Who Are Your Legal Children under the Pennsylvania Laws of Intestacy

Paper chain family

If you die without a will in Pennsylvania, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married.

For children to inherit from you under the laws of intestacy, the Commonwealth of Pennsylvania must consider them your children, legally. For most families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.

  • Adopted children: Children you legally adopted will receive an intestate share, just as your biological children do.
  • Foster children and stepchildren: Foster children and stepchildren you never legally adopted will not automatically receive a share.
  • Children placed for adoption: Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that would not affect their intestate inheritance. (20 Pa. Cons. Stat. § 2108.)
  • Other relatives placed for adoption: A relative other than your child, for example, your grandchild who was legally adopted by another family may receive a share of your estate if the relative would otherwise be entitled to inherit from you and you have “maintained a family relationship.” (20 Pa. Cons. Stat. § 2108.)
  • Posthumous children: Children conceived by you but not born before your death will receive a share. (20 Pa. Cons. Stat. § 2104.)
  • Children born outside of marriage: If you were not married to your children’s mother when she gave birth to them, they will receive a share of your estate if (1) you and their mother get married later, (2) you acknowledged your paternity, or (3) your paternity is otherwise proved under Pennsylvania law. (20 Pa. Cons. Stat. § 2107.)
  • Children born during your marriage: Any child born to your wife during your marriage is assumed to be your child and will receive a share of your estate.
  • Grandchildren: Your grandchildren will receive a share only if their parent (your child) predeceases you.

If you have any questions regarding Pennsylvania Intestacy Laws contact Gregory J. Spadea at 610-521-0604. The Law Offices of Spadea & Associates, LLC specializes in Probate, Estate Administration and Estate Litigation.

7 Clauses Every Pennsylvania Landlord Should Include In Their Lease

Lease Agreement

I have had many clients that are landlords over the years and have witnessed them make the same mistakes that could have easily have been avoided. Therefore I created the following list so you can avoid these mistakes. Carefully screen all prospective tenants thoroughly which means have them fill in a rental application and pay a nonrefundable application fee. You can download or print a rental application from our website resource page at no charge. Use the nonrefundable application fee to order criminal background checks and credit reports. If the credit score is under 620 and the tenant can explain why it is under 620 such as a divorce, you can request that they get someone with a higher credit score to cosign the lease for the first two years. Contact the tenant’s current employer for the last 5 years to verify their work history and salary. Once you have thoroughly screened the prospective tenant you need a good lease to protect yourself.

A great lease should contain the following 7 Clauses:

  1. Waive the notice to quit time requirements;
  2. Require 90 days notice to terminate the lease;
  3. Contain Act 215 language allowing the landlord to garnish the tenants wages up to 10% of his gross pay;
  4. Have an abandoned property clause so the landlord does not have to pay storage fees when a tenant leaves abandoned property;
  5. Require tenants to have renters insurance and name the Landlord as the loss payee;
  6. If litigation ensues have a clause requiring the losing party to pay the winning parties legal fees;
  7. Get an adequate security deposit of at least one month’s rent and get additional deposits for pets or additional tenants.

In addition to having a good lease if the rental property is in your individual name you should purchase personal umbrella insurance to protect your other assets. If you own more than one rental property you should make the appropriate tax election to treat all of all rental property activity as a single rental real estate activity to meet the active participation requirements of the passive activity loss rules. The Law Offices of Spadea & Associates, LLC would be happy to help you make the proper tax elections and provide you with a great lease so you can avoid costly mistakes. Call Gregory J. Spadea at 610-521-0604 from the Law Offices of Spadea & Associates, LLC in Ridley Park.

11 Exceptions Where the IRS May Waive the 60 Day Deadline for IRA Rollovers

Internal Revenue Service sign.

The IRS gives you 60 days to rollover an Individual Retirement Account (IRA) into another IRA or qualified plan. However, if you fail to rollover the IRA in 60 days or fail to qualify for the waiver, the entire distribution will be taxable and you may be subject to an additional 10% penalty if you are under 59½ years old. Fortunately, there are 11 exceptions where the IRS will waive the 60 day rule and give you additional time to make the Rollover contribution. To qualify for the waiver the IRS must not have previously denied a waiver request with respect to a rollover of all or part of the distribution to which the contribution relates. In addition you must submit written certification to a plan administrator or IRA trustee within 30 days after being able to make the rollover contribution. If you miss the 60 day deadline because of one of the 11 reasons listed below the IRS will issue a waiver and allow you to make the rollover contribution beyond the 60 days.

