In Pennsylvania, and elsewhere, those who possess or otherwise control a given property can be held liable for their failure to exercise reasonable care in maintaining the premises in a safe condition for those entering upon such premises. Premises liability governs a category of claims that include a range of accident scenarios, such as slip-and-fall, and attaches liability to those who are negligent in their maintenance of property, thus exposing entrants to a significant and unreasonable risk of injury. Unfortunately, many injured persons are not aware of their right to recover — under Pennsylvania law — with regard to slip-and-fall accidents. For the sake of clarity, let’s explore the basics of premises liability in Pennsylvania, first. Premises Liability Basics Pennsylvania law imposes substantially different duties on the possessor of land depending on the “type” of visitor that is injured on the premises at-issue. For example, a trespasser is owed the lowest standard of care under the law, where the possessor of land will only be held liable for injuries if he has engaged in willful or wanton misconduct. By contrast, a standard business invitee — a customer at a retail store, for example — is owed the highest standard of care under the law. Given the enormous range of premises liability law, there are unsurprisingly diverse consequences. Generally speaking, however, most injury claimants will fall under the category of licensee or invitee. Both licensees and invitees have the consent of the possessor of land to enter and remain upon the […]
In Pennsylvania, and elsewhere, prospective injury claimants are often uncertain about their right of recovery under the law and how it is effected by their own behavior at the time of the precipitating incident. Someone who slips and falls on another’s property, thus suffering an injury that was later worsened by a failure to seek medical attention in a reasonable time-frame after the accident, would not necessarily be entitled to recover full damages, given the circumstances surrounding the injury. There are numerous instances in which the injured plaintiff contributes — in some way — to their own injuries. Comparatively few cases are such that the plaintiff escapes unscathed from the perspective of fault contribution. In challenging personal injury scenarios, it is often the case that the plaintiff acts “unreasonably” and “negligently” too. We therefore arrive at a critical question: can you recover for your injuries, even if you are somewhat responsible? The answer is rather simple, actually, but requires an understanding of the principle of modified comparative negligence. Modified Comparative Negligence in Pennsylvania Pennsylvania lawmakers encoded the principle of modified comparative negligence in section 7102 of the Pennsylvania Consolidated Statutes. The principle establishes very specific and straightforward rules for a plaintiff’s recovery in the event of contributory fault. Put simply, an injured plaintiff in Pennsylvania will not be barred from suing and recovering damages from the defendant(s), but only if the plaintiff contributed less than fifty percent of the total fault. In other words, the plaintiff must be “less negligent” […]
The Pennsylvania Department of Human Services has revised the dollar amounts it uses to calculate eligibility for Medical Assistance Long-Term Care benefits (MA-LTC benefits). These cost-of-living inflation adjustments to Medicaid dollar amounts occur quarterly, effective January 1, July 1, and October1 of each year. 1. Penalty Divisor. The daily transfer penalty divisor increased from $321.95/day to $330.19/day. This new penalty divisor is to be used when calculating transfer penalties for Medicaid applications filed on or after January 1, 2018. To illustrate the use of the penalty divisor, assume an Applicant for MA-LTC benefits makes a gift (or other transfer for less than fair market value) in the amount of $10,000 within the 60 months look-back period. Further assume that the gift is not exempted from the transfer penalties. Such a gift will result in to 30 days of ineligibility for MA-LTC benefits. ($10,000 divided by $330.19 equals 30.28 days; the partial day of ineligibility is ignored under applicable rules.) 2. Spousal Impoverishment. Spousal impoverishment guidelines have been adjusted as follows: a. The minimum community spouse resource allowance (“CSRA”) for 2018 is $24,720. b. The “standard” maximum CSRA is $123,600. 3. Home Equity Limitations. a. For a married recipient, there is no cap on the dollar amount of home equity. b. For a single applicant, the limit on home equity is now $572,000. 4. Home Maintenance Deduction. The home maintenance deduction for individuals applying for MA-LTC benefits for short-term stays has been increased to $772.10/month, for up to 6 months. 5. […]
In the January/February 2018 issue of the American Bar Association’s magazine, Student Lawyer, Drake, Hileman & Davis attorney Jonathan Russell, provided insights and recommendations to new lawyers making the transition from law school to legal practice. Attorney Russell’s perspective was featured in the cover story article entitled, “Start Now to Become Tomorrow’s Legal Leader”. The ABA is the one of the largest voluntary professional legal organizations with nearly 400,000 members. The ABA is committed to improving the legal profession and advancing the rule of law throughout the United States and around the world.
The new Tax Cuts and Jobs Act of 2017 (“2017 Tax Cuts Act”) P.L. 115-97, doubled the Estate and Gift tax “Applicable Exclusion Amount,” from $5 million to $10 million, for gifts made, and estates of decedents dying, after December 31, 2017, and before January 1, 2026. (These amounts were previously adjusted for inflation.) By increasing the applicable exclusion amount, the new law automatically increases the Generation Skipping Tax (“GST”) exemption. Code Sec. 2631(c). See my prior article entitled, “Tax Provisions Impacting Estate Planning In the New Tax Act.” However, the 2017 Tax Cuts Act changed the inflation index used after 2017 for the applicable exclusion amount and GST exemption. The IRS recently confirmed that the new law’s doubling of the basic exclusion amount, when adjusted for inflation based on the new index, produces a $11,180,000 Exemption figure for 2018. This is slightly less than double the $5,600,000 figure that the IRS had announced before enactment of the Tax Cuts and Jobs Act. This new figure reflects the application of the new C-CPI-U inflation factor to the 2018 adjustments for the applicable exclusion amount. The bottom line is, clients having aggregate estates valued less than $11,180,000 will not need to worry about the Federal Estate or Gift Tax for the next 10 years (when the current law sunsets). (Don’t forget, life insurance death benefits are included in your taxable estate.) Please call or email us if you have questions about the new Exemption Amount and how it impacts your current […]
2018 marks the 8th year in a row that Jonathan Russell has been named a SuperLawyer by Thompson Reuters and Philadelphia Magazine. The selection process is based upon peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Only 5% of attorneys in the United States receive the SuperLawyer designation.
