Monday, December 19, 2011

Planning Without Estate Tax Concerns

A client of Matthew C. Mullhofer Attorney called him regarding the Estate Tax laws for the 2011-2012 years. Mr. Mullhofer explained that the 2010 Tax Relief Act contained new tax arrangements for 2011 and 2012. These arrangements include a higher amount that can be transferred and a tax rate that is lowered which could take off the burden from many estates.

Matthew C. Mullhofer Attorney brought up to his client that in 2013 the estate tax is scheduled to become more aggressive which means that it could affect many families who are not considered wealthy.

Mr. Mullhofer went on to explain that for estates left behind in 2011 and 2012, assets exceeding a $5 million will be taxed at 35%(this has been the lowest tax rate in 70 years!). Married couples may be able to pool their exemptions to shield up to $10 million from federal estate taxes with the proper planning. This means that 99% of the country may not be obligated to pay estate tax. Planning is a key component when it comes to protecting assets and shifting income to heirs. In today’s depreciated real estate market, $5 or $10 million is a lot of money.

In order to transfer $5 or $10 million to their children, trustees have to establish the typical family trust that provides for the first 3.5 or 5 million to be transferred into their children’s trust, explained Mr. Mullhofer. He recommended that the trust give the surviving spouse the ability to dictate how the distributions to their children will be if there is a change in circumstances after the death of the first spouse. Unfortunately, this type of planning is not provided for in some family trust documents that Mr. Mullhofer has reviewed.

Mr. Mullhofer’s client also wanted to know how to preserve and protect assets. Matthew C. Mullhofer Attorney explained that using a limited partnership or limited liability company would be one way to do that, especially wherever real estate is a major asset. There are also different types of trusts to consider and choose from.

Call Matthew C. Mullhofer Attorney today to discuss your Estate Tax concerns at (714) 827-9955.

Wednesday, December 14, 2011

Preserving the Family Business

Matthew C. Mullhofer Attorney, was contacted by a new client that wanted some information on how to safely plan their family business to ensure its survival from one generation to the next. Mr. Mullhofer, explained that statistically, family businesses have only a 20% chance of being successfully transferred from one generation to the next. Matthew C. Mullhofer Attorney, explained that the failure to properly plan is what causes businesses to fail when getting transferred from one generation to the next.

Mr. Mullhofer let the clients know that until the end of 2012 a couple will be able to transfer up to $10 million estate tax free to their family, but in the beginning of 2013 the amount may be reduced to $7 million. This means that approximately 98-99% of family businesses will not have to worry about death taxes, and a family business will not fail because of death taxes, so it is safe to say that properly planning is what a business needs in order for it to prosper from one generation to the next.

Matthew C. Mullhofer Attorne, gave them a list of a few basic questions that a business owner today must think about in order to properly deal with the major family asset. Some of the basic questions that Mr. Mullhofer suggested are:

¨ Who will be taking over the family business if owner wants it to continue to the next generation? Is it going to be a family member or some key employee?

¨ Do the owner’s children want to continue the family business or not? If children are involved are they all involved or just one or two? If so, how will the value of the business be shared after your death, if all of your children are to be treated equally?

¨ If the business owner is married, how will the surviving spouse be able to have sufficient cash flow for the balance of his or her life? Where will that cash flow come from? If your business does not pay dividends now, will it after your death to your spouse?

¨ Do you have assets that can be segregated from the business that can produce income without having to run the business if it is sold? For example, do you or the business own the real property where the business is located? If so, you should think about a long term lease for the survivor, if the new owner does not want to operate the business at the same location. This way the survivors lease interest has to be dealt with if the business has to be sold.

¨ Is there a key contract or license agreement that can be placed into a separate limited partnership or limited liability company for asset protection purposes from outside creditors?

¨ Do you want to provide for your children only or for your grandchildren also? If so, do you want your children to have an incoming with invasion of principal during their lifetime of the family assets in order to assure that there will be no estate tax owed on your childrens death? This is call dynasty or generation skipping planning.

¨ If there is going to be a trustee for the surviving spouse from your portion of the family wealth that you own, who will be the trustee? Will it be the surviving spouse, your child or some third part? Can any of them run the family business or manage the family wealth if the business is sold?

These questions are just a few out of many that Matthew C. Mullhofer Attorney, asks when developing a plan to preserve the family business. Devoting time to plan is a major component in preserving all the hard work that has gone into the business.

Make an appointment with Matthew C. Mullhofer at (714) 827-9955 today so he can help you preserve your family business.

Monday, December 5, 2011

The New California Short Sale Law

One of Matthew C. Mullhofer Attorney clients came into his office with a Real Estate question. She wanted to know the details surrounding the New California Short Sale Law. Mr. Mullhofer knew that the law was made to protect many homeowners, but there are many loopholes that a homeowner needs to be aware of.

