Blog and Legal News

Why Your Contract Needs a Contingency Provision

There are many reasons why you or your company should consider adding a contingency clause or provision in you contracts. These provisions can be easily overlooked before entering into a binding agreement. However, it should garner more importance since it can be used as a type of “escape clause” for your formal agreements. A contingency clause is a contract condition that requires a specific event or action to take place for the contract to be considered valid. If the events or actions do not satisfy the contingency clause, the parties will be released from the contract’s obligations.

Let’s take a closer look at the composition of a contingency clause and what a proper clause entail. A contingency clause can be inserted into any contract to benefit either party. The courts often necessitate a good faith effort in contracts that include these clauses. One party can cancel a deal if certain requirements are not met, though the party benefiting from the clause usually has the right to waive. The provision must specify an event and / or action to occur for the contract to be considered valid.

Common contingency clauses may be used for the following:

· Licensing Contingency

· Financing Contingency

· Appraisal Contingency

· Compliance Contingency

It’s easy to overlook adding a contingency provision in your agreements. Every detail is important in a contract and contingency clauses may get lost when you’re drafting terms and conditions. It’s recommended to speak with an experienced contract attorney to see if a contingency provision makes sense for your contract. It’s important to always look out for you and your business’s interests and adding or amending a contingency clause to an outdated contract can do just that.

Small Business Legal Strategy for Coronavirus

As the calamity continues to change and governments around the world organize to solve the immediate threat, the long-term strategic impacts of COVID-19 also require analysis and strategic planning. All businesses, regardless of size, should prepare for the long-term impacts of COVID-19 in the workplace. In addition to the immediate effects on their operations, it is equally important to make sure they are prepared for a possible economic downturn in these moments. Confronting legal needs can seem like a daunting task at this time, but it’s always best to start protecting your business before it’s too late. There are several key legal documents that are essential and will need to be analyzed before you get back to business operations.

Operating Agreements and Bylaws

Let’s start with operating agreements for LLCs and bylaws for corporations. These documents are beneficial to a well-ordered business. They are especially important if you have multiple owners involved in the business. These documents define how functional and financial decisions are made for the company and will dictate how the company may respond in tough financial situations. Properly drafted legal documents can help you avoid possible liability and guard your best interest. These documents are especially significant as they provide how important business decisions are made (particularly when there may be a disagreement as to the best course of action), define the distribution of profits and losses, and lists out the obligations and rights of all members. Furthermore, these documents serve as a contingency plan if a downturn becomes too severe as members leave, sells their interest, get divorced, or die.

In addition to their bylaws, corporations should ensure that they are holding annual meetings and recording minutes as required by law.

Licensing

Unfortunately, knowing what type of license you need to operate may be difficult since there are many different governing departments that cover different jurisdictions. Contingent on your small business operation, you may need to obtain local, county, or federal licenses. As your operations change, your licensing needs may change as well. This may include registering with additional licensing departments if you are expanding into new jurisdictions. If you are adding to the scope of your business’s offerings or changing direction entirely, additional licensing can also be in the form of health license and permits, environmental license and permits, food and beverage licensing, and transportation licensing, just to name a few.

You’ll have to make sure that all your business licenses are current and that your entity is in good standing as well. Neglecting to do so can prevent your business from working with vendors or receiving government funding for difficult times.

Contracts

Business contracts should be updated periodically and now is a good time to review your business’s agreements. Depending on how your business operation will move forward from a crisis, you may need to draft an addendum to critical parts of your contracts. These can range from partnership agreements, vendor / supplier agreements, independent contractor agreements, or employment agreements. Keep in mind that drafting a completely new contract is a possibility as well to ensure that you are covering the entire scope of your operations. It is also important to ensure that your website has a current privacy policy and terms and conditions that are relevant to your business and industry. While it takes some time and effort to draft all these legal documents, they are the foundation to any successful business.

No matter the changes to your business operations, it is important to think of the legal side of those changes. Whether companies change to keep up with the times and technology, or decide to change due to crisis, it is recommended to speak with a Michigan business attorney to make sure your Michigan business is set up for success.

