Kennelly Business Law Kennelly Business Law | Business Law Attorney in Fargo, ND2024-03-16T17:52:11Zhttps://www.kennellybusinesslaw.com/feed/atom/WordPress/wp-content/uploads/sites/1600151/2022/09/cropped-site-icon-32x32.jpgOn Behalf of Kennelly Business Lawhttps://www.kennellybusinesslaw.com/?p=474572024-03-16T17:52:11Z2024-03-16T17:52:11Zright of first refusal” clause in your parenting plan.
How does a right of first refusal work?
Essentially, a right of first refusal clause obligates whichever parent has the child at any given time to notify their co-parent before leaving the child with a sitter for a certain length of time. The co-parent would then have the opportunity to take charge of the child, even though it isn’t technically their parenting time. Only if they decline can a third-party caretaker be used.
For example, imagine you have shared custody with your ex-spouse, where your child alternates their weeks at each household. However, your co-parent travels internationally for their company, and they suddenly have to leave right in the middle of “their” week with your child. A right of first refusal clause would obligate them to contact you and give you the opportunity to care for your child while they are gone before they resort to anybody else.
When co-parents are on amicable terms, this arrangement can help foster a cooperative spirit and create a stable caretaking situation for their children. Therefore, if you’re in a position to facilitate this spirit in your co-parenting relationship, it may benefit you to seek legal guidance concerning any parenting plan adjustments that may need to be made accordingly.]]>On Behalf of Kennelly Business Lawhttps://www.kennellybusinesslaw.com/?p=474482024-03-05T12:14:19Z2024-03-03T16:51:33ZOne thing some people dread as they draft their will is that it will be challenged after their death. Families have been known to battle each other in court for any number of reasons.
Some believe a decedent neglected to give them an adequate inheritance. They may have been promised something that’s not reflected in the will. They may believe the deceased didn’t have the cognitive faculties (testamentary capacity) to legally put a will in place. Often, they accuse another family member, caregiver or someone else in their loved one’s life of exerting “undue influence” on them to revise their will or other documents to give them assets and/or authority over the administration of their estate.North Dakota allows antemortem (“pre-death”) probate. That means the testator (the person who creates a will) submits the will to a probate court while they’re still alive. Further, anyone who contests it can do so at this time. Under North Dakota law, “Any beneficiary named in the will and all the testator's present intestate successors shall be named parties to the proceeding.”
Why do some people choose antemortem probate?
People choose antemortem probate for a variety of reasons. One is to avoid will contests after they’re gone. That’s because heirs and other beneficiaries (or those who think they should be beneficiaries) have a chance to contest the will while the testator is still around to speak for themselves about their decisions and show that they have full understanding of those decisions. Antemortem probate also allows testators to ensure that the will is legally valid while they’re still around. This way, they can make any necessary changes and avoid confusion and probate issues for their loved ones. Of course, if a person has experienced estate planning guidance in creating their will, this shouldn’t be a problem.Certainly, antemortem probate isn’t for everyone. It’s not something you’d want to do when you’re still relatively young and healthy because you’ll likely need to make some modifications in the years to come. However, if it’s something you’d like to explore – either for yourself or a loved one – it’s wise to learn more about it.]]>On Behalf of Kennelly Business Lawhttps://www.kennellybusinesslaw.com/?p=474472024-03-05T12:14:25Z2024-02-20T16:15:46ZGet regular reviews and updates
Life throws its share of curveballs. Marriage, new children or tragic losses generally require will updates. Schedule annual reviews when life flows serenely, and update your plan promptly after significant events. Be careful – a busy schedule can become a convenient excuse.
Stay on top of the law
Laws regarding wills, trusts and additional estate documents vary from state to state and are always subject to change. Oral or spoken wills, for example, are not recognized in North Dakota. Always stay informed of legal changes to ensure your plan remains watertight.
Properly store documents
A missing will can mean unfulfilled wishes and heartbreak for your family as they try to decipher your wishes without guidance. Choose a secure location, like with your executor or in a locked safe. Make sure someone you trust knows the exact location and access details. Don't let your wishes get lost in the shuffle.
As you can see, estate planning demands more than completing paperwork. You must understand its legal nuances to ensure that there are no gaps. Seek legal guidance to navigate these intricacies and create effective strategies for smart estate planning.]]>On Behalf of Kennelly Business Lawhttps://www.kennellybusinesslaw.com/?p=474462024-03-05T12:14:29Z2024-02-07T19:13:56ZWhat purpose do they serve?
Contract recitals set the stage for the agreement by providing background information, outlining the parties' intentions and clarifying the context of the association. They function as an interpretive guide, aiding in understanding the contract's purpose and preventing future misunderstandings.
Here are some benefits well-drafted recitals can offer.
