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Estate Planning
Probate or Not?
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       A contract is a legally enforceable agreement.   A contract states each party's intent concerning the subject matter.  Contracts should state the parties to the contract, the price, subject matter and details of the agreement, as well as a deadline for performance under the terms of the contract.  The terms of the contract should be written out and all parties to the contract should sign it and receive a signed copy of it for their records.  Contracts are used in many different situations such as loans, real estate sales, employment and  rental contracts, as well as other situations. Some contracts may be void and unenforceable if not in writing.

       No.  However, a realtor is the person who will be responsible for showing the property to potential purchasers, negotiating with any potential purchaser, preparing paperwork for the sale of the property and representing your interests in the sale.  A realtor will charge a commission for their services, but they are experts at what they do and the commission is their pay for that expertise.  If you decide not to use a realtor, you can always change your mind and hire one later. Contact this office for referrals to experienced and reliable realtors.


       While it's true that having someone else as a joint tenant on real estate will avoid probate so long as one or more of the joint tenants is alive, something to consider before doing this is whether you are willing to lose the real estate because of an action of the joint tenant.  If you put your child(ren) on the title to your real estate and one of them gets a judgment against them for some reason, your real estate may be used to satisfy that judgment because, as a joint tenant, your child is a co-owner of the property.  A better thing to do if you want to avoid probate on real estate is to have a Transfer on Death Deed prepared.  This deed will convey title to your real estate only after your death.  You will still have full control over the real estate and will be able to borrow money using the real estate as collateral, sell the property, rent the property, or deal with it in any other way necessary without the consent of any other person.  Once you have died, a copy of your death certificate will need to be recorded in the county in which the real estate is held and such recording will effectively transfer the title to the real estate to those persons named in the Transfer on Death Deed. 

The other method of avoiding the necessity of probate for real estate is to create a living trust and hold title to the property in the trust name. The trust becomes the record owner, but you can retain full access to and control over the property.


       Each situation will be different.  If the legal owners of the property are still alive, you can purchase the property from them if they are willing to sell.  If the legal owners of the property are no longer alive, you may need either a probate or a quiet title suit in order to change ownership of the property.   A probate can be opened if the legal owner of the property has been dead for less than three years and no probate has been opened.  If it is more than three years after the death of the legal owner, you might still be able to do a probate of their estate.  This office can assist you in determining whether a probate or quiet title suit would be the appropriate course of action.      


       A quiet title suit is a lawsuit where you are claiming possession of real estate which is titled in the name of a person who cannot be located or is deceased and no probate has been done on the estate.  All persons who have any interest in the real property will be the named defendants and their interest in the property is being terminated.  If you think you may need a quiet title suit, please contact this office to assist you.  A quiet title suit is a complicated and time-consuming matter and should not be attempted without a lawyer.      

      The choice of a form of organization will determine many things about what the business and its participants can and cannot do; who will be subject to liability; how the entity must handle its profits and how it will be taxed.  This office can assist you in determining which entity would be best for your particular situation.

In a sole proprietorship, you report all business earnings on your tax return as income (with offset for business expenses) and you and all your personal assets remain subejct to liability for business debts or other business liabilities. While this may be the simpliest form of ownership for small business or businesses just starting, you should consider a different form of ownership (described below) which may limit liability to you personally.

The most common business form is a corporation, because it is both a powerful and a flexible form.  It provides the advantages of limited liability for shareholders, indefinite existence, centralized management and free transferability of its stock and other business interests.  A corporation is a taxable entity.  The corporation is required to file a tax return and the employees of the corporation are required to file their individual tax returns showing the income earned from the corporation.  This could result in a double tax situation, but not necessarily. 

A limited liability company is governed by state law whose stockholder-members are entitled to limited liability.  An LLC can choose to be taxed as a corporation or as a partnership.  Any member participating in the operation of the LLC's business for more than 500 hours a year is subject to self-employment tax on compensation received from the LLC. 

A partnership is a business association of two or more co-owners who carry on business for profit; share profits and losses; jointly own and control the firm's capital or property and have joint control and management over its business.  A partnership is not a taxpayer; instead, the partnership files an information return and the partners pay taxes on the income received from the partnership.  In a general liability partnership, each partner has equal liability.  In a limited partnership, there is at least one fully liable general partner plus one or more limited partners.  A limited partners' liability is limited to the amount they have invested in the partnership.  Limited partners do not have the power to control management of the partnership  and they are not liable for its debts over and above their investment.