Welcome to the Massingill blog. Here’ll you’ll find frequently published articles on important topics relating to business law, healthcare business law, and family estate planning. Not finding the information you need? Book a consultation. Our friendly and helpful legal staff will answers your questions and get you on the path to solutions.


| Read Time: 4 minutes | Articles

Business Defamation—Everything You Need to Know

A business’s reputation can lead to either great success or complete failure. Now, when a disparaging comment can be made instantly online and dispersed to thousands, your business may suffer significant harm with the click of a button. When someone makes a false claim about your business, you want to do as much as you can to protect your reputation. This article provides information on the types of claims you can bring, Texas defamation laws, and how to avoid business defamation.  What Is Business Defamation? Defamation is when someone makes a false statement about a person or entity and causes damage to their reputation. These statements can be either written (known as libel) or spoken (known as slander). If a person spreads false information about your business that causes harm, there are two possible claims you can file: defamation and business disparagement. The differentiating factor between the two claims is who suffers the harm. A defamation claim alleges harm to an individual’s reputation. For example, the individual could be the business owner. Business disparagement claims, on the other hand, allege harm to a business’s economic interest. As the Texas Supreme Court summarizes, “The two torts differ in that defamation actions chiefly serve to protect the personal reputation of an injured party, while a business disparagement claim protects economic interests.” It is possible to file both types of claims to protect your personal reputation and recover economic losses to your business. At Massingill Attorneys & Counselors at Law, we can help determine which type of claim makes the most sense for your business. Texas Defamation Laws To be successful in a lawsuit for defamation or business disparagement, the plaintiff must prove all elements of the claim.  Elements of a Defamation Claim  To prove defamation in Texas, the plaintiff needs to show evidence of three elements.  Defendant published a false statement The false statement can be either written or spoken. Keep in mind that a negative comment about your business is not the same as a false statement. Statement was defamatory toward the plaintiff A statement is defamatory when it harms the reputation of a person or entity. Defendant acted with required degree of fault Depending on who the plaintiff is, the defendant must have made the statement with a certain level of fault. For private individuals, which is likely how a business owner will be classified, the degree of fault is negligence. When the plaintiff is a public official or public figure, the defendant must have acted with actual malice. There is a one-year statute of limitations to file a lawsuit for defamation in Texas. If your business suffers economic harm more than a year after the false statement is made, you may be able to file a business disparagement claim. Elements of a Business Disparagement Claim  If your business suffered economic losses because of a false statement, you may consider filing a business disparagement lawsuit. This type of claim requires a plaintiff to prove the defendant did the following: Published false or disparaging information about the business, Acted with malice, Lacked privilege to make the statement, and  Caused special damages to the business.  Let’s explore each of these elements in detail.  Publication of false/disparaging statement First, the statement must be published, meaning the disparaging words could either be spoken or written to someone. False comments made in a private conversation likely will not count.  If a person makes a true statement that harms your business, you will also not have a valid claim. The comment must be false.  Malice Malice is the intent of the defendant. The person or entity making the comment must have known it was false, or not cared whether or not it was false, and made the statement anyway.  Lack of privilege If the defendant had a legal privilege to make the false statement, then the business disparagement claim will fail. Examples of privilege include statements made under oath during a judicial proceeding or statements made by members of state or federal legislatures during debates.  Special damages The plaintiff must show that the business suffered special damages as a direct result of the disparaging statement. This means that you must be able to prove economic loss to your business. The defendant’s actions must have stopped others from doing business with you. There is a two-year statute of limitations to file a business disparagement lawsuit in Texas. How to Avoid Business Defamation A hurdle for businesses is tackling online defamation. From Yelp to Google reviews, the opportunity to spread false information is huge.  As a preemptive measure, you may include an anti-disparagement provision in your contracts with customers or clients. However, this would only apply to parties to the contract. Some businesses hire a reputation management service. These companies go after those publishing defamatory information and threaten legal action. They also have the ability to publish enough positive information about your business, using search engine optimization (SEO) tools, to bury the false statements.   If the damage has been done, your only option may be to file a lawsuit for defamation or business disparagement. Remember, not everyone is going to like you. You won’t always be able to prevent someone from making a negative comment or review about your business.  Contact a Business Defamation Lawyer Today Defamation against a business can have long-lasting personal and economic impacts. If you or your business has suffered harm from a false statement, contact Massingill Attorneys & Counselors at Law.  Texas defamation law can be tricky, but we take pride in simplifying the complex so you feel confident in our representation. With over 100 five-star Google ratings, we continue to deliver quality work to our clients. For a free consultation, call our office directly at 512-601-6794 or contact us online.  

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| Read Time: 3 minutes | Articles

What Makes a Will Valid in Texas?

