Are Inherited IRA’s Safe from Creditors?

Retirement plans such as 401(k)s and IRAs (Individual Retirement Accounts) are protected from creditors during bankruptcy, but are they safe from creditors after your death? This is the question that thousands of people have been asking.

IRAs are rapidly becoming the most popular method of saving for retirement, as they are a safe form of investing assets. The following article shall answer the pressing question “Are Inherited IRAs safe from creditors?”

Bankruptcy and Retirement Accounts
Similar to Social Security benefits and 401(k), IRAs are protected in the event of bankruptcy proceedings. If you were to ever declare bankruptcy, the assets that you hold in your IRA cannot be seized by creditors. Keep in mind that this does not apply to IRS (Internal Revenue Service) levies, civil lawsuits and other kinds of judgements. In certain states, IRA assets may in fact be protected from creditors, but this varies from one state to another.

Both Roth and Contributory IRAs have a $1 adjustment limited inflation which is specified in the protection rules for federal bankruptcy. This limit does not apply to those IRAs that contain assets that have been rolled over from a qualified plan (401(k), so this means that they are completely protected.

What about Protection for Beneficiaries?
With an IRA, you have the ability to choose a beneficiary (or beneficiaries) to which you would pass on your assets after your death. IRAs are great estate planning tools as they provide that your assets will not be held in probate before being passed to your designated beneficiary or beneficiaries. They are an ideal means for ensuring that your estate plan will be carried out according your exact terms and specifications.

Of course, this will require some detailed planning on your behalf. IRAs and estate plans ensure that you will have complete control over the transfer of wealth of your retirement funds. This is a legal and binding document and holds true even in the event that you have do not have a will.

In most cases, those who are non-spouse beneficiaries of IRAs are not offered the same protection from creditors. Unlike the original account holder, these assets will be subject to bankruptcy hearings and thus could very well be seized, per a United States Supreme Court Ruling. The reasoning behind this is that since the original IRA owner is now deceased and the funds/assets have been transferred to the beneficiary, they are no longer to be considered as retirement funds. Keep this in mind when you are choosing a beneficiary for your IRA.

A non-spouse beneficiary is not able to commingle funds. This means that they are unable to place the inherited IRA funds or assets in their personal retirement accounts. However, if the spouse is the designated beneficiary, they may roll over, or transfer, the IRA asset in their personal account, which means they are protected from creditors and bankruptcy proceedings.

How can Beneficiaries Be Protected?
If the designated beneficiary of an IRA is their child and that child then has issues with debt or other financial difficulties, this could present a dilemma.

One way to prevent this from occurring is to establish a conduit trust on which the trustee is designated as the beneficiary rather than the child. If drafted correctly, the trust is then protected from bankruptcy and creditors. Also, the offspring will still be able to benefit from the inheritance.

In this instance, the required minimum distributions of the IRA are then calculated per the life expectancy of the trustee and thus taxed at their tax rate. Since the beneficiary does not legally own the assets, they are now protected. A key point to remember is that the income will no longer be protected once it has been paid out to the beneficiary.

As a rule, you should review your IRAs periodically to ensure that everything is up to date. As well, take note if your beneficiaries are experiencing financial difficulties. If this is the case, you might want to name a new beneficiary to protect the inherited assets.

Remember that the laws differ by each state. Talk with your estate planner or tax attorney to find out the current laws in that state in which you are currently residing.

5 Estate Planning Secrets of Real Estate Investors

So many people are struggling just to make ends meet that they do not stop to think about their future pertaining to investments and estate planning. However, a lot of people rely on real estate investments as a part of their income. Hence, estate planning plays a key role in tax advantages. Investing in real estate provides for capital gains while at the same time lowering tax liabilities.

Keep in mind that factors such as mortgage repayment, capital gains, estate equalization and real estate fluctuations will create a need for liquidation. As well, spousal rollers are tax deferred until the death of the remaining spouse or sale of the investment property. It is also important to remember that lifetime capital gains via real estate investments are not exempt from taxes.

Following are five tips to help you get the most for your real estate investments.

1. Investments in Real Estate
Distribution, sale, or transfer of property may result in either capital loss or gain dependent upon the market value and condition of the properly in question. If the property is a rental property and the market value exceeds the capital cost, taxes are payable on the recaptured value of that property. However, it can result in a loss if the value is lower than the capital cost which can then be deducted against other gains.

Those real estate properties that are financially successful should then be transferred to surviving family members or the designated beneficiary of the estate. Keep in mind that any taxable liquidity must also be funded in advance. This is to ensure that those taking control of the said property do not have any issues in the future.

It is recommended to create a holding company when investing in commercial properties to assist in split income situations. Additionally, it is wise to go through a family trust to purchase shares of the holding company.

2. Principal Residence
Capital gains acquired from the sale or transfer of a principal residence are not subject to taxes. It should be pointed out, though an investor is only allowed to obtain one principal residence per family unit. Those properties that are held in joint tenancy shall remain with the remaining spouse. Upon their death the last will and testament dictates the future dispersion of the property in question.

To ensure that the total cost of your property tax deferral is covered, you need to have adequate liquidity upon execution of your estate plan. This aids in lowering the repayment for the beneficiary upon transferal of the estate.