Clarity and interpretation: They can guide courts, arbitrators, and readers to understand the agreement's purpose and intent.
Risk mitigation: They help prevent misunderstandings and potential disagreements by stating context and goals.
Negotiation tool: They establish common ground for negotiations, ensuring everyone's on the same page.
Historical context: They provide valuable background information, especially for complex or long-term agreements
For ideal results, recitals should be clear, concise and easy to comprehend, despite any required “legalese.”
Is there a possible downside?
Remember, contract recitals are introductory narratives meant to establish clarity and intent about the association. If they are overwritten or stray into the realm of operative provisions, it may introduce confusion, which could amplify in the face of a dispute.
Contract recitals are typically advantageous, but if drafted improperly, they may increase legal risk for one or all involved parties. Having experienced legal guidance can help ensure that all parts of your contracts minimize your risk.]]>On Behalf of Kennelly Business Lawhttps://www.kennellybusinesslaw.com/?p=474452024-03-05T12:14:34Z2024-02-01T17:01:43ZUse a trust to hold the land
One of the simplest and most common ways that people protect farmland from the ravages of divorce is by changing the ownership of the farmland. When it does not belong to individual family members but rather a trust operated by or for them, then they have protection from claims made in the North Dakota family courts. Even if someone divorces after their parents and all the current owners retire or die, a trust can protect the property indefinitely and ensure that it remains in the family.
Create clear employment agreements
Children working on a farm often feel like owners and may live on buildings on the land. They may accept certain forms of support, including the farm paying their utility bills, as a justification for a low salary. Unfortunately, unofficial employment arrangements within a family could potentially put the farm at risk, as the other spouse might claim that it technically belongs to the whole family and is part of their compensation for employment.
Having very clear employment contracts that indicate that work on the farm does not translate to an ownership interest in the land can reduce the likelihood of a spouse trying to force the sale of the property for their own selfish gain. Ideally, parents with children who are about to become adults or begin working on the farm can proactively protect themselves and the farmland that could be the biggest component of their personal legacy.
Thinking about the possibility of future legal challenges for not just the current owners but also the next generation of owners may help people preserve a family farm for the indefinite future.]]>On Behalf of Kennelly Business Lawhttps://www.kennellybusinesslaw.com/?p=474442024-03-05T12:14:38Z2024-01-25T12:16:54ZUnderstanding the “stepped-up basis” rule
If you have inherited a house, know that capital gains tax won’t come into play unless and until you sell the property. Just inheriting an asset that’s worth a lot more than when it was first acquired doesn’t make you responsible for any capital gains tax. Second, under the IRS’s “stepped-up basis” rule, you’ll only have to pay capital gains tax on the amount that has increased in value since you took ownership of it.
Say you’ve inherited a home that your parents paid $30,000 for in the 1970s. The architect later became famous and the neighborhood is thriving, so it’s worth $300,000 now. You keep the home for a few years and then sell it for $400,000. You’d only be responsible for the stepped-up capital gain of $100,000 – the difference between the value when you inherited it and when you sold it. If you make the home your primary residence, that amount can be excluded on your income taxes under tax law.
Of course, if you’ve inherited any asset worth a considerable amount and you’re considering whether to accept the asset or decline (“disclaim”) it, it’s wise to consult with a financial and/or tax professional to weigh the pros and cons – and so that you don’t make decisions based on false assumptions. It’s also wise to have legal guidance as well – particularly if you’re considering disclaiming an inheritance -- so that you comply with the law as you move forward.]]>On Behalf of Kennelly Business Lawhttps://www.kennellybusinesslaw.com/?p=474432024-03-05T12:14:43Z2024-01-08T22:41:47ZAs couples end their marriage, determining the fate of shared and individual financial assets, especially investments, becomes a primary concern. Individuals need to approach this process with a clear understanding of securing their financial interests.
Accurate evaluation and strategic planning ensure these assets are protected and fairly considered in the property division process. Both parties must avoid making emotional decisions and focus on the logical side of the property division.
Documenting and valuing investments accurately
Ensuring that all investments are thoroughly documented and accurately valued is crucial. This includes collecting comprehensive records, such as statements and acquisition dates. It also involves understanding the current market value of these investments. Accurate documentation and valuation are critical in ensuring that the investments are fairly represented and considered during the property division process.
Negotiating equitable division
Negotiating an equitable division of investments is an integral part of the process for people going through a divorce in North Dakota. This often involves balancing various assets against each other to achieve a fair distribution. For instance, one person might retain certain investments in exchange for other assets. The objective is to reach an agreement that respects the financial interests of both parties and provides a fair division of assets.Anyone who has investments must understand how they might be divided. Taking the time to consider how each option will impact them now and into the future is critical. Working with someone familiar with these matters can help to reduce the stress of the situation. It may also provide a logical basis for decisions that must be made.]]>On Behalf of Kennelly Business Lawhttps://www.kennellybusinesslaw.com/?p=474412024-03-05T12:14:47Z2023-12-26T23:11:06ZWhen you’re buying a new home, you’re about to embark on a whole new chapter of your life – but you can’t get started until all the previous chapters in the home’s story are closed.
