Category: Article

A limited liability company (LLC) is the American form of a private limited company. An LLC combines elements of a partnership and a corporation. LLCs allow for greater liability protection without the complexities of a traditional corporation.

The basic structure of LLC formation is:

• Owners have limited liability for the entity’s debts and obligations, similar to a corporation; and
• Income or losses from the business are passed through to the owners, similar to a Partnership.

Distinguishing Elements of LLC Formation

An LLC sets itself apart from a partnership in the following ways:

• A formal document, often called articles of organization, are filed in the state where the LLC is incorporated; and
• Owners of an LLC are not personally liable for the debts and obligations of the entity.

It is different from a corporation in the following ways:

• Profits and losses flow through to the owners, the entity is not taxed; and
• It lacks shareholders and has less administrative requirements than a corporation; and
• It does not have an unlimited life in most jurisdictions and may need to be dissolved upon the death of an owner.

What are LLC Formation Documents?

When forming an LLC, there are several documents that you will need to fill out and file. The first document is the articles of organization. This document will state the basic information regarding your LLC such as name and purpose. An operating agreement is an optional document that will outline how your LLC will be run. Finally, after successfully forming your LLC you will receive a certificate of formation. 

What is a Certificate of Formation for an LLC?

Essentially, a certification of formation for an LLC is a receipt that proves your LLC has been legally recognized and registered by your state. Receiving a certificate of formation also demonstrates the proper forms and procedures have been filed and followed. This document will mark the official creation of your LLC for future legal records. 

Do It Yourself LLC Formation

Starting an LLC requires several distinct steps and levels of verification.

1. Choosing A Name
   The first step in understanding how to start an LLC is choosing a name. This may sound simple, but different states have different requirements and restrictions. Before you have your heart set on a name, it’s important to familiarize yourself with these state specifications as well as the already existing business names.
   
   Choosing a unique name is a way to ensure your business isn’t confused with others in its field. Likewise, you should consider branding and marketing options when you choose your name. If you want to utilize a website domain, make sure the domain is available before you register your business. Additionally, you have the option of reserving your LLC name if you don’t intend to act on it right away.
   
2. Choosing a Registered Agent
   A registered agent is a necessary part of starting an LLC. Essentially, a registered agent receives legal documents meant for the LLC and then distributes them to the proper personnel at the LLC. A member of the LLC can fill the role of registered agent but there are also businesses that can provide this service if that is more agreeable.
   
3. Creating an LLC Operating Document
   An LLC operating document defines how the LLC will be run. Rather than covering daily operations, the LLC operating document covers big picture issues and how they are settled between the various members. Issues like how to handle partner death, going out of business, voting, or the allotment of profits and losses.
   
   This is not a legal requirement, but is a good way to state precedent before various issues arise down the road.
   
4. Choosing a Management Style
   There are two management styles for running an LLC: member or manager. Member management is used with smaller LLCs. Because the number of members is smaller, the members can collectively make decisions for the LLC. For larger LLCs or LLC members who want to be less involved with the LLC, a manager or managers can be chosen instead. Like registered agents, there is no requirement for a manager to be part of the LLC.
   
   Choosing the right management style is important when big decisions need to be made down the line. Consider the types of conflicts or situations that frequently come up in your industry and what management style would be best for handling those circumstances. What kind of financial decisions would management need to make? What about industry strategy or goals? These kinds of questions should help you decide which management style is best.
    
5. Filing the Articles of Organization with the State
   The articles of organization list basic information to be filed with the state. These typically include information such as the name of your LLC and its address, its purpose and length of existence, as well as the name and address of the registered agent.
   
   The articles must be signed by the individual forming the LLC and in some cases by the registered agent as well. Filing the articles will cost a small fee.
   
   The LLC will then be issued a certificate by the state that permits the creation of the LLC. After this, the LLC has formal permission to begin running as a business.