All adults should have a will. Your Texas last will and testament allows you, rather than the state, to determine what should happen to your assets if you pass away. But if you do not follow Texas will requirements, the document will not be valid.   What Are the Texas Will Requirements? To be binding and enforceable your will must meet Texas will requirements. For instance, Texas statutory law and case law required that to make a valid will in Texas: You have legal capacity, You have testamentary capacity, and You have testamentary intent. Let’s look at each of these requirements in terms of what they mean for Texas will requirements. Legal Capacity Legal capacity means that the court recognizes you as an adult at the time you made your will. This occurs in one of three ways. You have the legal capacity to make a will if you: Are at least 18 years old,  Have been legally married (even if not 18), or Are a member of the US military. So long as you meet at least one of the criteria above, you are assumed to have the legal capacity to create a will under Texas will laws. Testamentary Capacity Texas will requirements state that you must be of sound mind when you make your will. This is different from legal capacity in that it is not addressing whether you are a legal adult but instead whether you have the mental ability to understand what it means to create your Texas last will and testament. The courts want to be sure that when you created a will, you understood things such as: What a will is and its impact; What your personal property is; Who your relatives are, and how they will be impacted by your will or lack thereof; and Who you want to give your assets to. Capacity is meant to protect those who may not understand Texas wills from having others take advantage of them to control their estate.  Testamentary Intent At the time you sign your will, are you intending fully and truly to make a legally binding document of a Texas last will and testament? If yes, you have met Texas will requirements regarding testamentary intent. However, if you are making the will as a joke, for instance, then the courts of Texas will find a lack of testamentary intent. Other Legal Requirements Capacity and intent are vital aspects of Texas will requirements. There are, however, additional Texas laws to be aware of. For instance, a will must be in writing. There are options for handwritten and typewritten wills. In addition, there are rules relating to signatures and witnesses. Courts will scrutinize every aspect of a will before declaring it valid. Using a Texas Will Template: Beware If you use a Texas will template, you are at great risk of failing to meet Texas will requirements. Individuals often end up with templates that are not up to date legally or executed properly. If this happens to you when you pass away, your loved ones will be left with a last will and testament Texas courts will not honor.  Attorneys Specializing in Wills in Texas To create a document that meets all Texas requirements, work with a law firm with expertise in estate planning.  A Texas attorney who concentrates their practice on wills, trust, and estates can ensure that: You have a good analysis of your estate, upon which to create your will; You have a legal professional to answer all your questions during the process; You have a relationship with that attorney, who can later update your will as needed; and, most importantly, You have a Texas last will and testament that fully meets all Texas will requirements. Creating a valid will in Texas is a complex process for someone who does not specialize in this area. Those who create a last will and testament must execute all Texas will laws to a T. Remove the stress and uncertainty of this process by working with a law firm that continually receives rave reviews. Then, you can focus on making sure your wishes are known, while they make sure you end up with a legally valid Texas last will and testament.  Massingill Attorneys & Counselors at Law: We Make It Simple Massingill Attorneys & Counselors at Law specializes in meeting the legal needs of Texas residents. Because of our flat fees, collaborative nature, and trusted legal excellence, we continually maintain a 5-star rating by clients. Call us today at 512-410-0343 or book an appointment online. We offer video, phone, and in-person consultations and make it easy for you.

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| Read Time: 4 minutes | Articles

Forming a Corporation in Texas? Here’s What You Need to Know

When you start your own business, you’re probably worried about simple things, like how to attract customers and turn a profit.  As your business grows and develops, you might find yourself thinking about incorporating your business.  Before you incorporate your business, however, you need to be well-informed about the details of the process.  On top of that, you need to learn about the different incorporation options that are available.  Finally, you need to carefully assess your business goals and evaluate what your priorities are.  Read on to learn about how to form a corporation in Texas and how a qualified business formation lawyer can help you achieve your business objectives today.  To get in touch with our team, please contact us online or call (512) 410-0343 to get started. How to Form a Corporation in Texas There are several important steps to forming a corporation in Texas. Step #1 — Know Your Options The first step is understanding the two types of for-profit corporations. All for-profit corporations have several characteristics in common, namely: The issuance of transferable shares of stock to officers and shareholders; Management roles; Corporate entity longevity; and Limited liability.  However, each corporation type offers its own unique advantages and disadvantages.  C corporation A C corporation (C corp) is the default form of corporation. Because they are the default form of corporation, C corps are easier to create. This means less paperwork to worry about.  Another advantage of a C corp is that you can have an unlimited number of shareholders. This may allow you to more easily raise funds through stock offerings.  The greatest disadvantage of a C corps is double taxation. Specifically, your company’s revenue is taxed twice—first when your company makes the revenue and again when you file your personal tax return. Unlike some other business structures, like sole proprietorships, C corps do not allow tax write-offs for corporate owners on their personal tax returns.  However, not all the taxation consequences of C corps are negative. You can deduct certain employee benefits, like health and dental insurance. Finally, the 2017 Tax Cut and Jobs Act reduced the corporate tax rate to 21%.  S corporation An S corporation (S corp) is a newer kind of corporation type that emerged in the middle of the last century. Because C corps are the default corporation structure, you can form an S corp only after filing an additional form, Form 2553, with the IRS. S Corps also have to meet additional requirements. For example, S corporations in Texas cannot have more than 100 shareholders, and none of these shareholders can be corporations or foreign citizens. S Corps can offer only one class of stock.  On the other hand, S corporations avoid double taxation, so corporate revenue is taxed only when it passes to the individual shareholders. An S corp’s revenue is taxed at the individual income tax rate of each shareholder, which may in some cases be lower than 21%.  In general, you should incorporate as a C corporation in Texas if you want to grow your business into a larger company that can benefit from unlimited numbers of shareholders. Conversely, you may want to file for S corporation status if you don’t expect to have too many shareholders and wish to benefit from lower taxes. Step #2 — Choose a Name for the Corporation Once you have chosen the type of corporation that is right for your situation, you need to pick a name for your company. Under Texas law, your corporation’s name has to comply with certain rules. These rules include the following: Your company name must include the word “corporation,” “company,” “incorporated,” or “limited” (abbreviations are acceptable); Your company name cannot include the words “lotto” or “lottery”; and Your company cannot imply that it is created for the benefit of war veterans or  their families, and use words like “world war,” “veteran,” “legion,” or “disabled.” Assuming you meet those requirements, your company name must also be unique—that is, there cannot be another company in the state operating under the same or a similar name. Once you have a name, you can check the Texas Taxable Entity Search Tool to see if that name is available.  Step #3 — Pick a Registered Agent When you create a corporation in Texas, another critical step is hiring a registered agent.  Registered agents serve to accept official correspondence—including government documents, tax forms, and legal notices—on behalf of your business. The registered agent then forwards these documents to the corporation.  Texas law requires that each corporation designate a registered agent. However, registered agents can be easily found online and usually range from about $100-$300 per year.  Step #4 — Establish Your Corporation’s Initial Management To file a certificate of formation in Texas, you must have at least one director. Directors play an important role in the management and administration of the company. Their goals include establishing the bylaws that define the business’s operating procedures and participating in periodic meetings. Texas law requires that directors be natural persons (meaning they cannot be a corporation, trust, or non-profit organization).  Step #5 — File a Texas Certificate of Formation  Once you have successfully filed Form 201 (also called a certificate of formation), your corporation will officially come into existence. The form itself covers a wide range of different matters, including the number of authorized shares, the par value of those shares, and the purpose of the corporation.  At this essential stage, it’s highly recommended to consult an attorney to make sure that you are filing the form in compliance with all state laws.  Once you have completed the form, submit it in duplicate to the Texas Secretary of State along with the $300 filing fee. Alternatively, you can submit it on SOSDirect, Texas’s online business service.  Have More Questions About Forming a Corporation in Texas? Knowing how to form a corporation in Texas is easier than actually doing it. The good news is that a qualified business attorney can walk you through all the...

