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Postmortem Administration

Postmortem Administration

After the death of a loved one, close family members face a number of complicated decisions relating to the funeral and other final expenses. It is common for an estate to end up in probate so that debts can be settled and assets dispersed to beneficiaries as required by law. If the deceased person created a trust before his or her death, it is often possible to avoid probate.   The trustee has the responsibility to precisely follow all instructions set forth in the trust, while also complying with state law. A trustee must be careful to fulfill his fiduciary duty, which includes such tasks as making sure all creditors have been paid, filing all necessary tax documents, managing assets and liquidating them when required, and providing accounting to the beneficiaries. In many cases there are additional requirements which must be fulfilled in order to wind up the deceased person’s affairs. The entire process for fulfilling all of these requirements may take place over several months, or even a year or more. There are many legal requirements that must be met while administering a trust. California state law sets forth strict time limits for the filing of various forms and documents. Both state and federal taxes must be filed in the correct manner, within the correct time periods, and all creditors must be satisfied, to the extent possible with remaining estate assets only, in accordance with the law. In addition, the distribution of assets as laid forth in the trust can often be complicated and problematic for the trustee. If all stipulations in the trust are not followed exactly, beneficiaries may raise legal objections and the trustee could be liable for any mistakes made while administering the trust. Since the process of postmortem administration can be a difficult one, and even result in legal difficulties if mistakes are made, it is highly advisable to consult with an attorney who is familiar with these procedures. The attorneys at Bethel Law Corporation are highly experienced in  both trust administration and probate procedures, and are able to guide trustees through these often difficult and complex processes. The trustee can be confident that the stipulations in the trust are being followed in accordance with the law, while protecting the trustee from legal...

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Protection of Trade Secrets

Protection of Trade Secrets

In industry, it is generally recognized that one’s livelihood may be at least partially derived from certain information or processes unique to that business. This has led to a desire to protect these “trade secrets”, so inappropriate use or outright theft of the intellectual property cannot be used by a competitor. Protection of trade secrets is covered under tort law, which provides a legal avenue for compensation to the injured party. The Uniform Trade Secrets Act was originally published by the Uniform Law Commission in 1979, in an effort to provide a framework for a uniform set of regulations pertaining to trade secrets in industry.  Prior to the widespread adoption of the UTSA, protection of trade secrets fell under common law in individual states. With the exceptions of Texas, Massachusetts, and New York, forty-seven states and the District of the Columbia have now passed regulations based upon the UTSA model. This provides greater consistency, and therefore better legal protection, from one state to another. The UTSA defines a trade secret by several qualifying factors. A trade secret can be any type of information such as formulas, techniques, patterns, devices, programs, methods, or processes, which has economic value stemming from the fact that it is not generally known by other persons who may profit from using or knowing it. The person or industry which claims to own the trade secret must have made reasonable efforts to protect its secrecy. It does not matter whether the information has real economic value or only potential value. Both are protected under the UTSA. In order for a trade secrets claim to qualify under UTSA guidelines, the subject matter in question must first qualify as a trade secret by this definition. The owner of the information must also prove that reasonable measures were taken to protect it, and that the offending party wrongfully acquired the information. This last qualification is very important. There are basically two situations which qualify for the wrongful acquisition of a trade secret: a breach of confidence or improper means of gaining the information. There are many lawful ways in which a competitor may acquire a trade secret and use it to their own advantage, such as reverse engineering or independent discovery. If it can be proven that the trade secret owner did not take reasonable measure to protect the information, then the original owner will probably not succeed in...

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Social Enterprise

Social Enterprise

Anyone who watches the news, or simply goes out into the world every day, has probably already gained the impression that communities are facing an enormous amount of social and environmental problems. The number of issues facing the world today is far greater and more complex than ever, and these problems have quickly outstripped the government’s ability to solve them. Even non-profit organizations, which are created solely for charitable purposes, are unable to meet the needs of our society in an era of reduced contributions due to a weak economy. In order to meet the growing needs and widening gap between those needs and the available support, businesses are innovating and restructuring to find a working middle ground between the profit motive, and the nonprofit charitable purpose.  A hybrid of profits with a conscience.   This is what social enterprise movement attempts to accomplish. Corporations are realizing that corporations need their communities just as much as communities need corporations. After all, no amount of strategy will help a business succeed if the world crumbles around it. A benefit corporation is one which holds itself to higher standards of purpose, accountability, and transparency. Purpose has been reinvented, and these corporations now include the production of high quality jobs and improved quality of life along with the traditional goal of turning a profit. There is a growing interest amongst investors to contribute to companies which strive to address environmental and social concerns. A benefit corporation seeks to bridge the desires of these motivated, philanthropic investors with the pressing needs of the community. The social enterprise movement has become so popular that it has inspired bi-partisan support for legislation in 11 states. Sixteen more states are poised to join them, by creating laws to give businesses the freedom and protection to create this new corporate structure. These laws carry no impact for state budgets, but improve the quality of life for all citizens. As corporate leaders recognize the mutual benefits for both themselves and their communities, we will continue to see more companies restructure themselves into benefit corporations. At Bethel Law Corporation, we are assisting organizations in the establishment of this corporate structure.  We invite you to contact our office for further...

