Friday, August 31, 2012

A Startup Entrepreneur's Guide to Forming an LLC

Launching a business always comes with a number of potential risks. Establishing a corporation during these unpredictable economic times can be disadvantageous. This especially is true if you are setting up one on your own or for the first time. If you are looking for an option that is less formal but is as flexible as a corporation, forming an LLC may be your best option.

LLC is an acronym for Limited Liability Company. It is a hybrid business model combining the limited liability feature of a corporation and combining it with the operational flexibility of a partnership. It is a model growing in popularity with small businesses across the country. Despite its combining of the two essential features of a corporation ad partnership, it is not one or the other - it is its own type of business unit.

Its introduction in 1977 makes this business model relatively new to the United States. In other parts of the world, it dates further back and comes with different statutes and guidelines. In the US, "partners" of an LLC are referred to as "members." Members benefit from incorporation while maintaining a small business setup. Similar to a partnership or proprietorship, members report losses and profits on their individual tax returns. Like a corporation, members have protection from personal liability - meaning, they are not responsible or accountable for any company debts.

One of the greatest things about the formation of an LLC is the fact that if the company encounters any legal trouble, only company assets are at risk. Creditors cannot go after any members and their personal assets. Many choose to form an LLC because of this reason alone.

Although each state has its own set of guidelines, the following are some general principles when forming an LLC.

- Choose a Business Name - When it comes to this regard, your company's name must be distinct from other entities in the state and needs clear labeling as an LLC. Some states also restrict the use of certain words such as bank and insurance. Be mindful of prohibited words upon setup.

- Filing of the Articles of Organization - This document is a complete overview of your business. It includes essential information such as your business name, its address, and its members. It also documents the stocks that your company may issue and legitimizes the operation of your enterprise.

- Operating Agreement - This is the written code of conduct for your LLC. It serves as a binding contract among members and needs formal adaption and amendment. Although it is not necessary in most states, the general recommendation is to draft one if you are to form an LLC.

- Licenses and Permits - Regulations vary according to industry, and even by state. Consulting with a knowledgeable document filing company will come in handy when preparing and filing the necessary documents.

Operational ease is one of the greatest advantages of an LLC. Since this is the case, you have the option to file paperwork on your own or hire a third party to do the work for you. An external group can help you save time, energy, and resources. Other than their expertise in filing documents, they may also answer all your questions during setup.

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Thursday, August 30, 2012

No Living Will & Power Of Attorney? HIPAA Law Shuts You Out

What do you mean I can't find out about my husband's accident injuries? Why can't we move my mother to the nice nursing-home down the street? The Health Insurance Portability and Accountability Act or HIPAA caused two of my clients to live through these very situations.

A husband and wife were involved in a terrible automobile accident. The husband was seriously injured. His wife wanted to make certain that the needed medical attention was given to her husband. The wife could not get any medical information from her doctor. Even though she was the wife, the new HIPAA law and regulations prevents her from receiving medical information without specific written authorization!

In another case, an elderly widow lady became incapacitated. Her two children wanted to place her in a nursing home so that she would receive adequate care. Even though they had a living will and health-care power of attorney for their mother, they were required to go to court and be appointed her guardians so that they could place their mother in the health care facility.

What is the HIPAA Law all about?

The HIPAA Law in a Nutshell

HIPAA took effect on April 14, 2003.

This legislation applies to virtually every physician, nurse, pharmacist, dentist, and health care provider in the nation. It impacts everyone's access to health care information.

What does this privacy act mean? The regulations stress that health care providers must limit health information to those who are intended to receive it. This means health care information cannot be released to any unauthorized person. This may mean you may not be able to receive medical records for your spouse or parent.

HIPAA Violation Penalties

The penalties for health care providers are staggering. For each disclosure violation, there is a $100 fine. If the violation is knowing, there are criminal penalties of a $50,000 fine and up to one year in prison. If information is provided or obtained under false pretenses, there is $100,000 fine and up to five years in prison. If the wrongful sale, transfer or use of the information was for commercial advantage, there is a $250,000 fine and up to 10 years in prison.

How does this affect you? To ensure an easy transition, you must have the appropriate medical release language to comply with HIPAA in three of your estate planning documents.

Documents to Update

The documents which need to be updated are:

* Your Living Will and Health Care Power of Attorney
* Your Living Trust
* Your Durable Power of Attorney

What if I do nothing?

You may be forced to sign the doctor's or hospitals forms in a stressful emergency situation. These documents may not reflect your choices and may contain confusing legal and/or medical terminology. Or you may be unable to sign anything and may repeat one of the above scenarios.

If your documents were created before 2003 and have not been amended since, have your attorney review them for HIPAA compliant language. Are you missing some or all of these documents? Make an appointment today!

