New Year’s Resolution #1: Make Sure Your Estate Plan Is In Order

estate planningOne of the most important resolutions you can make is to make sure your estate plan is in order.  This means more than just having a will. If you have minor children, you need to plan for who will manage their inheritance for them. You also need to prepare for how your finances will be managed when you are unable to take care of them yourself as well as arrange for health care decisions to be made on your behalf if it becomes necessary.

The only way to be sure your wishes are followed if you become incapacitated or die is to have proper documents in place when you are still able to make your own decisions. If you die without planning ahead for how you want your assets to be distributed, they will be divided according to state law. Your family and heirs will have no say in what happens. There are a few documents you most certainly should have in place prior to becoming incapacitated or prior to your death.

Importance of Having a Will

Drafting your will gives you the opportunity to specifically plan for how you want your personal and real property to be distributed after your death. You name someone you trust as executor, or administrator, who makes sure your wishes as you expressed them in your will are followed.  In order to be a valid will, it must meet Georgia rules including that it must be in writing, signed by the testator, who is the person writing the will, and be signed by the appropriate number of witnesses.

If you die intestate, which is without a will, Georgia law establishes the order upon which your heirs will receive your assets. If you are married without children, your widow will inherit all of your assets. If you do have children, your wife and children will each share equally in the estate as long as your widow receives no less than one-third of your entire estate. The law provides for various contingencies depending on your family members who are alive and available to share in the estate.

Providing for Minor Children by way of a Testamentary Trust

You may leave any possession to your minor children by way of a testamentary trust included as part of your will. This means you name someone you trust to manage the assets until your children reach the age of 18. You can also state a different age upon which you want your children to receive their inheritance. Once again, preparation of this document gives you the opportunity to articulate your wishes which the trusted person must carry out.

Other Important Documents You Should Have Up to Date

Two documents which are important to have ready in case you are unable to manage our own health care decisions or financial affairs include:

  1. A Durable Financial Power of Attorney: In this document, you name someone you trust enough to act as your agent and handle your finances if you become ill or incapacitated. This person will pay your bills, collect and deposit funds which are due you, make investments and make any other financial decisions that need to be made. You decide when it takes effect, which can be on the day you sign it, upon a date certain that you designate or when you become incapacitated. You also designate when you want the power to end.
  2. A Healthcare Power of Attorney: You name an agent who will make health care decisions for you when you are unable to make them for yourself. Your agent will be able to make decisions about whether  you should go to a nursing home, be admitted to hospice care, donate organs or even allow an autopsy.

For either power of attorney, you may change your agent and name an alternate agent in case the person you initially want to act for you is unable to or refuses to act on your behalf.

Five Common Mistakes Made by Startups

picjumbo.com_HNCK3991You may dream of starting your own business, but are hesitant due to the daunting statistics showing that only 50 percent of startups survive five years. Instead of giving up your dream, find ways to make it work. Many entrepreneurs lose their business because of errors they make that put them on the road to failure. Increase your chances of success by avoiding these most common mistakes.

Failure to Choose the Appropriate Business Structure

One major factor that may determine whether your business is a success is how you decide to structure it. You want to be sure you use a business format that will protect your personal assets from business liabilities and debts. Depending on how you structure your business will also influence your ability to obtain funding, the amount of taxes you pay and how your records must be kept. Some possibilities are:

  • Sole proprietor: You are the sole owner of the business.
  • Partnership: You and one or more partners own the business together.
  • Corporation: There are several different ways to structure your business as a corporation.
  • Limited Liability Company: This is a hybrid between a partnership and corporation and works well for many types of businesses.

A business law attorney will evaluate your situation and advise you on the ideal business structure that will best meet your needs.

Failure to Put Contracts in Writing

Businesses run on contracts.There are contracts between business partners, contracts with vendors, leasing contracts with property owners and employment contracts, just to name a few. One big mistake people often make is entering into a partnership on a handshake. You may have been best friends since fifth grade and rooted for the same sports teams and read the same books. That does not mean you will agree on how to conduct business.

