- Are you married?
- Do you have an “ex”?
- Do you have children?
- Children from a previous marriage?
- A home? Or Two?
- A business?
- Parents you need to take care of?
- A crazy relative?
- A brother you cannot stand?
- A special needs grandchild or other relative?
- An in-law you think is out for the family money?
If you answered “yes” to any of the above questions you should plan your estate! A couple of hours with an attorney and a few well spent dollars can save years of infighting and tens of thousands of dollars in litigation and attorney fees.
No one wants to think of a time when they will die or their spouse will pass away. However, statistics show that all people will die at some point in their lives, usually the end.
It does not matter if you are worth $150,000 or $150 Million, to avoid probate, keep your affairs private, and most importantly ensure your wishes are carried out and your family’s well being is maintained, create your Estate Plan TODAY.
- An Advanced Health Care Directive – lets you appoint a person you trust to make general and specific health care as well as life ending health decisions for you if you are not capable of doing so yourself.
- A Durable Power of Attorney – lets you appoint a person you trust to make financial and legal decisions for you if you are not capable of doing so.
- A Revocable Trust – holds your assets, personal, and real property. The trust allows you to manage your affairs as always and provides for subsequent persons you appoint to manage your affairs and distribute your assets per your instructions after your passing.
- A Will works with the Trust making sure all assets, especially those that may not be in the Trust, are handled per your intentions. Additionally, the will is where you appoint guardians to take care of your children.
If an individual is worth more than $5.3M or a couple are worth more than $10.7M then an Estate Plan is even more critical to manage Federal Estate Tax ramifications. There are many options with a little planning.
Are you one of the few well prepared individuals who already has an estate plan in place? When was it last reviewed? Do your children still need a guardian? Are the agents or trustees you appointed still capable of protecting your interests? It never hurts to review the documents. The time to make changes is now.
I have a simple will I wrote about 8 years ago and I want to make sure my assets go to my children. I only have a small house, a couple of saving accounts, and a life insurance policy. Is the will I wrote enough
Do It Yourselfer
Is the will you wrote enough for what? If you have more than $150,000 in assets (and your house and life insurance count as assets) the will you wrote will be enough to send your estate through probate court, ensure your children spend money on attorneys as they wind their way through the system for about 2-3 years until they finally receive what is left of their inheritance.
Whether you are worth $200,000 or $200 Million, there is a lot more to Estate Planning than just a “simple will”. In fact, the “planning” is different for each individual or couple and depends not only on the financial situation, but the needs, age, health, family situation, children, grandchildren, blended families, exes, relatives, friends, and much more.
Estate Planning takes into consideration your potential incapacity, while you are still alive. An Advanced Healthcare Directive lets you appoint a representative of your choice to carry out your wishes with regard to healthcare and life saving heroic measures. If you are unable to manage your financial affairs, a well drafted Durable General Power of Attorney ensures the people you trust are in charge until you can again take over.
The mainstay of any good Estate Plan is the Trust. In a Trust you outline your plans during your lifetime and after your demise for the benefit of your chosen heirs. You set forth your intentions. You, and subsequently the Trustees you appoint carry out those intentions and instructions. You can create a simple or intricate plan, to protect you, your family and your assets as well as minimize tax consequences.
Finally, the Will that is drafted in Estate Planning works to ensure that all assets are either placed into the trust (pour over) or distributed pursuant to your instructions.
While this is not a subject many of us like to contemplate, for those who want peace of mind for themselves and their loved ones, Estate Planning is the smartest thing to do.
I have a business I have been running for 8 years. I want to bring in my friend as a partner. He has $50,000 he wants to invest and I wondered what I need to do to protect my interest and his in the business.
Great question. You have a business you have been operating and you have a friend who wants to invest and work with you. This can be a recipe for success or disaster.
