Saturday, January 31, 2009

IVC Filter Lawsuits

An IVC filter is a medical device that is often placed in a person's body to prevent pulmonary embolus. Doctors use these devices when discovering blood clots in a person's veins. Blood clots pose the potential threat of breaking free and becoming lodged in a person's lungs, which is potentially fatal. The filter is placed in the inferior vena cava, which is a large blood vessel located in a person's abdomen that brings blood to the lungs. Its purpose is to catch any clots that break free from reaching the lungs.

The IVC filter is surgically placed into a person in a procedure via a needle inserted into a person's neck or groin. Although generally seen as a relatively low risk procedure, problems such as bleeding and infection can occur. The clinically proven and recognized purpose for this product is to prevent blood clots in deep veins, a condition known as Deep Vein Thrombosis (DVT), from breaking free in a person that cannot use typical blood clot treatments, such as blood thinners and anti-clotting agents. DVT generally occurs in veins located in a person's legs or pelvis.

Recently, studies have shown that a significant amount of IVC filters have been defective. In the defective devices, pieces of the metal device often become detached, causing them to travel into areas and often strike vital organs. These devices, brands such as the Recovery TM and G2TM IVC Filters, have been commonly used in filter procedures.

The defective IVC Filter can cause sudden chest pain in the area near where it is placed. A person experiencing such signs should immediately contact authorized medical personnel, who can determine whether it is causing such problems using a CT Scan.

Defective IVC Filters can lead to undue pain, additional surgery, and permanent damage to internal organs. Although surgery might be able to fix the problems caused, often surgery is not a viable option due to the stress placed on an internal organ in such a procedure.

If you have been injured as a result of a defective IVC Filter, you should contact an experienced attorney practicing in medical malpractice cases, specifically someone with experience in these lawsuits. This is such a new area of law that we are only aware of two attorneys in the nation that actually have had any success with these cases.

Michael Helfand has been an Illinois attorney since 1997 and is founder of the leading resource for Illinois lawyer referrals and legal guidance.

Michael Helfand is a Chicago attorney who runs a lawyer referral website. For more information he suggests that you visit

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Uncommon Surgical Errors

Television watchers who follow Grey's Anatomy avidly will recall in the first season a woman came back to the hospital with a piece of a towel left inside of her abdomen from an earlier surgery at the same hospital. It was a horrific situation for the woman to be in as she had gone into the hospital expecting to be fixed and came out with a new problem that took years of mixed diagnoses to fix. While it may sound like fiction, it is not rare for a surgical team to forget to remove something from an individual's body cavity prior to stitching the person up.

When an implement is left behind, it is generally not done so on purpose. Surgical implements fall or get covered by an internal organ that is put back in its appropriate place. The implement left behind can be anything from a piece of gauze to something much more hazardous to a person's health.

Unfortunately, this type of accident is typically only fixable by a second round of surgery and all of the risks that imparts. With surgery come anesthetics and all of the risks associated with being put completely under. Reactions to the medications used are sometimes deadly. It is usually best to avoid surgery as much as possible, despite all of the precautions taken.

Another problem that sometimes occurs is the amputation or surgery on the wrong leg. For example, an individual might need to have bits of cartilage removed from his or her right knee. The doctor or nurse, however, will cut open the left knee and then be shocked not to find any cartilage. This is a problem because now the patient has to have a second bout of new surgery and is still living with the pain from torn cartilage.

The same thing can happen with an amputation. The problem with an amputation being that it can't be fixed by a simple surgery. A person scheduled to have his or her right foot removed can have his or her left foot removed but that doesn't fix the problem. So now, after the correct surgery is performed, the poor patient is left with no feet as opposed to one foot and a prosthetic. Even with all of the physical therapy in the world, a person may not ever regain full mobility.

For more information on medical malpractice issues, please visit
Joseph Devine

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Know Your Options If You Are a Victim of Medical Malpractice

Knowing what to do, much less what to look for when you're confronted with medical malpractice can be a real conundrum for those people not very familiar with medical issues.

Strictly speaking, the legal definition for medical malpractice states that it is "...professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury to the patient." This can include improper, unskilled, or negligent treatment of a patient under the treatment of a physician, dentist, nurse, pharmacist, or other health care professional. The standards and regulations for medical malpractice have been found to be different by country and jurisdiction within countries.

If you feel that you or a loved one is suffering due to mistreatments or mis-diagnosis from medical malpractice, there are some specific steps that you can take. First of all, try to educate yourself as much as you can about the condition you're suffering from. You can find this information online, or through other avenues, like the public library, where you can access medical definitions. Make sure you understand just exactly what each term or medical phrase that your doctor uses is, so that is completely comprehensible to you as a non-medical professional.

The next step is to research just exactly where what would be considered to be the "standard of care", which is concerned with the type of medical care that a physician is expected to provide in light of each particular condition the patient is suffering from. If the patient receives care or treatment that differs significantly from the standard, then there's a good possibility that you may be dealing with medical malpractice.

If this is indeed the case, make absolutely sure that you take copious amounts of notes, including the date, time, type of treatment received, and most importantly the name of the health care professional who is responsible for this treatment. Be as detailed as you possibly can, and even if you don't know the correct spellings of the drugs or procedures used in the treatment, spell it out as closely as you can in a form of phonetic script (for example, someone who might not know the proper spelling of "carburetor" spell it out as "kar-burr-ay-ter") and look up the proper spelling at a later time. In the instance where legal action might be taken, this will prove to be invaluable for legal professionals who might be working on your behalf.

