Sunday, September 25, 2022

Will Contests


A will contest occurs when someone challenges a will and asks that it be thrown out as invalid. Although they are relatively rare, will contests do occur. They can only be brought by a person with standing - that means something to gain, such as inheriting a larger share of the deceased's estate, or greater voice in managing the estate, if the will is found to be invalid and thus will not be admitted to probate.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Thursday, September 22, 2022

FAQ : What if I need legal advise?

You can always consult with an attorney of your choice. We can provide you with a referral for an excellent local attorney who specializes in cases similar to yours if you have questions we cannot answer for you, or your situation is more complicated than our services are meant to help with.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Monday, September 19, 2022

FAQ : Are BY THE PEOPLE Personnel attorneys?

No, we are not attorneys. We are Legal Document Assistants. In California, we are a licensed and bonded profession.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net


 

Friday, September 16, 2022

Is probate necessary?


Whether probate is necessary depends on what property the decedent owned, how it was held, and on the law of state in which the decedent died and the laws of any states where the decedent held property.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Tuesday, September 13, 2022

What is Probate?

Probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the state of residence of the deceased at time of death in the absence of a legal will.

The granting of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person's property under a will. A probate court decides the legal validity of a testator's (deceased person's) will and grants its approval, also known as granting probate, to the executor. The probated will then becomes a legal instrument that may be enforced by the executor in the law courts if necessary. A probate also officially appoints the executor (or personal representative), generally named in the will, as having legal power to dispose of the testator's assets in the manner specified in the testator's will. However, through the probate process, a will may be contested.

Read more, here.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Saturday, September 10, 2022

PROBATE


If you are having to go through the Probate Process with the court, let BY THE PEOPLE help.

We may be able to assist you in representing yourself, by preparing the documents needed, filing the paperwork with the court, setting court dates, arranging for publication, and many other steps needed to complete the process.

Our fees are 1% of the value of the estate (up to $5,000.00). Any fees for the courts, probate referee, publication will be extra.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Wednesday, September 7, 2022

Living Trust and Wills - By the People


Living Trust or a will? Rene talks about some of the differences and what sets one apart from the other to help you make the best decision for your needs. Call Rene or Tammy at 707-428-9871 with any questions you may have, and see their website.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Sunday, September 4, 2022

Living Trust

A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In Anglo-American common law, the party who entrusts the right is known as the "settlor", the party to whom the right is entrusted is known as the "trustee", the party for whose benefit the property is entrusted is known as the "beneficiary", and the entrusted property itself is known as the "corpus" or "trust property". With the strategic and legal use of Trusts, individuals can ensure that their children and grandchildren or chosen beneficiaries are able to benefit completely from the inheritance they want them to receive.

Read more, here.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Thursday, September 1, 2022

LIVING TRUSTS/WILLS

Living Trusts are a way for you to make sure that your estate goes to who you want it to go to, without having to go through the Delay, Agony and Expense of Probate.

We can assist with creating Single Living Trust for one person, or Joint Living Trusts for Married Couples.

Our Living Trust Package includes:

  • Articles of Trust
  • Wills
  • Financial Power of Attorney
  • CA Advanced Health Care Directive
  • HIPAA Release

Our fees are $599.00 for a Single Living Trust or $699.00 for a Joint Living Trust.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Monday, August 29, 2022

Incorporation and LLC's - By the People


Rene of By the People Document Preparation Service in Fairfield CA talks briefly about the basic differences between Inc. and LLC, and the benefits and features of each. Give Rene or Tammy a call at 707-428-9871 with any questions you may have so they can help you get the right product for your business.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Friday, August 26, 2022

What is an Incorporation?

Incorporation may refer to:

Incorporation (business), the creation of a corporation

Incorporation of a place, creation of municipal corporation such as a city or county

Incorporation (academic), awarding a degree based on the student having an equivalent degree from another university

Incorporation of the Bill of Rights, extension of parts of the United States Bill of Rights to bind individual American states.

Incorporation of international law, giving domestic legal force to a sovereign state's international legal obligations

Incorporation (linguistics)

Incorporation (The Netherlands), annexation of The Netherlands by the First French Empire

Read more, here.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Tuesday, August 23, 2022

INCORPORATION

Let us help you set up your Corporation or LLC.

We will create your Company Articles, file them with the Secretary of State, and create an Organizational Kit for you, including: Sample Bylaws and Minutes, Seal, Shares, and Misc. Needed Forms.

Our fees are $399.00 plus filing fees:

INC – $120.00

LLC – $90.00

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Saturday, August 20, 2022

Uncontested Divorce Made Affordable - By the People


Divorce is probably never easy, but it doesn't have to be expensive. Rene of By the People in Fairfield CA talks briefly about help with uncontested divorces with our without children. Rene or Tammy will be happy to answer all your questions.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Wednesday, August 17, 2022

What is Divorce?

Divorce (also known as dissolution of marriage) is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. Divorce laws vary considerably around the world, but in most countries, divorce requires the sanction of a court or other authority in a legal process, which may involve issues of distribution of property, child custody, alimony (spousal support), child visitation / access, parenting time, child support, and division of debt. In most countries, monogamy is required by law, so divorce allows each former partner to marry another person.

Divorce is different from annulment, which declares the marriage null and void, with legal separation or de jure separation (a legal process by which a married couple may formalize a de facto separation while remaining legally married) or with de facto separation (a process where the spouses informally stop cohabiting). Reasons for divorce vary, from sexual incompatibility or lack of independence for one or both spouses to a personality clash to infidelity.