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| Read Time: 3 minutes | Articles

FAQs: Living Trusts in Texas

When it comes to estate planning, most people have heard of a last will and testament. While this is certainly a popular option for handling one’s estate, it is by no means the only option. In fact, a comprehensive estate plan will likely include both a will and a trust. What Is a Texas Living Trust? Broadly speaking, a trust is a legal entity organized to control your assets. A revocable living trust in Texas is a specific kind of trust that allows you to retain control of the assets you place into the trust while you’re still alive. Living trusts are a flexible option for managing your estate because you control which assets to put into it. For example, you could decide to transfer the title of your home and car to your trust. From that point on, the trust would own your house and car. Who Manages a Trust? When you set up a living trust as the grantor, you designate both trustees and beneficiaries. You can designate the same person as both a beneficiary and a trustee, and you can even name yourself as a trustee and beneficiary. Ultimately, the trustees are responsible for administering the trust for the benefit of the beneficiaries. They do this by following the instructions you set out in the trust formation documents. A Texas family trust is a popular option where only family members are listed as beneficiaries. What Is the Cost of a Revocable Living Trust in Texas? The cost of establishing a living trust will depend on a number of factors, including: The complexity of your estate and the number of assets you want to transfer into the trust; Whether the trust includes a spouse or significant other; and Whether you hire an attorney. It is possible to set up your own Texas living trust using an online service. However, doing so does come with some risks since you can’t take advantage of the experience of an estate planning attorney if you have questions. What Is a Revocable vs. Irrevocable Living Trust? A living trust in Texas can be either revocable or irrevocable. A revocable living trust gives the grantor the ability to modify the trust at any time. By contrast, an irrevocable living trust can only be modified with the consent of the beneficiaries. Living Trust vs. Will in Texas? While both wills and trusts provide for the disposition of your property, there is one major difference. Where a will is only effective after you die, a living trust becomes effective as soon as you transfer property into it. You can also make changes to your living trust while you are alive. What Are the Benefits of a Living Trust? Privacy is a major benefit of a living trust. The process of administering a will, called probate, is available in the public record. A trust, on the other hand, remains private. Revocable living trusts in Texas are also much more flexible and do not require all of the same formalities associated with changing and executing a will. Contact an Estate Planning Lawyer Setting up a will and trust is just one part of a complete estate plan. Massingill Attorneys and Counselors at Law offers flat-fee pricing on our will or trust-based estate plans. We will work with you to develop the best estate plan for your needs. Contact us today online or at 512-410-0343 to book a free consultation.

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| Read Time: 4 minutes | Healthcare Business Law