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Wednesday, August 29, 2012

The Revocable Living Trust - Advantages and Disadvantages

Many people use trusts as estate planning tools, and an especially popular type of trust is the revocable living trust. It's an arrangement that you make, while you're alive, for the management and distribution of your property. This type of trust offers significant advantages, but it also has disadvantages, so it's not right for everyone. Here are some of the pros and cons:
AVOIDANCE OF PROBATE: Probate is the legal process under which your estate is administered when you die. It can be a slow and costly process. If you've transferred all of your property to your trustee before your death, all distributions of your property are handled through the trust, so there's no need for probate. This means that the distribution of your assets could potentially be much quicker and smoother.
AVOIDANCE OF GUARDIANSHIP: If you become incapacitated to the point that you can't take care of your own affairs, and you haven't planned ahead for this situation, your family will need to go through court proceedings to have a guardian appointed for you. If you have a revocable living trust that's properly funded, then your trustee already has the authority to manage your financial affairs for you, and you should be able to avoid having a guardian appointed.
PRIVACY: If you have a will that needs to be probated, that will is filed in court and becomes a matter of public record. This is not the case with a trust instrument. Under ordinary circumstances, a trust instrument will not need to be filed in court, so what you do with your property remains private.
EXPENSE: There's an initial cost involved in drawing up the trust document, and there are also costs involved in transferring property to the trustee in order to fund the trust. Once the trust is funded, the trustee actually starts performing his or her duties in administering the trust, and that means he or she is entitled to be paid for those services. You should weigh the cost of establishing and maintaining a trust against the benefit you'll get from the trust.
POTENTIAL INCONVENIENCE: Certain types of property, such as cars and Subchapter S stock, are more difficult to manage if they're held as trust properties. Also, there is additional bookkeeping involved in maintaining a trust. You should check with an estate planning attorney about what issues your particular situation might present.
NO PROTECTION FROM CREDITORS: Because you can change or end a Revocable Living Trust at any point during your lifetime, the assets in the trust are not protected from creditors. Once you die, the trust property does not go through probate. If you're worried about creditor claims, this can be a disadvantage. Under probate laws, creditors have deadlines for making claims against an estate. If they miss the deadline, they lose the right to collect on the debt forever.
The revocable living trust is not a one-size-fits-all estate planning solution. 

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Tuesday, August 28, 2012

What Happens If You Become Incapacitated Without A Durable Power Of Attorney

A General Durable Power Of Attorney is an estate planning document that is meant to be in place for if you become incapacitated or disabled and are no longer able to speak for yourself or carry on your financial affairs. The durable nature of the power of the attorney comes into play when a trusted person that you name in the document steps into place for you to manage your assets and handle your affairs for you until you recover or for the rest of your life. What happens if you do not have this important document in place and you become disabled or incapacitated and are no longer able to act on your own behalf?

If you become incapacitated in most states without a General Durable Power Of Attorney in place for yourself then the Probate Court in your county steps in and decides who would be the person to handle your affairs that would have named in your power of attorney if would have properly made one. The probate court in your county of residence most likely must appoint both a Guardian and Conservator for you. A Guardian is appointed to look after your health and well-being and make decisions that are in your best interest of your person. A Conservator is appointed by the Probate Court to look after your money and make sure that you are not being taken advantage of financially. The conservator must file strict accounting reports with the Probate Court and will most likely have to post a bond in case any money is mishandled. This process can be extremely costly and drain your assets before you get to enjoy them again after you regain capacity or pass them on to your loved ones.

A General Durable Power Of Attorney eliminates the need to appoint a Guardian and Conservator as a trusted person is named and given the powers to carry out your needs if you become incapacitated. This document allows you to be in control of your own affairs through anther instead of the choice being out of your hands and made by a government agency at a much greater cost of time and money. While it is not pleasant to think of yourself being incapacitated at any point in your life, it is a reality that most people do not die right away and go through some period of disability. Protect yourself by planning ahead.

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Monday, August 27, 2012

Changing Your Will Versus Making A Brand New Will When It Is Time To Update Your Estate Plan

There may come a time when circumstances in your life have changed and you need to update your will. These circumstances can include a new marriage, a new child, a divorce, or having a new financial status such as winning the lottery and becoming a millionaire.

Updating a will can be done in two ways. You can change your existing will by making what is called a codicil or an official update that is made with same formalities as your will was. A codicil should not be made without the assistance of an attorney so you do not undo or change anything in your existing will that you do not want done. It can also be as expensive as an existing will as you are taking about the same time and work that a will takes. The changes you make in you codicil will also be on record as anybody will be able to see what you changed and what you originally had in your will. This could be a problem if your codicil gave a family member a smaller share of inheritance as the family member will be able to see what they would have received under the original will.

A second way that may be easier and more efficient way to update your will is to make a totally new will. This can easily solve the same problems that a codicil can with a newer document that gets rid of the changes made in the old will. A new will can also be better because it reflects your current state of mind and any changed circumstances that may have occurred since your last will was made. It is always a good idea not to leave doubt in the minds of anybody that could possibly read or interpret your will down the line in the future. They will not have the insight of what was going through your head when you were making the will and may have to rely on external clues that may or may not have any relation to what you were thinking about. It is better to remove all doubt from those who may read or challenge your will by making a fresh and current will that reflects your most current affairs in you life and your state of mind.

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Sunday, August 26, 2012

Will Vs Living Trust: Which Is Right For Me?

You have worked very hard during your lifetime and it is only natural that you would like to leave a legacy to your loved ones. It would be wise to find a way to retain some control over the assets. No one wants the IRS, creditors or even a divorce to prevent loved ones from enjoying the benefits of your legacy. Even if you are a person of modest means, you have an estate. Your estate consists of all your personal and real property, such as, retirement accounts, a home, jewelry, rare collections, etc. There are many strategies to ensure your property is distributed according to your wishes and in a timely fashion. The most basic methods to transfer a legacy are Wills and Living Trusts but, which is better for you?
So What Is a Will and How Does It Work?
A will is a document that directs the distribution of the property owned by an individual at the time of death. To be effective, a will must be executed according to your state's statutory requirements. Generally, it must be in writing, signed by a person of sound mind and by competent witnesses. It can be revoked or amended at any time during your life but, any change to the will requires that both you and your witnesses sign again. After your death, the executor you have chosen must petition the court to start a probate process. As part of the process, your property must be valued for estate taxes. The probate process can range from six months for a small uncontested will and can last for years if there are delays in the court proceedings. As with any court proceeding, probate becomes part of the public record and is available for anyone to see.
...And What Is a Living Trust and How Does It Work?
In a living trust, the grantor transfers the assets to the trust but can retain the power to manage or revoke the trust. The trust also allows the grantor to decide who will be the successor trustee and the beneficiaries of the trust after death. If you are serving as your own trustee, the trust instrument will provide for a successor upon your death or incapacity. Therefore, upon death the court does not need to intervene and no probate is required. A trust can also be beneficial if you are disabled by accident or illness; the successor trustee can manage the trust property without a lengthy court proceeding. Because court proceedings are not required, the expense, publicity, and inconvenience of court-supervised distribution of your estate can be avoided.
A properly written and funded trust will:
  • Avoid probate on your assets;
  • Plan for the possibility of your own incapacity;
  • Control what happens to your property after your death;
  • Prevent your financial affairs from becoming a matter of public record.
Trusts also can include provisions to care for family members with special needs. It may be in the best interest of beneficiaries with special needs to have limited access to their inherited property. With a standard will your property will be passed on to those heirs but a will alone does not allow you to exercise much control over their use of the property.
A trust can also be established in a way that minimizes estate taxes. If the value of your estate exceeds the current estate tax threshold, you may wish to consider setting up a trust with tax planning provisions. An attorney will be able to advise you depending on your specific situation.
So the Bottom Line is...
A will is easy to establish, it requires minimal time and money but may leave your loved ones with a heavy burden due to court proceedings. A trust is more sophisticated than a will and enables you to accomplish much more than a will but do not overlook the fact that it involves more upfront effort and expense. A trust, however, allows you to establish provisions for that allow you to feel peace of mind and know that although you are no longer with your loved ones, they will enjoy your legacy exactly the way you intended them to. When choosing between a will and trust, remember that one size does not fit all. What is right for one person may not be right for everyone. Consult your attorney; your estate plan should be prepared in a way that best meets the needs of you and your family.

