Do I Have To Pay Taxes On My Short Term Capital Gains?
Video Summary
Do I have to pay taxes on short-term capital gains? The answer is, “Yes, you do.” The question should probably be rephrased as, “At what tax rate?” Well, it’s my understanding that if you have short-term capital gains, you have to pay at your ordinary tax rate. Also, what do you mean by “capital gains”? That usually has to do with whenever you sell property under the Code Section 1031 property, which is property that’s held for business or investment purposes.
If you only hold it for a short period of time, then it’s considered a short-term capital gain and you can offset your short-term capital gain against your short-term capital losses (hopefully you don’t have any of those.) But you can see how that could work because if you were buying and selling houses, you buy a house, you fix it up, you turn around and sell it in a matter of three or four months and you make money on it. That would be considered a short-term capital gain and taxable at your ordinary rate.
Now, short-term capital gain versus a long-term capital gain: I believe the holding period is for one year. So if you hold your property for long enough to qualify for long-term capital gains, long-term capital gains are taxed at a rate of 15 percent. Now, that Internal Revenue Code provision may be being phased out this year. I think that was under the Bush tax cuts, but I could stand to be corrected. These are more something that you could talk to your accountant about. But if you hold investment property for more than a year, then when you sell it you can take advantage of the long-term capital gains.
Now, whenever you sell your home, however, if you lose money on it no matter how long you’ve had it, you don’t get to take any loss on the sale of your house since you don’t hold that for the sale of business or it’s not an investment; whereas if you sell your home and you make a gain on it, you can exempt gains up to $250,000.00 if you lived in the house two out of the past five years. Let’s say that you didn’t live there for that period of time and you had a gain. Well, then you didn’t hold it for more than a year and sold it and had a gain. Then it would be a short-term capital gain, which you’d have to pay ordinary income for.
So if you have any questions about buying and selling your property and short-term capital gains, give me a call at (727) 847-2288. Thank you.
If I Have a Homestead Exemption in Florida, Can My Spouse Hold a Homestead Exemption in Another State?
Video Summary
If I have a homestead exemption in Florida, can my spouse hold a homestead exception in another state? The answer is, “No,” because if you’re husband and wife, the property appraiser determines that it is a family and therefore you’re saying that the family has their homestead or permanent residence in Florida if you have a homestead exemption. Whenever you sign the application for homestead, you say that you don’t have an exemption in another state and that goes for your spouse.
It’s even more difficult whenever people are going through a divorce proceeding and they’re not divorced and they’re separated for some time and they’re not going through a divorce proceeding, whether or not both spouses can obtain a homestead exemption. I know that our local property appraiser, Mike Wells in Pasco County, is really tough on this and in fact investigates any number of people who apply for a homestead exemption to determine whether or not they have homestead in another state. If they do, then he slaps a homestead lien against their property for all the exemptions they received.
I don’t know how other property appraisers are as far as investigating this, but if your spouse is getting homestead in another state, then I don’t suggest you try and get homestead in Florida because if you get caught, the homestead exemption penalties are quite severe. He puts a lien against your property for all these back-due taxes. So I would talk to the property appraiser of you do want to try and do that and ask them before you apply for a homestead exemption here in Florida in your name. If you have any other questions, give me a call at 847-2288. Thank you.
- Published in Real Estate, Videos
Elder Law Video Index
- What a Executor Really does and How to Choose One?
- What Should I Know Before Buying a Home in a Community with an HOA?
- What Happens If the Person I Chose as Trustee Can’t Serve or Dies?
- How Do I Remove a Deceased Co Owner’s Name from the Property Title?
- What Are My Legal Rights If My Neighbor’s Actions (Like Noise, Fences, Disputes, Encroachments) Are Affecting My Property?
- What Estate Planning Steps Should I Take If I Own Multiple Properties or Out-Of-State Property?
- If My Neighbor’s Construction Damages My Property, Who Is Responsible — The Neighbor, Their Contractor, Or Both?
- How Can I Legally Require My Neighbor to Move a Fence, Structure, Or Landscaping That Crosses onto My Land?
- What Estate Planning Steps Should I Take If I Own Multiple Properties or Out of State Property?