In recent years, specific rules known as the "Health Insurance Portability and Accountability Act" (HIPAA) were enacted by the U.S. Congress in 1996. Even though HIPAA requires that patients be able to access their medical records, it doesn't say just how this access is to be given. As a result, the majority of patients have to go to the medical records departments of doctor offices and hospitals to get paper copies of their charts at whatever cost the caregiver wishes to charge. HIPAA's complexity in combination with the potential of stiff penalties for violations can cause doctors and clinics to keep information from people who might have a right to see it, and there have been cases where certain institutions guilty of medical malpractice find ways to hide this potentially damaging information from the client.

Someone who alleges they are the victim of negligent medical malpractice has to legally prove four elements in a court of law. These four elements are: (1) that a duty of care was owed by the physician; (2) the physician violated the applicable standard of care which is determined by others in the medical profession; (3) the patient suffered a compensable injury; and (4) the injury was caused in fact and proximately caused by the substandard conduct. The burden of proving these elements is always on the plaintiff in a malpractice lawsuit.

For more insights and additional information about Medical Malpractice as well as finding additional resources to help you with your case, please visit our web site at

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The Growing Med Mal Problem

Medical malpractice is actually a much bigger problem than many people realize and even bigger than medical professionals want to admit. The latest statistics on the Internet show that roughly 225,000 people die each year as a direct result of medical malpractice. The main question really ought to be, what is anyone doing about it?

The scary thing about the statistics is that despite the rising numbers of deaths there are very few lawsuits filed. It appears that only 2% of the potential 225,000 claims for med mal actually make it as far as filing a medical malpractice lawsuit. Unfortunately, the numbers of plaintiffs who are awarded compensation is even smaller. This should not stop anyone who feels they have been a victim of med mal from stepping forward and speaking to a qualified med mal attorney.

Despite what you see on television and read in the papers, medical malpractice lawsuits should not be curtailed or reduced (as many politicians seem to want). More patients need to launch lawsuits to shine some light on the problem so it has the opportunity to be addressed, not hidden from the public.

If you don't think the numbers are really all that significant, consider these figures. An estimated 12,000 die due to unnecessary surgery; medication errors are responsible for roughly 7,000 deaths; and other medical errors account for approximately 20,000 deaths. This is just the tip of the iceberg. The numbers also account for close to 80,000 people nationwide who die from something called nosocomial infections they contracted in the hospital. Pretty staggering numbers aren't they?

Med mal can happen anywhere there are medical procedures performed and may involve a physician, nurse, nurse practitioner or lab technicians. While many people think medical malpractice is something enormous going wrong, it often begins with the smaller things like a wrong diagnosis, inaccurately read x-rays, misinterpreted tests, and the list goes on. Other larger, more horrendous errors, would involve such things as removing the wrong body part from the wrong patient.

If you suspect you have been the victim of medical malpractice, make it a point to call experienced legal counsel and discuss your potential case. They have the right kind of expertise needed to immediately evaluate the situation and advise you on how to proceed. Most initial consultations are free and this provides you with the opportunity to ask questions and get an initial understanding of medical malpractice law.

If you have a valid case, your attorney will take you through the steps for filing a med mal lawsuit against the proper parties - meaning a physician and/or their staff, hospital, facility or lab. Before a lawsuit is filed there is an attempt to come to some sort of an agreement with the defendant first. When all else fails, you will be bound for court.

Robert Webb is an Atlanta personal injury lawyer with Webb & D’Orazio, a law firm specializing in Atlanta personal injury, malpractice, criminal defense, and business law. Learn more at

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Friday, January 30, 2009

Living Trust Trustee - Who Should You Pick

Picking a living trust trustee is not an easy task. The trustee is the person who is in charge of the trust during your lifetime. In most cases, the initial trustee is the person who created the trust, you the Grantor. In addition to the Grantor as trustee, it is a good idea to name at least two successors for during any periods of disability of the Grantor or after death. This successor trustee is responsible for managing the property covered by the trust for you if you are incapacitated and your loved ones upon your death.

These successors may be an individual such as a family member or an institution such as a bank or trust company. We suggest looking at an individual first before turning to a corporate trustee because of cost and the personal touch. A corporate trustee would give the professional oversight to the money but will charge a fee for service whereas a family member may or may not charge the trust to act and will personally know the beneficiaries.

When picking the living trust trustee to succeed you, you should look at the potential selections through what our law firm calls a financial microscope to determine if they would be a good selection. Ask yourself, how do they fair with respect to these three questions?

• Do they understand money? In other words, is it on their radar and do they pay attention to financial matters. They do not need to be financial experts but they need to have money awareness?

• Do they spend their own money wisely or frivolously? and

• Do you TRUST them?

If the answer to these three questions is yes, then they are probably going to be a good living trust trustee. If the answer is no, and you cannot find family or friends that do stand up to these questions, then you should probably consider a corporate trust company or bank as successor living trust trustee.

Robert Olson is the lead attorney at DIY Lawyer. A website dedicated to helping people do their own legal work including drafting a Living Trust. They offer an e-book with a money back guarantee titled the Living Trust Annotated. This book teaches you to draft your own Living Trust for a fraction of what you would pay an attorney. With the purchase of the e-book you also receive a free half hour phone consultation with a DIY Lawyer to answer your questions about the book. You can read about it at DIY Lawyer's Living Trust Annotated.

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Funding Living Trust - What You Need to Know - Part 3 - Retirement Assets and Life Insurance

Funding Living Trust Part 1 talked about bank accounts, part 2 discussed Brokerage Accounts, Individual Securities and Mutual Funds. In this the final installment, I am writing about retirement assets and life insurance.

Retirement Assets:

You should NOT change the ownership of an IRA, 401k, and or 403b account etc. You need to be aware that changing ownership would constitute a withdrawal and be a taxable event. Therefore they cannot and should not be transferred into a living trust. When funding living trust with these types of assets, most will leave the spouse as first beneficiary and change the contingent beneficiary to the trust. Even though your spouse may be the primary beneficiary of the trust, as an individual he or she will have greater rights and more flexibility as the primary beneficiary of the asset.

