Using Impeachment to Attack Criminal Trial Witnesses in Pennsylvania

January 16, 2017 by Leave a Comment

Gavel, scales of justice and law books

A proper defense must always consider calling a defense witness or even the accused if the prosecution has presented compelling evidence. Calling a defense witness, however, isn’t an easy decision because this person will have to face cross examination by the prosecution. While a good defense attorney can protect the witness with objections, a judge may overrule those objections and require the person to answer.

If your attorney plans on calling a witness at trial, he must thoroughly review their background to make sure that this decision doesn’t ultimately hurt the case more than it helps it. While an accused’s character is never admissible at trial unless the defense offers it into evidence, there are separate rules that cover the impeachment of a witness’s credibility which includes the accused. Keep in mind there are different rules of evidence in state and federal courts in Pennsylvania.

The Pennsylvania rules of evidence allow the prosecution and the defense to impeach the credibility of any witness (including the accused) through various channels. Impeachment can expose a witness’s partiality, motive, prior convictions, character for untruthfulness, prior inconsistent statements, as well as a person’s inability to recall certain facts. There are eight categories of impeachment:

  1. Competency – a witness’s ability to communicate, understand the consequences of lying, recall, or proceed what is occurring;
  2. Partiality – a witness’s bias, prejudice, financial interest, or corruption;
  3. Motive – a reason explaining a witness’s testimony;
  4. Prior inconsistent statements – a witness’s earlier statements that are inconsistent with the witness’s trial testimony;
  5. Prior convictions – a witness’s convictions for crimes of dishonesty and false statements that help prove the witness’s untruthfulness;
  6. Untruthful character – a witness’s reputation for untruthfulness;
  7. Untruthful acts – when a witness offers reputation testimony as to his or her truthful character, the reputation witness may be asked about the primary witness’s acts or untruthfulness;
  8. Contradiction – a witness’s testimony may be contradicted by physical evidence, other accounts, or by witness’s inconsistent conduct.

It’s often necessary to call a defense witness especially in cases involving illegal guns or drugs where an arresting officer claims that a person was involved in illegal activity or had possession of some type of contraband. Even if a witness has credibility issues the defense can still call this person but needs to be prepared to rehabilitate the witness after the prosecution attacks their credibility. If you have any questions about impeachment or are charged with a crime call Gregory J. Spadea of the Law Offices of Spadea & Associates, LLC at 610-521-0604.

Filed Under: Criminal Law

How Diabetes Can Affect Your Breathalyzer Results in Pennsylvania

January 16, 2017 by Leave a Comment

Police officer giving a breathalyzer test

The use of Breathalyzers in Driving Under The Influence (DUI) prosecutions in Pennsylvania is declining but the device is still used by many law enforcement departments including the City of Philadelphia. A blood draw is a far superior method to determine a person’s blood alcohol content (BAC).

While blood tests provide more accurate results, a Breathalyzer is more convenient. Further, police can give a Breathalyzer test at the police station or practically anywhere because the device is portable. While they can do a blood test anywhere it requires much more preparation. Blood alcohol analysis is based on a scientific principal known as “Henry’s Law”. Henry’s Law states that when a liquid containing a volatile substance, like alcohol, makes contact with air in a closed container (Breathalyzer) the amount of alcohol in the air and the liquid are static (consistent or unchanged). Breath testing devices measure the amount of alcohol found in a person’s breath and multiplies it by a pre-determined co-efficient to arrive at a person’s estimated BAC. Breath testing, therefore, relies on scientific assumptions and constants.

Since a breathalyzer measures the amount of alcohol in a person’s body through their breath it is important to determine if any other medical conditions could negatively affect breath testing. Diabetes is one medical condition which can be a potential defense to a DUI case. Diabetes is a disease which causes the body not to produce or properly use insulin.

In addition to alcohol there are thousands of substances that could be inside a person’s breath sample. Breathalyzers use infrared spectrometry and one of the substances found is acetone. Acetone can negatively influence Breathalyzers results because it is a byproduct of a metabolic state known as Ketoacidosis. Ketoacidosis is a high concentration of ketone bodies which is normally associated with Type 1 diabetes. Unfortunately, prolonged alcoholism can also cause Ketoacidosis. There are two types of this condition alcoholic: Ketoacidosis and Diabetic Ketoacidosis. This condition can cause a person’s breath to smell fruity and police can sometimes confuse this smell with that of alcohol.

