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Business Formation

Legal Help
Although entrepreneurs by definition do much of the start-up work themselves, it often helps to have an experienced attorney to help you start your business. An attorney can help you pick which type of legal structure is best for your business, and make sure that you have all of your forms and paperwork to form the correct legal structure. FindLaw's Business Formation Legal Help section provides information to help you determine if you should hire an attorney to help you with the tasks involved in starting a business. In this section, you can also find information and resources to help you find a small business attorney, as well as some sources for low-cost legal help.

When starting a business, it is important to make sure you do everything by the book. Failure to file the right taxes or obtain the applicable permits can have negative consequences not only on your business but also possibly on your personal life. Choosing the wrong business structure, or incorrectly filing the paperwork for the structure you choose, could leave you unintentionally open to personal liability for your business's debts.
Although it is an added expense, an attorney can be a helpful asset to a person who is starting a business. Attorneys are familiar with the laws that will pertain to businesses in your location and industry. Attorneys can make sure all your business affairs are in order and can help you with a variety of business tasks. For example, an attorney can help you draft contracts with vendors and customers that you can use as the basis for future contracts. An attorney can also assist you in establishing hiring and firing practices and policies that can help shield you from lawsuits in the future. An attorney can also draft any partnership agreements, government registration documents, and tax forms to get your business started. Finally, an attorney will help you determine and obtain all of the permits and licenses required for your business.
Although an attorney can be very helpful in starting a new business, sometimes there just isn't enough money for you to spend on one. In that case, there are some low-cost options for handling the legal aspects of your business. One simple, low-cost option is using do-it-yourself legal forms. These forms must usually be purchased, but are usually not very expensive. If you want to make sure your forms are all correct and in order, you can have an attorney review the forms, which would save considerable costs when compared to having an attorney draft the legal documents him or herself.
There are also some legal resources that are free. The U.S. Small Business Administration (SBA), for example, provides helpful and free information on all aspects of a business, including starting and managing a business. You can always also use the Internet to research the legal topics or issues. This research can help you determine if it's something you can take care of on your own, or if it would be a good idea contact an attorney.
Choosing a Legal Structure
One of the most important choices you will make when forming your new business is which legal structure to choose from. Also called a business ownership structure or business form, choices include LLCs, partnerships, sole proprietorships, corporations, non-profits, and co-operatives. The type of business entity you choose will depend on several factors such as liability, taxation and record keeping; but the key is to find the best fit for your organization. The following resources will help you decide which legal structure is best for your business by examining the pros and cons of each, relevant investor issues and more.
No business owner wants to be personally liable for business debts or pay out-of-pocket for a judgment against the organization. How you structure your business at the outset will significantly impact your personal exposure to liability. There are a number of business entities available to help shield you such as forming a corporation, limited-liability company (LLC), limited-liability partnership (LLP) or limited partnerships (LP). Consider avoiding the sole proprietorship model if you want maximum asset protection.
When you begin weighing the pros and cons of each business form, the sheer volume of information coming at you can seem overwhelming. The most important thing to consider is making sure your particular business model qualifies for your proposed business structure. For example, if you are attempting to form an S-corporation you can only have a limited number of shareholders. Also consider what regulations you will have to follow depending on the structure you choose.
Creating a limited liability company (LLC) requires you to take several important steps depending on your state. You'll need to first files Articles of Incorporation with the Secretary of State. All members of your LLC should enter into an operating agreement, setting forth the rights and rules of the newly formed company. In some instances, the LLC will also need to apply for a tax identification number.
Making the decision to start your own business is a huge endeavor. Tax planning and preparation is key to minimizing tax liability for your small business. Be sure to research U.S. tax codes, in addition to paying attention to changing tax laws each year. How you choose to structure your business at the outset can have lasting implications into the future and affect your profit margin.
Choosing a legal entity for your business takes research and effort to ensure you are complying with the laws. You may want to hire a business attorney to assist you with the more challenging aspects of small business formation such drafting and filing documents and complying with local laws. Whether you find yourself grappling with a business debt liability issue, or just need some guidance on whether to go with a sole proprietorship, you may need to turn to a small business lawyer.
Sole Proprietorships
Sole proprietorships are the simplest of all legal structures but they also lack many of the legal and financial protections of other business forms. If considering starting a business as a sole proprietor, remember there are various advantages and disadvantages. Sole proprietors experience the key advantage of being their own boss, but concurrently shoulder the burden of being responsible for the business's success and failure. This section provides both basic and in-depth information about sole proprietorships, including tax implications, state registration requirements, what to expect when running a business with your spouse and more. It also features step-by-step help to get you get started.
If you are electing to run a business by yourself, you'll need to learn how to choose a business name. Many sole proprietors choose a company name other than their legal name. If you do, you'll need to file a "doing business as," (DBA) with the county where the principal place of business is located. For example, if your name is John Smith and you choose to name your business "Bob Jones Trucking Company," be sure to file the proper forms.
Whether this is your first year as a self-employed entrepreneur or your tenth, income taxes are here to stay. While the complexity of filing the correct taxes forms can seem overwhelming, it's important to get it right the first time. Being in business for yourself means you are required to list your business's profit or loss information on Schedule C (Profit or Loss from a Business), which you will submit to the IRS along with Form 1040. There are several deductions you will be allowed to take, but be sure to seek guidance from a tax attorney or other qualified professional if you have questions.
Throughout the country, an increasing number of spouses are choosing to operate family businesses. As such, they both consider themselves to be "joint owners" of the business. The IRS, however, may consider this to be a "partnership," even if that is not the couple's intention. As a partnership, the couple will be required to file a partnership return and issue a tax document known as a Schedule K-1 to themselves (as opposed to reporting on a Schedule C). For many family businesses, it will be wise to seek the guidance of a tax professional to further understand their potential liability and obligations.
One of the major disadvantages of running a sole proprietorship is the personal tax liability you will incur. In other words, there is no legal separation between business and personal liability. For instance, if you took out a loan to help buy office supplies or a new computer, your creditors can sue you personally if you default on your obligations. Keep in mind, many businesses begin as sole proprietorships and graduate to more complex business forms as the business develops.