Pending legislation could have a major impact on the Federal Estate and Gift Tax. H.R. 1, the “Tax Cuts and Jobs Act” (“Tax Cuts Act”) released on November 2, 2017 by the Ways and Means Committee of the U.S. House of Representatives, would double the basic exclusion amount for gift and estate taxes from $5 million to $10 million per person, indexed for inflation. It appears that, if the Tax Cut Act is enacted, in 2018 a single person could shield up to $11.2 million, and a married could shield up to $22.4 million, due to inflation adjustments. The Tax Cuts Act would repeal the estate tax and the generation skipping tax in six years, as of Jan. 1, 2024, while still maintaining a full stepped-up basis for inherited property. (The retention of the step-up in basis had been in doubt.) The Tax Cuts Act keeps the Federal Gift Tax intact (still “unified” with the Federal Estate Tax), with a $10 million basic exclusion amount for gifts (adjusted for inflation). However, it provides a break in 2023: a new lower top rate of 35%, down from 40%. There is substantial opposition to the Federal Estate Tax repeal. “This is a tax plan that fails to address fiscal soundness and morality,” stated Gene Sperling, former director of the White House Economic Council under Presidents Bill Clinton and Barack Obama, on a Center for American Progress conference call discussing the bill. The Center considers the federal estate tax repeal to be both […]
The new Tax Cuts and Jobs Act of 2017 (“2017 Tax Cuts Act”) signed by the President on December 22, 2017, P.L. 115-97 (115th Cong., 1st Sess.), contains important tax provisions related to estate planning. The most important such provision is the doubling of the Applicable Exclusion Amount for Federal Estate and Gift Taxes, described in Paragraph 1 below. 1. Doubling the Applicable Exclusion Amount for Federal Estate and Gift Taxes. The new law doubles of the estate and gift tax “Applicable Exclusion Amount,” from $5 million to $10 million, for gifts made, and estates of decedents dying, after December 31, 2017, and before January 1, 2026. (These amounts were previously adjusted for inflation.) This means that by employing appropriate estate planning measures, a married couple’s total exemption may be increased from $10 million to $20 million. By increasing the applicable exclusion amount, the new law automatically increases the Generation Skipping Tax (“GST”) exemption. Code Sec. 2631(c). By way of Background: a. A federal “gift tax” is imposed on certain lifetime transfers (Code Sec. 2511), and a federal “estate tax” is imposed on certain transfers at death. (Code Sec. 2001) b. Under pre-2017 Tax Cuts Act law, the first $5 million (as adjusted for inflation in years after 2011) of transferred property was exempt from estate and gift tax. For estates of decedents dying and gifts made in 2018, this “basic exclusion amount” was $5.6 million ($11.2 million for a married couple). c. For estates of decedents dying and gifts […]
The most commonly used method for tax-free giving is the annual gift tax exclusion, which allows you to make a gift of up to $14,000 (per donor, per donee, per year) on an annual basis to each donee with no gift tax and no reporting by donor(s) or donee(s). The IRS recently announced that this exclusion amount will be increased due to inflation to $15,000 effective January 1, 2018. There is no limit on the number of donees to whom you can make such gifts. If you make gifts to 10 donees in 2017, you can exclude up to $140,000 of such gifts from gift tax. In addition, if you are married you can double the amount of the exclusion to $28,000 per donee ($30,000 in 2018), because you and your spouse can combine your exemptions in a single gift from either of you. Your annual gift tax exclusion expires at the end of each year, and does not carry over into subsequent years, so the sooner in the year you take advantage of this type of gifting, the better. If you want to make a gift that exceeds the amount of the exclusion, you can effectively double the exclusion by making one gift in one year (before December 31) and the second early in the next year (after January 1). For example, if you are married, you can make a total tax-free gift of $56,000 to any individual by making a gift of $28,000 in December, 2017 and another […]
A very effective strategy to employ in order to ensure that your estate will not be subject to estate tax is to make sufficient gifts during your lifetime so that at your death your estate is smaller than the then-current federal estate tax exemption amount. Your lifetime gifts above the annual exclusion amount are, however, subject to a gift tax that is imposed at the same rate as the estate tax. This “unified” system is intended to eliminate any tax advantage to making gifts. But certain types of lifetime transfers are not subject to gift tax. While many wait until year-end to make such tax-free gifts, any time during the year is a good time to do so, and the sooner the better. In separate articles, we discuss how to take advantage of the Annual Gift Exclusion; the Tuition Payment Exclusion; Section 529 Plans; the Medical Payments Exclusion; making Gifts in Trust; Charitable Gifts; and Making Gifts from your IRA. If you would like to discuss making lifetime gifts, please contact us to set up a free consultation.