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What is so bad about probate?

Have you heard horror stories about a probate administration gone wrong? Or have you only heard rumors that you should try to avoid probate? The truth is that many probate administrations are not a big deal. But there are some detractions to going through a probate administration. Here are a few:

1.     PUBLIC: A probate administration is a public court case. This means that the public at large will have access to many if not all of the court’s records for the estate. In particular, the public nature in the estate administration requires that the Last Will and Testament of the decedent be made public. For those individuals who are very private in their dealings with others, it is an unwelcome prospect that their entire estate might be made known to all who inquire.

2.     CREDITORS: An individual’s creditors have a right to be notified regarding the opening of an individual’s probate estate. From the time that the creditors are put on notice of the opening of the estate administration, the creditors have three (3) months within which to file a claim against the estate. Once a creditor files a claim against the estate and that claim is valid, then the creditor will be paid by the estate prior to final distribution to beneficiaries.

3.     WILL CONTESTS: Of course, it's always possible that family members and any other beneficiaries will challenge the validity of the individual’s Last Will and Testament. When this occurs, the attorney fees increase and each beneficiary’s share decreases. Ultimately, the beneficiaries lose out. Because the will contest is in the public forum, anybody can come and contest the will. If this is a concern for a client, it might be advisable to set up a trust so nobody has a chance to contest the will.

4.     ATTORNEY FEES: Related to point #3 is the expense of attorney fees. A simple estate administration will cost some money. But if there are any complexities to the estate administration, then the cost can rise fairly dramatically, especially if there are beneficiaries who are fighting each other within the estate administration.

These are a few reasons why probate has a bad reputation. Certainly, an estate administration in some instances is unavoidable if the proper estate planning hasn’t been put into place. However, when an individual desires to avoid probate, it is possible so long as he/she does the estate planning in advance.

Is a Trust Better Than a Will?

A commonly asked question at Vick Law is whether a trust is better than a will. As with many questions asked of attorneys, the answer is: “It depends”. A trust can be better than a Last Will and Testament depending upon various factors, including the client’s interest in control, purpose and efficiency.

CONTROL: Sometimes clients want to make sure that their beneficiaries will use the inheritance in a proper manner. Perhaps the client wants a beneficiary to use the inheritance specifically to start a business or to fund a college education. A trust ensures that the beneficiaries will use the inheritance as the client, rather than beneficiaries, desires. You might call this “ruling from the grave”. Unfortunately, in this age of the opiate crisis, a client might find wisdom in maintaining control through a trust.

PURPOSE: A client's purposes in protecting financial resources can be a factor in whether a trust is better for the client. In Indiana, Medicaid for the Aged and Disabled requires certain levels of income and resources prior to granting eligibility. A trust, whether at the time of a long term care event or in preparation for it, may assist clients in becoming Medicaid eligible. If protecting assets from long term care expenses is important to the client, a trust might be the right estate planning option.

EFFICIENT: A trust might be better for a particular client so that the estate is settled in an optimally efficient manner. Suppose an individual has real estate in Indiana and another state. With only a Last Will and Testament, his/her estate will likely have to go through two (2) probate administrations, here in Indiana and in the other state. That might result in a very costly and time-consuming process. Contrariwise, a trust will likely prevent any probate administration. Instead, the real estate and other property will pass directly from the trustee to the beneficiaries in accordance with the terms of the trust agreement.

There are many, many more factors that go into whether a trust is the best option for a client. Take advantage of the free consultation at Vick Law to find out whether a trust fits your estate planning needs.

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What is an Incorporator?

Whenever you start a business, you might feel like you have to learn a new language. Some of those terms can include “articles of incorporation”, “bylaws”, “organizational meeting”, and “incorporator”. Today we will delve into the word “incorporator”.

Limited Role of an Incorporator. First, a person’s status as incorporator of extremely limited significance due to the nature of an incorporator’s responsibility. The incorporator’s only responsibility is to have his/her name listed on the articles of incorporation and providing the articles of incorporation with the Indiana Secretary of State for filing. Indiana Code § 23-1-21-1 states:

“One (1) or more persons may act as the incorporator or incorporators of a corporation by causing the person’s name to be listed on the articles of incorporation and having the articles of incorporation provided to the secretary of state for filing.”

Sole Statutory Obligation of Incorporator. The comment to Indiana Code § 23-1-21-1 clarifies the very limited responsibility of an incorporator by stating, “This section sets forth the sole statutory obligation of incorporators.” Essentially, once the incorporator has successfully incorporated the business, his/her obligations are completely satisfied. The statutes require nothing more of an incorporator.

