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Rhode Island Legal Blog

Wednesday, August 30, 2017

Role of the Successor Trustee

When creating a trust, it is common practice that the person doing the estate planning will name themselves as trustee and will appoint a successor trustee to handle matters once they pass on.  If you have been named successor trustee for a person that has died, it is important that you hire a wills, trusts and estates attorney to assist you in carrying out your duties. Although the attorney that originally created the estate plan would most likely be more familiar with the situation, you are not legally required to hire that same attorney. You can hire any attorney that you please in order to determine what your obligations are.


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Thursday, August 17, 2017

What is a mechanic's lien?

A mechanic's lien is not just for mechanics.  It is a legal tool used to protect workers and suppliers who contribute the labor and materials used to improve a property, real or personal.  Workers and suppliers can file a mechanic's lien if they do not get paid and may be able to force the sale of the property to receive payment. 


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Wednesday, August 2, 2017

What happens if you are bequeathed a car that no longer exists? The ABCs of Ademption

If you’re involved in settling a loved one’s estate, you may come across the curious word “ademption”. Ademption describes what happens when something designated in a will no longer exists. Say, for example, your uncle dies and leaves for you in his will an old-school Harley Davidson motorcycle. However, if your uncle crashed the motorcycle two years before the will was probated and there’s nothing to leave, then that gift would be considered adeemed and you would receive nothing. This is why certain wills include language that says, “if owned by me at my death.”


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Wednesday, July 26, 2017

How’s your Lawyer’s Math?

Perhaps math isn’t every lawyer’s strong suit; although some lawyers prefer to stay away from fractions and decimals, it doesn’t mean they aren’t able to do math when needed to help their clients.


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Tuesday, July 11, 2017

Glossary of Estate Planning Terms

Will - a written document specifying a person’s wishes concerning his or her property distribution upon his or her death.

In order to be enforced by a court of law, a will must be signed in accordance with the applicable wills act.


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Monday, July 3, 2017

How Title Insurance Protects Homebuyers

Buying a home is the single largest investment that many individuals will make which makes it essential for potential homeowners to protect their interests. In particular, it is crucial to ensure that the seller can transfer free and clear ownership of the property by obtaining title insurance.


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Monday, June 26, 2017

Entrepreneurial Immigrants: Building the American Dream

The American Dream of starting your own business and pulling yourself up by your bootstraps is alive and well. In fact, it is the creation and growth of small businesses that is instrumental in helping America recover from the Great Recession. What many do not realize is that a significant percentage of new business ventures in this country are started by immigrants.  Despite their business startup prowess, Immigrants face a multitude of legal issues as they start new ventures in the United States.

If you are an immigrant and are considering starting a business in your new homeland, there may be a number obstacles ahead of you. At the top of that list is obviously obtaining legal status for yourself, your family, and your employees. America welcomes innovators and business creators, but obtaining legal status is never easy. Thankfully, there are several paths to legal status available to entrepreneurs. Working with an experienced immigration attorney is the best way to figure out which options will work for you.

Providing employment for family members and friends is one of the rewarding aspects of being a small business owner, but immigrants must strictly adhere to all laws governing the employment of non-citizens. If you are caught violating this law you could lose your business and put your legal status in jeopardy.

Immigrant entrepreneurs may also face discrimination. If you think that a lender, supplier, or other business-related contact has treated you unfairly because of your nationality, and your business suffered, you should contact an attorney. An attorney can help you seek compensation if appropriate, and can help you negotiate and enforce future contracts.

There are also unique opportunities in the business creation world for immigrants.  As newcomers to an area, immigrants have the ability to see gaps in the market that others may not notice. A business attorney can help you take your vision and make it a reality by helping you through the formation and permitting processes.  The government also has several special programs that are designed to help minority and woman-owned businesses flourish. Many immigrant business owners are able to take advantage of these programs.

Starting a business is challenging regardless of whether you’re an immigrant.  The pride of owning your own business, seeing it succeed and living the American Dream more than makes up for the trials and tribulations that founders encounter.