Hiring the best business attorney for your sole proprietorship needs is an important process. Small businesses, such as sole proprietorships, often need help with negotiating contracts with customers or suppliers, assisting with real estate needs (such as a lease or a building purchase), taxes, zoning and licenses, protecting intellectual property, or settling litigation. The right business attorney can save your organization money and time in dealing with complex legal matters.
Partnerships
Partnerships are the simplest type of legal structure to form for businesses with two or more principles; but while partnerships have no formal paperwork requirements, they usually don't protect partners from liability. Partners can also clash over numerous matters relating to the business, including conflicting work ethics and financial goals, and even roles in the business and leadership styles. Here you will find tips on legal and tax issues related to partnerships and a "Partnership QuickStart" tool that walks you through each phase of the start-up process.
You may be surprised to learn that business partnerships do not have corporate tax status. What this means is that the Internal Revenue Service (IRS) doesn't have the power to tax them directly. Conversely, the government simply taxes the profits that flow to individual partners as personal income. When a business partner files his or her personal income tax return, he or she will need to declare their operating losses and profits to the IRS in Form 1065.
Also referred to as "business continuation agreements" or "buyout agreements," a buy-sell agreement is a contract that provides for the possible future sale of your business interest or purchasing your co- owner's interest. One reason partners tend to enter into a buy-sell agreement is due to concerns about the health of one partner. If a co-partner dies, it will affect the operation of the business. A fully-funded buy-sell agreement can help eliminate any doubts about the future of your company.
There are three types of partnerships that businesses can choose from when forming a partnership: general, limited or joint venture. While there are benefits and disadvantages to all three, in a limited partnership at least one owner is a general partner and at least one owner is a limited partner. The general partner(s) makes everyday business decisions and becomes personally liable for any debts the business incurs. The limited partner, however, doesn't handle daily operations, but simply invests and reaps the benefits of any profits. Basically, a limited partner enjoys a protected investment.
In a normal business arrangement, income, gains, losses, deductions, and credits are distributed according to each partner's or member's ownership percentage. However, when the partners set up a "special allocation," income and expenses are redistributed according to the allocation or agreement. Keep in mind, IRS rules must be followed if you want to divide profits and losses in a way that's disproportionate to the owners' interests in the business.
Unfortunately, partnership rules and regulations can be extremely complicated. If you want to set up a special allocation, you'll need expert help to make sure that your allocation will comply with IRS rules. A business lawyer can draft special language for your partnership agreement or operating agreement to ensure that the IRS will accept your special allocation. An attorney specializing in partnerships can help you formulate your buy-sell agreement and even help reduce your tax liability for the future.
Corporations
Corporations are limited liability partnerships that are separate and distinct from their owners. In a corporate business structure, shareholders have the right to participate in profits but are not held personally/financially liable for the company's debts. This section contains information and resources for small business owners who are interested in forming a corporation. Here you will find tips on legal and tax issues related to the corporation -- including the creation of articles of incorporation and corporate bylaws -- and tools that walk you through each phase of the incorporation process.
A professional corporation (PC) is an organization of professionals in the same field who wish to incorporate their practice such as doctors, lawyers, or accountants. In many states, this is the only option for individuals hailing from these careers who want to incorporate. PCs offer their owners several benefits such as limited personal liability for business debts.
Ownership changes can have a lasting impact on your business. If you form your corporation with a shareholder buyout agreement, you will have the benefit of transferring your partnership without disrupting operations. Owners of a corporation can control the transfer of shares by executing a separate buyout agreement and making sure to keep accurate records of the nature of each shareholder's investment in the corporation. These provisions are typically included in the articles of incorporation, the by-laws, or in a separate written agreement.
Corporate bylaws are rules that govern the daily operations of your business. Considered by many as the most important document of any organization, they establish and protect the rights, and specify the duties and responsibilities of an organization's members, Board of Directors, executive committee, and others. Each set of bylaws will be specific to that organization, but typically they will include the Organization's name, purpose, and location, a list of its members inducing who is on the Board of Directors and list of officers. It will also spell out the nature and timing of meetings and give instructions on how to amend the bylaws.
Delaware, also known as a "tax haven," has a reputation as having the most business-friendly laws in the country. Numerous corporate giants are incorporated in the tiny state including Apple and Coca-Cola. The state of Delaware does not collect corporate taxes from businesses who do no operate in the state. Nor does the state collect tax royalty payments or are you required to publicly divulge the name of your corporation's board of directors or shareholders.
Forming a new corporation can be an exhilarating process, but you should think carefully before deciding to do it on your own. You may want to consider hiring a competent business attorney who is responsive, and experienced with the types of legal issues with which you will need help. The considerations that go into incorporating a chain of coffee shops, for instance, can be very different from the considerations for incorporating a telecommunications company.
LLC's
A limited liability company, also known as an LLC, is a business structure that has features similar to both corporations and partnerships. LLCs protect owners from certain liabilities, including business debts, while the legal structure allows for a flexible management arrangement. This section includes an overview of limited liability companies, a comparison between LLCs and corporations, tax information, and resources to help you craft an LLC operating agreement and file your articles of organization and more.
Each state has their own laws surrounding how to start an LLC. Your first step is to understand those rules and regulations and determine if an LLC is right for you. Typically speaking, you'll want to choose a business name and then learn whether that name is available. Some states require you to have the words "Limited Liability Company" in the title. You may also need to prepare and file Articles of Incorporation, prepare an operating agreement, obtain any necessary business licenses, and more.
One of the biggest advantages of forming an LLC is that members are not personally liable for the debt and liabilities of the business. However, this is not always the case if you and your partners commingle personal and business funds. If your LLC is sued and you cannot demonstrate separateness between business and personal finances and expenses, you and your partners may become just as liable for the debts and liabilities of the business as is the LLC. Setting up an LLC bank account adds a layer of protection for members of the LLC.