- How Do I Choose a Reliable Executor, and What Responsibilities Will They Have?
- How Do the Powers of Attorney and Healthcare Directives Fit into My Estate Plan?
- If I Move to Another State, Will My Current Will Still Be Valid?
- What Are the Tax Implications for My Heirs Under My Current Estate Plan?
- Can A Trust Protect My Assets from Creditors, Lawsuits, Or Long Term Care Costs?
- How Can I Make Sure My Beneficiaries Receive Their Inheritance Quickly and Smoothly?
- What Is Better Per Stirpes Or Per Capita?
- How Do I Get an Advance or Loan on My Share of the Probate Assets In The Estate or Trust?
- How Can I Reduce Potential Conflict Among Beneficiaries?
- Does An Executor of a Will Get Paid for His Time?
- How Can I Find Bank Accounts in My Parents’ Names After They Die?
- What Does “Per Stirpes” Mean in Estate Planning?
- How Easy Is It to Set Up POD On Bank Accounts, What’s Involved?
- Can I Force My Sibling to Sell Property, Which I Own with Them Jointly?
- If I Put My Children on My Deed, Can They Force Me to Sell My House?
- What Kind of Decisions Can a Health Care Proxy Make?
- What Should I Do if My Fence is on My Neighbors Property?
- How Can You Remove Someone from a Quit Claim Deed?
- How Is a Home Calculated for a Divorce?
- Who Executes My Estate Plan?
- What is Advanced Care Planning?
- If a Contract Is Breached, Who Pays the Fees If We Go to Court?
- Can I Help Control My Children From Spending Their Entire Inheritance at 18?
- How Does President Biden’s “American Families Plan” Effect Your Estate Plan?
- Are There Any Tax Implications When an Estate Is Settled?
- Is It Safe to Do a DIY Will Services?
- What is the Difference Between a Supplemental Trust vs Special Needs Trust?
- How Much Can You Leave Beneficiaries Without Facing Estate Tax?
- How Are Creditors Handled in Probate?
- Do I Need a Trust For My Child With Special Needs?
- What Property Can Go Into a Living Trust?
- What Information Do You Share About Me With Other Beneficiaries?
- How Do I Safeguard Protect The Assets Were Left Behind?
- Why Would I Need a Disposition Without Administration?
- What Are My Duties As An Executor?
- Is The Previous Power Of Attorney Still Valid?
- How Do I Get My Deceased Parents Annuity?
- How Do I Dispute Charges On My Credit Card?
- Do I Have To Pay The Decedent Credit Card Bills And Medical Bills From A Joint Account?
- How Do I Check The Tax Status On An Estate?
- My Parents Just Passed Away And They Did Not Have Time To Update Their Life Insurance Beneficiaries, What Can I Do?
- Should You Purchase Insurance on Vacant Land?
- If The Decedents Will Names Me As The Executor/Personal Representative, Can I Show The Will To The Bank And Close The Accounts, In The Decedents Name?
- What Is The Difference Between Will and Estate Planning?
- Do I Need Require a POA For Assets And Healthcare Decisions?
- Does a 401k Have To Go Through Probate?
- Are My Assets Protected If I Place Them In A Trust?
- Do I Have To Pay Income Tax On Money I Receive From An Estate?
- Can a Credit Card Company Put a Lien On My House If I Do Not Pay Them?
- If My Husband Dies, Do I Have To Pay His Medical Bills?
- If I Go To A Nursing Home, Will They Take My House?
- I Am Ready To Retire, What Legal Documents Do I Need?
- Do I Have To Pay My Mother’s Bills When She Dies, If I Am On Her Bank Accounts?
- How Do I Protect My Healthcare Rights?
- Will My Assets Be Protected From Creditor Claims, If I Place Them In a Trust?
- How Do I Decide What Type of Will Is Best For Me?
- What Is Not Covered By Insurance After A Hurricane
- How Do I Handle An Inherited 401k
- What Do I Need To Include In My Will
- When Should I Get A Living Will?
- What Is The Difference Of A Living Will And Medical Power Of Attorney?