Remember These Points During Custody Negotiations.

One of the most difficult things for divorced parents to do is to figure out how to help their children thrive after the split. The child custody arrangement is one of the cornerstones of this occurring, so it’s imperative that parents get things in order quickly. If this is your situation, make sure that you go into the custody negotiation sessions ready to do what’s right for your children. 

The focus during this time must be on the kids. It’s easy to start thinking about what your ex did in the time leading up to the divorce, but none of this matters unless abuse was a part of the situation. Even then, you should only bring that up if the children were involved or if there is a reason to believe that they will become victims of abuse. 

It might help you to remember that your children need to have a meaningful relationship with both parents, so being able to put your own wishes aside to make that happen will likely improve life for them. The parenting time schedule you set with your ex can help both parents to have time to build that relationship so many cases involve setting a schedule that allows both parents to have equal time with the children. 

Part of the parenting plan is going to include rules and guidelines that apply to both parents. Make sure you consider these carefully because it’s possible that they might be misconstrued at some point. The goal of the parenting plan is to meet the child’s needs now so don’t try to look too far into the future as you work to come to an agreement. 

ESTATE PLANNING IN AN EMERGENCY – WHAT CAN YOU DO?

There are times in our life when situations arise making it urgent and essential to have a Health Care Directive, Power of Attorney and maybe a Will. This is certainly one of those times. Here is what you might need and how you can get it:

HEALTH CARE DIRECTIVE: A Health Care Directive is a document in which you set out who will make health care decisions for you if you are incapacitated. It also allows you to set out your end-of-life wishes, rather than leaving those hard decisions to hurting loved ones. It can be obtained and completed for free at hospitals, clinics, and the links below. Most Health Care Directives require either two witnesses or a notary.

POWER OF ATTORNEY: A Power of Attorney is a document in which you set out who will take care of your assets and finances if you’re incapacitated. It can be completed for free from the links below. Most Power of Attorney documents require a notary.

WILL: The Will is a document which designates how you want your assets to be divided when you die, but only with respect to the assets that do not transfer automatically at your death. For both Wills and automatic transfers, the decisions you make can have tax, Medicaid and other complications. It’s always recommended that you seek the assistance of an attorney to discuss your estate and wishes if you can. If you are unable to do so, the laws pertaining to writing your own will are set out below.

AUTOMATIC TRANSFERS AT DEATH: You can set up your bank accounts, retirement accounts, CD’s, money market accounts, and all your other financial assets to automatically pass to your heirs directly (outside of the Will) by adding beneficiary or pay-on-death designations to those accounts. You should contact the companies holding those assets for instructions on how to add or change such designations. Additionally, any property you own jointly with others, such as vehicles or land, will pass to the other joint owner automatically at your death.

WITNESSES AND NOTARY INFORMATION:

Anyone over 18 can witness, including relatives, but its best to have non-related parties as witnesses if possible. A notary should not be related to you. Many banks are still open and should have notaries available. Of course, witnesses and notaries may require that you leave the house and have contact with others, but obtaining such essential legal service is allowed under both states’ Emergency Orders. Notaries may charge a minimal fee for their services.

MORE ABOUT CREATING A WILL:

Things to consider when making your own Will: If you have a Will that you no longer want, your Will should state that it revokes all prior Wills. If you have minor children, you can designate who you want to care for your children, when do you want them to receive money if not at 18 (you can choose any age or combination of ages) and who you want to control their money until they receive it. Do you want anything to go to charity? Is there someone you want to leave out of your will? If so, you could state that you intentionally leave nothing to that person and, if you wish, state why.

Once your Will is complete, you should put it in a safe location and send a copy to someone you trust letting them know where it is. This can be done by taking a picture with your smart-phone and sending it via text or email. If you’re not able to send a copy either electronically or by regular mail, at least let the person know about the Will and its location. The important thing is to make sure someone you trust knows that your Will exists and where to find it.

