Author Archives: Abigail Dawn Edelstein, Esquire

What is a Contract?

Date
Posted by
Comments0

Contracts are part of our everyday personal and business lives. If you are a business owner or manager of a business, you deal with contracts when you transact business with contractors, vendors, landlords, banks, employees, and customers. In our personal lives, we deal with contracts when we buy a house, buy a vehicle, sign a lease, and sign up for social media accounts.

Contracts are promises that the law will enforce. A contract is a legally binding agreement between two (2) or more persons or legal entities (e.g. corporations or LLCs), where one party agrees to provide a good or service in exchange for money, services, or other goods.

Contracts are governed by state statutes, common law (judge-made), and private law. Private law consists of the agreed upon terms of the contract between the contracting parties.

It is beneficial to have a written agreement just in case disagreement arises between the parties. Merely reducing an agreement to writing does not automatically make the contract legally enforceable. Some agreements must be in writing and meet specific requirements. See our blog post on Florida’s Statute of Frauds and Elements of a Valid Contract. There are certain clauses that should be included in contracts to protect the parties in the event of a disagreement. For example, jurisdiction, venue, mediation, jury trial, arbitration, and payment of attorney’s fees and costs provisions. A Florida business attorney will help you determine what needs to be in the contract and will ensure that the contract complies with Florida law.

If you have any questions, feel free to contact Abigail D. Edelstein at (407) 862-9449 or make an appointment for a free thirty minute case assessment.

Do You Need a Business Lawyer for an LLC?

Date
Posted by
Comments0

Congratulations on starting a new company! Before you start transacting business you should take the time to agree upon the terms and allocation for the ownership of the company. This is one of the biggest and toughest decisions, but it is one of the most crucial ones to get right from the start. Even minor differences in ownership could mean a lot in the future. Starting off with everyone on the same page will prevent big issues from arising in the future. With a business lawyer on your team you can be confident that your legal ducks in a row and focus on growing your business.

Currently, it costs $125.00 to form an LLC in Florida. The decision to seek the advice of a Florida business lawyer is significant. An attorney will ensure that there is a sound basis for your business to move forward. For example, there will be a structure for resolving disputes and the rights and obligations of each member will be defined. You should speak with a Florida business lawyer to ensure that your new business is setup for success.

The majority of clients come to me after a dispute has already occurred. Most of these disputes could have been avoided or resolved if they met with when they started their business. The first thing I do is examine their operating agreement, if they have one. Sometimes the operating agreements are purchased from LegalZoom or other do-it-yourself (“DIY”) sites. I cannot stress enough that forming an LLC or other entity should not be done using DIY or other out of the box formation. The old saying “you get what you pay for” could not be true in this regard. The price you pay reflects the predictability and transparency of resolving future conflicts. The cost of litigating business disputes can cost several thousands of dollars and could result in termination from the business. It is a wise investment to be safe than sorry and hire an experienced business lawyer. The following are some items you should consider obtaining for your LLC:

  1. Operating Agreement
  2. Subchapter S Election
  3. Doing Business As (“DBA”) or Fictitious Name
  4. Independent Contractor Agreement
  5. Management Agreement
  6. Employment Agreements
  7. Security Agreements (if you loan money to your business)
  8. Indemnification Agreements
  9. Leases for Home Office, Equipment, and Vehicles

As you can see, LLCs are more complex than meets the eye. Having an experienced business lawyer draft or review your agreements will often shed light on things that are often clouded by the excitement of starting a business. Our firm can help your business start off on the right foot.

Call (407) 862-9449 to schedule a free thirty minute case assessment to discuss your business needs.

 

What is a Limited Liability Company (“LLC”)?

Date
Posted by
Comments0

A Limited Liability Company, also known as an LLC, is a hybrid organization with characteristics of a corporation and a partnership. LLCs can choose to be taxed as a partnership or a corporation. LLCs are run by a Manager(s) and can be owned by a Member or several Members. Management of a LLC is governed by Florida statute unless members agree otherwise. A carefully drafted operating agreement is one way to control and protect the LLC’s assets among other things.

The following is a summary of why some people choose LLCs:
1. Limit Owner’s Liability. The primary reason for forming a limited liability company is to limit the liability of the owners. If you are sued, your creditors should not be able to get your personal assets.
2. Charging Order Protection. Interests in LLCs are protected from the claims of creditors of their members. For example, if a creditor of a member gets a charging order against the interest of the member, the creditor cannot acquire the debtor’s interest in the LLC. Therefore, the creditor cannot acquire the assets of the LLC. As a result, the creditor must wait until the manager makes a distribution to the member/debtor to get paid. Corporations do not enjoy this protection.
3. Taxes. Most LLCs are not subject to Florida’s corporate income tax. Like partnerships, profits and losses will flow through to the owners. This avoids double taxation.
4. Flexibility. LLCs have the flexibility to draft their operating agreement to cover issues such as members’ contribution obligations, member and management voting powers, profit and loss allocations, governance structure, members’ distribution rights, etc. Amendments and organizational changes related to the LLC can generally be made in the operating agreement alone (without amending the articles of organization).
5. Anonymity. LLCs provide a degree of anonymity. LLCS help keep your name out of databases and asset searches.
6. Formalities Not Required. A corporation requires specific formalities be followed including annual meetings of shareholders and directors each year, meeting minutes which are kept with the corporation’s records, etc. These formalities are not required for LLCs. However, it is a good idea for your LLC to document major decisions even though these formalities are not required.
7. Allocations of Profits and Losses. Unlike S corporations, LLCs can make special allocations of profits and losses among its members. S corporations have one class of ownership with profits and losses allocated according to the percentage of ownership.

