Will Your Business Survive When You Die?

A SMALL BUSINESS MAY NOT SURVIVE YOUR DEATH

Everyone dies. ( Even in the state of Indiana, as blissful as it may be.)

Entrance to the Other Side

Not everyone will have a business when they die, but those who do have a business, especially those with a small business, will want that business to continue to thrive and supply the family with income and to give a legacy to the founder. The sad reality is that many businesses are so tied to the individual, they do not survive. Another reason is that the individual who actually owns and operates the company never took the time to consider what needed to be done after he or she died, so there are no instructions, no plans in place, and often, no life insurance proceeds to inject funding into the business to weather the crisis of the owner’s passing.

THINGS YOU CAN DO TO INSURE SURVIVAL OF YOUR SMALL BUSINESS

Have you considered whether or not your small business will survive without you? If you own a large business, then typically, there are things in place, officers in the corporation and employees who will be able to run things fine without you. But, most small businesses are run by one or two people, and when they go, the business goes. There are ways to prevent that, but those things have to be put in place now. One important  move is to put in place some “key employee” insurance making sure the business is the beneficiary. Another thing one can do is to begin training someone now to take your place.These are only a few things that can be done to insure your business survives your death.

Stop and think for a moment of all the little things, the myriad of things that absolutely must be done in the business. Ask yourself these questions: Who would do this? Would they do these things? Do they even know to do these things? How can I make sure someone does them?

There are ways to implement your wishes so that the business thrives without you. But, like effective estate planning, these are things that must be done now, not while you’re on your death bed. Otherwise, you’re going to have an estate nightmare where not only are there serious questions about who gets what, but what should be done with the business, which is now part of your estate. If there is a will contest, or if there are undecided questions as to what should be done with the business, then it falls into the lap of the probate court to decide what should be done with your small business. Is that what you want? Not likely.  It is possible that you could disinherit your  children and instead of them getting your business, as you assumed, someone else would get it.

DO YOU HAVE A PARTNER IN YOUR SMALL BUSINESS?

If there is a partner involved, you’d better have the proper paperwork in place before you die. Review it with your attorney to make sure it is all correct, and that it does what you think it does. I can’t tell you how many times I have had a client come in with a contract or document, tell me what they thought  it meant, and then after reading it, discover that it meant something entirely different than what they thought. This is especially true of agreements that are done privately, between the parties. Lawyers realize, because of their training, that some words are very significant and have legal meaning, and that some terms must be clearly spelled out in a document. A lay person, even sophisticated business people, often miss important terms or misunderstand the legal significance of a particular word or phrase.

DISCUSS THE ISSUE OF YOUR SMALL BUSINESS WITH YOUR LAWYER

Sit down with your lawyer and go over the legal issues that will certainly arise after your death. Have your attorney draft documents that become ironclad guarantees that certain policies will be enacted and followed after your death. Incorporate these wishes into your estate documents as well, so it is crystal clear what you want done with the company after you pass on. It is not enough to simply pass the business on to a loved one. They may not be capable (or willing) to implement your desires and policies. You need some safeguards in place.

Here’s is an interesting Fox article on the issue:

Will Your Small Business Live if You Die?

By Donna Fuscaldo: Protecting Your Small Business
Published May 04, 2012
FOXBusiness

It’s not an easy thing to consider, and for many small business owners, little thought is given to what will happen to the business in the event of their death. Many assume the next of kin or partner will take over. But without planning and forethought, the business could end up in probate, potentially creating irreparable damage.

“When you pass away there’s a lot of questions left up in the air,” says Brooke Borg of Borg Law Group. “If it goes through probate it could hold up the business and affect the bottom line.” Even if everyone agrees the small business will get passed to the next of kin or partner, without an estate plan (will and/or trust), the business will be held up in probate at least for a small amount of time.

