Hello Mumbo Jumbo-ites!

Alas, the awaited 2nd session of our new series entitled "Demystifying Legal Services" which is for the sole purpose of taking the anxiety out of your search for an attorney by giving you an inside view of the profession...cool huh?

In first session, I emphasized doing your own research prior to hiring an attorney.  Further I suggested that you select a competent professional who practices in the area of your specific concern.  Finally, I boldly asserted that you should not being afraid to pay for a consultation to get your preliminary questions answered because "you don't know what you don't know" and this may in most cases be $$$ well spent .

This Session 2 focuses on the ever lurking question of legal fees and how this question must be demystified because it one of the major sticking points faced by many who need professional legal advice.

The question of fees can be very daunting but in the end it can be looked at very simply.  Having spent potentially hundreds of thousands of dollars and the best years of his/her life studying and thereafter sitting for Bar Examinations and Continuing Education on a periodic basis, most attorneys feel a profound need to be well compensated.  The question I would pose to you, my faithful audience, is whether you should be more concerned with an attorney who is not charging what they are worth than the one who comes highly recommended with a price tag.

With that said, there are a few things about legal fees that you should know as a consumer.

First, the old method of billing is an hourly arrangement where the client pays a deposit into a client trust account and the attorney bills against it, usually by .10 or .20 hours and when the trust account is depleted the attorney requests additional funds.  The problem is that this arrangement places the interests of the attorney and client at odds because the less efficient the attorney, the more $$$ he/she makes.  Further, this kind of arrangement creates some anxiety for clients because they never quite know how big the price tag will be at the end.   Still, there are circumstances where hourly billing makes the most sense.  You should obtain an estimate of total hourly billings, if possible, prior to the commencement of services, and determine the hourly rates of the various personnel in the office.  Remember, higher rates may be preferred as they may signify more competent counsel and more responsible billing practices...just saying.

Second, there are new trends emerging in billing practices which are called "value based" or "flat fee" billing and these can be a great alternative, especially in transaction law practice areas such as wills, trusts and estate planning, real estate, business law and similar non-litigation practice areas.  To summarize, a flat fee arrangement will usually begin with a consultation (sometimes free) and a fee for the services will be quoted at that time.  As a consumer, you just need to be sure that you understand what the flat fee will cover and the scope of the services to be performed.  A firm may also offer various hybrid billing practices which should be discussed in detail prior to entering into any arrangement.

Third, a few more tips are that you should determine whether your initial consultation is free and whether your fee arrangement obligates you to pay costs such as recording, mailing or filing fees.  You should attempt to obtain clarity with your chosen attorney prior to the commencement of services.

I hope this was helpful.

Until next time Friends...

SJG

Do I really need a lawyer? Demystifying Legal Services - Lesson 1

Hello Friends and Colleagues!

For a long time, I have wrestled with the modern perception of the stereotypical lawyer.

What comes to your mind when you think about needing a lawyer or hiring someone for legal services?  For many people the feelings that arise may be less than positive...

As a lawyer licensed in Minnesota and Florida, I have no problem admitting that if I were to personally need a lawyer, my thoughts and impressions would include:  stressed, hard to understand terminology, egotistical people, hard to know what to do, will I go broke, etc., etc.  You may have also managed a few positives such as driven, resourceful or smart.  I shudder to ask if caring, compassionate and concerned professional make the top ten list?

The foregoing concerns are all part of the impetus for this new blog series which is representative of my passion to "Demystify Legal Services" for the average person (you) and the general public.  So my goal here is to offer you some tips to help you understand and approach your legal matter as well as what to look for when hiring a legal professional?

Following this logic, the first and most pressing question for many "Do I even need to consult with a lawyer?"  Thus, I will address this question first in todays session with other topics to be covered in future sessions.

It goes without saying that we are firmly entrenched in the information age.  Any professional, myself included, should be aware that information about any topic is immediately available from multiple professional sources on line.

So in deciding whether to hire a lawyer, regardless of your legal concerns, the first question is whether you are "geared up" to become a legal researcher?  I have worked with many a smart person over the years that hired me because they were not so "geared up".  I recommend some initial research for any person "prior to consulting a lawyer" and I also recommend a balanced approach to the research meaning that you should obtain information from a number of different sources so that you're not potentially duped by one person's opinion.  When you have some grasp on your legal concerns and objectives, you will need to make the decision whether to hire a lawyer?

