Introduction
 
The real estate industry indicates that cottage ownership in Michigan is at an all-time high.  Cottage owners enjoy many benefits of ownership. Cottages often appreciate at a faster rate than primary homes.  The owners also receive the enjoyment of a getaway where they can relax, unwind, and, perhaps most importantly, where they create a natural social gathering spot for children, grandchildren, extended family and friends.
 
Cottage legacy planning ensures that the cottage remains in the family for future generations. Proper planning for the cottage can help avoid negative tax consequences for the parents and their adult children and provide for the orderly transition of the cottage to the children.
 
A baseline tool of cottage legacy planning is that the parents need to convey the cottage to one of their trusts during their lifetime. This will keep the cottage out of probate and will allow for an orderly plan for the transition of the cottage to the children.
 
The Challenges
 
The key challenges in cottage legacy planning are:
 
  1. Avoiding an increase in the property taxes when the cottage passes from the parents’ generation to the children.
  2. Avoiding capital gains tax upon the appreciation that occurred during the parents’ ownership of the cottage.
  3. Simply and effectively providing for the payment of the annual expenses and taxes incurred through cottage ownership.
  4. Having a system in place that distributes use of the cottage among family members.
  5. Avoiding the threat to ownership that would result from a divorce, death, or disability of a child, tax lien, or judgment against a child.

 

Alternative Structures for Maintaining the Cottage in the Family
 
There are two primary alternatives for maintaining the cottage as a legacy during the life of the parents and following the parents’ passing. They are: 1) a trust; or 2) a limited liability company. The principal factors involved in selecting which of these alternatives should hold the cottage for the duration of the parents’ lives and following the parents’ passing include:
 
  1. Parents are able to impart their wishes for how the property is to be handled after death.
  2. Flexibility in changing the use of the cottage and other terms of the trust following the parents’ passing.
  3. Avoiding an increase in the property tax on the cottage due to events during the parents’ lives and following the parents’ deaths. This increase in property tax is often referred to as uncapping.
  4. Limiting the liability of the parents, the children, and the entity selected to own the cottage.
  5. The ultimate capital gain tax on the sale of the cottage.

 

Trust
 
Use of a trust can be employed to continue the ownership of the cottage within the family, manage the expenses, and dictate use of the cottage.
 
The transfer by the parents of the cottage to one of their trusts during their lives would not result in an increase in property taxes. This is permitted under new legislation in Michigan which came into effect on January 1, 2015.
 
The cottage would remain in one of the parents’ trusts following their passing. Upon the death of one of the children following the parents’ deaths, however, property taxes could increase.
 
The trust would provide for the contribution by the children of a pro rata share of the expenses, including maintenance and improvements, property taxes, insurance and utilities. If a child did not share in the burden of the expenses, after a period of non-contribution, that child’s interest in the trust would forfeit. This is intended to be a strong incentive to encourage contribution as opposed to causing forfeiture. Another alternative would be for the parents to leave a portion of their assets to provide for the payment of the annual expenses of the cottage.
 
A use agreement is necessary, either within the trust or as a separate document.
The trust would also maintain a policy of life insurance to buy out a deceased child’s interest in the cottage.
 
There are certain disadvantages to using a trust in legacy planning for a cottage. The primary disadvantage is that trusts offer little capacity for flexibility following the death of the parents. The children would be unable to alter the terms of the trust following the parents’ deaths, although this may be desirable in certain situations. A limited liability company would provide for greater flexibility in this regard. Another disadvantage is that a trust offers no shield against liability.
 
Limited Liability Company
 
Use of a limited liability company is the other alternative to continue the ownership of the cottage within the family and manage expenses and use. The mechanics of this include the creation of a “springing” limited liability company during the parents’ lives. The limited liability company would spring to life upon the death of the second parent --. At that time, the cottage would be conveyed to the limited liability company out of whichever of the parents’ trusts owns the cottage. It is believed that this will not result in an increase in the property taxes.
 
The children would enter into an agreement that provides for the remaining children to purchase the interest of the Cottage upon the death, divorce, bankruptcy, etc. of one of the children.
 
