FAQs - Black & Wadhams, Attorneys at Law

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We have answers! Our attorneys attorneys have prepared a list of the frequently most asked questions (FAQs) they have encountered from current and former clients. Please remember, every person’s problems is unique. For direct answers to your specific personal questions, please contact one of our office for assistance.

Estate Planning FAQs

1What Happens if I Become Unable to Manage My Affairs

If you become unable to manage your own affairs and make your own decisions due to mental illness, incapacity or an accident, most often the appointment of a Guardian will be necessary.

2What is Guardianship

A guardianship is a Court supervised process where an individual will ask the Court to be appointed as guardian over your person (personal care and decisions), estate (financial management and decisions), or both. If you have not executed a document nominating a ‘preferred guardian’, Nevada Statute sets forth the priority for those eligible to serve. Therefore, it is important to document who you would like to take care of you in the event of your incapacity.

3How do I avoid guardianship?

With the proper estate plan in place, the appointment of a Guardian should not be necessary. The recommended documents are addressed below.

4What happens if I die with a will?

Again, if the value of your estate meets the statutory limits, your estate will be subject to Probate; however, the person(s) you have named in your Will are generally appointed as your Executor, and the beneficiaries you have named in your Will, inherit your estate.

5What happens if I die and do not have a will?

If you die without a Will, you have died ‘intestate’. If the value of the assets in your estate meet the statutory limits, it is most likely your estate will be subject to Probate. Further, Nevada Statutes dictate who can administer your estate, and who your beneficiaries are.

6What is probate?

Probate is a Court supervised process of transferring ownership of property from a deceased person to his or her heirs. In Nevada, there are different procedures for administering estates, depending upon the value of the assets. A Petition is filed with the Court, and a copy of that Petition is served on your heirs. Your Administrator/Executor files tax returns, notices creditors and protects and/or liquidates the assets of your estate, however any assets are held until the Court approves the final distribution.

7How do I avoid probate?

You can avoid Probate by executing a Revocable Living Trust and transferring your assets into that Trust. You retain ownership and control of those assets. Ownership of a limited number of assets cannot be transferred into your Trust, however there are ways to ensure those assets are not subject to Probate.

8What is a Revocable Living Trust?

The RLT is established by written agreement and records the arrangement wherein you transfer ownership of your property into the Trust during your lifetime. There are 4 main components to a Trust:

Trustor: The creator of the Trust;
Trustee: The person/entity who accepts the property into the Trust, and who manages and distributes the property in accordance with the Trustor’s directions;
Trust Assets: The property transferred into the Trust by the Trustor;
Beneficiary: Those who receive the Trust assets.

Upon your incapacity and/or death, your nominated Successor Trustee steps in to manage Trust assets. This avoids a guardianship of your estate, and/or a Probate action. Your Successor Trustee will ultimately distribute your assets to your named beneficiaries following your death.

9What are Power of Attorneys?

Healthcare Power of Attorney: Your HPOA names the individual(s) you have chosen to make medical decisions on your behalf, and to carry out your stated desires regarding life sustaining measures. By nominating an agent and making your desires known, you remove the burden from family/friends of having to make those decisions on your behalf.

Durable Financial Power of Attorney: This FPOA allows your nominated agent(s) to make financial decisions on your behalf, and to manage your assets, except those assets that are in your RLT. You can make your FPOA effective immediately, or have it effective only upon your incapacity. You can also limit your agent’s powers, or grant them broad powers.

10Can I update my estate plan as I please?

Yes! If major personal or financial events or changes occur (like marriage, the birth of tour child, divorce, selling or buying a business) we recommend you review your plan with an experienced state planning to ensure those changes are incorporated.

11I want to see everything done on my case/everything filed, but I do not want to receive bulky mail or pay for postage, and my email has attachment size limits, are there any other options

Yes! The Firm has invested in technology that will make it easy for you to review and collaborate with your lawyer. We can give you access to your file through a secure connection over the internet. You will be able to review and comment on documents and see a calendar of upcoming events.