When there are issues on a property’s title that aren’t fully resolved, both buyers and sellers can end up deeply frustrated.
What are some of the problems you’re likely to encounter?
A good title search can uncover all kinds of problems, but some are more common than others. These include:
Incomplete information: Missing addresses, partial names and other incomplete boxes on the title document are a lot more serious than you might think.
Incorrect descriptions: Errors in the legal descriptions of the property can lead to confusion or disputes over the boundaries.
Forgeries and fraud: This happens more than many people realize. If there’s a forged signature or evidence of fraud during a prior title transfer, that’s a big issue.
Uncleared liens: Outstanding debts or liens, such as unpaid taxes, mortgages and other financial obligations, can all affect the title’s transferability.
Easements and encumbrances: Hidden restrictions in the form of easements and encumbrances granting others the right to use the property in some way can affect the value of the property.
Unreleased mortgages: It may surprise you to find out that a mortgage was paid off decades ago – and never properly released. That has to be resolved prior to any sale.
When a title problem crops up before a real estate deal, you shouldn’t try to manage the issue on your own. Legal assistance can help spot problems in advance – and find solutions.]]>On Behalf of Kennelly Business Lawhttps://www.kennellybusinesslaw.com/?p=474392024-03-05T12:14:52Z2023-12-12T13:31:16ZIf you’re considering or preparing for divorce in the new year, you may be doing some research on what kind of spousal support you can seek – or be expected to pay. Spousal support (alimony) isn’t awarded, or even sought, in all divorces. However, if one spouse has a considerably lower income than the other, or perhaps doesn’t have their own income, it can be critical to their financial stability after divorce – at least until they can become self-supporting.
You may have noted that one of the many factors that judges can consider in awarding support (or approving a support agreement a divorcing couple has worked out) is the “standard of living.” That refers to the quality of life or lifestyle a person had during the marriage. This doesn’t mean that everyone should expect to maintain their marital standard of living after divorce. Unless one or both spouses have considerable wealth, divorce usually requires some downscaling. It’s simply more expensive to live on your own than as a couple.
What kinds of things do judges consider?
However, there are circumstances where the paying spouse may be expected to provide for their ex so that they can maintain the standard of living they’ve had. For example, if a couple has been married for decades and one spouse left the workforce to raise the children while the other built a lucrative career, the “stay-at-home” spouse may never be able to support themselves for a time -- or possibly ever – without their ex’s help.That’s why judges also consider things like the length of the marriage, the ages and health of both spouses and each one’s earning capacity and assets. They’ll also factor in things like whether the spouse who’s seeking support is the primary caregiver for the couple’s children and how much they contributed to the other’s success.If divorcing spouses need to rely on a judge to make this decision, it’s crucial to provide a strong case. That’s true whether you’re the one seeking support or the one who believes what your spouse is asking for is unreasonable. This, along with so many other aspects of divorce, requires having sound legal guidance.]]>On Behalf of Kennelly Business Lawhttps://www.kennellybusinesslaw.com/?p=474342024-03-05T12:14:57Z2023-12-02T16:24:18Zsome tips for effective business succession planning that you may benefit from keeping in mind.
Start as soon as possible
Start the succession planning process as far in advance as you can. It takes time to identify and groom potential successors, outline a transition strategy and ensure all legal and financial concerns are addressed. It may be best to start the process years before you actually want to leave the business.
Identify potential successors
Identify and develop a pool of potential successors within the company. This could be family members, key employees or external candidates who have the skills, vision and commitment to take over the business. Remember that, even if you’re leaving the business to family members, they do not all have to have the same roles and their ownership interests do not have to be perfectly equal.
Train these successors
It’s helpful to provide mentoring and training as you groom potential successors. This might include exposure to various aspects of the business, leadership training and specific skill development. This is also why it’s best to start years in advance, so you can take that time to give the next person on-the-job training while you’re still with the company.
Create a comprehensive plan
Develop a detailed succession plan that includes a clear timeline, roles and responsibilities of the successors, financial considerations and contingency plans in case of unforeseen circumstances. Open and transparent communication with stakeholders, employees and family members is crucial. Discuss the succession plan with key individuals to manage expectations and to better ensure a smooth transition.
Succession planning is a complex process that requires careful consideration of numerous factors. It may be wise to consider seeking legal guidance as you explore the options that you have and the steps you need to take to get your plan underway.]]>