At this point, some might decide to go it alone and/or pursue "self help" legal services.  However, the reason to forego self help at least temporarily and hire a competent lawyer for a consultation (and even to pay for the advice) is that as a non-lawyer/consumer, you do not know what you don't know" and an experienced attorney arguably does know what you couldn't possibly know due to his/her years of exposure to the subject matter.

So the "take away" for today is do your own homework but be cautious about the questions that you may not know to ask.   Be open to filling in the blanks by hiring a competent attorney for at least an review or consult and I recommend someone with at least five years of background in your specific area of concern.  A footnote about paying for a consultation (because most everyone nowadays loves free consults) is that the information obtained during a paid consult may be more complete and more specific to your situation because that attorney will have in the back of his/her mind that you are paying for the legal advice and thus may be more motivated.  Also, you should be aware that there are ethical and moral factors relating to legal advice offered for compensation...just saying.

I hope this is practical and helpful.  Be prepared for more of this kind of information in the months to come.

Until next time friends...

SJG

Should I put my Florida homestead in my living trust?

Hello Mumbo Jumbo-ites!

So I'm fighting off the Florida summer heat and the doldrums to continue to deliver great estate planning content to you offered like no other law firm.  

One question that has often come into my practice, and has actually been the subject of some debate within the legal community, is whether a Florida Homestead should be titled into a revocable living trust?  

This question arises due in large part to the unique homestead protection offered under the Florida Constitution.  First, when we talk about homestead protection in this context we are not talking about the tax exemption status offered by the county of residence.  Rather homestead protection in this context refers to the protection against creditor attachment or protection against liens and/or judgements filed against the homestead by a creditor of the homeowner. 

Florida is unique in offering 100% homestead protection provided the real property meets the requirements of 1/2 acre within a municipality or not more than 160 acres outside of a municipality. 

Where things got a bit dicey for awhile related to an inconsistency between the 4th Circuit which held that homestead protections were secure within a living trust and a Federal bankruptcy case which seemed to suggest the opposite. Consequently many practitioners were opting not to title homestead property  into living trusts for many years. The inconsistency in the court decisions has since been remedied such that now it is clear that full homestead protection is afforded to homestead real property that is held within a revocable living trust.  

As a side note...you need to be sure to understand the difference between a revocable and irrevocable trust because the homestead protection is not available for irrevocable trusts.  

Another nugget...recent Florida legislation also allows a homestead to be afforded full protection if held in a Florida Land Trust...the topic of a future article. 

The take away is that if your homestead is not in your revocable living trust you should have it looked at by your favorite Florida estate planning attorney, hint, hint...

Until next time friends.

SJG

What? Did you say Gun Trust?

Hello Mumbo Jumbo-ites!  

Back again for your monthly infusion of legal wisdom, delivered like no other law firm...

Guns and gun ownership are a hot topic right now so without getting controversial, let's focus on what we all agree upon.  

We all agree that firearms must be handled wisely.  But you may not know that the idea of handling your firearms wisely concerns your estate planning as well as gun safety training, gun storage, etc. 

This brings us to the topic of the NFA Gun Trust.   Essentially, NFA refers to the National Firearms Act which was passed by in 1934 and gave the Congress an authority to tax firearms but had an underlying purpose unrelated to revenue collection which was to curtail, if not prohibit, transactions in certain types of NFA firearms. A $200.00 tax on the making and transfer of certain firearms was considered quite severe and adequate to carry out Congress' purpose to discourage or eliminate transactions in these firearms, also known as Title 2 Firearms or Class 3 Firearms.  The NFA has undergone a couple of amendments since 1934 but the basic provisions (including the $200.00 tax) have never changed.

So what is the purpose of an NFA Gun Trust?  Simply put, NFA Gun Trusts are an alternative to registering the guns in the individual's name and offer a few advantages. The idea is that the trust is the registered owner for NFA purposes (and anyone else in it).  Anyone listed in the trust as trustee may legally possess the guns as trust property. A grantor sets up the trust and may name anyone over age 18 as trustee. The grantor may also list as many beneficiaries as he or she likes and there is no age requirement under Federal law to be a beneficiary. 