You need a partnership agreement that will specifically articulate how the business will be run and how decisions will be made. Define the policies, business hours and what will happen if one partner dies, wants to leave the business or bring in another partner. Planning for all these contingencies and reducing the expectations to a written agreement will preserve not only the business, but also the friendship.

Failure to Delegate

Running a business is more than a full-time job. It can be overwhelming if you try to do everything yourself. Those who have been successful advise those who are just starting to remember that they cannot do everything themselves. One successful business owner reports that he almost lost his business due to his failure to delegate.  Fortunately, he was able to turn it around around when he realized that he “did not need to know everything” and could delegate certain tasks to others so that he had more time to do the parts of the business at which he was more competent.

Failure to Adequately Research the Need for the Product or Service

You may think your idea is wonderful. You are absolutely certain there is a need for your product or service and that people will line up to purchase whatever it is you are selling. Hopefully, you are right. But, if you create a service or product for which there is no market need, your business will fail. You need to do market research to evaluate whether there is really a need that your business can fill.

In order to have the best chance of success, contact this office for guidance. As an experienced business attorney, I can assist you with determining the best structure for your business, draft necessary contracts and provide services that will help prevent future litigation.

The Georgia Family Violence Act

domestic violence

The Georgia Family Violence Act is designed to protect family and household members from the violent acts of another family or household member. Family has a broad definition under the statute. Specific people who fall under this statute include:

 

  • Current and former spouses.
  • Parents who have a child in common whether or not the two parents were ever married or ever shared a household.
  • Parents and their children.
  • Stepparents and stepchildren.
  • Foster parents and foster children.
  • People who are currently sharing the same household or who shared the same household in the past.

These people are protected from harm that occurs to them due to any felony committed by the violent family or household member. According to the specific language of the statute,  violent acts that will result in increased penalties if directed toward a family or household member include:

  • All degrees of assault.
  • All degrees of battery.
  • Stalking.
  • Criminal damage to property.
  • Unlawful restraint.
  • Criminal trespass.

The process of protection from violence begins when one party petitions the court and asks for an order of protection from violent acts of the other party. The court may make a temporary order of protection without holding hearing. After a hearing is held, the temporary order will either be vacated or turned into a permanent order or an order lasting for a certain number of years.

Types of Protective Orders That are Available

In response to the petition for a protective order, the court may make any order that will serve the purpose of stopping the violence and protecting the victim from any future harm.  Some of the most common orders are:

  • Directing the abuser to stay a certain distance away from the petitioner and have no contact at all.
  • Ordering the abuser to stay away from the residence and granting sole possession of it to the abuse victim.
  • Requiring the abusing person to provide housing for the victim and the children.
  • Awarding temporary custody of the minor children to the non-abusive parent.
  • Providing a legal way for the victim to get any personal property.
  • Ordering the abuser to refrain from harassing or interfering with the victim.
  • Deciding which party will have to pay court costs and legal fees.
  • Ordering any party who is involved to undergo psychiatric testing or counseling in an effort to prevent any further family violence.

A court’s order of protection will last for one year. The order may be extended or made a permanent court order as the circumstances require.

How Does an Order of Protection Actually “Protect” Victims?

When a person violates a protective order, he or she may be immediately arrested and charged with contempt of court as well as with the crime of violating a protective order. A sentence of up to 12 months in jail and/or a fine up to $1,000 may be imposed.

Although there is really nothing about a protective order that will stop a determined abuser from stalking or harassing. It does compel law enforcement to respond and arrest the perpetrator who is violating a protective order.

If you are a victim of family violence, you can find help 24 hours a day, 7 days a week by calling the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224 (TTY) where you will speak to a real person who can provide you guidance. Georgia has its own 24/7 hotline you can reach at 1-800-33-HAVEN or 1-800-334-2836. You do not have to be physically in Georgia in order to make that call. There are language interpreters for many different language available to speak with you.

Five Myths Debunked About Prenuptial Agreements for a Same Sex Couple

myths-photoMyths surround prenuptial agreements which essentially discourage couples, same sex or heterosexual, from entering into one. At least five of those myths have been debunked.