Individuals with Type 1 Diabetes can therefore have high levels of acetone in their breath. Acetone is found naturally in the environment and is normally present in the body from the breakdown of fat. Acetone is a substance that can be falsely identified as ethanol or ethyl alcohol. This condition can cause the Breathalyzer to show a false positive even when the suspect hasn’t consumed any alcohol. If the Breathalyzer doesn’t take into account the level of acetone in a person’s breath the prosecution won’t be able to distinguish ethyl alcohol from acetone. This can create reasonable doubt as to the test’s results or cause the judge to rule that the results are inadmissible and grant your pre-trial motion to suppress it. If you are charged with DUI call Gregory J. Spadea of the Law Offices of Spadea & Associates, LLC at 610-521-0604.

Filed Under: DUI in Pennsylvania

3 Rules To Follow If You Are Stopped For DUI in Pennsylvania

January 16, 2017 by Leave a Comment

Blurred night

Even people with high alcohol tolerances can drink too much and find themselves in a situation where police stop their car for suspicion of driving under the influence (DUI). In these situations it is important that a person remember three basic rules: (1) don’t refuse a Breathalyzer Test, (2) don’t answer any questions even if the officer threatens to arrest you, and (3) tell the police officer about any physical limitations and injuries which would affect your balance or movement.

  1. Don’t refuse a Breathalyzer Test.

    In Pennsylvania, everyone who drives a car on the road has given police implied consent to conduct a Breathalyzer Test. If you refuse the breathalyzer, Pennsylvania Department of Transportation (PennDOT) can still suspend your driver’s license even if you’re not convicted in criminal court. The reason is because driving is a privilege in Pennsylvania and PENDOT can impose a suspension through its administrative powers which are separate from criminal proceedings. Therefore even if your attorney wins your DUI case, PENDOT can still suspend your driver’s license.
    If you take the Breathalyzer Test you will not only avoid a potential civil penalty from PENDOT but it can also improve your criminal case. A good attorney can dispute the results of a Breathalyzer because there are a number of issues can affect a BAC reading.

  2. Don’t Answer Any Questions

    If you are stopped for suspicion of DUI, police more than likely are going to arrest you no matter what you tell them. A typical question from a police officer is “have you been drinking tonight?” People will tell the officer they are coming from a friend’s house and just had one drink. However they are better off telling the officer that they aren’t going to answer any questions but that he is free to give a Breathalyzer Test or a Field Sobriety Test. Police officers are trained in the law and while not attorneys, they understand that everyone has the constitutional right to remain silent. Most police officers will respect this right and simply continue with the traffic stop by giving you a field sobriety test or taking you into custody.

    Answering questions will never improve your DUI case because the officer is probably asking the question because he either smells alcohol on your breath or observed your car swerving or violating some traffic law. This is what gave the officer probable cause or reasonable suspicion to stop your car in the first place. If you answer a question it will only hurt your DUI case because you’ve given the police more circumstantial and possible direct evidence of your intoxication. This could later lead to a conviction at trial or a judge denying your attorney’s Pre-trial Motion to Suppress Evidence. A statement like “I only had a little to drink,” or “I am coming from a party,” can persuade a judge that the police officer had probable cause to arrest you. It’s always better to remain silent and simply cooperate with the police officer with regards to field sobriety tests, Breathalyzer Tests, and blood tests, but never make any verbal or written statements.

  3. Tell the Police Officer about any Physical Limitations You’ve Had in the Past

    A standard field sobriety test requires that a person perform certain movements so that a police officer can assess a person’s motor skills. These tests, however, are often difficult to perform even for a person who has not consumed any alcohol. There are three standard field sobriety tests – (1) the walk and turn, (2) the one leg stand test, and (3) the Horizontal Gaze Nystagmus (HGN) test.

The first two tests require you to walk on a straight line or balance on one foot. If you’ve had any type of surgery, played sports, or have any knee or leg injuries this will affect your ability to perform these tests correctly. Telling the officer that you’ve had an injury in the past will put the police, the prosecution, and the court on notice that the results of the field sobriety test may not be a fair indication of your intoxication. This will also allow your criminal defense lawyer to argue that the police didn’t have probable cause to arrest you based on the results of the field sobriety test.

