Top 10 Reasons You Need A Will NOW

When you talk about estate planning, many people incorrectly think it is only for the ultra wealthy. At bare minimum, everyone should have a will. Below are the top 10 reasons you need a will NOW.

1. Decide who gets your assets.
2. Decide who will be guardian to your minor children.
3. Choose your executor that will wind down your estate.
4. Reduce legal costs at probate by spelling out how to administer your estate.
5. Allows for charitable donations.
6. Gives peace of mind to loved ones by making your wishes clear.
7. Specific instructions as to sentimental or valuable personal property.
8. Make sure an unmarried partner is taken care of.
9. Provide for pets.
10. Set funeral wishes.

What is a Living Will?

A living will is a planning decide that can give you peace of mind. It is a written device that explains what types of medical treatment that a person would want at the end of life if they are unable to speak for themselves. This legally binding document that will let medical professionals know as to decisions including whether to be on mechanical ventilation, or to allow for a feeding tube, among many others. Quality of life and cost to family are some of the considerations people think about when making these critical decisions.

Importantly, a living will often override a power of attorney or a health care surrogate’s decisions if done properly. This is one of the reasons why it is so important to hire a professional to create these documents. An attorney can advise you on how these documents interact with each other and ensure these documents do what you want them to. Usually the online forms are not worth the paper they are printed on, due to not being created by attorneys or executed incorrectly. If you have any questions about how to plan your medical decisions, call us today.

Why Contract Law Requires Cosby Walk Free

Even if comedian Bill Cosby is convicted there is a strong chance his conviction will be overturned on appeal. While this author has no opinion as to whether Mr. Cosby did what he is accused of doing, the trial judge made a likely fatal legal error in this case, requiring the charges to be dismissed.

Bill Cosby testified in a civil deposition back in 2006, waiving his constitutional right to remain silent. Why did he do this? Former District Attorney Bruce Castor entered into a permanent non-prosecution agreement with Cosby in 2005 in order to try to help the accuser recover financially. Mr. Castor testified under oath pre-trial that such an agreement existed and was in fact permanent.

Despite this, the judge sided with the government’s argument that there was no agreement in writing and that only a judge can grant prosecution under state statute. However, with few exceptions, a contract does not have to be in writing to be enforceable. This is basic contract law. This law firm recently assisted on a trial where there was a contract dispute despite no written contract. Both the jury and the judge correctly found there was a valid enforceable agreement.

Furthermore state law cannot trump due process considerations. Back in 1972, in Santobello V. New York, the United States Supreme Court reasoned that when a criminal defendant waives constitutional rights in order to come to an agreement with the government, that agreement is enforceable as any other contract would be. They called it the “Constitutional Law of Contracts.” In Santobello, the government reneged on a sentencing promise after the defendant waived his right to a trial and entered a plea. The court reasoned that the same remedies for a broken contract apply.

In Santobello, the defendant was merely allowed to withdraw his plea. However for Cosby it is impossible to turn back the clock and pretend that testimony never occurred since for Cosby the cat is out of the bag and also he already settled that civil case. The only just remedy for a broken contract in this case is specific performance, which means forcing the parties to hold up their side of the bargain– ie enforcing the non-prosecution agreement.

If the Jury comes back not guilty, all of these legal issues will never be fleshed out. Regardless of what the jury decides, contract law requires Mr. Cosby’s case to be dismissed.

Why Your LLC Needs an Operating Agreement

Lots of small businesses decide to become LLCs. When that business has more than one owner, an operating agreement is crucial. Handshake agreements and free forms cannot replace careful planning. Often disagreements can arise between business partners when it is too late to work through them. Here are some issues that can be solved with an operating agreement for an LLC:

  • What percentage of the LLC does each member own?
  • Who will manage the day to day affairs of the LLC?
  • How will profits be distributed?
  • In what proportion will profits be distributed?
  • How can members sell their portion of the LLC?
  • What are the voting rights?
  • Can members compete with the company?

Think about a two person LLC. John and Greg agree to a 50-50 split on everything. They’ve been working together for years. They started the LLC together. Two years later, with the business booming, John decides to sell their share to someone completely unknown to Greg. Without an operating agreement, Greg is powerless to stop John’s sale. Now John is partners with someone he knows nothing about.

While hiring a lawyer may not be on the top on the list for a small business, it really should be. These issues are much more difficult and more expensive to deal with once they become issues. It is like ignoring going to the doctor to treat a small issue and finally going when you need major surgery. Figuring out and planning out these issues are crucial for any small business. That is why your LLC needs an operating agreement.