  1. Only wealthy people need prenuptial agreements. Not true. Marrying couples, no matter what their financial status will likely have bank accounts, charge cards, car payments and perhaps student loans and other assets and liabilities they do not think about until it comes times to put together the premarital agreement.
  2. Prenuptial agreements presume there will be a divorce. Not true. Negotiating the terms of the prenup gives couples an opportunity to discuss their expectations of the relationship which can lead to a more solid foundation than if the topics are not discussed.
  3. The agreement will not be upheld in court anyway. Not true. A properly executed premarital agreement, reviewed by an attorney and signed by two witnesses and notarized, will, according to Georgia statutes, “be liberally construed to effectuate the intent of the parties.” As long as one party did not exercise coercion or force the other party to sign under duress, the agreement will be upheld.
  4. A premarital agreement means we do not trust each other. Not true. Discussions about the foundation of the marriage, possibility of divorce, and full disclosure of assets and liabilities, and plans for future accumulations together, can add a layer of trust that is often missing from the relationship where such discussions do not take place.
  5. Putting together a premarital agreement is expensive. Not True. Divorces are expensive, but they are far less expensive when a valid premarital agreement is in place. It is like an insurance policy. It will save you money in case the event insured against, divorce, ever actually happens.

Source

http://www.divorcesupport.com/divorce/Georgia-Premarital-and-Prenuptial-Agreements-3644.html

http://www.prenuptialagreements.org/prenup-myths

An Introduction to Probate in Georgia

probateFollowing the death of a Georgia resident, or of someone who owns property in Georgia, the law has a number of different petitions which may need to be filed in the probate court of the county of the decedent’s domicile in order to begin the probate process.

If the decedent left a will, the original will must be filed with the court in order to ultimately distribute the decedent’s assets according to the decedent’s wishes. If the decedent died without a will (i.e., intestate), the probate law of the decedent’s domicile will determine how the estate will be divided.

A personal representative of the estate will be named. If there is a will, the personal representative is called the executor. If there is no will, the named person is called an administrator.

Ultimately, the probate court will issue a document called the Letters Testamentary or Letters of Administration to the personal representative, giving the executor or administrator the authority to act on behalf of the estate.

The personal representative has a responsibility, specifically a fiduciary duty, to comply with the obligations imposed by the court. The personal representative, whether executor or administrator, has a duty to the heirs to preserve their assets and to distribute those assets as instructed.

What Are the Duties of an Executor or Administrator in Georgia?

As the personal representative of the estate, you have a fiduciary duty to the heirs to preserve their assets and to comply with the wishes of the decedent. The court requires you to take an oath, swearing that you will comply with the current Georgia probate law in administering the estate.

If you fail to fulfill your duties as the personal representative, or breach your fiduciary responsibilities, you may be held personally liable for any monetary losses.

The estate personal representative is legally responsible for:

  • Locating, identifying, and keeping safe all the decedent’s assets.
  • Paying all the debts of the estate. Notice of the death must be published within 60 days of issuance of Letters Testamentary or Letters of Administration so that creditors of the decedent are made aware of the death, and may file a claim against the estate.
  • Sell real estate if required to pay debts or to distribute assets. This may require a specific court order to authorize you to initiate and complete this transaction.
  • Some state and federal tax returns may need to be filed. This may become complicated if there is a surviving spouse, or if the estate earns money between the date of the death and the date of distribution of assets.
  • Distributing the assets to the heirs according to the wishes of the decedent, or by the requirements of state law.
  • Filing required reports with the probate court. This includes, among other reports, an inventory of all the assets in the estate and how they are eventually distributed.
  • Filing a Petition for Discharge after all the tasks have been completed and the probate proceedings are ready to be closed.

These personal representative duties are not to be taken lightly. Often, legal counsel is needed to guide the personal representative through the process.

Atlanta probate and estates lawyer Nancy Ghertner can help you sort out all the paperwork and be at your side in probate court. Call Nancy at (404) 980-9096 to set up a consultation at her Sandy Springs law office located on Sandy Springs Circle.