With regards to the HGN Test, police officers are trained in the law but there is a great deal of case law which says that they can’t fairly use the results of the HGN Test to determine a person’s impairment. HGN is the involuntary jerking of the eyes and there is a strong argument that only a medical professional can accurately assess the results of this test.

If you are stopped for DUI it’s important to keep these three rules in mind because it will not only protect your rights but put your attorney in the best position to successfully defend your case. If you have questions about DUI, please call Gregory J. Spadea of the Law Offices of Spadea & Associates, LLC at 610-521-0604.

Filed Under: Criminal Law, DUI in Pennsylvania

The 17 Factors of Alimony in PA

January 11, 2017 by Leave a Comment

The following factors will be considered by the Master or Judge in determining alimony:

  • 1. The relative earnings of both spouses.
  • 2. The duration of the marriage.
  • 3. The ages and physical, mental and emotional states of the two spouses.
  • 4. The sources of income of both spouses. This includes medical, retirement, insurance or other benefits.
  • 5. The expected future earnings and inheritances of the two spouses.
  • 6. The degree to which one spouse has contributed to the other spouse’s education, training or increased earning potential.
  • 7. The degree to which a spouse will be financially affected by their position as the custodian of a minor child.
  • 8. The standard of living of the spouses established during the marriage.
  • 9. The relative education of the parties. This also considers the amount of time it would take for the spouse seeking alimony to acquire the education or training necessary to find employment.
  • 10. The relative assets and liabilities of the two spouses.
  • 11. The property each spouse brought to the marriage.
  • 12. The degree a spouse contributed as a homemaker.
  • 13. The relative needs of the two spouses.
  • 14. The marital misconduct of either of the spouses during the marriage. “Abuse” as in this context shall have the meaning given to it under Section 6102.
  • 15. The federal, state and local tax consequences of the alimony.
  • 16. Whether the spouse seeking alimony lacks sufficient property, including items in Chapter 35 relating to property rights, to provide for their reasonable needs.
  • 17. Whether the spouse seeking alimony is incapable of supporting themselves through appropriate employment.

My clients often ask the following questions regarding alimony:
1) How long do you have to be married to receive alimony in PA?
Length of the marriage, albeit an important factor in the alimony statute, is but one of the 17 factors to be considered by the court. Typically, the longer the marriage, the greater the case for alimony, assuming other relevant factors also exist. However, there is no minimum length of time that a spouse has to be married in order for alimony to apply.
2) How long do I have to pay alimony in PA?
Again, there is no set time period for paying alimony in PA as it is purely discretionary. To be sure, if an alimony payment is going to apply, spouses should carefully evaluate their particular circumstances, what the recipient’s future financial needs will be and also what the payor’s ability to pay is.
For example, a common type of alimony in PA is called “rehabilitative alimony” where one spouse may only need a few years of financial assistance after the divorce to get back on their feet financially, clear their existing debt or perhaps retrain themselves for a new career in a different field. If such a need is recognized, then the alimony payment should only last for a limited period of time (and no more) in order to satisfy this purpose.
3) Am I entitled to one year of alimony for every three years of marriage?
This is often a common misconception by those who are navigating the murky waters of alimony in a PA divorce. In many PA county courts, there is an unspoken rule of thumb, not a law, that a recipient should receive one year of alimony for every three years of marriage. However, I always tell my clients that this is not a slam dunk for an alimony claim. First, the court must determine that the matter is appropriate for alimony. Then, the 1 to 3 year alimony presumption is merely a starting point for negotiation and argument before the court or divorce master. From there, the ultimate determination could either be more or less than this presumption.
4) Is there a formula that applies to calculate post-divorce alimony in PA?
There is no formula to calculate post-divorce alimony in PA. Again, it is a purely discretionary issue with the court. By contrast, when spouses decide to mediate their divorce, they themselves have the opportunity to control what alimony, if any, will apply. This is achieved most fairly when they each prepare their post-divorce budget of expenses so that they can evaluate what is needed for the recipient in order to reasonably live in their separate household and what the payor can afford.

If you have a question about alimony please call Gregory J. Spadea at 610-521-0604 of Law Offices of Spadea & Associates, LLC.