Life Insurance:

Term Life Insurance: If you are the owner and insured of a term life insurance policy, the only change required is to name the trustee as beneficiary with you retaining all ownership rights unless there is some specific reason to name another beneficiary. You do not need to change the ownership of your term life insurance policies.

Cash Value or Whole Life Insurance: If the policy has a cash component, then you may wish to change ownership along with changing beneficiary to the trust so your successor trustee has access to the cash value for your benefit if you become disabled.

In summation of the three articles on funding living trust:

Change Ownership to the trust for:

• Bank Accounts;
• Brokerage Accounts;
• Individual Stocks and Bonds;
• Mutual Funds.

Change Beneficiary to the trust for:

• Retirement Assets; trust as secondary beneficiary;
• Term Life Insurance.

Change Ownership and Beneficiary to the trust for:

• Whole Life or any cash value life insurance policy.

After reading all three of the articles in this series, you should have a good understanding on funding living trust. Now make sure you complete your estate planning. Remember you don't plan your estate for yourself, but for the ones you love.

Robert Olson is the lead attorney at DIY Lawyer. A website dedicated to helping people do their own legal work including drafting a Living Trust. They offer an e-book with a money back guarantee titled the Living Trust Annotated. This book teaches you to draft your own Living Trust for a fraction of what you would pay an attorney. With the purchase of the e-book you also receive a free half hour phone consultation with a DIY Lawyer to answer your questions about the book. You can read about it at DIY Lawyer's Living Trust Annotated.

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Funding Living Trust - What You Need to Know - Part 2 - Securities and Brokerage Accounts

In part one of Funding Living Trust I wrote about changing title to your bank accounts from you as an individual to your t. Remember in addition to signing your living trust, you must also fund it. Funding means changing ownership, beneficiary or both of all assets to your Trust.

Like bank accounts, Brokerage Accounts, Individual Securities and Mutual Funds must also be re titled.

The easiest is if you hold these assets within a brokerage account because it is the account itself that is re registered. Unlike bank accounts, most brokers will require you to open a new trust brokerage account and then transfer the assets instead of re titling your current account. The broker may use the term journal the assets to the new account. This is usually the same as transfer. Make sure the assets are transferred and not sold and re purchased.

If you own individual stock certificates and or bonds you will need to re register each one. Contact each company in which you hold stock and request that their stock transfer agents provide you with instructions for transfer and the forms they require. As you might expect, no two stock transfer agents do things quite the same. Most require that you surrender your original stock certificate, complete a stock power, and have your signature on the stock power or certificate guaranteed by a bank or brokerage firm. (This is not the same as a notarization). Once they have received the paperwork, some transfer agents will complete the transfer and issue new certificates in a matter of days, others it may take a few weeks. If you do own several individual securities, you may wish to first transfer them to a brokerage account and then re title the brokerage account in the name of your trust.

Individual Mutual funds are similar to individual securities. You must contact the mutual fund company and follow their directions.

If the mutual fund companies or transfer agents require something in writing, you may want to use language similar to this:


Dear ____________________

On _____________________ we signed the __________________ Revocable Trust Agreement for estate planning purposes.

This trust is a GRANTOR TRUST as defined under the Internal Revenue Code §676 which states in part;

The grantor shall be treated as the owner of any portion of a trust where at any time the power to re vest in the grantor title to such portion is exercisable by the grantor,

We are requesting that you RE TITLE the above referenced account instead of opening a new account because:

The address and all other records stay the same;
The social security number (which is the tax id of the trust) remains the same;
The cost basis remains the same; and
The authorized signers remain the same

This account should now be titled _________________ & _________________, trustees or successors of the _______________ Revocable Trust Agreement dated ________________

We have attached a signed and notarized copy of the Certificate of Trust. If there is any problem with the above request for funding living trust, please give me a call at _______________. In addition please confirm this change in writing to me at the address below.

Please check back soon for part 3 in the series Funding Living Trust on Retirement Assets and Life Insurance.

Robert Olson is the lead attorney at DIY Lawyer. A website dedicated to helping people do their own legal work including drafting a Living Trust. They offer an e-book with a money back guarantee titled the Living Trust Annotated. This book teaches you to draft your own Living Trust for a fraction of what you would pay an attorney. With the purchase of the e-book you also receive a free half hour phone consultation with a DIY Lawyer to answer your questions about the book. You can read about it at DIY Lawyer's Living Trust Annotated.

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Funding Living Trust - What You Need to Know - Part 1 - Bank Accounts

If you choose a Living Trust as your estate planning document of choice, your work is not done once you have drafted and signed it. In addition to signing the trust document, you must also fund it.

Funding Living Trust means changing ownership, beneficiary or both of all assets to your Trust. If you fail to fund the trust your estate planning objectives may not be met and some or all of your estate may go through probate.

In this first article of the series titled Funding Living Trust What You Need to Know, we will discuss bank accounts.

Bank Accounts and other time deposits such as certificates of deposits in most cases should be re-titled to your living trust. This means changing ownership.

Here is an example of what you can tell the bank in the instruction letter.

On _____________________ we signed the __________________ Revocable Trust Agreement for estate planning purposes.

This trust is a GRANTOR TRUST as defined under the Internal Revenue Code §676 which states in part;

The grantor shall be treated as the owner of any portion of a trust where at any time the power to revest in the grantor title to such portion is exercisable by the grantor,

We are requesting that you RE-TITLE the above referenced account instead of opening a new account because:

The address and all other records stay the same;
The social security number (which is the tax id of the trust) remains the same; and
The authorized signers remain the same.