The advantages of a Gun Trust are that they are set up to be very flexible as to who owns the guns.  Most Gun Trusts are established as a revocable living trust and thus the trustees, the beneficiaries and the gun ownership may be changed as long as the grantor has capacity.  

The key is that the NFA Gun Trust may be a Living Trust that is the registered owner of the guns and this preserves maximum flexibility and assures the easy passage of the guns to the beneficiaries.  Another key is that the Gun Trust ensures family privacy as does any other revocable living trust. 

Anyhoo, just another shot across the bow:)

Until next time friends...

Anybody psyched about Tax Freedom Day?

Hello Mumbo Jumbo-ites!

So to unpack the concept of this special day on our calendar, and you may note my cynicism, this is the day that the nation as a whole has earned enough money to pay its total tax bill for the year.

So this year Tax Freedom Day is April 18 which is five days later than last year. This may or may not seem significant to you. Let me unpack it some more...

Americans will pay $2.76 trillion in federal taxes and $1.45 trillion in state taxes, for a total tax bill of $4.22 trillion, or 29.4 percent of income. April 18 is 29.4 percent, or 108 days, into the year. Now depending on the state tax rate, the individual date for your state may vary.

Tax Freedom Day is five days later than last year mainly to the fiscal cliff deal that raised federal taxes on individual income and payroll. Additionally, the Affordable Care Act’s investment tax and excise tax went into effect.

Anyhoo, suffice to say that the Americans who pay taxes, emphasis noted, will work on average almost four months just to pay Federal Taxes. I know this is a bit of a downer but I'm all about informing my friends and valued clients and after all...tax day is upon us.

Of course monitoring taxes carefully is important for many reasons including your estate planning, business planning and other asset protection concerns.

Stay alert friends...until next time.

SJG

Getting Crazy With Business Entities and Taxes

Hello Mumbo Jumbo-ites!

Once again, your monthly infusion of legal wisdom, delivered like no other law firm...

So as you know, the deadline for filing corporate tax returns is March 15th.  This all begs the ever mystical question of taxation with entitization (I made that up) or how to manage business entites for tax planning purposes?!?

There are a number of key considerations to be addressed (the stuff they don't talk about on the cheapo web document sites).  Remember the old adage:   You don't know what you don't know.   Some key questions are as follows:

What kinds of assets (or income) are associated with the business entity?

What is the business purpose for the entity?

Are there unique risk management considerations related to the business purpose or assets?

What kind of maintainence do you want to have concerning the business entity?  In other words, how many annual reports or tax returns will you need to be keeping on top of on an annual basis?

How many members or shareholders will there be and what will those relationships involve?

Will there be a desire to add new partners or members or to sell partnerships or memberships?

The foregoing are just a few of the introductory questions that MUST be asked?

The foregoing questions will inevitably lead you to the question of whether you should be taxed as an S Corp (small business election under the Tax Code), a partnership or a sole proprietorship?

There are advantages to the S Corp status which may result in substantial tax benefits but there are limitations as to when this election should be used.  The key is the type of business income, the relationship between the partners and the amount of revenue generated by the business.  Whether there is an intent to raise additional investment capital is another key concern?

The take away here is that proper use of business entities may result in substantial tax advantages but a prudent review must be conducted prior to designing an appropriate strategy to meet your specific objectives and situation. 

More on business entities next time...

Until then friends...

Why Florida Medical Directives Are Unique Among the 50 States?

Hello Mumbo Jumbo-ites!

Back again for your monthly infusion of legal wisdom...

Today the topic concerns your medical directives...

First things first, when we talk about your medical directives we are talking about a couple of different documents.  If you aren't aware of this simple fact, I recommend reviewing your documents and possibly consulting your favorite estate planning attorney, hint hint...

Anyhoo, your medical directive is comprised of a Living Will, which is essentially a "do not resuscitate" and this document was brought to the forefront of most of our lives for awhile during the Terry Schiavo case. 

The Living Will has been an area of concern for the Florida legislature since the Schiavo case for obvious reasons.  The fact is that Ms. Schiavo did not have a Living Will, but even if she had, the controversy would have raged on because the current FL legislation did not allow life support to be removed for someone in a persistent vegetative state, which was Ms. Schiavo's prognosis at that time. 

