Know your enemy and know yourself and you can fight a hundred battles without disaster.” – Sun Tzu

Small businesses can take this cybersecurity protection one step further by using encrypted email for sending confidential information.  If you use a file-sharing service like Citrix ShareFile, ZixCorp, Box, SharePoint, GSuite and others, it is important to make sure your small business data is encrypted both at rest (stored on the system) and in transit (when sending, receiving, uploading, downloading, etc.).  While those two solutions are usually not free, the cost is typically very low for the protection it affords. 

 

If you have questions about developing or updating your company’s cybersecurity standards, legal guidelines, and/or compliance programs, call The Law Offices of Angela C. Schulz, PLLC today at 704-755-5254 or email info@acslawnc.com to schedule an initial consultation.

 

About the Author:

Angela Schulz is the Managing Attorney of The Law Offices of Angela C. Schulz, PLLC in North Carolina and practices data protection and information technology law.

Draft Legislation Proposed to Permit Mobile Notarization

Recognizing the legal challenges that the COVID-19 pandemic presents, four sections of the North Carolina Bar Association (Estate Planning & Fiduciary Law, Elder & Special Needs Law, Litigation, and Real Property) collaborated to draft and propose legislation that would enable remote witnessing/notarization and execution during the current North Carolina state of emergency. 

This past weekend, draft legislation was submitted to legislative leaders. The legislation, if enacted, will make it possible for clients to execute key legal documents remotely during the current state of emergency, while also limiting potential exposure for witnesses, notaries, and attorneys. It is critical to the legal system and the needs of clients that estate planning processes and the execution of other instruments that occur during this pandemic are and will remain valid.

If you or a loved one needs to update your estate planning documents, you can still schedule a virtual consultation by calling 704-755-5254, and stay tuned for further updates regarding this legislation. 

Coronavirus Concerns in the Workplace

Preparing Employers and Employees for Public Health Emergencies and COVID-19

On January 30, as the World Health Organization (WHO) declared that the coronavirus was a global public health emergency, many uncertainties resulted from the spread of the virus for both employers and employees.

Employers across the country now find themselves resorting to voluntary, and in some cases, mandatory employee work-from-home quarantine procedures, while many employees face the prospect of being out of work for two weeks or more.

What is coronavirus?  According to the WHO, COVID-19 (the “coronavirus”) common signs of infection include respiratory symptoms, fever, cough, shortness of breath, breathing difficulties, and can lead to respiratory illness. In severe cases, infection can cause pneumonia, severe acute respiratory syndrome, kidney failure and even death. The WHO has recommended various precautions to prevent the spread of coronavirus, including that people avoid close contact with individuals showing symptoms of respiratory illness, such as coughing and sneezing.

Why should employers take action? Employers and employees alike can take some commonsense steps to prevent the spread of COVID-19. Under the federal Occupational Safety and Health Act of 1970 and applicable state and local laws, employers have a general duty to provide employees with safe workplace conditions that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Given the ongoing pandemic, and an evolving medical understanding of the virus’ transmission and recommended incubation, it is important for employers to consider what preventative measures to take to maintain safety and protect their employees.

If an employer or employee is out with the flu or is caring for ill family members, such leave may be covered under the Family and Medical Leave Act (FMLA).  Under the FMLA, covered employers must provide employees job-protected, unpaid leave for specified  family and medical reasons, which may include the flu where complications arise. 

Which employees are eligible to take FMLA leave?

An employee is eligible to take FMLA leave if s/he works for a covered employer and:

  • has worked for their employer for at least 12 months;
  • has at least 1,250 hours of service over the previous 12 months; and
  • works at a location where at least 50 employees are employed by the employer within 75 miles.

In North Carolina, the Family and Medical Leave Act in North Carolina is applicable only to employers with 50 or more employees. If a North Carolina company has fewer than 50 employees, the company may provide the employee with either paid or unpaid leave at the discretion of the employer.

An employee who is sick or whose family members are sick may be entitled to leave under certain circumstances. Eligible employees of covered employers under the FMLA are entitled to take to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. This may include the flu where complications arise that create a “serious health condition” as defined by the FMLA.

To minimize the spread of the COVID-19 pandemic, employees who are ill with the flu or have a family member with the flu are urged to stay home. The Department of Labor encourages employers consider flexible leave policies for their employees in these circumstances.  

Is an employer required by law to provide paid sick leave to employees who are out of work because the flu, have been exposed a family member with the flu, or are caring for a family member with the flu?