Monday, June 19, 2017

How to Leave Gifts to Step-Children

Today, blended families have become increasingly common, and many individuals have step-children, that is, children of a spouse or partner. In situations where step-children have not been legally adopted, however, they do not have a legal right to an inheritance from a step-parent. For those who wish to leave step-children part of their estate , it is necessary to include them in an estate plan.

The easiest way to leave gifts to step-children is to name them in a will. As with any other gift, they can be given a percentage of the estate, or specific gifts. If there are other children involved, it is important to avoid confusion by naming each child and step-child by using their individual names, rather than terms such as "descendants," "heirs," or "children."

There are also a number of estate planning tools that can be utilized to include step-children in an inheritance. If the objective is to avoid probate, for example, a revocable living trust can be established in which a step-child is named as a beneficiary. Moreover, it may be necessary to provide for a disabled step-child who is eligible for public benefits by establishing a special needs trust. Lastly, a step-child can also be named as a beneficiary in a life insurance policy or a pay-on-death financial account.

While there is no legal obligation to leave step-children an inheritance, it may be the best choice for those who have a close relationship, or played a significant role, in raising them. However, this will reduce the amount of assets available to other children and beneficiaries. Because blended family relationships are complex and subject to emotional challenges, it is important to explain these decisions with all family members.

By engaging in an open and honest dialogue, you can minimize the potential for strife and the possibility of a will contest. In particular, it is important to clarify why you gave each recipient a gift, the selection of your executor, and your thoughts about the family.  Lastly, you are well advised to engage the services of an estate planning attorney who can help ensure your wishes regarding step-children are carried out.


Monday, June 12, 2017

Federal Trademark Registration

There are many advantages to registering a mark with the United States Patent and Trademark Office (USPTO).  A licensed trademark can provide “constructive notice” to customers on a national basis.  Moreover, if there is a lawsuit, a valid registration can be used to substantiate or prove ownership of the mark. 

A trademark is used to inform customers of the source of the items that are being sold. The “source” of the goods or services denotes the company or business that is associated— generally the seller or manufacturer.  Trademarks are implemented and enforced to prevent confusion among customers in intrastate and interstate commerce.  For example, if two businesses sell the same type of product, one brand may sell better quality; the other may sell knockoff goods.  The trademark associated with either brand will indicate and alert the customers to the type of quality and goodwill of the particular company. Both factors play a substantial role in a company’s sales and revenue production.   

To prevent conflict, it is essential to conduct a trademark search prior to filing an application. Without  a search, there is a risk of great expense in the future.  For example, if another business in the same industry files a lawsuit claiming a similar trademark, and that business wins the case, the defendant may be obligated to alter any merchandise that lists the prohibited trademark.  When all is said and done,  sued company may not survive. 

Trademark searches can be very complex because they involve a thorough analysis of registrations under both federal and state law. It is possible for an entity to have legal rights to a mark, even if it is not registered.  These are typically called “common law” unregistered marks.  Therefore, a search will often surpass the information listed on the USPTO’S “Trademark Electronic Search System” (TESS) database. 

On the other hand, if goods or services are being offered by a third party under a similar mark, but the goods or services are very different and the industries are separate, then two similar marks may be allowed to exist simultaneously.  Furthermore, if a trademark application has been denied, an attorney can initiate an appeals process with the administrative board.  The “Trademark Trial and Appeal Board” (TTAB) is charged with the task of reviewing the case.  

Even if a trademark is granted, it is often necessary for an attorney to enforce the mark against others who attempt to usurp the mark.  For example, an attorney can draft and send a “cease and desist” letter to any entity using the contested trademark for its business.  If the entity does not stop using the mark, a lawsuit can be filed. In dealing with trademark issues, it is important to consult with a competent business attorney to prevent future litigation and unnecessary expenses, and help ensure future prosperity. 