To avoid disaster, plan ahead. A partnership agreement which would describe in detail each partner’s duties and obligations would be your best solution. This agreement should take into consideration what happens when the business becomes a great success, and what happens if it doesn’t. There are many other aspects to a partnership agreement and your attorney can discuss all of them with you. Your attorney may recommend that she represent only you and that your future partner have his own representation. All of these issues are worth resolving now, because an ounce of prevention is worth a pound of cure.
Case Study: Reckless Employer
In handling employment cases since 1996 for both employees and employers I have found one principle holds true: it is the disgruntled employee who files a lawsuit. Nine out of ten times a terminated employee seeks an attorney because they were terminated dismissively, they were humiliated, denigrated, or terminated without dignity or respect. Of course an employee needs a legitimate legal basis to bring a lawsuit, and there are protections against frivolous suits. But for an employee who is upset by an employer it is quite easy to find an attorney and to find a reason to file a lawsuit.
I have been advising employers for years that firing with dignity is the key. Even an employee with a legitimate claim can be terminated so as to avoid a lawsuit and I am proud to have helped many employees and employers find the right path.
Yet in this day and age of political correctness, employers still act recklessly. Some traps to avoid:
- An employee who tells you they are not happy or disgruntled. (Pretty clear message!)
- An employee who asks for a severance package and then their demands are ignored. (Trouble?)
- An employee who tells you she is pregnant and then is terminated one week later. (OMG)
- An employee who comes into work wearing a neck brace (red flag?) and an employer who picks that day to terminate the employee (death wish?).
- An employee who is a high level executive terminated and walked out of the building by security, (smart?)
- An employee jokes with another employee about them both being gay, and then both are terminated “because they told jokes,” (get your checkbook out!)
All of the above are recipes for disaster. If employers or HR are not competent or comfortable handling a proper termination, I would recommend seeking guidance from a legal professional before termination. An ounce of prevention is worth a pound of cure.
If you are an employee and any of the above has happened to you, call me immediately!
I own a car dealership and I train my employees and teach them how to sell cars. Recently two of my employees left to work for a competitor.
Before they left my employment I offered and they accepted $5,000.00 in exchange for an agreement that they would not compete with my business for the next 5 years. How do I enforce this agreement
Your situation is common. Many employers spend time training workers only to have employees leave to work for a competing business. Unfortunately, in California this is not against the law.
The California Business and Professions Code Section 16600 holds that:
“…every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”
Therefore, non-compete agreements, like the one you describe, are generally unenforceable.
Such an agreement may be enforced when the following criteria are met:
- it is necessary to protect the employer;
- provides a reasonable time limit;
- provides a reasonable territorial limit;
- is not harsh or oppressive to the employee; and
- is not contrary to public policy.
If these criteria are met, the way to enforce the agreement is with a cease and desist letter to the employee. And if that does not work, a lawsuit may be filed.
Case Study: Actors and Loan Out Companies
Recently I had a client, an Actor, who had his own Limited Liability Company which loaned out his services when he was acting. This is common in the entertainment industry. stripes-trenchcoat.jpg
The entertainment professionals form a LLC or corporation in order to protect themselves from liability and the entity “loans out” the actor’s services to productions. The actor can then take tax deductions which they may not be able to do as individuals.
My client was asked to sign an indemnification agreement by one of his employers to ensure proper tax payments would be made. This type of request is standard.
My client was not well versed in this area. Once we reviewed and modified some of the language he was comfortable with signing the agreement. Then he got paid.
As an attorney and not a talent agent, manager, financial advisor, or accountant, I urge people working in the entertainment industry to consult with the proper professionals before setting up any type of business entity, to make sure they understand the ramifications and that the company they create meets their financial, business, and tax needs.
REVIEW AND UPDATE DOCUMENTS
I have several agreements, vendor contracts, and other documents that I have been using for the past five years. I know there will be some changes in the laws in 2014. How often do I need to review and update my business documents?
Dear Business Owner:
It is never too early to review and update your contracts and agreements, especially the fine print. It can, however, be too late if a dispute arises and you discover your documents are out of date.
