Law News and Tips
After falling in love with Romeo at a ball, Juliet is sent to her room. From her balcony, she privately (for all of us to hear, of course) declares her love for Romeo, but there’s a problem. He’s from a family that her family hates. There’s a feud going on like the Hatfields and McCoys.
But Juliet (being young and naïve) looks past the name to the person. She says, “What’s in a name? A rose by any other name would smell as sweet!”
I would not hire Juliet is a business consultant. For a business, a name is HUGE! It contains most, if not all, of your goodwill that you spent years building up. A name change can confuse customers and be disastrous.
Even so, I am often surprised by business owners who have not taken the time to protect their business names. It’s not that uncommon for a company to be organized under one name, but to be doing business under an entirely different name. Why? I don’t know. The owner just files the fictitious name registration and operates under a D/B/A designation.
The problem is that a fictitious name registration does not protect your business name. I had a client buying a business that for some reason, operated under 5 or 6 different fictitious names. As a part of the due diligence, we checked to make sure the registrations were valid. We found that one of the names had been taken by a woman in California who had created a Missouri LLC using that name. My client had to give that name up.
The only thing that a fictitious name registration does is it puts the public on notice about who is behind a name if someone decides they want to sue you. It is a consumer protection statute, not a business protection statute.
So how do you protect the name of your business? The simplest way is by forming a corporation or an LLC. The law protects the formal names of business entities.
However, we live in a very mobile society, and the company may engage in business in several states. A company engaged in business in other states may have to register as a “foreign” entity. That’s a pain, but it does protect a company’s name where the company is registered. That doesn’t help in any other states where the company isn’t registered.
It may be that it’s just not the company’s name that is important. It may be the colors (think of McDonald’s golden arches) or the style of the name. In those situations, it might be important to register the name or symbol as a trademark.
When people think of trademarks, they usually think of federal trademarks registered with the US Patent Office. But a business can register just in its home state. However, that will only protect the mark in that state.
It’s more expensive and harder to get, but the federal registration does afford the broadest protection. A federal registration protects the business name and/or Mark in any state where you are conducting business. FYI: if you’re not conducting business in another state or region, the name is not protected there.
Growing up in the 60s, I had sort of an idyllic idea of family life from the TV shows. We watched, for instance, “Leave It To Beaver.” June was the perfect mom who was always impeccably dressed, calm, and beautiful. Ward never seemed to work that hard but was able to provide a nice home, furnishings, and cars. Wally was Beaver’s model brother. And of course, there was Beaver, who was always getting in trouble, but it was always sophomoric hi jinx; nothing really dark and sinister. The sinister dimension was covered by Eddie Haskell, but even he was kind of innocent. All of the problems were relatively minor and resolvable in the course of a single episode.
Almost all of the family shows followed the same pattern: The Andy Griffith Show; The Brady Brunch (I never did watch that show); My Three Sons; and even Bonanza. It was a great formula, but it wasn’t real.
As enjoyable as these shows were, they didn’t then, and they don’t now, present a real picture of actual family life. Families are complicated because there are people involved, and people are complicated. Most all of us want to be “normal,” but I’m not even sure what that means anymore.
From birth, people have different personalities… sometimes drastically so. Childhood traumas (for instance, the death of a close family member) can mold a person in many ways. And then there are the actual psychological and emotional conditions that develop apparently for no reason at all. All of these things make life much more challenging.
Many times in estate planning, we deal with these situations by creating “special needs trusts.” These are trusts that provide the beneficiaries with extra benefits that will jeopardize state aid. But that may not be the total answer.
We have recently been running into a number of families with adult children who lived at home and for one reason or another were unable to live on their own. When mom and dad died, they were still in the house without any real options. Family members had to step in, have a brother or sister declared incompetent, and have them put in some sort of a facility. Hopefully family members will be supportive, but that doesn’t always happen.
There is not a single, simple answer to these kinds of problems. If a disability is too severe, then maybe some sort of group home is necessary. Someone should be ready to jump in and assume guardianship of the person and custodianship of the assets. If the disability is mild, then maybe he or she can live independently with minimal supervision. But all of that needs to be planned out upfront so that the ball doesn’t get dropped.