The short answer is, "it depends." Depending on the type of business you will be operating, you may need to obtain a combination of federal, state, and local licenses to legally set up shop. Businesses requiring a federal license usually involve interstate commerce such as trucking, agricultural products, alcohol, aviation, firearms and weaponry, fish and wildlife, maritime transportation, mining or drilling, nuclear energy and broadcast communications. Those professions requiring a state license run the gamut from doctors and lawyers to teachers. Finally, there are a plethora of local licenses you may have to obtain depending on the nature of your LLC such as operating a food establishment.
One of the key benefits of forming an LLC is pass-through taxation. With pass-through taxation, business partners pay taxes on all business profits on their individual tax returns. Essentially the business income "passes through" the business to the owners' tax returns. Each member will have to report their share of profits and losses, but this structure assures the member will avoid double taxation.
Every state has different laws regarding the formation of an LLC. Understanding the basics and seeking help from a legal professional when you need it can save you time and money later down the road. A business attorney in your area can help you with matters such as how to name your LLC, assistance with drafting a buyout agreement, understanding the tax implications of your LLC, and more.

Premarital Agreements

Marriage Law Overview
Marriage represents a lifetime commitment between two partners. While this typically involves mutual romantic interest, marriage is also a legal contract that confers special rights and responsibilities to the parties involved. For instance, married partners are not bound by hospital visitation restrictions and are eligible for certain survivor benefits when the other one dies. Additionally, the possessions of married partners are shared (and divided as such when the marriage ends). This section covers the basics of marriage law, including marriage license requirements, state-specific marriage license information, the meaning of marital property, and more.
Marriage laws are determined at the state level, although federal courts have intervened throughout history to ensure equal protection under the law. For example, the U.S. Supreme Court ruled in 2015 that states cannot restrict the institution of marriage to just heterosexual couples under the Equal Protection clause of the 14th Amendment to the Constitution.
State marriage laws determine the age at which an individual can get married with and without parental consent; whether blood tests are required; how marital property is divided in the event of a divorce; and other considerations. State laws also have criteria for what constitutes an invalid marriage and thus eligible for an annulment.
State requirements for obtaining a marriage license typically include waiting periods, either before or after receiving the license, before the actual ceremony. For instance, South Carolina has just a one-day waiting period to receive a license after applying, but Wisconsin requires couples to wait six days. Texans must wait at least three days after receiving a marriage license before getting legally married. These waiting periods may seem inconvenient, but they are intended to ensure that the individuals planning to get married are really ready to make this commitment.
Also, marriage licenses typically expire after a certain amount of time has passed, ranging from 10 days (Oklahoma) to one year (Arizona). In some jurisdictions, including the District of Columbia, marriage licenses never expire.
In order to qualify for a marriage license, you and your partner (in most cases) will both have to go to the county clerk's office near you and pay a fee in addition to filing an application. You will be asked for photo identification (usually a driver's license), proof of residence, and a birth certificate. If you have been divorced or widowed, you will have to bring a copy of the divorce decree or death certificate. Virtually all states have ended the requirement for a blood test, which was once a common method for preventing incestual marriages.
Partners can get married at the courthouse in most cases, but also have the option of holding a separate ceremony presided over by someone legally qualified to do so (such as an ordained minister).
Marriage Law
Maybe you’re thinking about marriage and you’re curious about how prenuptial agreements work. Or you’re planning a wedding and wondering which states allow same-sex marriage. Or maybe you’re back from your honeymoon and trying to figure out if your health benefits cover your new spouse. It seems like there are a million legal questions that can cloud your marital bliss. But whatever your concern may be, FindLaw’s Marriage Law section has an array of resources covering all of your marriage questions.
In this section, you’ll find helpful marriage law information and practical tips on a variety of issues related to marriage -- such as marriage rights, marriage benefits, prenuptial agreements, community property, foreign spouses, common law marriage, state marriage license requirements, and name changes after marriage. This section also includes a helpful “getting married” checklist and other resources to help guide you through the marriage process and ensure your marriage is legal.
There are very few federal marriage laws, so it’s left to the states to determine their own requirements for marriage eligibility, applications, and licenses. There are restrictions on age, mostly for those under 18 who will need parental permission to get married. You may also be required to provide extensive personal information in order to apply for a marriage license, which are normally issued by county courts where you reside or where the marriage will take place. In addition, the licenses themselves have fees, waiting periods, and are valid for a limited time only. All of these regulations will depend on either where you reside or where you decide to get married.
As of now, states also have the right to determine who can marry. The law regarding same-sex marriages is currently in flux, with many courts overturning bans on same-sex marriage and more states passing laws providing for same-sex unions. The law on common law marriages is also changing, with the majority of states no longer recognizing it as a legal union. These laws are constantly evolving, so the more up-to-date research you can do, the better.
You don’t have to be worrying about a potential divorce to be concerned about the implications marriage will have with respect to money, property, and debt. In most states, getting married means that your spouse’s income and debt now become yours, and vice versa. There are also issues that can arise with banking, finances, and investments. In the unfortunate event of a divorce, some states treat marital property differently. In community property states, any property obtained during the marriage must be split evenly, while in states that don’t recognize community property, the split could be up to parties or even the courts.
Not everyone needs a prenuptial agreement, and many people can get married without hiring a lawyer. However, if you’re curious about pre-marriage agreements, need questions answered about the marriage requirements in your state, or have concerns regarding legal issues that have arisen since your wedding day, an experienced family law attorney can help.
Marriage Money and Property
Marriage carries certain legal implications with respect to property, money, and debt. Becoming legally married in the eyes of your state means your spouse’s income (and debt) are now yours, as well. If one of you runs up a huge credit card bill, you both now are on the hook when the bill comes. The following resources include information about marital (or communal) property and debt, how property is treated in a divorce, how marriage affects taxes and related topics. To learn more about marital property and the legal concept of “community property,” visit the Divorce & Property section of FindLaw’s Family Law Center.