12Should my company hire people as employees or independent contractors?

There is often no choice. The IRS has guidelines for determining when a person can properly be classified as an independent contractor. There also practicalities, as independent contractors generally select the time and manner of providing their services which may not work for some businesses. Failure to have the proper classification can be expensive to correct.

13Should our initial capitalization be treated as a loan to the entity or the initial contribution?

Generally, it is best to have at least some investment that is equity in order to avoid potential “piercing the corporate veil” arguments and to facilitate obtaining loans from third parties

14Shares in a corporation: What is the minimum amount of shares and what should pricing be?

What is the estimated issuance price? Determining the offering price for shares in a closely held corporation is often a complex analysis. Factors include the size of the anticipated business, the number of potential shareholders, the cost of obtaining Authorized shares from the Secretary of State, annual renewal costs, potential future share issuances and the dollar amount of required capital.

Bankruptcy FAQs

1What is a chapter 7 bankruptcy?

Both corporations and individuals are permitted to file Chapter 7 bankruptcy. Individual debtors are permitted to retain certain "exempt" property, while the remaining non-exempt assets are liquidated by a chapter 7 trustee. An individual debtor is entitled to seek a discharge of certain types of debt. A corporate entity does not receive a discharge. The trustee will distribute the funds from the liquidation to holders of claims (creditors) in accordance with the provisions of the Bankruptcy Code.

2What is a chapter 13 bankruptcy?

In a Chapter 13 bankruptcy, individuals with regular income repay a portion or all of their debt over an extended period of time (3-5 years). Chapter 13 may be appropriate for debtors who seek to retain certain assets through a repayment plan. An individual is eligible for a Chapter 13 bankruptcy as long as the individual has unsecured debts of less than $383,175 and secured debts of less than $1,149.525. See 11 U.S.C. § 109(e) (these amounts are subject to periodic change).

3What is a Chapter 11 bankruptcy?

While there may be times that talking to the press about your lawsuit is useful, those times are very, very rare. We strongly recommend you consider “no comment” until you and your lawyer have decided the benefits of saying something outweigh the risks. Remember, you will not “win” your case through the press. But you might lose it.

4What happens when a bankruptcy is filed?

Generally, upon the filing of a bankruptcy petition, the “automatic stay” takes effect. An “automatic stay” prohibits creditors from commencing or continuing collection efforts against the debtor or its/his/her property. Certain actions listed in Section 362(b) of the Bankruptcy Code are not subject to the automatic stay (for example, criminal actions against the debtor or actions by governmental agencies to enforce police or regulatory powers). Creditors can seek relief from the “automatic stay” by filing a motion in the bankruptcy case.

5What is a “341 meeting”?

The meeting of creditors is a hearing all debtors must attend in any bankruptcy proceeding. The 341 meeting is held outside of the presence of the judge and usually occurs between 20 and 40 days after the filing of the petition. It is also referred to as a "341 meeting" because it is mandated by Section 341 of the Bankruptcy Code.

In Chapter 7 and 13 cases, the trustee assigned to the case conducts the meeting. In a Chapter 11 case, a representative of the United States Trustee's Office conducts the meeting. At the meeting, the trustee or the representative of the U.S. Trustee reviews the debtor's petition and schedules with the debtor. The debtor is required to answer questions under penalty of perjury about the debtor's conduct, property, liabilities, financial condition, and any other matter that may affect the administration of the case or the debtor's right to discharge.

The meeting is also referred to as a "meeting of creditors" because creditors are notified that they may attend and ask the debtor questions pertaining to assets or any other matter pertinent to the administration of the case.

6What is a discharge?

A discharge prohibits creditors from taking action against the debtor on debts incurred prior to the bankruptcy petition date. Unless otherwise ordered by the Bankruptcy Court, a discharge does not prevent enforcement of a lien or encumbrance on property of the debtor.