And then there’s the question of the child’s inheritance. If things are left to him or her outright, will people take advantage of them? If it is left in a trust for their benefit, will that jeopardize their state benefits? If it is left in a special needs trust, will that be too restrictive if they don’t receive state benefits? If you leave it to another family member, will it actually be used for the benefit of the intended child?
It’s probably a huge understatement to say that Cornelius Vanderbilt was an ambitious businessman. He grew up in a struggling family. He quit school at 11 to work for his father’s ferry business in the New York Harbor. At 16, he started his own business, ferrying passengers between New York and Long Island. He built that small business into a major steamboat line, including ocean liners. After the Civil War, he switched to railroads and built that business into an empire.
Vanderbilt was also reportedly an unpleasant man. He married a relative (a common practice in those days), and they had 13 kids. Because of business, Cornelius was often away from home. His wife and children lived in a large house on Staten Island. He charged them rent. She had to take in borders to pay rent and buy food and clothing for the children. He called his “favorite” son, William (“Billy”), a “blockhead” and a “blatherskite” (someone who talked a lot of nonsense). He was a fierce business competitor, running other businesses into the ground on occasion.
When he died, he was reportedly worth $100 million, which would be worth more than $227 billion in today’s dollars. He didn’t trust his kids with his financial empire, but he was stuck with Billy. He left Billy, 95% of his estate. One of his other sons he left $5 million, while two other sons received $2 million apiece. His nine daughters received amounts ranging from $250,000 to $500,000 (about $350 million to $700 million in today’s dollars). He considered one son irresponsible, so he just got a trust fund worth about $200,000 (in today’s dollars, over $250 million). His surviving wife (his second) also received a sizable inheritance, plus their house, plus a large block of railroad stock.
It’s pretty clear to see, even though everyone received sizeable amounts, this was not an even distribution. Needless to say, litigation followed. But Billy prevailed. Billy then proceeded to pay off all his siblings’ legal fees and make substantial gifts to them. What a guy!
It turns out that Cornelius’s choice of Billy was a good one. Under his stewardship, the family empire continued to grow. Within 6 years, he had doubled it to $200 million. In addition, Billy was a good philanthropist. He made sizable gifts to the YMCA, the Metropolitan Opera, and Columbia University. He also further endowed Vanderbilt University, which his father originally started. So for all involved, Billy was a good choice.
So what is the point of this story? Especially in family-held businesses, equal is not always the best policy. For instance, one child may be actively involved in the business, and the others know little or nothing about it. If everyone received an equal share, then that would be a catastrophe for the family and the business.
Most parents who start a business want it to succeed down the generations. To do that, they need to give control and most of the profits to the person running the business. He or she needs to have adequate incentives to put the sweat and tears into the business to make it work, just like the parents did. That means that the other family members need to get something of equivalent value, typically cash. You can do that with life insurance if the parents are young enough, or you can give the operating child an option to buy the business over time on favorable terms.
One of my favorite cartoon characters is Yogi Bear. For those of you who don’t know Yogi, he lived in Jellystone Park. He was always trying to outsmart “Mr. Ranger” with some elaborate scheme to steal “pic-a-nic” baskets. When he hatched a plan, he would always proclaim that he was “smarter than the average bear!” His schemes would inevitably fail, and his side-kick, Boo-Boo, would come to the rescue and make everything alright. Yogi never seemed to have realized that he was the problem and that Boo-Boo was the solution.
I think that all of us suffer more or less from what I call the “Yogi Bear Syndrome.” We all think that we are “smarter than the average bear.” It’s kind of like Garrison Keillor’s Lake Wobegon where “all of the children are above average.” We can’t all be above average in everything – maybe in some things, but not in everything.
For instance, from the leaks I have caused around my house, I have to admit that I am a below average plumber. I call the professional now. Since electricity can kill you, I don’t do anything with electricity more than just replace bulbs and receptacles. With the computerization of cars, they are a complete mystery to me. To quote Dirty Harry, “A man’s gotta know his limitations.”