Federal law generally does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu or are caring for someone with the flu. State and local laws may have different requirements, which should be independently considered by employers when determining an obligation to provide paid sick leave.

Employers should encourage employees that are ill with pandemic influenza to stay home and should consider flexible leave policies for their employees.

The Department of Labor (DOL) has recently issued a statement encouraging employers to support these and other community mitigation strategies and to consider flexible leave policies for their employees.

Under the DOL’s guidance, federal law permits states to give significant flexibility to amend their unemployment insurance laws to provide benefits in multiple scenarios related to the coronavirus.

For example, federal law allows states to pay benefits where:

(1) An employer temporarily ceases operations due to COVID-19, preventing employees from coming to work;

(2) An individual is quarantined with the expectation of returning to work after the quarantine is over; and

(3) An individual leaves employment due to a risk of exposure or infection or to care for a family member.

Additionally, federal law does not require an employee to quit in order to receive benefits due to the impact of COVID-19.

In lieu of laying off employees in this situation, consider other options such as preparing a plan of workplace plan of action or permitting employees to work remotely.

 

 

If you have human resources or employment-related questions related to your individual employer situation during the COVID-19 pandemic, consider speaking with an attorney to review your rights and obligations under North Carolina law. Call 704-755-5254 or email info@acslawnc.com to schedule an initial consultation.

 

Learn what the U.S. government is doing in response to coronavirus at www.usa.gov/coronavirus (en Español: gobierno.usa.gov/coronavirus).

On Feb. 24, 2020, the U.S. Citizenship and Immigration Services (USCIS) implemented the Inadmissibility on Public Charge Grounds final rule nationwide. On January 27, 2020, the U.S. Supreme Court granted the Trump administration’s emergency request to start enforcing the immigration rule, a decision that nullified an order by a federal appeals court to block the immigration restrictions while litigation was ongoing.

The final USCIS rule is intended to enforce provisions of U.S. immigration law related to the public charge ground of inadmissibility by preventing immigrants from obtaining residency or admission to the U.S. if they use public-assistance programs or might use them in the future. 

USCIS has announced that it will apply the final rule to all applications and petitions postmarked (or, if applicable, submitted electronically) on or after that date and will reject any affected application or petition that does not adhere to the final rule, if postmarked on or after Feb. 24, 2020.  

Generally, under section 212(a)(4) of the Immigration and Nationality Act of 1952 (the “INA,” or referred to as “the Act”), as amended, 8 U.S.C. 1182(a)(4)), an immigrant who is likely to become a public charge at any time in the future is inadmissible and ineligible and, therefore, ineligible for admission or adjustment of status. The final rule clarifies the factors considered when determining whether someone is “likely at any time in the future to become a public charge”.

For those immigrants in the United States who (1) have a nonimmigrant visa and (2) seek to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification, the final rule also now requires those individuals to demonstrate, as a condition of approval, that since obtaining the status they seek to extend or change, the person has not received public benefits for more than a total of 12 months within any 36-month period. 

 

 

Statutory Basis for the USCIS Final Rule on Inadmissibility on Public Charge Grounds

Section 212(a)(4) of the INA (8 U.S.C. § 1182(a)(4)): “Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible[…] In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s-(I) age;  (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills . . . .”  

Section 213 of the INA (8 U.S.C. § 1183): “An alien inadmissible under [section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4)] may, if otherwise admissible, be admitted in the discretion of the Attorney General (subject to the affidavit of support requirement and attribution of sponsor’s income and resources under section 1183a of this title) upon the giving of a suitable and proper bond . . . .” 

Section 214(a)(1) of the INA (8 U.S.C. § 1184(a)(1)): “The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe, including when he deems necessary the giving of a bond with sufficient surety in such sum and containing such conditions as the Attorney General shall prescribe, to insure that at the expiration of such time or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 1258 of this title, such alien will depart from the United States.” 

Section 248(a) of the INA  (8 U.S.C. § 1258(a)): “The Secretary of Homeland Security may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status and who is not inadmissible under section 1182(a)(9)(B)(i) of this title (or whose inadmissibility under such section is waived under section 1182(a)(9)(B)(v) of this title) . . . .” 

8 U.S.C. § 1601(1): “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”  

8 U.S.C. § 1601(2)(A): “It continues to be the immigration policy of the United States that – aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”  

8 U.S.C. § 1601 (2)(B): It is also the immigration policy of the United States that “the availability of public benefits not constitute an incentive for immigration to the United States.”   