If your assets are over $2.5 million dollars, you should consider talking to an attorney about more complex planning.

WE ARE HERE TO HELP!

By necessity, the above information leaves out volumes of other considerations that might be applicable to you, depending on your situation. If you have questions or would like assistance with your estate planning, Benjamin Herbert at Herbert Machnik Law Firm is here to help. Contact us at 269-459-1432 or visit our Contact Us page.

What is an Emergency Guardianship or Conservatorship Proceeding?

Guardianships, conservatorships, and other protective proceedings fall under the jurisdiction of the probate court. The probate court may appoint a guardian or conservator on behalf of a person if it finds a person to be incapacitated or in some cases, subject to undue influence. The proceedings for guardianship and conservatorship are rife with pitfalls, and elder law attorneys must navigate the nuances of pursuing or defending against claims.

A guardianship or a conservatorship is a court-supervised process for transferring an incapacitated individual’s rights to someone capable of providing supervision regarding care or finances. The procedures involved can be daunting and require a careful analysis of the risks and factors requiring the need for court intervention, required court evaluations and hearings, and other essential matters that impact the proceedings.

These protective proceedings come with inherent risks that often result in contested and litigated proceedings. A variety of issues beyond incapacity–such as financial abuse, fraud, misappropriation of assets, unacceptable accounting, and other critical issues–can be the basis for claims challenging the appointment or removal of a guardian or conservator. Attorneys must grasp these protective proceedings and available techniques to protect client interests.

This will be an opportunity for Herbert Machnik to share with other elder law attorneys our expertise relating to in-depth analysis of the legal, procedural, and administrative challenges of emergency conservatorships and guardianships. Benjamin will discuss critical issues in pursuing court intervention and orders, identifying risk and protective factors, and recent case law and standards of review, as well as offer techniques for conservatorship and guardianship litigation.

We will review these and other key issues:

  • What are the key issues and requirements for establishing guardianships?
  • What is the process and pitfalls to avoid in initiating protective proceedings and seeking conservatorship?
  • What techniques are available in overcoming issues in contested proceedings?
  • What are the challenges in transferring guardianship to another state or acquiring out-of-state recognition?

Benjamin Herbert and the Probate team at Herbert Machnik not only care about the continued education of our legal community, but about informing our clients too. If you have questions about what guardianship or conservatorship is, please call us today. Our knowledgeable legal specialists are here to help: 269-459-1432 or Contact Us here.

A Nonprofit Organization is Not Necessarily a “Charitable” Organization

Very often when speaking of corporations established for laudable purposes people incorrectly equate the word “nonprofit” with “charitable.” While this may be a distinction without a difference in casual discussions, when it comes to a federal tax return, the two are not synonymous. This misconception during the initial stages of planning and establishment of a nonprofit corporation can result in a costly mistake by organizers hoping to fund their activities with donations.

Specifically, although all charitable organizations are also nonprofit corporations, the converse is not always true. The difference is due to the fact that the term “nonprofit” derives from state law, whereas “charitable” is a term that has acquired a specific and technical meaning under the federal tax law.

State vs. Federal Law

Under Michigan State law, a “nonprofit corporation” is a “corporation no part of the income or profit of which is distributed to its members, directors or officers.” Nonprofit corporations may be organized for any lawful purpose or purposes and are not restricted to activities that are charitable.

However, the deduction in the federal tax code is solely for contributions or gifts which are “charitable.” Thus, while a nonprofit corporation is usually created for one or more worthy causes, a determination as to whether it will be organized and operated for charitable reasons is crucial if the funding plan relies on deductible public donations.

The Test

In order to be a deductible “charitable contribution,” the donation must be a contribution to a corporation “organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or to foster national or international amateur sports competition…or for the prevention of cruelty to animals.” We’ll refer to these as “charitable purposes.” Section 501(c)(3) of the Internal Revenue Code recognizes these types of organizations (“501(c)(3)s”) as exempt from federal income tax. The three 501(c)(3)s that are most commonly known are educational, religious, and charitable organizations.