If minor children are not part of the estate plan, it is a good idea to use your assets as a replacement to the interest via estate equalization. Keep in mind that you need to keep interpersonal conflicts of property liquidation to maintain harmony within the family unit.

3. Build a Solid Fiscal Foundation for Your Family
Owning a rental property is a great way to earn long-term benefits as opposed to wholesale real estate, property rehab and flipping property. Even with the maintenance costs on depreciating properties, it is a lucrative and easy way to earn a constant cash flow. This money is tax advantaged until you own the property in full. Also, you will not incur any tax liabilities.

You can lower your taxes via a 1031 exchange. This allows your capital gains to be transferred to a new property. Buying, fixing and selling a property is also another way to earn money without incurring tax liabilities. Before venturing into any of the aforementioned options, you should discuss your financial situation with a CIA to determine which option is best for you.

4. Invest in Recreational Property
Tax on the disposition of recreational property is deferred only if the property in question is a joint tenant property. Otherwise, capital gains are taxed. However, if the property is left to the surviving spouse, taxes will incur upon the transfer of property.

If the surviving spouse inherited the property outright and then remarries, the property could then end up in the hands of an unwanted beneficiary. To avoid this, it is advisable to create a spousal trust which can also prevent capital gains tax. This allows the testator to then distribute the property when the remaining spouse passes away.

5. How to Avoid Liquidity Crisis
Upon the death of a real estate investor, the capital gains that arise out of the dispersion of property can often be a lot of red tape for the family of the decreased. This is due to the fact that property is not as easy to sell off as other assets. Thus, it is worthwhile to solve any liquidity issues prior to the event of your death.

24 Essential Pieces of Estate Planning Paperwork

Estate planning is something that we all have to think about in our adult lives. We must prepare for our loved ones to be taken care of after the time our death, or in the unfortunate event that we become incapacitated and are unable to make any sound decisions. We need to divide our assets and appoint someone to make decisions on our behalf. It can be quite overwhelming, so you want to make sure that you have all of the proper documentation in place. In the following, we shall highlight the 24 most important pieces of documents that one should have when it is time to put your estate plan into effect.

1. Power of Attorney: This is the power that you appoint someone to act as your agent for tax, legal, medical purposes and so forth.
2. Savings Bonds: Be sure to have copies of the actual bonds
3. Living Trusts: Be sure to have a copy of your irrevocable or revocable living trust as this is a critical aspect of your estate planning.
4. DNR (Do Not Resuscitate) Order: This needs to be included with your estate planning in the event that you are in an accident or become incapacitated to the point that the order needs to be invoked.
5. Last Will and Testament: This is a document that has the name of the Executor of your will, a detailed list of your assets and the names of your designated legal guardians for your children.
6. Pension Plan Information
7. Annuity Contracts
8. Health Care Proxy: This is the person whom you appoint to make all of your medical decisions should you become incapacitated.
9. Bank Account Information
10. Safe deposit box Details
11. IRAs
12. 401(k) Account Information
13. Life Insurance Policies
14. Long Term Care Plan Details and Policies
15. Tax Returns from Prior Three Years
16. Vehicle Title
17. Marriage License/Divorce Certificate
18. Birth Certificates for you, your spouse and any dependents
19. Social Security Numbers of the above
20. Social Security/Disability Details
21. Military Discharge Paperwork
22. Names and Details of any important contacts (beneficiary, legal guardian(s), emergency contact, doctors and so forth)
23. Mortgage Accounts
24. Housing Deeds (also any cemetery plot or land deeds)

Other important information:

● Loan information
● Credit card information
● Lines of credit
● Dental Insurance Information
● Eye Care Insurance
● Personal Accident Insurance Plan
● Long and Short Term Hospitalization and Disability Insurance Details
● Detailed list of your assets

Once you have all of the above information in place, you would meet with your estate planning attorney to ensure that all of your estate plan documentation is in place.

Of course, you want to make sure that you properly store your documents. Most people chose to store their estate planning details in their safe deposit box at a bank or other financial institution, while others chose to keep it in a home safe or simply a filing cabinet. Just make sure that someone knows where the paperwork is stored in the event of your death.

If you have all of the above in order, you can rest assured that your loved ones are provided for in the event of your demise!

Should you have any questions regarding how to protect your personal or business assets, feel free to call the Titanium Asset Protection at (714) 827-9955. With our years of experience in asset protection, we will be able to answer any of your questions and concerns. Call us today for a free and confidential consultation

10 Rules for Asset Protection Planning

Asset Planning is a critical part of the business world and you need to ensure that you are covered in the event of a divorce, lawsuit, and judgement and in the untimely event of your death. The following are ten rules to keep in mind when it comes to asset protection planning.

1. Have a defense strategy in mind in the event that you are sued
If you don’t have an actual plan in the unfortunate event that you are sued, it will be too late to take the proper course of action once someone decided to sue you. Plan for several worst –case- scenarios so you will not be left in the dark if the time arises.

2. If you have a two-person partnership, it only doubles your risk.

Keep in mind that if you are in dual-partnership, that your mistakes are your business partner’s mistakes too and vice versa. This means that you are both liable for the others actions and errors. You could lose everything if your partner makes a crucial mistake and ends up being sued.