This account should now be titled

_________________ & _________________, trustees or successors of the _________________ Revocable Trust Agreement dated _________________.

In most cases the bank will re-title your current accounts and not force you to open new ones. It is not preferred if they say your old accounts must be closed and you have to open new ones because you most likely have automatic deposits and withdrawals occurring with these accounts that would be a large task to change. If they tell you this make them give you a valid reason. Also your checks can be printed any way you wish; they do not have to carry a trust title designation. They most likely can be the same as they read before the trust re-titling.

With respect to Certificates of Deposit, you should contact the bank involved and ask what is required for you to re-register the certificates in the name of the trustee. Confirm that no penalty will be assessed for premature surrender. If a penalty will be assessed, you should consider not re-registering the certificates until maturity or see if the bank will put a pay on death, POD, or transfer on death, TOD, designation on the certificates. Then after maturity of these certificates, the proceeds should be reinvested in the name of the trustee.

Please check back soon for part 2 in the series Funding Living Trust - What You Need To Know Stocks, Bonds and Mutual Funds

Robert Olson is the lead attorney at DIY Lawyer. A website dedicated to helping people do their own legal work including drafting a Living Trust. They offer an e-book with a money back guarantee titled the Living Trust Annotated. This book teaches you to draft your own Living Trust for a fraction of what you would pay an attorney. With the purchase of the e-book you also receive a free half hour phone consultation with a DIY Lawyer to answer your questions about the book. You can read about it at DIY Lawyer's Living Trust Annotated.

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Wednesday, January 28, 2009

Failing to Designate Beneficiaries on Assets

There are many ways in which hiring an estate planning attorney can help you to navigate the often treacherous landscape of estate law. One in particular is in understanding the necessity of designating beneficiaries for all of your accounts.

Regardless of how polished your Will might be, or how clearly you have designated and divided your estate among your loved ones, failing to ensure that the right beneficiaries are noted on your retirement and investment accounts could critically disrupt your carefully-laid plans.

If you have created a Will or revocable trust, then you are already taking the right step in securing your family's financial future in the event of your death.

However, what many people do not realize is that much of their wealth is tied up in retirement and investment accounts - each with their own rules for distributing those assets when the owner (you) can no longer claim them.

If you own such accounts - as most people do - it is important that you sit down with a qualified estate planning attorney and ensure that your desires that are outlined in your Will are reflected in the beneficiary designations of your accounts.

- Contact your account holders, especially those of accounts that have been established for quite some time, and inquire about the beneficiaries listed.

- Discuss with your lawyer the proper methods for changing beneficiaries to reflect the desires you have laid out in your Will.

- Include Life Insurance accounts, bank/savings accounts, investment portfolios, 401k accounts, or any account that requires a noted beneficiary. Your estate planning attorney can help you identify those accounts.

- Discuss with your lawyer the possibility of additional taxes that may be added to your assets if beneficiaries are not properly noted.

Often, when people do an inventory of their accounts with beneficiaries, they find beneficiaries listed whom they no longer wish to receive part of their estate (for example, ex-spouses).

In many cases, the beneficiary listed on an account would be given the assets within that account, regardless of what is stated in your Will. Essentially, the laws regarding beneficiary designation often override those regarding the settlement of a Will.

It is, therefore, always a good idea to discuss with your attorney ways in which you can keep your beneficiaries up-to-date at all times, especially when you cross important milestones such as a new marriage, a divorce, the death of a loved one, or the birth of a child.

Whether your estate planning goals are immediate or long-term, a qualified California estate planning attorney will be able to counsel you on the best options available to you to meet your individual needs.

Kevin Von Tungeln is the Managing Partner of and Thompson Von Tungeln, P.C. Kevin practices exclusively in the areas of estate planning, probate, wills, conservatorships and trust administration.
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Changing a Will After a Persons Death

A deceased persons will can be changed within two years of their death.

In order to make the change a "deed of variation" or "deed of family arrangement" needs to be drafted, agreed to and signed by all the beneficiaries of the deceased original will that would be effected.

Why might you want to change a will?

One of the key reasons people requests deeds of variation is to reduce potential inheritance tax bills. We often see requests for gifts left to the deceased spouse or children varied to go direct to grandchildren. This is often done because the spouse or children already have enough money and they know by accepting the gift they will only be increasing their potential inheritance tax liability. So by diverting the gift they maybe able to reduce or even eliminate any inheritance tax burden.

Another reason we sometimes get requests to change a deceased persons will is when the remaining family members believe a particular family member or friend has been excluded or forgotten about when the deceased made the original will. In many cases this has caused family feuds and by changing the will with the agreement of the original beneficiaries this situation can be eased.

We are often asked if a deed of variation can be used to protect all of part of an estate from local authority long term care assessment. The short answer to this is no. If this is the only reason the change is being made it is highly unlikely to be accepted by a local authority then looking at care cost. If the change is being made for other reasons like inheritance tax reduction the local authority may accept the change, but there seems little if any case law to test this scenario at the current time.

Can a will be change at any time after the death?

The beneficiaries of a gift or legacy have up to two years to vary the gift, after this time no changes can be made. This means the deed of variation has to be drafted, agreed to be and signed by all beneficiaries effected by the change before the second anniversary of the persons death.

Can a change be made if no will was left?

If some dies without leaving a will they are deemed to have died intestate and the intestacy laws prevail. It is still possible to draw up a deed of variation in these circumstances.

Can a gift left to a person be transferred in a trust

As long as it is within two years of the death and the person who the original gift or legacy was left to is in agreement the gift or legacy could be redirected in to a trust.


Changing a persons will is possible within two years of their death if any beneficiary of a gift or legacy agrees with the change.