As you can see, LLCs are more complex than meets the eye. Having an experienced business lawyer draft or review your agreement will often shed light on things that are often clouded by the excitement of starting a business. Our firm can help your business start off on the right foot.

Call (407) 862-9449 to schedule a free case assessment and discuss your business needs.

How Contracts Can Save Your Business Time and Money

Date
Posted by
Comments0

If you own a business, it is important to establish an agreement or contract with those you do business with. It will take a little more effort than a handshake and may cost for an attorney to draft or review the written contract. However, you will have the peace of mind knowing that should the worst happen your business will be protected.

An experienced business attorney will make sure the necessary clauses are included to protect your business. For example, a prevailing party clause explains what costs and fees the losing party is responsible to pay to the winning party. If you did not have a contract, and if there is no law giving you a right to collect fees and costs, then each party will have to bear their own expenses. Costs and fees include attorney’s fees which can add up quickly should the matter be filed in court. It is already bad that the deal fell through. It could be worse if you have to pay an attorney out of pocket with no possibility of recouping those costs.

Most business owners forgo seeking the help of an attorney to draft or review their contracts because they think it is too expensive. What they do not realize is that if the other party does not fulfill their obligations then they will probably have to hire an attorney anyway. Most business owners meet with me after the deal falls through. At this point, I am trying to figure out what the terms of the agreement were and how we can prove such agreement. There is no reason for it to get to this point.

I would advise having an attorney review or draft your contracts before you seal the deal. Paying an attorney to do this could save you a lot of time and money down the road. My firm offers flexible payment options to fit the needs of any business. You can hire us for a specific task or you can make us part of your team. We have monthly plans that include consults (in person or over the telephone), document review, and other services.

To discuss your business needs call (407) 862-9449.

Caveat Emptor: Do-It-Yourself Estate Planning- Part I

Date
Posted by
Comments0

Caveat emptor, the Latin phrase for let the buyer beware, is an old saying has stood the test of time. A story in The Florida Bar News confirms the inadequacy and unreliability of do-it-yourself estate planning. To view the full article please click here.

In the article, a woman, Ann Aldrich, used an “E-Z Legal Form” to write her will.

Facts

  • Aldrich’s form will was properly witnessed and executed.
  • Aldrich’s form will specified that her property was to be left to her sister, and if her sister died first, then her property would go to her brother.
  • The sister died first and left property and money to Ms. Aldrich.
  • Aldrich attached a note to the form will stating that her brother should receive the inherited property, with some funds for a niece. Ms. Aldrich and her daughter signed the note.

The Problem with the Self-Drafted Will

  • Aldrich’s form will did not have any general devises or residuary clauses to control how her inheritance should be handled.
  • The Court found that the attached note was a legally ineffective testamentary instrument because it did not comply with the Florida Probate Code.

One Consequence of the Self-Drafted Will- Costly Litigation

When Ms. Aldrich passed away, her brother filed an action and claimed that he should get the entire estate, including the inheritance from the sister. He was met with opposition from two nieces. The nieces argued that Florida intestacy laws should apply to the inheritance because the form will did not mention or cover inheritances. Note: Intestate means a person died without a will. Florida intestacy laws determine who will inherit the decedent’s assets.

The Court’s Finding

The Florida Supreme Court found that Ms. Aldrich’s after-acquired property shall pass by intestacy. Applying Florida intestacy law to this case, Ms. Aldrich’s inheritance passes to her two nieces even though her note clearly stated that she wanted all of her “worldly possession” to pass to her brother.

Justice Barbara Pariente wrote a separate opinion to underscore what she saw as problems from using the simple will form. See the Court’s opinion at the following link: sc11-2147. 

The Moral of the Story- Caveat Emptor

You are own when you decide to write your own will using online software or pre-printed templates. Ms. Aldrich’s choice to use a commercial will, instead of hiring an attorney, prevented her wishes from being carried out. Her story highlights the dangers of using pre-printed forms and drafting a will without legal assistance.

Additionally, her choice sparked litigation that cost many times what she saved by using the generic form. The advice of an attorney may cost more but we advise you on the best way to protect your family and distribute your assets according to your wishes. We do more than just draft the document. As illustrated by this story, the ultimate cost of drafting your own will has the potential to surpass the cost of hiring a lawyer from the beginning. It is not worth it to learn the hard way and cause unnecessary headaches and legal expenses for your family.

Contact my office if you a Florida resident looking for estate planning or small business legal services.

