Estate Planning for Minor Children

One of the most important reasons for estate planning is to ensure proper provisions are made for your children. If you have minor children, deal with all the issues involved can seem overwhelming but the alternative is to risk making no provisions. 
When selecting a guardian, consider:

            ·      Would your parents really have the energy to raise more children?
         ·      Can you select a sibling or friend?

         ·      Will the guardian be able to raise your child like one of their own?

            ·      Can one person raise all of your children?

            ·       Do you want to name more than one guardian?

            ·       Does your choice live far away and would a traumatized child be further uprooted?

            ·       Are you comfortable with the guardian's parental style and moral beliefs?

            ·       Have you talked to your selected guardian?

Once you've settled on a guardian, discuss your decision with that person to make sure he or she is willing to take on the responsibility. You may, name a contingent guardian in case your first choice is unable to serve.  Then - consider money:

            ·      Are there adequate financial arrangements so that the child's presence will not be resented?

            ·      Should the person who has physical custody also handle their finances? 

      You may name two guardians, one for physical custody and one to handle their finances. Also, you can decide if trusts should be set up and how money should be distributed when your children reach adulthood. Finally, just because you've previously selected a guardian doesn't mean that person is still the best choice. As your children grow, review your guardian choice every couple of years.

Estate Plans Are For The Living

The brilliant young entrepreneur was so energetic and talented that you felt almost inadequate just by talking to him. Although married with children, he was the type of person that was so charismatic, women were drawn to him and men wanted to be his friend. Not only did he excel at several high risk business ventures, he also enjoyed a number of high risk sports. Unfortunately, the result of one of those sporting adventures was a traumatic brain injury that left him in a coma.  

Strangely, the fact that he did not die put his affairs into disarray. The business floundered and his family was put into a panic…..You see, his estate plan provided for transition of his company and protection of his family upon death but his planning did not anticipate the possibility of his own incapacity.  This was especially unfortunate because proper planning could have protected his business, provided for his family, and even made sure that he received better and more comfortable care during his time of incapacity.

It is not widely enough known that you do not necessarily have to use a Trust to accomplish these ends. You do not even need to anticipate death to make use of an Estate Plan. Ask if your estate planning lawyer knows how to help you protect your business and family in the event of incapacity with a “Springing Contingent Power of Attorney” and pass this word along to any entrepreneur who needs to know that estate plans are for the living.

Cognovit Note Perils

Many business people do not realize that when they get a business loan from a bank, the bank usually insists on taking a personal guarantee.  Often, the bank insists that the personal guarantee be tied to the signing of a cognovit note. This is a special type of promissory note or IOU in which it is agreed that the signer waives most defense and prior notices. In the event that the bank declares default, cognovits notes allows the bank to take personal judgment against the business person almost immediately without having to give notice or wait the customary 28 days for answer or defense. In a suit on a cognovit note, the business person is not given any opportunity to get any notice or make any answer before judgment is taken. However, the Judge deciding Henry v Stimmels 2013-Ohio-1607, reminds that cognovit notes can be challenged on the grounds of neglect, newly discovered evidence or fraud. Moreover, cognovit judgments can only be based on payment default and not any other type of contract breach. As part of obtaining a cognovit judgment, the bank must also attach a copy of the note or make it available for the court's inspection. The bank must also allege that the judgment is sought for non-payment. WHAT HAPPENED: In this case the breach alleged was non-payment of real estate tax and a drop in the guarantor’s net worth. The court said that since non-payment of money to the bank was the only basis on which a congnovit judgment could be taken, if the bank wanted to take legal action, it could not use the cognovits terms. Instead, legal action would have to follow the normal course involved with serving summons with complaint and allowing 28 days for an answer or defense.    

DEBT COLLECTION PERILS

If the basis of the collection action is a business debt, then you may avoid the formal consumer warning, which reads: NOTICE:  This is an attempt to collect a debt.  Any information obtained will be used for that purpose.  Unless, within thirty (30) days of your receipt of this notice, you dispute the validity of this debt, or any portion thereof, the debt will be assumed to be valid.  If you notify this office in writing within the thirty-day period that the debt, or any portion thereof, is disputed, we will obtain verification of the basis of the debt or a copy of the judgment upon which the debt is based, if any, and will mail a copy of such verification or judgment to you. When this wording is a preface to a lawsuit, another warning should say: NOTICE:  Disputing the validity of this debt will not change the time provided by the summons to answer this lawsuit. If you do not answer this complaint within time, a judgment may be taken against you independent of any verification of debt. If there is any question about if a debt is business or consumer, it is best to including the formal wording. Doing so will not change a business debt into a consumer one butt will be a step toward insuring that consumer protection laws are not violated. Consumer remedies for violation of consumer protection laws include Fair Debt Collections counterclaims and Unfair Consumer Practices Act counterclaims.  However, a business defending against a debt collection lawsuit may be limited to a simple denial unless the alleged debt is based on some type of fraud. In any event, if a debt is disputed, it’s better to defend or settle the lawsuit before judgment. Otherwise, the result may be post-judgment debt enforcement.  If you are the target of collections, reviewing your options with a knowledgeable attorney early-on may be worthwhile. Likewise, if you are a business collecting a debt, make sure that your debt collector will not get you tied-up in a debt collection counterclaim. 

