by Philip on February 17, 2010
The plans for one’s estate and the passage of real and personal property to the next generation involves several very personal decisions, not the least of which is to minimize any estate tax liability. In the current economic climate, it is reasonable to expect that effective in 2010 any estate valued in excess of $1,000,000 may be subjected to an estate tax with a minimum rate of 45%. There are several legal means for avoiding some or all of those taxes. However, each method requires careful consideration and may not be appropriate for every case.
Beyond estate tax considerations, the distribution of property to family members, churches, charities and the like and the perpetuation, at least for the next generation, of a family business, are each decisions of a more personal nature. Many estates may not have tax ramifications but nonetheless will involve distribution issues. Beyond the use of a simple will, individuals often find that a trust, either prepared as a living or “inter vivos” trust or as an element of the will itself, is the best method for accomplishing the goals of an estate plan. Depending upon the complexities of any trust as well as the sophistication and business experience of other family members, the trustee of any trust may be either a family member, a close friend, or, if need be, a trust department of a local bank in which the individual has confidence.
Depending upon the circumstances of each individual, estate planning may also involve planning for the potential need for nursing home and other medical care as well as the necessity for Medicaid and Medicare Assistance. The laws surrounding those matters are complex and ever changing. Consistent herewith, an estate plan should also address circumstances when, during one’s life, possibly as the result of an accident or unanticipated illness, the individual is unable to either care for himself or herself or is otherwise unable to communicate his or her wishes regarding future medical care. To address those concerns a durable power of attorney as well as the appointment of a patient advocate – sometimes referred to as a living will – are appropriate. In such cases, the involvement by all family members in the development of an appropriate estate plan may avoid unanticipated adverse consequences, not the least of which are disputes that may cause unintended rifts in future family relationships.
A carefully developed estate plan is specifically tailored to accomplish the directives and needs of an individual or family, and can have a substantial impact on the protection of wealth. As the timing of an incapacity, death, or other triggering event can never be predicted, it is important to take a proactive approach in consulting an experienced legal professional and implementing a plan.
by Philip on February 15, 2010
It is often customary to use a pre-printed “standard” form contract that includes,usually in fine print, provisions that are not actually negotiated but essential to the contract such as time and general conditions for closing or mandating binding arbitration, provisions referred to as “boilerplate.” Black’s Law Dictionary (7th Ed. 1999) defines such as “Fixed or standardized contractual language that the proposing party views as relatively nonnegotiable.” Boilerplate provisions are generally given effect as written as may have substantial consequences not understood or appreciated at the outset. An example is the standard merger clause: “This contract represents the parties complete and final agreement and supersedes all informal understandings and oral agreements relating to the subject matter of the contract.” If the executed contract does not fully incorporate the several items orally discussed and presumably negotiated, it may be next to impossible to convince a court that it should recognize and enforce any of those oral “agreements.” Even the simplest contract may have built in unforeseen consequences through “boilerplate” and legal interpretation and evaluation before execution may avoid or limit those consequences.
by Philip on February 12, 2010
In thse days of instant communication,Twitter, Facebook and the like, the First Amendment is under attack. Using the auspices of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 8 U.S. code, Chapter 12 enacted after the Oklahoma City bombing and the U.S. Patriot Act, Pub. law 107-56, enacted immediately following the September 11 attack on the Twin Towers, two horrendous days in our history, the Federal government has claimed that a citizen’s peaceful advocacy of the rights of an aggrieved minority in another country – which minority the State Department has labeled as a “terrorist organization” – amounts to “material support” of the organization, a crime punishable by 15 years in prison. The Supreme Court is to hear arguments on the issue in Holder v Humanitarian Law project on February 28.
Although we cannot forecast the outcome, we are reminded of a quote attributed to George Washington,
” If men are to be precluded from offering their sentiments on a matter which may involve the most serious consequences, reason is of no use to us. The freedom of speech may be taken away and dumb and silent, we may be led like sheep to the slaughter.”
by Gary on October 27, 2009
Did you know that spousal support (often called “alimony”) can be enforced privately? Many people think that only the Friend of the Court may take action to enforce spousal support; that is not true. Any person who is owed spousal support, by court order, can take action, perhaps through a private attorney, to enforce and collect the money that is due. A spousal support order may be enforced through all collection remedies available on many other Michigan judgments, including liens against real estate, orders to seize property, wage and bank account garnishments, seizure of money or assets held by third parties, and perhaps, in appropriate cases, even receivership.