The California Legislature recently passed Senate Bill 931 which added Section 580(e) to the California Code of Civil Procedure effective January 1, 2011. This new section is great news for most short sale sellers. It means that when a seller of a one-to-four unit residential property (occupied residential property that is the borrower's primary residence) with only a first deed of trust sells the property as a short sale the lender cannot come after them for the unpaid balance. This law states that by approving the short sale, the lender is okay with the seller not paying the unpaid balance.

There are some exceptions to this law, and they are: it does not apply to loans secured by other types of properties nor does it apply to second or other junior liens against the property. The new law also does not apply if the borrower is a corporation or a political subdivision of the state.

Two possible big exceptions are: if the borrower commits fraud and the second exception is if the borrower commits waste. In both of these situations the law will not limit the lenders ability to seek damages.

A type of fraud that may have occurred which would remove the protection that this law offers might be: giving false information at the time the loan was being obtained in order to be approved for the short sale for example, misrepresenting hardship or concealment of additional offers. This would be sufficient enough to open the door to liability for the unpaid balance.

Waste is a legal approach in which a party acts in a manner which takes away from the value of the property. For example, removing appliances or stripping electrical fixtures from the property. This could take away the protections this new law gives.

Even though there are some pros and cons to this law, Matthew C. Mullhofer Attorney explained that this new law is able to provide great protection.

Call Matthew Mullhofer Attorney at (714) 827-9955 to have your Real Estate questions answered today!

Tuesday, November 29, 2011

Avoiding 'Alter Ego' Status

A business owner was referred to Matthew C. Mullhofer by his long time client. The gentleman wanted to know how to eliminate various business risks by forming different entities in order to control the risk beyond insurance coverage. Creditors like to defeat this type of corporate planning by using a legal theory called “alter ego” which means that they can reach all assets that are controlled by a business owner, in order to satisfy their judgments, so he wanted to know how to avoid this and keep all the entities separate.

Matthew C. Mullhofer explained that the Federal and State Courts have provided a way to avoid having the activities of one entity merged into a sister entity by means of the “alter ego” theory. If a creditor failed to prove the “alter ego” they would not have jurisdiction over the sister entity that has the deep pocket even when they may have personal jurisdiction over the other entity.

In order for a Corporation of LLC to refrain from being considered the alter ego of another entity, Matthew C. Mullhofer explained, it must maintain these corporate formalities:

· It must maintain separate books and accounting records;

· Maintain separate bank accounts;

· File separate tax returns;

· It must be sufficiently capitalized when it enters into business;

· Loans or other capital transactions between entities should work together at an arm’s length transaction

Matthew C. Mullhofer helped his new client set up his businesses in a legal procedure. This in turn helped the client successfully maintain his business entities by following proper corporate formalities.

Call Matthew C. Mullhofer today at (714) 827-9955 to discuss your business ownership questions.

Tuesday, November 22, 2011

Does the deed to the property you purchased accurately describe the property?

This morning, Matthew C. Mullhofer’s long time client came into the office with a question regarding a recent purchase he was making. For insurance purposes he wanted to know how to find out if the deed to the home he was purchasing accurately described the property. Usually when a buyer purchases a home they rely on the property’s address to describe the real estate property they are purchasing, and when escrow is closing the buyer usually does not double check the legal description of their home in the deed to verify that it correctly describes the property they are purchasing which could cause problems down the line.

Matthew C. Mullhofer explained to his client that deeds will contain two or three lines of a legal description of the property if it is located in a subdivision, and the street address is often included in it as well. If the property is not located in a subdivision, the legal description will be a “metes and bounds” legal description which usually consists of half a page or several pages containing the property’s terminal points and angles. So how does a buyer verify that the description matches the property?

Matthew C. Mullhofer advised that when going over the Preliminary Title Report which states the exact legal description of the property you are purchasing, the following should be observed:

1) If the property you are purchasing is part of a subdivision, it will appear to have straight lines and form a box type area. The legal description is usually relatively easy to read and verify once you confirm a starting point on the property. However, before escrow closes it should be verified that the legal description on the title policy is the same as described in the Preliminary Report.

2) If the property’s legal description is a metes and bounds legal description, the dimension of the meters and bounds should be sketched out by the title company as part of the Preliminary Report and escrow instructions should state the property being insured is illustrated by the drawing.

3) The real issue is, if it is a metes and bounds description the title company will generally require a survey in order to insure the description of the property. In this case, a surveyor should stake out the borders of the property, and provide the title insurance company with a certified copy of the survey of the property. The survey will set forth the legal description. There might be an additional fee to have the title company insure the legal description provided by the surveyor.

Since 1999 The Law Office of Matthew C. Mullhofer has been helping clients with their real estate needs. Please feel free to contact Mr. Mullhofer at (714) 827-9955 to discuss your real estate questions.