by Garrett Spangler on March 3, 2010
As an attorney focused on tax and estate planning I have been asked time and again what my thoughts are on store bought Wills. I have put it off in the past but I guess there is no time like the present to do my best to offer an objective look at the positives and negatives of “off the rack” documents. Over the next three weeks I will give you the low-down on the good (Part 1), the bad (Part 2), and the ugly (Part 3) associated with heading over to USA-Zoomy-Build-a-Will.com instead of down to an attorney’s office for the documents to satisfy your planning needs.
Before we go any further, I will honestly tell you that I have a horse in this race. As you will see however, I won’t shy away from the positives associated with the world of Will templates and if it makes sense for you after reading my posts, go ahead and roll with it. What I hope you will takeaway is that there are real concerns that should at least be considered before replacing a professional such as myself (who is experienced, licensed and holds a college degree, law degree, master of law degree, and financial advising background) with a cheap, fill-in-the-blank, “customizable” form.
Now, let’s get started with the positives about the Wills you can buy at a store or online. Part 1 - The Good:
1) Price. First and foremost, do-it-yourself Wills are cheap when compared to the documents drafted by an attorney. Falling somewhere in the $50 - $250 range, Will forms are less than half what you would pay to a reputable attorney to draft a similar document. This is often the number 1 reason websites and software packages are used to create estate planning documents instead of an estate planning attorney.
2) Time. Head on over to your favorite Will site and see how long they suggest it takes to create a Will. Many websites advertise that your “custom” Will can be created in 15 minutes or less. More than likely it will take you longer than 15 minutes just to drive to your attorney’s office to begin the meeting to discuss your wishes. Lives are hectic and this time savings sounds awfully good, especially when the only time many of us seem to be able to find to get personal stuff done is after the kids go to bed.
3) Privacy. People feel good about simply entering their personal information into a template instead of providing it to a stranger. Despite data security online and ethical legal standards of confidentiality, there is something about just buying or downloading some forms and filling them in all by yourself that appeals to people’s sense of privacy.
4) Accessibility. Many people either don’t believe they can afford having a Will prepared or simply don’t think they need one. States have differing rules, but in most states any properly executed document can be admitted to probate as a Will. I always encourage people to get some sort of document in place spelling out their wishes because any Will is better than no Will at all. Do-it-yourself documents at least provide the basic framework of a legal document and I applaud them for opening up the door so everyone has the opportunity to obtain one.
The permeating theme of the positives associated with store bought Wills is clearly the simplicity associated with putting together a document to help protect assets and family. Just providing people with this option has absolutely increased the number of people who now have Wills and that is something to be excited about. Nevertheless, the one-size-fits-all approach has more than its fair share of shortcomings. Next week I will explore some of the negatives associated with creating your own Will.
by Chris Erb on March 1, 2010
A recent tweet by the folks over at Dogfish Head Brewery lamented the impracticality of many employee policies for small businesses. In this particular instance, the lament was over alcohol policies, many of which are strict even for many smaller close-knit businesses but downright unrealistic for a brewery. I deal with the same problem quite often, given that many of my clients are German and are quite accustomed to keeping a case of beer (or even a small keg) in the office for after-hours or company functions.
The most important thing when considering any type of employee policy is to make sure the policy is consistent with your business practices. A strict policy against alcohol or sexual harassment policy with a rigid and complex disciplinary process is only sensible if you’re going to implement it as written. Failure to follow the company’s own procedures is, in many instances, worse than not having a policy at all.
Of course, in an environment where the risks are increased due to a more flexible policy on, say, alcohol consumption there are still steps employers can take to minimize those risks. In the case of alcohol policies, the key is to make sure the difference between alcohol consumption and abuse is clearly outlined in the policy, and to ensure that employees are not impaired while working. A desk worker who has a beer or two at a company lunch may not be working at full efficiency, but probably won’t do all that much to harm employer or employee. On the other hand, a forklift operator continuing work after two or three of the brewery’s Olde School Barleywine (with 15% alcohol) is a bad idea, and the alcohol policy should reflect that. Similarly, a policy which requires a three-step disciplinary procedure and calls for a committee to review alleged infractions is simply unworkable for a five-employee company.
So go ahead, have a beer after work, just be smart about it.