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Changes in Estate Taxes for 2013

Changes in Estate Taxes for 2013

Update 1/7/2013 There has been much talk recently regarding the hypothetical Fiscal Cliff, and the good news is that Congress did indeed pass a bill to avoid it. The personal impact of H.R. 8 will vary from one person to the next, but the changes to estate taxes are a matter to which everyone should pay close attention. Those who have been, or will be, the beneficiaries of a large estate will be glad to know that the Bush tax cuts on estates have been extended permanently. Without these tax cuts, the lifetime applicable exclusion amount on an estate would have been 1 million, and after that the taxes could have topped out at 55 percent.  At the new rates, the first 5 million for individual estates will be excluded, with a top tax rate of 40 percent applying after that. For family estates, the exclusion is 10 million. These new rates are permanent, and will be adjusted for inflation. By the year 2020, the exclusion amounts are expected to be adjusted to 7.5 million and 15 million for individuals and married couples, respectively. Another piece of good news is that the exclusions will remain portable between spouses, meaning a surviving spouse can continue to use a deceased spouse’s federal tax exemption. Even though these changes in estate tax law are beneficial, one should not become complacent. There are many reasons such beneficiaries should still seek financial and legal counsel in order to manage the estate.  Protection will still be needed in order to guard assets from probate proceedings or creditors. Also, even though the need for bypass trusts may be reduced in some cases, there will still be many instances in which they are warranted. For example, if the assets are expected to appreciate in value, if a surviving spouse considers remarriage, or if a bypass trust is already in effect, legal counsel should be sought in order to maintain protection for the estate. The attorneys at Bethel Law are well versed in estate tax law, and are experienced in protecting estates from litigation, creditors, and other potential pitfalls. With all the recent changes in federal law taking effect in 2013, beneficiaries of estates would be wise to consult a qualified attorney in order to ensure the best protection for their...

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Medi-Cal Basics

Medi-Cal Basics

Growing older often means some very complicated decisions must be made about health care and long-term living arrangements. Most people are already aware of Medicare by the time they hit retirement age, and may be expecting it to pay for all future medical expenses. Unfortunately, Medicare often does not cover all of the costs of necessary care. In many cases Medi-Cal will be needed to cover these additional expenses. Those who find themselves in a situation which requires long-term nursing care often receive an unpleasant surprise from Medicare. While Medicare does pay for a nursing home stay in certain circumstances, there are many cases in which there is no coverage for this type of care. In this situation the individual or his or her caretaker will need to apply for Medi-Cal, which will cover the high costs of a nursing home or In Home Supportive Services (IHSS). If the patient is transferred to a nursing home directly from a hospital, and is expected to stay at least three days, Medicare may pay the bill. The patient must be in the home because he or she needs daily rehabilitation services, or specialized physician or nursing care. An example of this type of situation would be the level of care needed to recover from a stroke. However, Medicare will not pay for a nursing home stay unless the referral was made for the aforementioned reasons. There are many other situations in which someone may need this level of care. For instance, those who need assistance with personal care like bathing, remembering medications, and preparing meals often decide a nursing home is the best environment for meeting those needs. Another option in this situation is In Home Supportive Services. The individual or his or her caretaker will need to apply for Medi-Cal, which is another form of health insurance. Medi-Cal does not replace Medicare, but is used as supplementary insurance to help pay for these costs not covered by Medicare. Navigating the Medi-Cal application process can be quite difficult in many circumstances. The experienced attorneys at the Bethel Law Corporation can help guide applicants through this process, advise them on legally rearranging assets, and aide them in avoiding future recovery claims by the state of...

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