The possessions acquired by partners when they get married are generally shared, although each spouse may claim certain items as a practical matter. This is referred to as “marital property,” which really only matters when the partners get divorced. Marital property does not include property that was acquired by either spouse prior to the marriage, nor does it include inheritances, personal gifts, and other limited types of property.
That which is considered marital property, however, is subject to division upon divorce. For those who live in community property states, marital property generally is divided right down the middle. But more states use an equitable division model in which the needs and assets of each party are carefully considered.
While everyone enters into marriage with the belief that it will last, roughly half of all marriages end in divorce. Therefore, it makes sense to take certain precautions with respect to property. For instance, any property acquired with nonmarital funds (such as an inheritance) is considered separate property, as are any personal injury lawsuit awards. Any separate property that is “commingled” with marital property will be difficult to separate in the event of a divorce.
An otherwise close and loving relationship can quickly come undone under financial stress, which tends to be the most common cause of marital discord. While it’s hardly romantic, discussing financial matters before and during your marriage is an important undertaking. And even if financial problems and disagreements lead to divorce, the divorce itself often presents much larger problems with respect to finances.
One of the most important things couples should do when they get married is to set clear financial expectations. For instance, you should decide what is essential in terms of expenditures; whether to use a joint checking or savings account; who earns more and what financial contributions are expected of each party; and who actually pays the bills and balances the checkbook.
Couples also need to decide what their future plans may be, and what it will take to afford this future. For instance, it costs a lot to raise children -- you’ll have to consider the cost of child care, medical and orthodontic care, and the cost of a university education. Another consideration is your retirement goals and whether you will have enough money tucked away to meet those goals.
Prenuptial Agreements
Premarital agreements (also called prenuptial agreements or “prenups”) are a common legal step taken before marriage. A prenup establishes the property and financial rights of each spouse in the event of a divorce. So while no one is thinking about a divorce when they get married, about one half of all marriages in America end up in divorce proceedings. So it’s often prudent to at least consider a prenuptial agreement. Prenups are often used to protect the assets of wealthy spouses but also can protect family businesses and serve other important functions. Learn about your state’s legal requirements for a prenuptial agreement and whether it’s right for you.
There are several reasons why one party (or even both parties) may want to sign a valid prenuptial agreement prior to getting married. Generally, prenups protect assets that may otherwise be subject to marital property laws. Specifically, these documents may be used to:
Protect one party from taking on the debts of the other
Protect specified assets of one party
Determine the manner in which property is passed on after death
Simplify property division in the event of divorce
Clarify financial responsibilities of the parties
Entering into a prenuptial agreement should never be taken lightly, particularly since the very mention of a prenup suggests the possibility that the marriage may end at some point. Discussion of a prenuptial agreement also can create stress in a relationship. Therefore, deciding whether to implement certain financial conditions and designations of separate property while also planning nuptials is a personal decision. It helps to understand the pros and cons of signing such an agreement.

Pros
Support your estate plan without future court involvement
Make certain financial agreements with your spouse official
Protect the family business and its assets
Fewer property conflicts during a divorce
Avoid shared debt liability

Cons
Can create distrust and dull the relationship
Certain elements of the prenup may already be addressed by state law
Cannot address child support or child custody issues in a prenup
A judge may rule parts of the prenup unenforceable, depending on the relevant facts in the case
Non-monetary matters, such as chores and tasks, cannot be addressed in a prenup
A prenuptial agreement may be considered invalid under a number of different conditions and scenarios. First of all, a prenup must be written and signed by both parties and properly executed. Beyond that, a prenup that was signed under duress or not even read prior to signing (as part of a package of documents requesting signatures, for instance), then it may not be considered valid. Other reasons a state may not recognize a prenuptial agreement include lack of independent counsel (for each spouse), false information, and unconscionability.
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Estate Planning

Estate Planning Introduction
While it may be the last thing you want to think about, estate planning is an important step you can take to protect the interests of your family. A well prepared estate plan will help you ensure your wishes are carried out and your loved ones are taken care of once you’re gone. If you pass away without a plan in place, your family members may be left to sort out the mess in court. To give you a better idea of what estate planning entails, this section provides detailed information on wills, trusts, health care directives, probate, and estate administration. You’ll find articles and resources on making a will, challenging a will, creating a health care power of attorney, setting up a trust, navigating the probate process, and more.
Wills, Living Wills, and Trusts
A will can help make the transition after a loss as painless as possible for your loved ones. Your property will be transferred quickly and many tax burdens can be avoided. Wills typically describe the estate, name individuals who will receive specific property, and dictate any special instructions you may have. Depending on your wishes and the size of your estate, your will could be anywhere from a single page to a lengthy document.
While a will allows you to express your financial wishes once you’re gone, a living will expresses your health care preferences while you’re still alive. With a living will, you’ll be able to designate the medical treatment you wish to receive, should you become unable to communicate your wishes due to illness or incapacitation. A health care power of attorney, on the other hand, allows you to designate a person who can make medical or end-of-life decisions on your behalf.
Trusts are another estate planning tool you can use to manage your property and avoid tax burdens. A trust can either be created during a person’s lifetime, or after death, by a will. There are a number of different types of trusts serving a wide range of functions. An asset protection trust, for example, is designed to protect a person’s assets from future creditors. A charitable trust, on the other hand, is used to benefit a particular charity or cause.
Estate Planning Lawyers
An estate planning attorney can help you in a number of different ways. If you’re interested in creating a will or setting up a trust, an estate planning attorney can draft the necessary documents and help lay the legal groundwork for your plan. That way, your loved ones will be able to avoid the costly and time-consuming probate process. In addition, if you’d like to express your wishes regarding medical treatment, an estate planning attorney can help you draft a living will or a health care power of attorney.
If a loved one dies without a will, on the other hand, probate could be necessary. Probate is the court-supervised process of sorting out a person’s affairs. If that’s the case, it may be important for you to find an experienced probate attorney. An estate planning attorney will be able to guide you through the probate process and represent your interests in court.