Image from Dogfish Head Brewery website
by Garrett Spangler on February 25, 2010
I’ve got mixed emotions about the new bi-partisan tax reform bill introduced by Senators Ron Wyden (D-Ore.) and Judd Gregg (R-NH) this week. On one hand I’m happy to see tax is on the minds of our Congressmen, on the other, I’m not sure the current efforts are focused on the right tax at the right time.
Its tax season and that means tax is on the minds of many Americans, not just those of us who have made careers in the field. That would suggest that debuting a new tax reform bill may be perfectly timed to get voters on board with an allegedly simplified income tax structure with fewer tax brackets, a higher standard deduction, eliminating the alternative minimum tax, and creating a flat business tax rate. It may very well be time to revisit the Tax Code and make some changes because the last time a major overhaul occurred was in 1986 under the Reagan administration.
So why do I have mixed emotions? Like the reform proposal claims to be, it’s simple; the wrong tax at the wrong time.
First, its nearly March and no attention has been given to the estate tax laws which were repealed as of the first of the year because no action was taken by Congress. As I’ve written in previous posts, estate plans of many Americans may be adversely affected without the estate tax because they were written based on the assumption that the law would remain in some form, even if the rates and exclusions were altered. If there are tax discussions in Congress right now I think the estate tax deserves to be front and center. What it constitutes; a freeze at 2009 levels, a complete repeal, some other rules? At this point I’d take any form of certainty over its current state.
Second, this is an election year for many members of Congress and that spells trouble for this type of legislation. It’s true that many Americans are fed up with partisan politics in Washington and they may be happy to see that some of their elected officials are reaching out to each other in the interest of their constituents, but it won’t get the necessary time or votes it needs to pass. That’s right, there are too many other pressing issues, such as health care reform, to get time on the floor for discussion. Plus, there will be too many Congressmen posturing to differentiate themselves in an election year to actually garner the necessary votes to pass this type of sweeping legislation.
So “attaboy” Congress, but please don’t take your eye off the ball!
by Erica Intzekostas on February 22, 2010
Someone owes you money. Maybe you performed services for them. Maybe they purchased something from you. Maybe it’s your brother who still hasn’t paid you back that money he borrowed 6 months ago to get him through until his next paycheck. You’ve called, written letters, even threatened a law suit. They keep telling you they just don’t have the money, and you’re thinking that’s probably true and that you may never see the money again. Finally you work something out with them. Maybe you accept a payment plan, maybe you accept a partial payment in full satisfaction just to get something from this deadbeat, or maybe you get lucky and they actually pay you back in full. Great. Now you can go about your business, call it a lesson learned, and never have to worry about it again. Right? Well, maybe.
Under federal bankruptcy law, if a debtor files for bankruptcy, certain payments he made to creditors during the preceding 90 days can be voided by the bankruptcy trustee and brought into the bankruptcy estate. That would most likely include any payments made to you for that past debt – meaning that you could be forced to pay that money to the bankruptcy estate so that it could be distributed among all the debtor’s creditors. In fact, if the debtor is your relative, that 90 days can be extended to a year! The purpose of this rule is to make sure that all creditors are treated equally and fairly and to avoid preferential treatment of any particular creditor by the debtor (such as a relative or valued service provider whom the debtor might be inclined to want to favor over, say, American Express).
Just another thing to keep in mind before you decide to lend your financially strapped friend a helping hand!
by Garrett Spangler on February 18, 2010
The 2010 Federal estate tax repeal is creating a mess for families whose loved ones have passed away since the first of the year. With no immediate solutions pending before Congress, states have begun to say enough is enough and put together legislation to help their residents as much as possible.
Due to the way that most good estate plans are written, specifically those which have been created, updated, or revised since changes to estate tax law took effect under the Bush administration in 2001, the complete repeal of the estate tax can have some potentially catastrophic effects. Everyone was entitled to an estate tax exemption under the previous estate tax laws and therefore married couples would seek to maximize their tax benefits by using up the exemption in the estate of the first to die and passing only the taxable assets to their spouse. Then when the second spouse passed away, they could use their own exemption to pass more of their money tax free.