Physician Employment Contracts and Your Healthcare Business

Over the years, doctors signing physician employment contracts with small practices has become increasingly commonplace in Texas. Retaining a physician employment contract attorney’s services to identify the obligations and expectations of either party to physician employment agreements can minimize future disputes.  For assistance, please don’t hesitate to contact our firm online or call (512) 410-0343 today. What Is a Physician Employment Contract? A typical physician contract agreement dictates the relationship between a physician and their employer. These employment contracts provide provisions outlining the terms of employment, such as compensation, job requirements, benefits, termination, non-compete clauses, and professional liability insurance. The terms of all physician employment contracts are negotiable and ensure the final agreement is fair to both parties.   Important Terms in a Physician Employment Contract There are several typical provisions you should consider when drafting a physician employment contract. Duration Physician employment contracts can specify the length of time the physician will provide services for your healthcare business. Additional terms may address other considerations relating to the duration of a physician employment contract, such as  whether the term can be automatically renewed or what notice is required for cancellation. Services Ensure that the contract includes a detailed description of the expectations of the physician. This may include details such as The type of medicine the physician will practice, The number of hours the physician must work each day or week, and The physician’s on-call obligations.  It may also address whether you will expect the physician to undertake outpatient care or administrative duties. Compensation What will be the compensation for the physician you hire? Compensation elements in physician employment contracts may cover a few areas. Base compensation  Base compensation is a guaranteed salary. However, base compensation is a negotiable element of physician contracts. Negotiations regarding base compensation must always consider state and federal compliance, industry pay standards, and inflation if the contract reflects multiple employment years.   Productivity incentives Productivity incentives base compensation on productivity. These types of incentive clauses in physician contracts must include a clearly defined productivity formula for calculating payment. Productivity measurements must consider the equitable scheduling of patients and not negatively impact the quality of patient care. Benefits You may include benefits in your physician employment contract or agreement, such as: Retirement,  Health insurance,  Disability,  Reimbursement for travel or continuing medical education,  Paid time off,  Vacation, and  Sick pay.  Depending on the physician you plan to hire, you may wish to include these types of benefits in your physician employment contract. Other benefits Other types of bonuses might include student loan reimbursement, reimbursement for relocation expenses, severance pay, and many others. These types of benefits may incentivize employment with your healthcare business.  Buy-in clause Buy-in clauses provide physicians the opportunity to buy into your business. Determining whether or not to include this type of clause in your physician employment contract requires careful consideration of employees’ buy-in parameters and requirements.  Physician employment contracts may vary; however, clearly defining compensation details assures clarity between you and your employee.  Termination Rights Every contract should include a termination clause outlining the terms and conditions of terminating employment. For example, early termination may be permitted “for cause” or “without cause.” Circumstances prompting early termination may include: Revocation of medical license,  Malpractice,  Drug use,  Violations of the physician contract, and  A felony conviction.  Additionally, without-cause provisions may provide that either party may terminate the agreement if sufficient notice—for example, 60 days—is provided.  Professional Liability Insurance Typically, the employer will insure the physician employee with professional liability insurance. Professional liability insurance considerations to address in the employment contract might include the following: Type of insurance, The amount of coverage, and Whether coverage continues after the physician leaves employment.  Since both the employee and the physician are liable to a patient, carefully review professional liability insurance obligations.  Non-Compete Clause A non-compete clause in a physician employment contract limits an employee’s ability to work elsewhere after employment termination. Special conditions exist for valid non-compete clauses in employment contracts, including the following:  They must be limited to a reasonable geographic area;  The scope of the restrictions must be reasonable; and Their applicability must be limited to a reasonable time frame.  An experienced business law attorney provides industry-specific guidance on non-compete clauses in physician employment contracts.  Dispute Resolution While disputes between parties to a contact may resolve in court proceedings, you may consider including an arbitration clause in your physician employment agreement. Arbitration is generally a less expensive and more efficient resolution to disagreements than litigation. An experienced healthcare business attorney can help you determine whether an arbitration clause is appropriate for your physician employment agreements.  Why Should Employers Have Their Contracts Reviewed?  Retaining a skilled business attorney’s services to review your physician employment contract protects you and your business. Failure to properly identify responsibilities and obligations in a physician employment agreement can result in disagreements and, potentially, litigation.  It’s important to critically analyze compliance with federal and state laws to prevent exposure to potential violations. Also, an attorney may provide insight as to the following areas:  Fair market value compensation,  Creating and reviewing compensation plans, Non-compete clauses, and Dispute resolution and litigation.  The attorneys at Massingill Attorneys and Counselors at Law ensure you create a comprehensive physician employment contract protecting your business interests and interests. Employers need to address these and multiple other issues regarding physician employment contracts before offering an employment contract.  Why Massingill Attorneys and Counselors at Law?  The attorneys at Massingill Attorneys and Counselors at Law possess extensive experience in business and healthcare law across Texas. We understand the expense and stress resulting from a weak contract. That’s why we draft rock-solid agreements for our clients, protecting you and your business from future litigation. Additionally, we revise existing contracts and review new contracts to remedy gaps in potential liability.  Massingill Attorneys and Counselors at Law provides superior legal services to clients for reasonable fees. We understand how important your business is to you. Contact us today or call our firm at (512) 410-0343 to discuss...

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| Read Time: 5 minutes | Business Law