Planning an Estate
Planning an estate is one of the most important things you can do for yourself and for your family members. Despite its importance, estate planning is often considered a low priority by many people, even as they age. Creating a proper estate plan can make the difference between having your assets and other property distributed as you wish, versus having a court make decisions that may not reflect your intentions. It’s never too early to begin to plan, and people who do so early on have the advantage of becoming more knowledgeable about estate laws over time. This section provides basic tips and information to help you begin planning your estate, and information for consulting with an estate planning attorney is provided. In addition, you may want to download FindLaw’s Guide to Estate Planning [PDF] for quick reference.
Estate Planning Statistics
According to the American Bar Association, 55% of Americans pass away without a will or other estate plan in place. For Americans under the age of 35, the percentage without some form of estate plan in place is over 90%.
Types of Estate Plans
A will, a power of attorney, and a trust are some of the types of estate plans. As you begin planning, it’s important to be informed about the various forms of estate plans, so that you can decide which is the most suitable. For example, one plan might be more advantageous than another when it comes to estate taxes. Note that estate planning includes healthcare power of attorney, which grants another person the right to make medical decisions on your behalf, and special accounts to pay for school tuition that avoid the gift tax.
Estate Laws
The federal government and each state have enacted estate laws. These laws cover issues such as estate taxes, procedural requirements for planning an estate, and the dispute settlement process. If you’re considering an estate plan, make sure you fully understand the laws that apply, so that you can make an informed decision in choosing the plan that most suits your needs and wishes.
The Consequences of Failing to Plan
In extreme cases, a failure to plan one’s estate can lead to ugly disputes and costly lawsuits between family members. If a court is asked to distribute assets, it may do so in a way that doesn’t reflect the decedent’s wishes. Also, it can take a year or more for a court-appointed executor to locate and manage estate property. Another consequence of lacking an estate plan is the payment of unnecessary taxes and other costs.
How an Attorney Can Help
An estate planning attorney can answer your questions about the various forms of estate plans and explain the features and benefits of each. He or she can also help you to set up a plan that distributes your estate according to your wishes. This section provides a link for consulting with an experienced estate planning attorney in your area.
Wills
Welcome to the Wills section of FindLaw’s Estate Planning Center, where you’ll find resources covering how to prepare a will, how to amend or revoke an existing one, the benefits and limitations of wills, and more. Other topics include an overview of inheritance law, information about challenging a will, a discussion of living wills, and a list of important factors for married couples to consider.
The Basics
Wills are perhaps the most common and well-known form of estate plan. A valid will allows a person to designate how his or her estate is distributed and otherwise managed upon his or her death. In most circumstances, a person who creates a will can feel secure in knowing that the will’s instructions will be honored. On the other hand, a person who passes away without a will runs the risk of a court or other estate administrator making decisions that do not reflect the person’s wishes and intentions. Unfortunately, the failure to create a will can lead to disputes between family members, and even to expensive lawsuits and the ruining of relationships.
First...
One of the most important decisions that comes with creating a will is deciding on a competent and trusted executor. This is the person that will carry out the instructions contained in your will. Of course, you’ll also need to create a list of beneficiaries, and it’s important that you begin to learn about estate tax laws, to minimize the taxes that you and/or your heirs pay.
What Makes a Will Legally Valid?
Estate planning laws vary by state, so it’s best to consult with an attorney if you have specific questions about your state’s laws. Generally speaking, a person must have been of “sound mind” when he or she created the will. This means that he or she understood the effects and consequences of the will, and that he or she was not coerced or otherwise manipulated into signing it. Typically, at least one witness is required to verify the will, and it’s best that this person be someone who doesn’t stand to benefit from the will. Although wills are usually made in writing, oral wills can be valid, and recently, electronic wills have been upheld in some courts.
Will Limitations
A will cannot violate state or other laws. As an example, a person cannot circumvent a state’s community-property marriage laws by asserting in a will that his or her spouse is entitled to no property. Also, note that some states have passed heirship laws that require, for example, children to be listed as heirs in a decedent’s will. A will that breaches heirship laws will likely not stand up in court, and the decedent may be considered intestate.
How an Attorney Can Help
An estate planning lawyer can answer your questions about wills and other estate plans. He or she can also explain applicable estate laws to you and help you to create a will that fits your needs and reflects your intentions. This section provides a link for consulting with an experienced estate planning attorney in your area.
Living Wills
A living will is a type of estate plan that allows a person to express his or her medical and end-of-life treatment decisions, in order to provide family members and health care personnel with clear medical care instructions. In general, if a living will meets legal requirements, then the instructions it provides are legally valid and binding. This section gives an overview of living wills and other health care directives, provides state-specific resources related to these types of estate plans, and contains a link for consulting with an estate planning lawyer in your area.
The Purpose of Having a Living Will
The purpose of a living will is to ensure that a person’s medical care and treatment wishes are honored should he or she become mentally incapacitated. For example, if a person decides against receiving life support, he or she can express that decision in a living will. By creating a living will or a similar health care directive, you can accomplish two important goals: you inform family members of the types of treatment that you want and don’t want, and you provide them with advanced notice of your intentions, so that there’s no uncertainty later on. If you create a living will, you reduce the likelihood of emotional and ugly disputes over your medical and end-of-life care. Unfortunately, the desire to avoid dealing with an awkward and uncomfortable subject leads many people to forego creating living wills.
Recent Trends
In a recent survey, 42% of American adults stated that they had created a living will or other health care estate plan of some type. While there’s still room for improvement, only 17% of survey respondents had a living will or a similar plan in 1994. The most common reason given for not creating a health care directive was that the subject of mental incapacity and end-of-life care was difficult to approach.
State Laws
Every state has some form of health care directive for residents to express medical care preferences and instructions. Keep in mind that states may use different terms and have different requirements and procedures. For example, one state might use the term “living will,” while another state uses the term “advance health care directive.” Also, one state may require medical personnel to obey living will instructions, while another state merely provides medical personnel with legal immunity if they choose to obey will instructions. If you have questions about your state’s health care directive laws, it’s a good idea to speak with an attorney.