Monday, May 29, 2017

Obtaining Venture Capital

It is no secret that it takes money to make money.  Not all business owners have the money they need to get their ventures off the ground and therefore many require financing. 

Venture capital is a type of financing that is different from the financial support a business would customarily obtain from other lenders.  Venture capital is usually reserved for businesses that have high growth potential but also involve high risk.  Most of the time, these investments are unsecured and are in exchange for a stake in the business or a management role.  Venture capitalists often want to be involved in the operational matters relating to the business and this type of relationship might not be right for all organizations.  In many instances, small start-ups and those involved in the technology field obtain venture capital to get their businesses up and running.

While venture capital is not as common as traditional forms of financing, it can certainly give a business the boost it needs to become successful.  This type of financing is not as easily obtained as other forms and a business interested in it must have the right approach.  The business must be based on a unique idea that is not available in the current market.  Investors want to know that there is a need for the product and that there will be demand.

Business owners seeking venture capital must also have a comprehensive business plan that provides as much detail as possible.  The business plan should include industry considerations, factors that can propel the business or that may become an obstacle, and of course, financial information.  The financial overview should include information from the past (if applicable), present and future projections.  Venture capitalists want to have confidence that the business will be successful and nothing says that like past performance.  If people have already paid for the product, investors want to know that.  Therefore, this information should be included and highlighted in the financial portion of the business plan.

Those seeking venture capital should also use all of the avenues available to them to build a network including face to face interactions and online communities.  For many investors, the team that is proposing the investment is of the utmost importance.  Business owners should seek to surround themselves with dedicated individuals that work well together and have the ability to evolve or adapt as the company grows if they want to attract venture capital.

If you are seeking venture capital or are in need of an attorney to negotiate or handle the formalities involved in an investment, contact us today.


Monday, May 15, 2017

Top Five Estate Planning Mistakes

In spite of the vast amount of financial information that is currently available in the media and via the internet, many people either do not understand estate planning or underestimate its importance. Here's a look at the top five estate planning mistakes that need to be avoided.

1. Not Having an Estate Plan

The most common mistake is not having an estate plan, particularly not creating a will - as many as 64 percent of Americans don't have a will. This basic estate planning tool establishes how an individual's assets will be distributed upon death, and who will receive them. A will is especially important for parents with minor children in that it allows a guardian to be named to care for them if both parents were to die unexpectedly. Without a will, the courts will make decisions according to the state's probate laws, which may not agree with a person's wishes.

2. Failing to Update a Will

For those who have a will in place, a common mistake is to tuck it away in a drawer and be done with it. Creating a will is not a "once and done" matter as it needs to updated periodically, however. There are changes that occur during a person's lifetime, such as buying a home, getting married, having children, getting divorced - and remarried, that need to be accurately reflected in an updated will. Depending on the circumstances, a will should be reviewed every two years.

3. Not Planning for Disability

While no one likes to think about becoming ill or getting injured, an unexpected long-term disability can have devastating consequences on an individual's financial and personal affairs. It is essential to create a durable power of attorney to designate an individual to manage your finances if you are unable to do so. In addition, a power of attorney for healthcare  - or healthcare proxy, allows you to name a trusted relative or friend to make decisions about the type of care you prefer to receive when you cannot speak for yourself.

4. Naming Incapable Heirs

People often take for granted that their loved ones are capable of managing an inheritance. There are cases, however, when a beneficiary may not understand financial matters or be irresponsible with money. In these situations, a will can appoint an professional to supervise these assets, or in the alternative a "spendthrift trust" can be put in place.

5. Choosing the Wrong Executor

Many individuals designate a close relative or trusted friend to act as executor, but fail to consider whether he or she has the capacity and integrity to take on this role. By choosing the wrong executor, your will could be contested, leading to unnecessary delays, costs and lingering acrimony among surviving family members.

The Takeaway

In the end, estate planning is really about getting your affairs in order. By engaging the services of an experienced trusts and estates attorney, you can avoid these common mistakes, protect your assets and provide for your loved ones.

 


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