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Saturday, August 25, 2012

How to Get Your DUI Record Expunged

After you are arrested for driving under the influence, or if you have been convicted of a crime, you may qualify to have your criminal record expunged or sealed. Some legal professionals call expungement a setting aside. This means that, when a new landlord, educational institution or employer checks your criminal history, nothing shows up. When you are filling out applications for employment, admission to college or to rent a home, you don't have to include that information. For persons who were arrested or convicted of underage DUI, this can help them move forward from the actions of their youth as they work to gain a fresh start on their lives.

Just because you are able to get an arrest or conviction sealed does not mean that it will never be seen again. Law enforcement, criminal courts and some government agencies can still get a copy of your record. When this happens, your criminal history is only considered to be under seal, not completely expunged.

To be eligible to apply for an expungement of your criminal record, your situation must fall under several categories.

These factors include how much time has passed since you were arrested or convicted and your entire criminal history, including arrests or convictions in other jurisdictions. The final factor is the nature of the crime for which you are seeking expungement. If you want to get a DUI or a shoplifting conviction sealed, this will be easier than getting a sex offense or an attempted murder conviction sealed. The final category that affects your ability to get your record expunged touches on any other crimes you may have committed. Again, more serious crimes will make it harder for you to get an expungement.

The expungement procedure requires that you must actively work to get the paperwork to the district attorney. It does not happen automatically once your probation or parole has been satisfied. You may also be required to fill out the application for expungement yourself or deliver the paperwork. After all of this, you need to take the completed and signed petition to the correct court. In addition, you may be required to pay a filing fee to the court. Once all of these steps have been completed, the court where you filed the paperwork schedules an expungement hearing. Even when you have jumped through all of these hoops, you don't know whether your criminal history is going to be expunged because the judge has to take all of the above factors into consideration before he makes up his mind. The judge may consider your motivation in completing the process, but he still has to look at the nature of the crime for which you are requesting expungement.

Should you commit another crime, the court can legally look at your past criminal history and use that as a basis for sentencing you for the new crime. An immigration attorney can also pull up your past criminal history when he petitions to have you deported back to your country of birth. He is legally able to present the evidence of your past crime or crimes to the immigration judge as proof that you should not be allowed to remain in the United States.

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Friday, August 24, 2012

The Importance of a Durable Power of Attorney

Our elder has a living trust, which names who she wants as durable power of attorney. At the time it was created, we knew it would be helpful. Until March of 2012, we didn't know *how* helpful. It provided us with a means to care for her without going to court.
Incompetence: The durable POA is often the one turned to when an elder is declared incompetent. This is true whether there is a living trust or will. If court action is required, the POA is often the one chosen to handle an elder's affairs. Unless there is a living trust, most cases do have to go to court.
Medical Information: Privacy laws make it nearly impossible to get needed medical information. The person with the POA has access, as does the person who is medical POA. Often, they are the same person.
This has helped us keep in close contact with our elder's doctors. Signs of trouble are spotted early, and the freedom to communicate directly can help prevent some medical conditions from getting worse.
Monitoring Finances: Like the privacy laws for medicine, it's impossible to get timely financial information without this document. Privacy laws do allow the person with the POA to watch over spending patterns. This is extremely important. Our elder nearly lost $15k in a risky personal loan. Because her POA was watching, the loan didn't go through.
Paying Bills: It may be surprising, but even utility and insurance companies can't just hand out client information without documentation. The power of attorney documents can help open up these lines of communication. Some companies require more documents, but they all want this one.
If your elder has not designated who will hold this responsibility, it's important to encourage action. Doing so before problems occur will make later difficulties a little easier to handle.

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Thursday, August 23, 2012

5 Myths About a Will

There is a great deal of misconception and confusion when it actually comes to understanding what a Will is and why it is utilized. Here is a short list of the 5 myths about a Will.

1. A Will is not required as my estate will be taken care of upon my death by the courts. This is completely incorrect. A Will is a legal document that is used to designate beneficiaries and what assets those beneficiaries are to receive. In the event this document does not exist then there really is not other way for the administrators or the estate to objectively determine the intent of the testator. As a result, the estate will be subject to probate court where the judge presiding there will be given the responsibility of determining the actual intent of testator from the facts and circumstances of the case. If for any reasons there is a dispute among multiple parties that they are entitled to a specific asset then they will have to do legal battle in order to recover what they believe they are entitled to. This will in turn cost a great deal of legal expense and cost.