- What Is A Testamentary Trust
- How Can I Help My Kids Not Spend Their Inheritance After Turning 18
- Do You Have To Pay Capital Gains Tax On A Home Sale
- What Do I Need To Create A Medical Directive
- WHAT IS A MIRROR IMAGE WILL
- ARE MY ASSETS PROTECTED FROM CREDITORS IF I SET UP A TRUST
- Can I Contest the Handling of Money By My Power Of Attorney Representative
- When Should I Make Updates To My Estate Plan
- Does My Will Have To Be Probated
- Revocable Trust Vs. Irrevocable Trust: What’s The Difference
- What Is a Testamentary Deposit Account
- Does Revocable Trust Need a Bank Account
- What is a Reverse Mortgage
- Why Would I Need to Open a Trust Account
- What Makes Will Invalid?
- How Do I Determine If a Deceased Person Owns Property?
- Can I Legally Access A Deceased Person Email Account
- Who Gets a Deceased Persons Vehicle When It Has a Loan
- How Do I Transfer My Homestead
- How Do I Determine If a Deceased Person Has Life Insurance?
- Who Can Serve as A Personal Representative?
- Can I Legally Drive a Deceased Persons Vehicle?
- What Are the Drawbacks of a Living Trust?
- If I Have a Living Trust, Should I Also Have a Will?
- Does A Living Trust Avoid Estate and Probate Taxes?
- Should Bank Accounts of the Deceased Person Be Closed Immediately Upon Death?
- How Do I Release a Vehicle Lien?
- Who Will Serve as the Personal Representative if There is No Will?
- Is Retirement Income Taxable to a Beneficiary?
- Is It Ever Too Late To Start The Florida Probate Process?
- How Long Does Probate Take?
- What Legal Documents Should Everyone Have?
- Can a Bank Refuse to Honor a Power of Attorney?
- Can a Family Member Override Power of Attorney?
- What is Required to Make a Last Will Legal?
- Where Does the Money Go if No Beneficiary Is Named On My Deceased Spouse’s Bank Account?
- When Is An Estate Too Small For Probate?
- What Estates That Need Probate And Those That Don’t?
- How Often Should I Update My Durable Power of Attorney?
- Do I Need to do Estate Planning Even if I Don’t Have Much Money?
- How Do Assets Pass at Death?
- What is the Minimum Age to Execute a Power of Attorney?
- What is the Uniformed Transfers to Minor Act?
- Can Real Estate Titles be in a Child’s Name?
- How Do I Access Someone’s Bank Account After They Die?
- What Do I Do After The Death Of A Family Member?
- How Do I Designate Where My Retirement Accounts And Investments Go Upon My Death?
- How Does Homestead Pass Upon Death?
- Can A Parent Change Their POA If Their Agent is Not Cooperating With Their Instructions?
- Do Proceeds of “Payable On Death” Bank Account Have To Go Through Probate?
- Why Is It Important To Do Estate Planning If I Have More Liabilites Than Assets?
- How Often Should I Update My Estate Planning?
- Is It Important To Have A Will Even If You Have No Assets?
- Why Do I Need A Durable Power Of Attorney?
- What Is Elder Law?
- Ask Jaleh: Estate Planning Considerations after Medicaid approval.
- Ask Jaleh: Special Needs Planning For People With Disabilities
- How Is Estate Planning I Do In Florida Impacted When I Move To Another State?
- What Can Be Done If My Agent Under My Power of Attorney is Misusing Funds?
- Is a Revocable Trust Preferable to a Will?
- Who Should I Appoint as My Healthcare Surrogate?
- How Do I Obtain a Power of Attorney?
- What Are the Benefits of a Health Care Savings Account?
- Asset Protection Video Index
- What Do I Need to Know About Asset Protection?
- How Do I Protect My Assets From Lawsuits?
- How Do I Protect My Assets From Creditors?
- What Is An Estate Planning Lawyer’s Role When Negotiating A Marital Settlement Agreement?
- How Can Domestic Life Partners Use Estate Planning to Provide for One Another?
- If a Couple Divorces, What are the Right of the Ex-Spouse in the Former Spouse’s Estate?
- Do I Need A Health Care Surrogate For My Adult Son Or Daughter?
- Elder Law Video Index
- Can I Leave Money to My Pet?