So what does all of this have to do with the law? With the advent of the Internet and websites like Rocket Lawyer and Legal Zoom, more and more people are doing their own legal work. You can go on line and find a resource for a will, a trust, and any number of corporate documents. You can form your own corporation or limited liability company by just filling in some blanks on a form on the Secretary of State’s website. A lot of times, people don’t understand that what they do on the Internet is just the first step. For instance, if all you do is file LLC articles of organization with the Secretary of State, you have not “organized” the LLC. I don’t think an LLC without a properly prepared operating agreement is going to protect the members’ assets. As a trust officer once said, home-made plans are “grocery futures for attorneys.” Lots of lawsuits to come.
Believe it or not, lawyers probably know something that you don’t know. After excelling in college, they went to law school to learn the basics of the law. After practicing several years, they have some practical experience that non-lawyers don’t have. The knowledge and experience does in fact have value. And that value can be invaluable to you.
As much as as we hate to admit it, we are probably not smarter than the average bear in everything. We all need to recognize our limitations.
In my first two articles on title insurance, I talked about the standard exceptions to a title insurance commitment which will show up on your final policy. These can usually be removed or endorsed over as I discussed. You may need to get an affidavit from the owner and a “stake-in-the-ground” survey to clean those up, but it can be done.
In this third and final article on title insurance, I want to turn to the “Special Exceptions.” The first one is usually for taxes and special assessments. This exception has to do with unpaid taxes and assessments for extraordinary repairs or renovations. If you ask, the title company will usually endorse over those exceptions by saying, “None due and owing.” That is pretty simple.
Next come the exceptions to which you need to pay particular attention. The title commitment might list easements. Assuming you got the stake-in-the-ground survey, you need to compare the exceptions in the title commitment to the easements shown on the survey. You want to make sure that the easements are not going to create a problem for your use of the property. One time when a church was getting a loan to refurbish its sanctuary, we found a sewer easement running right down the center aisle. Not good.
You also want to look at any mortgages or other liens against the property. When you buy a house, you would assume that all of those would get removed. However, multiple liens can just cause administrative issues, and mortgage companies have been known to miss things. You just need to make sure that the title company is addressing all the liens on the property to get them off.
Your title commitment may also include an exception for the subdivision indentures. I would suggest that you request a copy of the indentures and spend some time reading them carefully. The indentures might prohibit that pool you were planning to put in, or limit the height of the privacy fence you want to put up to block your neighbor’s eyes. It’s better to know the issues before you move in.
These are some of the more common items found in the “Special Exceptions” of a title commitment, but there can be many and varied others. You need to pay particular attention to them. Fortunately, your mortgage company will also be looking at them. As I mentioned, they make mistakes. In addition, they may not care about things like use restrictions. I would not rely exclusively on them. Two sets of eyes are better than one. If something is overlooked, your title policy may not be worth the paper it’s written on, even though you are probably paying quite a bit of money for it.
Yesterday was Bastille Day. Many people say that this is the French “Fourth of July.” I guess you could look at it that way, but the French Revolution was not much like the American Revolution.
The Bastille was a French prison. Many, but by no means even a majority, of the prisoners were political prisoners. The French peasantry stormed the prison, set all the prisoners free, and started a very dark period of French history.
First, the French monarchy was abolished. Power was shifted to its somewhat democratic National Assembly. Then, based on ideas of “rationalism,” the clergy were all required to swear allegiance to the government. They became government employees, and all Church property was confiscated. “We’re from the government, and we’re here to help you.”
Then began the Reign of Terror. People who were deemed to be “enemies of the revolution” were executed. Tens of thousands were killed, many by the “National Razor,” the guillotine. The clergy who refused to swear an oath to the Revolution were many times put on barges in French harbors where they were left to die. A play that was recently produced dealt with the Carmelite nuns of Compeigne who were executed by the guillotine for their refusal to swear the oath. Political intrigue was rampant, so most people just hoped they didn’t get noticed.