The process is done via a deed of variation, this can usually be drafting in a few days if all the relevant information is presented.

Adrian Tatum, Managing Director,

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Do it Yourself Living Trust - Be Careful

If you are thinking about a do it yourself living trust from the internet, I would advise you to be careful. While some products and books from the internet are good, there are some that could give you results you didn't expect.

I have seen articles from attorneys suggesting that you always need to have an attorney draft your documents. I wonder if this is a little self serving. I have helped over a thousand clients in my career as a lawyer and I can tell you many of them could have done it themselves if they had the right product or book. You can do it yourself too but need to consider the following information.

• You are not the same as your neighbor or someone on the other side of the country. Your estate plan will not be either. You should look for a product that gives you choices as to what goes in your living trust.

• Cost plays a factor in the do it yourself living trust creation. If it is for free, you will probably get what you pay for. Look for a product or book that is moderately priced. In addition to the product or book is there any additional bonuses or features.

• Consider if you are on your own or does the vendor offer someone to answer questions about the product or book if you have them.

• Is the product created or written by an attorney. If not, I suggest you go elsewhere.

• Does it educate you or simply give you a form. With the living trust, you need to do more than fill in a form. If you buy the product or book will it teach you how to create your living trust.

You can create your own estate plan using a do it yourself living trust but you should be careful and do your research on what you buy.

Robert Olson is the lead attorney at DIY Lawyer. A website dedicated to helping people do their own legal work including drafting a Living Trust. They offer an e-book with a money back guarantee titled the Living Trust Annotated. This book teaches you to draft your own Living Trust for a fraction of what you would pay an attorney. With the purchase of the e-book you also receive a free half hour phone consultation with a DIY Lawyer to answer your questions about the book. You can read about it at DIY Lawyer's Living Trust Annotated. You can also sign up for their Free Living Trust E-Course

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How to Probate a Will

You will need to learn how to probate a will if a loved one dies with property in their name alone and no beneficiary designation attached. You need to know how to probate a will because their estate will go through probate. Probate is a court procedure designed to follow the directions in the Will with respect to who handles the estate and who receives the property. There needs to be a probate because the only person who could legally sign to transfer the assets is deceased.

The probate consists of the following steps:

• Initiate the probate - The executor named in the Will completes an application if the probate is informal or petition if it will be formal. Whether you will be conducting a formal or informal probate depends on the facts and circumstances of your individual case. Your attorney will give you the advice on which to select.

• Pay Valid Debts and Taxes - Unfortunately you cannot get out of your debts and taxes by dying. They need to be paid before any property can be distributed to your beneficiaries.

• File the Required Court Forms including an inventory of assets owned by the decedent at their death. You also will file a final accounting. The final accounting is the record of everything that happened from the date of death until the final distribution. As an attorney, I have found this to be the most difficult aspect of the probate. You will need to make sure it balances to the penny as it will be reviewed by the court and you may not be allowed to close the probate until it does.

• Divide and distribute the assets per the direction of the Will.

This may sound like an easy process but based on my fifteen years as an attorney, it is not. Most probates take over a year to complete and end up costing the estate thousands and thousands of dollars in attorney fees. You could try to do the probate without an attorney but there is very little detailed guidance on how to probate a will and most people would find this a difficult and frustrating process.

Now that you know how to probate a will and all that goes into the process, you may want to consider avoiding it by using a Living Trust instead of the Will as your estate planning document. I suggest you research living trusts on the internet to learn the pros and cons.

To assist you we offer an internet e-course on our website that teaches you all you need to know about the living trust.

Robert Olson is the lead attorney at DIY Lawyer. A website dedicated to helping people do their own legal work including drafting a Living Trust. They offer an e-book with a money back guarantee titled the Living Trust Annotated. This book teaches you to draft your own Living Trust for a fraction of what you would pay an attorney. With the purchase of the e-book you also receive a free half hour phone consultation with a DIY Lawyer to answer your questions about the book. You can read about it at the DIY Lawyer website. You can also sign up for their Free Living Trust E-Course.

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Tuesday, January 27, 2009

Members' Voluntary Liquidation Vs De-registration

As a result of the current harsh economic climate there has been a notable increase in the amount of businesses, and consequently business owners, that are having to reconsider the way in which the business is currently operating. Unfortunately, for many small to medium enterprise operators they are having to reassess whether or not it is financially viable for the business to continue functioning at all.

There are various options for a business that finds it is no longer able to trade such as Members' Voluntary Liquidation or de-registration. The best option for each individual situation is different, which is why it is important to note that choosing the wrong method could prove to be a costly decision. Making the correct choice is not only important in terms of the initial monetary cost to the business but also in relation to the tax implications of each.

Members' Voluntary Liquidation refers the process of winding up a solvent company. This means that the business is in a financial situation where it is able to pay its debts if and when they are due prior to the execution of the liquidation process.

De-registration is the formal process of removing a company from the Australian Securities and Investments Commission (ASIC) register of companies. The removal usually takes place following the completion of Members' Voluntary Liquidation. However, provided that the following conditions are met a company can be de-registered without first going through the liquidation process.


* all company members agree to the De-registration
* the company is not carrying on business
* its assets are worth less than $1000
* all company fees and penalties payable under the Corporations Act have been paid
* there are no outstanding liabilities, and
* the company is not a party to any legal proceeding
* then De* registration can take place.

Whilst from a cost-to-the-business perspective Member's Voluntary Liquidation is more expensive, when viewed from a taxation perspective there are many benefits, particularly to the shareholder, when using the Members' Voluntary Liquidation method.

For example, the winding up of a company will no doubt result in the necessary distribution of its accumulated profits and capital reserves to the company's shareholders. If the distribution of the assets is done via a liquidator there are specific tax provisions and capital gains tax regimes that are applied, proving advantageous for the shareholders. Conversely, if the assets are distributed without the use of a liquidator the usual tax provisions in relation to shareholder dividends apply.