6 Questions to Ask a Lawyer When Starting a Business

Thinking about starting a business can be exciting. But there is no doubt that getting a business up and running also requires a lot of hard work. And while you may be tempted to do it all on your own, it never hurts to ask for help from a professional—in fact, doing so can ease much of the stress and uncertainty that comes with formally setting up a business. Before you start your own business, there are a number of things you should know. But don’t feel like you have to figure it all out on your own. Instead, contact an experienced Texas business law attorney today to help you get the answers and assistance you’re looking for. The team at Massingill Attorneys & Counselors at Law can help you at every step along the way. Send us a message or call (512) 410-0343 for assistance. As you get started, here are six questions to ask a lawyer when starting a business.  1. Can I Name My Business Whatever I Want? For many people who want to start a business, what to name the business is one of the first decisions they will make. However, formally selecting your name is not always so simple.  Sometimes, an aspiring business owner may have a name in mind only to discover that it is already being used by another business in the area. And even if your proposed name is not identical to any other business names, you still may be precluded from using it if it is not sufficiently distinguishable from other names.  This can certainly complicate matters. Thus, before you set your business name in stone, first consult with a small business attorney who can help you determine whether your desired name is available.  An experienced lawyer can help you run a name availability search to ensure that your proposed name is available and distinguishable from other names already being used. 2. What Do I Do If My Desired Business Name Is Available But I’m Not Quite Ready to Move Forward? If your proposed business name is still available, this is great news! But sometimes, you may not be ready just yet to take the next steps to formally set up your business. In this scenario, you may be wondering whether there is anything you can do to reserve your business name. Fortunately, the answer to this question is yes.  In fact, the Texas Secretary of State permits online reservation of names for any type of filing entity. A business entity reservation is effective until the 121st day after the application is accepted. This can give you some extra time to prepare for the next steps while also keeping your preferred name on hold in the interim.  3. What Type of Business Entity Should I Select? There are many types of entities to choose from as you look to form your Texas business. These include:  Sole proprietorships,  General partnerships,  Corporations,  Limited liability companies (LLCs),  Limited partnerships, and  Limited liability partnerships. Each one will have its benefits and drawbacks. But which entity type is right for your business? The type of business entity you select will depend on a number of factors. Some of the factors to take into consideration include:  Whether you plan to have employees;  Desired tax treatment for the entity;  Whether you plan to own and operate the business yourself or with one or more business partners; and What personal liability protection you want.  Of course, this is not an exhaustive list. Depending on the needs and desires of your business, there may be many other factors you’ll want to consider as well as you select your entity type.  Give our Texas business formation attorneys a call today to discuss what entity type might best fit your business’s needs. Our team is here to answer any legal questions you may have about starting your business. 4. What Formation Documents Do I Need to Get Started? To set up your new business, there are certain formation documents you will want to have prepared. In many cases, you will need to file what is called a certificate of formation with the secretary of state to formally create your business entity. Examples of other documents you might consider preparing include bylaws for a corporation or an operating agreement for an LLC.  While these are not required, it is highly recommended to have these types of documents in place for your business. They will allow you to more clearly delineate the business entity’s policies and procedures. While these types of formation documents can seem intimidating, they are crucial to the success of your business. Thus, make sure to work with an attorney who can help you understand and create the documents that you will need.  5. Are There Any Other Documents I Will Need for My Business?  No matter what type of business you plan to create, one thing is certain—there will be various documents and contracts that you need throughout the life of your entity. In fact, the key to most successful businesses is the existence and implementation of legally sound contracts and agreements. Examples of contracts that are found in many businesses include:  Employment contracts,  Independent contractor agreements,  Severance agreements,  Nondisclosure agreements,  Noncompete agreements,  Partnership agreements,  Buy-sell agreements, Sales contracts,  Security agreements,  Property and equipment lease agreements, and Indemnity agreements. As these are legally binding agreements, it is always best to have any necessary documents prepared by an experienced legal professional. Failure to do so could result in disputes, and even lawsuits, in the future. 6. Should I Protect My Business’s Intellectual Property?  The short answer is absolutely! Protecting your business’s intellectual property is essential to its growth and success moving forward. Many people mistakenly believe that they do not need to protect their intellectual property until their business is more well-established. However, this is not the case at all.  Protecting and safeguarding your valuable intellectual property can be a great way to gain goodwill in your business and better prevent infringement by...

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| Read Time: 6 minutes | Estate Planning