A creditor or trustee may seek the denial of a debtor’s discharge based on certain actions listed in the Bankruptcy Code. 11 U.S.C. § 727. If the debtor’s discharge is denied, none of the debtor’s debts are discharged and all creditors can proceed to collect their debts against the debtor.

7What is a non-dischargeable debt?

A creditor may also seek to have its specific debt found “non-dischargeable” based on certain prohibited actions listed in the Bankruptcy Code. 11 U.S.C. § 523. In a Chapter 7, examples of such actions include, fraudulent conduct, embezzlement, willful or malicious injury to another party. If a debt is found by the Bankruptcy Court to be non-dischargeable, the creditor that holds the debt is not prohibited from collecting the debt after the debtor received a discharge.

8What is a Plan of Reorganization?

The Plan of Reorganization is a document that is filed with the Bankruptcy Court in Chapter 11 or 13 cases that sets out how a debtor intends to repay creditors. The plan divides creditors into classes. The plan sets forth the treatment of claims for each class of creditor and provides a means for the plan's implementation (i.e. how the creditors will be paid).

Litigation FAQs

1I have just been served Summons and Complaint, what happens?

This is generally called “legal process.” You need to act quickly and should consult with an attorney immediately. Different courts have different deadlines for responding and figuring out the deadlines without a lawyer can be tricky. For example, in federal court, one must respond to a complaint within 21 days after being served. Whereas in state court, one must respond within 20 days after being served. In eviction cases, you may have as little as 5 days.

Our seasoned litigation attorneys can help you through the complex process and assist you in developing an appropriate response, and more importantly, a litigation strategy to match the needs and economics of the matter.

2I have just been served Summons and Complaint, should I text or email my business partners, employees, friends or others to discuss the Complaint and the claims asserted?

No. You should not engage in texting or emailing discussions about the case. Such communications will likely be discoverable, will certainly increase the costs of litigation and could hurt your case. You should contact an attorney immediately. And if you contact an attorney via email or text, use your personal email or personal smart phone not your work account.

3What sort of information do I need to gather to give to my lawyer for my business dispute?

When you meet with us for your consultation, we usually ask you to bring copies of all contracts, agreements, communications (such as texts, letters, emails) and any important documents. You will need to make sure that you do not delete any emails, texts or other electronic communications. You also need to preserve all documents, evidence and electronically stored information (e.g., information stored in computers, smart phones, tablets and similar devices).

4The smoking gun email that really hurts my case is in my server, but no one ones about it, should I delete it?

No. You have an obligation to preserve all emails, texts and electronically stored information. In most cases, the deletion of information may be uncovered and the results of destroying evidence can be severe, often worse that the impact of perceived “bad evidence.” Sanction include monetary penalties, adverse inference instructions to the jury at trial, or even dismissal of certain legal claims or defenses. The best thing to do is to tell your attorney right away.

5I am really frustrated about my lawsuit, is it okay to vent my frustration to friends and family via social media (e.g., Facebook).

In some cases, posting things about a lawsuit on social media has caused litigants to lose their cases or significant monetary settlements. A notable example involves a family that settled their lawsuit against a private school and received a sizable financial settlement. The settlement agreement required both sides to keep the terms of the settlement, including the money paid to the family, confidential. Well after the settlement was signed, the daughter boasted about how her family had “beaten the school” and the “school was forced to pay her family a lot of money.” The posting eventually was uncovered and the family lost their right to the settlement amount because the post violated the confidentiality provision of the settlement agreement. To make matters worse, the family was prohibited from reinstating their lawsuit against the school. If you want to vent to a friend or family member, pick up the phone or have a face-to-face conversation but remember, the only person you can safely share information with is your lawyer.

6I am the President, Director, Officer or Owner of a company that has been sued, can I appear on behalf of the company?