The only countries that do not allow divorce are the Philippines and the Vatican City. In the Philippines, divorce for non-Muslim Filipinos is not legal unless the husband or wife is an undocumented immigrant and satisfies certain conditions. The Vatican City is a state ruled by the head of the Catholic Church, a religion that does not allow for divorce. Countries that have relatively recently legalized divorce are Italy (1970), Portugal (1975, although from 1910 to 1940 it was possible both for the civil and religious marriage), Brazil (1977), Spain (1981), Argentina (1987), Paraguay (1991), Colombia (1991; from 1976 was allowed only for non-Catholics), Andorra (1995), Ireland (1996), Chile (2004) and Malta (2011).

Read more, here.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Sunday, August 14, 2022

Divorce


BY THE PEOPLE can help with Uncontested Divorce or Legal Separation. For couples who can resolve their own asset and debt division and/or child issues, BY THE PEOPLE can prepare all of the necessary documents for you to obtain your divorce. We also do all of the filing and procedural work throughout the process.

Since we are a local company and file divorces every day, we can provide you with up to date information about filing fees and the local court systems. In California the minimum time period for a divorce is 6 months from the date of service.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Thursday, August 11, 2022

Living Trust and Wills - By the People


Living Trust or a will? Rene talks about some of the differences and what sets one apart from the other to help you make the best decision for your needs.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Monday, August 8, 2022

Steps of Probate

If the decedent dies without a will, known as intestacy, with the exception of real properly located in another jurisdiction, the estate is distributed according to the laws of the jurisdiction where the decedent resided.

If the decedent died with a will, the will usually names an executor (personal representative), who carries out the instructions laid out in the will. The executor marshals the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an intestate estate is called an administrator. If the decedent died with a will, but only a copy of the will can be located, many states allow the copy to be probated, subject to the rebuttable presumption that the testator destroyed the will before death.

In some cases, where the person named as executor cannot administer the probate, or wishes to have someone else do so, another person is named administrator. An executor or an administrator may receive compensation for his service. Additionally, beneficiaries of an estate may be able to remove the appointed executor if he or she is not capable of properly fulfilling his or her duties.

The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator c.t.a. (from the Latin cum testamento annexo.) The generic term for executors or administrators is personal representative.

The probate court may require that the executor provide a fidelity bond, an insurance policy in favor of the estate to protect against possible abuse by the executor.

Read more, here.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Friday, August 5, 2022

Estates in the United States

Most estates in the United States include property that is subject to probate proceedings. If the property of an estate is not automatically devised to a surviving spouse or heir through principles of joint ownership or survivorship, or otherwise by operation of law, and was not transferred to a trust during the decedent's lifetime, it is generally necessary to "probate the estate", whether or not the decedent had a valid will. For example, life insurance and retirement accounts with properly completed beneficiary designations should avoid probate, as will most bank accounts titled jointly or made payable on death.

Some states have procedures that allow for the transfer of assets from small estates through affidavit or through a simplified probate process. For example, California has a "Small Estate Summary Procedure" to allow the summary transfer of a decedent's asset without a formal Probate proceeding. The dollar limit by which the Small Estate procedure can be effectuated is $150,000.

For estates that do not qualify for simplified proceedings, a court having jurisdiction of the decedent's estate (a probate court) supervises the probate process to ensure administration and disposition of the decedent's property is conducted in accord with the law of that jurisdiction, and in a manner consistent with decedent's intent as manifested in his will. Distribution of certain estate assets may require selling assets, including real estate.

Read more, here.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Tuesday, August 2, 2022

What Is Probate?


Probate is simply the process for proving to the appropriate court that a document is the deceased's last will and testament and that the deceased knew what it was and signed it under his person, under his own free will, at a time he was mentally competent, and the document was properly witnessed, getting authority from the court to gather the assets, pay the deceased's obligations, and the distribute the assets to the beneficiaries named in the will.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Saturday, July 30, 2022

Probate

Probate is a process of improvement that proves a will of a deceased person is valid, so their property can in due course be retitled (US terminology) or transferred to beneficiaries of the will. As with any legal proceeding, there are technical aspects to probate administration:

  • Creditors must be notified and legal notices published.
  • Executors of the will must be guided in how and when to distribute assets and how to take creditors' rights into account.
  • A petition to appoint a personal representative may need to be filed and letters of administration (often referred to as "letters testamentary") issued. A Grant of Letters of Administration can be used as proof that the 'Administrator' is entitled to handle the assets.
  • Homestead property, which follows its own set of unique rules in states like Florida, must be dealt with separately from other assets. In many common law jurisdictions such as Canada, parts of the US, the UK, Australia and India, any jointly-owned property passes automatically to the surviving joint owner separately from any will, unless the equitable title is held as tenants in common.
  • There are time factors involved in filing and objecting to claims against the estate.
  • There may be a lawsuit pending over the decedent's death or there may have been pending suits that are now continuing. There may be separate procedures required in contentious probate cases.
  • Real estate or other property may need to be sold to effect the correct distribution of assets pursuant to the will, or merely to pay debts.
  • Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds.
  • Costs of the administration including ordinary taxation such as income tax on interest and property taxation are deducted from assets in the estate before distribution by the executors of the will.
  • Other assets may simply need to be transferred from the deceased to his or her beneficiaries, such as life insurance. Other assets may have pay on death or transfer on death designations, which avoids probate.
  • The rights of beneficiaries must be respected, in terms of providing proper and adequate notice, making timely distribution of estate assets, and otherwise administering the estate properly and efficiently.

Local laws governing the probate process often depend on the value and complexity of the estate. If the value of the estate is relatively small, the probate process may be avoided. In some jurisdictions and/or at a certain threshold, probate must be applied for by the executor/administrator or a probate lawyer filing on their behalf.