Why Estate Planning Is Important in Texas

Many think that estate planning is only for the ultra-wealthy, but that is simply not the case. If you have assets, you have an estate. If you have an estate, you need a plan. For assistance, please don’t hesitate to contact our Texas estate planning attorneys by sending us a message or calling (512) 410-0343 today. Below we will explain why estate planning is important in Texas. What Is an Estate Plan? An estate plan is a set of documents that directs others on managing your assets during your lifetime and at death. Part of estate planning includes developing instructions on your financial and medical care if you are unable to make those decisions. Your estate plan may comprise a combination of the following documents: Last will and testament, Advance power of attorney, Living will,  Medical power of attorney, and  Trusts.  At Massingill Attorneys & Counselors at Law, our goal is to make sure your intentions are clearly defined in your estate plan. We achieve this by incorporating multiple document types.  Last Will and Testament A will is your final chance to speak. This legal document communicates your wishes and instructs your executor on how to distribute your assets. Your will is only effective once you die, and only assets solely in your name (also known as probate assets) are subject to the terms of your will. With this document, you can do the following: Gift specific property, cash, or other assets; Appoint your executor; and  Designate a guardian for any minor or disabled child.  Texas has its own unique requirements for a will to be valid. That is why it is advantageous to consult with an attorney to assist you in creating your will.  Financial Power of Attorney A power of attorney is a document that authorizes another person to manage your financial affairs on your behalf. There are several types of powers of attorney that are available based on your needs and goals. Powers of attorney can be broad or limited in scope and can take effect immediately or when a certain event occurs, such as incapacity.  A financial power of attorney can help protect you from financial abuse if you become incapacitated. Texas has a statutory form available, but it is best to speak with an attorney to fully understand the implications of the document before you sign. Living Will A living will, also known as an advance medical directive, provides end-of-life instructions. This document is meant to prevent confusion or disagreement among your family and health care providers with respect to how you want to be treated before you die. Typically, you would decide on the use of artificial hydration and nutrition, the use of breathing machines, whether you want to be resuscitated, and whether you want to be an organ/tissue donor. Medical Power of Attorney A Texas medical power of attorney allows you to appoint an agent to make health care decisions for you if you are unable to do so. Since the term “health care” includes a broad range of medical services, you may limit the agent’s power to only certain medical decisions. The document only goes into effect when a physician certifies that you lack the competence to make health care decisions. The health care professional must follow your agent’s instructions. Trusts Trusts are used for many reasons, but most commonly to pass assets to beneficiaries outside the probate process and protect against creditors. Trusts come in a variety of types, including living trusts, testamentary trusts, Medicaid trusts, charitable trusts, special needs trusts, and life insurance trusts.  These estate planning vehicles are attractive because the beneficiaries typically get their inheritance quicker and cheaper than through a will. With proper use, trusts can also provide certain tax advantages to both the testator (the creator of the trust) and the beneficiary. Why Do I Need an Estate Plan? Estate planning is important for many reasons, from protecting your hard-earned assets to providing for your family and minimizing taxes.  Peace of Mind Planning for your death may seem like a morbid task. It is. Discussing how you want to die and who should get your car may not be fun, but it is rewarding. Knowing you are making sound decisions about your assets and providing for your family should bring you and your loved ones peace of mind. Tackle the tough questions and decisions now, so your family is not left scrambling, during an already difficult time, to figure out what to do with your estate. Protect Your Assets Without an estate plan, you and your assets are not protected. You have worked hard for what you have, so take the time to shelter it from creditors, greedy family members, or divorce proceedings. As mentioned above, estate planning is both important and effective during your lifetime. The use of medical and financial powers of attorney can protect yourself and your assets from abuse. By incorporating wills and trusts into your estate plan, you continue to provide protection even after your death. Ensure Your Assets Go to the Intended Beneficiaries If you do not write your own will, Texas will do that for you. Under Texas intestate succession laws, your probate assets go to your closest living relatives. This highlights the importance of estate planning since your assets could pass to someone you may not want them to. Depending on who is surviving at your death, Texas will distribute your estate as follows:  If children survive, but not a spouse, then children inherit; If a spouse survives, but no children, parents, or siblings, then the spouse inherits; If parents survive, but no children, spouse, or siblings, then parents inherit; and If siblings survive, but no children, spouse or parents, then siblings inherit. The rules become more complicated when you have blended families or a mix of surviving parents, children, and siblings. There are several ways to avoid this type of distribution, such as executing a will, transferring your assets into a trust, or jointly owning property. Avoid...

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| Read Time: 4 minutes | Business Law

How Much Does a Business Attorney Cost in Texas

As a business owner, you’ve no doubt run into situations where you needed legal help. Due to the way most attorneys handle billing, it’s nearly impossible to figure out: Just how much does a business attorney cost? As a result, budgeting for legal help can be a challenge. Law firms rarely disclose their prices outright, and many operate on the “billable hour” model that offers little clarity to businesses needing to carefully plan their expenses. Fortunately, more business attorneys are moving to a “flat fee” model for billing, which offers much greater predictability to clients. Please don’t hesitate to send a message or call our experienced Texas business lawyers today at (512) 410-0343 for assistance. Flat-Fee vs. Hourly Billing The traditional method of charging for legal services is based on the billable hour. Under this model, attorneys track the time they spend working for a client in six-minute increments. Attorneys and firms with billable hours typically require a retainer to cover the cost of the project. However, the initial retainer may be set at an amount that doesn’t necessarily reflect the true cost of the project. Flat-fee billing, on the other hand, involves estimating the cost of the project before any legal work takes place. With this method, the client has a clear idea of how much their lawyer will cost before making a commitment. How Do Attorneys Calculate Flat Fees? Attorneys calculate flat fees using their past experience with particular legal issues. In general, attorneys will take into account: The type of legal services requested; How long they estimate the project to take; How difficult the project is; and Potential issues that could extend the duration of the project. Once the attorney estimates the approximate time, they will calculate a flat fee based on their hourly rate. How long something will take largely depends on the complexity of the legal matter at hand. For example, experienced Texas business attorneys may find it easy to estimate the cost of their business formation services because the process is relatively straightforward. However, if the legal matter involves a complicated contract issue, it may be more difficult to estimate. Is a Flat-Fee Billing Better Than Hourly? Flat fees aren’t necessarily cheaper than hourly rates, but they do offer a number of benefits to clients. When you buy other professional services, you often have the option of paying “per project” rather than by the hour. By bringing that concept to the legal profession, flat-fee billing gives clients the ability to make well-informed decisions about hiring an attorney. In other words, flat-fee billing significantly increases a client’s ability to properly weigh the cost of obtaining particular legal help. In some cases, an attorney’s services would be beneficial, but not strictly necessary. For a small business on a tight budget, flat-fee billing allows them to decide quickly whether to forego these types of legal services. In other situations, an attorney’s services may be all but required. When that’s the case, flat-fee billing allows clients to budget more effectively for that expense. Flat-fee billing also gives clients more confidence about how much their attorney is charging. Texas attorneys are bound by strict ethical rules when it comes to the fees they charge their clients. Unfortunately, not all attorneys act ethically, and some clients worry that their attorney will “inflate” their billable hours. Because a flat fee is set and agreed upon from the get-go, clients worry less.  All this isn’t to say that hourly billing is worse. Many business attorneys and firms with hourly billing can still estimate the cost of a project, even if they don’t offer flat-fee billing as a payment option. How Much Does a Business Attorney Cost? The actual cost of a business lawyer will vary greatly depending on the attorney and the project you hire them for. Different attorneys charge different amounts depending on their experience and the difficulty of the project. For example, new or less experienced attorneys tend to charge rates on the lower end of the scale. Ultimately, the cost depends heavily on the specific attorney and the nature of the legal services required. Only your attorney will be able to tell you how much their legal help will cost. Accordingly, it’s best to speak with the attorney directly about your legal issue. Most offer free initial consultations where you can learn more about the total cost of their legal services. Do I Need a Business Lawyer? Because of how much lawyers can cost, business owners are often hesitant to hire them unless they feel like it is truly necessary. While there are some things a business can do without an attorney’s help, in most cases it’s best to hire an attorney. Even something that seems simple (like obtaining a business license) may involve unexpected obstacles. In other cases, having an attorney will be necessary, such as during contract negotiations or if there’s an employment dispute within your company. The bottom line is that having an attorney you can go to for business law matters is beneficial in the long run. Particularly if you hire an attorney early in your business’s lifecycle, they’ll be able to provide better legal assistance because they’ll be more familiar with the needs and goals of your business as it grows. We Offer No-Nonsense Flat-Fee Pricing Massingill Attorneys & Counselors at Law understands that transparent pricing practices are valuable to our clients. That’s why we offer flat-fee rates for our legal services. Whether you’re just starting a business or need assistance with your existing business, our business law attorneys are here to help. Book a consultation today or give us a call at (512) 410-0343 to get started.