What You Can Express in a Living Will
Depending on the state, a person can provide treatment instructions concerning blood transfusions, dialysis, use of a respirator, and the administration of life-sustaining drugs and intravenous fluids. It goes without saying that these decisions should be carefully considered, with family members and friends consulted. If you begin thinking about your living will early on, you’ll give yourself time to plan carefully and to consult with your loved ones.
How an Attorney Can Help
An attorney can answer any questions you have about living wills, and he or she can help you to create a will that states your end-of-life and other medical decisions clearly. This section provides a link for consulting with an experienced estate planning attorney in your area.
Trusts
Trusts are estate-planning tools that can help you manage property during life while ensuring a smooth transition of affairs after death. The Trusts section of FindLaw’s Estate Planning Center includes practical information on different types of trusts including living trusts and charitable trusts. You’ll also find useful guidance on how to set up a living trust, choosing a trustee, tax implications of trusts, when it makes sense to hire an attorney and related issues.
Types of Trusts
There are many different kinds of trusts possible, though all trusts can be separated into two groups; revocable and irrevocable trusts. The key difference, that one can be revoked and the other cannot, is apparent in their names, though the reasons for selecting one or another has more to do with other details about ownership and control.
A revocable trust, often called a “living trust,” are trusts in which the person making the trust transfers their title of property into the Trust, serves as the initial Trustee, and has the ability to remove, change, modify, alter, or entirely revoke the trust during their lifetime. Trusts of this sort are useful because the trust owns the property, rather than the person making the trust. As such, when the person dies the property held in trust is not subject to probate. An irrevocable trust, by contrast, is one that cannot be altered, changed, modified, or revoked once it has been created.
Revocable trusts may be vulnerable to claims by the creator’s creditors. To access these assets the creditor will need to petition the court for an order enabling them to access the assets of the trust, but the control the trust maker maintains in trusts of this kind is precisely what makes the assets vulnerable to creditors. Upon death a revocable trust becomes irrevocable.
There are many kinds of revocable and irrevocable trusts. We detail many of the trust types and their characteristics elsewhere in this section.
Setting up a Trust
Trusts, regardless of their type, have some common features. A trust is a transfer of legal ownership of property or assets from the property owner, called the trustor, to a person or institution responsible for handling the property, called a trustee. This property is held for the benefit of a third party, called the beneficiary.
A trustee is often compensated for their management of the trust. Regardless of whether they are paid the trust creates a “fiduciary” relationship between the trustee and the beneficiary, meaning that they can only act in the interests of the beneficiary. The grantor may act as trustee, but they still have the fiduciary duty. The grantor may also be the beneficiary of a trust, or among several beneficiaries. The obligations created by these different roles are important to consider when establishing a trust.
Many factors can influence the procedure for setting up a trust, including the age, size of the estate, and the marital status of the trustor. We provide information on choosing a trustee, amending an existing trust, as well as why a trust might be useful and how a trust ends.
Durable Financial Power of Attorney
The durable financial power of attorney is simply a way to allow someone else to manage your finances in the event that you become incapacitated and are unable to make those decisions yourself. The power is granted in a document, and is not only useful for you, but can really help your family in times of crisis. More precisely, it grants someone legal authority to act on your behalf for financial issues. This person’s official name depends on the state you live in, but is often referred to as your agent or as an attorney-in-fact.
Your Financial Agent’s Tasks
You can set the limits of your agent’s power, granting as much or as little power as you think is appropriate. When deciding whether to set limits, consider the kind of tasks your agent will likely be asked to perform:
Paying your bills
Paying your taxes
Paying medical expenses
Managing your real estate assets
Accessing your financial accounts
Investing on your behalf
Collecting any retirement benefits
Transferring and selling your assets
Buying insurance for you
Operating your small business
Hiring someone to represent you
Your agent cannot do whatever he or she wants to do, but must act in your best interests. One area of potential conflict to keep in mind is in regards to paying for medical expenses. Often, people also name a medical agent who can make medical decisions for them. If your financial and medical agent aren’t the same person or disagree on medical care, the financial agent can make receiving medical care difficult.
Creating a Durable Financial Power of Attorney
Most states have simple forms to fill out to make someone your financial agent. Most states don’t require that you use these forms, but it is always a good idea to do so.
Generally, the document must be signed, witnessed and notarized. If your agent will have to deal with real estate assets, some states require you to put the document on file in the local land records office. Finally, many banks have their own forms, and while not strictly necessary, it will make the process much easier if your bank knows who your financial agent is.
When it Begins The first distinction to keep in mind when you are granting a financial power of attorney is whether or not to make it “durable”. Durability simply means whether the power is always there, but it has significant consequences that may not be apparent. The best way to illustrate this is by example.
For example, if you grant it but don’t make it durable, then when you are incapacitated, your agent will have the power to make financial decisions as you would expect. However, if you recover, that power is now gone. This means though, that if you are then incapacitated again, that person is no longer your financial agent since the power was given but then extinguished by your recovery. So decide whether you want to make the power durable or not.
Generally, it goes into effect the second you sign it. If you do not want this, you should create a “springing” financial power of attorney. This means that the power is not granted to your agent until you are incapacitated (and certified as such by a doctor). Springing powers can be durable or not.
When it Ends
The financial power of attorney is automatically extinguished upon your death. That means that your agent can only make financial decisions for you while you are alive and incapacitated. To deal with financial matters after your death, you need to name an executor in your will. Other ways it can be extinguished include divorce, the event that your named agent is unavailable, or if a court invalidates your document or you revoke it. Because there are many ways for the power to end that you can’t plan on, it is helpful to name alternate agents.




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Immigration Law

Immigration Law Introduction
Immigration is the act of entering a country with the intent to permanently live and/or work there. United States immigration laws encompass a wide range of situations that involve a person from a foreign country coming to this country, whether for a temporary visit, or to live here permanently.