A probate lawyer offers services in probate court, and may be retained to open an estate or offer service during the course of probate proceedings on behalf of the administrator or executor of the estate. Probate lawyers may also represent heirs, creditors and other parties who have a legal interest in the outcome of the estate.

In common law jurisdictions, probate ("official proving of a will") is obtained by executors of a will while letters of administration are granted where there are no executors.

Read more, here.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Wednesday, July 27, 2022

Advance Healthcare Directive : United States


Aggressive medical intervention leaves nearly two million Americans confined to nursing homes, and over 1.4 million Americans remain so medically frail as to survive only through the use of feeding tubes. Of U.S. deaths, about a third occur in health care facilities. As many as 30,000 persons are kept alive in comatose and permanently vegetative states.

Cost burdens to individuals and families are considerable. A national study found that: "In 20% of cases, a family member had to quit work", 31% lost "all or most savings" (even though 96% had insurance), and "20% reported loss of [their] major source of income". Yet, studies indicate that 70-95% of people would rather refuse aggressive medical treatment than have their lives medically prolonged in incompetent or other poor prognosis states.

As more and more Americans experienced the burdens and diminishing benefits of invasive and aggressive medical treatment in poor prognosis states – either directly (themselves) or through a loved one – pressure began to mount to devise ways to avoid the suffering and costs associated with treatments one did not want in personally untenable situations. The first formal response was the living will.

In the United States, all states recognize some form of living wills or the designation of a health care proxy. The term living will is not officially recognized under California law, but an advance health care directive or durable power of attorney may be used for the same purpose as a living will.

In Pennsylvania on November 30, 2006, Governor Edward Rendell signed into law Act 169, that provides a comprehensive statutory framework governing advance health care directives and health care decision-making for incompetent patients. As a result, health care organizations make available a "Combined Living Will & Health Care Power of Attorney Example Form from Pennsylvania Act 169 of 2006."

Several states offer living will "registries" where citizens can file their living will so that they are more easily and readily accessible by doctors and other health care providers. However, in recent years some of these registries, such as the one run by the Washington State Department of Health, have been shuttered by the state government because of low enrollment, lack of funds, or both.

On July 28, 2009, Barack Obama became the first United States President to announce publicly that he had a living will, and to encourage others to do the same. He told an AARP town meeting, "So I actually think it's a good idea to have a living will. I'd encourage everybody to get one. I have one; Michelle has one. And we hope we don't have to use it for a long time, but I think it's something that is sensible." The announcement followed controversy surrounding proposed health care legislation that included language that would permit the payment of doctors under Medicare to counsel patients regarding living wills, sometimes referred to as the "infamous" page 425. Shortly afterwards, bioethicist Jacob Appel issued a call to make living wills mandatory.

Read more, here.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Sunday, July 24, 2022

Over 100 Legal Document Services at By the People


Rene of By the People in Fairfield CA gives a short overview of their services and the number of legal documents they can help with.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Thursday, July 21, 2022

Living Will


The living will is the oldest form of advance directive. It was first proposed by an Illinois attorney, Luis Kutner, in a speech to the Euthanasia Society of America in 1967 and published in a law journal in 1969. Kutner drew from existing estate law, by which an individual can control property affairs after death (i.e., when no longer available to speak for himself or herself) and devised a way for an individual to express their health care desires when no longer able to express current healthcare wishes. Because this form of "will" was to be used while an individual was still alive (but no longer able to make decisions) it was dubbed the "living will". In the U.S., The Patient Self-Determination Act (PSDA) went into effect in December 1991, and required healthcare providers (primarily hospitals, nursing homes and home health agencies) to give patients information about their rights to make advance directives under state law.

A living will usually provides specific directives about the course of treatment healthcare providers and caregivers are to follow. In some cases a living will may forbid the use of various kinds of burdensome medical treatment. It may also be used to express wishes about the use or foregoing of food and water, if supplied via tubes or other medical devices. The living will is used only if the individual has become unable to give informed consent or refusal due to incapacity. A living will can be very specific or very general. An example of a statement sometimes found in a living will is: "If I suffer an incurable, irreversible illness, disease, or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued."

More specific living wills may include information regarding an individual's desire for such services such as analgesia (pain relief), antibiotics, hydration, feeding, and the use of ventilators or cardiopulmonary resuscitation. However, studies have also shown that adults are more likely to complete these documents if they are written in everyday language and less focused on technical treatments.

However, by the late 1980s, public advocacy groups became aware that many people remained unaware of advance directives and even fewer actually completed them. In part, this was seen as a failure of health care providers and medical organizations to promote and support the use of these documents. The public's response was to press for further legislative support. The most recent result was the Patient Self-Determination Act of 1990, which attempted to address this awareness problem by requiring health care institutions to better promote and support the use of advance directives.

Living wills proved to be very popular, and by 2007, 41% of Americans had completed a living will. In response to public needs, state legislatures soon passed laws in support of living wills in virtually every state in the union.

However, as living wills began to be better recognized, key deficits were soon discovered. Most living wills tended to be limited in scope and often failed to fully address presenting problems and needs. Further, many individuals wrote out their wishes in ways that might conflict with quality medical practice. Ultimately, it was determined that a living will alone might be insufficient to address many important health care decisions. This led to the development of what some have called "second generation" advance directives – the "health care proxy appointment" or "medical power of attorney."

Living wills also reflect a moment in time, and may therefore need regular updating to ensure that the correct course of action can be chosen.