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| Read Time: 5 minutes | Business Law

LLC Formation in Texas: 10 Reasons Hiring a Lawyer Beats DIY

One of the first significant decisions made as a Texas small business owner is choosing the right type of entity for your business.  LLCs or limited liability companies enjoy increasing popularity in Texas. LLCs in Texas offer the protections of corporations with the flexibility of a partnership. Also, LLCs are not subject to the in-depth filing requirements demanded of corporations. For immediate assistance, please contact us online or call our firm at (512) 410-0343 today. Why Hire a Lawyer to Form Your Texas LLC?  Although a business lawyer is not required, setting up an LLC without one may result in complex legal issues that may end up costing your LLC a significant expense. There are many reasons why it’s beneficial to hire an experienced small business attorney in forming your LLC in Texas. Setting up an LLC requires numerous steps. Additionally, as your LLC business progresses, legal issues may continue to arise. Retaining a small business attorney’s services limits the possibility for your LLC to engage in litigation over avoidable conflicts. Here are some of the things a Texas LLC formation attorney can do for you.  1. Set You Up for Success An attorney works to ensure your LLC begins on the right foot. Through consultation during the LLC formation process, an experienced Texas business attorney reviews your risks, future challenges, and goals as your venture commences.  2. Correct Mistakes  A qualified business attorney works to correct any mistakes when creating an LLC. Starting a business is a stressful yet exciting event. As you market and establish your business, keeping tabs on potential legal issues may be furthest from your mind. Through extensive discussions with your business attorney, you may review the details of your LLC Operating Agreement and quickly spot any gaps in liability that may exist. Furthermore, addressing unclear positions, employee responsibilities, and other information avoids confusion down the road. As your LLC gets off the ground and begins to succeed, the last thing any business owner needs is the threat of litigation to slow their momentum. An experienced Texas business attorney remedies these possible points of conflict before they become an issue. 3. Avoid Legal Problems Even if in agreement, LLC members may experience other legal problems as your business grows. Disagreements may arise when one member of the LLC fails to perform obligatory tasks. Additionally, a Texas business attorney can assist with issues facing your business as it grows. For example, drafting company policy handbooks are essential to avoid sexual harassment, wrongful termination, or discrimination lawsuits. Qualified business attorneys equip their clients with the tools to prevent liability under the multitude of federal and state laws. 4. Protect Your Interests  Initially, you may not understand the legal requirements of how to create an LLC. For example, when forming an LLC in Texas, the LLC name must contain the words “limited liability company,” “limited company,” or the abbreviations “LLC,” “L.L.C.,” “LC,” or “L.C.” Additionally, your LLC name must be distinguishable from other business entities on file with the Texas Secretary of State. If your LLC has more than one member, you must obtain a federal Employer Identification Number (EIN) with the IRS. The EIN identifies you for federal tax purposes. Retaining the services of an attorney ensures prompt handling of these critical tasks. 5. File Required Paperwork Forming an LLC in Texas requires filing a Certificate of Formation for a Limited Liability Company. This certificate must include the following information: The LLC’s name, The name and address of the registered agent for service of process,  Whether the LLC is member-managed or manager-managed, The names of each member or manager, A general statement of purpose for the LLC,  The name and address of the LLC organizer, The effective date of the certificate, and  The signature of the organizer.  Texas permits the online filing of the Certificate of Formation for a Limited Liability Company for a fee of $300. A Texas LLC does not require an operating agreement. However, creating an operating agreement is strongly advised. The operating agreement sets out the rights and obligations of members or managers of the LLC. Additionally, it preserves your limited liability by showing that the LLC is indeed a separate business entity. Hiring an attorney to draft a concrete operating agreement reduces the opportunity for disagreements and conflict between the LLC members or managers. Additionally, a well-crafted operating agreement includes essential provisions such as buy-out clauses and termination clauses. Additionally, Texas LLC law requires filing an annual franchise tax report with the Texas Comptroller. Missing these filings can affect the operation of your LLC through the imposition of penalties. Extensive delays may result in the automatic dissolution of your LLC. 6. Tax Advice Taxation of your LLC occurs at local, state, and federal levels. An attorney educates you on the most advantageous election for tax purposes. Avoiding double taxes, delinquent taxes, and penalties should be a priority for your LLC. These unnecessary and avoidable expenses hurt the profitability of your company. 7. Protect Intellectual Property  Intellectual property includes product designs, inventions, trademarks, business services, trade secrets, client lists, and original works. All intellectual property adds value to your business and gives your Texas LLC a competitive advantage. It is wise to consult with an attorney depending on the type of intellectual property connected to your LLC. For example, federal law requires the filing of trademarks, copyrights, and patents to obtain certain protections. Additionally, an experienced business attorney works to preserve your intellectual property rights, thereby providing vital protection for your business. 8. Prepare Company for Audits  There may be instances where your Texas LLC faces audits. Audits of your LLC can occur at any time. During an audit, parties may investigate the financial records of your LLC. Additionally, audits may investigate company policies and procedures of the LLC. As your LLC undergoes the process of an audit, your business attorney guides you through the process and advises how best to protect your interests. 9. Contract Review As your Texas LLC grows, you...

