A Last Will and Testament (will), trust, or any other estate planning document can be contested with litigation if a family member can prove that their loved one was unduly influenced by another person, suffered from an incapacity of some kind, or was forced under duress to change his or her will. Contesting the validity of a will can be legally challenging, but if a will was executed for any of these reasons, it can be considered invalid by the court.
Undue Influence and Duress
If person A manipulates or persuades person B to change their estate planning documents in such a way that person A benefits from that change, there may be undue influence. Duress is some sort of threat or action that causes someone to do something against their will or better judgment. Every person is allowed the freedom in the United States to create a will and leave their assets to whomever they choose. However, if an individual’s ability is manipulated in such a way that they are unable to properly execute their wishes, they may be under undue influence.
Incapacity and undue influence oftentimes work hand in hand with regard to estate planning documents. If a person has any kind of diminished mental capacity, they are much more susceptible to any kind of improper influence or undue pressure. Undue influence of those persons that have any kind of incapacity typically happens out of the sight of friends and family members, and therefore, it is critical to piece together documentation and evidence to prove not only that the decedent was incapacitated in some way, but that they were also unduly influenced by a manipulative party.
Proving Undue Influence, Incapacity, and Duress
If you are a family member attempting to contest a will or trust document, you must prove that the estate planning documents were procured and changed under the influence of another party. When a family member is suddenly removed and excluded from a person’s life, typically under the influence or “guidance” of another person, they may be exerting either duress or undue influence on that person. Proving undue influence, incapacity and duress can be legally complex and challenging, and typically these cases revolve around the quality and thoroughness of the evidence provided to the court.
In many cases, proving that a will or trust was written under undue influence or duress is difficult and may include the following:
- The estate planning document leaves assets to a person who is wholly unexpected, and in most cases not a family member.
- The person who inherited most assets from the estate had some sort of “confidential relationship” and had the opportunity to exert undue influence or duress on the decedent.
- The decedent either had some form of incapacity or was susceptible in some way to duress or undue influence.
Contact an Experienced Estate Planning Attorney
If you believe that your loved one was either under duress or was the target of undue influence due to their incapacity which resulted in changes to their will, trust or other estate planning documents, contact the experienced estate planning attorneys at the Law Office of Kris Mukherji at (858) 442-5747 to help you determine your next steps and help you build a strong case.
If you are considering starting a business partnership, congratulations! Partnerships involve using everyone’s strengths and business resources in order to establish and build a profitable and successful business. These are the key steps to take when entering into a partnership to ensure that your business starts off on the right legal footing.
Make Sure Your Visions are the Same
Before actually establishing a partnership formation legally, you will want to ensure that you have considered whether this partnership will endure challenges, and that you and your partner can succeed in your new business venture. Consider the following questions to ensure that your vision for a successful business is the same.
- Do you work well together?
- Do you have similar work ethics?
- Do you have the ability to share discretionary decision-making authority?
- Do you enjoy collaborative endeavors?
- Do you appreciate other views and opinions in business?
- Do you have the same values as your partner?
- Do you have the same vision for the company for the next year? Five years? 10 years?
- Do you trust this person?
- Is this person a family relative or close friend? If so, if the partnership does not work out, you may lose a valuable personal relationship or cause division in the family in the future.
Consult With an Attorney
No matter how well-intentioned a person is, visiting with an attorney prior to the establishment of a partnership can ensure that all business and financial decisions are discussed so that all parties are on the same page, and everyone is in agreement regarding expectations of all areas of the business. Some of the ways that a business attorney can help your new partnership includes the following:
- Complete Partnership Vision Discussion. Attorneys often sit down with both partners regarding the new business as a whole to discuss everything from how financial obligations will be divided, start-up costs, future expenses, intellectual property, branding, what purchases need to be made, employees, employee benefits, marketing, production and every aspect of the new partnership. These discussions often include one-year, three-year, and 10-year plans. Discussions should occur regarding the solutions to any future business disputes, as well.
- Contracts and Agreements. The establishment of a partnership should include legal documents that are not only required by state and federal law, but also allow the partnership to operate in the most efficient and profitable manner possible. All documents related not only to the establishment of the business but trademarks, employee benefits, employee contracts, non-compete clauses, intellectual property matters, lease agreements, contracts with vendors, and more are necessary to protect your legal rights and ensure that you start your business partnership on the right legal footing.
Contact an Experienced Business Attorney
If you are in the process of starting a business partnership, there are several things you need to consider, as well as key steps you should take to ensure that your new company starts out with the best possible foundation. The lawyers at the Law Office of Kris Mukherji at (858) 442-5747 can help you determine what legal documents you need, and help you answer the questions you have regarding your new partnership.
If you are in the process of determining how to structure your new business legally, you may feel overwhelmed. The following is a listing of your options if you are considering establishing a Limited Liability Company (LLC).
Single Member vs. Multiple Member LLC
The obvious distinction between a single member vs. multiple-member LLC is how many owners the LLC has, the company business structure has other characteristics, as well. A single-member LLC only has one owner with full control over the company, and the LLC is its own legal entity that is independent legally of its owner. A multi-member LLC that has two or more owners is also separate legally from its owners, however, with multiple owners, they will all have legal authority and control over the company.
There are two ways you can establish an LLC: member-managed, and manager-managed. If you create a single-member LLC, then the LLC will be managed by one person, who is also the only member of management, the owner. However, if you have a multiple-member LLC, you must decide if you want the business to be managed by the members (owners) of the company, or if those owners can agree upon the selection of a manager to whom authority will be granted to manage daily operations or business decisions. All of these legal decisions must be made clear in the Operating Agreement of the newly established LLC.