Read more, here.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Monday, July 18, 2022

Trust Law : United States

In the United States, state law governs trusts. Trust law is therefore variable from state to state, though many states have adopted the Uniform Trust Code, and broad similarities exist among states' common law of trust as well. These similarities are summarized in the Restatements of the Law, such as the Restatement of Trusts, Third (2003−08). Additionally, as a practical matter, federal law considerations such as federal taxes administered by the Internal Revenue Service may affect the structure and creation of trusts.

In the United States the tax law allows trusts to be taxed as corporations, partnerships, or not at all depending on the circumstances, although trusts may be used for tax avoidance in certain situations.  For example, the trust-preferred security is a hybrid (debt and equity) security with favorable tax treatment which is treated as regulatory capital on banks' balance sheets. The Dodd-Frank Wall Street Reform and Consumer Protection Act changed this somewhat by not allowing these assets to be a part of (large) banks' regulatory capital.

Estate planning
Living trusts, as opposed to testamentary (will) trusts, may help a trustor avoid probate. Avoiding probate may save costs and maintain privacy and living trusts have become very popular. Probate is potentially costly, and probate records are available to the public while distribution through a trust is private. Both living trusts and wills can also be used to plan for unforeseen circumstances such as incapacity or disability, by giving discretionary powers to the trustee or executor of the will.

Negative aspects of using a living trust as opposed to a will and probate include upfront legal expenses, the expense of trust administration, and a lack of certain safeguards. The cost of the trust may be 1% of the estate per year versus the one-time probate cost of 1 to 4% for probate, which applies whether or not there is a drafted will. Unlike trusts, wills must be signed by two to three witnesses, the number depending on the law of the jurisdiction in which the will is executed. Legal protections that apply to probate but do not automatically apply to trusts include provisions that protect the decedent's assets from mismanagement or embezzlement, such as requirements of bonding, insurance, and itemized accountings of probate assets.

Estate tax effect
Living trusts generally do not shelter assets from the U.S. federal estate tax. Married couples may, however, effectively double the estate tax exemption amount by setting up the trust with a formula clause.

For a living trust, the grantor may retain some level of control to the trust, such by appointment as protector under the trust instrument. Living trusts also, in practical terms, tend to be driven to large extent by tax considerations. If a living trust fails, the property will usually be held for the grantor/settlor on resulting trusts, which in some notable cases, has had high tax consequences.

Read more, here.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Friday, July 15, 2022

Power of Attorney


A power of attorney is a legal document. A power of attorney allows someone else to act on your behalf or exercise your rights. You should seek the advice of a legal assistance attorney if you have a complex issue.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Tuesday, July 12, 2022

Country Specific Variations


Trusts originated in England, and therefore English trusts law has had a significant influence, particularly among common law legal systems such as the United States and the countries of the Commonwealth.

Trust law in civil law jurisdictions, generally including Continental Europe only exists in a limited number of jurisdictions (e.g. Curaçao, Liechtenstein and Sint Maarten). The trust may however be recognized as an instrument of foreign law in conflict of laws cases, for example within the Brussels regime (Europe) and the parties to the Hague Trust Convention. Tax avoidance concerns have historically been one of the reasons that European countries with a civil law system have been reluctant to adopt trusts.

Read more, here.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Saturday, July 9, 2022

Types of Trusts

Trusts go by many different names, depending on the characteristics or the purpose of the trust. Because trusts often have multiple characteristics or purposes, a single trust might accurately be described in several ways. For example, a living trust is often an express trust, which is also a revocable trust, and might include an incentive trust, and so forth.

Read more, here.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Wednesday, July 6, 2022

What is a Trust and Who Needs it?


Trusts can manage how you leave assets to your family. This video shows how Trusts can create and preserve your legacy.

1371-C Oliver Road
Fairfield, California 94534

By Phone: 707.428.9871
By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Sunday, July 3, 2022

Purposes of Trusts


Common purposes for trusts include:
  • Employee ownership: Shares in a company may be held by the trustee of an employee trust, often indefinitely, as part of the employee ownership of that company.
  • Employee share ownership: Shares in a company may be held by the trustee of an employee trust as part of an employee share or share option plan.
  • Privacy: Trusts may be created purely for privacy. The terms of a will are public in certain jurisdictions, while the terms of a trust are not.
  • Spendthrift clauses: Trusts may be used to protect beneficiaries (for example, one's children) against their own inability to handle money. These are especially attractive for spendthrifts. Courts may generally recognize spendthrift clauses against trust beneficiaries and their creditors, but not against creditors of a settlor.
  • Wills and estate planning: Trusts frequently appear in wills (indeed, technically, the administration of every deceased's estate is a form of trust). Conventional wills typically leave assets to the deceased's spouse (if any), and then to the children equally. If the children are under 18, or under some other age mentioned in the will (21 and 25 are common), a trust must come into existence until the 'contingency age' is reached. The executor of the will is (usually) the trustee, and the children are the beneficiaries. The trustee will have powers to assist the beneficiaries during their minority.
  • Charities: In some common law jurisdictions all charities must take the form of trusts. In others, corporations may be charities also. In most jurisdictions, charities are tightly regulated for the public benefit (in England, for example, by the Charity Commission).
  • Unit trusts: The trust has proved to be such a flexible concept that it has proved capable of working as an investment vehicle: the unit trust.
  • Pension plans: typically set up as a trust, with the employer as settlor, and the employees and their dependents as beneficiaries.
  • Remuneration trusts: for the benefit of directors and employees or companies or their families or dependents. This form of trust was developed by Paul Baxendale-Walker and has since gained widespread use.
  • Corporate structures: Complex business arrangements, most often in the finance and insurance sectors, sometimes use trusts among various other entities (e.g., corporations) in their structure.
  • Asset protection: Trusts may allow beneficiaries to protect assets from creditors as the trust may be bankruptcy remote. For example, a discretionary trust, of which the settlor may be the protector and a beneficiary, but not the trustee and not the sole beneficiary. In such an arrangement the settlor may be in a position to benefit from the trust assets, without owning them, and therefore in theory protected from creditors. In addition, the trust may attempt to preserve anonymity with a completely unconnected name (e.g., "The Teddy Bear Trust"). These strategies are ethically and legally controversial.
  • Tax planning: The tax consequences of doing anything using a trust are usually different from the tax consequences of achieving the same effect by another route (if, indeed, it would be possible to do so). In many cases, the tax consequences of using the trust are better than the alternative, and trusts are therefore frequently used for legal tax avoidance. For an example see the "nil-band discretionary trust", explained at Inheritance Tax (United Kingdom).
  • Co-ownership: Ownership of property by more than one person is facilitated by a trust. In particular, ownership of a matrimonial home is commonly effected by a trust with both partners as beneficiaries and one, or both, owning the legal title as trustee.
  • Construction law: In Canada and Minnesota monies owed by employers to contractors or by contractors to subcontractors on construction projects must by law be held in trust. In the event of contractor insolvency, this makes it much more likely that subcontractors will be paid for work completed.
  • Legal retainer – Lawyers in certain countries often require that a legal retainer be paid upfront and held in trust until such time as the legal work is performed and billed to the client, this serves as a minimum guarantee of remuneration should the client become insolvent. However, strict legal ethical codes apply to the use of legal retainer trusts.
Read more, here.