Filed Under: Alimony, The 17 Factors of Alimony in PA

Identifying Marital Versus Non-Marital Property in Pennsylvania

January 11, 2017 by Leave a Comment

Each spouse should make a list identifying all assets that they own together or separately. Assets include tangible items, such as real estate, businesses, cars, boats, jewelry, furniture, and collectibles. They also can include non-tangible items, such as bank accounts, stock options, trusts, life insurance policies, patents, copyrights, retirement plans, and profit-sharing plans.

Next, you need to “characterize” or describe each asset as either “marital” or “non-marital.” An asset’s character plays an essential role in the process of dividing and determining the value of property in divorce. Generally speaking, “marital property” in Pennsylvania includes all assets acquired by either spouse during the marriage which includes anytime between the date of the marriage and the date of separation.

“Non-marital” assets also referred to as “separate property” include the following:

  • Assets acquired by either spouse before marriage
  • Assets acquired by gift or inheritance at any time (except for gifts from one spouse to the other that occurred during marriage), and
  • Assets acquired by either spouse after the date of separation.

Generally speaking, courts have the authority to divide and distribute marital property between the spouses in a divorce, but spouses typically get to keep their separate property.

The date of separation is crucial in characterizing property, because property obtained after the date of separation is generally non-marital.

In Pennsylvania, a couple is separated when they begin to live “separate and apart.” This means that the spouses no longer have sexual relations with one another, and they don’t hold themselves out to the world as a married couple. Spouses don’t necessarily have to live in different households to be separated, but that type of separation may be a little more difficult to prove.

Once you’ve determined the date of separation, you’ll need to determine when assets were purchased. Assets acquired before marriage are separate property. For example, if one spouse owned a car before the marriage, the car belongs to that spouse separately through the marriage and after divorce. In addition, assets purchased after the date of separation are generally considered separate, unless a spouse used marital funds to obtain that asset. If so, it will be considered marital, and valued as part of the marital estate.

Next, you’ll need to find out what each asset is worth. Generally, courts use current value. For example, the current value of a bank account is the balance on the most recent statement. For assets such as homes and cars, courts use current “fair market value,” which means the amount the asset is worth if it were sold to an unrelated third party. This can be determined by looking at recent sales of comparable assets. For assets that are harder to value, like collectibles, you may need to hire an appraiser.

Although an asset acquired before marriage is considered separate property, it may have a marital part or value to it. For example, if one spouse owned an expensive piece of art before the marriage, the artwork itself belongs to that spouse. However, the increase in value of the artwork during the marriage is considered part of the marital estate. To compute the marital value of the artwork, you would start with the value of the piece on the date of separation, and subtract its value as of the date of marriage.

In addition, marital assets may have a separate property component that must be computed before knowing the true marital value. For instance, if one spouse established a retirement plan during the marriage, but continued to make contributions after the date of separation, the plan has now become “co-mingled,” which means it’s made up of both marital and non-marital property.

To figure out the marital value of the co-mingled plan, you would generally deduct the separate property contributions from the current value, taking into account any interest that may have accrued.

If you’re not sure how to value a retirement plan, you may need to hire an expert, such as an actuary who can figure it out.

Finally, even though courts won’t divide separate assets in a divorce, courts can consider their values when deciding how to divide marital property. For example, if one spouse inherited a large amount of money, the court may consider those separate property resources when deciding how to divvy up the marital estate.

If you have any questions about marital assets in Pennsylvania, call Gregory J. Spadea at 610-521-0604 of the Law Offices of Spadea & Associates, LLC

Filed Under: Divorce, Identifying Marital Versus Non-Marital Property in Pennsylvania

How Pennsylvania Courts Divide Marital Property During Divorce

January 11, 2017 by Leave a Comment

Divorcing couples may agree on how to divide their marital property themselves. In Pennsylvania, spouses can enter into a “property settlement agreement” (PSA) that memorializes their agreed-upon terms. Couples then submit their PSA to the court, so it can be incorporated into their final divorce decree.

If spouses can’t agree, they’ll end up in court, where a judge will decide. If spouses have a valid prenuptial agreement that addresses the division of property in the event of divorce, courts will follow the terms of the prenuptial agreement.

If there is marital property not covered by the prenuptial agreement, or if there is no valid prenuptial agreement, the court will divide marital property by “equitable distribution.” This means the court will order a division it believes is equitable or fair to both parties but not necessarily equal.