The agreement would provide that the limited liability company would maintain a policy of life insurance to buy out a deceased child’s interest in the cottage.
 
The agreement would also provide for the contribution by the children of a pro rata share of the annual expenses, including maintenance and improvements, property taxes, insurance, and utilities. If a child did not share in the burden of the expenses, that child’s interest would forfeit. Again, this is intended to encourage contribution as opposed to causing forfeiture.
 
The death of a child following the deaths of the parents can result in an increase in the property taxes. Michigan’s rules provide that when more than 50% of the ownership in limited liability company changes, the property taxes will “uncap”.
 
ACTION STEP:

If you are a cottage owner or the child of a cottage owner, it makes sense to explore the alternatives available for passing the cottage to the next generation. Planning now is critical to avoid undesirable tax consequences and to provide for the orderly ownership, payment of expenses, and use of the cottage in the future.

There are many reasons for placing your affairs in order. Some of the most important reasons include reduction of liability for estate tax, probate court avoidance, leaving a legacy for your family, and ease of administration. A very common situation we assist clients with is estate planning for a blended family.  Long gone are the days of The Nelsons, as blended families are much more common in today’s world.  Whether it’s due to a death or divorce, there are many reasons a blended family needs to have the proper documents in place.
 
There are many different types of blended families.  We often see families that consist of two spouses that each bring children into the second or subsequent marriage.  There are also families where one spouse has kids from a prior marriage and the other spouse does not have children.  Sometimes, that couple wants to have children together as well, or both spouses bring children into the marriage and then have a child together.  Furthermore, there are families that have both adult children and minor children.  Whatever the family dynamic, there are serious issues that need to be addressed.  It is preferable to resolve these issues before they become a crisis – say, before someone passes away or becomes incapacitated.  Failure to properly address these issues will result in a legal mess for a surviving spouse (and children).One very important question in blended families is what will happen to minor children.  A guardian and conservator needs to be named.  Often, there is another parent that needs to be taken into consideration.  Does the other parent share custody?  If so, it is unlikely that their ex-spouse can (or wants to) leave the children with anyone else.  If the other parent does not share custody, it is significantly easier to dictate that the minor children will stay with their step-parent (and usually their other siblings and/or step-siblings). 
 
Another important issue that needs to be addressed is how assets will be divided and distributed to children in a blended family.  Do assets get divided equally between all children of both spouses?   Do the children the couple had together get more than the other children?  Often, specific language is necessary to inhibit the surviving spouse from disinheriting  step-children.  Many things need to be taken into consideration here, including whether or not the children will receive anything from their other parent or their other parent’s trust or estate.  Perhaps there is one child (or more) that is estranged from the parent and who the parent may want to disinherit.  Some families wish for each parent’s individual assets to go to their own children only.  There are many moving parts and many issues at play.  The language addressing these issues needs to be very specific and is highly specialized on a case-by-case basis. 
 
Another complicated question is who will handle the administration of the parents’ affairs (wills, trusts, powers of attorney) after their death.  Some blended families appoint an adult child of each spouse to serve in a co-capacity. Preferably, these step siblings have a good head on their shoulders and are looked up to by the other children.  Some families want each parent’s own child to handle their own affairs and not their spouse’s.  Or, perhaps, the parents do not want to put any of their children in the position to be the fiduciary so as to avoid potential conflict with their siblings or step-siblings.  In that case, a non-child fiduciary makes the most sense.  Every family is different and these issues can be addressed by consulting with an experienced estate planning attorney and having the proper estate planning documents in place.
 
Action Step:
 
Failure to address these (and other) blended family questions can result in severe consequences.  If probate is needed, it will be guaranteed to be a long, expensive, and tedious process through the court system.  It also opens the door for fighting within the family, which can lead to hard feelings, family estrangement, and a parent’s assets going to children and stepchildren they did not intend.
 
Proactively addressing these issues will help eliminate some of the tension that can arise in blended families upon a death of one of the parents.

