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If you own a business but are not incorporated you may want to consider filing for trade name protection.

By filing with the secretary of State's office, you can keep another company from using your name in the State of Nebraska.

The registration is valid for 10 years, and can be renewed every 10 years thereafter.

In the event your business expands and you incorporate, you can then use that name for your corporation.

February 2009

If you have minor children (under age 19), and are taking a trip without them, you may want to execute a limited power attorney for their caregiver.

This document will allow someone in your absence to make decisions for him or her while you are away. This would include such things as emergency medical and dental care, decisions relative to the place of residence and all decisions relative to the general well being of your children.

These documents are valid for six months from the date of signing.

January 2009

Termination of leases other than non-payment of rent.

If you are a landlord that has a tenant who pays their rent, but is breaking the lease in other ways, you can still evict them for cause.

First, you must serve the tenant a notice advising them of their breach, such as failing to maintain fit premises and/or specifically stating their noncompliance with the rental agreement.

The notice must also advise them that they 14 days from receipt of the notice to remedy the breach, and if they don't you, as landlord, elect to terminate the lease 30 calendar days from date of receipt of the notice.

The notice must further notify the tenant that if they cure the breach within the 14 days, that if substantially the same acts or omissions reoccur within six (6) months, you, as landlord, may terminate the lease upon issuing another 14 days written notice.

If the breach is not cured after serving the notice, then you can proceed with the filing of a standard eviction complaint with the court.

December 2008 Newsletter

Foreign Adoptions

If you have been fortunate to adopt a minor child from a foreign country, you must go through one final step in Nebraska to complete the adoption.

A petition must be filed with the County Court, Probate Division after you have had the child with you at home for six months.

A copy of the foreign decree and consents are also filed.

The process is fairly straightforward, but does take approximately 4 or 5 weeks to complete.

November 2008 Newsletter

Abandon Property of Tenant

When a tenant moves out of rented property, and leaves personal property behind, the landlord must go through certain steps before disposing of same.

It does not matter if the tenant moved out voluntarily or was evicted.

The landlord must serve upon the tenant a notice at their last known address by posting and mailing that he or she has 14 days to pick up the property. The landlord is entitled to reasonable storage costs.

The notice must reasonably itemize the property and a value must be placed on the property.

If the landlord believes the property has a fair market value of less than $250.00, then the property can be disposed of by the landlord as they see fit without further notice if the tenant fails to pay storage charges and to pick up the property within the 14 days.

If the landlord believes the property has a fair market value of more than $250.00, then the landlord must sell the property at public sale after notice of the sale has been given by publication. The tenant has the right to bid on the property at the sale. After the property is sold and the cost of storage, advertising, and sale are deducted, the remaining money must be turned over the State Treasurer pursuant to the Uniform Disposition of Unclaimed Property Act.

October 2008 Newsletter

Property ownership claims can sometimes be settled with the filing of a quiet title action, otherwise known as an adverse possession claim.

A common example is boundary or fence line between neighbors, but there is no size or value limit on property that can be claimed via adverse possession

If a person other than the legally, titled owner claims ownership to a piece of real estate, then they need to prove that they had:

1) actual, (2) continuous, (3) exclusive, (4) notorious, and (5) adverse

possession under a claim of ownership for 10 years to the real estate.

These are facts questions that need to be resolved on a case-by-case basis, but generally speaking these are hard cases to win, so a serious consideration to all factors must be given before undertaking such a lawsuit.

September 2008 Newsletter

Proceedings to confirm title

When a person passes away, and it is necessary to open a probate in order to clear title to assets this must be done within 3 years of death. If a probate is not opened within that time frame, then a probate may be opened only to confirm title to assets and determine inheritance tax.

The requirement that notice of the probate be given to creditors is dispensed with, and typically the proceedings can be handled more expeditiously than regular estate proceedings.August 2008

Small estate proceedings

In a previous update, I discussed the use of a 30-day affidavit in lieu of opening an estate when a decedent owns property valued at less than $25,000.00. If you run into a situation where a decedent owns real estate that is assessed at over $25,000.00 but the actual market value, such as sale value, is less than $25,00.00 you may be able to utilize a small estate proceeding. Small estate proceedings can also be filed if the decedent's estate slightly exceeds $25,000.00

If a decedent's estate does not exceed statutory allowances, costs of administration, funeral expenses and medical expenses, then the Personal Representative is allowed to distribute the estate to the persons entitled and file a closing statement, after giving notice to creditors.