Pennsylvania courts consider several factors when determining equitable distribution, including:

  • The length of the marriage;
  • Whether either spouse has been married previously;
  • Each spouse’s age, health, education, amount of income, and sources of income including disability, retirement, insurance or other benefits;
  • Each spouse’s vocational skills and ability to be employed;
  • The assets, debts, and needs of each spouse;
  • Any contributions by one spouse to the other’s education, training, or earning ability. For example, if one spouse provided financial support or cared for the couple’s children so the other spouse could obtain an education;
  • The future ability of each spouse to earn income and obtain assets;
  • Each spouse’s contribution to the acquisition of marital assets or to preserving or increasing the value of marital assets (including contributions as a homemaker);
  • Any reduction in the value of marital assets caused by either spouse;
  • The amount or value of non-marital assets owned by each spouse;
  • The standard of living the couple enjoyed during the marriage;
  • The financial impact any proposed property division will have on each spouse such as the tax implications, and the expense of sale/transfer/liquidation of property; and
  • Whether either spouse will be the custodian of any dependent children under the age of 18.

In Pennsylvania, courts do not consider marital misconduct, such as adultery, when dividing property, unless the misconduct had a financial impact on marital property. For example, if one spouse emptied a marital bank account buying gifts for a lover during the marriage and without the other spouse’s consent, a court may reduce the percentage the “offending” spouse gets from the marital estate to compensate for the unauthorized spending.

Debts must be divided in divorce as well. You’ll need to identify, characterize, and value all debts. Be sure to make a list, and consider all credit card debts, loans, mortgages, promissory notes, and liens.

Debts are characterized and valued similar to assets, but there are some differences. Debts incurred during marriage are generally considered marital debts, unless a spouse can show that it’s reasonable to assign the debt exclusively to the other spouse.

Debts incurred before marriage are generally “separate” and assigned to the spouse who incurred them, unless the couple jointly incurred the debt before marriage. In addition, if a debt was incurred before marriage for a marital purpose e.g., loan for wedding costs, there is a chance a court would characterize it as marital. Thus, the balance of premarital debts is generally irrelevant, except to show the amount of indebtedness one spouse has. Debts incurred after separation are treated in the same manner.

If you have any questions about Pennsylvania marital property or debts call Gregory J. Spadea at 610-521-0604 of the Law Offices of Spadea & Associates, LLC.

Filed Under: Divorce, Marital Property Division

What Is A Marital Asset in Pennsylvania?

January 11, 2017 by Leave a Comment

Pennsylvania is an equitable distribution state when it comes to splitting up marital assets in a divorce. Equitable distribution does not mean a 50-50 split but, rather, it mandates a fair division of marital property. Marital property includes joint assets and joint debts. A marital asset is defined by statute 23 Pa.C.S.§3501(a) as “all property acquired by either party during the marriage and the increase in value of any non-marital property”. Marital property includes all property acquired even if it is only held in one partner’s name. The same holds true in regard to marital debt; just because the debt is in one partner’s name does not mean it is not marital debt.

Marital assets are acquired during the marriage, starting with the date of marriage and up until the “date of separation.” There is no formal “legal separation” in Pennsylvania, although the concept of a date of separation is important for a number of reasons. The date of separation can be difficult to pinpoint but it is the idea that parties are separated when they are no longer holding themselves out to the world as spouses. This might be when they no longer live together, when they separate their finances, or when one party has initiated a divorce action. There are a number of exceptions under the Divorce Code as to what is considered a marital asset, even though the property might be acquired during the marriage, such as inheritances or property acquired by gift.

Equitable distribution is not always clean cut. It requires a careful examination of all of the facts of a particular case, and an application of the large body of statutory and case law surrounding the issue. It is not uncommon, for instance, that one party has purchased a residence prior to marriage. In equitable distribution of the marital estate, the spouse that owned the residence may be entitled to claim the value of the equity in the home that was built up prior to the marriage. Some counties deal with this by utilizing a “vanishing credit,” where the spouse who owned the property prior to marriage gets a higher percentage of the pre-marriage value back in the equitable distribution if the marriage is of relatively short duration. The rights of the spouse who brought the house into the marriage must be balanced against the rights of the spouse that moved into the residence during the marriage. If the home increased in value during the marriage, that increase is marital property subject to equitable distribution. The same concepts apply to retirement accounts and pensions. There will typically be a marital portion of the asset, and a non-marital portion which should be returned to the participant spouse.