No. Corporations, limited liability companies and similar business organizations are legal entities which the law generally treats like separate, individual parties. Thus, many court rules require legal entities to be represented by a licensed attorney in lawsuits or other court proceedings. Moreover, there are many litigation pitfalls that can inadvertently expose a company, and its directors, officers or owners to serious liability. The success and viability of any business often rests on considerable investments of time, effort and money. We can protect that investment and work with you to develop a reasonable case management and reasonable litigation budget.

7How much will this cost me?

There is no easy way to say it: litigation is expensive. While the cost certainly varies depending on the issues in the case, the amount in controversy and the parties involved, even the simplest case is not going to be a minor expense. We understand that and will discuss with you early on the likely costs you will be incurring and strategize with you to set realistic ligation goals in light of available resources and the value of the case and design a strategy to achieve them in a cost-efficient way.

8I know the other side is lying, should I call them and record our conversation in an effort to expose the lies?

Under Nevada law, it is a crime to secretly record a telephone conversation. Both parties to the conversation must consent to the recording. Secretly recording a telephone conversation will not help your case (the recording would be ruled inadmissible) but could land you in serious trouble.

9I received a Subpoena requiring me to produce certain documents, do I need a lawyer?

In most instances, yes. A subpoena is something to take seriously and consulting counsel can assist you to not only properly respond, but also assert needed objections to protect your rights and the rights of others. It is important to produce what is required but also not produce what the requesting litigant is not entitled to have or is private information (yours or someone else’s). Many objections are waived if not properly asserted at the beginning. Spending a little now having counsel advise you will be much cheaper than what it will cost trying to fix a problem later.

10What do I do if the press calls about my lawsuit?

Business Formation FAQs

1What is the difference between a limited liability company and a corporation?

While both corporations and limited liability companies provide similar limitations on the personal liability of shareholders and members, there are significant differences in potential tax treatment and management. A limited liability company can be a “disregarded entity”, C Corp, S Corp or partnership for federal tax purposes. A corporation can either be a C Corp or an S Corp. Corporations require annual reports and annual meetings, while limited liability companies have no similar statutory requirement, although it is good housekeeping to do so.

2What is the difference between a limited liability company and a corporation tax wise?

A limited liability company has greater flexibility as to tax status. A single member LLC is “disregarded” for federal tax purposes, which means the expenses and revenue are included in the owner’s federal tax return. The most common tax treatment for an LLC is as a partnership. Corporations cannot elect partnership tax treatment. Corporations are limited to being a C Corp that pays federal income tax or an S Corp wherein the shareholders pay tax on their share of profits.

3S Corp.

S corporations do not pay federal income taxes, instead, the shareholders pay tax on their share of the income. This single layer of tax liability provides significant savings.

4Why should I have a limited liability company or corporation?

The best reason is to limit the exposure of an individual’s assets for business risks. Another reason is to raise capital.

5Do I need a business license?

All businesses in Nevada require a state business license and most businesses require one or more local business licenses. If you want to vent to a friend or family member, pick up the phone or have a face-to-face conversation but remember, the only person you can safely share information with is your lawyer.

6Will my name be in public record if I own a limited liability company or corporation?

Maybe, in Nevada, the identity of the Manager of an LLC and the President, Treasurer, Secretary and Directors of a corporation are public records unless the management is conducted by another incorporated entity or trust.

7How do I protect my company name and brand?

Depending on the circumstances, trademark and service mark filings at the federal or state level are generally the tools for protecting a brand. Merely using your brand will not prevent someone from “taking it” for their use.

8How much will it cost to maintain my entity?

In Nevada, there are annual filing fees and often costs for a resident agent apart from business license cost. There is also a new gross receipts tax on revenue over $5M where your business operates and how much income is generated, determines cost as well as initial and annual costs for the Nevada Secretary of State.

9Are there any restrictions I should be aware of when naming my business product?