To qualify you must have missed the 60-day deadline because of your inability to complete a rollover due to one or more of the following 11 reasons:

  1. An error was committed by the financial institution making the distribution or receiving the contribution.
  2. The distribution was in the form of a check and the check was misplaced and never cashed.
  3. The distribution was deposited into and remained in an account that you mistakenly thought was a retirement plan or IRA.
  4. Your principal residence was severely damaged.
  5. One of your family members died.
  6. You or one of my family members was seriously ill.
  7. You were incarcerated.
  8. Restrictions were imposed by a foreign country.
  9. A postal error occurred.
  10. The distribution was made on account of an IRS levy and the proceeds of the levy
    have been returned to you.
  11. The party making the distribution delayed providing information that the receiving plan or IRA required to complete the rollover despite your reasonable efforts to obtain the information.

If you missed the 60 day deadline on your IRA rollover and think you qualify under any of the 11 exceptions listed please call Gregory J. Spadea at 610-521-0604.

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

Drunk Driver being pulled over by police.

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) or Driving While Intoxicated (DWI). 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 (PENDOT) can still suspend your driver’s license for 12 to 18 months 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 had anything to drink 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 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.

    Keep in mind you could be arrested for a DUI even if you are not driving. If you have actual, physical control of a vehicle while under the influence, then that can be enough for an officer to arrest you. In Pennsylvania, the terms “operating” and “actual physical control” are basically the same. They generally mean that the driver is in the vehicle and could make it move, even if the driver is not trying to move the care when the officer finds him. Therefore, telling the officer why you were sleeping in the car while the radio and the heat are on will not help your case.

    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. 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.

    1. 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 real 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 call Gregory J. Spadea at 610-521-0604.

Seasons Greetings and Happy New Year!

Seasons Greetings and Happy New Year!

What is The Kiddie Tax and When Do Parents Pay Tax on Their Child’s Investment Income

Person calculating taxes

Special tax rules apply to children under the age of 24 who receive investment income over $2,100. Investment income generally includes interest, dividends and capital gains. Congress enacted the Kiddie tax to prevent parents from shifting investment income to their dependent children.

The so-called Kiddie Tax rules may affect the amount of tax and how to report the income. Specifically, a child’s investment income in excess of the applicable annual threshold $2,100 in 2017, is taxed at the parents rate. For example the first $1,050 of the child’s unearned income is not taxable. The next $1,050 is taxed at the child’s tax rate which is typically 0% on long-term capital gains and dividends and interest. The amount over $2,100 is taxed at the parent’s marginal federal income tax rates typically 15% on long-term capital gains and dividends and up to 39.6% on ordinary income. Note that between ages 19 and 23, the Kiddie Tax is only an issue if the child is a student, and the child’s earned income didn’t exceed one-half of the child’s own support for the year, excluding scholarships. The year the child turns age 24 and for all subsequent years, the Kiddie Tax ceases to apply.

Parents may include your child’s investment income on your tax return if it was less than $10,500 for the year. If you make this choice, your child will not have to file his or her own tax return and the parent would include IRS Form 8814, Parents’ Election to Report Child’s Interest and Dividends with their 1040.

If your child’s investment income was $10,500 or more in 2017 then the child must file IRS Form 8615 with their own return.

Although you will escape the Kiddie Tax after your child turns 24, there is another deadline if you set up a Coverdell Education Savings Account (CESA) for a child or grandchild. THE CESA must be liquidated within 30 days after your child turns 30 years old. To the extent earnings included in a distribution are not used for qualified higher education expenses, they are subject to federal income tax plus a 10% penalty tax. Alternatively, the CESA balance can be rolled over tax-free into another CESA set up for a younger family member under the age of 30.

If you have any questions about the Kiddie tax or taxes in general call Gregory J. Spadea at 610-521-0604.

How Much Can I Deduct For a Business Car or Truck in 2017 under IRC Section 179

A row of shiny new trucks parked at a car dealership.