To satisfy the test above, the articles of organization must limit the organization’s purpose to one or more of the charitable purposes and not expressly empower the organization to engage in activities which do not further those purposes. The existence, therefore, of a substantial non-charitable purpose is fatal to qualification as a 501(c)(3). In addition, and common to nonprofit corporations, no part of the net earnings may “inure[] to the benefit of any private shareholder or individual,” nor can the corporation engage in lobbying or political campaigning.  

The assets of the corporation must also be dedicated to the charitable purpose detailed in the articles of organization. For example, an organization does not meet the test if its articles or the law of the State in which it was created provide that the assets would, upon dissolution of the nonprofit, be distributed to its members or shareholders.

What is “charitable?”

Where this all may get confusing is in the regulations interpreting what is “charitable,” which describe the term to include:

  1. Relief of the poor and distressed or of the underprivileged;
  2. Advancement of religion;
  3. Advancement of education or science;
  4. Erection or maintenance of public buildings, monuments or works;
  5. Lessening of the burdens of government; and
  6. Promotion of social welfare by organizations designed to accomplish any of the above purposes, or (i) to lessen neighborhood tensions; (ii) to eliminate prejudice and discrimination; (iii) to defend human and civil rights secured by law; or (iv) to combat community deterioration and juvenile delinquency.   

While the first four expressed purposes are readily understood, whether an organization’s objectives and goals are deemed to lessen the burdens of government, or to promote social welfare in a way that is charitable is less clear.

For example, before an organization can be classified as having the charitable purpose of lessening the burdens of government, it must be able to demonstrate that the State and/or a local government accepts the activities to be conducted as its, or their, own responsibility, and the government recognizes the organization as acting on its behalf. The fact that an organization is engaged in an activity that is sometimes undertaken by the government is insufficient to establish a burden of government.

Likewise, while an association or civic league that is operated for the promotion of social welfare may qualify for tax exemption under another section of the tax code, such an organization must also be considered as designed to accomplish charitable purposes in order to qualify as a 501(c)(3) organization, donations to which are tax deductible. Not all wholesome activities for the social improvement and welfare of the community are charitable; for example, providing free services to the public is not necessarily charitable unless, for example, it also is providing relief to the poor and distressed, or is advancing education or combating community deterioration and juvenile delinquency.   

Adding to the conundrum is that the Internal Revenue Service agrees the meaning of “charitable” is not to be construed as limited by these expressed purposes; rather, it recognizes there are other tax-exempt purposes that are charitable, many of which have been sanctioned by judicial decisions over the years.

The Complexities of Being Charitable  

All this is to make the point that what is “charitable” is not always intuitive. Accordingly, if you are creating a nonprofit company and hope to fund it with tax-deductible donations from the public, it is important to realize that your non-profit organization must also qualify as a Section 501(c)(3) charitable organization in order for contributions to be tax-deductible. Therefore, during the initial stages of planning and establishment of a nonprofit corporation, attention to whether the purposes for which you are organizing meet the criteria for what is “charitable” under federal tax law, as well as being not-for-profit, is essential if the goal is for the organization to be funded in whole, or in part, through public contributions.

Finally, please note that the focus of this blog is to outline what it means to be organized for a charitable purpose or purposes under the federal income tax law. It is also imperative that your organization is operated for a charitable purpose or purposes in order to qualify as a Section 501(c)(3) organization. Further, your organization will not be regarded as satisfying these tests unless it serves a public, rather than a private, interest.

Is there a storm brewing over your property purchase?

When you purchase a piece of property, you want to make sure that no one can come knocking on your door saying they have a right to it. As part of the purchase process, your mortgage lender may have required you to obtain a title search before agreeing to give you any money. 

You may have wondered what this was but shrugged it off as just part of the deal. Then, you find out that someone else may actually have a legal claim to the property you want to buy. What do you do now?

