By Associate Attorney Katy Currie
Recently, the news has been filled with the fight over Lisa Marie Presley’s trust after her sudden and unexpected death in January 2023. The issue is who should serve as trustee, and the reason why this is not clear is because, in 2016, Lisa Marie Presley amended her trust. This amendment removed her mother, Priscilla Presley, and Barry Siegel, the Presley family's business manager, as co-trustees and named her children, Riley and Benjamin Keough, as co-trustees instead. Benjamin passed in 2020, leaving Riley as the sole trustee. Priscilla Presley argues that the 2016 amendment is invalid because she never received a copy of the amendment.
In North Carolina, the creator of a revocable trust may revoke or amend the trust so long as they follow the procedure as it is stated in the trust document itself. If the trust states, for example, that the revocation document must be notarized, then it must be notarized. Under North Carolina law, if the method for amending the revocable trust is not stated within the trust document itself, the creator of the trust must amend their trust (1) with a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust or (2) by any other written document delivered to the trustee, manifesting clear and convincing evidence of their intent to amend or revoke the trust.
So, in Lisa Marie Presley’s case, if she had lived in North Carolina, her mother would have a legitimate argument that the amendment was invalid if Priscilla Pressley was serving as the trustee in 2016.
Other estate planning documents must be amended or revoked carefully. Similar to a trust, if an agent is currently serving under a power of attorney and the principal amends or revokes it, the principal must serve the agent with a copy of the revocation. If a power of attorney document is recorded at the county Register of Deeds, a revocation of that document must also be recorded to put the world on notice that it is no longer valid.
Wills and health care documents are automatically revoked when a new document is executed; however, it is best practice to let anyone and everyone who has a copy of the document know and ask them to destroy it. Even though a later executed will revokes a prior will, if the prior will is filed or probated at the courthouse mistakenly after someone passes away, it is a lot of work for the executor to undo.
The death of a family member can, unfortunately, bring out the ugly side of some people. To ensure that your wishes are followed, you must carefully comply with the law when it comes to amending or revoking your documents. If you have additional questions or are in need of assistance, reach out to Jesson & Rains!
By Attorney Kelly Jesson
There are numerous to-do items and deadlines business owners must keep up with to successfully run a business. However, many business owners forget that they must file an Annual Report with the North Carolina Secretary of State to keep their business in active and good standing with the state.
The Annual Report is used to keep the business records up to date with the Secretary of State. On the Annual Report, you will provide basic information about your business, such as the name and address of the registered agent, the principal address of the business, and the names and signatures of company officials. Most businesses formalized with the Secretary of State’s Office need to file an Annual Report, such as Business Corporations, Limited Liability Companies (LLC), Limited Liability Partnerships (LLP), and Limited Liability Limited Partnerships (LLLP). Non-Profits, Limited Partnerships, Professional Corporations (PCs), and Professional Limited Liability Companies (PLLC’s) do not have to file an Annual Report. There is also a filing fee due with the Annual Report. For LLC’s and partnerships, the fee is $200, and for corporations, the fee is $25.
The due date for your business’s annual report depends upon the type of business, but generally April 15th is the deadline for most businesses. For corporations and partnerships (LLP and LLLP), the annual report is due to the Secretary of State’s Office the 15th day of the fourth month following the entity’s fiscal year’s end. For example, if your fiscal year ends on December 31, your annual report for that year is due on April 15th.
Jesson & Rains offers a yearly plan for businesses that includes serving as our client’s registered agent and filing their annual report, among other things. This plan helps to ensure your privacy (if your business is ever sued, the lawsuit will be delivered to our office’s address); you will be less likely to fall victim to a scam (we will sort through and destroy junk mail); you will be more organized and have less paper (we will scan and forward your mail immediately to your attention after sorting); and we will ensure that corporate records and Secretary of State records are kept up to date.
We also offer an upgraded yearly plan that includes unlimited telephone access to attorneys throughout the year.
The consequence for not filing an Annual Report and/or paying the fee is that the Secretary of State can administratively dissolve your business. This means that you will lose the liability protection you enjoy by being a formal business, and a creditor can come after your personal assets. If you have questions about filing your Annual Report or want to learn more about the annual plan services offered by our firm, you can click HERE, or feel free to reach out to Jesson & Rains directly!
By Associate Attorney Katy Currie
Valentine’s Day is a holiday to celebrate the endless love we have for the loves of our life. What better present to give your Valentine this year than ensuring your estate planning is done? There are many important aspects of sitting down and planning for your future through your estate planning documents, and unfortunately, there are countless issues that could arise without proper estate planning.
Without a will you lose the control you have over who inherits what when you pass away, and this could have huge implications on your loved ones. You are deemed to have died “intestate” if you die without a will. North Carolina has an Intestate Succession Act which is the default law that kicks in if you should pass away without a will. It names which of your surviving family members are considered your legal heirs in North Carolina.
The most common misconception surrounding intestate succession is that your spouse will inherit everything if you pass away without a will. This is not always the case if you have probate property and are survived by children or parents in addition to a spouse. For example, if you do not have a will and are survived by a spouse and one child (or grandchildren if that child is deceased), or a spouse and a living parent if you have no children or grandchildren, in addition to receiving the $60,000 spousal allowance, your surviving spouse takes the first $60,000 of your personal property, ½ of your real property, and ½ of whatever remains of your personal property while the child/grandchildren/parent inherits the remainder. If you are survived by multiple children or grandchildren, that number is cut to 1/3.