By having an estate plan, you can avoid placing a significant burden on your loved ones.  This burden includes deciding who will receive your property after your death and how your affairs will be administered if you are unable to carry on during life. Failure to plan ahead can result in high legal costs and a long, drawn-out process associated with probate, both during your life and after your death. It is our hope that this article will inform people of some of the less obvious reasons to meet with an estate planning attorney.
 
1.  Placing your Affairs in Order is Much Less Expensive than Doing Nothing
One of the most common concerns associated with estate planning is the upfront cost. Although drafting a concise and effective set of documents is not without cost, it is far less expensive than not having a plan in place. An experienced attorney can ensure that your fees are kept as low as possible while drafting a personalized set of documents including a will, trust, powers of attorney, and the other documents that are required to meet your needs.
 
 
2.   Michigan Law is Particularly Unforgiving for Those who Do Not Have an Estate Plan
The law of estates and trusts varies greatly between the states. Michigan is a state that greatly benefits those who have a formal estate plan and punishes those who do not. When someone dies without a will, a decedent’s property passes through what is called intestate succession. Under intestate succession, a decedent’s property is distributed at a formal probate court proceeding to the decedent’s surviving spouse and/or heirs automatically, and in amounts determined by law. This proceeding is quite complex and requires significant attorney participation, which can get quite expensive.  Many individuals do not realize that even if they have a will, probate court is still required to administer the estate, assets, debts and expenses. By drafting an estate plan that includes a living trust, formal probate proceedings are avoided, and typically all the decedent’s property can be distributed without any probate court involvement whatsoever.
 
 
3.  Estate Planning Addresses Life Events, Not Just Death
Another common misconception is that healthy, young people don’t need an estate plan.  Estate documents address life events and death events. A well-designed estate plan contains documents that will allow a loved one to make medical decisions for you and prevent loved ones from having to guess what you would have wanted should serious illness or injury occur. The living trust and the power of attorney permit a family member, as opposed to the probate court, to help with decision-making and long-term care arrangements. In addition, all assets, income, expenses, insurances and other financial obligations can be handled smoothly and inexpensively.
 
 
Action Step
Determining an individual’s unique situation and what documents are needed is typically outlined with clients in the first meeting. It makes good sense for individuals and couples to contact an estate planning attorney to get the process underway sooner rather than later.

 

Employment applications, employment agreements, and employee handbooks are sometimes neglected by business owners who hire employees.  When used in together, a properly drafted employment application, employment agreement, and employee handbook can be effective tools to protect the Company and shield the business owner from some of the risks associated with maintaining employees. 
 
Employment Applications
An Employment Application provides the key information on a prospective hire and grants authority to investigate the prospective hire’s credit, criminal, civil and employment background.  In addition, it sets forth the Company’s at-will employment policy and permits the Company to discharge the employee if he or she falsified information in the employment process based upon after-acquired evidence.

Employment and Engagement Agreements 
An employment or engagement agreement is a contract used to establish the rights and responsibilities of both a worker and the Company.  Properly drafted employment agreements can protect the Company by establishing and addressing the following:
 
  1. Whether the worker is at-will.
  2. The relationship between worker and employee.  Specifically, the agreement should define whether the worker is an employee or an independent contractor.  If a Company decides to classify a worker as an independent contractor, it is important that the terms of the engagement and the terms of the agreement meet specific requirements under the IRS guidelines that allow the worker to be classified as an independent contractor; 
  3. The responsibilities and duties of both the employer and the worker;
  4. The payment structure for the worker. The agreement should also clearly establish how commission is earned and paid, if applicable;
  5. The procedure for termination of employment or engagement by either employer or worker; and
  6. Appropriate, non-disclosure, nonappropriation, confidentiality, non-solicit and/or non-compete provisions and work made for hire should be included to protect proprietary information, current customers and prospects of the business, and protect the Company from predatory business practices.  
 