The basic application of this can be demonstrated using the following simplified example.

Holiday Getaway Pty Ltd was incorporated in 1984 with $100 in share capital. The shareholders, Sally and Alex were allotted 50 shares each. In the same year Sally and Alex lent $500,000 to the company in order for it to purchase a property. Years later, property was sold for $950,000. This is a capital-gain of $450,000 for the company. After repaying all of its debts the company has approximately $400,000 in the bank at the time that Sally and Alex decide to wind-up the company.

Using the De-registration option, Holiday Getaway Pty Ltd are required to distribute the remaining cash to Sally and Alex before De-registration can occur. Apart from the initial $100 that was invested in the company, the rest of the cash is considered an unfranked dividend and will be taxed as such. Based on the top marginal tax rate of 45% there will be $179,955 owed in tax on the remaining $399,900.

If Holiday Getaway Pty Ltd elects to undertake the process of Members' Voluntary Liquidation the distribution of assets will be tax-free to Sally and Alex.

As demonstrated in the above example there can potentially be significant tax benefits to the shareholders of a company if Members' Voluntary Liquidation is implemented. However this may not be the optimal outcome for every situation. It is also necessary to consider the administration, legal and other costs associated with this process. This is why it is increasingly important that you seek the advice of professional accountants and lawyers when considering winding-up your company.

At The Quinn Group we have a team of highly qualified lawyers and accountants who will be able to advise you on the best method for your situation. If you require advice on the winding-up of your company or would like more information please contact us on 1300 QUINNS or submit an online inquiry form.

The Quinn Group is an integrated, accounting, legal, and financial planning practice offering expert advice to help you achieve your business and personal goals. With more than 15 years' professional experience, we are committed to building long-lasting relationships with our clients by providing superior service in a timely and cost-effective manner. For more free advice please visit Tax Lawyers.

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Business Re-Structuring

There are a range of reasons that business owners may need to consider re-structuring their business.


* Your business is experiencing cash flow problems;

* Your creditors are demanding payment of outstanding accounts and threatening legal action;

* You're finding it hard to remain within your overdraft limit;

* Your bank is making demands;

* You have inherited company liabilities as a result of personal guarantees provided;

* You are unable to make payments to the ATO on time

Then you may need to look at restructuring your business as a method of getting it back on its feet and heading in the right direction.

Taking action to get a distressed business back on track is generally the best option for all involved. Following a comprehensive independent review of the business, if it is deemed that restructuring is a viable option the next step is to determine which particular restructuring components best suit the individual situation. Some possible options include restructuring the business, the disposal of some divisions/assets that are not performing well or possible refinancing.

The range of areas that a business restructure can affect reach far and wide. Such areas can include control of the business, asset protection planning, capital gains tax, stamp duty, income tax, GST, land tax, payroll tax, estate planning and succession issues. Depending on the individual situation this can have either be a positive or a negative effect.

Specific examples include that if a sole trader or partnership decides to incorporate, under certain conditions, they may be eligible to deduct, over five years, costs incurred by them in relation to the incorporation such as legal, search or lodgement fees. On the flip side, another entity may be liable for stamp duty on the transfer of assets, capital gains tax and possible loss of tax benefits that the current business structure is eligible for.

It is said there are two types of expertise that are required in order to implement a successful restructure, traditional and contemporary. A knowledge of traditional legal and accounting practices is necessary in order to address areas such as taxation, the rights and shares of owners and the ownership of various types of assets.

Additionally, an up-to-date, working knowledge of the modern business arena is needed to aid the development of modern business models, as well as to improve workflow management and online business and leverage with third parties. This contemporary expertise assists many businesses to operate cheaper, faster and better than their competitors.

As has been demonstrated, there are many issues to be aware of when looking to restructure a business, which is why it is extremely important to enlist the help of professional lawyers and accountants.

At The Quinn Group the highly qualified team of both accountants and lawyers are well equipped to assist you with your business restructuring needs. Having all your needs met by one firm ensures timely and cost effective solutions for you business. Contact us on 1300 QUINNS or click here to email your enquiry.

The Quinn Group is an integrated, accounting, legal, and financial planning practice offering expert advice to help you achieve your business and personal goals. With more than 15 years' professional experience, we are committed to building long-lasting relationships with our clients by providing superior service in a timely and cost-effective manner. For more free advice please visit Tax Lawyers.

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Small Businesses Can Have Boards Too

There is the common perception that Company Boards are associated only with large scale corporations and are usually comprised of highly (over) paid, but highly experienced executives.

In today's competitive business world small business owners are beginning to realise that they too can benefit from having a board of expert advisors to assist with various aspects of the business' growth and direction.

As with large company boards, the benefit for the small business owner is in gathering together a group of people who can advise in different areas of the business. The challenge is finding the right mix of people to comprise the board and ensuring that they have the right mix of expert knowledge. For example, if a board is made up of mostly accountants and lawyers, there is limited advice on sales, marketing, IT and technology or HR. Hence some areas of the business will receive a lot of attention and be quite proactive and forward thinking, but the balance will be thrown out and the business will find it hard to progress as a whole and maximize its potential in all areas.

Unlike the formality of a Company Board, small businesses that put together their own group of advisors have some flexibility in the structure that they employ. They may chose to pay each advisor a fee for their advice or perhaps they may be lucky enough to secure an arrangement where the advice is provided free of charge, each case will be different. Similarly, it may not suit your business to have regular meetings where all board members are required to attend; the business owner may choose to meet with each advisor separately.