To encourage businesses to buy equipment as well as cars and trucks Congress passed Internal Revenue Code (IRC) Section 179. For passenger vehicles, trucks, and vans with a gross weight of less than 6,000 pounds that are used more than 50% in a qualified business use, the total deduction for depreciation including both the Section 179 expense deduction as well as 50% Bonus Depreciation is limited to $11,160 for cars and $11,560 for trucks and vans. Keep in mind you only get bonus depreciation on new vehicle purchases.

For example if the car cost $30,000 and is used 100% for business, the business would get an IRC Section 179 deduction of $11,160 and a regular depreciation deduction of $3,768 (20% of the $18,840.00 difference). Therefore, you can deduct up to $14,928 if you buy a new car and use it 100% for business. If the vehicle is used less than 100% for business both the Section 179 deduction and regular depreciation deduction are reduced proportionately based on the actual business use percentage.

SUV’s, trucks and vans with a gross vehicle weight rating above 6,000 pounds but no more than 14,000 pounds qualify for expensing up to $25,000 if the vehicle is financed and placed in service prior to December 31. In addition, the business can deduct 50% of the remaining cost over $25,000 as bonus depreciation, but that only applies to new vehicle purchases.

For example, a new heavy SUV used 100% for business that costs $52,000 and qualifies for Section 179 could be written-off in 2017 as follows:

  • First Year Section 179 Deduction: $ 25,000
  • Bonus Depreciation (50% of remaining balance): $13,500
  • Regular Depreciation (20% of remaining balance): $2,700
  • Total First-Year Write-Off: $ 41,200

Keep in mind that businesses that experience net operating losses cannot claim an IRC Section 179 deduction that would create or increase an overall business tax loss. However they may take the 50% bonus depreciation deduction, and carry the remaining net operating loss forward where it can be used in future years.

Note that under the Protecting Americans from Tax Hikes Act of 2015, bonus depreciation is scheduled to be reduced to 40% in 2018 and 30% in 2019 before it expires on December 31, 2019.

Here’s a list of 2016 model cars with a gross weight over 6,000 lbs. Usually a vehicle will have its weight listed on the side door. If you’re unsure, just ask the dealer.

  • Audi Q7 3.0L TDI
  • Cadillac ESCALADE AWD
  • Chevrolet Truck AVALANCHE 4WD
  • Chevrolet Truck SILVERADO
  • Chevrolet Truck SUBURBAN
  • Chevrolet Truck TAHOE 4WD, TRAVERSE 4WD
  • Dodge Truck DURANGO 4WD
  • Ford Truck F-150 4WD and FLEX AWD
  • Infiniti QX56 4WD
  • Land Rover RANGE ROVER 4WD and SPT and LR4
  • Lexus GX460 and LX570
  • Lincoln MKT AWD
  • Mercedes Benz G550 and GL500
  • Nissan ARMADA 4WD and NV 1500 S V6 and NVP 3500 S V6
  • Nissan TITAN 2WD S
  • Porsche CAYENNE
  • Volkswagen TOUAREG HYBRID

If you have any questions or need help with your taxes or business deductions call Gregory J. Spadea at 610-521-0604. The Law Offices of Spadea & Associates, LLC is located in Ridley Park and prepares business and individual tax returns year round.

Happy Thanksgiving

Happy Thanksgiving

Understanding How to Apply for a Pennsylvania Ignition Interlock Limited License

Woman blowing into breathalyzer

As of August 25, 2017, Pennsylvania is now requiring anyone convicted of a first time DUI with a high blood alcohol content or for refusing to get an Ignition Interlock Limited license (IILL). An IILL is a driver’s license issued to a Pennsylvania driver whose operating privileges are suspended or revoked for one or more violations of DUI related to alcohol, controlled substances, or for refusing to submit to chemical testing. An IILL allows an individual to drive if certain requirements are met. One of the requirements is that the person’s car is equipped with an ignition interlock device during the term of their suspension or revocation.

The following criminal offenses are eligible for an IILL:

  • Driving under the influence of alcohol or controlled substance (Title 75 Section 3802)
  • Refusal of chemical testing to determine the amount of alcohol or controlled substance (Title 75 Section 1547)
  • It’s also important to keep in mind that a violation of a similar statute in another state like New Jersey, which leads to a license suspension in Pennsylvania due to the Interstate Driver’s Compact is also eligible for an Ignition Interlock Limited License.

An individual can apply for an IILL by completing PENDOT Form DL-9108. This application must be sent with the required fees and documentation to PENDOT via Certified Mail.