Additionally, in North Carolina, a will is the only way to name a guardian for your minor children in the event both parents pass away. You can also create a testamentary trust within your will, which will name a trustee who can be the money manager for inheriting children until they reach a certain age (later than the default age of 18).
So, while enjoying a nice romantic dinner to celebrate and show your love for your Valentine, it is also an opportunity to discuss planning for your future while you have some alone, intimate time together. If you approach the conversation with care and thoughtfulness, it could help you break the ice for those difficult, but important, decisions for your estate plan which will have a positive impact on your Valentine for years to come. If you would like to take the next step and work on your estate plan, give Jesson & Rains a call!
By Associate Attorney Danielle Nodar
Branding your business helps set it apart from your competitors and keeps it present in the minds of consumers. To protect that brand, a business can obtain a trademark that essentially puts the world on notice that you are the owner of the specific mark. A trademark is a “word, phrase, symbol and/or design” that identifies and distinguishes the goods or services of the owner of the mark from another party. Examples of these marks include brand names, slogans, tag lines, logos, and design elements (think, Tiffany blue boxes).
To get a federal registered trademark, the mark must be used in commerce, so normally the owner of the mark is a business. An application can be filed before the mark is used in commerce if the owner intends to use it in commerce, but the United States Patent and Trademark Office (“USPTO”) will not register the trademark until the applicant shows that it is actually being used. A benefit of a trademark is that they do not expire, so long as the mark continues to be used in commerce and the owner files periodic documentation with the USPTO.
The trademark application process is fairly simple, so oftentimes non-lawyer business owners will attempt it themselves, but actually obtaining the registered trademark can be tricky. Applications can be denied for a variety of reasons, such as the mark being “merely descriptive” of the goods or services it applies to, or a mark being considered too similar to an existing trademark in a similar industry (a “likelihood of confusion” according to the USPTO). The strongest trademarks are “fanciful and arbitrary,” meaning they are words that have no relation to the good or service sold (like Apple computers), and the second strongest trademarks are “suggestive” meaning they suggest the good or service without literally describing it (think, Facebook). Unfortunately, most people name their businesses something that describes their goods and services for marketing purposes (for example, “Northwest Construction”), so trademark registration may not possible. Exceptions to this rule are well-known businesses or those that have been in business for many years.
A business can have a common law trademark (indicated by the ™ symbol instead of the ® symbol) without registering it with the USPTO just by using the mark in commerce, but there are benefits to federally registering. Inclusion in the national database deters others from using similar marks in similar industries. Also, there is a legal presumption that registrant was the first to use it, meaning that in a dispute with another business, it would be presumed to be the winner. Damages would also be presumed. A drawback to a common law trademark is that it is limited in geographic area, so you could have a competitor business open up with the same name in an entirely different state, as long as you did not share customers. If a competitor opens in your geographic area, and you sue them for common law trademark infringement, you would have to prove that they did damage to your mark and that you were the first to use the mark.
If you’re thinking of protecting an element of your brand with a trademark, give Jesson & Rains a call!
By Attorney Edward Jesson
A question we frequently get from business owners, small and large alike, is whether they need to register their business in other states. The answer is, as usual, “it depends.” The process of registering your business in another state is often referred to as “Foreign Qualification”. While the laws vary from state to state, the following is a very general guide to whether you need to go through the foreign qualification process for your business.
First of all, depending on the state, there can be serious ramifications for not registering your business in a specific state in which you are doing business. These can range from financial penalties to losing your business’s limited liability status, exposing you, as the individual owner, to liability in that state. In some states, it can also mean that, if your business is not properly qualified to do business in that state, your business is not permitted to bring legal action in that state. For example, if your business wished to enforce a contract in court in a state in where your business is not properly registered, your business may not be able to bring that lawsuit.
To determine whether you need to go through the foreign qualification process, the important question you must ask yourself is whether your business is “doing business” in that state. Again, the rules on this from state to state vary, but there are some general things to look out for when asking yourself that question:
If you have questions about doing business with your LLC or corporation in another state, the attorneys at Jesson & Rains can assist you.
By Attorney Kelly Jesson
This year, make a resolution to prioritize estate planning. Estate planning allows you to gain control and peace of mind over difficult and unpredictable situations. We have previously written about the difficulties caused by dying without a will in North Carolina and the pitfalls of the probate process in North Carolina; however, many of the “worst-case” scenarios can be avoided with proper planning. Let us help you make 2023 the year you plan for emergency scenarios and protect your business and personal assets for the benefit of your loved ones through estate planning.
Unfortunately, COVID-19 has shown us that there are no guarantees, but it has also highlighted what is most important to each of us: family. Estate planning allows you to plan for what happens when you pass away, including naming a trusted person to handle your final affairs, name guardians for minor children, and distribute your assets according to your wishes. In addition to planning for death, our office drafts durable and health care powers of attorneys, where you can name agents to make both financial and medical decisions for you if you are incapacitated and cannot communicate.
There is no reason to wait to do planning, and as the pandemic continues to be a part of our “new normal,” you should get a plan in place before it is ever needed. If you do become incapacitated or ill, it may be more difficult or impossible to get documents in place, as you must have testamentary capacity to create valid estate planning documents.
Some of our clients delay estate planning because they do not have any friends or family members they trust to serve in fiduciary roles. In some circumstances, members of the firm may serve in these roles for the client if the client feels comfortable. It is better for you to take control and name someone yourself than to have the government appoint someone in an emergency or when you pass away.
We want to help you take CONTROL in 2023! Please call Jesson & Rains if you have questions about getting your estate plan in order or updating an existing estate plan. While You Build, We Protect.
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