One of the leaders during the Reign of Terror was a lawyer (wouldn’t you know it?) by the name of Maximilian Robespierre. Robespierre was brilliant, dedicated to the “cause,” and ruthless. But the revolution even caught up with him, and within two years, he himself was put to death also by the guillotine.
Both civil and international wars appear to have been the result of the Revolution. In this environment, it seems only natural that a brilliant general would rise in leadership. His name was Napoleon, and he took over as the “Emperor.”
So it looks as if the French Revolution to overthrow the monarchy eventually led to a new monarchy. It should be noted that after the defeat of Napoleon at Waterloo, a French Republic was established. But it was a long time coming.
As you can see, the French Revolution was fundamentally different from the American Revolution. The one similarity was that they both threw off the yoke of a monarchy. But whereas the American Revolution proceeded without bloodshed to the formation of a national, republican government, the French Revolution initially resulted in a brutal and repressive dictatorship of terror. The freedoms of religion, speech, press, and even assembly were greatly curtailed either officially or through the Terror. Then came the empire of Napoleon, and that is another story.
I know this is kind of dark, but I think it is good to reflect on how fortunate we are to live in America which is the result of a very unique revolution, one that promoted freedom rather than suppressing it.
But it’s also important to note that there are no guarantees of our freedoms. Vigilance against encroachment on our freedoms by the government is critical and really constant.
I’m just glad I didn’t live in France at that time. What about you?
I feel compelled to write an article about the Supreme Court’s recent decision on same-sex “marriage”,
Obergefell v. Hodges.
It is not because I believe the decision was wrong for moral reasons. The Court has made and will continue to make bad decisions. See, Dred Scott v. Sandford.
It is not because the opinion (which I’ve admittedly only read once very quickly) reads more like a college sociology paper than a legal opinion. Legal opinions start by analyzing prior law and reach a conclusion. College sociology papers start with a stated position, and then seek to justify it. The Supreme Court’s opinion reads a lot like the latter.
Rather, I feel compelled to write about the decision’s basic holding and the threat it poses to many Catholics and other Christians. What the Court holds is that people of the same sex have a “constitutional right” to marry. The reverse of this statement is that it is unconstitutional to deny a person the right to marry someone of the same sex. This a sea change.
When something is held to be unconstitutional, there are consequences. Unconstitutional actions can result in fines, loss of government benefits or privileges, or even imprisonment. For instance, statements against a person’s “constitutional rights” can be treated as “hate speech.”
One of the symbols used to promote what is called “marriage equality” (a masterful misnomer) is an equal sign (“=”). If a person wants to exercise their right to free speech, an unequal sign (“≠”) on a bumper sticker could be considered hate speech. Arguably, the owner of the car could be prosecuted.
To some, this may seem far-fetched, but consider the case of Aaron and Melissa Klein, the Oregon bakery owners who were fined $135,000 for refusing to bake a “wedding” cake for a gay couple. That seems pretty extreme for someone just trying to live out their faith. And I don’t think that will be the last of these types of attacks.
Although the case is not currently in the courts to my knowledge, I think it is not too hard to imagine a lawsuit challenging the tax exemption of the Catholic Church (or any other faithful Christian denomination or congregation) for its refusal to conduct same-sex “marriages.” In 1983, Bob Jones University lost its tax-exempt status due to a policy prohibiting interracial marriage. I am not in any way condoning that policy, but the reasoning of the IRS should concern us. The IRS argued that the privilege of a tax exemption should not be extended to an organization violating the constitutional rights of a group of people. I could easily see this principle being used against the Catholic Church (and others) to end its tax exemption, the value of which substantially benefits the poor.
In order to avoid this dilemma, there has been some discussion among the US Catholic bishops regarding some changes in how Catholics would get married. The Church would follow the Mexican model. In Mexico the state issues a marriage license while the Church simply blesses the marriage. This may only be a technical change (you get your marriage license before you go to church), but it would be significant.