Doing Business in Other States

If you intend for your LLC to operate in multiple states, more paperwork must be filed that registers the LLC within each state it will be operating in. It should be noted that each individual state will require a new registered agent located in that state.

Forming an LLC can be a confusing process. While this is a general guide to follow, the differences in LLC formation in each state can make research and proper procedure difficult to follow. For additional help and questions about filing your own LLC, contact us today.

Sources

How to Form an LLC by Diana Fitzpatrick, J.D. for NOLO

How to Start an LLC by Geoff Williams for U.S. News and World Report

Whether in your personal life or as part of business or work, you have probably entered into a binding legal agreement. When entering into a legally binding contract, it is important to understand how the agreement process works to ensure your obligations and expectations are appropriately documented.

What is a Legal Agreement?

A legal agreement is a method of formally stating and recording the terms of an agreement between two or more parties. If the agreement is legally binding, participants are legally required to obey the stipulations listed in the agreement. This is useful because it allows participants to take legal action if they do receive what was promised.

What Makes a Legal Agreement Binding?

Whether you want to ensure a third party is bound to their promises, or you want to be wary of what you are committing to, it is important to understand when a legal agreement is binding.  Contract laws govern when a legal agreement is binding, and they generally require:

• Offer and Acceptance: There needs to be a clear offer made by one party and unambiguous acceptance by the other party.
• Consideration: Something of value (consideration) must be exchanged between the parties.
• Signature: Some types of agreements may require a signature.

Failure to ensure any one of the required elements of an agreement is in place can result in an agreement that is not enforceable.

How Do You Write a Legal Agreement?

There are several steps that should be followed when drawing up a legal agreement. Your first order of business should be to ensure that the requirements listed above (offer/acceptance, consideration, and signature) are met. Other aspects of a legal agreement may or may not apply, so carefully consider if you need the following when typing your own legal agreement.

Types of Legal Agreements

While it would be impossible to name every variation of agreement, some information about common forms of agreement are included below:

• Non-Disclosure/Confidentiality Agreement: Helps protect confidential information.
• Entertainment Contract: Specify actions to be performed by a performer and conditions pertaining their performance.
• Employment Agreement: Sets the terms of an individual’s employment; similar agreements include independent contractor agreements and non-compete agreements
• Licensing Agreement: Allows a third party to use intellectual property, often for payment of a royalty or other fee
• Lease Agreement: Establishes the rental terms between a tenant and landlord
• Promissory Note: Memorializes the terms around a loan, including repayment, interest, and penalties
• Bill of Sale: Documents the sale of personal property
• Purchase Order: Commitment to purchase items at an agreed upon price point
• Agency Agreement: Establishes the job scope and payment terms for an agency
• Franchise Agreement: Outlines the relationship and terms between a franchisor and franchisee
• Settlement Agreement: Documents the agreement between the two parties to resolve a dispute

No matter the type of legal agreement, it is likely to include a variety of terms, including indemnification, warranty, choice of law, and many more.  To ensure the most favorable terms are included in your legal agreement, contact us today.

Sources

Ten Tips for Making Solid Business Agreements and Contracts by Bethany K. Laurence for Nolo
How Do You Know if You Have a Legally Binding Agreement? By Eugenia Munoz for Legal Vision

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

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

Some states have simple probate procedures for small estates, which can shorten the probate timeline 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 in Rancho Mirage, CA?

Understanding what is probate in Rancho Mirage, CA, involves recognizing the 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. These probate documents are crucial for moving forward with the process.

Probate can be a complicated process, often involving probate legal fees that can add up over time. 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.

Deciding
to change your name is a big decision, affecting your identity and
all your legal documentation. Given these implications, it is
important to understand the name change procedure,
especially if you are considering a name change in Rancho Mirage, CA.