The Florida legislature has sinced amended the statutes so that life support may be removed where any 1 of 3 prognosis exists which are:  1.  Persistent vegetative state  2. Terminal conditions or 3.  Irreversible end stage condition.   You must review your living will to see if these prognosis are mentioned and to assure that you have initialled at least 1 of them...

Enough said on that.  Additionally, medical directives include what we call a Designation of Healthcare Surrogate which is basically an appointment of someone to make medical decisions for you in the event you cannot...you should have both of these documents as part of your Medical Directive and probably a general release of medical records for those closest to you.

The kicker and the big difference in the Sunshine State, which is Florida for you newbies, is that Florida is the only state in the USA that leglislatively requires medical directives to be updated every 24 months.  So if your documents were signed more than 24 months ago, it may be time to have them reviewed and newly executed to ensure the presumption of reliability.

I hope this information is helpful.

Until next time...

SJG

Why it is important to have your old Power of Attorney reviewed for compliance with new FL law?

Hello Again Mumbo Jumbo ites!

As we recently turned our clocks to 2013, it is timely to mention the Florida Legislature's decision of just one year ago to rewrite the statutes governing Powers of Attorney in the State of Florida. 

As a bit of background, a Power of Attorney allows another person to make business decisions on your behalf and there are many different types.  In the estate planning world, the preferred type is a Durable Power of Attorney.  The "durable" nature of this Power of Attorney provides that it does not terminate upon one's disability where other Powers of Attorney would in fact terminate upon disability.  Thus, a Durable Power of Attorney, provides you with some protection in the event you are disabled and cannot manage your own business decisions. 

The revisions to the Power of Attorney Statutes had two major impacts which are as follows.

1.  Virtually eliminated the option to provide a "springing" Power of Attorney.  A springing power of attorney allows the power to become effective only upon disability such that it "springs" from the disability and this type of power of attorney is no longer permitted by Florida Statutes.

2.  Required that all the specific powers my be independently authorized by the initials of the party granting the power of attorney, such that the one authorizing the power is aware of the specific powers that he or she is giving away.

While the change in legislation does not invalidate an old Power of Attorney document it does, in my humble opinion, raise a question of whether the old document should be deemed reliable by the powers that be who are most notably banking institutes.  I should point out that most lending institutions have highly paid, well motivated and highly paranoid legal departments.

Anyhoo, the take away friends is that it is expeditious to have your powers of attorney looked at and probably updated to assure that you're covered if something were to happen.

Next time...will review a similar issue re; medical directives in Florida!

Until then...

Why it may make sense for you to update your Powers of Attorney ASAP!

Hello Again Mumbo Jumbo ites!

Popular demand has persuaded me to re-initiate Legal Mumbo Jumbo at the sorrowful expense of my previous, but considerably stuffier, newsletter.

So you will see some improvements in the coming weeks as this blog makes a dramatic come back with a facelift and some other fresh ideas.

We welcome your comments as we are always working to serve you more effectively.

So for this week's edition, just a foreshadowing of the weeks to come:

Why it may make sense for you to update your Powers of Attorney ASAP!

Why Florida Medical Directives are unique among the 50 states!

What on earth is happening "legally speaking" in Texas!

Latest Federal Estate and Gift Tax updates and how this impacts Florida!

Stay tuned for great things Friends!

S. Gibbs, Esq.

Thoughts About A-B Trusts?

Hello Mumbo Jumbo ites! Happy Cinco de Mayo.

I was recently in a conversation over chips and salsa with a financial advisor who asked me about A-B trusts in light of the new interim federal estate tax laws which establish the exemptions for estate and gift taxes at 5 million dollars.

As I shared with him, this is a very tricky question because we don't know what will happen next year as the Federal government has declined to inform the public as to what direction they will go? I attribute this lack of information to the ideological battle that is currently waging in Washington.

In any event, it appears that the A-B trust may become useful for those with moderate to large estates in the near future but we cannot be sure for now. In any event, an A-B trust can be implemented effectively within a joint trust so for those of you with 1-5 million dollar estates who have separate A-B trusts, you might consider speaking with your estate planning attorney about updating your plan.

Until next time.

SJG
- Posted using BlogPress from my iPad