3. Always use a registered corporate entity
Some business owners are unaware of the fact that there is great potential for the risk of losing all of your property and assets under your name. It is strongly advised to place all of your assets with a registered corporate entity. These include:
● C Corporations
● S Corporations
● Limited Liability Companies (LLC)
● Limited Partnerships (LP)

4. Make sure that you meet your annual requirements to keep your legal protection intact.
Ensure that your company registration is current. As well, you need to hold annual meetings and always keep accurate minutes of these meetings. Another helpful piece of advice is to never sign your name on any business-related documents in your name to avoid legal troubles down the line. This will keep your personal assets apart from your business assets.

5. Make sure that you have a comprehensive and up-to-date commercial insurance policy
A current and detailed commercial insurance policy can keep you from losing your property in the event of a lawsuit or judgement. These are the things that need to include in your policy:
● Trespassing on your property
● All liability insurance should cover any third parties on your business property
● Workers Comp Insurance for your personnel
● Rates for “increased cost of construction” should your property become damaged

6. Watch out for incorporation scams
There are quite a few business scams in the works now. It is important to keep this in mind as you are dealing with prospective clients and other businesses. Always check your source to avoid such scams as they could be very costly and you could end up losing your business as a result.

7. Protect all of your business asses with a business entity
An LLC, or Limited Liability Company, is the best way to protect your business assets. This would protect you in the event of a third party lawsuit.

8. Keep in mind that sole proprietary is a risky business
If you are the sole proprietor of an establishment and are involved in a lawsuit, your personal assets are not protected, nor are any of your financial accounts. In this event, a judgement can be placed against you and you could lose everything.

9. Always keep your business assets separate from your personal assets.
Make sure to insulate your personal assets from your business assets. If you are a sole or general partnership and your business is not a registered entity, you could lose your personal assets in the event that a judgement is passed against you.

Keep these points in mind when it comes time for asset planning and you should not have any problems in the future.

Should you have any questions regarding how to protect your personal or business assets, feel free to call the Titanium Asset Protection at (714) 827-9955. With our years of experience in asset protection, we will be able to answer any of your questions and concerns. Call us today for a free and confidential consultation.

The Estate Planning Questions You Must Ask for Blended Families

With blended families becoming more and more common, it is critical to make sure that you make the necessary provisions in your estate planning.  Blended families are those in which one or more partners have children from a previous relationship. Often, the parents are confused when it comes to their rights as a parent when it comes to legal issues such as estate planning.
When it comes to estate planning for blended families, there are so many things that can go wrong. Blended families are often made up of those who have been divorced or widowed, so certain legal situations may arise. It is imperative that these be addressed in your estate planning process to avoid any legal hassles in the event of you or your spouse’s demise.

In the following article, we shall discuss the issues and questions you need to discuss with your attorney when it comes to estate planning for blended families.

Questions to Ask in the Estate Planning Process

  • What do you want to happen to your remains after your death?
  • Should you become incapacitated; who do you want to make decisions on your behalf?
  • Who is going to provide for your children and/or dependants?
  • What legal rights does your former partner have when it comes to your shared children?
  • Do you have any financial obligations to your former spouse/partner?
  • Does anyone involved have any liabilities that might impact the financial standing of all of the parties involved in the estate planning?
  • Who will take over as their legal guardian in the event of your death?
  • Are you collecting Social Security or any other benefits? What will happen to those in the event of your death?
  • Do you have a plan as to how to divide up your assets?
  • How will you provide for both your surviving spouse and your blended family?

Other Things to Keep in Mind When Estate Planning for Blended Families

  1. Prepare for a variety of situations

As life is unpredictable, you should sit down and discuss the following scenarios with your current spouse or partner

  • The event that your spouse should die before you
  • The event in which you pass away first
  • The unfortunate event in which you both die at the same time (ie: accident, natural disaster and the like). You would need to choose a legal guardian to care for your shared children in this sector, as well as whom you want to be the joint executor of your estate.
  1. Make sure that your will is up to date

If you currently have a written will, it is imperative that you update to include your current parent and children. Make sure that all details are relevant and up to date as this can prevent many hassles down the line. This also applies to a living trust. If you do not make the necessary changes, your former spouse may end up with everything and your current spouse and children could lose everything that is dear to them. Always ensure that your current will and living trusts are current.

  1. If you have a prenup, make sure that your estate planning details are included in the documentation.

In the event that you are engaged to be married and are going to have a prenuptial agreement, you should ensure that all of your estate planning is included. This is the best way to make sure that any of your children from a previous marriage or relationship are provided for in the event of your death. Include a detailed medical history for your children such any medical conditions or allergies as well as all of their medical and educational records.

  1. Ensure that you’re medical and pension plans, as well as any legal documentation is up to date.

All of the dependants in your blended family need to be added to your insurance policy. Be sure to have the correct information such as their social security number, birth date, legal name and so forth. This also includes any retirement plans, mutual or trust funds and IRA’s. This can save a great deal of legal hassle and red tape in the future.

Your blended family will already have enough to deal with the in event of your demise. If you pay attention to the above details, you can give them the peace of mind that any legal issues are covered.

Should you have any questions regarding how to protect your personal or business assets, feel free to call the Titanium Asset Protection at (714) 827-9955. With our years of experience in asset protection, we will be able to answer any of your questions and concerns. Call us today for a free and confidential consultation

 

 

 

New California Law- Medi CAL Will Dramatically Scale Back Estate Recovery

As California’s answer to Medicaid, Medi-Cal is funded by both the federal and state government. It was created to provide low or no-cost medical care for low income/low resource CA residents. Eligibility is determined by such factors as income, assets, age and disability.

