What Is The Role of a Personal Representative in a Probate Case?

Finding oneself as a designated Personal Representative by a loved one’s Last Will & Testament can be an unanticipated discovery. Though it is a good practice to discuss these matters with loved ones before naming them in a Will, those conversations do not always occur in time to prepare the person named in the Will. What are the responsibilities of a designated Personal Representative? What if the designee does not wish, or is unable, to be the Personal Representative? What does the Court require of a Personal Representative?

Often a spouse or family member is designated as a Personal Representative, however, the author of the Will may designate a friend, family member, or legal advisor as a Personal Representative. The investment of authority in the Personal Representative does not occur automatically at the time of death, however. Once the Last Will & Testament has been submitted to the Probate Court, the Personal Representative must request that Court authenticate the Will (verify it is valid), and Appoint the designated person as Personal Representative. Only after the Court formally appoints the Personal Representative can he/she begin to act on the behalf of the Decedent to close the Decedent’s estate within the guidelines of the Probate laws.  

What if the Personal Representative Does Not Wish/Is Unable to fulfill the role of Personal Representative?

There may a number of reasons for someone to refuse appointment as Personal Representative. Wills often name an alternative Personal Representative in case this situation arises. If this is the case, the designated representative can petition the Court to appoint a successor Personal Representative named by the Will, or recommend another person to fulfill the role of Personal Representative for the Deceased’s Estate.

What are the Duties of the Personal Representative?

As a Personal Representative of a loved-one’s estate, the Personal Representative accepts the fiduciary duties associated with this role which include managing the estate funds and assets responsibly and according to the Decedent’s wishes. Though Probate laws are unique to each state, the Personal Representative’s duties generally include, but are not limited to, locating the estate assets, notifying creditors, estimating estate taxes, and paying final estate expenses.

This is a condensed version of the Probate process, and managing this process is less intimidating with the guidance of a law firm that is familiar with the process, and ready to provide answers to the questions that are unique to each family estate. Please feel free to reach out to Behrends Legal to find out more about how we can help with the Probate process.

*This article is not intended to be construed as legal advice, and does not constitute the creation of an attorney-client relationship. Prior to making any significant decisions related to its content, you should seek the counsel of a licensed lawyer for your state.

What Is The Probate Process?

Implementing the Last Will and Testament of a loved one after they have passed away can bring about a host of questions, and unexpected steps. This post provides a very basic guide to the Probate process, however, we highly recommend speaking to an estate planning lawyer as each probate matter is truly unique.

What is the Probate Process?

Though the Probate Laws of each state vary, the objective of the process is to authenticate the Last Will & Testament of the deceased, and to provide statutory parameters for distributing and closing the estate if the Will is found to be invalid.

Why is the Probate Process Necessary?

Similar to the designation of a manager when an Estate Trust is created, a Last Will designates a Personal Representative to carry out the wishes of the deceased regarding property, and financial decisions. A Will is distinguished from an Estate Trust in that when the deceased leaves a Will, the deceased’s estate must be closed, and all financial matters settled to end all interests and obligations of the deceased’s estate. In contrast, when the deceased has previously created an Estate Trust, the Trust becomes an entity that survives beyond the death of the creator, and continues to be managed by a person of the creator’s choosing.

What is Involved in the Probate Process?

It is important to know the specific Probate laws in the state where the deceased resided, however, the Probate process generally includes the Appointment of a Personal Representative. This is usually a person named in the Will, however, if that person does not wish to be the Personal Representative, the Law allows for the appointment of alternative representative. Once the Personal Representative is appointed, they are required to settle the estate by completing tasks such as identifying the assets of the estate, gathering information on creditors of the estate, notifying interested parties or beneficiaries, and calculating any taxes owed by the estate. Finally, the Personal Representative distributes any assets or funds of the estate and will request the Probate Court close the Probate process for that estate.

Each estate is unique and an estate planning lawyer can provide helpful guidance specific to your situation. If you, or a loved one, need assistance preparing a will, or preparing to open a Probate Matter, please reach out to Behrends Legal for a consultation to find out how we can help. info@behrendslegal.com , or 970-578-9455.

*This article is not intended to be construed as legal advice, and does not constitute the creation of an attorney-client relationship. Prior to making any significant decisions related to its content, you should seek the counsel of a licensed lawyer for your state.

Minuscule Symbols With a Sizable Message

In a society where both new and long-standing brand names and products are available, consumers are accustomed to seeing the tiny symbols used in to the upper-right of a product name to indicate a protected name, logo, or tagline, and yet it can be unclear as to what each of the marks truly indicate.

