Protect your Baby by Preparing a Will

It seems like there are babies and young children everywhere I look nowadays.  I’ve found myself giving the following advice repeatedly, so I thought I’d post it here for everyone’s benefit:

Protect Your Baby.  Prepare a Will.

Having a new baby will likely be one of your most wonderful and rewarding experiences. But planning for a baby means planning for both the good and the bad. Unfortunately, the “bad” may include your death or permanent disability while your child is still young.

If you want ensure that your children will be raised and provided for in the way you intend, you need to seriously consider creating a will that states who should take care of your children and their finances.

Undoubtedly, it’s best practice to prepare a will after the birth of your first child, and update the will before the arrival of any more children. Without a will, the state will decide who will care for your children and how your money will be divided, and there are no guarantees that the state will follow your wishes.

Before preparing a will, there are a few questions you must answer:

Who will be your child’s guardian?
Perhaps the most important question for parents when drafting legal wills is the question of who will be the child’s guardian. Think carefully about who you would like to raise your child in the event of an untimely death. Make sure you discuss this guardianship with the party in question before you draft the will. Discuss the things that may be really important to you for your children such as education, religion and family connection. Don’t wait too long before writing a will if you already have a child, as establishing guardianship is one of the most important things a parent can do.

What property is included in your will?
When you draft a will, you must think about what property will be included. You can be as specific or as general as you’d like when naming property. You can simply refer to your property as a body by referencing your estate, or you can break down specific or individual pieces of property that have special value, like artwork or collectibles. In the event that property isn’t designated in the will or a general term that encompasses the entire estate, it reverts to the state’s probate laws for distribution. You can handle disbursement of property a few different ways. If you’ve listed specific items of property, you can designate individuals to receive that property. Alternatively, you can simply designate who gets what portion of your estate, and let the named parties decide how to divide the property based on your allocations.

Who will be executor of your will?
After guardianship of your child, naming an executor is one of the most important decisions you can make. The executor is responsible for settling your estate after your death, and ensuring that your will is honored. An executor has to handle all the paperwork, liquidate assets, pay any taxes and distribute the proceeds according to the instructions in your will. Make sure you choose a trustworthy executor. If you don’t want to leave this burden to a friend or family member, choose a professional executor or a lawyer to handle the process.

Nobody wants to think about dying while their children are little, so unfortunately many people don’t. But now is the time to make plans and set them down in writing. Once you have the above questions answered, find a lawyer who can prepare your will. Wills are revocable, meaning you can always change them later, as necessary. However, setting something in motion now will be best for your children and give you peace of mind that it has been taken care of. Create a will now…and then relax and enjoy watching your children grow and prosper.

How to Form an LLC in Indiana

What is an LLC?

A Limited Liability Company (“LLC”) is a business entity which combines the advantage of a corporation’s limited liability and the flexibility and single taxation of a general partnership.

“Limited liability” means that an LLC member is protected from personal liability for business debts and claims. If the business owes money or faces a lawsuit, the assets of the business will be at risk but not the personal assets of the LLC member.

Forming an LLC in Indiana can be done relatively quickly and with limited expense.  This post will detail the main steps you’ll need to take to form a limited liability company (LLC) in Indiana:

  • Select an available business name that complies with Indiana’s LLC rules (and federal and Indiana trademark law).
  • Create an LLC operating agreement, which sets out the rights and obligations of the LLC members.
  • File formal paperwork, usually called Articles of Organization, and pay the filing fee

Choose a Name for Your LLC

The name that you choose for an Indiana LLC must be distinguishable from any other registered or authorized Indiana business entity or any reserved names on record.

The name of the LLC must also contain one of the following words as a company identifier: “Limited Liability Company”, “LLC” or “L.L.C.” (You will subsequently file a simple “doing business as” form without the company identifier. For example, the formal name will be , but the d/b/a would be …)

In addition to following Indiana’s LLC naming rules, you’ll want to conduct a trademark clearance search to make sure that your name won’t violate another entity’s trademark.  (At this stage, you should also register relevant domain names and consider a federal trademark application for your LLC’s name. )

File Articles of Organization

After settling on a name, you must prepare and file “Articles of Organization.” You may also see this document referred to as a “certificate of formation” or “certificate of organization.”

Filing Fees

One disadvantage of forming an LLC instead of a partnership or a sole proprietorship is that you’ll have to pay a filing fee when you submit your Articles of Organization. The current filing fee in Indiana is $85 (for online filing). If you would like to compare this to other states’ filing fees, click here.