The Pennsylvania Supreme Court recently decided on a 2011 case involving the treatment of a particular type of asset, a monetary settlement from an accident, in the case of Focht v. Focht. In that case, the husband was injured in an accident during the marriage. The husband and wife retained an attorney and eventually were successful in their personal injury lawsuit. However before the lawsuit ended and the settlement money was paid, the parties separated and filed for divorce. The question the Focht case examined and answered relates to all property that is received after a date of separation but “accrued” during the marriage. The Court specifically examined 23 Pa.C.S.§3501(a)(8), which provides that marital property does not include “any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.” The Focht Court ruled that because the cause of action accrued during the marriage, before the parties’ final separation, proceeds from the settlement of the suit were marital property. The marital property exception set forth in §3501(a)(8) did not apply, and it was irrelevant that the parties had finally separated by the time the suit settled and the settlement award was paid. Therefore, if a cause of action accrues after the date of marriage and before the date of separation, then any settlement proceeds resolving that cause of action are marital property regardless of when that settlement occurs.

If you have any questions about marital assets or equitable distribution in Pennsylvania, call Gregory J. Spadea of the Law Offices of Spadea & Associates, LLC at 610-521-0604.

Filed Under: Divorce, Equitable Distribution

Management and Distribution Powers of a Trust Protector

December 13, 2016 by Leave a Comment

Once you have decided to use a Trust protector you need to consider the powers that you plan to give him or her. The powers can be divided into two classes, those relating to trust management issues, and those relating to the distribution of trust assets.

Examples of management powers that can be granted to a trust protector are:

  • 1) to review or approve accountings prepared by the trustee;
  • 2) review and approve proposed investments;
  • 3) veto an investment decision made by the trustee;
  • 4) remove or replace the trustee, for good cause or any reason;
  • 5) add a co-trustee or appoint a successor trustee;
  • 6) change the situs or governing law of the trust;
  • 7) amend the trust to comply with tax or other law changes, obtain favorable tax status, make technical corrections, or correct scrivener’s errors;
  • 8) terminate the trust, determine whether an event has occurred;
  • 9) settle disputes between trustees, trustee and beneficiary or between beneficiaries;
  • 10) authorize litigation by the trustee against third parties.

Examples of distribution powers that can be granted to a trust protector are:

  • 1) requiring that the trust protector be consulted by the trustee about all distribution decisions;
  • 2) giving the trust protector power to veto a distribution decision;
  • 3) direct the trustee when and how to make distributions;
  • 4) amend the distribution provisions of the trust;
  • 5) change the beneficiary or act as an advocate for the beneficiary with the trustee;
  • 6) consent to the exercise of a power of appointment, and modify the terms of a power of appointment.

It is important to realize that if the trust protector is not an attorney or other professional who carries professional liability insurance, that person may be required to post a bond. Pennsylvania requires a fiduciary to act in good faith with regard to the purpose of the Trust and the interest of all beneficiaries. While the inclusion of a Trust Protector is not mandatory, it may be advisable to assure the intentions of clients who establish legacy Trusts are followed. If you have any questions call Gregory J. Spadea of the Law Offices of Spadea & Associates, LLC at 610-521-0604.

Filed Under: Powers of A Trust Protector, Trusts

Deciding How and When to Select a Trust Protector

December 13, 2016 by Leave a Comment

If you set up an Irrevocable Trust, the trust will have a perpetual term and may continue for generations. However, the problem with a long-term Trust is that it is not possible for the Grantor to anticipate future changes in the law or the family’s circumstances, which might require specific modifications to the Trust in order to better serve the needs of the beneficiaries. One way to allow the Trust to be more flexible is to appoint a Trust Protector.

A Trust Protector is a third party who is not the Grantor, Trustee or Beneficiary, but who is given specific powers in the Trust agreement to make changes to the Trust in order to carry out the Grantor’s intent. There are essentially three reasons a person would consider using a trust protector. One is to police the trustee. Although traditionally the beneficiary is tasked with the responsibility to keep a trustee in check, the grantor may not want the beneficiary to hold this power. Also, enforcing this power through a beneficiary can lead to costly and time-consuming litigation. A second reason is to guide the trustee regarding trust distributions especially in the special needs context and regarding investment decisions. A third reason is to empower someone to change the trust in order to adapt to future circumstances, such as changes in the law, the beneficiaries, or the trust assets.