2. A Will does not need to be signed. Although it is true that a Will need not be typed formally in order to be valid it does however need to be signed. This sort of legal document is not valid unless it is signed by the individual creating it.

3. A Will can be made by anyone even those that have mental conditions. A Will can not be accepted as valid if from the facts and circumstances of the case it seems that the person who created it was not of sound mind.

4. A Will can not be changed once its made so it's a good idea to wait till the very end of life before you make one. This is not true as you can change your Will anytime up until the time you pass one. Many different circumstances warrant the changing of this legal document and one of the most common is divorce.

5. A Will does not allow for the utilization of tax planning strategies. This is incorrect because in fact this legal document allows for the ability to utilize a great deal of tax planning strategies including a credit shelter trust which is one of the most effective ways of minimizing estate taxes.

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Wednesday, August 22, 2012

When to Update Your Will

I am often asked how often a Will should be updated. This is a fairly difficult question to answer because it differs. That decision should be made on a case-by-case basis. Ultimately, though, it should be updated any time you experience a life-altering event or when you feel it is out of date.

Here we will explore the most common times when you should be certain to update your Will. I would be remiss if I did not begin this article by saying that as soon as someone turns 18, he or she should immediately get a Will. It is important for everyone to have a Will regardless of how much money or property they have because if you die without a Will, it is often more expensive to probate an intestate estate (without a Will) than it is to probate an estate with a Will. Having a Will also ensures that your property is divided as you wish rather than how the state law believes you would want your property to be divided.

The first life-altering event that most people will have is a marriage. After you get married, in most states the law will automatically assume that your property will pass to your spouse after you die. However, this can often be complicated by children (especially children you had with someone other than your current spouse) or certain other things. To ensure that your spouse receives the property you want him or her to receive in the event of your death, it is extremely important for you to execute a new will in to ensure these wishes occur.

The next life-altering event that most people will come to is the birth of a child. You should update your Will after any child is born. If you do not create a new Will after every child, depending on how your previous Will was written, the law may treat children that were born after your current Will was executed differently than children that were born before the Will was executed. Also, depending on the language of your previous Will, the law may split the estate between your children and your spouse rather than giving everything to your spouse. This can be especially complicated if you have children from a previous relationship. Another reason to update your Will after you have a child is to specify exactly who should take care of your kids in the event that you and their other parent were to die. Your Will can define this for you. By putting this in your Will, you will help your family by preventing a custody suit after you die. Custody suits can be expensive and extremely emotional. They often end with bitterness and hurt feelings and is not the best thing for your children or other loved ones. Not to mention that you don't want a Court to decide the fate of your children when you have every opportunity to specify who you believe would be best to raise the kids.

The final life-altering event that people may experience is divorce. Although the law in most states will give nothing to an ex-spouse in the event you die before updating your Will to exclude him or her, it is best to go ahead and write a new will to completely eliminate your ex from the Will. This will not only ensure that he or she will not receive any property after your death, it will also state exactly how you do want your property distributed.

There are numerous other life-changing events after which you should write a new Will. I cannot cover all of those events in this article, but when they come along, you will know. Regardless of your situation in life, you definitely need a current Will which you keep updated any time your life changes or you change your mind about how to divide your property.

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Tuesday, August 21, 2012

What Are The Key Factors To Consider In Choosing A Business Entity?

The choice of an entity is often the first important legal decision that an entrepreneur must make. In the last few years the choices have become greater. An individual business owner can have a sole proprietorship, corporation (C or S) or limited liability company. An organization with several owners can be formed as a general partnership, corporation, or Limited Liability Company ("LLC") (note limited partnerships and Limited Liability Partnerships will not be discussed in this article). On what basis does a firm make this important decision? Certain key factors help to form a guide in answering this question.

Sole Proprietorship 
This is the easiest, least costly and least regulated type of organization for the individual. The only legal necessity for forming this business is to commence operations. It is recommended to file a fictitious name registration in all states in which the business will operate and check zoning and licensing laws for the location of the business. Additionally, all marketing materials should be trademarked and/or copyrighted.

As a result of the simplicity and low costs involved in a sole proprietorship, many individually owned businesses choose this option. However, there are some negative aspects to consider. The most important reason to choose one of the other options is that the individual is fully liable for any and all claims by customers, employees, vendors or others.

General Partnership 
Similar to the sole proprietorship in the ease of formation, the only requirement to form a general partnership is that two or more people engage in a business activity for profit (Uniform Partnership Act). Expenses and profits do not need to be shared equally. Although there are no formal requirements, it is highly recommended that a written partnership agreement be executed among the partners. Like a sole proprietorship, the general partnership is not taxable as an "entity".

There are disadvantages to a general partnership. The partners of a general partnership have unlimited personal liability for not only their own torts and contracts, but for those of the other partners too. The death or withdrawal of one of the partners causes a dissolution of the general partnership. Caution should be exercised to avoid having the partnership be viewed by IRS as a corporation and then taxed as such.

A corporation that is owned by a limited number of people is known as a "closely held corporation". Like a partnership, most, if not all, of the shareholders are involved in the management of the business. However, unlike a partnership, all the shareholders, or owners of the corporation, have limited liability for the acts and omissions of the other owners. Additionally, avoiding personal liability for business debts and court judgments is another advantage of a corporation. Generally speaking, a creditor can only collect from the assets of the business, not against the personal assets of the owners.

Because a corporation is a separate legal entity from its specific shareholders, the business continues regardless of who owns the shares. Corporations offer the opportunity to bring in investors who can own shares in the company without having to worry about personal liability. Tax deductions may be taken for benefits provided to its employees and to the owners. Corporations often have a more favorable tax rate structure to allow the owners to save earnings at a lower rate.