The start of a new year, when laws change, is a good time to review your business/client and vendor agreements, purchase orders, employment handbooks, applications, and other documents you use in the daily operations of your business. It is always a good policy to review documents that have not been updated in a while.
You may be comfortable updating these documents yourself or you may want to get professional assistance from an attorney, accountant or human resource specialist.
A couple of changes that became effective January 1, 2014 in California are:
The minimum wage has gone up to $9 per hour, effective as of July 1 paychecks.
If you have more than 50 employees, the Family Medical Leave act (FMLA) now states that an employee is allowed to care for grandparents, grandchildren, in-laws and siblings as well as the previously permitted care for children, spouses, and parents.
Additionally, to keep up with technology, an update to many agreements may include permission to sign via electronic signature or PDF which is considered as valid as an original signature in California. (California Civil Code 1633.2 et seq.)
For these and other reasons, now is a great time to review and update documents.
Case Study: Second Opinion
Over 20 years ago, when I started practicing law my first area of expertise was personal injury cases. Car accidents, slip and falls, dog bites, etc. Many a time I have been asked to provide a second opinion by someone who had a case, was being represented by an attorney, and did not think they were getting a “good deal.”
It has been my practice to avoid these situations. Unless I actually review the documents carefully and analyze the entire situation, I do not second guess another attorney who has been working on a case, possibly for months.
Similarly, whenever clients would ask me “how much do you think this case is worth” – on the first day they visit my office, I tell them it is irresponsible of me or any attorney to provide a dollar amount without seeing the case develop including a determination as to who is at fault, total medical bills, extent of injuries, loss of earnings, and much more.
With all due respect to my colleagues, any attorney who throws out a figure of what a case is worth without reviewing the file is doing a disservice to the client and the profession.
As a client you always have the right and the option of seeking a second opinion from another attorney. For your sake, make sure it is a reputable one.
Can A Business Refuse Service?
I own a restaurant and sometimes I have people come in whom I would rather not serve. I have a sign saying I have the right to refuse to do business with anyone. Is this enforceable?
– – Concerned Owner
Yes sometimes you can refuse to do business with certain people or customers. It all depends on the reasons. The most basic reason to refuse to do business with someone is if it detrimentally affects your business. ( e.g. negative financial impact; causes you to lose money.)
However, California and Federal law has many protections that prohibit business owners from refusing to do business. A business owner is not allowed to refuse to do business or serve a customer based on that person’s race, color, religion, national origin or disability. In California it is illegal to discriminate against individuals based on unconventional dress or sexual orientation. For example, a restaurant was found liable for discrimination when it refused to seat a same sex couple in a booth because the restaurant had a policy against homosexuals.
In cases where a customer is a member of a protected class (meaning state or federally protected, like the classes described above) the issue will depend upon whether the business’s refusal of service was arbitrary or the business had a specific non-discriminatory interest in refusing service. A case of a sports bar which required customers to remove their gang affiliation tags/jackets before entering the bar was found to be a legitimate non-discriminatory reason as the bar wanted to avoid fights between rival gang members in their bar.
This issue is not always as simple as putting up a sign. Yes, a business owner has the right to refuse to serve or do business with people. However that business owner needs to make sure she is not singling out a protected class of people to whom she is refusing service.
Legal Case: Unauthorized Use of Trademark
I represented the producers of a well-known television series about advertising in the 60’s, let us call it “Madison Men.” The series, scripts, logos, and merchandise were protected by trademark and copyright. Quite often I would come across people and companies who were using the logo or title of the show to advertise their own merchandise, parties, company, and so forth.
One time an advertising association decided to use a portion of the show name and logo to advertise its annual conference. I sent them a cease and desist letter requesting they take down and stop using the copyrighted and trademarked material.