According to legal experts, a small business owner should start estate planning as soon as the business is making a profit. Rocket Lawyer, the online legal service, surveyed small business owners and consumers and found that 69% of owners say estate planning is important to ensure the assets get passed down properly while 44% say it’s most important to avoid family disputes. Read more:

A SHORT VIDEO ON ESTATE PLANNING


 



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Rosa Parks Estate is Settled – The Rich Often Leave Wars Behind

Estate Wars Are Real Battles

There have been some rather famous estate battles in our nation over the years dealing with the probate of an estate. Most of us recall the long, ardous battle waged over the reclusive billionaire Howard Hughes’ estate. And, who can forget the brawl that went on for so many years involving the now deceased Ana Nicole Smith. Now, another very famous and very dead person has people settling their brawl over her estate. Rosa Parks, the famous civil rights leader’s estate is being settled.

By David Ashenfelter The secret legal agreement designed to settle the brawl over the estate of civil rights leader Rosa Parks is a secret no more. The confidential seven-page document — signed by Parks’ 15 nieces and nephews, Parks’ longtime friend  and caregiver Elaine Steele and an official of the institute Parks and Steele founded — turned up in a Jan. 18 filing with the Michigan Supreme Court. The agreement — struck during a late-night bargaining session in February 2007 in order to avert a trial in Wayne County Probate Court — spells out how the parties are to divvy up the proceeds from the sale of Parks’ belongings, said to be worth up to $8 million because of their historic value. Read More…

Many FaJohn Waynemous People Leave a Legacy of Estate Battles

The kids of actor John Wayne are fighting over his estate. Billionaire Melvin Simon of Indianapolis, Indiana, apparently did not have a will sewed so tightly as to preclude any litigation. Across the land, families have drawn battle lines and waged war with each other over who gets what from mom or dad’s estate. The interesting part of it all is that you’d think that rich people would have sense enough to make their wills iron-clad so as to be inviolate and immune to the petty bickering that often erupts amongst family.

But, that may not be possible. While it is important that you have your wills drafted carefully, the unfortunate thing is that greedy people will always do what greedy people do: they will try and get everything they can. It is not uncommon for a brother to want his sister’s share. I have known of cases where a family member literally stole a deceased parent’s entire estate. Sometimes, they got away with it simply because the other siblings were not as greedy and did not want to fight (or in some cases, could not afford a lengthy court battle).

 



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Shopping for the Right Nursing Home

Nursing Home Wheelchair Resident

Nursing Home WhisleBlowers Not Liked

When a worker in a nursing home spots abuse, it takes character to stand up and say something instead of standing by and remaining silent. If more workers would do as the two nurse assistants at the Road’s Princeton Place Nursing Home did, our nation’s nursing homes would cease to be a cess pool of abuse of nursing home patients.

Nursing home whistleblowers fired

More than a month ago two nurse assistants at Bandera Road’s Princeton Place nursing home started noticing problems. Sandra Lujan, a four-year veteran of the facility, claimed she saw elderly patients with abnormal and excessive bruising, including bruises in the shapes of fingers and torn skin on faces. Sonia Roman, a nurse assistant at Princeton Place for two years, also saw similar bruising. She also questioned whether there was enough staff to care for all 134 patients, saying many were routinely left unattended. She even confronted one nurse she saw verbally abusing and threatening an elderly patient.

Last month both brought reports of abuse and neglect to the nursing home’s administration. Within hours both were suspended for insubordination and eventually fired. The allegations are contained in a wrongful termination suit Lujan and Roman filed in Bexar County this week. Princeton Place administrator Joan Heinen declined to comment on the allegations, saying she hadn’t yet read the lawsuit…. more

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Shopping for the right nursing home

Thursday, March 15th, 2012 By Ron Ford

Nursing Home Reform Act

In 1987, Congress enacted the Nursing Home Reform Act, requiring nursing homes to provide a high level of care in order to qualify for Medicare and Medicaid patients. However, according to Trudy Lieberman of Consumer Reports, most states are not enforcing the act properly because of pressure from the nursing home industry. It is a practice, she says, that occurs across the nation.

