23542 Lyons Avenue, #200 A, Santa Clarita, CA 91321
By Jerry Kessler, Esq.
The following comments are general in nature, but if you consider them carefully, some of these suggestions could save you hundreds or even thousands of dollars during your business careers.
Why bother with attorneys? (This is not just a lawyer-bashing joke.)
If you wanted to take an oil tanker through Prince William Sound, you'd probably engage the services of a pilot. If you had a tax problem, rather than wade through the maze of the Internal Revenue Code and Regulations yourself, you would more likely consult a CPA. The point is, there are many things in this world you can do alone, but probably shouldn't. Even when you go into a club, you may be able to get seated & served, but you tend to get a better table and a better drink if you go in with a member.
There is a saying in the legal profession: "A man who represents himself has a fool for a client."
Where to find an attorney? (Most attorneys don't get lost.)
We live in an age of increasing specialization. Every day, new cases are being decided by state and federal courts. Every day, new laws are being passed by Congress and by state legislatures and new administrative rules and regulations are being promulgated. No one attorney can keep up with the entire body of law. None can be an expert in everything.
How can you find the attorney who is best qualified to help you with your particular problem? First, ask your family attorney, if you have one. Many general practitioners have several areas of expertise and are qualified to assist you at least in analyzing a prospective case. If the matter is beyond the scope of your attorney's field of practice, ask for a recommendation.
If you don't know an attorney, there are other sources of assistance: Try asking another professional, such as your CPA or a real estate or insurance agent, or call the Referral Service of the County Bar Association. Or, you might even request a recommendation from someone you know who has had a similar problem.
By Jerry Kessler, Esq.
Estate planning has become a hot topic, not only among professionals such as attorneys and CPA's but also among individuals and families who want to know more about their rights and options. Everyone's fact situation is a little different, but some issues do come up repeatedly. The following questions may be the very ones that you have thought about, yourselves:
1. What is Estate Planning? Estate planning is the process by which we arrange for the eventual transfer of our property to our beneficiaries without the financial ravages of probate fees and estate taxes.
2. What are the basic legal documents used in estate planning? The basic legal structures of estate planning are wills and trusts. Other useful documents include the durable power of attorney and the durable power of attorney for health care.
3. What is the difference between a testamentary trust and an inter vivos trust? The testamentary trust is a trust written in a will. It takes effect only at the death of the signer, and is subject to probate proceedings. The inter vivos trust, or living trust, takes effect at the time it is signed, and may therefore be used both to control assets during the life of the signer and to provide for transfer without probate at the signer's death.
4. I'm not rich. Do I need a living trust? If you have more than $100,000 of assets in California, your estate may be subject to probate. Even if you are not wealthy, you may save your beneficiaries thousands of dollars, to say nothing of considerable time, effort and delay, by holding your assets in a living trust.
5. Should my CD's be in my living trust? A major purpose of the living trust is to be sure you don't have assets in your own name which would be subject to probate at your death.
6. What is joint tenancy? Joint tenancy is a form of title which features an automatic right of survivorship upon the death of one joint tenant. Property held in joint tenancy is not subject to probate.
7. So, why have a living trust, if I can hold all my property in joint tenancy? There are several important disadvantages of joint tenancy, including possible adverse gift tax consequences, loss of significant income tax benefits and loss of control of assets. Before you put assets in joint tenancy, you would be well advised to discuss this matter thoroughly with legal and tax counsel.
Who will get our assets when we're done with them? Careful estate planning can protect our loved ones and insure that our wishes will be carried out.
Estate planning includes cash management, tax analysis and preparation of legal documents to minimize taxes, expenses and inconvenience for our beneficiaries.
You may execute a will, to direct disposition of your estate, appoint a personal representative and nominate a guardian of your children's person and property. Disposition by will usually requires a court-supervised probate, which includes evaluating assets, paying creditors' claims, preparing an accounting and an order for distribution. Probate takes eight months or more and may cost thousands of dollars.
To avoid probate, consider a revocable living trust. A well-drafted and properly funded living trust:
* appoints your representative
* informs your family of your wishes and instructions;
* avoids probate;
* may save up to more than a quarter million dollars of estate taxes and probate fees;
* assures continuity of management of your assets; and
* permits prompt, inexpensive transfer of your assets to your beneficiaries.
What documents are best for you? Your attorney and your tax professional are in the best position to help you decide. In any case, don't procrastinate. Do your estate planning while you can. Sudden illness, accidents and earthquakes happen.
A word of caution: Have your will or trust prepared by an attorney experienced in estate planning. The consequences of poor or imprecise drafting are potentially devastating to your loved ones. Even basic estate planning is too important to entrust to an amateur or to "standard" forms that were not created with you, especially, in mind.
Jerry Kessler practices law in the Santa Clarita Valley, emphasizing estate planning & business law. You may call him at (661) 255-1001, for a free half-hour consultation concerning the preparation of a living trust and other estate planning documents.
Copyright © 1998 by Jerry Kessler
"Doing business" involves such diverse activities as advertising, marketing, public relations, sales, administration, management, as well as the performance of services or manufacture of goods.
One area of business administration that is frequently ignored is risk management.
Some risk management programs are obvious, such as the acquisition of casualty and liability insurance and the imposition of safety standards in the workplace.
The preparation and maintenance of business records is critical in business risk-management. We take notes, preserve receipts, letters and phone memos, and keep copies of outgoing correspondence and interoffice memos, not only to forward business but also to protect ourselves from claims of customers, governmental entities and others, and to limit our liabilities.
If your business is a corporation, you must perpetuate the integrity of the corporate form, not only to protect the corporate tax status but also to insulate the shareholders from liability for corporate obligations. A creditor who wants to reach the assets of the corporate investors may try to "pierce the corporate veil" and show that the corporation was just a "shell and a sham." The better the paper trail you maintain, the more you demonstrate your respect for the corporate identity, the more likely you will repel any such attack on the corporation.
The paper trail begins at the time of incorporation: Once the Articles of Incorporation are filed, the corporate Minute Book should reflect the holding of the first meetings of incorporator and directors and shareholders. Stock must be issued. The Notice of Transaction must be filed with the Commissioner of Corporations and the annual Statement by Domestic Stock Corporation with the Secretary of State.
Annual minutes, or certificates of action in lieu of meetings, of directors and shareholders should be prepared and placed in the Minute Book. In addition, minutes should reflect ratification of any special actions of officers or directors.
Be sure your minutes are up to date. If you need assistance, call Jerry Kessler at (661)255-1001.
Copyright © 1991 by Jerry Kessler
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