Personal Asset Protection
In most cases, making the decision to establish an LLC will protect the owners’ personal assets. However, if there is a multiple-member LLC, and one owner has committed fraud or done anything to pierce the corporate veil and commingle personal and business assets, it is possible that the owners may lose some personal asset protection.
For both single-member and multi-member LLCs, the profits and losses will pass through to the owners according to the Operating Agreement. However, a single-member LLC will be treated as a sole proprietor and a multi-member LLC will be treated legally as a partnership for tax reasons. It is important to understand that how you establish your LLC at the beginning will have far-reaching consequences regarding how you operate your business, your legal liabilities, and your responsibilities regarding taxes.
Both single-member and multi-member LLCs have requirements legally regarding their business entity. Typically, single-member LLCs have less complicated requirements regarding compliance than multi-member LLCs. However, the failure to comply with any legal requirement regarding paying taxes, submitting annual reports, holding annual meetings, renewing permits and licenses, and maintaining company records could be met with severe fines and penalties.
Contact an Experienced Business Attorney Today
As you begin to consider your options regarding how to legally establish your business, consider visiting with an experienced business attorney. The lawyers at the Law Office of Kris Mukherji at (858) 442-5747 can help you determine which type of LLC would be most advantageous for your new business, and ensure that your legal rights are protected.
You may be considering starting a business, and establishing it as a Limited Liability Company (LLC). If so, there are several key elements that you should include in your LLC operating agreement to ensure that your legal rights are protected.
The equity structure of a business includes contributions, capital accounts, and how profits and losses are allocated. You should make sure that the membership interests, classes of membership interests, and the contributions and capital accounts are all addressed within your operating agreement. Additionally, your operating agreement should clarify exactly how the profits, losses, and distributions will be allocated among all members.
You have the right to determine whether your LLC will be managed by members or managers. If your LLC is manager-managed, you should include a section in your operating agreement that directly discusses the appointment of management, voting processes, manager duties and responsibilities, and how managers may be removed if necessary.
The standard rule is that members of an LLC may vote in proportion to their percentage interests. However, this rule may be changed in an operating agreement. All voting rights can be determined by the owner and can include veto rights or supermajority votes.
Limitation of Liability
When you develop your LLC operating agreement, you should ensure that you address all fiduciary duties, responsibilities, and liabilities with respect to managers. Contacting an experienced business attorney can help ensure that you uphold your fiduciary obligations.
Books and Records
Always make sure to include a section in your operating agreement that discusses record-keeping and the rights of an LLC member to inspect any accounting records or corporate records.
In some cases, a company will grow and offer new membership interests to additional parties. Your operating agreement should include an anti-dilution provision that protects certain members with specific interest percentages with respect to their voting rights, capital calls, or any other pre-emptive rights regarding their ability to purchase other classes of membership being offered.
Restriction on Transfer
Your operating agreement should directly address how membership interests may be transferred, and if those transfers will include management rights, veto/approval rights, or other originally established rights.
Confidentiality and Non-Compete Clauses
In many cases, your business will have trade secrets or patents regarding the services or goods your business sells. You should always include non-compete clauses, non-solicitation clauses, as well as confidentiality agreements in your operating agreement.
Contact an Experienced Business Attorney
Establishing an LLC and creating an operating agreement can be legally challenging and complex. Any oversight or missed details can prove to become legal headaches at a later time. Make sure that all of your intentions are executed correctly in your operating agreement by visiting with an experienced business attorney at the Law Office of Kris Mukherji at (858) 442-5747. We can help ensure that you have all of your questions answered, and will help you determine how exactly to create an operating agreement for your new LLC that exactly meets all of your legal needs.
The California Probate Code 850 is commonly referred to as the Heggstad Petition and avoids the lengthy court probate process by asking a court to transfer a property to a beneficiary following a decedent’s death. This petition is typically used when a decedent created a valid trust but failed to property title one or more property in the name of the trust.
Filing an 850 Petition
If your loved one passed away, and you feel that certain property should have been added to a trust, you may consider filing an 850 petition to add those properties to the trust. All too often, people create trusts without truly understanding that these trusts only control those assets and properties transferred into it.
If you believe that some property of the decedent should have been in the trust, you may consider filing an 850 Petition with the court. There are specific circumstances under which you will be able to make this request, and not every request is granted by a court. Additionally, it is important to note that an 850 Petition is always handled and processed through the courts, meaning that you will need to provide documentation regarding your petition if you wish the court to grant your request. Visiting with an experienced probate attorney can help you potentially avoid probate notes and help you determine if a court will likely rule in your favor regarding an 850 Petition.
The basis for such a petition was established in a case called the Estate of Heggstad. However, this case has its limitations and not every property will be granted admission into a trust. For example, one requirement is that the property must be referenced in either the trust document or in a separate written document of the estate. If there is no declaration of this property, it will likely not meet the standards established by the Heggstad case. A petitioner can not simply allege without proof that the decedent intended to put certain property into a trust but never got around to doing it legally.
Additionally, a successful Heggstad petition will need a copy of the decedent’s Living Trust, the Living Trust’s Schedule of Assets, the property deed, and all information and documentation regarding the decedent, heirs, and beneficiaries.
Common Reasons for Filing a Heggstad Petition
There are several reasons a California resident may use the 850 Petition. Some of the most common reasons include:
- The decedent simply forgot to include the property in the trust (and this is provable through evidence)
- The paperwork to include the property in the trust was somehow flawed
- The decedent died prior to the official transfer of property into the trust
- The decedent failed to realize they needed to change the title of the property
Contact an Experienced Estate Attorney
If you would like to visit with an experienced attorney regarding your ability to file a Heggstad petition, contact our legal team at the Law Office of Kris Mukherji at (858) 442-5747. We can help ensure that you have all of your questions answered, and will help you determine if the 850 Petition would be right for you.