A Clear Contract May Not Avoid a Lawsuit Over Its Terms

A printer filed a small claims action against a customer for non-payment of a printing order. The dispute occurred because printer used the prior year’s date on the material produced instead of the current year’s date. The printer defended the bill saying that the content was supplied by the customer and any error the customer’s fault. The customer resisted by insisting that the printer should have sent a proof to the customer for review prior to printing.  Applying law, the court, in Mek v DePaul 2013-Ohio-4486, said that when parties have agreed about issues critical to the transaction, the courts will determine the meaning of ambiguous terms according to the parties’ mutual understanding, the custom and practice in the trade or community, or other established legal principals.  Applying this rule, the court said that since the contract did not provide for a proof and since the contract specified that all terms were in the writing, the customer was out of luck and judgment was affirmed for the printer. IMPACT:   Even if contracts are clear, perhaps consumer transaction should be drafted go above and beyond. Businesses should try to draft consumer contract at a standard way above the minimum in order to avoid the chance of having to litigate consumer collections. 

How much for a Will?

How much do you charge for a will?” is not the right question to be asking because you should not be paying for some paper.  Internet services that charge just for paper way overcharge because you should not be charged for paper. When you hire a lawyer for estate planning you should be hiring guidance throughout your lifetime and for someone to be there for your loved ones when you can’t be. When you hire me for estate planning, you aren't paying for paper and you aren't renting my time, but my brain and my heart. You are hiring an ally who will help you get your affairs in order, and keep them there across time and changes in the law, tax policies and your life. The goal is for you to feel heard and cared about at the same time you are informed and educated in a meeting that is both effective and satisfying. The aim is that you be empowered to make the best decisions for the people and things that matter most in your life. If, after we spend that time together, it turns out you need a Will (or any other type of legal planning), it will be because we came to that conclusion together.  Then, I will offer you planning packages that will cover the different options for taking care of things the way you want.  But whatever you do and no matter what help you enlist (even DIY) make sure that in addition to your will, you consider The Five Essential Advance Directives: (1) Nomination for Guardianship of Children (2) Health Care Power of Attorney (3) Living Will  (4) Financial Power of Attorney and (5) any Funeral  instructions or preferences.

TOP 10 - non-tax reasons for trusts

   10. Protect solely owned assets while retaining sole management and control.  Life estates, joint ownership, POD and TOD designations can be used to avoid probate but each may have ownership or control consequences in the event of accident, business set-back, divorce, bankruptcy or bill-collection.  Insulate against these issues with a trust.

    9.  Delegation of management of assets may be desirable in the future.  Waiting till a day you can’t make good judgments to transfer control and care is not the plan. Do it while your judgment is good by using trusts

    8. Family and friends reside outside of state of residency. Appointment of an executor or personal representative you trust can be difficult because of probate court jurisdiction but that issue is side-stepped with trusts.

    7. Ownership of real estate in more than one state. Because of probate court jurisdiction, each state in which real estate is held may need some probate proceeding but that duplication can be avoided with trusts.

    6. Owners of jointly-owned property who want to avoid probate on both estates.  Joint ownership can avoid probate in the estate of the first joint-owner to pass away but the estate of the survivor could be subject to probate unless trusts are in place.

    5. Same gender partners. Even with the defeat of DOMA same gender partners or spouses and their children can face unique challenges that estate planning and trusts can solve.

    4. Children by a previous marriage. Some spouses want to keep property brought into a second marriage separate and trusts can help achieve that goal.

    3.  No spouse or children. If there are no natural heirs or close relations, a living trust assures proper administration.

    2. Minor children and large estates or large life insurance policies.  If minor children receive life insurance of inheritance directly, probate may be necessary to supervise their assets but that can be avoided with trusts.

    1. Owning a business.  A trust can help with an owner’s concerns about continuation of the business upon the owner’s death or incapacity, maintaining privacy of business and personal financial affairs, valuation, liquidity, and un-involved beneficiaries.