A four-step process

Medicare, in its pamphlet “Your Guide to Choosing a Nursing Home,” recommends a four-step process: (1) Find out about nursing homes in your area, (2) Compare the quality of the nursing homes you are choosing, (3) Visit the nursing home and (4) Choose the home that best suits your needs.

(1) Finding out

Medicare suggest beginning with personal recommendations from friends, family, medical professionals and other trusted people. Then you may wish to check the Eldercare Locator at www.eldercare.gov, which lists and rates facilities by locality. Medicare offers a similar service with its Nursing Home Compare at www.medicare.gov/NHCompare.

Consumer Reports has also just released its fifth Nursing Home Quality Monitor list of the 10 best and the 10 worst nursing homes in each state. Each listing had to excel or completely fail in at least one of the “quality indicators” during more than one inspection to be included on the respective lists.

(2) Compare quality

Medicare’s Nursing Home Compare is a good place to go for this as well. It rates the quality of nursing homes via its “five star” rating system.

But don’t rely totally on the Medicare rating, says Jocelyn Montgomery of the California Association of Health Facilities. She says you need to dig a little deeper on the site. Be sure to click on “staffing” and “health inspections” for a more detailed survey of the facility. See if the facility has been cited, what for, and how many times. Finally, click on the “state survey agency” tab for contact information for the local long-term care ombudsman. Give that official a call, too. more…

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Nursing Home Staff is Critical for Good Care

Bottom line is that in the choosing of a Nursing Home, whether it be a nursing home in the state of Indiana, or Illinois, or Texas, or any other state, there are some critical things to know. One needs to do some homework. Look at the history. Look at the “report card” of the nursing home. What is their score? And most of all, look at the staff. You can tell a lot just by visiting and looking at the staff. Are they professional? Well groomed? Do the nursing assistants display an attitude of kindness towards the residents, or do they appear to be merely tolerating them? Visit the nursing home where you might consider placing your loved one. Don’t just talk to the admitting person, or the administration. Find someone in there to actually visit. Spend time with some of the residents and talk to them. Talk to someone who is visiting a loved one. Ask how they like the service.

Source



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The Case of Bad Blood: An Estate Gone Wrong

Estate Planning Disaster

Several years ago, I became involved as one of the attorneys in an estate case in a nearby county. I was representing a Lake County attorney seeking to collect a rather large sum of money for very valuable work he’d done for the family in getting a huge mortgage lien removed from some farm property that was owned by the decedent.

Eventually, I was able to negotiate with the Estate and my client was paid. However, during the time I was involved in the case, I saw up close and personal the extremes that can occur between families involved in disputes after mom and dad pass on. To say there was “contention” would be putting it mildly. There was definitely some “bad blood” present in this case.

After I left the case, I followed it and saw it go up to the appellate court three times. The three appeals are Kalwitz v. Estates of Kalwitz, 759 N.E.2d 228 (Ind.Ct.App.2001), reh’g denied, trans. denied; Estates of Kalwitz v. Kalwitz, 717 N.E.2d 904 (Ind.Ct.App.1999); and In re Estate of Kalwitz, 923 N.E.2d 982 (Ind.Ct.App.2010), trans. denied.

The case involved two brothers, Obed, Jr. and Eugene, and a sister, Helen. Obed, Jr. and his wife waged war with the brother and sister for over a decade. I have no idea what kind of money was spent by them on attorneys, but I know it was significant. On the side of the estate, there was no doubt even more money spent defending against the claims and counterclaims and multiple appeals. This is a case that has a lot of notoriety in the state of Indiana. It is also the perfect example of why one ought to make absolutely sure everything is done right when it comes to planning one’s estate.