Private enforcement (such as through an attorney) may soon become even more important. The economic downturn may well have two effects on the collection of alimony. First, because the State’s budget is in trouble, alimony payments may be slow in coming, or may not come at all. Second, the Friend of the Court may stop providing spousal support enforcement services in cases that do not include child support enforcement.
So what’s an alimony recipient who is not receiving support to do? You may wish to contact a private attorney to discuss methods to collecting what is owed. And, you should check your judgment of divorce. It may entitle you to recover attorney fees and costs incurred in collecting what is due.
by Michael on August 20, 2009
More and more frequently, citizens who seek to enter a business relationship with a commercial entity such as a bank, credit card company, or even a real estate agent is expected, or indeed required, to accept an arbitration provision. Generally, an arbitration provision is a clause calling for the resolution of any dispute by arbitrator, and the result is binding, without any right of appeal for either errors of fact or law.
In a recent decision the US Supreme Court in Hall Street Associates LLC v Mattel Inc, decided March 25, 2008, concluded that when a party seeks to vacate an arbitration award by using the Federal Arbitration Act’s procedure for expedited judicial review, the Federal Arbitration Act’s grounds for vacating an award are exclusive, and federal courts cannot enforce a contractual expansion of those grounds. The Court ruled that a provision added to an Arbitration Clause that purported to expand the extent of judicial review beyond that specified in the Federal Arbitration Act, 9 U S C §§9-11 was invalid. On June 9, 2009, the Fifth Circuit Court of Appeals (with retired Associate Justice O’Connor sitting on the panel) ruled that Hall Street precluded any non-statutory basis for judicial reversal of an arbitration award. Saipem America v Wellington Underwriting Agencies, Case No. 08-20247.
Michigan’s Arbitration Act , MCL 600.5001, does not include the same degrees of specific limitation as are found in the FAA. Nonetheless, the validity of additional terms regarding judicial review beyond those in the statute does not appear to have been addressed by Michigan courts as it was in Hall.
Hence, in any case where an Arbitration Clause is insisted upon, the party who may be faced with such a clause may want to think twice about signing such an agreement, especially where it is suggested that it could be revised to expand the scope of judicial review. Such may prove to be ineffective. As a result, parties will be bound by the arbitrator’s decision, even if premised upon serious errors of fact, law or both that may be committed by the arbitrator.
Philip R. Rosi
by Michael on June 29, 2009
You may get a knock on your door during dinner. Or receive a phone call or letter. It’s for you. Well, actually, it’s for your resources – your land, water, air, trees, oil or gas. With the ever-growing demand for natural resources, and the rising trends in both value and scarcity, the pressure placed on private landowners is increasing.
Oil, gas, and lumber companies have been active for generations. These days you might also be contacted by the cellular communications, hydropower, and wind power industries seeking to place towers, turbines, powerlines, pipelines, disposal wells, and other equipment on private land that has the physical attributes they seek.
Do your research. A decision made today may substantially impact your land and its resources for generations. As a landowner it is essential to know your rights and the characteristics, needs, and value of your resources. Only by being adequately informed can a landowner level the playing field and make meaningful decisions.
Let’s review some common misconceptions relating to the development of natural resources on private land.
1. You have little or no time to decide.
You may be told that if you do not sign within a very short time period, the offer will be withdrawn and you will forgo any benefits. There is usually no legitimate reason for such pressure. And do you really want to proceed without fully understanding the risks and benefits involved?
2. They don’t really know what’s there.
Developers speculate. Without actual site data, they may not know the precise extent and value of your resources. But it’s a good bet they know more than you do. Contract and lease offers are usually the result of significant research and planning. It is incumbent upon landowners to do their own homework before making any decisions.
3. It’s the”standard in the industry,” so you must accept it.
Every landowner should know that the so-called “industry standard” was developed by the industry itself – often decades ago – and may not reflect present realities. In most cases there is no limiting regulation, and the contract terms are subject to negotiation.
4. Everyone else has gotten the same deal.
While developers may prefer to compensate everyone the same, some resources are simply more desirable than others. Unfortunately, many landowners are unaware of the leverage they have and do not attempt to negotiate. The increasing prevalence of confidentiality clauses demonstrates that not everyone is getting the same deal.
5. It’s too late, the contract is already signed.
Even after a contract is signed, it is not too late to have it reviewed by a legal professional or expert in the field. Certain provisions may be unenforceable, or the assumptions and values may have changed. Modification or termination may be an option. Every landowner should at least understand their rights and obligations that will apply during the term.
