Spooky stories in the spirit of Halloween: this blog comes across your feed as a warning not to do what other clients have done and that is your own estate planning! Beware of quick forms and websites such as LegalZoom. Over the past year, our firm has represented clients in actions where either the decedents drafted their own will or a will was taken from an internet website with the belief (and sometimes confirmation from the site) that the documents will be upheld in court. This has left clients in challenging and depressing situations.

Please do not believe these companies when they tell you that the form they are providing to you meets all legal requirements. There is more to creating valid documents than just the documents themselves. For example, interested persons cannot serve as witnesses or the notary. Just because the witness’s name is not on the will does not make them disinterested, i.e. a spouse to a witness still stands to benefit from their spouse’s inheritance, which makes them interested. Sometimes it is hard to determine who is interested and not. Helping a loved one prepare their will (even if it is just inputting the information into a legal form) will also create grounds to invalidate the document.

Especially if you are crafting estate-planning documents that disinherit children or heirs, it is imperative to use a lawyer that can draft the documents to clearly express your intent and avoid challenge by those disinherited. Disgruntled heirs often look for ways to challenge the will and homemade or printable forms create a lot more opportunities for challenge.

Estate planning documents are not cheap, but neither is litigation. To create a will costs ~$600-$1,500 depending on its complexity. However, litigation will cost tens if not hundreds of thousands of dollars. Plus, if a lawyer constructs the will and uses office staff as witnesses, there are witnesses and an attorney who are truly disinterested to testify as to the parameters of the execution of the documents. Such parameters include whether the person had capacity at the time the documents were signed or whether the person was subject to undue influence or was acting under their own free will.

Do not be haunted by your decision not to use a lawyer to prepare your estate plans. An estate-planning attorney is a state bar certified attorney that has been educated in the laws of the state and knows what the courts require. Hiring an attorney to handle your estate planning minimizes the risk of litigation surrounding those documents and reduces the likelihood that the court will invalidate the document. Do not leave your heirs exposed to senseless litigation and hire an attorney for your estate plans!

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Probate is an unnecessary process that can cost a lot more than than the creation of an estate plan to avoid probate. Why is probate so expensive? The lowest probate filing fee costs $345 for a simple petition for summary administration. Then there are the attorneys' fees associated with drafting and filing the petition and overseeing the judicial process. Probate expenses can quite easily cost as much and sometimes more than the creation of a trust, a document that alleviates the need for probate altogether.

Not only is probate expensive, it is also time consuming and can take months or years to untangle assets and distribute those assets to the heirs. A trust is a much more efficient way of distributing assets. Friendly reminder that wills still need to go through probate - if you have a will, it will still need to go through the judicial process! States also have different requirements for executing a will. This may cause problems if you are trying to probate a NY will in FL and the NY will doesn't meet the self-proving requirements of Florida law. As a result, the court may disregard the NY will and probate the estate as if the deceased didn't have a will.

Real property can pass to heirs outside of probate by either trust or lady-bird deed. Personal property can be retitled and assigned to the trust for distribution by the trustee. The most efficient and practical estate plan depends on the size of your estate. Various options are available for estate planning depending on the desired results one hopes to achieve.

Estate planning is for all ages and stages of life - if you own any assets (house, bank accounts, life insurance, investments, vacation home, boat, etc.), you should consider creating an estate plan. The earlier you create a trust for your portfolio the better - that way assets can be acquired in the name of the trust and you avoid transferring assets from your personal name or business at a later date. Revocable trusts are commonly used for estate planning and allow the owner of the assets to retain all rights and control of the property during life.

Another important estate planning consideration is child-guardian plans. If you have children and want to guarantee your children are cared for by individuals you've personally chosen should something happen to you, then it's important to create a legal document to avoid a court or agency making that decision for you!

Warning not to rely on the "poor man's estate plan" by preparing deeds to transfer property without knowing the legal effects of such paperwork. This type of layman's lawyering could have expensive consequences down the road, lead to litigation, and cost more in attorneys' fees than the creation of an estate plan. If you would like to learn more about creating an estate plan, child-guardian plan, or to explore estate planning options with an attorney, please email info@BurkeLaw.LLC or call 352-681-2723.

#Trusts #EstatePlanning #Probate #BurkeLaw

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It seems like so many business owners are conducting business without an operating agreement. Unbeknownst to the owner, this can be a risk. An operating agreement is a document that organizes a business entity; it provides liability protections and makes expectations clear.

Operating agreements can vary in substance depending on the venture. Creating a LLC with the state comes with its own host of statutorily-mandated provisions that apply to the company at its inception just by registering to do business as a LLC.

Many owners are unaware of what's legally imposed on members and managers of a LLC by state statute. The statute allows for most of these provisions to be alleviated by an operating agreement. For example, one fiduciary duty imposed by state law is the requirement not to compete with the business's interests.

Florida Statute 605.04091(2)(c) requires members and managers to refrain from "competing with the company in the conduct of the company's activities and affairs." Members of a LLC may want to alleviate themselves from this fiduciary duty by an operating agreement so they are able to freely engage in business transactions with other companies without being liable. Violating a fiduciary duty can subject a member or manager to litigation. Discussing these provisions amongst members and deciding which statutory mandates to alleviate also provides clarity to the directors, members, officers, and managers of the company.

There are many imposed statutory duties for how members and managers are to operate a business. The noncompete provision is just one example of why it's important to work with a business attorney to create an operating agreement to ensure unwanted mandates are alleviated and all members and managers are on the same page. An operating agreement protects the members' and managers' interests in the company, which reduces the likelihood for conflict down the road and can guide the company through transitions that can be highly conflictual. Having guidelines and provisions for mergers, acquisitions, buy/sell agreements, membership changes, etc. help keep the business running smoothly even during times of change. Determining how a new member will be admitted or how another member's interests are to be acquired are some of the ways an operating agreement can protect members from future conflict.

Operating agreements also protect personal assets of the owners and members of the company. Maintaining the appropriate legal documentation for your company provides guidance to the court in determining if a company is treated as a business or as an alter ego of the owner(s). Corporate formalities are important to the corporate veil piercing analysis and having the proper legal paperwork is one way of demonstrating that the company is being treated as a business and isn't the alter ego of its owner(s).

An operating agreement is important whether you're a new or existing business. If you're considering opening a business or are currently running a business and would like to speak with an attorney about reducing liability by creating an operating agreement/bylaws or other corporate formalities call 352-681-2723.

#BusinessLaw #BusinessLawyer #OperatingAgreement #LLC #Business #BurkeLaw

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