If you are a small business looking to put together a board of experts you should consider having at least one member who can advise you in each of the following areas:

Accounting and Finance

It is important to include your accountant on your Board of Advisors. They will not only be able to advise you on cash flow, tax and other related areas, but the information that they are able to provide may assist the Board and other advisors in their decision making.

Sales and Marketing

A sales and marketing advisor can offer a different and fresh perspective on ways to promote your business and improve sales processes. They do not necessarily have to be from a similar industry either, in some cases it may be advantageous that they are not, as they will be able to bring new ideas that perhaps no one else in your industry is doing.

Human Resources

For many businesses, one of their most valuable assets is their people, or employees. Consequently, having a Human Resources specialist on the Board will help to ensure that the company's employees are "looked after". This is important as employees are an integral part of any business and should be given just as much consideration as finance and marketing initiatives.

IT and Technology

It is not always a necessity all small businesses to have an expert in the IT and Technology field. However, if your business relies on technology as an integral of you operations then it may be advantageous to have someone on board who is skilled in this area and able to not only present practical advice on current systems but is also knowledgeable on current trends and latest developments that may assist in further developing your business.

At The Quinn Group we are consistently advising growing numbers of small business owners on the advantages of having a Board of Advisors. We are able to provide recommendations on what would make the best Board structure for your business. We are even able to recommend people for you to approach regarding providing advice to your business. If you would like further advice regarding establishing or revamping a Board for you business please contact us on 1300 QUINNS or click here to submit an online enquiry.

The Quinn Group is an integrated, accounting, legal, and financial planning practice offering expert advice to help you achieve your business and personal goals. With more than 15 years' professional experience, we are committed to building long-lasting relationships with our clients by providing superior service in a timely and cost-effective manner. For more free advice please visit Tax Lawyers.

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Tips to Avoid Trouble For Construction Contractors

Construction contractors are in a profession that constantly remains in high demand. Because of the variety of projects that come their way and the often large scale makeup of many of them, it's important that contractors have the proper contractor legal representation and are fully apprised of their rights. Here are some legal as well as project tips for contractors.

1. Hire the best contractor legal representation you can afford: This is not an area to scrimp and save money. Your legal representation is what will often get you out of sticky situations. Therefore, make the investment in a knowledgeable attorney that knows how to win when necessary and keep you educated on the process.

2. Maintain a full understanding of both your rights and responsibilities: As a construction contractor, you have certain rights in terms of the work you do as well as responsibilities. For example, when beginning projects, it is your right to present a budget and timeline to the client which you think is reasonable and fair. They may or may not accept it, but you must bid according to what you actually think you can do. It is your responsibility as a contractor to stick with the budget and timeline you agreed upon and not try to gouge the client out of more money or time if unnecessary. You need to have a full understanding of what the law says are your rights and responsibilities in your chosen profession.

3. If a legal quagmire presents itself, seek the advice of your personal counsel quickly: Don't try to work it out yourself; that will likely only make the situation worse. Instead, write down an account of what happened and immediately seek contractor legal representation. In most instances, they will advise you on your legal rights, but may also give you tips on how to diffuse the situation without taking it to court.

4. Get everything in writing and notarized, with copies to your attorney: This is for record-keeping purposes and ensures that in the event that you need contractor legal representation, you have written forms of backup.

These tips will not only ensure that you understand your contractor rights, but also help to keep you out of legal messes. Maintain close contact with your attorney and be sure that they are completely familiar with your business and the overall contractor industry. For this reason, it's best to go with a lawyer that specializes in this field as they will be well versed in case law. Moreover, make sure your lawyer knows to work closely with your union representation, if that is an option available to you in your area.

To know more about constructor contractor problems and contractor legal representation, please browse through our website

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Monday, January 26, 2009

OSHA's Role in Workplace Safety

Employers are responsible for protecting the health and safety of their employees. Over the past few decades several health and safety laws have been passed to ensure the safety of workers and protect them from hazards in the workplace. The Occupational Safety and Health Act of 1970 requires employers to provide a workplace that is free of hazards and to comply with occupational safety and health standards. Congress created the Occupational Health and Safety Administration (OSHA) to enforce these standards and to provide information on safety and health, training and assistance to employers and workers.

Workers in both the public and private sectors are covered by an OSHA Regional Office under federal supervision or by an OSHA program operated by their state. Twenty-three states operate state OSHA programs and they must be as effective as the federal program and provide similar protections for workers. All states conduct inspections and respond to worker complaints. The states also provide additional health and safety services such as on-site consultation for small businesses.

OSHA grants workers important rights and they have a vital role to play in the identification and correction of workplace problems. Often, once notified of a hazardous condition, an employer will correct it promptly. An employee can complain about conditions that are threatening health or safety. Complaints can be filed in person, by telephone, by fax, by mail or electronically through the OSHA website.

OSHA requires workers to comply with all safety and health standards that apply to their actions on the job.

Employees should:

• Follow their employer's safety and health rules and use or wear all required gear and equipment.
• Read the OSHA poster.
• Follow safe work practices for the job and follow the employer's rules.
• Report hazardous conditions to a supervisor or safety committee.
• Report hazardous conditions to OSHA if the employer does not correct them.
• Report any job-related injury or illness to the employer and seek treatment promptly.
• Exercise rights under OSHA in a responsible manner.

The Occupational Safety and Health Act requires employers to provide a safe and healthful environment free of any recognized hazards. The employer's responsibilities also include providing training, medical examinations, and record keeping.

OSHA issues standards which are rules to protect workers against many on-the-job hazards.

These standards:

• Require the use of certain safety practices and equipment
• Require employers to monitor hazards and maintain records of workplace injuries and illnesses
• Limit the amount of hazardous chemicals employees can be exposed to.