In January of 2017, new rules were set in place regarding Medi-Cal. Some of these changes will have a direct effect on estate recovery. In the following article, we will discuss these changes and how they apply to estate recovery.

Prior to 2017, the state of CA allowed claims on the estates of those Medi-Cal recipients aged 55 or older. For the past 20 or so years, these claims were eligible regardless of whether or not the recipients dwelt in a nursing facility. Upon their death, the state sent the heir of the estate an “estate recovery claim.” This claim was for the amount of the benefit paid to the decreased party.

New Changes To The Medi-Cal Law Effective For Those Who Died On Or After January 1, 2017

As of January 1, 2017, the following provisions were made regarding Medi-Cal and estate recovery:

  • Recovery is limited for those 55 or older solely to Home and Community Based services and nursing home residents
  • Prohibit claims for surviving registered domestic partners and spouses
  • Recovery is limited to only those cases that are subject to CA probate.
  • The state is required to waive a claim due to a substantial hardship if the estate recovery is of modest value.
  • The state is required to provide the current beneficiary and their liaison with a copy of the expenses that are subject to recovery.
  • The amount which a state can charge on liens is restricted.

The new changes effective on January 1st, limited Medi-Cal recovery to those who died on or after January 1, 2017 and were 55 or older at the time that they received their benefits for hospital visits, prescription drugs, community based services and nursing facility care. Those under the age of 55 are subject to recovery if they were “permanently institutionalized” in a medical institution or facility, and were not expected to be able to return home.

In accordance with the new law, the following services are now subject to recovery:

  • Doctor’s appointments
  • Prescription medications
  • Managed care reimbursements
  • Nursing home care
  • Intermediate care for developmentally disabled individuals
  • Home care
  • Community based services
  • Related hospital and prescription services given to an individual while residing in a long term nursing facility or receiving community or home-based services.

Those who are exempt from estate recovery include the following:

Minors/Disabled Children: If the recipient is survived by a child under the age of 21, the state cannot recover the estate. This renders the claim null and void. As well this applies to disabled children of any age. The child in question does not have to be the heir to the state nor do they have to be living with the recipient of Medi-Cal.

Spouse/Registered Domestic Partner: If the deceased is survived by either a registered domestic parent or spouse, the claim for estate recovery is then null and void. In the case that the spouse or domestic partner also is a recipient MediCal benefits, they will then be subject to estate recovery at the time of their death.

Estate Recovery is limited to probate estate. This means that the state can only make a claim against an estate for the amount of the Medi-Cal benefits paid at the time of death, or equal to the value of the state, whichever is less. Effective under the new law, however, recovery is now limited to those estates which are subject to probate under CA law. A living trust is not eligible for recovery, however a will is subject to probate and is therefore due for recovery at the time of death.

The following property items are exempt from estate recovery claims:

  • Retirement accounts
  • Life insurance policies
  • Homesteads of “modest value” (in which the fair market value is less than 50% of the average home price in which the property is located)
  • Those items which are not subject to probate
    • Living trusts
    • Life estates
    • Mobile homes
    • Joint tenancies
    • And so forth
  • Any property which was transferred prior to the death of the Medi-Cal recipient

All of this may sound overheating. The best way to protect your home is to ensure that nothing remains in your estate after your death. Another safeguard is to execute a durable power of attorney that includes both real estate transfer and gifting clauses.

At Titanium Asset Protection, we know that the changes to Medi-Cal and estate recovery can be quite overwhelming. If you have any questions regarding these changes and how they will affect your estate, please contact us at (714)-827-9955 for a confidential and free consultation. A member of our knowledge and expert staff will gladly assist you with any concerns you may have pertaining the above changes for Medi-Cal recipients.

How to Protect Yourself from Lawsuits

Without a doubt, in the modern era, the risk of getting a lawsuit is very high. Because of this, more and more people are doing whatever they can to avoid getting into those predicaments in the first place. While this is undoubtedly easier said than done, you’ll find that a lot of people simply don’t know how to handle themselves or execute proper etiquette.

This is very problematic because overall, most people do not have any clue how to properly articulate themselves or express themselves in the public square. Not literally, of course, but remember, in litigious contexts, it is important to acknowledge that communicating or making statements about another person can result in serious consequences. Rather than getting caught up in one of those situations, you can keep the following advice in mind. This will ensure that you not only avoid getting sued, but it will also allow you to better articulate and organize yourself should you feel concerned about possibly getting into legal action.

Now remember, even if you exercise the best judgment, it is still possible to get into a lawsuit. However, in the event that that would happen, assuming you followed protocol to a tee, you would not be held liable. So even if a suit is brought to court, you can still survive or avoid a long-standing dual just by following the best practices.

Stay Silent

First and foremost, one of the easiest ways to get sued in the public square for making slanderous or libelous statements about someone is simply by saying those statements out loud. If you avoid this in the first place, you’re never going to encounter any of those kinds of issues.