Employee Handbooks
Employee handbooks help to provide a strong basis for defining the relationship between the Company and its employees.  Employee handbooks can benefit a Company in the following ways:
 
  1. Provide an in-depth description of company policies and employee expectations beyond what is contained in the employment agreement;
  2. Address industry specific, applicable federal and state laws, and protect the Company and employees by  articulating that the Company will adhere to these laws and regulations; and 
  3.   Protect the company from potential disputes regarding the expectations of employees. 
 
Employment agreements and employee handbooks should be used together to establish employee expectations, maintain employer/employee relations, and to protect the Company and its employees.  An effective employment agreement often references the employee handbook or incorporates the handbook as part of the agreement by reference. 

Agreements and handbooks should always be specialized based on the type of business, the types of employees/independent contractors, and the culture and expectations of the company.  Therefore, we do not recommend using the internet to find a generic employment application, contract or handbook. Instead, working with qualified professionals such as a business law firm and a human resources firm ensures that the agreements and handbook are drafted to meet each specific business’ legal and human resources needs.  When properly drafted, used, and upheld, these documents can protect the business from potential issues with current and former employees.  
 
 

Franchising is a business model that companies use to expand their brand or system. If a company (the “franchisor”) is franchising to expand, it packages and sells its business concept – with varying degrees of support – to individuals (“the franchisees”).  The franchisees, in turn, initiate the franchise business and pay a franchise fee and royalties to the franchisor. The franchisor will have detailed written disclosures and contracts it uses to engage franchisees who wish to buy into the system.
 
During and immediately following the Great Recession, many people have concluded that they want to own and run their own business. This stems, in part, from individuals who were formerly employees who wish to have more control over their future. The workplace became, and to some degree still is, unstable due to a variety of forces, some of which are cultural.
 
Buying a franchise is a life decision that involves a variety of important factors including, but not limited to, suitability, financial, and legal issues. The key legal issues in considering whether or not to buy a franchise include:
 
1.             The “legal” and business reputation of the franchisor.
 
-       How has the franchisor dealt with franchisees in legal disputes?
-       Has the franchisor generally been compromise or combat oriented?
-      Talk to and visit recent franchisees to inquire into their experience with the franchisor.
 
A good legal and business workup on the franchisor will reveal much, which is important in advance of paying a significant sum of $100,000 or more for a franchise.
 
2.      Discover all the hidden costs, the franchisee’s finances and financial commitments,   understand the market, and the competition in your local area.
 
-       Is it a business which is easy or more difficult for others to enter?
-   Conduct thorough due diligence of the franchise you are looking to purchase, so you’re able to make an informed business decision.
 
3.             Know the franchise agreement.
 
-       Your franchise agreement will have a big impact on whether or not your franchise succeeds.
-       You should know how it’s drafted and whether it contains an exit opportunity.
-   You should know the proper disclosures, any territorial restrictions, fees, and obligations you have as a franchisee.
-        You should know what happens if there’s a breach of contract and your recourse for misrepresentations or failures on the part of the franchisor to provide support.
 
4.              What happens to your franchise if the franchisor is acquired by another company?
 
-       Can the acquiring company change the name of your business without your permission?
-       Who pays for all of the costs and lost business traction that results from a name change?
 
5.             Can you sell your franchise to a third party without undue restriction?
 
 
A franchise may be a good choice for some but not others. A thorough investigation will help you to sort through the issues and risks in relation to your own situation.

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About Us

The Firm, deeply rooted in Livingston County, has its origins in 1994 when it was founded by Tim Williams.  After having practiced predominantly in tax law for many years with larger firms, Tim decided to start a new firm that centered around working with people rather than with only highly complex tax issues. The Firm is centered in working with entrepreneurs and individuals with a personal touch.  The goal of the Firm has always been to create a relationship-driven rapport with its clients to establish long-lasting, personal relationships.  From the time it was founded, the Firm has specialized in business law and estate planning and probate practice.  Many of the Firm’s clients rely upon its attorneys for business guidance as well as legal counselling. The Firm has always made it a priority to devote time to giving back to the Livingston County community and its residents by working with and giving to charitable and service organizations.  The firm plans to continue to grow its client base in Livingston County and the surrounding areas.

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