The final appeal originated as a Small Claims case filed by Obed, Jr. and his wife, against Obed’s brother Eugene and sister Helen after the Estate had closed. The Court summarized it as follows:

This case is the fifth appeal in this contentious family dispute. Obed A. Kalwitz Sr. and Helen Kalwitz married in 1940 and had four children: Obed Jr., Eugene, Sharon, and Ted. Ted died in 1979. In the early 1980s, Obed Jr. asked his parents and Eugene to co-sign on a loan so that he could purchase his own farmland. When Obed Jr. and his wife Rolene failed to pay the promissory note, the lender filed a mortgage foreclosure action in 1985. While the action was pending, Obed Jr. and Rolene persuaded Obed Sr. and Helen to transfer 331 acres to Obed Jr. and Rolene’s two children for a mere purchase price of forty dollars to protect the property from a possible deficiency judgment in the foreclosure action. The property was to be transferred back to Obed Sr. and Helen at the close of the litigation. Obed Sr. died in 1989 and Helen died in 1995. On the day of Helen’s funeral, Obed Jr. placed a locked gate at the entrance to the 331 acres, barring Eugene from returning to his residence there. Also on that day, Sharon learned that Obed Jr. had no intention of returning title to the 331 acres. The mortgage foreclosure action was resolved later in 1995 by mutual dismissal of all pending claims. The recorded mortgage lien held by the lender on the 331 acres was removed.

My client was the attorney who got the mortgage lien removed from the real estate. We had to go to court and file a claim against the Estate to get paid, but eventually, we were able to settle up with the Estate and get out of the case.

The Court in the Estate case had looked pretty close at the real estate transaction. On appeal, the Appellate Court looked real close at that transaction, too. The Court said:

In the third published appeal to this Court, we determined that (1) Obed Jr. had a confidential or fiduciary relationship with his parents and exercised dominance over them and (2) Obed Jr. and Rolene acted in concert to induce and persuade Obed Sr. and Helen to convey land to their two children. Kalwitz v. Estate of Kalwitz, 822 N.E.2d 274 (Ind.Ct.App.2005), trans. denied. [1] We thus affirmed the trial court’s judgment imposing a constructive trust on the 331 acres in favor of the estates. Id.

Then, a year after the Court closed the Estate and discharged the Personal Representatives, Obed, Jr. and his wife filed a Small Claims action against Obed’s brother Eugene and his sister, Helen. In one of the most unusual opinions you’ll ever read, the Appellate Court said (among other things):

Eugene and Sharon suffered ten years of litigation to impose a constructive trust on 331 acres that Obed Jr. and Rolene received from Obed Sr. and Helen through constructive fraud. The parties then entered into the Mediation Settlement Agreement, which was to be ” a total and complete settlement of all claims of any nature or kind which Obed may have against the Estate, Sharon and Eugene individually and as Personal Representatives.” In that agreement, Obed Jr. and Rolene agreed to remove their personal property from the estates within thirty days after the date of the probate court’s order granting distribution. Eugene testified that the thirty-day period began in January 2007. Not only did Obed Jr. still have personal property on the estates after the thirty-day period, but he had also placed booby-traps, glass, and wire on the property. Obed Jr. did not mention that any of his personal property was stolen in his motion for more time to remove his property, Tr. p. 8-9, and he subsequently filed an affidavit stating that he forfeited the right to remove any remaining items from the estates. It was not until more than a year after the estates closed that Obed Jr. and Rolene filed the small claims action alleging that Eugene and Sharon stole their property in March and April of 2007.

We conclude that a reasonable inference may be drawn that Obed Jr. and Rolene acted with malice and oppressiveness which was not the result of a mistake of fact or law, honest error of judgment, overzealousness, mere negligence, or other human failing. The small claims court stated that it was imposing punitive damages to ” punish the plaintiffs and deter [them] from further litigation designed to serve the plaintiffs’ malicious desire and apparent need to pursue a vendetta against Obed Kalwitz [Jr.’s] siblings, thereby serving the public interest by discouraging frivolous use of the court system ad infinitum.” Appellants’ App. p. 114. We cannot say that the small claims court erred by awarding punitive damages.