® – The encircled R is reserved for those names, products, and taglines that have a bona fide Trademark Registration. While use of this symbol is not required by law, this symbol communicates to the public that the mark, and goods/services associated with it, are protected and that the owner has a legal foundation on which to bring a claim against infringers of the mark. Placing the circle R to the upper-right of a Trademark is a simple way of communicating to the public “Have Trademark, will sue”.  

™ – While it is common to see this symbol, it is not restricted to use by owners of a registered Trademark. This symbol can be used without any federal registration, yet by the same token, the symbol indicates no federal legal protections to enforce against infringement. Those who might consider using this symbol may include applicants of a Trademark registration that is pending, and has not yet been approved.

© – This symbol does not apply to Trademark protection at all, but is instead used to indicate Copyright protection. Although not required to be shown on work titles, it is always a good idea to give notice that the work is under Copyright protection, and that the owner can take action against violations of the copyright.

Behrends Legal is ready to help you determine which mark you should be using with your work and your brand, and to file your Trademark Application to ensure your brand has all the rights it deserves!

970-578-9455

Office@behrendslegal.com

Should Your Trademark Have a Price Tag?

Why are Trademarks Valuable?

Your Trademark is the brand identity of your business, products, and services. Your customers begin to associate your Trademark with the level of quality you offer to your customers, and the reputation you have worked steadily to build. Though at Behrends Legal, we recommend filing for a Trademark as early as a possible, your brand reputation may take years to grow, and is an investment of itself. When it comes time to merge, sell, or agree to license the brand you have built, your Trademark encompasses all that you have built into your business reputation, – symbolically, and financially.

How Do I Know What My Trademark is Worth?

Estimating the value of your Trademark can be somewhat tricky as with all intellectual property valuations. Putting a price on the future earning potential of your business brand is a complex process based on estimations, and partially, on the summation of both the past and present financial standing of the business. Because selling a Trademark as an individual asset of the company has become a common business practice, a few approaches have been formed to help guide the valuation approach.

  1. Cost Valuation: the amount of financial investment that would be needed to replace the Trademark with a new one. This approach ultimately produces a valuation price based the popularity of the brand.
  2. Market Valuation: with this approach, the value of the Trademark is estimated by comparing the Trademark with other companies that produce similar products and services as the business being evaluated.
  3. Income Valuation: this approach is based on the cash flow trends of the business throughout the life of the Trademark and brand usage. Trademark valuation is often bundled together with other licensing rights in the business transaction.

Understanding that your business Trademark is a valuable asset as you prepare to sell, or license your Trademark, is essential to maximize on the reputation of the brand you have built, and the investment you have made.

Call us today at Behrends Legal to get started on your Trademark Registration!

(970) 578-9455

info@behrendslegal.com

Small Business Series #5: Why Should You Have an Exit Strategy?

Planning a policy to close your business may seem counter-productive to the effort you invest in maintaining the life of your small business, however, creating an Exit Strategy may be one of the smartest decisions you make, and you will thank yourself later for planning ahead. Creating an exit strategy does not necessarily mean you are planning to hang the “Closed” sign on your doors, and shut down permanently. Often, an exit plan is designed to set your business on course to sell to a buyer, pass on to family, or alleviate management stress from your own shoulders while maintaining the vibrancy of your business.

Keep Your Goals In Mind

Before you draft your exit strategy, envision your goals for yourself, and your business. Planning now creates more leverage for you, as the business owner, in how you wish to shift control of the business, and to keep your business in optimal condition for transfer. Consider the following:

  • How involved do you wish to be after the transfer of the business? If you prefer a clean break, or complete relief of your obligations to the company at the time of transfer, then selling to a competitor, or another buyer may be a good option. Conversely, if you wish to remain involved in the business after transfer, you may consider transferring to a family member, or employees to retain some control of the process.
  • Keep in mind your target buyer as you prepare to sell or transfer your business. Would you like to see your business retain the same, or similar identity and business functionality? You may want to keep employees or other small companies in mind as buyers. Selling to a larger, commercial company may have intentions to incorporate your business into their corporate identity, however, it may also ultimately be more profitable for you when you are ready to sell.

Prepare For the Essential Steps

Part of your Exit Strategy should include the steps you will need to take as you approach the transfer, or sale of your business. Exit Strategy steps generally include valuation of your business by an accountant, bringing your accounts as current as possible by collecting accounts receivable, and paying off business debt, and maintaining records as well as possible. It is helpful to hire an accountant, and a small business lawyer, to help you meet these goals. Additional preparation may include a plan for how you will delegate other responsibilities you take care of, and how you will notify employees and customers of your business transition to a new owner.

Whether you need a plan for implementation now, or much later, writing your Exit Strategy will give you piece of mind, and create a plan for your business to transfer to ownership on your own terms.   

Call Behrends Legal today for more information! (970) 578-9455, or info@behrendslegal.com.