Once the decision is made to use a trust protector, then the grantor and his attorney need to decide the basic structure. There are four things that should be considered.

  • 1. The first consideration is who should be the trust protector. A trust protector can be a person acting alone or a legal entity, such as a financial institution or law firm. When utilizing people, whether alone or in a group, the grantor can choose specific people, such as a relative or friend, or a person who fits into a certain class or category, such as the current guardian of the beneficiary, an accountant, or an attorney.
  • 2. If possible, there should also be successor trust protectors named, and a process for choosing a successor trust protector in case all of those named are unable or unwilling to serve. Authority can be granted to an existing trust protector to name his or her successor, or to someone else, such as the trustee, or the beneficiary to appoint successor trust protectors.
  • 3. There should be a mechanism to remove a trust protector, either for good cause or any reason. This authority can be held by other members of the trust protector committee or the beneficiary, or trustee.
  • 4. Lastly, reimbursement of reasonable expenses incurred by the trust protector should be
    authorized. In addition, compensation of a fixed annual amount or hourly rate can be paid.

If you have any questions call Gregory J. Spadea of the Law Offices of Spadea & Associates, LLC at 610-521-0604.

Filed Under: Irrevocable Trusts, Trusts

How a Qualified Longevity Annuity Contract QLAC Allows You to Postpone Paying Federal Income Taxes Until After You Reach Age 70

December 2, 2016 by Leave a Comment

What is a Qualified Longevity Annuity Contract (QLAC)?

IRS

When you retire, you want the security of knowing that the money you have saved will last as long as you do. A Qualified Longevity Annuity Contract (QLAC) is a special type of qualified deferred income annuity that guarantees lifetime income, but gives you the option to delay receiving payments until as late as age 85, thus giving you the ability to postpone taking a portion of your required minimum distributions (RMDs) until a later date, and provide income needed later in life.

Is a Qualified Longevity Annuity Contract (QLAC) right for you?

This annuity contract may be right for you if you:

  • 1. Are looking to create a guaranteed income stream in retirement that you can’t outlive and want to contribute the lesser of $125,000 or 25% of all IRA balances per individual.
  • 2. Don’t plan to begin your retirement payments for at least one year but prior to age 85.
  • 3. Want to delay paying taxes on money you do not necessarily need early in retirement.
  • 4. Seek predictable, guaranteed1 income payments that are not tied to the ups and downs of the market.

    • Why choose a QLAC?

    Currently, with traditional IRAs and qualified plans you must begin taking required minimum distributions (RMDs) no later than age 70½. Now with the regulations from the US Treasury, by purchasing a QLAC you can defer the distribution of a portion of your qualified assets beyond age 70 ½, by postponing your RMDs until a later date. An RMD is the annual amount IRA owners must begin taking from their retirement accounts no later than April 1 of the year following the calendar year they reach age 70½.

    Postponing RMDs can be beneficial by:

    • 1. Allowing you to delay paying taxes on money you do not necessarily need in early retirement.
    • 2. Providing income for possible medical expenses arising later in life, typically during a
      person’s 80s.
    • 3. Giving you the potential to leave more assets for a surviving spouse.
    • 4. Assisting in managing your assets to help ensure you have income later in life and throughout retirement.

    What types of Retirement Accounts qualify for a QLAC?

    Traditional IRA’s, Simple IRA’s and SEP IRA’s are eligible to fund a QLAC. However, since the minimum distribution rules do not apply to ROTH IRA’s, ROTH IRA’s are not eligible to fund a QLAC.

    Is there a minimum age at which an individual can purchase a QLAC?

    No. The regulations do not provide any minimum age requirement.

    If you have any questions regarding QLAC’s please call Gregory J. Spadea at < a href="tel:+1-610-521-0604">610-521-0604, of the Law Offices of Spadea & Associates, LLC.

Filed Under: Longevity Annuity Contract, Postpone Paying Federal Taxes

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Understanding Child Custody in Pennsylvania

March 13, 2024

UNDERSTANDING CHILD CUSTODY IN PENNSYLVANIA No issue is more important when parents separate than

Why Common-Law Marriage in Pennsylvania is Not so Common After All

February 19, 2024

Common-law marriage remains a hot topic in Pennsylvania, particularly for long-time, same-sex

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