The American immigration system is set up primarily to grant immigration status based on factors such as family reunification, in-demand work skills, and capital investment. The immigration system also covers refugees and asylum seekers, and provides a “lottery” for immigration status to people who have less pressing immigration needs. The procedure for gaining legal immigrant status will depend upon, among various factors, which path you are eligible to pursue based on your employment, education, and family situation.
A Nation of Immigrants
Millions of men and women from around the world have immigrated to the United States. Indeed, immigration has made the United States of America into a world power, particularly in terms of its economic growth. But attitudes toward new immigrants have cycled between favorable and hostile for more two centuries, and the immigration laws have often tracked these attitudes.
The Naturalization Act of 1790 was the first attempt to naturalize foreigners. The first significant federal legislation restricting immigration was the 1882 Chinese Exclusion Act. Quotas and immigration acts of all types have followed. But while Americans routinely acknowledge that the United States is a nation of immigrants, the system of laws that govern who can immigrate, who can visit, who can stay, and under what conditions can be downright confounding.
Take the Immigration and Nationality Act (INA) of 1952. This is a collection of laws that does everything from setting forth qualifications for naturalization, to regulating foreign students, to managing temporary workers, to authorizing humanitarian protections such as asylum and refugee admissions. New laws in 1965 ended the quota system that favored European immigrants, and today, the majority of the country's immigrants hail from Asia and Latin America.
Enforcement of Immigration Laws
The enforcement of immigration laws changed dramatically after the passage of Homeland Security Act of 2002, which created the Department of Homeland Security (DHS). The U.S. Citizenship and Immigration Services (USCIS), carries out the administrative functions involved in immigration. The U.S. Immigration and Customs Enforcement (ICE) and the U.S. Customs and Border Protection (CBP), enforce the laws and protect the U.S. borders.
Deportation, referred to as “removal” in legal terms, occurs when the federal government orders that a non-citizen be removed from the United States. This can happen for many reasons, but typically occurs after the immigrant violates immigration laws or the more serious criminal laws.
Navigating the Immigration System
FindLaw's Immigration Center has a wealth of information and resources on applying for U.S. citizenship, green cards, temporary visas, as well as information on dealing with immigration violations. You may also learn about the citizenship and naturalization process, permanent residency, temporary work visas, student visas, protection from deportation, and more.
But immigration laws are some of the most complex on the books. Maneuvering through the maze of immigration regulation can be a significant challenge. A qualified immigration lawyer is often a crucial requirement for anything beyond the most simple and straight-forward immigration law issues. An immigration lawyer should know the immigration laws inside and out, have experience in immigration courts and can assist in navigating the federal immigration system.
Immigration Overview
Immigration laws are some of the most complex in the books, and navigating through the maze of immigration regulation can be a significant challenge. This section is designed to provide individuals with basic information on immigration laws and some of the processes required for immigrating to the U.S. Below you will find articles covering immigrants who have the intention of permanently living and/or working there, although U.S. immigration laws also cover entry into the country for almost any purpose -- including temporary stays. Choose a link from the list below for introductory information on immigration and citizenship.
Permanent Residency
Lawful permanent residents (LPRs) are also referred to as “green card holders,” despite the fact that the residency document hasn't been green for a very long time. LPRs, as the name suggests, reside permanently in the United States. They are authorized to work for any employer without additional documentation and, within certain restrictions, can enter and leave the country at-will.
Residency is typically acquired when a family member or employer applies for the beneficiary to obtain status. There are a limited number of applications that permit an immigrant to file for themselves and certain humanitarian programs that also lead to residency.
LPR status must be renewed periodically and can be lost through rescission/revocation proceedings due to criminal offenses, abandonment, or other violations of status.
Residency through Family
In order to receive residency through a family member the individual must demonstrate that they do not have any bars to receiving residency. Prior immigration violations, criminal convictions, and other factors may disqualify an intending immigrant from eligibility for residency or may require a waiver before they can be granted.
Depending on the relationship between the petitioner and beneficiary a green card may be immediately available, or there may be a long wait to receive residency. Applications are processed as part of a “category” determined by the status of the petitioner, the relationship between the petitioner and beneficiary, and the beneficiary's age and marital status.
Residency through Employment
An individual seeking residency through employment must also be free of bars. As with family-based residency applications a petitioner is required, in this case it is typically an employer. Also, similar to family-based immigration, there are categories of applicants that process more or less quickly. In this case, the categories depend on the type of work and experience involved rather than the relationships of the parties.
Residency through Investment
Less commonly, residency may be acquired through significant investment that benefits the U.S. economy and creates or saves a specific number of jobs. There are a number of approved investment programs that help ensure that investments qualify for residency. One benefit of this method is that no third-party petitioner is necessary.
Diversity Lottery
The Diversity Visa Lottery Program, also called the “green card lottery,” is another program through which applicants may receive residency without a petitioning family member or employer. The State Department issues 50,000 immigrant visas from all the lottery applications submitted worldwide. Only countries where few people immigrate to the United States qualify to participate in the lottery.
Visas
Visas are most often the starting point for foreign nationals looking to visit, work, study, or move to the United States. While “non-immigrant” visas are for visitors who plan on eventually returning to their home country, so-called “green cards” are for those who intend on staying in the U.S. permanently. This section includes subsections on family visas, green cards, border entry rules, non-immigrant visas, and an overview of U.S. visas in general.
Non-Immigrant Visas
When people refer to a visa they generally mean a non-immigrant visa. Non-immigrant visas are also the most common sort of visa in the immigration system. The kind of non-immigrant visa held by someone determines how long they are allowed to stay in the country and what sort of activities they can undertake.
Tourist visas allow travel to and within the country, but forbid employment.
Employment-based visas permit employment, though often for a specific employer. As with non-immigrant visas these can generally be altered or extended by applying with the immigration service while the visa is still valid, though there are significant exceptions to this rule. Consulting with an immigration attorney can help you understand whether a visa will permit employment and understand whether you will be able to change or extend your status without leaving the country.