Under U.S. Trademark Law, civil liability is established for any person who uses in commerce any name, symbol or device, or a false designation of origin which is likely to cause confusion, mistake, or deceive as to the origin of that person’s goods or commercial activities. The Federal Trademark Statute provides for recovery of damages, lost profits, costs of the action for trademark infringement, as well as attorney’s fees. The association’s advertising campaign was planned and executed with knowledge of my client’s rights and designed to gain income based on the goodwill of a popular television show.
As an advertising association they certainly should have known better.
Companies that own copyrights or trademarks must make sure they take steps to enforce their rights whenever they discover unauthorized use or they may lose rights. In this case, it was not about getting money from the advertising association. It was about protecting the trademark.
The matter was resolved when the advertising association agreed to take down the materials and donate a sum of money to my client’s charity of choice.
Protect Your Script or Story
I recently wrote a script and I want to shop it around and get it made into a movie, how do I protect my work and my rights?
—- Aspiring Writer
Whether you have a complete script, a screenplay, a story, sound recording, video or other creative expression there are several ways to protect your rights.
Work created is automatically copyrighted at the time you create it. However in order to enforce your rights, you must have a valid copyright registration. Obtaining a copyright registration is easy and can be done on line with the U. S. Copyright Office by following the instructions at www.copyright.gov.
You may also want to file a copy of your work with the Writers Guild of America as they provide writers with some protections.
Remember ideas cannot be protected by copyright. For example: (a) bad guys take hostages and make demands – “Die Hard”; “Con Air”; “Air Force One”; (b) Cheating husband caught by wife; “A Fish Called Wanda”; “Diary of a Mad Black Woman”; (c) serial killer on a spree; “Silence of the Lambs”; “Natural Born Killers” and every episode of the Television series “Criminal Minds.”
These ideas appear in many films and television shows. They are not protected by copyright and can be used again and again.
Copyright protects the original expression of your work, which you record in a set medium, like on paper. It is your interpretation and expression that is protected.
As the Copyright holder your rights include the right to copy the work, to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, and who may financially benefit from it.
For additional protection, when disseminating your work, you may wish to consider entering into non-disclosure agreements, submission agreements, confidentiality agreements and/or other contracts. A good attorney can recommend the right type of agreement for the plans you have.
Legal Case: Use of Person’s Photo or Likeness
An attorney contacted me while I was representing Tigergate Pictures. He complained that a photograph of his client, let’s call him, Mustafa Mahmoud Mobadi (“MMM”) was used in several scenes without his client’s permission in one of Tigergate’s movies; let’s call the movie “The Next Four Days.”
The photo was used in a “Wanted Poster” screenshot of about two dozen people. The attorney claimed this caused his client embarrassment among his friends and associates.
There are strict laws about using a person’s likeness, obtaining permission and a license, especially if the person is a private individual. Celebrities and public figures fall into different categories, yet the matter is still serious.
I looked into the claim and discovered that MMM was in fact a convicted terrorist who pled guilty to assisting Bin Laden after 9/11.
His photo had been on the FBI’s most wanted list and MMM had served time in federal prison.
I called the attorney and he confirmed MMM was a convicted terrorist; yet still maintained the 0.6 seconds MMM appeared in Tigergate’s movie was the sole cause of damage to MMM’s reputation. I took this to mean, “damage” to his reputation among his fellow terrorists, cellmates and probation officers. My policy is not to negotiate with terrorists so I dropped the matter. MMM did as well, after a Judge tossed his case out of court.
Monies Owed for Services
My customer owes me money. I provided goods and services, I want my money. Can I sue? What should I do?
—-Frustrated Business Owner
Of course you can sue. Anyone can sue. This is America the land of “sueportunity!”
The question is, “Should I sue?” The answer depends on:
How much your customer owes you?
Is this a one-time thing or recurring issue in your business?
And, most importantly, is this a customer you are willing to sue-and-lose as a customer?
If the amount owed is under $10,000 then you may want to consider suing in small claims court. In small claims court you can represent yourself, and if you have a contract, or can prove service was provided, the courts look favorably on these claims and you have a good chance of success.