Small Business Series #4: Work Place Policies

Your Work Policies Can Determine Whether Your Businesses Helps Employees Strain or Thrive           

Company policies allow business owners to communicate clearly with employees from the outset. When companies encapsulate business policies in employee handbooks, regular training, and policy updates, the potential for creating a positive internal work environment is based on clear expectations. Internal policies hold accountable both the business leadership, and the employees,  and well-written and implemented policies can also increase productivity and reduce confusion.

            Your business, in particular, may benefit from implementation of certain policies, and we recommend consulting a small business law firm that can address the unique needs of your business. In general, some of the following policies are worth considering as part of your internal operations and best practices.

Technology & Equipment Policies: These policies vary widely, and depend on whether your employees receive business calls, email, and other communication through company phones, devices, laptops, and other equipment. Whether you purchase technology for your employees, or reimburse them for technology fees, or whether there is a clear dividing line between company and personal-use technology, the usage expectations should be clearly defined.

A few primary considerations for companies in relation to technology can range from social media posting, confidentiality protection, time management, company email, care and return of technology equipment, and intellectual property protection.

Attendance Policies: Although attendance policies may seem standard for any business today, working remotely, or traveling for work creates new work scenarios that may blur the lines, or assumptions, regarding acceptable attendance expectations. Attendance policies should be updated often as your business evolves, and your employee needs change. Attendance policies can range from traditional expectations regarding work hours, and tardiness, to scheduling vacation time, and paid time-off, but may also include policies for remote meeting attendance, dress code, and time tracking policies.

Work Environment Policies: As the business owner, your vision for the internal environment you want to create is up to you. Defining the values your business operates by is crucial to the internal health of your company and those who put in the hours to continue to build your company. Reinforcement of values that ensure all employees are appreciated and valued is based on policies such as non-tolerance for discrimination of capability, race, gender, religious, and political beliefs.   

Your business is set to thrive or diminish based on the foundations you lay now. Set your business up for success and growth while creating a positive internal work environment, and fostering an inviting work community with your employees.

Behrends Legal is ready to support you as you build your business policies! Call today (970) 578-9455, or rachel@behrendslegal.com.

Small Business Series #3: Employee Agreement Contracts

            As your business infrastructure grows, you will face the same question asked by so many other business owners: Is my business financially and logistically ready to hire employees? While you address this question, identify the key reasons you need employees, and lay a positive foundation for adding employees to your business organization.

            Your business should be prepared to hire employees by building employment contracts into your list of legal necessities. An employee contract serves to protect both your business, and the employee. The agreement also serves as the foundational building brick that clearly establishes the employee rights and responsibilities, as well as your obligations as the business owner. A well written employee contract clarifies the expectations of both parties to the contract.  

A Good Employee Contract Should Include The Basics

  • Wages – salary agreement, pay dates, and commission terms
  • Bonuses – whether they are discretionary or contingent
  • Other Benefits – vacation days, holidays, health insurance, other benefits unique to your business.
  • Termination basis – these terms should be addressed based on the state in which your business is located.
  • Best Efforts Clause – the employee commits to providing their best efforts at work.

An Excellent Employee Contract Will Include The Essentials

Ideally, your business employment contract will cover the following legal topics as well to ensure employer and employee understand the priority to protect work product, and confidentiality expectations.

  • Intellectual Property Protection
  • Non-Compete Agreement
  • Confidentiality Protection of business knowledge
  • Choice of Governing Law
  • Dispute Resolution Agreement

Creating the right employee agreement for your business can be complex depending on the type of business you operate. Consulting a small business law firm can provide you with the information you need to provide a legal framework for your company as it grows. Call Behrends Legal today for a consultation!

Phone: 970-578-9455

Email: office@behrendslegal.com

Small Business Series #2: Licensing

SETTING YOUR BUSINESS ON THE PATH TO SUCCESS

Moving a small business from the initial planning stage to the opening stage involves a checklist of items to be completed before hanging the open sign in the window, so to speak. Licensing is one of the key pieces to a successful business launch that should not be overlooked. Businesses lacking the correct licensing to operate, can face serious legal and financial implications.

Speaking to a small business lawyer can help you determine which licenses you need to operate your business, and ensure that you are ready to open your doors as planned.

WHAT KIND OF LICENSE DO I NEED TO OPEN FOR BUSINESS?

The type of business you operate determines the licenses you need to be compliant with the law. You may need to comply with federal, state, and local licensing laws.

Here are a few of the most common licenses that are required:

Operating license: applications are approved by designated boards who regulate specific business types.

Seller license: when selling or leasing tangible items.

Building permits: related directly to the building location and how it is used.

Professional license: such as for doctors, lawyers, daycare providers, chiropractors, and hairstylists.