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Thursday, June 30, 2022

Living Trust


A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In Anglo-American common law, the party who entrusts the right is known as the "settlor", the party to whom the right is entrusted is known as the "trustee", the party for whose benefit the property is entrusted is known as the "beneficiary", and the entrusted property itself is known as the "corpus" or "trust property". With the strategic and legal use of Trusts, individuals can ensure that their children and grandchildren or chosen beneficiaries are able to benefit completely from the inheritance they want them to receive.

A testamentary trust is created by a will and arises after the death of the settlor. An inter vivos trust is created during the settlor's lifetime by a trust instrument. A trust may be revocable or irrevocable; in the United States, a trust is presumed to be irrevocable unless the instrument or will creating it states it is revocable, except in Pennsylvania, California, Oklahoma and Texas (and any other state that has adopted section 602 of the Uniform Trust Code), in which trusts are presumed to be revocable unless the instrument or will creating them states they are irrevocable. An irrevocable trust can be "broken" (revoked) only by a judicial proceeding.

The trustee is the legal owner of the property in trust, as fiduciary for the beneficiary or beneficiaries who is/are the equitable owner(s) of the trust property. Trustees thus have a fiduciary duty to manage the trust to the benefit of the equitable owners. They must provide a regular accounting of trust income and expenditures. Trustees may be compensated and be reimbursed their expenses. A court of competent jurisdiction can remove a trustee who breaches their fiduciary duty. Some breaches of fiduciary duty can be charged and tried as criminal offenses in a court of law.

A trustee can be a natural person, a business entity or a public body. A trust in the United States may be subject to federal and state taxation.

A trust is created by a settlor, who transfers title to some or all of his or her property to a trustee, who then holds title to that property in trust for the benefit of the beneficiaries. The trust is governed by the terms under which it was created. In most jurisdictions, this requires a contractual trust agreement or deed. It is possible for a single individual to assume the role of more than one of these parties, and for multiple individuals to share a single role. For example, in a living trust it is common for the grantor to be both a trustee and a lifetime beneficiary while naming other contingent beneficiaries.

Trusts have existed since Roman times and have become one of the most important innovations in property law. Trust law has evolved through court rulings differently in different states, so statements in this article are generalizations; understanding the jurisdiction-specific case law involved is tricky. Some U.S. states are adapting the Uniform Trust Code to codify and harmonize their trust laws, but state-specific variations still remain.

An owner placing property into trust turns over part of his or her bundle of rights to the trustee, separating the property's legal ownership and control from its equitable ownership and benefits. This may be done for tax reasons or to control the property and its benefits if the settlor is absent, incapacitated, or deceased. Testamentary trusts may be created in wills, defining how money and property will be handled for children or other beneficiaries.

While the trustee is given legal title to the trust property, in accepting title the trustee owes a number of fiduciary duties to the beneficiaries. The primary duties owed are those of loyalty, prudence and impartiality. Trustees may be held to a very high standard of care in their dealings to enforce their behavior. To ensure beneficiaries receive their due, trustees are subject to a number of ancillary duties in support of the primary duties, including duties of openness and transparency, and duties of recordkeeping, accounting, and disclosure. In addition, a trustee has a duty to know, understand, and abide by the terms of the trust and relevant law. The trustee may be compensated and have expenses reimbursed, but otherwise must turn over all profits from the trust properties and neither endebt nor riskily speculate on the trust assets without the written, clear permission of all of the adult beneficiaries.

There are strong restrictions regarding a trustee with a conflict of interest. Courts can reverse a trustee's actions, order profits returned, and impose other sanctions if they find a trustee has failed in any of his or her duties. Such a failure is a civil breach of trust and can leave a neglectful or dishonest trustee with severe liabilities for the breach. It is highly advisable for settlors and in many cases trustees to seek legal advice before entering into or creating a trust agreement and trustees must take great care in acting or omitting to act to avoid unlawful mistakes.

