Archive for the ‘Articles’ Category

Choosing the Right Representation – What to look for in a lawyer

When is the right time to secure a lawyer?

When is the right time to secure a lawyer?

 

“You’ll be hearing from my lawyer,” “don’t say another word until you talk to your lawyer,” “I’ll have my lawyer contact you,” – – anyone who’s grown up watching television dramas, or watched or read any of John Grisham’s films or books is familiar with this legal vernacular. But how do you obtain a lawyer, does everyone need a lawyer at all times and how does an individual go about choosing the right lawyer for their particular needs?

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Complex Criminal Defense—Computer Crimes and Fraud

ComputerCrimesNewMexico_Business-Law-Southwest

The laws surrounding computer crimes are often confusing to navigate.

New Mexico news headlines were recently riddled with references to a case involving Governor Martinez’ former campaign manager and a federal indictment for “computer intrusion and false statement charges” that stemmed from the “interception of wire communications intended for others.” The increased use of, access to, and sharing of information has been mirrored by the increase in cyber crimes and computer fraud. Fraud and crime charges as they relate to computers, the Internet and cyber space are as frequent as they are complex.

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Understanding Different Business Entities: LLC vs. Inc.

Understanding Business Entities

Understanding business entities…

Knowing how your business entity should be formed is the first step to running a successful company. You may have questions about what a Limited Liability Company (LLC) is or why you might want to consider forming a corporation. You may also have questions about what is best for your company. This week, we’ll focus on the LLC and Corporations because these are the two more common types of business entities. We’ll cover Partnerships, Sole Proprietorships and the differences between “S” and “C” Corporations in the following weeks.

So, how do you choose between LLC and Inc.? Read More…


Why You Need To Probate Your Loved One’s Estate

Probating a WillWinding up the affairs of a loved one who has passed on is never the most pleasant endeavor when you are in the midst of grieving his or her loss. However, the sooner the process is started, the easier it will be and the sooner it will be over. Probate is the legal process by which your deceased loved one’s debts are paid and her property is distributed to her survivors. The following details the steps involved in, and the importance of, the probate process in New Mexico.

When should an estate be probated in New Mexico?

If a person resided in New Mexico or owned real property located in New Mexico at the time of his or her death, a probate should be opened in New Mexico.

What are the steps involved in a probate?

(1) A petition to be appointed as personal representative or administrator must be filed with the court, and a notice must be sent to all interested parties.

(2) After a hearing, the court will typically issue an order appointing the petitioner as personal representative or administrator of the estate and Letters Testamentary or Letters of Administration authorizing the petitioner to take control of the assets and affairs of the estate.

(3) With the Letters Testamentary, the personal representative may begin collecting and inventorying the estate’s assets, including bank accounts, insurance policies, personal property and real property.

(4) The personal representative is also responsible for notifying creditors by letter and/or publication of the passing of the deceased, which starts the clock running on the deadline for creditors to make claims against the assets of the estate.

(5) After gathering the assets and determining the debts of the estate, the personal representative distributes the required statutory personal and family allowances, if applicable, satisfies the debts of the estate, and distributes the assets of the estate to the beneficiaries.

Who can be appointed as personal representative?

If your loved one has left a will naming a willing and able personal representative, the court will typically appoint that person. If the person named in the will is unable or unwilling to serve, or if your loved one has died intestate (without a will), any person interested in the deceased’s estate can petition to be appointed personal representative. Usually a spouse or child of the deceased will petition the court to be appointed personal representative, but any heir or even creditor is an “interested person” authorized to petition the court to be named personal representative.

Why is it important to go through the probate process?

Only through the probate process can you legally transfer title of the deceased’s property to the intended beneficiaries. All too often, a child takes up residence in the deceased’s home without having legal title transferred to him or her by a personal representative. Even though it may be undisputed that Mom wanted her child to have the home, the home still legally belongs to the deceased’s estate–not to the child. An unknown creditor, whose claim might have been foreclosed if the estate were probated, could come out of the woodwork, and the home could be available to satisfy the claim. The deceased may owe taxes, which would have been addressed by the personal representative during the probate process, and a taxing authority could impose a lien against the property. Suddenly, the small amount of money the child saved by foregoing the probate process costs the child the house that his or her Mom wanted to leave to the child.