- Do I Need a Living Will?
- Can I Prepare Estate Planning Documents for My Relative with Dementia?
- What is a Health Care Surrogate?
- Advance Medical Directives Video Index
- Estate Planning Video Index
- What’s the Difference Between a Will and a Trust?
- Do I Need a Health Care Surrogate if I have a Living Will?
- Published in Estate Planning, Videos
Ask Thomas Mitchell: If I Go Into a Nursing Home, Can The Nursing Home Take My House?
Summary
I’m Tom Mitchell, a partner with Waller & Mitchell, and I do elder law here. One of the things that I do is planning for individuals who might have to go into a nursing home and need to ensure that their assets are not completely dissipated. I frequently am asked, “Is the nursing home going to take my house when I go?” And the answer is no.
First, under Florida law there is a provision called the Florida Homestead Provision. And that’s not the homestead that you have on your real estate taxes, but this is a provision of the Florida Constitution that says your house, the house that you reside in before you went into the nursing home, is your homestead and is exempt from forced sale by your creditors. Which means that the nursing home cannot force you to sell it in order to pay the bills. And after your death, if it’s willed to your heirs, your blood relatives, or children for example, it continues to have that exemption from creditors’ claims.
So whether you’re married or single, you can have the house. If you’re single, you can only have $2,000.00 in the bank. That’s all you can have, and all the rest of your assets have to be dissipated, spent on the nursing home in order to pay for your care. Now, there are some other planning opportunities that I can do for you if you need to have that done, so give me a call if that’s the situation.
But in a married situation, the spouse who’s staying at home gets to keep additional liquid assets so that they are not impoverished. Currently the liquid asset amount is about $115,000.00 of liquid assets. That’s stocks, bonds, mutual funds, and cash in the bank. This does not include the house or car and does not include the usual household effects: the toaster, blender or the big screen TV.
So in a nutshell, the nursing home is not going to take your house. If you have any questions, please call me at Waller & Mitchell. We’re located at 5332 Main Street in New Port Richey. My telephone number is 727-847-2288. Thanks.
- Published in Medicaid Planning, Videos
Ask Thomas Mitchell: Is My Trust from Another State Valid in Florida?
Summary
I’m Thomas Mitchell, partner at Waller & Mitchell in New Port Richey Florida, and I do estate and trust work. Sometimes people ask me, “Is the trust that I had drafted for me in Ohio or Pennsylvania still valid here in Florida?” The short answer is yes, it is still valid here in Florida. The US Constitution has a provision in it that says states must honor the laws of other states. It’s called the Full Faith in Credit Clause, and so if your trust was valid in the state in which it was drafted, then it will be valid here in Florida.
Having said that, however, there are a couple of reasons why you might want to think about having it redrafted or amended once you get here to Florida. The first is that if there happens to be any problem with the trust, if there’s a contest to it, if someone thinks you weren’t competent when you executed the trust or that you were somehow influenced to make the trust against the person who’s challenging, then all the witnesses who were there for the execution of the trust are gonna be located in Ohio or Pennsylvania or wherever it was you lived before. So that’s the first thing.
The second thing is you should take a look at your estate planning documents any time you have a substantial change in your life situation, and for me, moving to Florida certainly qualified as a life changing situation. And so when that happens, you want to take a look at your estate planning documents: your will, your trust, powers of attorney, all those things. And lastly, all the trusts that I’ve seen have in it what’s called a choice of laws clause. What that says is this trust is to be administered pursuant to the laws of the state of Florida, or if you were in Pennsylvania when it was drafted, typically it will say the state of Pennsylvania because the lawyer that drafted it was a Pennsylvania lawyer and he knew Pennsylvania law.
Well, now that you’re living in Florida, we don’t want to administer the trust according to Pennsylvania law because very few of us down here are going to know what that is, so that means that we’d have to associate an attorney in Pennsylvania to advise us on what the law says. So typically when you move down here, at the very least you ought to have your trust amended so that the choice of law provision is changed to say we’re going to administer this trust pursuant to Florida law. We’re located at 5332 Main Street in New Port Richey. Our telephone number is 727-847-2288. Thanks.