This will result in a faster administration of the estate with less fees being incurred.

July 2008 Newsletter

Use of advancements in your Will

If you have loaned or gifted money to a potential beneficiary of your estate then you may want to consider updating your Will to utilize the power of advancement.

An advancement is when you acknowledge in your Will that you have given money to a potential beneficiary of your estate, and you want those funds to count as part of your estate and to offset against any funds that beneficiary is entitled to from your estate.

This is especially important in situations where there is limited documentation regarding the gift or loan. For example you have four children, and your estate is worth $500,000.00 cash, plus you have loaned/gifted one of the children $100,000.00. You would like your estate to be divided equally between your children.

Your estate is really worth $600,000.00 ($500,000.00 cash plus $100,000.00 loan). Divided four ways, each child receives $150,000.00. Utilizing the advancement, the child that has already received $100,000.00, would only receive $50,000.00 cash, as the $100,000.00 loan/gift offsets his share of the estate

June 2008 Newsletter

Limited power of attorney for real estate transactions

If you are buying or selling real estate and are not living in the city where the property is located, you may want to consider executing a limited power of attorney to authorize someone to act on your behalf in order to complete the real estate transaction.

A limited power of attorney will give someone the authority to sign documents on your behalf, such as the closing statement, deed, and affidavits. While many times the signing of documents can be handled through the mail, email or facsimile, a person acting as your power of attorney has the ability to handle things immediately and work with the other party in person.

May 2008 Newsletter

Small estates

Nebraska has determined that a person passing away with $25,000.00 or less in property can pass property to their heirs or beneficiaries of their Will without having to file pleadings with the probate court.

The designated Personal Representative of a decedent's Will needs to execute a 30 day affidavit giving them the right to take possession of a deceased person's property, pay any outstanding debts, and distribute the deceased's property per the Last Will and Testament. If a deceased does not have a Will, then the closest relative would complete the 30-day affidavit.

This affidavit can only be completed 30 days after someone passes away, and only pertains to property titled solely in the name of the decedent.

Small estates

Nebraska has determined that a person passing away with $25,000.00 or less in property can pass property to their heirs or beneficiaries of their Will without having to file pleadings with the probate court.

The designated Personal Representative of a decedent's Will needs to execute a 30 day affidavit giving them the right to take possession of a deceased person's property, pay any outstanding debts, and distribute the deceased's property per the Last Will and Testament. If a deceased does not have a Will, then the closest relative would complete the 30-day affidavit.

This affidavit can only be completed 30 days after someone passes away, and only pertains to property titled solely in the name of the decedent.

April 2008 Newsletter

Eviction of tenants for non-payment of rents

Most evictions of tenants are due to failure to pay rent. This article will briefly discuss the procedure for evicting a tenant for non-payment of rent.

The first thing a landlord needs to do is to serve the tenant with a three-day notice, giving the tenant an opportunity to pay his or her rent within 3 days.

If the tenant does not pay the full amount due, the landlord can proceed with eviction.

After a complaint for restitution is filed with the court, a hearing will be held within two weeks. This assumes the landlord is not suing for back rent and the tenant is properly served with summons.

At the hearing, if the court finds that the tenant has not paid his or her rent, then an order is entered granting the landlord possession of the property. The clerk's office will then issue a writ directing the constable to turn possession over to the landlord. This process usually takes 7-10 days.

From start to finish it takes about 3-4 weeks to evict a tenant, so it is best to serve a 3-day notice as soon as possible to get the process going.

March 2008 Newsletter

Special needs guardianships

If you are the parent of a special needs child who is about to turn 19 (legal age in Nebraska) then you need to consider filing for guardianship of your child.

The law assumes that when a person turns 19 they are capable of handling their own affairs. The statutes give parents the right to make decisions for their minor children. These range from making medical decisions to determining where your child should live.

As soon as a child turns 19, the parents' right to control their children automatically terminates, even if the child is not capable of making these decisions. In order to keep making decisions for your special needs child, parents needs to file to be appointed as guardian.February 2008 Newsletter

Changes in inheritance tax law

If you inherited property from a person who had property located in Nebraska or was a resident of the State, then you should be aware of a recent change in the Nebraska law.