There are two types of for profit corporations, the "C" corporation and the "S" corporation. These refer to IRS statutes that dictate different tax treatment for the two types of entities. A "C" corporation is required to pay corporate taxes on profits and the shareholders pay taxes on their compensation and/or dividends. For this reason many small organizations elect to be "S" corporations. An "S" corporation does not pay taxes on the profits; profits and losses are passed through to the owners. However, the owners of an "S" corporation cannot be corporations, partnerships or LLC's.

Some of the disadvantages of forming a corporation are the costs and formalities involved. The costs to incorporate vary by location, but typically run several hundred dollars. Corporations are required to hold annual board and shareholder meetings and minutes of director and shareholder actions must be maintained.

Limited Liability Company 
The LLC is a relatively new entity. It was created to combine some of the advantages of a general partnership and a corporation while eliminating some of the disadvantages of both. Owners of an LLC, called "members", have limited liability similar to shareholders of a corporation. However, in structure, the LLC is more like a partnership.

The LLC can be managed by the members or by a manager. Usually there isn't a board of directors or officers. Corporate formalities such as meetings and minutes are not required. Profits and losses are passed through to the owners on their personal tax returns and are not separately taxed to the entity. LLC members do not have to be individuals and voting power and share of profits and losses do not have to be identical; for example, an owner can receive X% of the profits and own Y% of the LLC and have Z% of the voting rights. It's obvious to see why LLC's are so popular.

In conclusion, there are many factors to consider when choosing the form of entity for your business. The advice of your accountant or tax advisor and attorney should be considered before making a selection. We welcome any questions you might have.


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Monday, August 20, 2012

Five Reasons to Change Your Name

Changing your name legally is a big decision. You can change a name that was given to you at birth or, in the aftermath of a divorce, can change back to the name that you gave up when you got married. Either way it represents a big change in your life and before you do it you need to be absolutely certain that it is the right decision. After all, it costs money to do it, so you will need to be confident that you want to take this step. If you are changing the name because it will give you freedom from a period of your life that you wish to put behind you, the legal costs can be viewed as an investment in a better future. Here are five reasons people change their names.

1. In the aftermath of a divorce, people often want to change their name back to the name that they went by before they were married. It may be in order to remove any aspect of their ex-spouse from their lives in the case of an acrimonious split, or it may be simply to ensure a fresh start and a point from which to relaunch your life. Just as taking your spouse's name marked a new era, so will taking your old name back.

2. Equally, getting married is a time when you may change your name, usually to that of your new spouse. Some people, however, take the opportunity to keep their old name and add that of their spouse, in order to reflect the joining of two family lines. This is also a way of avoiding the awkwardness of telling one's family that they have chosen to take a different name. Either way, making the decision to change one's name marks a new chapter in life.

3. On immigrating into the country, an individual with a specifically non-American name may well choose to take the step to adopt a more Americanized name. This is a step that is often taken at the stage where the individual applies for naturalization, and during the interview that takes place as part of this process they may choose to prepare a petition for name change. The name change will become final once the federal court passes the application for naturalization, and can give the individual the chance to be treated as an ordinary American.

4. Changing one's name does not need to be the result of a change in legal circumstances. It may be the case that you wish to make a break with your name, due to circumstances that make living under the current name difficult. This may be the result of major adverse publicity for yourself or for another person with a similar or identical name, which could cause you to be treated differently and unfairly. For example, there are very few people in the world today living under the name "Hitler".

5. People may change their name for business reasons. The motivation behind this can vary, but as an example one might feel that a name which is also held by a well-known individual operating within their industry, or in one that is at odds with their own, might cause an adverse effect on their business. It is unlikely that one will be able to convince a court to agree to a frivolous name change however, so it is wise to be cautious.

Disclaimer: This article is for informational and entertainment purposes only, and should not be construed as legal advice on any subject matter.

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Sunday, August 19, 2012

Advance Directives: Who Will Manage Your Affairs If You Cannot?

What happens if you are out of town and some kind of business has to be transacted? Who makes medical decisions when someone is in an accident and needs surgery?
There are many situations where it is necessary to make medical, personal, and financial decisions for another person. Many people assume their spouses or children will automatically be allowed to make medical, personal and/or financial decisions for them, but this is not necessarily so.
Even though we all know of situations where health care providers and others have turned to the immediate family to make decisions under these circumstances, actually the law provides that only someone with the legal right to make such decisions -- or otherwise act on behalf of someone else -- can do so. You don't want to take chances on how things might go in a medical emergency. And, certainly, when it comes to financial decisions, or taking action in court or banking situations, legal authority to act is imperative.
The basic documents that provide such authority are known as Advance Directives and include a Power of Attorney, a Living Will, and a Health Care Proxy. (1)
In the absence of Advance Directives, a Guardianship proceeding would then have to be brought in Court to have the Judge appoint someone to make such decisions. To avoid the necessity of a costly and lengthy Court proceeding, and to make sure that your wishes are expressed and the authority to carry them out is given, Advance Directives must be put into place.
Power of Attorney
A Power of Attorney is a legal document that allows one person (called the principal) to appoint someone else (called the agent or attorney-in-fact) to act on his or her behalf. The powers that can be exercised by the agent can be broad or narrow; the principal chooses them, in advance. You might, for example, authorize your agent to do a specific thing (e.g., sell your house) or you might give the authority to do any legal act you could do yourself.
There are three different types of Power of Attorney:
conventional Power of Attorney gives the agent whatever powers the principal chooses, often for a specific period of time, beginning when it is signed.
durable Power of Attorney stays in effect for the principal's lifetime, beginning when it is signed. It contains specific language stating that the agent's power is to stay in effect even if the principal becomes incapacitated.
springing Power of Attorney "springs" into effect upon a specific event, such as when the principal becomes incapacitated. It must be carefully drafted so that there is no difficulty determining when the springing or triggering event has occurred.
By signing a Power of Attorney, you are not giving up your right to act in your own behalf; you are instead empowering your agent to also act when and how you have directed. Also, it's important to note that you can revoke, or cancel, a Power of Attorney at anytime, and you do not need to give a reason for doing so. If you do make changes to your Power of Attorney it is a good idea to let all involved parties know of your decision - particularly your appointed agent and anyone they may be dealing with, as well as your attorney.
All Powers of Attorney automatically end when the principal dies. Consequently, your agent's powers do not overlap with those of the executor of your estate. Choosing an agent is an important decision. You need to trust the person completely, and you need to make sure they are capable of performing the job.
Living Will
A Living Will allows you to specify the kind of treatment you want in particular situations, especially what happens if you are terminally ill. For example, you might choose to specify that you do not want to be treated with antibiotics if death is imminent. Or that treatment is to be withheld if it only serves to prolong your death. You can ask that maximum pain medications, however, be given even if they hasten death.
Health Care Proxy
The Health Care Proxy identifies the person you've chosen to make medical decisions for you if you become unable to do so yourself. It is activated anytime you're unconscious or unable to make medical decisions.
In choosing an agent, keep in mind the following: Most states disqualify anyone under the age of 18, as well as and your health care provider and its employees, to act as your agent. Furthermore, the person you name as your agent must be willing and able to advocate on your behalf, deal with conflict among friends and family members should it arise, and must understand and respect your wishes. Needless to say, the person must be someone you trust with your life.
Although death is a difficult subject to bring up, it is a good idea to discuss these issues with friends, family members, and your agent to ensure that they understand your values and beliefs.
Once you've finalized Advance Directives, give copies to your family, agent, and your health care providers.