Read more, here.
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Monday, June 27, 2022

What happened to trial by jury? - Suja A. Thomas


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Friday, June 24, 2022

Variations

A Professional Limited Liability Company (usually shortened as PLLC, P.L.L.C., or P.L., sometimes PLC, standing for professional limited company - not to be confused with public limited company) is a limited liability company organized for the purpose of providing professional services. Usually, professions where the state requires a license to provide services, such as a doctor, chiropractor, lawyer, accountant, architect, landscape architect, or engineer, require the formation of a PLLC. However, some states, such as California, do not permit LLCs to engage in the practice of a licensed profession. Exact requirements of PLLCs vary from state to state. Typically, a PLLC's members must all be professionals practicing the same profession. In addition, the limitation of personal liability of members does not extend to professional malpractice claims.

A Series LLC is a special form of a Limited liability company that allows a single LLC to segregate its assets into separate series. For example, a series LLC that purchases separate pieces of real estate may put each in a separate series so if the lender forecloses on one piece of property, the others are not affected.

An L3C is a for-profit, social enterprise venture that has a stated goal of performing a socially beneficial purpose, not maximizing income. It is a hybrid structure that combines the legal and tax flexibility of a traditional LLC, the social benefits of a nonprofit organization, and the branding and market positioning advantages of a social enterprise.

An anonymous Limited Liability Company is a LLC for which ownership information is not made publicly available by the state. Anonymity is possible in states that do not require the public disclosure of legal ownership of a LLC, or where a LLC's identified legal owners are another anonymous company.

Read more, here.

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Tuesday, June 21, 2022

Advantages and Disadvantages of a LLC

Advantages
  • Choice of tax regime. An LLC can elect to be taxed as a sole proprietor, partnership, S corporation or C corporation (as long as they would otherwise qualify for such tax treatment), providing for a great deal of flexibility.
  • A limited liability company with multiple members that elects to be taxed as partnership may specially allocate the members' distributive share of income, gain, loss, deduction, or credit via the company operating agreement on a basis other than the ownership percentage of each member.[a] S corporations may not specially allocate profits, losses and other tax items under US tax law.
  • The owners of the LLC, called members, are protected from some or all liability for acts and debts of the LLC, depending on state shield laws.
  • In the United States, an S corporation is limited to 100 shareholders, and all of them must be U.S. tax residents. An LLC may have an unlimited number of members, and there is no citizenship restriction.
  • Much less administrative paperwork and record-keeping than a corporation.
  • Pass-through taxation (i.e., no double taxation), unless the LLC elects to be taxed as a C corporation.
  • Using default tax classification, profits are taxed personally at the member level, not at the LLC level.
  • LLCs in most states are treated as entities separate from their members. However, in some jurisdictions such as Connecticut, case law has determined that owners were not required to plead facts sufficient to pierce the corporate veil and LLC members can be personally liable for operation of the LLC) (see, for example, the case of Sturm v. Harb Development
  • LLCs in some states can be set up with just one natural person involved.
  • Less risk of being "stolen" by fire-sale acquisitions (more protection against "hungry" investors).
  • For some business ventures, such as real estate investment, each property can be owned by a separate LLC, thereby shielding the owners and their other properties from cross-liability.
  • Flexible membership: Members of an LLC may include individuals, partnerships, trusts, estates, organizations, or other business entities, and most states do not limit the type or number of members.
Disadvantages
Although there is no statutory requirement for an operating agreement in most jurisdictions, members of a multiple member LLC who operate without one may encounter problems. Unlike state laws regarding stock corporations, which are very well developed and provide for a variety of governance and protective provisions for the corporation and its shareholders, most states do not dictate detailed governance and protective provisions for the members of a limited liability company. In the absence of such statutory provisions, members of an LLC must establish governance and protective provisions pursuant to an operating agreement or similar governing document.

  • It may be more difficult to raise financial capital for an LLC as investors may be more comfortable investing funds in the better-understood corporate form with a view toward an eventual IPO. One possible solution may be to form a new corporation and merge into it, dissolving the LLC and converting into a corporation.
  • Many jurisdictions—including Alabama, California, Kentucky, Maryland, New York, Pennsylvania, Tennessee, and Texas—levy a franchise tax or capital values tax on LLCs. In essence, this franchise or business privilege tax is the fee the LLC pays the state for the benefit of limited liability. The franchise tax can be an amount based on revenue, an amount based on profits, or an amount based on the number of owners or the amount of capital employed in the state, or some combination of those factors, or simply a flat fee, as in Delaware.
  • Effective in Texas for 2007 the franchise tax is replaced with the Texas Business Margin Tax. This is paid as: tax payable = revenues minus some expenses with an apportionment factor. In most states, however, the fee is nominal and only a handful charge a tax comparable to the tax imposed on corporations.
  • In California, both foreign and domestic LLCs, corporations, and trusts, whether for-profit or non-profit—unless the entity is tax exempt—must at least pay a minimum income tax of $800 per year to the Franchise Tax Board; and no foreign LLC, corporation or trust may conduct business in California unless it is duly registered with the California Secretary of State.
  • Renewal fees may also be higher. Maryland, for example, charges a stock or nonstock corporation $120 for the initial charter, and $100 for an LLC. The fee for filing the annual report the following year is $300 for stock-corporations and LLCs. The fee is zero for non-stock corporations. In addition, certain states, such as New York, impose a publication requirement upon formation of the LLC which requires that the members of the LLC publish a notice in newspapers in the geographic region that the LLC will be located that it is being formed. For LLCs located in major metropolitan areas (e.g., New York City), the cost of publication can be significant.
  • The management structure of an LLC may not be clearly stated. Unlike corporations, they are not required to have a board of directors or officers. (This could also be seen as an advantage to some.)
  • Taxing jurisdictions outside the US are likely to treat a US LLC as a corporation, regardless of its treatment for US tax purposes—for example a US LLC doing business outside the US or as a resident of a foreign jurisdiction. This is very likely where the country (such as Canada) does not recognize LLCs as an authorized form of business entity in that country.
  • The principals of LLCs use many different titles—e.g., member, manager, managing member, managing director, chief executive officer, president, and partner. As such, it can be difficult to determine who actually has the authority to enter into a contract on the LLC's behalf.