The Federal estate tax exemption steadily changed over the last ten years and to prevent the need to rewrite wills and trusts every time a change occurred, estate plans used a formulaic approach. Now with the estate tax repeal, many times the entire estate of the spouse that dies first will pass to other relatives such as children, leaving the living spouse with nothing.
States are recognizing this and have begun to propose legislation to help families who could fall into this tax exemption trap. Some have proposed that anyone dying while the laws are repealed may use December 31, 2009 as their date of death, while others simply provide that any tax terms or formulas should be interpreted as though the laws of 2009 were still in effect. Either way, this can help keep families out of expensive legal battles over the intended disposition of assets and prevent them from having to pay extra, unanticipated state taxes on inheritances or estates.
While states such as Maryland, Nebraska, South Dakota, Tennessee, Florida, New York and Washington have followed Virginia’s lead with some form of legislation in this area, I have yet to see anything proposed here in Pennsylvania. For those keeping score, chalk one up for states rights advocates, your move Congress…..
by Erica Intzekostas on February 17, 2010
Lucasfilm has filed suit against a Chicago billboard advertising company that calls itself Skywalker Outdoor. The lawsuit alleges trademark infringement and breach of contract. The trademark component of the compliant alleges that Lucasfilm has been using the brand name SKYWALKER since 1977 and that the term has “acquired substantial secondary meaning and goodwill” as a result of “Lucasfilm’s extensive advertising and use of the SKYWALKER mark on products and services”. The complaint alleges that a third party’s use of such brand name will likely cause consumer confusion.
Since the registered trademark for SKYWALKER is for the limited category of motion picture sound effects and the like, and its other related trademarks, like Luke Skywalker and Anakin Skywalker, are limited to things like toys and clothing (none of which have anything to do with billboards or advertising), Lucasfilm is relying on the fame of the Skywalker brand name. In general, a mark that has achieved the elite “famous mark” status enjoys special protection under the anti-dilution provisions of the Lanham Act. However, proving fame can be difficult and is ultimately decided at the discretion of the court.
Luckily for Lucasfilm, it may have a much stronger and easier case in its breach of contract claim. According to the complaint, Lucasfilm claims that the parties entered into a contract whereby the billboard company acknowledged Lucasfilm’s prior exclusive rights in the brand names and agreed to stop using the Skywalker name after December 31, 2008. Apparently the billboard company, in its defense, is denying knowledge of the agreement and is claiming that the woman who is alleged to have signed it on behalf of the company as CEO was never actually CEO and had no authority to bind the company.
by Garrett Spangler on February 11, 2010
I spend most of my time figuring out what options may be in an individual’s or a family’s best interest for estate planning purposes. I talk to clients about the property they own, what their lifetime goals are, and what they would like to see happen to their assets when they are no longer around. It’s no secret, I discuss what an estate plan does and why one is needed all the time. What I don’t usually do is discuss what happens without a Will or other estate plan in place. Of course, like any good legal question, the only real truthful answer is, it depends.
When someone dies without a Will, the laws of the state in which you live will provide the guide for how your estate will be distributed. These laws are called intestacy laws and differ from state to state so you should find out more about the laws in your state for the most accurate answer.
That said, most states will provide the spouse of a decedent with approximately 1/3 to 1/2 of the assets, while the rest is split among the decedent’s children. If the decedent is not married or does not have children, most intestacy laws will then leave assets to the decedent’s parents, siblings, grandparents, other extended family such as uncles and cousins, and then finally to the state if no beneficiaries can be found. The order differs by state along with the shares they are poised to take but generally states seek to give your dependents and immediate family first priority.
It gets even trickier when a decedent owns property in more than one state because then you must contend with multiple sets of intestacy laws and the various sets of beneficiaries that each state sets out in their own heirarchical order. You may not care what happens to your assets when you die but most people would like to be sure that the ones they love most get whatever they leave behind. At the very least you should discuss with your family what planning they may have done because inadvertently leaving your estate to your parents or another family member may do their own estate plan more harm than good.