Successful Incorporation. How, then, is a business successfully incorporated? A business is successfully incorporated once the Indiana Secretary of State has filed the articles of incorporation. Once that is completed, the incorporator’s your sole statutory obligation is satisfied.

Organizational Meeting. After incorporation, a corporation is required to hold an organizational meeting in which it “completes the organization” by (1) electing officers, (2) adopting bylaws and (3) carrying on any business. If the articles of incorporation name a board of directors, then the board of directors will “complete the organization”. If the articles of incorporation do not name a board of directors, then the incorporators are responsible for calling the organizational meeting. In this event, the incorporators will simply name the board of directors at the organizational meeting and then the board of directors will take over the task of “competing the organization”. Indiana Code § 23-1-21-5.

Limited but Foreseeable Legal Issues. The only foreseeable legal issues of an incorporator arise out of obligations, if any, incurred during the pre-incorporation stage of the business. Indiana Code § 23-1-21-4 states:

“All persons purporting to act as or on behalf of a corporation, knowing there was no incorporation under this article, are jointly and severally liable for all liabilities created while so acting.”

Again, this is a very limited risk of liability. Basically, if the incorporator bound the corporation to any obligation prior to its actual existence, the incorporator may be held liable for the obligation.

Removal as Incorporator. May an incorporator remove his/her name from being listed as incorporator of the business? Unfortunately, it is not possible to remove your name as incorporator. As described above, the incorporator’s role is merely to be the person submitting the articles of incorporation to the Indiana Secretary of State. Once that happens, the incorporator’s responsibilities end. Although the incorporator’s responsibilities are then complete, the State of Indiana still keeps record of the individuals who started the business. A reason for such a public record may be to keep track of any pre-incorporation obligations incurred by the incorporators on behalf of the prospective corporation.

While some people may wish to remove their name as incorporator, his/her status as incorporator will continue. In fact, the State Form 50655, which is used to change governing persons, e.g. officers, directors, principals, members, etc., states in the directions, “Incorporators cannot be changed.”

SUMMARY

In sum, the incorporator’s role is limited to starting the business by providing the Indiana Secretary of State with the articles of incorporation. The incorporator’s only foreseeable liability as incorporator would originate from pre-incorporation obligations. In addition, those pre-incorporation obligations must have been on behalf of the prospective corporation. Finally, and unfortunately, the name of any incorporator may not be changed.

What Happens During a CHINS Case?

A children in need of services (CHINS) case has several types of hearings during the course of the case. The purpose of this post is to provide a brief description for each type of hearing. As will become evident, when parents are involved in this type of case, they will be in the courtroom frequently, along with many other people, to determine the care and custody of the child.

A detention hearing is the first hearing when the Department of Child Services has requested to file a petition alleging that a child in need of services. The detention hearing is to take place within forty-eight (48) hours of the child’s removal from its parents. The purpose of the detention hearing is to decide whether DCS has probable cause to file the petition. If the court decides that DCS has probable cause to file the petition alleging that the child is need of services, then DCS may place the child somewhere other than with the parents.

A factfinding hearing is usually the next hearing in a children in need of services case. At this hearing the court decided the question whether the child actually meets the statutory definition of a child in need of services. The difference between this hearing and the detention hearing is mainly the burden of proof. Whereas the detention hearing only requires probable cause (a very low standard) to keep a child in the custody of DCS, DCS must prove their case beyond a reasonable doubt (the same standard used for criminal jury trials). If the court decides that DCS has not met its burden, the case is dismissed.

If the court decides that the child is in need of services, the next hearing is typically the dispositional hearing. The purpose of this hearing is to decide what outcomes need to be reached for the court to dismiss the case. In other words, the court will decide what goals the parents and children must meet so that the care and safety of the child may be ensured in the future. The duration of the case, in large part, is dependent upon how quickly parents and children can reach these dispositional goals.

After the dispositional hearing, the court will hold review hearings on a periodic basis. Sometimes the review hearings may be scheduled every three months. The Indiana Code requires that the review hearings take place at least once every six (6) months. For each of these hearings, DCS will submit a written report to the court concerning the progress of the parents and child. The court appointed special advocate (CASA) may also submit a report concerning the case. These review hearings are a great opportunity for the court to hear the concerns of parents, especially if parents do not believe their DCS caseworkers or other service providers are not treating the parents fairly.

The last type of hearing is a permanency hearing. At this very important hearing, the court decides whether the future permanency plan for the child should remain reunification with parents. The court may decide that a guardianship or adoption is more appropriate for the child. Obviously, the stakes are great when a permanency hearing is on the docket. It is important that the court fully understands each party's situation so that the court may make the best decision possible for the child. 