This is something that a lot of people experience because when they interact with others in a public forum, oftentimes they make the mistake of making an assumption or statement that isn’t true. For example, if you’re a celebrity and you make a statement about other celebrities, talking about their actions, you’re opening yourself up to a lot of problems. This is primarily because a lot of people that are in those situations, don’t fully realize just how critically important it is to maintain your public appearance. If people don’t take that responsibility seriously, they’re going to end up in a lot of trouble. So rather than just throwing assumptions out there about another person, always keep in mind that if you make a statement about someone, it has to be something true. You cannot openly spread lies or falsehoods about people, because as a result, you could be opening yourself to being sued. When in doubt, just stay silent. There is no way someone can sue you for NOT saying something bad about them.

Know the Law

In a way, getting into lawsuits is a bit like playing a game. A very costly and time-consuming game, but a game nonetheless. Now while the stakes and costs of this “game” are much higher than Monopoly, the fact remains that you must treat a game like you would any other endeavor of competitiveness. You must know the rules.

Without knowing the rules, it’s not possible to properly know what not do. With the law, if you’re able to understand what you can and cannot do, you’re going to be in way better shape than someone that doesn’t understand the difference between libel and slander.

It’s also important to know how what you could be sued for in your type of business or even personal matters, because if you understand how to get into a lawsuit, you can understand how to avoid them altogether.

Most of the time, people treat these situations in a very counter-intuitive fashion, and as a result, they end up getting themselves into legal trouble they very well could’ve avoided. So rather than being one of those individuals, ensure that you’re always exercising caution. Now, of course, you will not be expected to understand the ins and outs of complicated legal jargon and code all by yourself. That’s where having educated people on your team helps.

Have a Good Team

One of the first things to keep in mind, when it comes to avoiding lawsuits, is having a good team around you. If you have people that are smart enough to avoid trouble in the first place, you’re not going to encounter any issues.

These are the individuals that will watch over your work and ensure you’re doing the right thing. They’re also the people that are going to go over all of your work and ensure that anything that you do intend to disseminate is properly checked and approved.

Remember, the aforementioned tips are just a start. Overall, you’ll see that if you practice just a little bit of these strategies, you’ll go a long way.

Now that you know what it takes to avoid getting sued, it’s time to take action and ensure you have the best asset protection lawyer, in the business, watching your back. Titanium Asset Protection has decades of experience, and specializes in ensuring your assets will stay safe and sound no matter what the circumstances. To learn more or get a free consultation, visit mullhoferlaw.com or call (714) 827-9955.

Why Digital Assets Need to Be a Part of Your Estate Plan

When it comes to digital assets, in the modern era, there are all sorts of assets that have to be kept in mind. Otherwise, you’re going to see very quickly that these assets could get into terrible trouble. The truth of the matter is the following: in the modern era, people are going to have assets that are more than just books, money, gold, and jewelry. People actually have all sorts of assets that are going to be able to be acquired when they become deceased, and among those that are coming into play are internet accounts, video game subscriptions, social media sites, and even digital files and information. This is something you should keep in mind if you have a well-built estate plan, because undoubtedly, if you do pass away unexpectedly, you’ll want to ensure that your loved ones will have a way to digitally access and preserve your assets that exist in the digital realm. Should you be unable to, the consequences could be very unfavorable. If you’re still unsure as to what digital assets should be a part of your estate plan, consider the following information.

 

Social Media Accounts

 

While most people might be unfamiliar with most of the social media sites that are growing in popularity in the present moment, there are a few that have emerged as mainstays that are as ubiquitous in our society as almost anything else. These are the kinds of assets that need to be kept in mind, because in the long run, you’re not going to be able to keep these assets functioning properly.

 

For example, if you’re someone that just doesn’t care much for social media, you might just as easily discard and toss away your accounts without thinking about it.

 

While this is very common, the truth is, you’ll need to be aware that these are the sort of things that can actually have a lot of value in the coming decades and years. This is because as social media accounts become more and more common, more people will be dying with social media accounts to pass off. Now this may not be of much importance to you personally, but if you’re someone that relies on these accounts for a significant amount of income, if you were to pass them off, it might be the equivalent of passing on a very lucrative business or bank account.

 

Therefore, if you have an estate plan, be sure to add your social media accounts in there. If you pass them off to your offspring and ensure there is a legally binding way of doing so, you’ll ensure that those individuals will get direct access to them and will be able to use them for the ensuing decades as time goes on.

 

When it comes to the most likely social media accounts to pass on, keep in mind that Facebook and Instagram are going to be your most popular choices. This is primarily due to the fact that a lot of businesses tend to use these for spreading information, and if you’re someone that can make tremendous use of them, you’ll definitely have them to pass on when you pass away eventually.

 

Saved Data and Information

 

In the past, we had things called folders and filing cabinets. In the present era, almost a lot of our critical data and information is stored in folders, but instead of being gigantic lockers that take up half of our wall space, they are stored safely on our computers.

 

This revolutionary shift in how we store information has resulted in an entirely new phenomenon of what’s valuable and what isn’t. For this fact alone, if you have a loved one that passes away, you have to be aware of the fact that this individual might have very important data stored on their computer or phone. This is the kind of information that might keep some people awake at night, but rather than being afraid of it, is good to be aware of just how valuable this information is in deciding as far as passing the information on when someone passes away.