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Saturday, August 18, 2012

Selecting the Most Appropriate Power of Attorney Template

Using a power of attorney template is a simple method for creating legal documents that authorize an agent to take care of financial or healthcare transactions on your behalf. There are four primary kinds of POA forms that include: limited, durable, general, and medical.

Each type of power of attorney template contains specific legalese to ensure the document is legally binding. Regardless of the kind of form used, every POA includes two parties which include a Principal and Agent.

Principal refers to the individual that is creating the document. Agent refers to the person charged with carrying out transactions on the Principal's behalf. Some forms refer to agents as the Attorney-in-Fact, which essentially means the person is legally allowed to sign documents and perform tasks described in the document.

Principals can choose anyone they desire to act as their agent. While the only requirement is that agents are of legal age, it's vital to select someone that is trustworthy and dependable. The most common choices are spouses, relatives, friends, and business partners. However, agents can also be lawyers, physicians, accountants, or realtors.

Once power of attorney forms are created they have to be signed by two witnesses in front of a notary public. After witnessing signatures notaries sign the form and attach their stamp. If legal problems arise, notaries and witnesses might have to appear in court to testify.

Agents can only conduct transactions outlined in the POA. When durable or general power of attorney templates are used, agents are provided with broad powers that allow them to conduct nearly any kind of transaction the Principal would perform.

Setting up power of attorney privileges is common with estate planning methods. These forms are particularly beneficial to people that have bills to pay, or own realty, financial investments, or businesses. Arranging these documents ensures that financial matters can be taken care of in the Principal's absence.

Limited power of attorney is used when agents only need to perform a few tasks. This form is frequently used to authorize agents to pay bills using the Principal's checking account or credit cards. It's also used when a person needs to hire a mediator to negotiate with government agencies such as Social Security Disability or the Internal Revenue Service.

General and durable power of attorney grants sweeping powers that let agents take care of multiple tasks. These forms are often used by business owners to designate agents to take over business operations. They are also used by people who need someone to take care of daily activities like monitoring financial investments, handling business affairs, or selling titled property such as real estate.

Medical power of attorney is used to authorize an agent to make healthcare decisions if the Principal is declared incompetent. Agents are not allowed to make any medical decisions until the Principal's physician has filed a written declaration of incompetency.

Medical POA is also used to grant permission to caregivers to acquire emergency care for minor children. This form is required by daycare providers and nannies. Since children under 18 years of age cannot make medical decisions, this form is crucial for receiving emergency care if parents are unavailable.

The only way agents can perform transactions that necessitate legal permission is by setting the proper type of power of attorney template.

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Friday, August 17, 2012

Legal Documents That Every (Responsible) Adult Should Have

If you are like most people, you probably don't give a lot of thought as to end-of-life or what I will call "special circumstances" documents. Most of us are busy enough worrying over work, getting kids to little-league practice, and unfortunately for many, figuring out how to pay this month's bills. We often believe that we will have time down the road to take care of things like our Will, Living Will, etc. However, while death and taxes are both certainties, we only know the due date for one. Because of this, it is important that we plan accordingly now, so that we, and those we leave behind, may enjoy the blessings of the future. Here are three legal documents that every adult should have, and a couple of others that may be useful, in special circumstances.

Will (or more formally, Last Will & Testament) -

Most people without a will cite one of two reasons. First, they argue that they don't have much in the bank and they don't own any property so there is nothing to "give away." A will's primary function may indeed be to devise and dispose of the deceased's (testator's) property, but there are other important functions of a will. Most importantly, if there is a minor child of the testator, unless the will names a guardian to take over the parental duties of that child, a court-battle could ensue. The simple act of having a will and naming a guardian within that will, can save hundreds or thousands of dollars in legal fees, and more importantly, the heartache and strain a legal fight can cause for surviving family members and the child or children themselves.

Second, many believe that if they have no property and no children, a will serves no purpose. However, what may be true today may not be true a year from now. After getting married, having children, buying a house, or any of the other major life changes we encounter, the last thing people tend to do is run down to their attorney's office and execute important legal documents. They are busy enjoying their new lives. By executing a will now, before those things happen, most future problems can be eliminated, even if you don't know what property you may later acquire, or the name of your future wife or kids. If nothing else, because of state law provisions and attorney fees, not having a will can cost your surviving loved ones substantially more in the event probating the estate becomes necessary. Investing a couple hundred dollars now can save thousands after you're gone.

