Month: December 2021

Owning and operating your own business can be exhausting. With only one person at the helm, you are ultimately responsible for every aspect of your business. One way to lighten the load and gain some assistance is to bring on a partner through a partnership agreement.

What is a Partnership Agreement?

A partnership agreement is a legal business operation between two or more individuals who share the management and profits of the business.  Any business that will be owned and operated by more than one individual can consider structuring the business as a partnership.

Types of Partnership Agreements

There are two main types of partnerships.

• General Partnerships
  In this type of partnership, all partners are responsible for managing the company and taking responsibility for business debts and obligations.
• Limited Partnerships
  In this type of partnership, there are individuals who run the business and have responsibility for debts and obligations (general partners) but there are also limited partners whose only stake in the business is monetary. Limited partners do not have control over how the business is operated and managed.  For this reason, the scope of their liabilities are different.

General partnerships are more straightforward.  Limited partnerships come with additional filing requirements and administrative demands.

Do You Need a Partnership Agreement?

There are many benefits to forming a partnership agreement. Consider the following pros and cons to see if your business could benefit from a partnership agreement.

How to Write a Partnership Agreement

A partnership agreement should include the following:

• Name: The formal name of your partnership.
• Contributions: What assets each partner brings to the business. 
• Authority: States if partners can act without consulting other partners.
• Management: During day to day operation, who is doing what?
• Monetary Divisions: How profits, draws, and losses are distributed between partners.
• Decision Making Process: How are business decisions made? Is there voting and if so, does it need to be unanimous?
• Conflict Resolution: When partners disagree, what is the process for resolving and moving past disputes?
• Additional Partners: The process for bringing on additional partners.
• Removing Partners: The process for removing partners who want to leave or who have passed on.

Does a Partnership Agreement have to be in Writing?

A partnership agreement does not have to be in writing, but having a formal written version of the agreement is useful for navigating disputes or conflicts between partners. A written agreement does not require that you accurately remember all aspects of the agreement. 

What is a Strategic Partnership Agreement?

A strategic partnership agreement is a partnership formed between two businesses instead of two individuals. It’s important to note that the partnership is mutually beneficial, and may include the sharing of resources for the betterment of both parties.

Forming a partnership agreement requires preparing and filing appropriate documents. Contact us today to find out how we can help.

Sources

Creating a Partnership Agreement by Bethanky K. Laurence for Nolo
Which terms should be included in a partnership agreement? By Melissa Horton for Investopedia

Eviction describes the action of a landlord or other property owner removing someone, normally a tenant from a property.  Evictions are also referred to as an unlawful detainer.

What is an Eviction Notice?

In order for a landlord to evict a tenant, they must first provide notice to the tenant.  The required amount and form of notice will vary depending on the state the property is located. The eviction notice informs the tenant that they are being evicted. If there is a method to prevent the eviction, such as paying rent in full, the eviction notice will specify how to stop the eviction.

What Does an Eviction Notice Look Like?

The four most common eviction notices are:

• Pay Rent or Quit Notices: Used when a tenant has not paid rent and provides a set number of days in which they must move out.
• Cure or Quit Notices: Used when a tenant violates a condition of the lease or rental agreement (ex. no pets clause). The tenant has a set amount of time to cure the violated condition or move out.
• Unconditional Quit Notices: Used when there is no option to solve the situation. The tenant is not given an opportunity to pay or cure.  State requirements dictate when these notices may be used.
• Month-to-Month Termination: If the tenant is in a month-to-month occupancy, the landlord must provide the statutorily mandated notice before terminating the tenancy.

If the tenant fails to vacate after the eviction notice is provided, the landlord must file a lawsuit to evict, called an unlawful detainer lawsuit.

If the unlawful detainer lawsuit is successful, the court will issue a judgment for possession of the property.  The judgment must be tendered to a local law enforcement officer who will inform the tenant that they must vacate.  If the tenant fails to do so, the officer must return to remove the tenant.

How to Write an Eviction Notice

In the event that a renter has violated some term of their lease, a landlord is entitled to serve them an eviction notice. An eviction notice needs to state several pieces of information

1. Tenant’s Name and Address
   Used when a tenant has not paid rent and provides a set number of days in which they must move out.
   
2. Original Date of Signed Lease
   The lease date acts as proof that the tenant was aware of the conditions of their tenancy as well as the causes or lease termination. This removes plausible deniability from the tenant’s side.
   
3. Date the Notice is Served
   By including the date the notice is served, you establish the timeline of the eviction process if the situation ever goes to court. Likewise, tenant’s cannot claim they were given the eviction notice on a later date to buy more time.
   