[contact-form-7 404 "Not Found"]

After you say “I do,” make a vow to say “I will” about planning your estate

Date
Posted by
Comments0

Just married? Planning to be married? Congratulations! Estate planning is probably the last thing you want to do as a newlywed, but it is one of the smartest long-term decisions you can make. Planning your estate early on in the marriage will protect and care for your spouse. It can help avoid a host of potential issues and expenses down the road. Once you are married you should consider making a will, health care directives, and a power of attorney to appoint your new spouse. Once the babies start to arrive, your estate plan may need to be updated with trusts and guardians.

Newlywed vintage photo

Taking the time to sit down with your spouse and speak openly about your estate plans will ensure that, should the worst happen, your new family is prepared to handle the unexpected.

By beginning your life together with a sound estate plan, you not only help avoid potential issues and expenses in the future, but also gain the satisfaction of knowing you have provided a secure future for your new family.

If you already planned a wedding, planning for the future should be a breeze.

Call (407) 862-9449 or complete the Contact Form below to schedule a FREE ESTATE PLANNING ASSESSMENT! Mention this blog post to receive a special flat-rate for our Newlywed Estate Planning Package!

Abigail Edelstein, Esquire

Attorney & Counselor at Law

www.EdelsteinLawOffice.com

(407) 862-9449

[contact-form-7 404 "Not Found"]

3 Reasons Why Making a Will Should be Your New Year’s Resolution

Date
Posted by
Comments0

No matter how old or young, rich or poor, making a will should be one of your top new year’s resolutions. Below are three reasons why.

1. You decide who gets your assets.

A will ensures that your personal belongings and assets go to family or beneficiaries you choose. If you die without a will, your intended wishes may not be carried out because state law will decide who receives your assets.

2. You decide who will take care of your minor children.

Making a will is essential for individuals with young children. A will empowers you to choose a guardian to look after your minor children in the event that the unthinkable occurs. If a guardian is not appointed, the court will choose among family members or a state appointed guardian. There is no guarantee that the court will appoint a guardian that shares your morals and values. It is important to plan ahead and designate a guardian for your minor children in your will.

3. Because tomorrow is not promised.

If you die without a will you will be subjecting your family and loved ones to unnecessary confusion and anxiety at an already difficult time. A carefully written will ensures that, should the worst happen, your family will be protected and cared for.

If who gets your assets and who serves as the guardian of your minor children is important to you, then making a will should be one of your top new year’s resolutions.

By having an estate plan, you not only help avoid potential issues and expenses in the future, but will also gain the satisfaction of knowing you have provided a secure future for your loved ones.

Contact us online or at (407) 862-9449 to schedule a free estate planning assessment.We offer reasonable flat rate estate planning packages to fit your needs!

A little about me: I am an estate planning attorney. I am an Orlando native and an esteemed graduate of local educational institutions including Lake Brantley High School, Seminole State College, the University of Central Florida, and Florida A&M University College of Law. I am a member of The Florida Bar, the Central Florida Association for Women Lawyers, and the Orange County Bar Association. I am also an active volunteer in the Orlando community and serve on the board of directors for BASE Camp Children’s Cancer Foundation, an organization that provides support to children and families batting cancer and other hematological illnesses.

Let$ Get Fi$cal 5K

Date
Posted by
Comments0

Join us on January 17th for the inaugural Let$ Get Fi$cal 5K hosted by The Florida Institute of Certified Public Accountants for Central Florida.

All proceeds will benefit Base Camp Children’s Cancer Foundation.

I proudly serve on Base Camp’s board of directors. This wonderful organization provides a year-round base of support for children and families who are facing the challenge of living with cancer and other life-threatening hematological illnesses.

Click here to learn more about the programs and services Base Camp provides.

Click here for more information or to sign up for the race. We hope to see you there!

flyer snipet

 

 

 

Annual Report Reminder

Date
Posted by
Comments0

Annual reports are due by May 1, 2015. An annual report must be filed each year for your business entity to maintain an “active status” with the Florida Department of State. The report is used to update or confirm that the data on file with the Division of Corporations is current.

The fees for a timely filed report are as follows:

$150 for a profit corporation

$61.25 for a not for profit corporation

$138.75 for a limited liability company

$500.00 for a limited partnership or limited liability limited partnership.

A $400.00 late fee will apply to all of the above listed entities, except not for profit corporations, if their annual reports are filed after May 1st. The $400.00 late fee cannot be waived or abated.

Click here for an annual report overview and step-by-step instructions.

Click here to file your annual report online.

Happy New Year from The Law Office of Abigail Edelstein, P.A.!

Date
Posted by
Comments0

Happy New Year from The Law Office of Abigail Edelstein, P.A.! May 2015 be prosperous and bring many blessings!

As we move forward into a new year, we would like to offer advice and assistance for any legal issues you are experiencing or that may arise.

Our goal is to provide cost conscious and effective solutions, whether it is for a business transaction, a contract, or an estate planning matter. We work hard to provide you with the best outcome.

We are excited for the new year and want to provide solutions to your legal needs. Contact The Law Office of Abigail Edelstein, P.A. today for a free consultation! We can help start your new year off confident and bright!

(407) 862-9449

www.Edelsteinlawoffice.com