Living Will (or Advance Directive) -

Most of us remember the Terri Schiavo case from 2005. After she fell into a prolonged vegetative state, her husband and parents fought in court over whether she should be taken off of life support. After 7 years and 14 appeals, her feeding tube was finally removed for the final time and she passed away. The reason I bring up Ms. Schiavo is to illustrate how a simple legal document could have saved some of the pain that both sides must have gone through in litigating this for so long. The court wasn't easily able to determine whether Ms. Shiavo would have wanted her feeding tube removed or not because she had never executed a Living Will. This important document simply asks a series of questions about whether the signor wishes to receive certain life sustaining treatments in the event he or she is unable to speak for him or herself. Everyone should have a Living Will.

Medical Power of Attorney/Healthcare Proxy -

This document is used to name a person that will be authorized to make medical decisions on your behalf in the event that you are unable to speak for yourself. Unlike the Living Will above, this is not just for permanently unconscious situations. It may be used while suffering from a temporary ailment, which nonetheless, renders you unable to communicate with your doctor. Everyone should have a document naming a healthcare proxy, and this can often be done within the same document as the Living Will.

Durable Power of Attorney -

In 2012, Alabama, the state in which I practice law, passed and codified legislation radically changing many aspects of Power of Attorney (or POA) law. POAs executed prior to 2012 in Alabama are still valid, as long as they were valid under previous law. But new POAs need to comply with this new legislation. You will need to make sure that the POA document you use, complies with your state's laws. In essence, this document authorizes another person (called your agent) to handle your personal or business affairs, such as check and bank transactions, signing contracts, conveying real estate, executing income tax forms, etc. It is possible to grant your agent a "general" power, allowing them to handle most matters on your behalf or any of several "specific" powers. While POAs are an important tool for many people, they are not for everybody, and great care should be taken to avoid granting a POA to someone you do not trust completely. By definition, you are giving great power over your life and finances to another person, and such a decision should not be taken lightly.

Trust Instrument -

Revocable and/or Irrevocable trusts can be an important aspect of your estate planning. This is one of my "special circumstances" documents, and like the Power of Attorney above, may not be for everybody. It is typically for somewhat wealthy individuals who are trying to avoid estate tax and probate implications associated with death. Unfortunately, for most of us a trust may not be useful, however it is worth discussing with your attorney or estate planner.

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Thursday, August 16, 2012

The Benefit of Living Wills

When the time comes, wouldn't you love to save your loved ones from any unnecessary trauma and expense? It's a wise choice to take time to plan ahead for the day when you might not be able to make any more choices on your own behalf. Living wills can quickly be created without the help of a lawyer. They make your choices and desires known when you can't and so you're family won't have to.

But living wills are not your last will and testament. It doesn't involve issues like probate or distributing your assets to your family or friends. They are also called advance directives and are primarily used to either express your wishes if you are incapacitated or to appoint someone to speak on your behalf. Simply put, this person or the form itself speaks for you - fulfilling your wishes if you become unconscious or terminally ill.

How are living wills created?

The forms can be found for each individual state. It's important to make it apply to the state you are a legal resident of, in order to comply with that state's law. These forms may also be obtained from your family doctor. This form may need to be witnessed by two people and it may also require notarization.

One of the most important aspects of this vital form is who you choose as your representative. They don't need to be related to you, but they certainly should be trustworthy. It's also helpful, but not necessary, for this person to live generally in the same area as you for close proximity in case of emergency.

Another great aspect of this form is for expressing your desire to be an organ donor and for your final arrangements. But, you are not locked into your decisions until you become permanently unconscious which must be determined by a medical expert. Up until that time, you still have the power to change your mind from the time of the form's creation.

Make sure you give a copy of your advance directive form to your representative, your physician, any other healthcare providers and any other family members or friends who may become involved.

Some of the medical options you will need to choose are the following situations. All of these are on a "as-needed" basis.

1. If CPR should be performed.

2. If you should receive oxygen.

3. If you should be kept alive through artificial feeding and hydration.

4. If you should need dialysis.

5. If you should need pain medicines.

It's not possible to cover every single aspect of living wills in this article, but I hope to have given you some food for thought.

Peace of mind is what you will receive - for you and your loved ones. Remember, they will already be going through a tremendous amount of suffering if this time comes in your life. You will want to make some easy choices now in order to save them more difficult ones later.

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Wednesday, August 15, 2012

The Probate Process - Following Final Wishes

Death is inevitable to everyone in this world, and yet few people prepare for that eventuality in a legal manner. Regardless of the circumstances, the possessions and last wishes should always be documented with a will in order to avoid difficulty or problems for those left behind. Typically, if someone has a will, it will go to probate after the death. Many people wonder, "What is probate?" It is the first step in executing the last wishes that are included in the will. It means that it is the start of dispersing the items or finances to whom they will belong.

The probate process can sometimes be a long and drawn out process, simply because there is the inevitable red tape that goes along with any procedure of this nature. For example, in the midst of this process, usually begun by an attorney, creditors must be informed, a probate court may need to rule on the validity of the will, assets assessed and dispersed, among many other things. In addition, sometimes there is a dispute over the contents of a will, and an attorney can help straighten out a legal mess before it gets started.

There are many ways that you can look at the probate process. It can be what is happening while the will is being looked over by judges and an attorney, or it can be the process of distributing the worldly goods as mentioned in the will. The taxes must be taken care of first, as well as any debt, so the rules must be followed. Without a will, however, this makes the process much more difficult, and sometimes the state in which the deceased lived gets to decide the property and asset dispersal. If you do not yet have a will for yourself, you need to get one.

Unfortunately, even death is now a bureaucratic mess that can involve miles of red tape and can sometimes take years to straighten out. However, by preparing for the worst, you can protect your estate and see that it goes to the people you want, and is not distributed according to a random act by the state. While it is always advisable to have a personal representative named in the will, it is also important to have an attorney double check every bit of the documentation to ensure that it will be complied with and is compliant with state laws.