 

If you’re a businessman and if you have very critical data stored on digital folders, it’s important that the information in said folders get passed on, but in order to facilitate that kind of transaction, you need to make sure you have the right contractual set-up to make that happen. This is precisely the kind of thing estate planning was made for. So, when planning your estate, make sure you keep an organized record of all of the digital information you have stored. If you have very sensitive or secure information, always remember that when planning an estate, you have a trusted lawyer who will not be able to share any of that information to anyone. This will ensure that you keep discretionary information secured from those that do not need to know.

 

Overall, this is the kind of information that plenty of people tend to overlook, but in the event that you need to do a good job, you’ll be able to rest assured that your critical files and information will all be safely guarded from those that might otherwise want to do harm.

 

Final Thoughts

 

When it comes to estate planning, always make sure you keep some sort of itemized list of your digital items. Because people often keep everything digital, it’s hard to have a physical document or idea that establishes what stays and what gets passed on. Sure, estate planning is never a fun thing to do, but you’ll never regret having done it, especially when it comes to passing on digital assets to your loved ones.

 

Now that you know which digital assets are essential for having in your estate plan, it’s time to have a team of asset protection lawyers to ensure your digital assets are safe and sound. Titanium Asset Protection not only has a team of motivated and professional lawyers with decades of combined experienced in estate planning and asset protection, but they specialize in ensuring your digital assets will be preserved and passed on regardless of the circumstances. To learn more or get a free consultation, visit mullhoferlaw.com or call (714) 827-9955.

Frivolous ADA Lawsuits Being Filed Against California Business Owners

Americans with Disabilities ACT

Laws are setup to establish and maintain order within a society to protect individuals and businesses.  When laws are abused for financial gain, most often small business are targeted because they have little knowledge of the law and their rights, and may be afraid to challenge accusations for fear of additional retribution.

In 1990, the Americans with Disabilities Act (ADA) was established by then president George Bush “to prohibit employment discrimination, and impose requirements on access to public facilities, transportation and telecommunications” (PBS). The ADA helps many individuals; however, greedy lawyers take advantage of the law and target small businesses who violate some ADA laws regarding access to facilities. Local attorney Rick Blake works with small business owners that have unintentionally violated ADA codes to protect them from the abuses of predatory lawyers who use various tactics to “make a buck.” He does not dispute that the defendants (his clients) have violated the laws, but he recognizes that there needs to be leniency and a grace period for the client to fix the violation and bring it up to code. He tries to protect his clients from exorbitant attorney fees and additional abuses. Even though the ADA improves the lives of many people, many businesses are being taken advantage of with little opportunity to help themselves before they face potential financial problems, and  lawmakers recognize that the laws need to be amended to protect businesses and reduce opportunistic claims.

The ADA was created to protect individuals with disabilities allowing for fair and easy access to public transportation and public facilities including concert venues, restrooms in restaurants and shops, and other small businesses. National chains such as Walmart and McDonalds, have teams of lawyers and heaps of money to monitor regulations and make necessary  legal changes to comply with the codes. Unfortunately, this law, that set out to protect the disabled now hurts small business by abusing them with “an army of professional plaintiffs statewide” whose goal it is to make money at everyone’s expense (Brown).

ADA allows for all disabled people to have fair and equal access to all facilities, transportation, and communications regardless of their disability, and more importantly, all businesses must comply with the laws. The laws are regularly updated to conform with the needs of disabled members of the community.  The most recent updates to the ADA were on November 21, 2016 and this “final rule provides that public accommodations that own, operate, or lease movie theaters are required to provide closed movie captioning and audio description whenever showing a digital movie that is produced, distributed, or otherwise made available with these features” (ADA.gov). The changes that the ADA implemented undoubtedly changed the lives for millions of disabled people throughout the country for the positive. The Department of Justice revises and updates the laws as well as monitors and enforces the laws. If businesses are out of compliance or disabled persons feel they are discriminated against, the DOJ will advise on the proceedings and how punishment and resolutions will take place.

Once the ADA was put into force, businesses had to comply with the new laws and implement the necessary changes at their own expense to allow disabled persons to access the businesses as any other person would. The cost of making the changes could be costly at first however, the expenses could be recouped as more people would now be able to shop or eat in restaurants that had been previously “architecturally” difficult to move in (building principles).

If a business has been cited for being out of compliance, it “has 15 days to fix the complaint” (Wang). Small businesses at times could be at a disadvantage and not be able to adhere to the laws because of financial restrictions or new building and safety codes that would require a large-scale renovation.  Many smaller businesses have been targeted because “California [is] such a target-rich environment for ADA litigation” and “small businesses [are] terrorized by serial litigants” who prey on them and take advantage of the fact they are out of compliance and are willing to cooperate at whatever the cost to not lose their businesses (oc register).  California “accounts for a whopping 40 percent of the nation’s ADA lawsuits (though the state makes up only 12 percent of the U.S. population)” and many attorneys come here knowing that they will be successful in filing minor claims (oc register).

Many small businesses comply with the laws regarding ease access into and out of buildings and restrooms, however predatory attorneys love California because it is easy and financially beneficial “to file frivolous lawsuits based on minor and technical deficiencies”(Brown). In San Jose, California, a serial ADA lawsuit filer, Scott Johnson, claimed that a gas station bathroom was out of compliance and that his client (that he paid to make the claim) would scald his legs on the hot water pipes as he rolled his wheel chair up to the sink. The owner of this business, Com Tam Thanh, was sued even though “we don’t even get hot water in here” and at no point was the wheelchair client in harm’s way(Gafni).