 

If you have questions regarding recent changes to income-based restrictions on immigration policy or your immigration status as a result of the Inadmissibility on Public Charge Grounds final rule, consider speaking with an attorney to review your individual situation. If you would like to schedule an initial consult regarding your immigration needs, call 704-755-5254 or send an email to info@acslawnc.com.

In December 2019, the Setting Every Community Up for Retirement Enhancement (SECURE) Act, a bipartisan retirement bill passed that includes many bi-partisan reforms that increase access to workplace plans and expand retirement savings. The retirement legislation expands opportunities for individuals to increase their retirement and estate planning plans, including policy changes on defined contribution (DC) plans, defined benefit (DB) plans, individual retirement accounts (IRAs) and 529 plans.

Estate Planning with IRA Trusts for Minors

IRA accounts or employer sponsored retirement plans, such as a 401(k) are generally considered non-probate assets (not normally covered by a will) but instead are passed directly to a beneficiary according to the beneficiary designation forms that are completed upon account opening. When the intended beneficiary is a minor, IRA monies generally cannot be inherited outright, so individuals frequently pick between naming a custodian for a child who would inherit the IRA, or alternatively, by creating a trust for the benefit of the minor, where the trust is the beneficiary of the IRA.

IRA Protection Trusts and Stretch Trusts

For individuals who opt for the latter and name a trust as the beneficiary of an IRA, a frequent estate planning strategy for individuals who do not need the IRA balances for their own retirement but want to contribute the balance to set up a long-term tax-advantaged strategy for their heirs is to set up an IRA Protection Trust or IRA Stretch Trust.

Generally, an IRA Protection Trust or IRA Stretch Trust enables the trust to take advantage of favorable IRS minimum-distribution rules by “stretching out” the payments of those monies over a beneficiary’s lifetime while also protecting the money from spendthrifts, creditors and even divorce.

Impact on Long-Term Estate Planning

Before the SECURE Act, the required minimum distribution (RMD) rules allowed non-spouse beneficiaries to gradually draw down an IRA inherited from, e.g., a grandparent, over the beneficiary’s IRS-defined life expectancy. However, the SECURE Act now requires most non-spouse IRA and retirement plan beneficiaries to drain inherited accounts within 10 years after the account owner’s death.

This can mean big changes for individuals who have set up estate plans that include tax-advantaged IRA Protection Trusts.

Depending on how an IRA Protection Trust is structured and who the beneficiary is, stricter rules under the SECURE Act for post-death required minimum distributions may limit the benefits of such tax-advantaged estate plans.

The tax-advantaged estate strategy may require changes to an estate plan for relatives other than parents who leave IRA Trusts to minors. For individuals who inherit an IRA from an account owner who passes away after December 31, 2019, fewer beneficiaries will be able to extend distributions from the inherited IRA over the course of their lifetime. Instead, many beneficiaries will now need to withdraw all IRA monies within 10 years following the death of the original IRA account holder. The SECURE Act does maintain certain exceptions to the 10-year distribution requirement, e.g., for assets left to a surviving spouse, minor children, a disabled or chronically ill individual, and beneficiaries who are less than 10 years younger than the decedent. 

However, the changes from SECURE Act are extensive enough to consider revisiting an estate planning strategy to ensure that long term IRA Stretch trust goals are still consistent with new regulations.

 

If you would like to schedule an initial consult for your estate planning needs, call 704-755-5254 or email at info@acslawnc.com.

One year ago today, Stan Lee, the co-creator of superheroes like Spiderman, Iron Man, and the X-Men, passed away.

Mr. Lee reportedly left and estate valued at more than $50 million.  Prior to Mr. Lee’s death, reports also circulated of possible elder abuse, from Mr. Lee’s 67-year-old daughter spending $20,000 to $40,000 a month on credit cards and demanding changes to a trust set up for her benefit, to caregivers using their position of trust to gain access to Mr. Lee’s money. Now, a year later, she has filed an intellectual property lawsuitin a California federal court as the trustee for the Lee Family Survivor’s Trust against POW! Entertainment.

Often, celebrity deaths can shed light on important estate planning lessons. Mr. Lee lived to be 95. Increasing numbers of people are also living into their 80s, 90s and 100s, yet many elders may not have the mental or physical faculties to manage their financial affairs during these later years. Even for those who do not have to worry about family fights or estate taxes, estate plans can still serve a valuable purpose in avoiding probate and ensuring privacy.