Who is Involved in a Child in Need of Services Case?

As discussed last week, a child in need of services (CHINS) case arises when it becomes essential that a court get involved in a child’s care. The mere existence of a court case involving the child is disruptive to a family’s normal activities. But a CHINS case involves much more than going to court. This is because so many various people are involved in a single CHINS case. Since it is a child’s well being at issue, the stakes are high, and so having several people involved in a case is important. But at the same time, each involved person has his/her own opinion. Consequently, the CHINS case can become quite complex.

Of course, the parents are involved in the CHINS case. Sometimes, a father and mother are together, and they can work together to “get back on their feet”. Other times, father and mother are not together. When this happens, sometimes a custody battle may emerge out of the CHINS case.

Attorneys are involved in CHINS cases. Each parent is entitled to legal representation during a CHINS case. If a parent is destitute, the court may appoint an attorney to represent him/her. It is important to have representation to understand a parent’s current situation and assist in articulating issues to the court.

The Indiana Department of Child Services (DCS) is involved in CHINS cases. DCS has its own attorneys and case workers. The DCS attorneys are responsible for filing the verified petition that a child is in need of services and other subsequent motions and progress reports. The DCS case workers are responsible for assisting the parent’s and child’s progress toward their goals.

Service providers are also involved in the CHINS case. These people offer services to the parents and children. The types of services run the gamut. The services may include substance abuse treatment, mental health treatment, home based case management, etc. Often it is the practice of DCS to determine what the needs of the family are and then to refer services to meet the needs of the family.

A judge is involved in a CHINS case. A judge will be the decision maker throughout the case. The judge will determine whether a child is in need of services, what dispositional goals must be met for the case to close, and whether those goals have been met. The judge will read various court filings to make these determinations.

A court appointed special advocate (CASA) is involved in a CHINS case. Usually, there is a county director of the CASA program who will be at almost all of the CHINS hearings. For most CHINS cases, CASA will have a volunteer to assess how a child is doing and to make his/her own report to the court. CASA is important because CASA serves like somewhat of a neutral party in a CHINS case.

All of the above people are involved in any given CHINS matter. Obviously, with so many various people involved, there can be a multitude of opinions about what is best for a child. Given the multitude of opinions, it is important that all parties cooperate with one another to do what is best for the child, and when parties reach an impasse, the parties need to advocate for their positions before the court and have the court make an informed decision.

What is a Child in Need of Services Case?

These days the Indiana Department of Child Services (DCS) is often caught up in the news. Most of the attention centers around children in need of services (CHINS) cases and termination of parental rights (TPR) cases. Today the Law Office of Thomas A. Vick begins a series of blog posts regarding CHINS cases.

According to the Indiana Code, a child, who is under the age of eighteen (18), is a “child in need of services” if the following is found to be true:

"(1) the child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive intervention of the court."

Indiana Code § 31-34-1-1.

That is a lot of words to explain a conceptually simple matter. Simply put, a CHINS case arises when a family needs government assistance to take care of a particular child. For example, such a need might arise from a parent's substance abuse, a child's special needs, a parent's mental health, or a child’s uncontrollable behavior. While the specific facts of any given case may vary greatly, the most common factual scenario, as we are in the throes of the opioid epidemic, is a parent's substance abuse. The Indiana Department of Child Services is charged with the duty of representing the State of Indiana when a child is a "child in need of services".

Although DCS is well-intentioned, sometimes DCS gets it wrong. DCS might get it wrong for a multitude of reasons. Perhaps a DCS caseworker believes that a parent is abusing substances when that is just simply not the case. Perhaps an allegation of abuse, which is not based in fact, has been made to DCS. These are just a couple examples of how DCS sometimes might get it wrong. That is why it is important to have an attorney represent a parent in a CHINS case.

Press Release: Law Office of Thomas A. Vick Wins Appeal!

In a unanimous opinion by the Indiana Court of Appeals, Judge Mathias wrote the following:

"Vick stated in part during the hearing on the motion to set aside default judgment: 'Now, the idea of somebody looking at a complaint, seeing the summons, seeing that their company, of which they are president, is named in the complaint, responding to the complaint by a letter to opposing counsel and then not doing anything to follow up on that, I don't think that's excusable neglect.' Tr. p. 23.

We agree."

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Press Release: Law Office of Thomas A. Vick Wins $6.8 Million Judgment

The Law Office of Thomas A. Vick won a $6.8 million judgment in a personal injury case on May 30, 2017.