There is a small minority of serial litigants who go out of their ways to find potential business through trivial lawsuits. “Mega-filer” Theodore Pinnock has filed “well over 2,000 ADA/accessibility lawsuits and hundreds of allegations of false claims” and ” has offered monetary compensation (1) to identify properties with disabled accessibility issues, and/or (2) for visiting properties with such conditions for purposes of creating claims to file lawsuits” (ADA Abuse). Typically, the predatory attorney will send an investigator or CASp inspector, both of whom are paid a fee, to inspect various businesses to see if they are potentially out of compliance. If the business does not comply with ADA laws the predatory attorney will send in a handicapped individual to make an official claim. After making the claim the attorney then writes a demand letter stating what needs to be fixed and the amount of compensation required. The lawyer then will file a lawsuit to the courts stating what laws have been broken an then the defendant will have 30 days to file a written answer to the court. If the parties have not come to settlement terms in the allotted time the case will go to court and it may take up to a year before it is heard by a judge and a jury in a trial setting.

Fringe businesses such as liquor stores, smoke shops, and adult stores are easily targeted because of the type of goods they provide and want as little attention as possible.  For these shops, paying off the attorney results in the least time consuming and least expensive method to avoid court. Even though the “shake down” method does not violate the law nor would it be considered morally wrong the “law is well intended but sometimes, I think abused by certain attorneys” who are out for financial gain (Blake). Harassment and extortion seem to be the goals of predatory attorneys while they sit back and collect fees. Predatory attorney’s have teams including expert witnesses, paid witnesses, and handicapped individuals who all play an expert role in abusing shop owners in their quest for money. When attorneys sue small businesses, the businesses are intimidated and have little understanding of  the law and they do not attempt to fight back.

The law firm of Pinnock and Wakefield has filed more than 2,000 ADA lawsuits and several hundred allegations of false claims which have sparked concerns in the California courts.  As the courts encounter more of these frivolous lawsuits, they are stepping in to monitor and regulate the cases that are being presented. The ADA compliance laws are fairly strict in their interpretation and implementation, however, judges have the ability to deal with “mega-filers of ADA/accessibility lawsuits [and] sanctioned [against] them for deceptive and punishable conduct” (ADA Abuse).  The courts recognize these abuses and see how predatory attorneys take advantage of the laws as they are repeatedly seen in the courtroom with the same types of claims over and over.  Recognizing that he took advantage of the legal system and business owners, “Pinnock was forced to resign with “disciplinary charges pending”, he was suspended of his right to practice law after San Diego Superior Court Judge Julia C. Kelety concluded that he “stole” from a disabled minor in another case” (ADA Abuse).

One such plaintiff James Cohan has filed at least 180 lawsuits throughout southern California. Cohan claims that he’s disabled with end-stage emphysema his hobby is suing small businesses who are “violating the Americans with Disabilities Act”(Brown). Cohan also claims that he needs a walker or wheelchair to get around and because of his condition he is limited to what work he is able to do. He uses these cases to create an income and “technically, legally they’re all frivolous…” and  ”…arguably, he could be subjected to monetary sanctions…arguably his attorneys could be sanctioned if they knew, which is frankly why they’ve dismissed all the cases”(Brown). Ironically James Cohan was caught by “Eyewitness News… after his daily hike up a steep hill near his Sun Valley home. He was hiking without a wheelchair, walker or oxygen tank”(Brown). He is the perfect example of a person who not only harasses and extorts the small businesses but also has the law on his side because “technically” the buildings are noncompliant. Even though he claims, “I told you I do it out of the goodness of my heart because I’d like people to be in compliance with the ADA, I don’t make any money doing this”(Brown). His attorneys recognized the frivolous claims and “arguably his attorneys could be sanctioned if they knew, which is frankly why they’ve dismissed all the cases”(Brown). This is just a small example of how the law is abused and small businesses are taken advantage of. Cohan even went so far as to sue small business owner Betty Joseph whose building was in full compliance. These types of claims are growing and small businesses are starting to fight back.

These frivolous lawsuits are piling up around the state and the courts are overwhelmed. It has come to a point that “this plague upon the state’s civil justice system has risen to such a level that it can no longer be ignored by lawmakers in Sacramento” and with the small businesses being targeted, change is on its way(oc register). Small businesses are not denying the acquisitions of being out of compliance, however, they just want more leniency and fairness on the issue. For example Com Tam Thanh acknowledges that he is in violation, but should not be sued and penalized for not having the equipment to cover the hot water pipes in the men’s bathroom because he does not even get hot water in that facility. This poses no danger to anyone and only wastes the courts time and bottom line hurts a business owner trying to perform a service in the community. As more and more of these cases come to court they waste the court’s, the attorney’s, and the small businesses’ times. California has been named “the No. 1 ‘Judicial Hellhole’  in the nation last year by the American Tort Reform Foundation”(Daily News). Legislatures are recognizing that changes to the system need to be implemented and are getting input from small businesses to help them improve the law. It has been suggested that

“several legislative proposals would reform the system simply by requiring the aggrieved party to submit their complaints about alleged ADA violations to business owners in writing, and then allowing businesses a reasonable amount of time, usually 90 or 120 days, to fix any problems before civil litigation could be filed. Such federal bills include H.R. 241, the ACCESS Act of 2015, from Rep. Ken Calvert, R-Corona, and H.R. 4719, the COMPLI Act, from Rep. Jerry McNerney, D-Stockton”(Daily News).