Read more, here.

1371-C Oliver Road
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Saturday, June 18, 2022

How understanding divorce can help your marriage | Jeannie Suk Gersen


To understand what makes marriages work, we need to talk about why they sometimes end, says family law professor Jeannie Suk Gersen. Follow along as she lays out three ways that thinking about marital decisions through the lens of divorce can help you better navigate togetherness from the beginning.

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Wednesday, June 15, 2022

History of an LLC


The first state to enact a law authorizing the creation of limited liability companies was Wyoming in 1977. The law was a project of the Hamilton Brothers Oil Company, which sought to organize its business in the United States with liability and tax advantages similar to those it had obtained in Panama.

From 1960 to 1997, the classification of unincorporated business associations for the purpose of U.S. federal income tax law was governed by the "Kintner regulations," which were named after the prevailing taxpayer in the 1954 legal precedent of that name. As promulgated by the Internal Revenue Service (IRS) in 1960, the Kintner regulations set forth a complex six-factor test for determining whether such business associations would be taxed as corporations or partnerships. Some of these factors had equal significance, so that the presence of only half of them would result in classification as a partnership. Accordingly, the Wyoming Legislature tailored its statute to grant LLCs particular corporate features without exceeding this threshold.

For several years, other states were slow to adopt the LLC form because it was unclear how the IRS and courts would apply the Kintner regulations to it. After the IRS finally decided in 1988 in Revenue Ruling 88-76 that Wyoming LLCs were taxable as partnerships, other states began to take the LLC seriously and enacted their own LLC statutes. By 1996, all 50 states had LLC statutes. In 1995, the IRS came to the conclusion that the widespread enactment of LLC statutes had undermined the Kintner regulations, and in 1996 it promulgated new regulations establishing a so-called "check the box" (CTB) entity classification election system that went into effect throughout the United States on January 1, 1997.

Read more, here.

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Sunday, June 12, 2022

What is an LLC?

A limited liability company (LLC) is the US-specific form of a private limited company. It is a business structure that can combine the pass-through taxation of a partnership or sole proprietorship with the limited liability of a corporation. An LLC is not a corporation under state law; it is a legal form of a company that provides limited liability to its owners in many jurisdictions. LLCs are well known for the flexibility that they provide to business owners; depending on the situation, an LLC may elect to use corporate tax rules instead of being treated as a partnership, and, under certain circumstances, LLCs may be organized as not-for-profit. In certain U.S. states (for example, Texas), businesses that provide professional services requiring a state professional license, such as legal or medical services, may not be allowed to form an LLC but may be required to form a similar entity called a professional limited liability company (PLLC).

An LLC is a hybrid legal entity having certain characteristics of both a corporation and a partnership or sole proprietorship (depending on how many owners there are). An LLC is a type of unincorporated association distinct from a corporation. The primary characteristic an LLC shares with a corporation is limited liability, and the primary characteristic it shares with a partnership is the availability of pass-through income taxation. As a business entity, an LLC is often more flexible than a corporation and may be well-suited for companies with a single owner.

Although LLCs and corporations both possess some analogous features, the basic terminology commonly associated with each type of legal entity, at least within the United States, is sometimes different. When an LLC is formed, it is said to be "organized", not "incorporated" or "chartered", and its founding document is likewise known as its "articles of organization," instead of its "articles of incorporation" or its "corporate charter". Internal operations of an LLC are further governed by its "operating agreement," a "member," rather than a "shareholder.” Additionally, ownership in an LLC is represented by a "membership interest" or an "LLC interest" (sometimes measured in "membership units" or just "units" and at other times simply stated only as percentages), rather than represented by "shares of stock" or just "shares" (with ownership measured by the number of shares held by each shareholder). Similarly, when issued in physical rather than electronic form, a document evidencing ownership rights in an LLC is called a "membership certificate" rather than a "stock certificate".

In the absence of express statutory guidance, most American courts have held that LLC members are subject to the same common law alter ego piercing theories as corporate shareholders. However, it is more difficult to pierce the LLC veil because LLCs do not have many formalities to maintain. As long as the LLC and the members do not commingle funds, it is difficult to pierce the LLC veil. Membership interests in LLCs and partnership interests are also afforded a significant level of protection through the charging order mechanism. The charging order limits the creditor of a debtor-partner or a debtor-member to the debtor's share of distributions, without conferring on the creditor any voting or management rights.

Limited liability company members may, in certain circumstances, also incur a personal liability in cases where distributions to members render the LLC insolvent.

Read more, here.

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Thursday, June 9, 2022

A brief history of divorce - Rod Phillips


Dig into the complicated history of divorce— from the earliest known divorce laws in ancient Mesopotamia to modern day. 

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Formally or informally, human societies across place and time have made rules to bind and dissolve couples. The stakes of who can obtain a divorce, and why, have always been high. Divorce is a battlefield for some of society’s most urgent issues, including the roles of church and state, individual rights, and women’s rights. Rod Phillips digs into the complicated history of divorce.