In fairness it should be noted that Justice Kennedy included in the majority opinion a statement that the First Amendment will protect “religious organizations and persons” if they teach that same-sex “marriages” are contrary to God’s will. However, in oral argument when Justice Alito asked whether a ruling in favor of the plaintiffs in the case would pose a threat to the exempt status of religious schools and universities opposed to same-sex marriage, the Solicitor General of the United States ominously said that is “certainly going to be an issue.”
Justice Kennedy’s paragraph, although nicely worded, is really pretty meaningless. It has nothing to do with the facts that were before the Court. This is what is referred to as “dicta,” which is just a judge talking. It is not controlling at all. It is just Justice Kennedy’s random thoughts.
It seems to me that what the Court has done is it has set up an unavoidable conflict between First Amendment Rights and these newly minted “rights.” So I see fertile ground for lawyers on both sides of the issue. This will be great for legal business, but not necessarily a good use of resources. However, given the way the Court decided the case, I don’t see how this is avoidable.
I usually try to convince people that they need to consider a trust. With a trust, you can avoid probate which saves time and money and also maintains your privacy.
However, there are a lot of times where people can’t justify a trust. In those circumstances, at least having a will is important. Here are 10 reasons to at least have a will:
- With the will you could provide for the orderly distribution of your estate to your loved ones.
- With a will, you can avoid ruining your young children’s lives by giving them large sums of money when they aren’t able to handle it.
- With a will, you can avoid unnecessary costs, such as fiduciary bonding.
- With a will, you can avoid unnecessary court hearings by giving a power of sale.
- With a will, you can simplify probate by permitting independent administration.
- With a will, you can avoid court appointed guardians by naming your own guardians for your minor children.
- With a will, you can name the person you want to handle things for you when you’re gone (your personal representative).
- With a will, you can set up trusts for your children to protect the assets.
- With a will, you can provide for the payment of your funeral and final medical expenses.
- With a will, you can reduce the risk of lawsuits.
In his novel Bleak House, Charles Dickens wrote about how people let their lives be ruled by a case in probate court. As with all of Dickens’ novels, there is an extensive list of characters. In, Bleak House, these characters live their lives based on the anticipated outcome of the case. At the risk of ruining the book for you, I will say that the end result was not good, except maybe for the lawyers.
When I was young and naïve, I thought probate was established to protect the widows and orphans from the predatory creditors. However, the practice of law has disabused me of that silly notion. Probate is there to make sure your bills get paid. You can’t escape paying your bills just by dying.
It’s not all gloom and doom, though. Not all of your assets will be subject to probate. Jointly held assets can escape probate. Bank accounts with a “pay-on-death” clause can escape probate. Cars, boats, trailers, and other registered assets that have “transfer-on-death” beneficiary designations can escape probate. Real estate can escape probate with a beneficiary deed. And life insurance and retirement accounts can escape probate by proper beneficiary designations. These are all referred to as “non-probate” transfers”.
The success of these strategies, however, doesn’t depend on whether you do everything right and setting them up. You can dot all of the i’s and cross all of the t’s, but still have problems.
We don’t know what tomorrow will bring, much less what will happen 10 or 20 years from now. Your joint owner might be fine today, but what happens if he or she has a stroke or dies. When those things happen, people often forget to change their plans. We seem to think that once we’ve done something, it’s done. Out of sight, out of mind.
With joint ownership, on the death of joint owner, the joint property automatically belongs to the surviving joint owner. But if the other joint owner has a stroke or grows old and incompetent, the joint property is frozen, unless you open a custodianship for them in probate court.
Joint ownership also raises issues when there is a remarriage. If the newlyweds put their property in joint names, on the death of the first of them to die, the decedent’s children typically get left in the cold. The surviving spouses, children get a windfall.
Even during the joint owners’ lives, there can be problems. In the case of a joint bank account, the joint assets can be taken in bankruptcy or for the collection of a debt of one of the joint owners. In the case of joint assets other than bank accounts, both joint owners have to agree to do anything with those assets. In effect, the assets are frozen.
In the case of a pay-on-death account or a transfer-on-death asset, you can name alternative beneficiaries, but most people don’t. If you just list your children as beneficiaries, on the death of one of the named beneficiaries, the other surviving named beneficiaries typically get the account or property.