These federal bills are much more reasonable than the previous 30 day amount of time and predatory attorneys may be slow to file as they recognize they can no longer intimidate and harass small business owners into paying. The original intent of the ADA was to protect individuals’ with disabilities, but greedy attorneys and plaintiffs have abused this law and have taken advantage of small business owners who may be out of compliance but certainly are not stopping those with disabilities from entering their businesses with slightly faded signs or a “curb painted the wrong shade of blue”(Daily News). California state has proposed several senate bills including SB 1142, SB 269, and SB 1186 that have been used to promote the benefits of the ADA while curbing the abuses of predatory attorneys.

In California on September 19th, 2012 Governor Jerry Brown signed into law SB1186 the disabled access law. There was wide acceptance for this law as it was passed 77-0 in the state assembly and 34-3 in the state senate and went immediately into effect. The main highlights of SB1186 include giving certain “business 60 days to fix an ADA violation and their statutory damages may be reduced from $4,000 to $1,000 – a 75 percent reduction and SB 1186 ends ‘demand for money’ letters from attorneys. Letters can still be sent to a business alerting them of a potential violation or infraction, but the letter can’t include a ‘demand for money’”(ADA Compliance Consultants). Even though these bills have helped many small businesses, there are still many that are being taken advantage of. After working with Rick Blake it was evident that people are still easily manipulated and coerced into paying off demand letters out of fear of violating the law and potentially losing their businesses.

Even1 though these laws are enforced the ADA laws are strict and clear in terms of what violates the law and how the violators should be punished.  Many supporters of the ADA feel that few concessions should be given to small businesses who violate ADA laws because it is the

1 Counter Claim – 2 paragraphs

small businesses responsibility to know and understand the law. Small businesses can easily

request the services of CASp inspectors to evaluate their properties to see whether they are compliant or not.

CASp inspectors know and understand the laws and can bring businesses into compliance. As a small businesses owners should also be aware of changing laws and changes within city codes, because it is ultimately their responsibility. They should have money set aside as well as a contingency plan for potential issues that could come up. If owners just read the guidelines and take time out of their day to make sure their entire business is up to code they would never even have to step foot in court.

The ADA laws were set into motion to prohibit discrimination of disabled individuals in all areas of public life and in the workplace. The benefits of these laws have helped thousands of disabled individuals access venues from concerts to grocery stores and have helped provide them with a better quality of life. However, these laws have been taken to task by predatory attorneys who strictly adhere to the laws and attack small businesses for minor infractions that do not jeopardize access to venues for the disabled. Attorneys have the law on their side so they can easily scare small businesses into paying more than they should to fix these violations. Recently new bills have been created to limit coercive actions and unfair lawsuits against small businesses, however, after working with Rick Blake it is obvious that more needs to be done to protect these small businesses.

Highlights of the New CA LLC Act (RULLC)

The California Revised Uniform Limited Liability Company Act (RULLC) has been in place since January 2015. These rules are intended to bring CA LLC regulations in line with other states so that state to state or multi-state businesses run in agreement.

Provisions of the RULLC provide that the original law will still govern all LLC contracts established prior to January 1, 2014. However, those entered after January 1, 2014 must adhere to the new regulations. We shall briefly discuss the highlights of the new RULLC in the following article.

Indemnification

Under the new law, the LLC must indemnify managers and managing members as long as they are in compliance with their statutory duties. If they do not wish to be indemnified, they must amend their operating agreement to override the original rule.

Capital Contributions

The previous law stated that capital contributions were accepted in the form of property, capital, a promissory note, or services rendered. However, the new law allows that “any benefit” provided to the LLC is applicable.

Member Voting

All matters must be approved by every member of the LLC. An exception to this is if the matter is “outside the ordinary course of business.” However, this term is not outlined so this can lead to management disputes.

Managerial Issues

The new law provides that both the article in question and operating agreement must be manager managed. The exception to this is included in the sale of assets, a merger, any amendment to the operation agreement and any act outside of the ordinary course of business.

Operating Agreements

In accordance with the new RULLC, if a record or article that is filed with the Secretary of State conflicts with the set terms of the original print agreement,  the operating agent will rule.

Tax Allocations

Under the new law, tax allocations of profits and losses are to be determined by the operating agreement.

Disassociation

According to the new law, disassociated members cannot conduct business with the LLC or have access to any company information. Disassociation occurs upon the death of a member of the LLC, if a member is ruled by jury as incapacitated, or if they have become bankrupt.

Fiduciary Duties

The new RULLC specifies that the members or managers who possess control of the LLC owe a “duty of care/duty of loyalty” to those non-conforming members when it comes to fiduciary duties. The duty of loyalty is limited to enumerated activities. Duty of care is thereby limited to refrain from reckless conduct, gross negligence, and intentional misconduct.

If you have any questions regarding the changes in the new RULLC, please contact us at (714) 827-9955. A member of our staff will gladly answer all concerns, and clear up any areas of confusion.