Effective January 1, 2008 the new tax rates regarding inheritance are as follows:

Spouses are 100% exempt.

Lineal decedents such as children, grandchildren and close relatives such as parents, brothers and sisters the rate of tax is 1% on any amount received over $40,000.00

Non lineal decedents such as niece or nephew are taxed at the rate of 13% on any amount received over $15,000.00

Non relatives are taxed at the rate of 18% on any amount received over $10,000.00

Charities are 100% exempt from inheritance tax.

Most people are not aware that inheritance tax is owed on any property received as a result of someone's passing. This includes property received via joint tenancy, distributed pursuant to a trust or from an estate.

The payment of inheritance tax is now due 1 year from the date of decedent's death, and if not timely paid there is a 5% penalty each month the tax is not paid, for a maximum penalty of 25%

January 2008 Newsletter

January is a good time to review your estate plan. Tax time is just around the corner and you should be getting year-end tax information in the mail.

While nobody likes preparing taxes, year-end information is a good way to track the nature and extent of your assets.

Make sure when reviewing your financial information you make note of how your assets are titled, if there are named beneficiaries, and if they match your estate plan.

It is also a good idea to keep a copy of your last tax return and financial information with your estate documents. That way in the event something happens to you, your loved ones will have a good start on tracking your estate assets.

April 2007 Newsletter

Last month's newsletter focused on the testate process.

This month I will review the intestate process (a person dies without a Will)

If a person dies without a Will, and owns property valued at over $25,000.00, then an intestate proceeding must be filed with the County Court in which they are a resident at of the time of their death. The Court then ensures that the property of the decedent is distributed pursuant to the intestate laws of the State of Nebraska.

The intestate laws are only going to govern assets that are titled solely in the name of the decedent. Any jointly titled property or pay on death assets pass automatically to the surviving joint owner or named beneficiary.

The first step in an intestate process is to petition the Court to appoint someone to handle the estate, i.e. the Personal Representative. The intestate laws set forth priority on who should be appointed as Personal Representative, but generally speaking it is the closest relative to the decedent who have priority.

Once a Personal Representative is appointed, his duties are the same as a Personal Representative in the testate process with the exception that distribution of the assets of the decedent will go to beneficiaries per the intestate laws, since there is no Will directing distribution of the assets.

The law assumes that if a person dies without a Will that they would want their property to pass to their closest relatives. In the most basic terms the law directs who should receive a deceased persons property, starting with a spouse and working down to more remote relatives. Only in the event that a person dies having no relatives whatsoever does the property pass to the State.

Some people are comfortable with the intestate process, and letting it direct distribution of their estate. If you are not at ease with it, then it is necessary to execute a Will to set forth your desires upon your passing.

March 2007 Newsletter

What is probate and how does it work?

There is not a simple answer to those questions, but I will give readers a brief outline of the probate process.

This month I will focus on testate (a person dies with a Will), and next month the intestate process (a person dies without a Will)

If a person properly executes a Last Will and Testament, then it is filed for Probate (administration) with the County Court in which they are a resident at of the time of their death. The Court then ensures that the direction for distribution of the person's property is followed out.

Wills normally nominate someone to carry out the decedent's wishes. This person is called the Personal Representative. They are given authority by the Court to carry out the terms of the Will.

A Personal Representative must make an inventory of the decedent's assets, pay creditors of the estate, account to all beneficiaries of the Will, and make distribution to the beneficiaries per the terms of the Will.

The Will only controls assets that are titled solely in the name of the decedent. Any jointly titled property or pay on death assets pass automatically to the surviving joint owner or named beneficiary.

The Personal Representative must prepare the decedent's last income tax return, and file and pay inheritance taxes, and estate taxes if necessary.

If a loved one passes away, I recommend consulting with an attorney to see if probate is necessary, and as you can see the probate process is not something to dread or worry about.

February 2007 Newsletter

Power of Attorney, Durable Power of Attorney, Living Will. These terms can be confusing and for some, intimidating.

This month I will set out in basic terms what these documents are.

There are two kinds of Power of Attorney documents, financial and health care.