Additionally, estate planning frequently focuses on the details of wealth distribution upon death but not other vital considerations, such as aging and late-life planning.  Fortunately, however, prudent individuals can take steps to plan ahead, such as:
  • Consolidate financial accounts.  Shifting assets into fewer accounts can simplify a loved one’s balance sheet that and make finances easier to manage.
  • Consider a revocable living trust.  Wills protect individuals only after they have passed away, not while they are alive.  Individuals who put assets into a revocable living trust during their lifetime can gain valuable financial assistance as one ages.
  • Choose Qualified Trustees.   Prior to Mr. Lee’s death, Mr. Lee and his attorney filed a declaration in a Los Angeles court stating that certain caregivers and acquaintances were attempting to “gain control over [Mr. Lee’s] assets, property and money.” Clients are frequently inclined to choose those closest to them as trustees, but that is often not the best approach. Even if the designated person is honest and reliable, the duties of a trustee are complex and demanding. Professional advisors or even institutional trustees are often a better alternative, especially for high-net-worth individuals.
  • Consider drafting a healthcare power of attorney or advance health directive.  Very rarely can families and loved ones predict incapacity. However, putting protections in writing can provide family members and health care professionals with valuable guidance and clarity regarding your wishes in the event of mental or physical incapacity.
  • Remember to Update Your Estate Plan. An estate plan is a living document and should be frequently reviewed and updated.  Consider revisiting estate plans after major life changes, such as marriage, divorce, having a child, buying property, or even on birthdays ending in 0 or 5.

 

If you would like to schedule an initial consult for your estate planning needs, call 704-755-5254 or email at info@acslawnc.com.

Estate planning is a commonly-overlooked piece of firearms safety. One of the greatest risks of personally owning firearms regulated by the National Firearms Act (NFA) is the legal restriction prohibiting anyone from handling your firearm(s) outside your presence.

Under the legal doctrine of constructive possession, third parties cannot even access to your NFA firearms outside your presence. Practically speaking, if anything happens to you, this means that neither a court-appointed estate administrator or even your spouse would be allowed to access your firearms safe.

As a means of avoiding unintentional liability, gun trusts can be useful, lawful transfer mechanisms for those firearms regulated by the National Firearms Act and Title II of the Gun Control Act.

Firearms regulated under the NFA include:

(1) a shotgun having a barrel or barrels of less than 18 inches in length;

(2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;

(3) a rifle having a barrel or barrels of less than 16 inches in length;

(4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;

(5) any other weapon, as defined in subsection (e);

(6) a machine gun;

(7) silencers; and

(8) a destructive device.

26 U.S.C. 5845; 27 CFR 479.11

Firearms that do not belong to that class of weapons may not necessitate a firearms trust. However, transfer of firearm ownership can still raise legal issues.

A NFA trust (also known as a gun trust, ATF trust, Title II trust, or Class 3 trust) creates a fiduciary relationship for gun-owning trustors to give a trustee the right to hold assets on behalf of one or more beneficiaries. Such trusts not only allow owners of NFA-regulated firearms to avoid some federal transfer obligations that would otherwise be imposed on an individual, but also like other trusts, it creates an estate planning mechanism for inheriting firearms.

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Who takes possession of firearms after you die?

Prudent firearm owners and estate administrators alike should consider who can (or will have) access to a decedent’s firearms not just during the gun owner’s life but also after their death. Estate administrators have a responsibility to secure weapons and mitigate liability of transferring possession of a firearm to a person unlawfully, to avoid unintentional violations of federal and state laws.

Prudent firearm owners should consider:

  • Are your firearm(s) regulated by the National Firearms Act and Title II of the Gun Control Act, which limits the transfer of gun ownership?
  • Will your firearm(s) pass to a minor child in will or by other operation of law?
  • Have you relocated or do you intend to relocate to another state?
  • Will your firearm(s) pass to an heir living outside your state?
  • Is your executor or estate personal representative a felon or may otherwise be disqualified from possessing a firearm?
  • Are your heirs a felon or otherwise be disqualified from possessing a firearm?

Generic estate planning typically found online are generally not designed the specific needs of firearms owners offer insufficient protection of your privacy, safety, or control over firearms.

If you are a firearms owner in need of estate planning or are administering an estate that contains firearms, consider speaking with an attorney to review your estate planning and administration needs, so you can protect yourself and your family from unintended consequences in the future.

 

 

If you would like to schedule an initial consult for your estate planning needs, call 704-755-5254 or email at info@acslawnc.com.