Then, the Appellate Court said something even more extraordinary. I have read a lot of appellate court rulings in my day, and this is a pretty strong statement made by the Court. Here’s what it said:

As a final matter, Eugene and Sharon request appellate attorney’s fees and costs pursuant to Indiana Appellate Rule 66(E), which provides in pertinent part, ” The Court may assess damages if an appeal … is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorneys’ fees. The Court shall remand the case for execution.” The Court of Appeals uses extreme restraint in awarding appellate damages because of the potential chilling effect upon the exercise of the right to appeal. In re Estate of Carnes, 866 N.E.2d 260, 267 (Ind.Ct.App.2007). Nonetheless, this case is an example of when a chilling effect is necessary to put an end to the matter. We conclude that Obed Jr. and Rolene’s appeal, and indeed the entire lawsuit, was brought in bad faith and for purposes of harassment. We therefore remand to the small claims court for a determination of the amount of appellate attorney’s fees and costs to which Eugene and Sharon are entitled.

Various Emotions Can Drive People to Litigate

I’m not completely sure what drove this case. I do know there was a sense of outrage on the part of Obed, Jr., because he felt he was promised the land, and he’d apparently worked the land and did much, if not most, of all the farm work on the land. He clearly felt he had a right to the property. In my talks with the man, I did not ever get the sense that he was acting out of greed, but he rather that he felt he deserved the property. Clearly, his brother and sister (and the Courts) felt otherwise.

Whatever the motivations, one thing is clear from this case. Disputes can arise after mom and dad die, and more often than not, they arise because the parents did not make crystal clear their desires or intentions as to how their property was to be distributed. Or, there were no discussions between the siblings and the parents as to how things ought to be done. And, sometimes a child can get greedy. I’ve seen that happen, too.

This is a sad case.  The relationship between those siblings is no doubt destroyed. If it were possible to interview them today and the question were asked of them (the parents): “What would you have done differently, in terms of your estate, after seeing the emotional blood bath between your children?” I wonder what they would have said?

Question: Have you set up your estate to insure there is no emotional blood bath that will take place on your passing?

The cite for this case is: Kalwitz v. Kalwitz, 934 N.E.2d 741 (Ind.App. 2010)

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Crime is Alive and Well in Porter & Lake County Indiana: Love of Money is the Root of All Evil

Headline from The Times:

Masked men rob elderly, wheel chair-bound Valpo man

VALPARAISO | Police are investigating a report of a strong-arm robbery Monday of an elderly man confined to a wheel chair. Dispatchers received a 911 hang-up call about 3 p.m. from 1710 Vale Park Road. Valparaiso police responded and learned a wheel chair-bound, elderly man had been robbed inside his apartment.   Read more:

Crime is not likely to go away in our lifetime, and in both Porter and Lake County, Indiana, it seems we are cursed with our share of criminals. Money drives some people and long ago, we were told by the Apostle Paul that the “love of money is the root of all evil.” (1 Tim. 6:10). Apparently, it drives some to crime, even stooping so low as to rob the handcapped elderly. 

We havEnglish: Former Lake County courthouse in Crow...e all seen our share of problems in life, but those problems have mostly seemed kind of “well, that’s life” in scope and measure. But lately, it seems that too many are getting more than their share of problems and one has to wonder where the conscience of some has gone (or whether they ever had one). Robbing the elderly, and robbing an elderly person who is bound to a wheel chair is unconscionable. Frankly, I believe that there ought to be some special laws for such criminals, namely, “sentencing enhancing” laws. It would work like this:

Any individual convicted of robbing any person who is handicapped by a  mental and or physical condition, shall be sentenced accordingly:

1.  If the defendant has a prior conviction for any crime wherein a person was harmed physically, or if the previous crime was against a person deemed “elderly” (as defined), whether or not the person was harmed physically or not, then the judge shall add to the ordinary sentence that would have been given, an additional 7 years.

2.  On conviction of the crime of [assualt, which includes robbery], the defendant shall be sentenced to the usual sentencing specified by law for the crime of assault and/or robbery, but in addition, the court shall impose an additional 10 years to the sentence, plus any additional years required by law.

We either start getting rid of these people for a long, long time, or they will eventually get rid of us….for a much longer time.

Do nothing: Criminals Win!  

We lose.

 

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