An Ignition Interlock System is a device that is installed in a motor vehicle to prohibit an individual under the influence of alcohol from operating a car. A person is required to blow into the device before starting the vehicle. If the device detects alcohol, it will prevent the vehicle from starting. In addition to starting the vehicle, there may be times during the operation of the vehicle when the individual will be prompted to blow into the device to ensure that he or she is not under the influence. An Ignition Interlock System is leased from an authorized vendor within the Commonwealth and currently the average cost associated with the lease is between $900.00-1,300.00 per year. An approved list of vendors is available at the Pennsylvania DUI Association home page www.pa.dui.org.

The penalties for failing to comply with the Ignition Interlock Law are as follows: a first offense will extend the Ignition Interlock period for one year from the date of the conviction and a second offense or subsequent offense will result in a recall of the Ignition Interlock License and a one year license suspension. Even when the license is restored, a person will be required to maintain an Ignition Interlock License for one year after that 2nd or 3rd offense.

Thirty days prior to being eligible to receive an unrestricted driver’s license, PENDOT will mail a notice to the individual that contains the date of eligibility and an application to apply for an unrestricted driver’s license. Prior to PENDOT issuing an unrestricted license, the Ignition Interlock vendor must complete a declaration of compliance which certifies that an individual has not had any incidences with the Ignition Interlock Device.

If you have any questions or need representation for a traffic violation contact Gregory J. Spadea at 610-521-0604. Mr. Spadea is the founder of the Law Offices of Spadea & Associates, LLC located in Ridley Park.

Understanding the Difference Between a Pennsylvania Jury Trial and Bench Trial

Handcuffs laying on top of fingerprint chart in file

If your criminal case is proceeding after your preliminary hearing and arraignment, you can request a jury trial or a bench trial. Any person charged with a crime has the Constitutional right to a jury trial. In Pennsylvania a jury consists of twelve members and two alternates. The two alternates do not participate in the deliberations after the trial and are dismissed at the conclusion of the trial if none of the original twelve are excused. The jury is selected from a group of approximately ninety people during a process known as Voir Dire. During this process, attorneys for both sides attempt to identify any biases or prejudices which may cause a potential juror to be partial toward one particular side. This is done by the attorneys reviewing each person’s information that they provided when they filled in the juror questionnaire and by the Judge and attorneys asking questions of the jury panel. The defense and prosecution each get seven preemptory challenges and with those challenges may excuse a juror without a reason. If either attorney wants to exclude a juror without using a preemptory challenge they may make a motion for cause but the judge is not required to grant the motion.

The prosecutor must call witnesses to testify, present any physical evidence such as photographs, clothing, or results of tests like a breath or blood alcohol test in a DUI case, and argue any legal issues. The defense can cross-examine the state’s witnesses and argue to the court that the prosecutor should not be able to present certain evidence, if appropriate. The defendant also is entitled to call witnesses, present evidence, and testify on his own behalf.

A jury decides all issues of fact which means determining the credibility of witnesses and assigning weight to the evidence presented. Judges, however, decide all issues of law which means the admissibility of evidence and the right to pursue certain lines of questioning. The jury’s verdict must be unanimous and if the jury is unable to reach a verdict a judge can declare a mistrial. A mistrial does not mean that a person necessarily goes free but that the state must go through the entire process again.

A bench trial provides a person with all the same constitutional rights as a jury trial but the major difference is that the finder of fact is one person, the judge. The judge also maintains his authority over all issues of law pertaining to the trial stated above. There are several reasons why a defendant should select a bench trial over a jury trial. The most common reason is that a case involves an issue that requires a substantial understanding of the law and the elements of an offense. For example if a defense strategy focuses on the degree of severity meaning the defendant committed the crime but not the way the prosecutor states he committed the crime, as opposed to a case of mistaken identity. Second, if the case turns on applying a complex legal rule to the facts of the case, juries may have a difficult time with the rule or even ignore it. Third, if information will come out at trial that puts the defendant in a bad light, but which is technically irrelevant to the charge, a judge might be more neutral than a jury. Finally, a bench trial is usually a quicker way to complete a case because it can be scheduled sooner and does not require jury selection and jury instructions, which make the trial process last much longer. If you are charged with a crime call Gregory J. Spadea at 610-521-0604.

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