Tips for Succession in Your Family-Owned Business

family owned business 2Although the goal of most family-owned businesses is to pass the business down to the next generation, only about 35 percent of them do so successfully. Just 20 percent make it on to the third generation. Even with these statistics, there is no reason to get discouraged if your goal is to pass down your business. There are actions you can take now that will put your family-owned business in the category of successful transitions to the future generation.

View transition as a process: Early planning for succession

Family-owned business succession is not successfully achieved simply by writing a will leaving your business to your children. It should be an ongoing process beginning even with your original business plan. It then needs to be reviewed periodically and updated when needed. There may be changes in the goals of the business. The addition of family members through marriage may affect the plan as will a change in the abilities or the health of family members involved in the plan.

Communication among potential successors

You have likely heard the three most important considerations in real estate are location, location, location. Apply this adage to business succession and the three most important considerations translate to communication, communication, communication. The following areas may become contentious unless discussed frequently among all involved while allowing for modification of the succession plan when necessary.

  • What is the vision for the company?
  • What are the specific goals for the future?
  • What are the expectations of each family member?
  • What role will each family member play after the transition?
  • How will the next leader of the business be identified?
  • Are there some family members who do not want to be involved?
  • Are there non-family member stockholders or employees who will be affected by the plan?
  • Who will be included in the most intricate parts of the planning process?
  • How will conflicts between successors or potential successors be resolved?
  • How will extended family members be involved or affected, for example, will there be a role for your children’s spouses?
  • Who should be members of a transition team?
  • What, if any, will be the role in the business of the person who is stepping down?

Formal family meetings should be held periodically where all involved feel free to express their views. If there is significant conflict, a communications expert may be called in to assist. If all involved understand the goals of the company, how the succession plan will be implemented and what each individual’s role will be after the succession plan is in place, the smoother and more successful the succession will be.

Put the succession plan in writing

When the questions have been answered and the goals determined, the specific succession plan must be put in writing.  But, as some experts have said, you do not shove the plan in a drawer somewhereand forget about it. It should be an evolving document that is updated as the business evolves and new challenges arise.

Social Security Benefits After Divorce

Social Security after divorceThe law does not allow a court to consider current or future Social Security benefits when approving a divorce settlement even in an equitable distribution state like Georgia. But, you may be able to collect Social Security benefits on your ex-spouses earnings record. Here are some things you should know.

The importance of timing

Either spouse may be eligible to collect benefits on his or her ex-spouse’s employment record if the marriage lasted at least 10 years. Even if the marriage lasted for 9 years, 11 months and 27 days, neither of you will be eligible for benefits on the other’s record. The date the divorce becomes final is the date that determines the length of the marriage. This can be helpful when one spouse did not work, or worked very little, during the course of the marriage and the other one earned a significant amount of money. If the 10 year mark is not too far in the future, the couple may decide to put off the final dissolution date so the lower earning person may have the future benefit to look forward to.

Other relevant factors

  • If you do collect benefits on your ex-spouses record, it has no effect on what your ex or a current spouse can collect. Your ex will not even be notified that you are collecting.
  • You have to be at least 62 years of age to be eligible.
  • You have to have been divorced for at least two years.
  • You must be unmarried at the time you apply for benefits even if you remarried and that marriage also ended in divorce.
  • The benefit on your own record must be less than the benefit on your ex’s record.
  • You will receive half the amount of the full retirement amount your ex is eligible to receive.

Widow/Widower benefits for ex-spouses

If your ex-spouse dies, and you were married 10 years or more, you are entitled to receive 100 percent of your ex-spouses benefit. This has no effect on how much the current spouse or any children will receive. The Government Pension Offset (GPO) also applies to widower/widower’s benefits.