Required Information

Articles of Organization are short, simple documents. You can find a template here. You must provide the LLC’s name, address, registered agent, dissolution and management information.

Members are not required to be listed in the Articles of Organization. However, be aware that Indiana has the following membership requirements for an LLC:

Indiana does not require a specific purpose to be listed in the Articles of Organization.

Registered Agent

You will be required to list the name and address of a person, usually your business attorney or one of the LLC members, who will act as your LLC’s “registered agent,” or “agent for service of process.” The agent is the person designated to receive legal papers in any future lawsuit involving your LLC.

You can now file all documents online at the Indiana Secretary of State’s INBiz website.

Create an LLC Operating Agreement

Even though operating agreements are not required to be filed with the Indiana Secretary of State and are not required by Indiana law, it is essential that you create one. Within an LLC operating agreement, you will set out rules for the ownership and operation of the business (much like a partnership agreement or corporate bylaws).

Optimally, the operating agreement will cover the following topics:

  • each member’s percentage interest in the business
  • members’ rights and responsibilities
  • members’ voting power
  • how profits and losses will be allocated
  • how the LLC will be managed
  • rules for holding meetings and taking votes, and
  • “buy-sell” provisions, which determine what happens if a member wants to sell his or her interest, dies, or becomes disabled.

Once you’ve completed the above steps, take a moment to congratulate yourself. You have a new Indiana LLC. However, note that Indiana requires most businesses to obtain a business license and pay a fee if operating in the state, so check to make sure your business is complying with the licensing requirements for your particular industry.

Annual Filing Requirements:

Looking forward, be aware that a Business Entity Report must be received by the state of Indiana by the anniversary month, and it must be filed every two years. The year of filing depends on whether the LLC was filed during an even or odd numbered year. The fee for this filing is $31 every 2 years.

Taxes:

For more information on taxes, visit the State of Indiana Tax Information Website.

Before filing for an LLC, you may want to discuss with your business attorney whether an LLC is the appropriate entity type for your company. An attorney can also assist in drafting your LLC’s Operating Agreement.

Free Legal Resources in Indianapolis

Due to budgetary restrictions, the Marion County Law Library in Indianapolis ceased to operate in 2010 and hasn’t reopened.

If you’d like to do some free legal research or access court forms on your own,  there are still a few options. Computers with Internet access to court forms are available at public libraries around town and at the Central Library located at 40. E. St. Clair St., phone 317-275-4100.

You can do legal research at the Ruth Lilly Law Library in I.U. Robert H. McKinney School of Law (hours and access policies).

Please note that individual courts do not have forms and their staff cannot advise you on the use of appropriate forms or assist with filling them out.

For a free legal consultation (service availability is often based on income level), you may contact the following organizations:

  • Indiana Legal Aid Society: 317-635-9539
  • Legal Services: 317-631-9410
  • Neighborhood Christian Legal Clinic: 317-415-5337
  • Indianapolis Bar Association’s Lawyer Referral Service: 317-269-2222
  • Free Legal Line, every second Tuesday of the month, between 6:00 p.m. and 8:00 p.m: 317-269-2000
  • Legal Advice Hot Line, 8:30 a.m.-4:30 p.m., Monday-Friday: 317-269-2222 ($35.00 for a 20-minute phone consultation with attorney)

501(c)(3) v. 501(c)(6) Nonprofits

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Many people are familiar with the “501(c)(3)” nonprofit designation. But what many don’t realize is that Section 501(c)(3) of the Internal Revenue Code is just one of many tax law provisions granting exemption from the federal income tax to nonprofit organizations. Another common designation is the 501(c)(6) nonprofit. For each type of exemption classification, varying rules and requirements may apply. The following information will help nonprofits and donors understand the distinction between these two types of nonprofit organizations, 501(c)(3) and 501(c)(6), including important tax deduction consequences.

501(c)(3)

501(c)(3) exemptions apply to entities organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (e.g. NCAA).

Donors who make charitable contributions to most types of 501(c)(3) organizations generally are afforded a charitable deduction under section 170 of the Internal Revenue Code. Regulations specify the applicable requirements for donors to claim such deductions (e.g., receipts for donations over $250).

501(c)(6)

A 501(c)(6) is specifically reserved to business leagues. A business league is an association of persons having some common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for profit. Trade associations and professional associations are business leagues. To be exempt, a business league’s activities must be devoted to improving business conditions of one or more lines of business as distinguished from performing particular services for individual persons. 501(c)(6) organizations are exempt from most federal income taxes. However, donations to a 501(c)(6) are not tax deductible as charitable contributions, as is the case with a 501(c)(3). Donations to 501(c)(6) organizations are not required to be disclosed.