4. Reason for Eviction
   There are several accepted reasons for eviction.
   Pay Rent or Quit Notices
   This eviction notice is issued when a tenant fails to pay rent. In order to continue the lease, the tenant must pay rent by the time period specified or they will be evicted.
   Cure or Quit Notices
   If a tenant violates part of their lease agreement, such as keeping a pet against lease regulations, the tenant must “cure” or remedy the issue or face eviction in the specified time frame.
   Unconditional Quit Notices
   These eviction notices do not give tenants the opportunity to remedy the situation. They are used in extenuating circumstances, such as a tenant performing illegal activity in the property or by threatening other tenants. The specifics for unconditional quit notices vary from state to state.
   Month-to-Month Termination
   If a tenant is living on a month-to-month basis, a landlord must issue a formal notice of the termination of the lease. Unlike the previous eviction notices, month-to-month termination is merely a landlord choosing not to extend the lease and does not have legal cause. Tenants are entitled to at least 30 days before they are evicted to find alternative lodging.
   Fixed Term Termination
   Like month-to-month termination, fixed term termination does not require a violation of the tenant’s lease. The landlord is simply not extending their contract for another year. Again, tenant’s will have a time period in which they are expected to find alternative lodging before they must vacate.
   
5. Time Period to Fix Violations
   An eviction notice must include a period of time that gives the tenant the opportunity to fix their violation. In many cases, this time period is 3 days, but this can vary. This proves the tenant knew about their violation and was given a chance to fix the issue before they were evicted.
   
6. Lease Termination Date
   If a tenant does not comply and refuses to pay rent or address violations, the eviction notice must include the formal date they will be evicted. Again, having a formal eviction date leaves no room for error on the tenant’s part.
   
7. Landlord’s Signature
   The landlord’s signature is imperative because it proves to the tenant that the eviction notice is legitimate and it proves for the landlord’s records that the notice was filed.
   

Evicting a Family Member

While very similar to a standard eviction notice, evicting a family member requires a few more pieces of information. A family member in a household can be classified as a tenant or as a licensee. 

A family member classified as a tenant is privy to all the rights granted to tenants in a rental lease. To be classified as a tenant, there does not need to be a formal lease, simply the payment of rent. Rent can be considered a monthly payment or contributing to the costs of the household. If your family member pays for utilities or groceries but does not pay formal rent, they are still classified as a tenant, and tenants’ must be served a legal eviction notice. 

Certain states do not require legal filing of eviction if a family member has not paid rent. Other states qualify these family members as a licensee. A licensee is considered more than a house guest and is granted more rights. Licensee’s require a legal eviction notice.

Do I Pay Rent After an Eviction Notice?

Whether or not you have to pay rent after receiving an eviction notice depends on the terms of your lease. Carefully read over the section of your lease that deals with eviction to determine what is required of you as a tenant. In some cases, renters have to pay the first and last month of their lease up front. If you fall under this category, your last 30 days have been paid for. 

Whatever your situation, be prepared to have your leasing agreement on handed so you can reference it throughout the eviction process. Many renters are unaware of their rights, and will pay more than the landlord is entitled for.

Ensuring Eviction Is Handled Appropriately
If you need help with eviction documents and filing requirements, contact us now.

Probate is the process of determining the legal validity of a person’s inheritance and to authorize an executor or administrator. Probate can take anywhere from a few months to several years.

Some states have simple Probate for small estates, which can shorten the process significantly or even avoid the Probate process altogether. You can also avoid Probate with living trusts and joint tenant ownership.

What is the Probate Process?

There are various legal documents associated with the process. These are standardized in most states by the Uniform Probate Code (UPC), which is designed to make things simple. The documents include:

• A petition or application for Probate which should be accompanied by a death certificate and the will.
• Proof that you have posted notice of Probate, which should be published in local newspapers and mailed to creditors and beneficiaries.

Probate can be a complicated process, if you are in doubt, Legal Docs by Me can help make it simpler. For help with Probate, contact us today.

When you hear the phrase “prenuptial agreement,” you may immediately think of Hollywood weddings gone wrong. The idea that prenuptial agreements (or “prenups”) are only important for high net worth individuals is, however, a common misconception. Prenuptial agreements can serve an important role for any couple preparing for marriage.

What is a Prenuptial Agreement?

A prenuptial agreement is a written contract between a future married couple that defines each of their property assets and how these rights will change after the marriage. Prenups are most commonly associated with divorce, but there are a number of reasons to consider drafting a prenuptial agreement before marriage.

When to Consider a Prenuptial Agreement

While contemplating a future divorce may not feel natural to two individuals preparing for marriage, it is an important consideration. A prenup can be a valuable tool for any couple, regardless of the value of their assets. When a couple is deciding whether a prenup makes sense, the following should be taken into consideration:

• Future Legal Complications
  In the unfortunate situation of a divorce, fighting over assets can be avoided with a well-drafted prenup. A prenup allows a couple to think through financial implications with a clear head rather than fighting about them down the road when emotions may be more charged.
• Separate Assets
  Do you or your fiancé have assets you would like to carve out from your community property? One common example is if one person has children from a prior marriage. A prenup can specify which assets are earmarked for these children.
• Debt Protection
  Couples may enter a marriage with vastly different financial pictures, including varying amounts of debt. A prenup allows you to allocate debt as separate or marital, ensuring that the more financially stable party won’t be responsible for certain debt in case of divorce.