The GPO

According to the GPO, if you collect a government pension from a job like Civil Service where your employer did not pay into Social Security, two-thirds of the amount of your pension will be subtracted from the 50 percent of the ex-spouses benefits you are expecting if your ex is alive, or from the 100 percent you are expecting if your ex is deceased. The GPO may result in you receiving very little benefit money or none at all. For example, if you expected to receive $400 from your spouse’s record, but are receiving $600 from a government pension that did not pay Social Security taxes, $400 (two-thirds of $600) will be subtracted, or offset, from the $400 you are expecting to receive leaving you zero benefit.

Social Security law is complex. If you have questions about your divorce and Social Security benefits, call a family law attorney who will be able to help you understand.

Divorce After 50 | Grey Divorce | Atlanta Divorce Attorney

In March 2013, the National Center for Family and Marriage Research at Bowling Green State University published a study on the divorce rate for couples who are over the age of 50. The researchers discovered that in the last 20 years, the divorce rate in the nation as a whole has gone down.

Meanwhile, the rate of divorce over 50 has doubled and now, one in four marriages of couples in that age group ends in what is also known as a grey divorce.

There are unique emotional issues that impact married couples over 50, but the biggest impact is in the financial area. Although division of assets and liabilities are part of every divorce, those nearing retirement age have less time to rebuild their nest egg.

For those who were unemployed during the marriage, but need to work after the grey divorce, there are fewer opportunities for them than there were when they were younger.

Divorce Over 50 Comes With Unique Emotional Issues

Divorces at older ages often come after a long-term marriage. Even if both parties agree a divorce is in their best interest, there may be a feeling of loss, along with invigoration that a new life awaits. Even when the empty nester couple has children who are no longer living at home, the children often express sorrow over the dissolution of their parent’s marriage.

Some singles relocate and others may lose some friends that were friends of both the husband and the wife. These emotions are normal, but need to be addressed in order to productively face the new life.

Grey Divorce Financial Issues

Statistics show that the cost of living for single people is 40-50 percent more than for married couples. Household income drops about 25 percent for men and 40 percent for women.

When a divorce comes in the later years, there is less time to make up the financial loss experienced with the division of assets through the divorce. Some major financial issues the 50+ couple deals with include, but are not limited to:

What to do with the house: Many couples over 50 own a home together, and whether or not to sell it is a big decision. There may be equity in the house they can share if they sell it, but there are benefits to homeownership, such as tax savings, that they will lose.

Beginning at age 62, a person is eligible for a reverse mortgage.  On the other hand, if one person keeps the house, that person will be responsible for all upkeep and taxes. If the housing market goes down, that person will take the loss.

There may be tax benefits to both parties with a sale, and the timing of the sale may be important.

Retirement assets and liabilities: Couples aged 50+ may have more assets than younger couples, but they often have more debt. They generally have retirement accounts that have to be individually evaluated and divided equitably. To divide some retirement plans, such as a 401(k), a specific court order is required.

Social Security Benefits: Although Social Security benefits are not divided by the divorce court, it is important for each party to know the amount they expect to get at retirement. If a couple has been married at least 10 years, an ex-spouse may collect benefits based on the other spouse’s record without affecting the primary beneficiary.

With so many divorce after 50 financial issues that need resolution, grey divorce couples need the assistance of an experienced family law attorney to help them through the divorce process. Atlanta divorce lawyer Nancy Ghertner has been helping senior citizens with divorce for almost 30 years.

Nancy understands the unique complications and emotional upset that surround a mature divorce, and she is here to listen to your side of the story, and fight for your legal and financial rights so you will feel secure in retirement.

Modification of Child Support

child support modificationThe divorce is over and the final orders have been signed. The formerly married couple is now ready to begin their lives as single parents. Then, circumstances change and one or the other of them wants to make changes to the court order concerning child support. Under Georgia law, either parent can petition the court for modification of child support if certain criteria are met.

Criteria for modification of a child support order

According to Georgia law, a parent can only petition the court for a modification of a child support order if there has been “a substantial change in either parent’s income and financial status or the needs of the child.” Some changes in circumstances that qualify include:

  • The paying parent involuntary losses his or her job.
  • The paying parent becomes too ill to work.
  • Either parent receives additional income due to remarriage, promotion at work or even winning the lottery.
  • The needs of the child change.
  • The child moves in with the paying parent.
  • There has been a change in the law governing the calculation of child support.

