Frequently Asked Questions
1) Will simply paying the fine for a speeding ticket adversely effect my driving record?
Yes, your driving record can be adversely effected if you simply pay your speeding ticket fine to the court houses located in Olathe, Overland Park, Prairie Village, Mission, Merriam, Fairway, Roeland Park, Westwood, Leawood, Lenexa, Kansas City, Missouri, Kansas City, Kansas, and other jurisdictions within the Kansas City Metro area.
In order to avoid a speeding ticket conviction, resulting in points or infractions on your driver’s license and driving record, you may wish to seek the assistance of an attorney who can assist you in seeking an amendment to the speeding ticket to a non-moving violation.
If you are cited for speeding in any of Olathe, Overland Park, Prairie Village, Mission, Merriam, Fairway, Roeland Park, Westwood, Leawood, Lenexa, Kansas City, Missouri, Kansas City, Kansas, or other jurisdictions in the Kansas City metro area or the States of Kansas or Missouri, our office can assist you.
2) Do I or does my recipient pay the gift taxes if a give a monetary gift to someone?
Generally, neither the donor nor the donee will pay a gift tax on any gift with a value less than the annual gift exemption amount, currently $13,000 per donee per year.
Any gift by a donor to a donee in a tax year that is above the annual gift tax exemption amount will have to account for the total value of the gift less the exemption amount and report that on a gift tax return, IRS Form 709. Tax would still not be owed on that gift tax amount if the donor has not used up his or her $1 million lifetime gift giving exemption amount.
3) If I enter into a short sale of my home or give the bank a deed in lieu of foreclosure, will I receive a 1099 for cancellation of indebtedness income and, if so, are there any exemptions to treating this amount as income on my tax return?
When a bank (or any creditor) voluntarily agrees to forgive the remaining balance on a debt, the forgiveness of debt is income to the debtor. See Internal Revenue Code Section 108. There are 4 exceptions to this rule. One exception is discharge through a bankruptcy. Another is discharge due to insolvency but not through a bankruptcy. You would have to meet that exception to avoid income.
A recent bill signed into law by President Obama allows for an exception to income from principal residence mortgage debt. The amount of debt discharged during 2007, 2008, 2009, 2010, 2011, or 2012 can be excluded in whole or in part.
So, how much of the 1099 income you can exclude will be determined when you file your tax return for tax year 2011 or 2012, depending on what year you sell the house in a short sale or give it up by a deed in lieu of foreclosure.
4) Do I need a lawyer?
Attorneys get this question multiple times a week. It is an impossible question to answer. In most cases, individuals may represent themselves in legal matters. If you are asking yourself this question and if you picked up the phone, called a lawyer and asked this question, the short answer is probably yes. The longer answer I give is the following.
Can people change their own oil? Most can, some can’t. I can change my own oil. But, I no longer do so. It takes me hours to do what auto mechanics do in minutes. Auto tune-up/repair shops dispose of the old oil. I have no idea how we are supposed to dispose of oil in this era. I pay someone else to change my oil because it is faster and they can change the oil without thinking because they do it so often they have an expertise in this area.
Can anyone with a pencil and a calculator prepare and file their own taxes? Resoundingly yes. However, you put a tax form in front of some people, these people could be anything from a line cook at a local diner all the way up to a college professor with a Ph.D., and they look like they have just been given a pop quiz on nuclear chemistry. Some people believe they have no ability to prepare a tax return and pay someone else to do what I believe they could certainly do themselves.
Only you know the answer to the question “Do I need a lawyer”, only you know your limitations and abilities.
5) Kansas Determination of Descent
Under the Kansas Probate Code, there is a procedure that provides an opportunity under the appropriate circumstances for an heir to inherit assets, property, homes, etc., from a deceased family member in an expedited matter that costs substantially less money than filing a more exhaustive probate estate administration proceeding.
The best fact pattern for considering a Determination of Descent is a married couple with only one adult child. Dad enjoys a long, happy life and dies, leaving his wife and their one child. Because of the way the married couple titled their assets during life, all of the assets are the legal assets of mom after dad’s death. Or, mom was the sole primary beneficiary of dad’s estate via a last will and testament. A few years later, wife dies with all of the assets in her name at death.
Or, dad and mom got divorced years ago, mom dies and only has 1 adult child.
In either scenario, a Determination of Descent may be a great option for the adult child heir. If mom’s last will and testament says on my death, 100% of all that I own shall pass to my only child, then the will says the exact same thing that the Kansas Probate Code in K.S.A. 59-506 states, on death all assets shall pass to the children of the decedent in equal shares. So, under the will or under the statute, the only child is going to inherit 100% of mom’s estate.
This could also work under the same fact pattern and there are 2 children or 3 children. So long as the will, if there is one, states on my death everything shall pass to my spouse if I have one otherwise everything to my children in equal shares, then the will and the statute require the same result, the children all get an equal share of inheritance.
If mom’s will says on my death, 10% shall pass to the Humane Society or $1,000 shall be distributed to my neighbor, Sally Brown, then a Kansas Determination of Descent is probably not going to be available to the heirs of the decedent.
But, if you do fit into a fact pattern that allows you to pursue a Determination of Descent and if you are willing to wait more than 6 months to establish your legal inheritance rights, then a Kansas Determination of Descent proceeding may be a good option.
A Petition for a Determination Descent cannot be filed any sooner than 6 months and 1 day after the date of the decedent. The advantage of waiting this long is that the creditor claims statute in Kansas has run, meaning that any and all creditors are barred from filing claims to recover money from mom’s estate. Common claims are credit card bills, hospital or doctor’s bills, a judgment in a civil case. This does not apply to mortgages as banks secure their loans with a secured interest in the property and the house can’t be sold until the bank lien is satisfied in one way or another.
If you choose to wait 6 months, you may need to continue to pay the utility bills, property taxes, mortgage, etc., on mom’s property.
Once the 6 months has run, an attorney can file the petition to start the determination of descent process. Once all of the statutory requirements have been performed in compliance with the law, the judge signs a decree of descent establishing the legal rights of the heirs at law. Often times, the judge signs the decree in chambers and the petitioner does not need to go to the courthouse to appear at a hearing. Finally, determinations of descent can be filed and completed at a fraction of the attorney’s fees than the attorney’s fees incurred in a more exhaustive probate administration procedure.