Important Prenup Considerations

Some considerations when drafting a prenup include:

• Any real property owned by either party;
• Consideration of all assets;
• Analysis of any debts, including possible future debts;
• Ownership interests in any businesses;
• Retirement accounts and benefits; and
• Any other possible beneficiaries of certain property

How to Nullify a Prenuptial Agreement

• Duress/Coercion
  A prenuptial agreement can be nullified if one party signed the agreement under significant duress or coercion. Some examples include signing the prenuptial agreement without adequate time to review the document (such as hours before the wedding).
• Failure to Disclose
  If a prenuptial agreement fails to mention assets or debts of one of the intended spouses, there is grounds for nullifying the prenup. Spouses who sign a prenuptial agreement without knowing the entirety of their partner’s financial situation don’t have all the information necessary to agree to the listed terms.
• Unfair Division
  In the case that a prenuptial agreement is vastly in favor of one party over the other, the agreement can be nullified. It’s important to note that an uneven division of assets is not enough to nullify the prenup; the disparity between the two parties must be extreme.

All three of these methods simply provide grounds to challenge the prenuptial agreement in court; the document is not automatically null for any of these reasons. In some cases, spouses are willing to settle outside of court, in which you should have a legal representative present to oversee the process.

Does a Prenuptial Agreement Survive Death?

In the case of the death of a spouse, there may be some conflict between the terms stated in a prenuptial agreement and the terms stated in the deceased party’s will. Because a prenuptial agreement is considered a contract and the other spouse is still living, in many cases a prenuptial agreement supersedes the contents of a will. 
Making sure your prenup is comprehensive can be stressful. Contact us today for assistance.

What is a Conservatorship?

A conservator is an individual appointed by a court to make financial and/or health care decisions on behalf of someone who has been deemed unable to make those decisions for themselves. A conservator will play a critical role in the affairs of the incapacitated individual, called a conservatee. Ensuring a conservator is appropriately appointed is very important.

Considerations for Conservatorship

If the individual in need of assistance has previously executed a power of attorney for health and medical matters, they will most likely not need a court appointed conservator. A conservator is likely to be appointed if an individual is deemed by a court to be incapacitated, which could be the case in a number of scenarios, including when an individual:

• Is in a coma;
• Is mentally challenged;
• Has suffered a brain injury;
• Suffers from Alzheimer’s Disease or dementia; or
• Has had a stroke.

A Conservatorship can be complete, meaning the conservator has the right to make all/or health and financial decisions on behalf of the individual. A doctor is required to provide evidence that the individual requires conservatorship.

Establishing Conservatorship

Conservatorship must be granted by a court. To instigate the process, the requestor must file appropriate forms with the probate court in the county where the proposed conservatee resides. The court will then hear evidence of the individual’s mental incapacity and decide whether a Conservatorship is appropriate. There is an opportunity for anyone to object to the Conservatorship or the proposed conservator. If no friend or family member is suitable to act as the conservator, a public conservator may be appointed.

Given the scope of the work, conservators may be compensated. They are reimbursed for expenses and, if compensation is requested, are paid for their services from the estate of the conservatee. The Conservatorship does not end unless the conservatee dies or it is found they are no longer incapacitated.

How to Get Conservatorship in California

In order to get a conservatorship in the state of California, interested parties will the following documents:

1. Petition of Conservatorship
   Essentially, a petition of conservatorship provides an overview of the situation. It includes information about the intended conservator, as well as the proposed conservatee, and the petitioner if they differ from the conservator. Additionally, the petition will describe why conservatorship is necessary and why it is the only solution in this circumstance.
2. Confidential Supplemental Information Form
   The confidential supplemental information form describes why the proposed conservatee is not suited to take care of their own needs. This document will go into more detail about the petition of conservatorship to protect the privacy of the conservatee and further illustrate why conservatorship is necessary.
3. Confidential Conservatorship Screening Form
   The confidential conservatorship screen form provides more detail about the proposed conservator such as their relationship with the conservatee and any personal information that could impact their ability to act as a conservator such as a criminal record. This form must be filled out by the intended conservator.
4. Duties of Conservator Form
   The duties of conservator form lists the duties and responsibilities of the conservator. Essentially, it’s a formal record of everything that the conservator is authorized to handle on behalf of the conservatee as well as how this information will be reported and/or recorded.
5. Notices Regarding the Conservatorship
   Once these documents have been filed, the conservatee must be served a copy of the petition as well as a citation about the proposed conservatorship. It should be noted that the intended conservator cannot serve this notice. Likewise, a copy of the written petition and the court hearing notice must be mailed to the conservatee, the conservatee’s partner, and close relatives. The petitioner is not able to mail these documents.

How to Fight Conservatorship

The basis of a conservatorship is that the conservatee is incapable of managing their personal and financial affairs. If a conservatee can prove that this is false, or is no longer true, the conservatorship can be nullified. While simple in theory, this can be difficult for conservatee’s that have limited access to resources that can prove their competency and in situations where a conservator wants to maintain the conservatorship regardless of the conservatee’s wishes.

If a friend or family member is suffering from incapacitation, it can be a stressful time. Contact us today for assistance in securing a Conservatorship.