A petition for modification may only be filed every two years unless certain exceptions apply. The burden is on the parent who files the petition for modification to prove that circumstances have changed to such a substantial degree since the final order was entered that a modification is warranted. If the court agrees the evidence supports the request for modification, and that the modification is in the best interest of the child, it will issue an official and binding court order.

When paying parents lose their job or have income reduction

If paying parents involuntarily lose their jobs, or suffer a 25 percent reduction in income, a petition for modification can be immediately filed even if it has not been two years since a previous modification request. The court may make a temporary order reducing the amount of child support until a full hearing can take place.

Informal agreements are not binding

Ex-spouses who are co-parenting sometimes enter into informal agreements concerning modification of child support without court involvement. Such agreements are not binding and have no legal effect unless they are filed with the court and signed by the judge. This can create problems for either parent. If the receiving parent informally agrees to a reduction in child support payments, that parent can still go the court and ask for the original order to be enforced. If the paying parent agrees to increase the amount and then does not do so, since the increase was not ordered by the court, there is no way for the receiving parent to enforce it.

Attorney fees and court costs

Under the Georgia Family Code, the court has the discretion to award attorney fees and other costs of litigation to the prevailing party if the court determines that such an order would be in the “interests of justice.”

Whether you are a custodial or noncustodial parent, an experienced family law attorney can assist you with filing a petition for modification of a child support order or assist you in challenging a request for modification.

Family-Owned Business Succession | Atlanta Business Lawyer

Family-Owned Business SuccessionAccording to the Small Business Administration (SBA), family-owned businesses account for between 80 and 90 percent of all large and small businesses in the country. Even so, barely one-third of them carry over into the next generation, often due to discord and lack of planning.

How to Keep Family-Owned Businesses Thriving

Many experienced business consultants, and also Atlanta business lawyers like Nancy Ghertner, have suggestions for keeping a family business alive and thriving well into the second and third generations. The main recommendation that is found consistently is to treat the business like a business, not like an extension of the family. Some specific recommendations include:

  • Have a written business plan: The business must have a written business plan with goals articulated and a mission defined so that all members are in agreement about the purpose of the business. The plan should include details of how the business will be passed on to the next generation.
  • Define the roles: The role of each family member participating in the business should have his or her duties specifically articulated. The compensation should be in writing as well as how the ownership shares will be divided. Anything that would be written for non-family member employees should also be written for family members.
  • Establish a chain of command: The decision-making hierarchy needs to be clear. Employees often resent being told what to do by a family member the employee does not report to. Also, family members need to be aware of who in the hierarchy they report to so that one family member does not overstep his or her authority by “bossing around” the others.
  • Set boundaries: When family members mix their personal lives with their work lives, it is too easy for them to continuously “talk shop” or bring their personal problems from home to work with them. As much as possible, there should be boundaries set. Shop talk should be reserved for the workplace, and family problems worked out at home.
  • Treat all workers fairly: It is easy to either favor family members over non-family members, or to go overboard trying to avoid favoritism to a degree that family members are not treated fairly. The same work standards and required qualifications should apply to all employees whether they are family members or not.
  • Treat all employees equally: All employees should have the same pay scale, work schedules and opportunity for advancement. Avoid giving a family member a “sympathy” job based only on the fact that the person is a family member. Employment should not be based on the family relationship, but rather because the family member has the qualifications necessary to do the job.

Communicate, communicate, communicate: One consistent piece of advice is to maintain communication. This is true in any business, but family business relationships take on a dynamic that makes clear communication even more important. Regularly-scheduled weekly meetings are an excellent feature to establish where all employees, including family members, feel free to express their concerns, so disagreements can be solved before they fester out of control.

Call Family-Owned Business Lawyer in Atlanta Nancy N. Ghertner Today

Attorney Ghertner has almost 30 years of experience working with family members who are in business together. She can help you craft shareholder agreements, articles of incorporation and contracts, and employee agreements.