How
to Change Your Name

The
exact process for legally changing your name will vary from state to
state. In most states, the following will be required:

• You
  will be required to prove that you are a resident in the state in
  which you pursue your legal surname change. States will require a
  minimum length of time in which you must have lived in the state to
  acquire residency.
• You
  will need to provide proof of your current name, such as a Social
  Security card, and driver’s license.
• A
  petition to change your name will be required. This will be a
  state-specific form and will require your current and proposed
  names, address, Social Security number, and reason for changing your
  name. This will then be filed with the court clerk along with a required fee,
  such as the California name change fee.
• At
  a hearing, a judge will ask any questions they have about your
  proposed Name Change. Assuming the judge approves the change, he or
  she will sign an order to that effect as proof of your new legal name,
  known as a court ordered name change.

Unacceptable
Name Change

There
are a limited number of circumstances when a Name Change will not be
allowed. Such scenarios include:

• To
  carry out fraud;
• If
  you are a convicted felon or have an outstanding warrant; and
• If
  you are seeking a Name Change for a minor and do not have permission
  of both parents.

Contact us for help in getting your name legally changed today. Our
name change service in California can assist with an adult name change
in California or guide you on how do I legally change my name after marriage.

A Restraining Order, sometimes called a protective order is an order issued by a judge that restricts an individual’s ability to take certain actions.

When to Get a Restraining Order

Restraining Orders are most commonly associated with criminal scenarios involving harassment or abuse, but they can be useful in a variety of civil scenarios as well. Situations where a Restraining Order can be helpful include:

• Instructing parties involved in a lawsuit not to interact with each other;
• Protecting an abused spouse or partner from contact or harm from their abuser; and
• Directing stalkers or harassers to keep appropriate distance.

Restraining Orders can be temporary or permanent. Temporary orders are issued quickly but only when the situation demands immediate action to avoid harm. Permanent Restraining Orders take more evidence and evaluation given the long-term consequences.

How to Secure a Restraining Order

The process for securing a Restraining Order may differ depending on the state and the scenario for which the order is required. The process is likely to include:

• Completion of required paperwork detailing your situation and requests;
• An appearance or filing in court followed by contacting the appropriate law officials
• A decision by a judge if a temporary Restraining Order is warranted; and
• A hearing for a permanent Restraining Order, which will require arguments and evidence that convince the judge the order is necessary to prevent continuing or imminent harm

If granted, the order will be very specific as to what actions the restrained individual can or can’t take. If an order is granted and subsequently violated, the police are responsible for enforcement.

Restraining Orders can be a life-saving tool for many individuals, so it is important they are handled with speed and expertise. Contact us today for help.

Have you ever been interested in selling your mobile home? Or have you ever been interested in purchasing a mobile home from the previous owner? Both processes require you to sign and file a mobile home title transfer.

What is a Mobile Home Title Transfer?

A mobile home title transfer is a document that transfers ownership of a mobile home from one person to another. While this sounds like a simple concept, the way this process is handled is slightly different from other forms of property and differs from state to state.

Depending on the location of the mobile home, state law may dictate that the mobile home will be treated like real property such as a brick and mortar home, or like a vehicle. In cases where the mobile home is being transferred along with the land it sits on, the process becomes more complicated.

Where to Start the Transfer Process

The office responsible for title transfer of mobile homes will vary depending on the state. If your state treats mobile homes as real property, you may be required to visit the Department of Housing. If the mobile home is treated as a vehicle, title transfer is more likely to occur at the Department of Motor Vehicles.

How to Transfer a Mobile Home Title

Transferring a mobile home title can be broken down into four main steps.

1. Decide Your Terms
   Before you can transfer your mobile home title, you need to decide what the terms of the exchange will be. If you’re selling a mobile home, this may be as simple as agreeing on a price with a buyer. In cases of inheritance or other reasons for transferring, there may be additional stipulations that have to be met before the transfer takes place.
    