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Tuesday, August 14, 2012

Executor of Will - How to Choose Who to Disperse Your Property

Many people make a will to leave directions behind as to the dispersal of their worldly goods. In addition to naming the inheritors, a will can also include a name of someone who is to act as executor of will. This person will be responsible for ensuring that the will and last requests are followed through, and can include overseeing and estate or even handle the little every day details - including helping the grieving family - in order to make sure things go smoothly and according to the will's wishes. An executor does not need to be an attorney, and they are usually a close friend or family member.

State laws are widely varied, and the laws regarding an executor of a will vary also. If you are making out your will and wish to name an executor, you need to look up the local laws in this matter, or visit with an attorney who will walk you through the process. Typically, your executor may be expected to handle: asset management and distribution, assess the need for probate court, deciding upon the inheritors if there is no will, filing of the will, banking of estate monies, and payment of debt and taxes.

An executor will have many responsibilities, and it is important that you choose wisely. It is easier if you state your wishes for your property very clearly in a will that has been made a legal document, as without a will, an executor will have no instructions as to what you would have liked. It may be a good idea to have a back up executor as well; in case the first one refuses or cannot proceed. If you wish your worldly goods to go to a specific place, the only way to make sure that happens is to leave it documented.

An executor can still manage an estate after a death, even if there is no will. It places a great burden and responsibility on the shoulders of the executor, and sometimes can make a task quite difficult if there is not proper documentation. Most executors will follow through honestly and diligently, but it is not unknown for some people to take advantage of this situation for their own financial gain. It is vital that you select a person who is honest, has integrity and can understand the process of dispersing the goods where they need to go.

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Monday, August 13, 2012

An Introduction To The Deed Of Trust

There are really three people that are involved in a deed of trust. The people that are involved in a trust of deed are the beneficiary, the trustor and the trustee. The beneficiary is the lender, the trustor is the borrower and the trustee is the person that legally holds or bares the title. Mortgages do not actually contain this therefore the process of foreclosure will work differently in some states compared to others.

This will generally include the amount of the loan, a legal description on the property, parties involved, late fees, provisions for mortgages, the start date of the loan the maturity date for the loan. It will also include alienation clauses and acceleration clauses. In addition to all of this information will also include what is known as riders if there is any in existence and this is things such as prepayments penalties or adjustable rate mortgages which are often referred to as ARMs.

The trustee that is involved in one of these deeds is a third party and they are responsible for reconvening the title once the deed has been paid off in full. The trustees are also responsible for filling a notice of default if a payment is not made and they have the ability to sell the affected property. A trustee is usually a company. When it comes to filing a notice of default they will normally do a substitution of trustee therefore another trustee carries out the process of foreclosure.

There is a period of ninety days between the record of a notice of default being filed. These notices are often placed in the local newspaper as well as being posted in he courthouse.

Following the ninety say period the publication period starts and this tends to last for twenty one days and this is where the sale is noticed and placed in the local newspaper. Trustees have the ability to sell the property without the court even being involved. It is not uncommon for city newspapers to list several trustee sales in the same day and this is especially the case at the moment due to the economic climate.

The promissory note is the evidence of the money that is owed and this is secured by the deed and this is usually not recorded. This note does contain the rate of interest and the terms as well as the parties who are involved in the loan.

The borrower signs the note and it is retained by the beneficiary. Once the note is paid off it will be stamped as being paid in full and it is returned to the borrower along with the re-conveyance deed. At this point there is no longer a trustee or beneficiary as the loan has been paid off in full.

It is very important to understand all of the paperwork before signing any of it as all of the pages form a legally binding contract. It is very important to make sure that the name and address on the paperwork are correct and spelled correctly. This is especially true with quit claim deeds and especially when it comes to a deed of trust.

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Sunday, August 12, 2012

Definition of a Quit Claim Deed

You and your spouse just got a divorce. The law requires that when this happens, conjugal properties need to be divided equally between the spouses. However, your partner has a real estate property he bought before you got married and in all due respect to him, you don't want to have a claim on that. This calls for a quit claim deed.

In settling your properties, you will need to execute such a deed to waive your right to claiming that particular property of your husband. This quit claim deed will legalize everything and ensure that you no longer have any interest on that piece of property. In other words, you are giving your spouse the full right to own that real estate such as a vacation house or farm.

A quit claim deed is a document required when transferring ownership of a property from one person to another. This is also used when transferring properties to family members as gifts or inheritance or when an individual wants to put his personal property into a business entity.

Sample forms are offered by certain websites catering to legal forms or real estate forms. So if you're about to create a quit claim deed, you may want to check out the internet first and find out what information will be needed in the form. Normally, you will have to provide a legal description of the property.

There are two options when creating a quit claim deed. You can do it yourself or let your lawyer do it for you. If you want to take the first step, you can download your form on the internet by paying a certain fee. There are some sites that offer standard forms. Or you can buy a blank form from a bookstore or a shop that sells office supplies.

In filling up the form, avoid making mistakes in spelling and facts as they can make your deed invalid. List the name of the owner as grantee. If you have children and your husband agreed to have them as beneficiaries, add the names of your children as grantee as well. Next step is to list the current owner of the property as grantor.

A quit claim deed needs to be notarized and make sure that make photocopies (more than one if possible) for you records. After notarization, you can bring it to the county's clerk and recorder's office where the deed will be officially recorded. You will have to pay a certain fee.

If you have a lawyer and you're not sure how to execute this quit claim deed, let your attorney do it for you to make sure that the information is correct and with no errors. Your lawyer can then notarize the document and can have it recorded at the county's clerk.

Remember that where real estate properties are concerned, there will always be legal documents involved. This is because they are valuable investments and not something you just throw away when your situation goes wrong. Written legal documents ensure that a piece of real estate property goes to its rightful owner.

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