Make sure to follow the small claims court instructions. You may wish to consult an attorney and pay for one hour of her time. This will greatly increase your chances of success.
If you have several customers who have not paid for the goods or services you provided, you may want to contact a collection agency to pursue these monies on your behalf.
If you are a professional contractor you may consider a mechanic’s lien.
If this is a recurring problem, you may wish to seek the services of an attorney to review your business practices and contracts and revise these for you to avoid future problems. An ounce of prevention is still worth a pound of cure.
If you have a large amount of money that is owed (usually over $30,000) you may wish to contact an attorney to discuss your options. Consultation with an attorney about your matter should be free.
The right attorney may be able to solve your problem without the need for costly and drawn out litigation. Depending on the situation, lawsuits can be time consuming and in some cases, absolutely the way to go.
An attorney should be able to provide you with a range of her fees for pursuing a lawsuit taking into consideration the various aspects of your case and potential work involved. This information will help you make a business decision of how best to proceed.
Legal Case: Pot and Ms. Gobbler
There was a very popular series on TV lets call it “Pot” mostly about the sale of … you guessed it, pot. In some of the episodes the actors are seen playing a video game, let’s call it “Ms. Gobbler”.
An entertainment company client of mine who produces the television series received a letter from the makers of “Ms. Gobbler” complaining about the fact that the actors are playing their video game on a show called “Pot” and that this is causing damage to their wholesome family game.
They requested the actors stop playing “Ms. Gobbler” in the series, maybe they thought kids playing “Ms. Gobbler” might also be watching the show “Pot” and decide to “take a hit” during the game.
How likely was that? Should kids be watching a nighttime pay cable show called “Pot” and does the fact that the actors are amusing themselves with a video game in some of the scenes really denigrate the game or does it actually bring it more publicity?
Does a production company have a right to use a product, even a trademarked product in the manner in which it is intended without obtaining permission or a license? The answer is usually yes.
However, on my recommendation, and in the interests of world peace, my client obliged and removed “Ms. Gobbler” from future episodes of the show. Sometimes an attorney recommends taking the high road rather than tilting at every windmill.
Open A Business
I am planning on opening a business what are the top things I need to know?
If you are planning to open a business or have just opened a new business the top three things you must obtain are: insurance, insurance, and insurance. In retail you may have heard, location, location, location.
For now let’s go with Insurance as the topic. Whether it is general liability, premises liability, workers compensation (in the case of employees), professional liability, or any other type of insurance; it is best to be covered. If someone decides to sue you — and there are all types out there — if you don’t have insurance coverage, your business will be dead in the water before you get started, and your personal assets may also be in jeopardy.
After insurance, I recommend (1) a business plan, (2) capital to see you through the first year of business, and (3) a mentor or good support group to help you avoid pitfalls.
A good attorney can protect you from the slings and arrows of the business world, especially when signing leases and contracts, dealing with vendors, hiring employees, and serving customers.
Legal Case: “The Oranges”
A few years back I was walking into one of my favorite sushi restaurants for lunch, when the manager, whom I knew well, asked me for some advice.
She stated that one of her busboys kept eating the oranges that are served to customers at the end of a meal. She had warned the busboy to stop, and that despite the warning he continued to eat the oranges right in front of her. The manager asked me if she could fire the busboy.
My answer: Heck yes.
She asked if she needed to give him 2 weeks notice.
My answer: Heck no. (without going into the legal aspects of “at will” employment, can you imagine how many oranges that guy would have eaten if he would have gotten 2 weeks notice?)
Disclaimer: This information is for entertainment and advertising purposes only. It should not be regarded as providing any kind of legal advice or creating an attorney / client relationship. The names have been changed to protect the innocent and foolhardy.
Liat Cohen, Esq.
Do you have a similar legal problem?
Liat Cohen has been practicing law in the Los Angeles Area for over 25 years. If you have experienced a similar issue, feel free to contact her for a free initial consultation to discuss how she can help you solve your legal problems.