If you have questions about your estate or how best to provide for your family be sure to speak with an estate planning professional. They can provide you with specific answers to your situation and some guidance as to how you might wish to proceed.
by Erica Intzekostas on February 9, 2010
When 19-year old Boston University student Lauren McClusky decided to organize a charitable event to raise money for the Special Olympics, the last thing she was probably expecting was to be sued by the world’s largest fast food hamburger chain. But that’s exactly what happened. Ms. McClusky decided to name her event McFest (you know, McClusky … McFest), and McDonald’s took umbrage. Apparently McDonald’s believes they have a monopoly on the popular surname prefix Mc, not just for hamburgers, not even just for fast food, but for any and all uses regardless of how unrelated to selling hamburgers, like raising money for the Special Olympics through a music festival.
Normally, a trademark owner can only claim exclusive rights to a brand name as it relates to the products and services that it sells. Special rights are given to “famous marks” in that the owner of a famous mark does not have to prove likelihood of confusion, which makes it far easier for a trademark owner of a famous mark to prevent others from trying to ride the coat tails of its fame. However, McDonald’s seems to be taking it one step further by trying to prevent anyone with the surname prefix Mc from using their own name to inspire their own brand names.
I imagine the $10,000 Ms. McClusky’s event raised for the Special Olympics will pale in comparison to the amount it will cost her to defend herself against the hamburger giant.
by Garrett Spangler on February 3, 2010
No agreement was reached in time to prevent the repeal of the estate tax in 2010, but changes may be afoot. The U.S. Treasury Secretary, Timothy Geithner, made statements yesterday indicating that he believes Congress should collectively reinstate the estate tax and make it retroactive to the first of the year to cover the estate assets of all decedents.
The statements made by Geithner echo the sentiment of Senate Finance Committee Chairman Max Baucus, who has also voiced concern over the repeal of the tax and indicated he would like to see a retroactive estate tax law enacted. Geithner made his statement before a panel of members of the Senate Finance Committee on Tuesday, urging members of Congress to tackle this issue early in the year.
President Obama has proposed in his 2011 budget, which was unveiled Monday, that the estate tax mirror that which applied in 2009. This would include a maximum tax rate of 45% on individual wealth exceeding $3.5 million, or $7 million on the wealth accumulated by married couples. If no action is taken, the estate tax will not apply to the estates of decedents in 2010 and will return to apply to individual estates exceeding $1 million, or $2 million for married couples, at a maximum rate of 55%.
by Erica Intzekostas on February 2, 2010
A friend asked me the other day whether she could use a particular name for her new business if someone already uses the name for their personal blog. She explained that she and her business partner have been struggling to come up with a name for their blossoming business and that every time they come up with a name, they Google it only to find it is already in use. She explained that this blog appears to be a personal journal of a woman who is located outside of the United States. This is the advice I gave my friend.
A trademark is a brand name that identifies a particular product or service that is being sold in commerce. In my friend’s case, her company would be selling services. If someone else offers similar services in the United States, and particularly in the same geographic area, under the same or similar name, then I would advise her to steer clear from using that name. However, because the website she found is of a personal blog, is located outside of the United States, and does not appear to be offering any services for sale, let alone of the type my friend will be offering, I told her that this personal blog should not alone stop her from moving forward with the proposed name. I also did a quick search of the Trademark Office’s database and found nothing registered under the proposed name.
It would be different, of course, if she were to register a very similar domain name as that of a pre-existing domain name hoping that it might cause Internet users to accidentally land on her page instead of on the pre-existing website. In that case, the owner of the pre-existing domain name could accuse her of cybersquatting and file a UDRP claim with ICANN. However, if she in good faith chooses a name for her new business that no one else appears to be using for the services her business will be offering and she registers a domain name for her business, she should be OK.
Will she be 100% protected against claims of infringement? Of course not. In fact, there could be someone else out there using the name for similar services who maybe does not have a website, or whose website did not readily appear in my friend’s Google search. However, United States trademark law only grants the owner the exclusive rights to use a name for a particular type of product or services, and only in United States commerce. Therefore, in order for someone to have a good claim against her, they would have to already be using the name in a market that could cause a likelihood of confusion among potential customers. While there are services that, for a few hundred dollars, will do extensive searches to find every possible use of a proposed brand name (and then you can pay a trademark lawyer to review the binder of results), for a small local business like my friend’s, her Google search and our search of the Trademark Office’s database should be more than adequate. I think my friend and her business partner can feel pretty comfortable moving forward with their name and focus on the next stages of their business venture!