A financial Power of Attorney is a document whereby a persons grants another the authority to act on their behalf regarding financial matters. It can be limited in what they can do, such as a single transaction or can be a broad, general grant of power. If it is a general power, then the power of attorney can do anything the grantor can do, in effect stepping into his or her shoes.

A health care Power of Attorney is a document whereby a persons grants another the authority to act on their behalf regarding medical decisions, such as if surgery should be performed. As long as the grantor is competent to make decisions, health care professionals are going to discuss care with him or her. Only after the grantor becomes incapacitated will health care professionals discuss care options with the power of attorney.

A durable power of attorney stays in effect even if the grantor becomes incapacitated. If a power of attorney is not durable, then it will not have an legal effect upon incapacity. All powers of attorney cease to have legal effect upon death of the grantor.

A living will is a document, which states a person's desires for health care treatment. Such things as feeding tubes, and life support are covered in this document. This can be a separate document, but most times is combined with a health care power of attorney.

January 2007 Newsletter

I often am asked, do I need a living Trust?

There is no simple answer to that question. In determining what is best for a client I give them a comparison of what a Will is and what a living Trust is, and then let the client decide how they wish to proceed.

A Will is a document whereby a person directs how their property is to be disposed of after they die. It has no legal effect until the maker of the Will passes away. When the maker of a Will dies, the Will is filed with the Court for Probate, which gives a person designated in the Will the power to distribute assets.

A Living Trust is a document that most often is used as a Will substitute. A Trust can also be used to manage a person's assets while they are living. In a Trust, the grantor places/titles his or her property into a Trust. Most of the time the maker of the Trust is named as Trustee, so during their lifetime they are the ones managing the property. The Trust can appoint a successor Trustee so in the event of incapacity of the maker, someone else can manage the property during the maker's lifetime. Upon the death of the maker, the substitute Trustee will then divide the property per the directions of the maker. This part of the Trust acts like a Will substitute.

The main advantage of a Trust is that most of the probate process is eliminated, thus reducing costs. The main disadvantage to a Trust is that it is more expensive to create compared to a Will, and there is more legwork on the front end by the maker of the Trust placing the assets into the Trust.

If you are thinking about making or revising your Will or Trust, I suggest contacting my office for a costs free analysis.

What is probate and how does it work?

There is not a simple answer to those questions, but I will give readers a brief outline of the probate process.

This month I will focus on testate (a person dies with a Will), and next month the intestate process (a person dies without a Will)

If a person properly executes a Last Will and Testament, then it is filed for Probate (administration) with the County Court in which they are a resident at of the time of their death. The Court then ensures that the direction for distribution of the person's property is followed out.

Wills normally nominate someone to carry out the decedent's wishes. This person is called the Personal Representative. They are given authority by the Court to carry out the terms of the Will.

A Personal Representative must make an inventory of the decedent's assets, pay creditors of the estate, account to all beneficiaries of the Will, and make distribution to the beneficiaries per the terms of the Will.

The Will only controls assets that are titled solely in the name of the decedent. Any jointly titled property or pay on death assets pass automatically to the surviving joint owner or named beneficiary.

The Personal Representative must prepare the decedent's last income tax return, and file and pay inheritance taxes, and estate taxes if necessary.

If a loved one passes away, I recommend consulting with an attorney to see if probate is necessary, and as you can see the probate process is not something to dread or worry about.

January 2006 Newsletter

I heard an ad on the radio the other day about Legal Zoom. This is an online, discount legal document provider.

The main sales pitch for these types of services is that they can save you money. However, they greatly exaggerate the savings to you. For example, they quote a simple will for $59.00 and claim that a lawyer will charge you $455.00. This simply isn’t true. For a simple Will, we normally charge $90.00, and $160.00 for a husband/wife. As a single person, you are saving a whopping $30.00, and have to prepare the document yourself!

Keep in mind, costs savings isn’t always what it is cracked up to be. The discount provider isn’t going to analyze your situation, customize documents, point out pitfalls, and they certainly are not going to answer questions, or provide continuing updates and reviews of your documents as your life changes.

The legal industry is a service one. We are here not only to prepare documents for you, but also to provide advice and expertise that an online document service cannot give you.

March 2009