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| Read Time: 3 minutes | Estate Planning

Demystifying Probate: What You Need to Know

probate (noun): the process of winding up the affairs of a person who has passed away. The concept of probate can be confusing to clients (and even attorneys). In simple terms, probate is a lawsuit filed against yourself after you die – paid for with your own money – for the benefit of your creditors. If you have any questions after reading this article, contact our experienced Texas estate planning attorneys today to schedule a free consultation. PROBATE CAN BE MESSY AND EXPENSIVE. However, probate in Texas is easier to navigate than in most other states. Texas law is often referred to as being “probate friendly” because it allows for independent administration. What does that mean? The Texas Young Lawyers Association explains it this way: [A]fter an independent executor or administrator is approved and an inventory of estate assets or an affidavit in lieu of an inventory, is filed with the court, the executor or administrator can simply take care of the administration of the estate without any further court involvement or supervision. The independent executor or administrator is free to settle with creditors, set aside the homestead and other exempt property, manage the property of the estate, sell assets for payment of debts or taxes, and distribute the remaining estate to those entitled to it. Texas Young Lawyers Association, Texas Probate Passport (2014). However, to qualify for independent administration the will must either specifically allow it, or all of the estate heirs or beneficiaries named in the will must agree to allow it. And while the independent administration process is typically easier and less expensive than the alternative, the executor must still publish notice to potential creditors in a newspaper, and in certain instances file an inventory of assets and/or affidavits with the court. Probate can also be time-consuming. In Texas, the probate process commonly lasts between four and eight months. During this time, the decedent’s assets may not be fully accessible, which can be extremely inconvenient to family members desiring access. Throughout probate, the estate remains open so that claims can be made against the estate by creditors. Only after probate is completed can the estate be closed and assets be distributed. Another issue that frequently arises in probate proceedings is that some of the decedent’s assets cannot be located. IN TEXAS, APPROXIMATELY TWO BILLION DOLLARS IN UNCLAIMED PROPERTY IS HELD BY THE STATE How did that money get there? When a person dies, their family is often unaware that they owned an insurance policy, real estate parcel, or bank account, and when it’s not claimed after a certain period of time it escheats (reverts) to the state. If you’re feeling lucky, you can search for unclaimed property that might belong to you by visiting the Texas Comptroller’s website. Another clear downside to probate is that the process is public. Although most people draft their wills in secret and opt against broadcasting their decisions, few seem to realize that once probate begins, the will becomes a public record. Those wishing to keep the winding up of their affairs private should consider creating a living trust, which allows you to avoid probate altogether. Helpful Probate Tip Certain kinds of assets are not subject to probate, such as life insurance and retirement accounts that transfer from one person to another via beneficiary designations. Unfortunately, even these assets can be subject to probate under certain circumstances. For example, if you name a minor child as a primary or secondary beneficiary on your life insurance policy and then pass away, the assets may be probated because life insurance companies won’t directly pay insurance proceeds to minors. To make matters worse, the court often appoints a professional fiduciary (who charges by the hour) to manage the asset(s). The proceeds are held in a fund for the benefit of the minor until he/she turns eighteen, at which point he/she receives everything left outright, with no oversight and no direction. For most people, this scenario is less than ideal. While probate in Texas is substantially easier and less costly than in other states, it remains a complicated process with many pitfalls. We typically explain to clients that in most states probate is like a grizzly bear. In Texas, it is like a trained, circus grizzly bear that seems far less threatening – but under the right circumstances it can still bite your arm off, and those who ignore that fact do so at their own peril. CONTACT MASSINGILL ATTORNEYS & COUNSELORS AT LAW TODAY To learn more about probate, visit the estate planning section of our website. If you have questions about your particular situation the experienced legal team at Massingill Attorneys & Counselors at Law is here to help. Contact us today to schedule a free consultation

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