The law does allow you to write creative beneficiary designations that can take future events into account, but this can be problematic. I do this kind of thing every day, but normal people don’t. It’s hard to think through all of the possibilities.
In addition, there are the bank rules. Banks don’t want you to be too creative because it can get them into trouble. They typically only allow clear, straightforward, limited beneficiary designations on accounts. This doesn’t allow for much planning.
These kinds of non-probate transfers can work in limited circumstances. However, it is my experience that those situations are few and far between. The best way to address the uncertainties of life in your estate plan is either through a will (although this guarantees probate) or through a trust.
If you think about it, life in the American colonies in the 1700s, was not that bad. For comparison, read almost any novel by Charles Dickens about what life was like in London. Life in the colonies wasn’t necessarily easy, but there was plenty of land and work for the industrious.
In addition, taxes were actually lower in the colonies than they were in England. However, administering the colonies was expensive, so Parliament wanted to raise taxes to cover those costs. No one really talked to the colonists about this since the colonists did not have a representative in Parliament. And that was the rub. “No taxation without representation” was the colonial clarion call.
The British in 1767 passed the “Townshend Acts” to tax tea, glass, paint, and other things. To enforce it, they sent troops. A snowball incident in Boston led to the Boston massacre in 1770.
In May 1773, Britain passed the “Tea Act” again to raise revenue. The colonists objected, and the Boston Tea Party ensued in December.
King George had had enough. In 1774, the royal governor of Virginia dissolved their colonial legislature, the House of Burgesses, and Parliament terminated, Massachusetts’ right to self-government. In reaction, the colonists to disrupted all court proceedings held by the British government in Massachusetts.
The colonists began to arm themselves and stockpile ammunition. Understandably, the King objected. He sent troops to raid the storehouses at Concord, but on the way, there was the brief skirmish at Lexington. This was an instance where the British won the battle, but lost the war. On the march back to Boston, the colonists hid in the trees and shot at the British soldiers marching wide open on the road.
And then the colonists under George Washington drove the British from Boston. The British then fled to Nova Scotia.
With all of this in the background, the Continental Congress was meeting in Philadelphia starting in 1774. It is important to note that this “Congress” was completely illegal and officially unauthorized by the British government. Everyone there was a rebel and a traitor liable to be hung. But they were sent there by the legislatures of the colonies who were generally elected by the citizens. So they were unofficially official, although traitors.
In June 1776, five men were appointed to write a declaration of independence: Thomas Jefferson, John Adams, Ben Franklin, Roger Sherman, and Robert Livingston. The committee assigned Jefferson the task of writing the first draft. It’s important to know how to delegate.
The Declaration of Independence was not necessarily an original document. Jefferson apparently borrowed heavily from George Mason’s draft of the, Virginia Declaration of Rights. However, Jefferson could turn a phrase. But he was sort of a prima donna. He was upset by many of the changes that were forced upon them by the committee and by the Congress.
The Continental Congress voted for independence on July 2, 1776. The Declaration of Independence was approved by 12 of the 13 colonies (New York did not approve for several days) on July 4 and was sent off to the printer. It wasn’t signed by all the delegates until August 2. But that’s how government works.
Things did not go so well for the 56 signers of the Declaration. Five were captured and tortured to death by the British. Nine died in battles or due to the hardships of war. The homes of 12 were ransacked and burned. Although before they signed the Declaration, all of them had been prosperous, prominent citizens, many died impoverished. And their wives and children suffered greatly as well.
The colonists could have lived fairly well under British control, but they found their lack of political power to be intolerable. They were subject to the whims of a distant, but powerful government that could oppress them at any time.
Although independence meant hardship, and for some death, it was a price they thought was worth paying. To quote from the last line of the Declaration, the signers “mutually pledge[d] to each other our Lives, our Fortunes, and our sacred Honor” for the support of the Declaration. As mentioned, most of them paid that pledge. We should keep this in mind as we celebrate. Happy Fourth of July!