The are a range of considerations, including aspects of internet marketing. It is often optimal to procure the url for your brand. It is also vital to do comprehensive searches to avoid selecting a name that cannot be protected or is already being used.

Family Law FAQs

1How Much Does A Divorce Cost?

This is the most common question we hear, and understandably, people are frustrated with our answer: “It depends.”

Unfortunately, every divorce is different, and some can involve complex issues, and multiple factors can dramatically affect the cost making it difficult to estimate the total cost.

The average cost of a divorce in the United States is between $10,000 and $20,000. But again, this estimate is just that, and every divorce is different. In a complex divorce, it is not uncommon for the cost to exceed $100,000. The factors at work include whether or not the parties can reach an agreement amicably, how much work will need to be done to determine all relevant facts, how complex is the marital estate, and whether or not the case is assigned to a particular court. Additionally, opposing counsel hired by your soon-to-be ex-spouse and also dramatically impact the cost.

While the numbers can be intimidating, as a client, you do have some control over how much a divorce cost you. Being proactive in providing information to your lawyers, compiling and organizing it, and being reasonable and following your lawyers advice can dramatically reduce the amount of time and litigation necessary, and accordingly this can keep fees and costs at a reasonable level.

Unfortunately, divorce can be very emotional, and sometimes parties are blinded by their emotions. Our experience has taught us that’s we must be firm with our clients and telling them what they need to hear, not what they want to hear. We understand it is difficult during a divorce to follow the legally and financially appropriate advice when principle seems to be most important. Nevertheless, based upon our combined almost 50 years of experience in family law, we are well able to manage client expectations and to give good advice while remaining empathetic and loyal to our clients as they go through what is likely the most difficult situation they will ever face.

As to specific costs, as stated, every case is different. Sometimes it is necessary and complex or highly contested divorce is to hire experts to deal with issues regarding valuation of assets and child custody evaluations. The cost of employing these other professionals often dramatically increases the cost of the divorce.

The best way to manage the cost of your divorce is to educate yourself as early as possible with regard to your rights and obligations. Anyone considering divorce should consult an experienced family law attorney. Be prepared at that consultation to share as much information as you can regarding the income of each spouse, the assets and debts of the marital estate, all expenses, and all facts relevant to your children. An experienced family law attorney will be able to provide you a roadmap and advice, and more specific information regarding the estimated costs of the divorce.

2Can both parties use the same attorney?

Although this is not always the ideal, it is possible for both parties to use the same lawyer. You will want to ensure that the lawyer has both parties sign waivers of the obvious conflict of interest, and it is prudent to make sure that both of you meet with that lawyer for the first time together so you can ensure each party’s interests are being represented equally and equitably. You should be cautious about this arrangement, since even the cost of sharing an attorney can be quite expensive. If you are using the same attorney and’s cannot come to an agreement, you may both be required thereafter to hire to new attorneys, one for each of you. An attorney who starts at representing both of you cannot ethically continue to represent just one of you if your negotiations fall apart. If you feel you are going to have a contested divorce, it is probably best to retain your own counsel rather than share.

3Can both parties use Black & Wadhams to mediate the divorce issues and complete the divorce?

Yes. In the event both parties agree, we welcome the opportunity to serve both spouses and meeting to obtain all necessary facts so that the issues can be identified, and then to work with both parties to formulate a resolution which is consistent with the law and which, as nearly as possible, meets the wishes and expectations of both parties. I do not always recommend this course, but where you feel you and your soon-to-be ex can reasonably negotiates and work together to resolve all issues, it is wise to share an attorney to mediate those issues and to draft the necessary paperwork so that nothing is missed. Whether you share a lawyer, or each party has their own, we cannot stress enough the importance of utilizing an experienced family law attorney to ensure that the divorce is completed properly. Litigants who do not have attorneys, or those who use attorneys not experienced in family law may find out years later that important matters either were not addressed or were addressed improperly. This can end up costing thousands of dollars in lost assets, unnecessarily accrued debts, lost opportunity for tax savings and the like.