Here’s a side-by-side comparison of key characteristics of 501(c)(3) and 501(c)(6) nonprofit designations:

Note: this blog post contains general advice. Please consult your own attorney or accountant with specific legal and tax issues.

 

Should You Register Your Trademark?

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Clients often inquire whether it’s in their best interest to register their trademarks with the U.S. Patent and Trademark Office (“USPTO”).

The traditional short answer is: ”Yes, if at all possible, you should register your trademarks!” This advice has been widely echoed by qualified intellectual property attorneys.

The purpose of this post is to give you additional financial information with which you can decide whether to register your trademarks. Some lawyers will tell you it’s “expensive.” The same lawyers might tell other clients that it’s “not expensive.” I’ll provide some real numbers that you can actually put into your budget.

First, keep in mind that registration of  trademarks is not required. Common law rights arise naturally from actual use of a trademark. Generally, the first entity to either use a trademark in commerce or file an intent to use application with the USPTO has the ultimate right to use and registration. However, filing for and receiving a federal trademark registration on the Principal Register provides several advantages:

  • constructive notice to the public of the registrant’s claim of ownership of the mark;
  • a legal presumption of the registrant’s ownership of the mark and the registrant’s exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;
  • the ability to bring an action concerning the mark in federal court;
  • the use of the U.S registration as a basis to obtain registration in foreign countries; and
  • the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.

Optimally, all trademark owners who consider their trademark a valuable business asset (…and, if not, why continue using the mark?) would like to obtain these advantages.  But registration is not free.  Here are some of the likely fees (based on the USPTO’s current Fee Schedule, last revised January 1, 2019) that you will face before and during the registration procedure:

Clearance Search – Before adopting and using a trademark, it’s advised that a trademark clearance search be performed to determine the availability of the trademark.  This will help determine whether there is another user already using the trademark, i.e. having superior rights in the trademark.  By performing an initial trademark clearance search, a business can avoid incurring liability for trademark infringement and avoid investing resources in a trademark which could be unusable because it infringes another’s trademark rights. Most attorneys will conduct a clearance search at their standard hourly rate. Expect the clearance search to cost $200-400.

A commercial research service like Thomson CompuMark, which conducts a search across numerous databases (federal, state, common law, business databases) will cost around $700.  Add attorney time to review and report on the results.

Application Filing Fee – The official filing fee ranges between $225-$400 (based on the goods/services selected, paper submissions cost more than applications filed online). Your attorney will charge a fee for the application preparation and filing, likely ranging between $400-$1000.

Response to Office Action – Office actions are letters from the USPTO that set forth the legal status of a trademark application. Typically, the examining attorney will set forth various requirements that the applicant must meet before an application can be approved for publication.  A majority of your attorney’s time in the application process will be spent reviewing and responding to the office action.

Looking into the future, you’ll want to keep in mind the renewal costs which will be paid after five (5) years. Expect to pay $500 for each class of goods and services that your trademark protects. (For example, if a band has registered its band name for both “musical services” and “t-shirts,”  it will be paying filing fees for two separate classes of protection. This applies to filing fees also.)

Notwithstanding the renewal costs, and assuming that no extensions, etc. are required, you’re looking at approximately $800-$1000 to file a federal application for one trademark protecting one class of goods/services. On top of the USPTO fees, you’ll be paying your trademark attorney for their time spent gathering information, preparing documents, filing the application and communicating with the USPTO.  Therefore, choosing a trademark attorney who provides excellent service at a lower cost can greatly enhance your bottom line. Also, these are just some of the more common fees you will face in registering your trademark…there may be additional filings/costs associated with your trademark registration, depending on the specifics of your trademark and the strategy of your attorney.

So, should you register your trademark??? The traditional answer still rings true…if fiscally possible, do it. Trademarks are valuable business assets that are typically far greater in value than any costs associated with registration. Always bear in mind that economies rise and fall, but trademark rights can continue indefinitely. Unfortunately, that means that spending less today to protect your trademark rights may allow another party to intervene and lock up important trademark rights for the future.  Also, be sure to consider how licensing opportunities might be affected should you not register your trademarks.

Final practical note:  Any time you claim rights in a mark, you may use the “TM” (trademark) or “SM” (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the USPTO.  It’s free and reinforces good habits among those wearing the “marketing” hat.