Immigrant Visas
Immigrant visas are a necessary part of any application for permanent residence (the “green card”). In most circumstances the immigrant visa is requested by a petitioner, either an employer or a family member. Immigrant visas are particularly important for applicants in categories that limit the number of green cards issued annually. High demand for green cards can result in a long waiting period, during which time the date the immigrant visa was filed is used to track the applicant's place in line.
The filing of an immigrant visa is evidence that the applicant intends to immigrate. Because many of the non-immigrant visas require a statement that the applicant does not intend to remain permanently in the U.S., this can lead to difficulties maintaining status. Before filing an immigrant visa petition it can be wise to consult with an immigration attorney to determine how long your wait is likely to be and to consider the consequences filing a petition can have on your status.
Dual-Intent Visas
Dual-intent visas manage to avoid the problem that having an immigrant visa petition pending can pose to someone present in the U.S. This limited kind of visa allows for a temporary stay and is not terminated when the individual takes action to secure permanent status. Dual-intent visas are frequently employment-based. However, not all employment-based visas are dual-intent.
Which sort of visa(s) you apply for can be very important. Someone who has the intent to immigrate and uses a non-immigrant visa to enter the country may be accused of fraud. On the other hand, some who enter with a non-immigrant visa may change their intent after entry. A close consideration of the details of your case may be necessary to ensure that you are not subjected to an accusation of this kind.
Family Visas
If you have a family member living abroad who wishes to live in the United States or if you would like to bring a non-resident spouse or child into the country, you can petition for a family visa on their behalf. For those already in the U.S. but wishing to stay indefinitely, this process is often referred to as “adjustment of status.” FindLaw's Family Visas section provides general and in-depth information about bringing a spouse or child to live in the U.S., obtaining visas for abused family members, eligibility and preference categories, and related matters.
Eligibility and Preference Categories
Whether someone can petition for a family member to come to the United States, and how long it takes before that person can come, depends on the relationship that exists between the parties. U.S. citizens over the age of 21 can file a petition for their spouse, children, siblings, or parents. The age and marital status of children impacts which category they belong to. Lawful permanent residents can file a petition for their spouse or unmarried children only.
There are unlimited green cards available for the spouse and unmarried minor children of a citizen. All the other relationships fall into one of the “preference categories” for which only a limited number of green cards are issued every year. This system has resulted in a backlog that can result in a delay of months or years between the filing of a petition and its approval.
Changing Preference Categories
If, during the pendency of the application, the lawful permanent resident petitioner acquires citizenship; the beneficiaries of visa petitions filed by that person will be moved to their new category when the petitioner indicates their change of status to the immigration service.
Another change in preference categories can occur when a child marries or turns 21. Either of these events may invalidate or change the beneficiary's preference category. If the petitioner is a lawful permanent resident, the marriage of their beneficiary child renders them ineligible for the “unmarried child” category. Since no category exists for the married children of permanent residents, their petition is entirely void. The child-beneficiary of a petition by a U.S. citizen, on the other hand, has their visa petition transferred from the unmarried child category (First Preference) to the married child category (Third Preference).
Similarly, reaching 21 years of age can impact the eligibility for a particular category. The Child Status Protection Act (CSPA) may permit some applicants to maintain their preference category. A close examination and the assistance of an immigration attorney can help to effectively navigate the CSPA regulations.
Temporary Fiancé(e) Visas
The K visa permits a foreign national to enter the country to marry a U.S. citizen. The couple must have met at least once in the two years prior to the filing of the application. There are many other restrictions. The beneficiary of a K visa who then enters the country must marry the petitioner and apply for permanent residence under a separate application within 90 days of their arrival. Those who enter the country with the K visa may not change or extend their status to another non-immigrant visa. They are also barred from applying for permanent residency on any grounds other than their marriage to the specific U.S. citizen that sponsored them. Exceptions to these limitations are rare.
Green Card
An immigrant visa for permanent legal residency (typically called a “green card”) allows a foreign national to live and work in the United States, usually indefinitely. People seeking immigrant visas usually are sponsored by an employer or a family member, but there are other avenues toward obtaining an immigrant visa. Below you fill find a wide range of information on immigrant visas, including overviews of employment- and family-based visas, investment/business visas, tips on how to maintain your green card, and much more.
The Petition
Virtually every application for permanent residence requires an associated immigrant visa petition. The petitioner is different depending on the basis for the request. In the case of family petitions, the family member holding status in the U.S. (the “petitioner”) requests the petition on behalf of the beneficiary. In most employment based applications the employer petitions on behalf of the beneficiary. There are other application types that permit the beneficiary to petition on their own behalf. Who “owns” the petition can be important since they hold the right to appeal a denial, not the foreign national.
Immigrant Visa Backlogs
Although there are some types of applicants for whom an unlimited number of visas are issued in a year; many categories of applicant must wait for a visa to become available. Large numbers of applicants for certain immigrant visa kinds have resulted in a backlog of applicants waiting their turn to receive residency. It is wise to learn whether your category is backlogged or not before applying.
In cases where backlogs exist, the date on which the visa petition was received by the immigration service becomes the “priority date” for the application. The Department of State's Visa Bulletin indicates which date the immigration service is currently issuing visas for and can give some indication of projected wait times.
Green Card Rescission/Revocation
Once granted residency there are still events that can result in the loss of the green card. Two common causes of the loss of residency are abandonment and criminal convictions. A resident who spends more than 180 days out of any given year risks being accused of having abandoned their residency. This can be prevented by requesting a reentry permit prior to departure.
Criminal convictions may also result in the revocation of a green card. Even some civil offenses or admissions that don't lead to a conviction can endanger an alien's resident status. There should be particular concern about felonies and crimes involving a moral element such as fraud, theft, sex offenses, etc. Criminal defense attorneys may not be aware of the immigration consequences of certain pleas and admissions. Retaining an immigration attorney to assess the risk to your residency when you are accused of a crime is highly advisable.

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