Dark clouds have gathered over the property

These claims, which can include old mortgages, heirs of a prior owner who never received notice of the death or old tax liens, could place “clouds” on the title. These clouds can prevent you from truly owning the property, and you would more than likely not be able to receive title insurance as a result.

Quieting the storm

This is where a quiet title action comes into play. In such a court proceeding, you ask the court to “quiet” all other claims to the property. Essentially, the court rules that, from the entry date of the order, any prior claims of ownership to the property no longer exist.

Going through this process can be especially important after a tax or foreclosure sale. Previous owners, lenders and taxing authorities may be able to come back at a later time and stake a claim to the property otherwise. A successful quiet title action ensures that you have complete legal ownership of the property.

Facilitating the winds of change

Nearly every quiet title action involves the following steps:

  • The filing of a petition with the court
  • Notification of all defendants
  • Wait for the defendants’ response time to run

If no one responds to the action, the court clears your title by default. You may wonder how much it will cost you to have this done. It will vary, depending on the circumstances and your location. However, the upfront costs of settling these matters are often much less than dealing with a problem that could arise in the future.

Once you receive an order from the court, you may need to take additional steps in order to clean up the real estate records to reflect the court’s order.

Clear skies

Once you take these steps, you can proceed with your purchase, knowing that you will come out of it with full, unchallenged ownership of the property. That is, if you handled everything properly. In order to help ensure that nothing goes wrong, you may want to bring in someone experienced in real estate matters and quiet title actions.

Divorce as an older adult and Social Security benefits

There are many critical issues that older people have to address before, during and after their divorce. Life changes in many ways when a marriage is brought to an end and these changes are often especially difficult later in life. Aside from issues involving children and the division of marital property, older adults have many other unique considerations, such as Social Security benefits. In fact, many people are able to receive benefits on their former spouse’s record, so long as certain conditions are met.

For starters, people become eligible to receive Social Security benefits when they reach the age of 62. Some people assume that filing for a divorce will disqualify them from receiving any Social Security benefits from their former spouse’s record. However, if a marriage lasted for at least 10 years, people are often able to obtain these critical benefits and move forward in their lives. Moreover, many people are able to gain access to Social Security survivor benefits after their former spouse passes away.

Social Security benefits are a lifeline for many older adults. Some are no longer able to work and they need this income to help with medical costs, bills and many other expenses that arise. This is just one issue that older adults must look into when bringing their marriage to an end. Unfortunately, some people do not realize that they are eligible to receive these benefits, which highlights the importance of careful research and planning with respect to the divorce process. Explore our website to read about other issues that affect older adults during a divorce.

Guardianship Abuse and Neglect

https://www.csindy.com/coloradosprings/how-courts-and-guardians-exploit-the-elderly-and-their-estates-and-get-away-with-it/Content?oid=21038322

With baby boomers hitting the retirement age in droves, this is something that is extremely important for friends and family members. State appointed guardians are paid to protect the elderly person/s that they represent. Too often however, we have people running into a situation where these people are stealing from and/or neglecting the very people that they are supposed to be taking care of. In this article, you will see examples of elderly people being taken for all they’re worth, being torn from their family and friendship circles. or just flat out neglected. If you or someone you know has an elderly parent, friend, or loved one, you should do whatever you can to ensure that their guardian is a close family member or friend. Avoiding the state appointed options at all cost is in the best interest of everyone involved.

Unmarried Individuals Sharing Assets and Cohabiting

https://www.recordonline.com/news/20191102/bonnie-kraham-elder-law-estate-planning-for-unmarried-couples

This was a great article addressing the rise in unmarried couples, over the age of 50, who are cohabiting. As the number rises, we need to be stress the importance of still being prepared for your retirement through setting goals and planning whether your personal life has taken a turn or not. When unmarried people are living together and sharing assets, there can be a rise in family tension upon the death or illness to one of the two individuals. Avoiding the loss of assets and having specific beneficiaries selected for specific roles and entitlements is a good practice to ensure that your family and hard earned assets stay within your estate.