2. Assemble Your Documents
   The process for title transfer for mobile homes will differ from state to state, and there may also be variations between counties, so be sure to familiarize yourself with requirements for your area. Documents that are likely to be required include:
   
   
   • Tax Certificate
     Proof that property taxes have been paid on the mobile home may be required. This proof can generally be obtained at the local taxing authority.
     
     
   • Title Application
     If your state requires a title application, it will need to be filled out and signed by the buyer and, in some cases, both parties .
     
     
   • Bill of Sale
     This document will serve as proof that the buyer and seller have agreed on the sale of the mobile home. It will generally include the mobile home’s serial number or VIN, buyer and seller information, purchase price, purchase date, and signatures of buyers and sellers. Some states will require notarization of this document.
     
     
   • Lien Release
     If the mobile home is subject to any outstanding liens, the seller must secure a lien release with proof of pay-off.
     
     
   • Warranty Deed
     If your state is one of the handful that recognize mobile homes as real property, a warranty deed will be required to transfer title.
     
     
3. Sign the Documents
   Easier said than done, the next step is ensuring you’ve signed all the relevant documentation and gone over every step of the sale. Remember, signing isn’t just transferring the mobile home, it’s facilitating all aspects of the transaction. If there’s something about the exchange you need more information on, or aren’t happy with, withhold your signature until you can make necessary changes to the agreement.
   
   If your state requires the transfer to be notarized, ensure you schedule a date and time where a notary can be present. 
   
   
4. File the Transfer
   At this point in the process, the mobile home and any money associated with the sale should have changed hands. All you need to do now is make the transfer official by filing all the documents you gathered and signed. Before you file, make copies of the documents for your own records. If at any point some part of the transfer is contested, you now have the ability to quickly reference the original documents. 
   

Can a Notary Public Notarize a Mobile Home Title Transfer?

A notary public can notarize a mobile home title transfer, but all necessary documents still need to be filed with the appropriate departments. Even if your state does not require the exchange to be notarized, doing so is highly recommended as it involves a third party who can give evidence during disputes.

Given the complexity and regional variations of Mobile Home Title Transfer, it can become a daunting task. Contact us for support navigating the process.

Sources

Mobile Home Title Transfer – What You Need to Know at MH Villager

How To Transfer A Mobile Home Title In California? at Mobile Home Investing

Mobile Home Title Transfer State By State at Mobile Home Investing

If you are going through a divorce, you will be confronted with the need to divide your assets with your former spouse. This includes any retirement accounts, which can be a substantial asset for any individual. A Qualified Domestic Relations Order (QDRO) is a special court order that grants an individual a right to a portion of their former spouse’s retirement benefits from an employer-sponsored retirement plan. This could make a huge impact on either party’s financial situation so it is an important consideration in any divorce proceeding.

How Do I Get a QDRO?

In order to secure a QDRO, the individual seeking the benefit must:

• Notify your former spouse’s retirement benefit and ensure they provide all information about the benefit to the court;
• Obtain judgement
• Obtain sample language from an administrator

Information that will be important in the proceeding includes:

• The Summary Plan Description;
• Your former spouse’s benefit statements;
• A copy of the plan’s model QDRO, if one exists; and
• A copy of any other QDRO your former spouse may have on file.

Why is a QDRO Important?

Ensuring you get a valid QDRO in place through the courts is important because private plans will refuse to pay out any benefits unless there is a compliant QDRO in place. While each plan will have specific QDRO requirements, you can expect any QDRO to include:

• The name and address of the participant in the plan and the new payee;
• The percentage of the benefit allocated to the new payee; and
• The plan administrator’s contact information or their attorney

It is important that the QDRO follow any plan-specific requirements because it is not enforceable until it is accepted by the retirement plan.

If you are seeking benefits from a non-private retirement plan, such as a plan administered by the federal government, you will need to seek an alternate course for securing these benefits.

While a QDRO can be extremely important in a divorce proceeding, they can also be very complicated. Contact us now for assistance.