Mr. Vick represents the plaintiff in Genia Wamsley v. Tree City Village, New Generation Management, Inc. and Matthew Joseph. The case is before the Honorable Judge Matthew D. Bailey of the Decatur County Superior Court. The Cause Number is 16D01-1609-CT-410.

Genia Wamsley was shot by her neighbor Matthew Joseph on March 7, 2016 while sitting on her couch in her apartment in Greensburg, Indiana. The shooting garnered attention from local and state media outlets.

Starting a Nonprofit Organization: Apply for State Sales Tax Exemption

Once the all important IRS Determination Letter (the letter stating your organization is now recognized as a tax exempt entity) has been received, it is now time to apply for the Indiana state sales tax exemption.

The application for the sales tax exemption is NP-20A. It is a very simple application, consisting of a single page. The form asks for basic information regarding the organization, such as contact information, the predominant purpose of the organization, and whether the organization will sell personal property for more than 30 days in a year. There are only four check-the-box questions in the main section of the form.

The NP-20A serves a dual purpose. Not only is it used for applying for tax-exempt status, but it also is a request for an Indiana Taxpayer Identification Number. Once the hard work of getting federal tax-exempt status is done, Indiana makes it very easy to finish the job.

Nonprofit Organizations: Applying for Tax Exempt Status

After the previous steps, as described in prior blog posts, it is now time to apply for tax exempt status. This process can be done in one of two ways. An organization may apply for tax exempt status using the 1023 form or the 1023EZ form. If your organization meets the requirements for 1023EZ, this step is a no brainer. You do the 1023EZ because of its simplicity.

An organization may use the 1023EZ, if it meets certain criteria. These criteria include but are not limited to (1) the organization is not expected to gross more than $50,000 in the next three years; (2) it is not a foreign entity; (3) it is not a successor to a for-profit entity; (4) it is not a school, church, or hospital; (5) it is not a 509(a)(3) supporting organization; (6) it is not classified as a private operating foundation. Organizations that are ineligible to apply with 1023EZ are relegated to 1023.

Form 1023 is a time consuming document for even attorneys to complete. The IRS estimates it will take at least 15 hours to learn complete 1023. That does not include the nearly 90 hours of necessary record keeping time. Plus, the IRS requires that particular schedules be completed depending on the nature of the nonprofit organization. Each schedule can take between 30 minutes to 2.5 hours. Sometimes multiple schedules need to be filled out. Thus, the process can end up being a weeks long affair for someone unfamiliar with the forms.

On the other hand, the 1023EZ is much more efficient in getting the request for tax exempt status before the IRS. The IRS estimates that the 1023 will require approximately 9 hours of time to complete. Obviously, this still requires a significant amount of time, but is much more manageable.

Each application for tax exempt status, whether the 1023 or the 1023EZ, requires a user fee to accompany it. The user fee for the 1023 is $850. The user fee for the 1023EZ is $400. From a simple cost perspective, the 1023EZ is the preferable way to go.

Starting a Nonprofit Organization: The Organizational Meeting

The articles of incorporation have been submitted. The bylaws of the organization have been drafted. What happens next for a nonprofit organization?

The next step is to hold an organizational meeting. An organizational meeting can cover a multitude of topics, but there are at least two topics of critical importance: (1) selecting officers for the organization; and (2) adopting the bylaws.

The organizational meeting involves the board of directors who now have the power to name officers and adopt the bylaws. Minutes of the meeting need to be kept. There may be discussion as to who would be best qualified to serve as President or Treasurer. The board of directors also might discuss what other offices might be useful in addition to the statutory requirements of President, Secretary and Treasurer.

The organizational meeting is an exciting one. Sometimes it is the first instance of the organization's coming together in pursuit of its charitable purposes. When the organizational meeting is well planned, usually clients leave the meeting confident that their charitable purposes will be achieved. 

Starting a Nonprofit Organization: Drafting Bylaws

The next step in starting a nonprofit organization is to draft bylaws. The bylaws will be the rules that the organization follows. The bylaws will cover a multitude of topics. Here is a list of some of the topics that the bylaws will cover:

  • The location of principal office
  • The tax exempt purposes of the organization
  • Whether the organization will have members
  • The rules governing the board of directors, such as how many director will serve and how long each will serve
  • The rules governing meetings of the board of directors
  • The rules about the officers of the organization, such as the responsibilities of the President or Treasurer

This is just a taste of the decisions that must be made regarding the bylaws of the organization. The IRS will look for specific provisions in the bylaws in order to provide tax exempt status. It is best to talk through all of these decisions with a nonprofit attorney.