Perhaps the most important reason to probate an estate is to assure the orderly transfer of assets from one generation to the next. Feelings of unfairness often arise when one sibling perceives that his or her parent left more to another sibling. The supervised distribution of assets through the probate process adds legitimacy to the transfers of property, which will reduce the chances of litigation over how assets are distributed. Additionally, proper administration of the estate assures that the intended beneficiaries will obtain the legal title to property necessary, in turn, to pass that property to future generations.

How much does it cost to probate an estate?

The attorney fees and other professional fees, such as those charged by accountants, depend on the complexity of the estate. The fewer debts owed by the deceased and the fewer assets to be distributed, the lower the cost of administering the estate tends to be. In any event, the cost of probating your loved one’s estate will almost always be less than the cost of the legal nightmares that result from foregoing the probate process.

If you are in need of an attorney to help you probate a will and/or administrate a loved one’s estate in New Mexico, be sure to contact a probate attorney as soon as possible. Probating a will should not be procrastinated.


Business Formation Options

Puzzle PiecesCongratulations, you’re ready to start your own business! You have your idea, your location, your funding, and possibly a business plan to get it all together. But, first things first–you’re going to have to plan how you want your business to be organized for tax purposes, accounting purposes, and most importantly, for liability purposes. So which business formation structure best serves your needs? You have a number to choose from, and here are the most common ways to do so:

  • sole proprietorship (or entrepreneurship);
  • general partnership;
  • limited partnership (LP) or limited liability partnership (LLP);
  • limited liability company (LLC);
  • corporation; and
  • nonprofit corporation.

Sole Proprietorship

The sole proprietorship is owned by one person and one person alone, and it doesn’t require state registration like other corporate structures. As such, in the eyes of the IRS and the law, the business is not separate from the owner. All business income and business losses have to be filed on the owner’s personal income taxes, and the owner is personally liable for anything and everything that happens on behalf of the business.

General Partnership

A general partnership very similar to a sole proprietorship, except that this business is owned by two or more people. Like the sole proprietorship, a general partnership does not have to be registered with the state, the partners are all personally liable for the business, and all partners have to file business income and losses on their personal income taxes.

A general partnership works best for small businesses where the partners rarely have to borrow money and their business has a relatively low risk of ever being sued.

Limited Partnerships and Limited Liability Partnerships

A limited partnership consists of at least two people going into business together, where one person (or a company) will be a general partner. The general partner is personally liable for the business’s actions and is in charge of the business’ operations. The limited partners invest in the partnership, but they have little control over business decisions. As such, they are not liable for the business’s actions.

Limited liability partnerships (LLP) make all partners have control over the business like they would in a general partnership, but none of the partners are personally for the business, as if they were limited partners.  LLPs are generally reserved for professional organizations, such as law firms, physician groups, accountants, architects, etc.

Neither type of limited partnership is recommended for the average small business owner, as these partnerships are not simple to set up and are often expensive to do so.

Limited Liability Companies

For businesses who would like all the perks of a LLP but aren’t considered a professional service business, then limited liability companies (LLC) are definitely your best bet. Like a partnership, members of the LLC have to file their portions of the business’ income on their personal tax returns, and the members are not personally liable for the company’s debts and claims.

Also like a LLP, a LLC is costly and a bit complicated to set up.

Corporations

Like a LLC and LLP, corporations separate the business from the owners, which prevents the owners from being personally liable for the business’ debts and claims. What makes it different from a LLC and LLP is the fact that it is completely separate from the owners as its own legal entity. Corporations pay their own taxes based on profits, not the owners. Owners only pay income taxes on the salaries and bonus income they receive from the corporation. Corporations are often set up to be the general partner in a limited partnership to further protect the limited partners.

Many small business owners rush to set up corporations, but they really only make sense for businesses that have a high risk of being sued and/or a high risk of acquiring a substantial amount of debt, or business owners who need to separate and protect their personal assets from the business.

Nonprofit Corporations

A nonprofit corporation is set up similarly to a corporation, but nonprofit corporations are exclusively set aside for charities, religions, and other educational purposes. Nonprofits can raise money for their projects, but nonprofits generally do not have to pay taxes on any funds obtained for these projects because of how these projects benefit and contribute to their communities and not the business owners. For example, the Sesame Workshop is a nonprofit corporation, because all of the money they raise from putting on shows and selling DVDs and toys goes back into funding the organization and their contributions to children education across the world.

So which business formation best fits your needs? If you are needing a limited partnership, a limited liability company, or a corporation, do not try to set these organizations up on your own. You will need an experienced business law attorney to make sure that not only your formation is legally registered correctly, but also that it’s the most ideal structure for you and your business.



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