4What about our children?

Child custody is often the most emotional issue in the divorce case, and because the laws of this State give judges a great deal of discretion regarding an only child custody proceedings, but also the outcome, custody disputes can quickly become very expensive. In no arena is it more important to have an experienced family law attorney who understands the judges in our local family courts. The child custody laws in our States have evolved toward a preference for joint legal and joint physical custody, under the theory that the best parent is both parents. Nevertheless while the norm today is sharing custody, there are many cases which necessitate a designation of a primary physical custodian where there are fitness issues concerning one of the parents. Ultimately, the court must decide what is in the best interest of the children. Consulting a lawyer as soon as you believe you may get a divorce is critical when you have minor children. Understanding your rights and obligations, the rights of your children, and a strategy for ensuring that your children are protected during and after your divorce is the first issue you should address, and if possible, you should do so long before you file. Other issues such as the request of one parent to relocate with the children outside of the State can also result in complex and expensive litigation, all of which you may be able to avoid if you plan ahead and hire an experienced family law attorney. At any rate, as a general rule, if you believe that child custody may become an issue, you should not move out of your home prior to either party filing for divorce and consulting an experienced family law attorney. Likewise, if you believe divorce as possible, and you do not want your children living outside of the State following the divorce, you should not grant permission to your spouse to take the children out of State for an extended period of time. Contrary to what many people believe, it is not illegal for one parent to take a child out of State for a vacation. It is illegal for a parent to remove a child from the State in an attempt to withhold the child from the other parent or to conceal the child’s whereabouts. However, vacations are allowed, but the courts do expect parents to share information with each other when they take such vacations.

5Does the Court split everything “50/50”?

Nevada is a Community Property state, and the general rule is that all assets acquired during the marriage and all income earned during the marriage are owned equally. Nevertheless, there are numerous exceptions to this general rule, depending on many factors. You will need to explore with your attorney not only the current value of an asset, but other factors including the source of funds utilized to acquire an asset. Every asset and debt of either party should be analyzed taking this into consideration, and additionally, there may be financial planning and tax advantages to effectuating a division other than an equal division of assets. The issue of alimony can also come into play, and the asset division can impact the availability of alimony, as well as the amount and duration.

6How long will it take to get divorced?

Again, the unpopular but practical answer to this question is, “It depends”. An uncontested divorce can be completed fairly quickly in Nevada, and generally this takes between 2 to 4 weeks. Unlike other states, there is no “waiting.” In Nevada. One party must be a resident for at least six weeks prior to filing before the court will have jurisdiction to issue a divorce. If both parties do not live in Nevada, it is wise to seek counsel regarding which State should handle the divorce. There may be many strategic considerations involved in cross jurisdictional divorces, and in that instance, you may want to consult a lawyer not only in Nevada but also in your soon-to-be ex’s home state. For an uncontested divorce, you will simply need to provide your attorney with all necessary information, and in turn the lawyer will draft the necessary pleadings. The Court likely will not require you to appear for a hearing. After all of the pleadings are submitted, it generally takes 1 to 2 weeks for the Court to sign off on the Decree of Divorce. Parties divorcing in Nevada who have minor children are also generally required to take a one-time class which is designed to assist the children in coping with the divorce. The course is available online and generally can be completed very quickly and will not slow down the process. For a contested divorce, estimations of the time it will take again depend on many factors. Contested divorces where both child custody and division of assets and finances often take the longest. In this jurisdiction, courts generally require child custody matters to be addressed prior to addressing financial issues. Other factors include assignment of your case to a particular judge, as the time each judge takes to bring their cases to conclusion varies widely. The attorney chosen by your spouse may also be a factor. In our experience, contested divorces generally take between 6 to 12 months. Complex contested divorces involving extraordinary child custody issues or sizable estates will likely take longer.