Other licenses may be mandatory as well based on the type of business that is operating. New business owners should be aware of potential other licenses such as zoning and land permits, fire department permits, health licenses, and occasionally sign permits.  Federal licensing is required for businesses in fields such as agricultural, alcohol sales, aviation, and radio and television industries.

Businesses lacking the correct licensing to operate, can face serious legal and financial implications.

PLAN AHEAD

Obtaining a license can take time and research. Plan ahead to apply for the licenses you need for your business. Various licenses can be applied for and retrieved by submitting an application, yet others will require a visit and or inspection by local authorities before approval is granted. This can cause unplanned delays, and result in significant fees to the business owner if not planned for in advance.

Behrends Legal is here to support your small business! Call today for information 970-578-9455.

Small Business Series #1: The Foundation

You’ve decided to start a business – congratulations! As you bring your ideas to life, take steps to lay a strong foundation for your company. Intentionally tending to key tasks will set your business on a firm path as you prepare your business for growth.

YOUR BUSINESS NAME

As you consider various names for your company, invest research into whether other companies share the same or similar names. A strong, unique business name sets your business apart, and creates a commercial impression in the minds of the customers you are trying to reach. Even if you are not prepared to trademark your name at this time, research your local and community business names for similarities, and conduct a preliminary search on your Secretary of State website to find out whether the name you wish to use is available. Once you have committed to your business name, begin using it on your advertising, signage, printed materials, products, and online marketing. Begin building a strong reputation behind your business name, and hire a business law firm to file your trademark name registration as soon as possible.  

MAKE IT OFFICIAL

After selecting a business name, make your business formation official by electing your business tax structure and entity type. Some of the most significant steps to take at this stage include requesting an EIN, registration with the Secretary of State, and selecting the business entity type under which you will operate.

The entity structure you select depends on a number of factors including how many managers/owners there will be, decision-making procedures, and taxation preferences. Understanding the implications of the entity structure you select is vital as you establish your business, and can have significant consequences if the requirements of the structure you chose are not followed. The most common entity structures include Limited Liability Company, Sole Proprietor, Partnership, and Professional Corporation. Speaking with a small business lawyer can help you determine the best structure choice for your company.

SET THE WHEELS OF YOUR BUSINESS IN MOTION

Once you officially have your business structure in place, and have claimed your business name, create a plan that moves you towards opening day. Anticipate the initial expenses you will face and determine whether you can fund the initial costs, or will need financing. One of the most significant costs to new business owners is the investment in location. Your business space may include an office, warehouse, or storage. Do you need to rent space, obtain company transportation, hire staff, order inventory, or buy equipment? Identifying the tools you need for the day-to-day function of your business is essential to maintaining a realistic grasp of how quickly you can open, and whether you are more likely to need funding upfront, or need to consider financing before your business begins to produce profitable income.   

At Behrends Legal, we look forward to learning more about your business goals, and helping you create a plan to achieve them! Reach out today for your legal support needs. 970-578-9455.

This article is for the purpose of information only, and does not represent or create a client-attorney relationship. Please call Behrends Legal if you need legal advice for your business.

Avoid Making This Costly Mistake When Taking Your Brand To The Global Marketplace

WHY CONSIDER INTERNATIONAL TRADEMARK?

As companies expand into the international arena, a whole new set of rules apply to protecting your business brand. Building your reputation for quality, and service are only half of the value of your brand – your brand recognition should be protected as a company asset by filing for trademark registration to maintain the rights in your brand name. Do not make the mistake of leave your brand unprotected in the global marketplace.

Companies who should invest in an international registration include those seeking to expand now or in the future, those with current business operations in other countries (manufacturing, distributing, offices, etc), and those with significant revenue generation from other countries.

WHEN SHOULD AN INTERNATIONAL TRADEMARK FILING BE CONSIDERED?

In the global market, trademarks are only protected if they are registered in that particular country. Filing for trademark registration in the US does not automatically extend protection of your mark to other countries, which means that if you discover a business using your company name, logo, tagline, or packaging in another country, your company has no legal basis to pursue infringement proceedings in that country. Using a centralized system, such as the Madrid Protocol, allows trademark owners to register one application while applying to multiple member countries at once. Although not all countries are members to the Madrid Treaty, a 120+ country membership certainly makes the Madrid registration a worthy consideration.

One of the key benefits of filing an international trademark include claiming rights in the mark immediately upon registration. The Madrid system operates on a first-to-file system, rather than a first-to-use systems as exists in the US. Once obtaining an international trademark registration, the mark is registered for 10 years, and should be renewed in a timely manner to maintain rights in the mark. Registration of the mark can be expanded to additional countries, if the owner wishes to increase the market regions.

Please reach out if you are considering the registration of your trademark in the international arena – we can help you through this process!

info@behrendslegal.com

970-578-9455