Lesson by Rod Phillips, directed by Chintis Lundgren

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Monday, June 6, 2022

History of a Corporation

The word "corporation" derives from corpus, the Latin word for body, or a "body of people". By the time of Justinian (reigned 527–565), Roman law recognized a range of corporate entities under the names Universitas, corpus or collegium. Following the passage of the Lex Julia during the reign of Julius Caesar as Consul and Dictator of the Roman Republic (49–44 BC), and their reaffirmation during the reign of Caesar Augustus as Princeps senatus and Imperator of the Roman Army (27 BC–14 AD), collegia required the approval of the Roman Senate or the Emperor in order to be authorized as legal bodies. These included the state itself (the Populus Romanus), municipalities, and such private associations as sponsors of a religious cult, burial clubs, political groups, and guilds of craftsmen or traders. Such bodies commonly had the right to own property and make contracts, to receive gifts and legacies, to sue and be sued, and, in general, to perform legal acts through representatives. Private associations were granted designated privileges and liberties by the emperor.

The concept of the corporation was revived in the Middle Ages with the recovery and annotation of Justinian's Corpus Juris Civilis by the glossators and their successors the commentators in the 11th–13th centuries. Particularly important in this respect were the Italian jurists Bartolus de Saxoferrato and Baldus de Ubaldis, the latter of whom connected the corporation to the metaphor of the body politic to describe the state.

Entities which carried on business and were the subjects of legal rights were found in ancient Rome, and the Maurya Empire in ancient India. In medieval Europe, churches became incorporated, as did local governments, such as the City of London Corporation. The point was that the incorporation would survive longer than the lives of any particular member, existing in perpetuity. The alleged oldest commercial corporation in the world, the Stora Kopparberg mining community in Falun, Sweden, obtained a charter from King Magnus Eriksson in 1347.

In medieval times, traders would do business through common law constructs, such as partnerships. Whenever people acted together with a view to profit, the law deemed that a partnership arose. Early guilds and livery companies were also often involved in the regulation of competition between traders.

Read more, here.

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Friday, June 3, 2022

Corporation, What Is It?

A corporation is an organization—usually a group of people or a company—authorized by the state to act as a single entity (a legal entity recognized by private and public law "born out of statute"; a legal person in legal context) and recognized as such in law for certain purposes. 10  Early incorporated entities were established by charter (i.e. by an ad hoc act granted by a monarch or passed by a parliament or legislature). Most jurisdictions now allow the creation of new corporations through registration. Corporations come in many different types but are usually divided by the law of the jurisdiction where they are chartered based on two aspects: by whether they can issue stock, or by whether they are formed to make a profit. Depending on the number of owners, a corporation can be classified as aggregate (the subject of this article) or sole (a legal entity consisting of a single incorporated office occupied by a single natural person).

One of the most attractive early advantages business corporations offered to their investors, compared to earlier business entities like sole proprietorships and joint partnerships, was limited liability.[clarification needed] Limited liability means that a passive shareholder in a corporation will not be personally liable either for contractually agreed obligations of the corporation, or for torts (involuntary harms) committed by the corporation against a third party. Limited liability in contract is uncontroversial because the parties to the contract could have agreed to it and could agree to waive it by contract. However, limited liability in tort remains controversial because third parties do not agree to waive the right to pursue shareholders. There is significant evidence that limited liability in tort may lead to excessive corporate risk taking and more harm by corporations to third parties.

Where local law distinguishes corporations by their ability to issue stock, corporations allowed to do so are referred to as stock corporations; one type of investment in the corporation is through stock, and owners of stock are referred to as stockholders or shareholders. Corporations not allowed to issue stock are referred to as non-stock corporations; i.e. those who are considered the owners of a non-stock corporation are persons (or other entities) who have obtained membership in the corporation and are referred to as a member of the corporation. Corporations chartered in regions where they are distinguished by whether they are allowed to be for-profit are referred to as for-profit and not-for-profit corporations, respectively.

There is some overlap between stock/non-stock and for-profit/not-for-profit in that not-for-profit corporations are always non-stock as well. A for-profit corporation is almost always a stock corporation, but some for-profit corporations may choose to be non-stock. To simplify the explanation, whenever "stockholder" or "shareholder" is used in the rest of this article to refer to a stock corporation, it is presumed to mean the same as "member" for a non-profit corporation or for a profit, non-stock corporation. Registered corporations have legal personality recognized by local authorities and their shares are owned by shareholders whose liability is generally limited to their investment.

Shareholders do not typically actively manage a corporation; shareholders instead elect or appoint a board of directors to control the corporation in a fiduciary capacity. In most circumstances, a shareholder may also serve as a director or officer of a corporation. Countries with co-determination employ the practice of workers of an enterprise having the right to vote for representatives on the board of directors in a company.

In American English, the word corporation is most often used to describe large business corporations. In British English and in the Commonwealth countries, the term company is more widely used to describe the same sort of entity while the word corporation encompasses all incorporated entities. In American English, the word company can include entities such as partnerships that would not be referred to as companies in British English as they are not a separate legal entity. Late in the 19th century, a new form of the company having the limited liability protections of a corporation, and the more favorable tax treatment of either a sole proprietorship or partnership was developed. While not a corporation, this new type of entity became very attractive as an alternative for corporations not needing to issue stock. In Germany, the organization was referred to as Gesellschaft mit beschränkter Haftung or GmbH. In the last quarter of the 20th century, this new form of non-corporate organization became available in the United States and other countries, and was known as the limited liability company or LLC. Since the GmbH and LLC forms of organization are technically not corporations (even though they have many of the same features), they will not be discussed in this article.

Read more, here.

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