If an employer does not comply with OSHA standards, he can be cited and fined. An employer can also be cited under OSHA's General Duty Clause, which requires employers to keep their workplaces free of serious recognized hazards. This clause is usually cited when there is no specific OSHA standard which applies to the hazard.

OSHA has taken many steps to ensure workplace safety but the cooperation of all employees is also necessary in maintaining a safe and productive environment. specializes in products that promote safety in the workplace. We carry a large supply of everything from spill kits to industrial absorbents.

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Labor Unions

Many workers are members of labor unions. A labor union is an organization of workers, usually working for the same employer at the same workplace. Labor unions try to get a "collective" contract for their workers.

The laws governing labor unions are very complicated. Therefore, if you are faced with a union "organizing" drive at your workplace, you should contact a labor lawyer immediately to make sure that your response to the organizing drive is legal.

• What is a "union contract"?
• Are non-union workers covered?
• Do I have to provide employees with a copy of the contract?
• Will the union contract limit my right to fire an employee?
• What is a "grievance"?

What is a "union contract"?

If your employees belong to a labor union, they probably already made a "union contract" - also called a "collective bargaining agreement" - with you. That contract covers wages, working conditions, and procedures for complaining about problems on the job.

Are non-union workers covered?

It's possible, because most unions bargain for a contract that represents all of the other employees at the workplace - whether or not they are actually members of the union. If a worker is covered by a union contract but is not a member of the union, it is possible that the worker will still have to pay the union a fee for negotiating the contract.

Do I have to provide employees with a copy of the contract?

It depends. Usually the terms of the contract cover your obligation to provide a copy of the contract to the employees. Often, you are supposed to provide the employee with at least one copy of the contract.

Will the union contract limit my right to fire an employee?

Probably. Union contracts usually provide that workers can't be fired, suspended, or disciplined without "good cause." That rule is usually found in a section of the contract titled "Grievance Procedure" or "Discipline."

If an employee thinks you didn't have "good cause" to fire or discipline, he or she generally contacts the union. The union may decide to file a "grievance" for the worker against you. If the union files a grievance against you, you should see an attorney who specializes in labor law, who should help you decide how to defend against the grievance. If you have questions about labor unions, contact a business lawyer near you.

Henry Dahut is an attorney and marketing strategist who works with some of the largest law firms in the world. He is the author of the best selling practice development book, "Marketing The Legal Mind" and offers consulting services in the area of strategic branding and law firm marketing. Henry is also the founder of the legal online help-portal - the award winning site that helps people through serious legal and financial trouble.

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Family and Medical Leave Act (FMLA)

The federal Family and Medical Leave Act (FMLA) requires large employers to permit employees to take up to 12 weeks of unpaid leave if they become seriously ill, have complications due to pregnancy, become a parent, or need to care for a family member who has a serious health condition. Not all employees are entitled to this leave.

Your state might have a law that covers more employers or gives greater rights than the federal FMLA.

Some employers give leave benefits greater than FMLA requires.

• Which employers are covered?
• Notification of rights
• How long does an employee have to work?
• Must I grant leave to part-time employees?
• In what situations must I grant leave?
• Which family members are covered?
• What illnesses are covered?
• Amount of leave
• Find a Business Lawyer Now

Which employers are covered? FMLA applies to companies with 50 or more employees, either at the place where they work or within a 75-mile radius of where they work.

If you are a smaller employer, you are not covered by the FMLA. However, employers with more than 15 employees must grant pregnancy disability leave. And some states require smaller employers to give leaves.

Notification of rights Employers must post notices that tell employees about their rights under the FMLA. If you have an employee handbook, information about FMLA leave should be in that handbook. If you do not have an employee handbook, you should consider contacting an experienced employment lawyer to draft an employee handbook for your business.

How long does an employee have to work? The FMLA applies only if the employee has been working for you for at least one year.

Must I grant leave to part-time employees? Only employees who have worked for you at least 1,250 hours (an average of 25 hours per week) during the past year are allowed leave under FMLA.

In what situations must I grant leave? If your employee is covered by FMLA, family and medical leave must be granted in the following situations:

The employee suffers from a "serious health condition" that makes it impossible to perform the main duties of the job, or;

The employee needs to care for his or her child, parent, or spouse who is suffering from a "serious health condition," or;

The employee needs to care for a newborn child, a recently-adopted child, or a child who was recently placed in foster care with the employee, or;

The employee needs time off to get prenatal care, to care for a pregnancy-related illness, or to give birth to a child.

Which family members are covered? Employees can take family and medical leave for their own illnesses, as well as the illnesses of their spouses, parents and children. The law does not require you to give employees time off to care for anyone else, including brothers, sisters, grandparents, grandchildren, or domestic partners.

Henry Dahut is an attorney and marketing strategist who works with some of the largest law firms in the world. He is the author of the best selling practice development book, "Marketing The Legal Mind" and offers consulting services in the area of strategic branding and law firm marketing. Henry is also the founder of the legal online help-portal - the award winning site that helps people through serious legal and financial trouble.

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Sunday, January 25, 2009

If You Are Good at Science and Want Good Money Consider a Patent Law Degree

What is Patent Law - Intellectual Property Law?

There are four main types of intellectual property: patents, copyrights, trademarks and trade secrets. The patent system exists in most industrialized countries and is designed to reward inventors and authors. Patents are granted by the US patent and Trademark Office (USPTO), where patents are carefully examined and protection granted for those that meet legal standards.

Copyright protection is governed by federal law and applies to literary, musical and dramatic works, to name a few. The owner of a copyright has the exclusive right to reproduce and distribute copies of their work. Limited use of the copyright work is allowed for education and research purposes without the permission of the copyright owner.

Trademarks can be a single word, or a group of words or a logo that is used for sale of goods. The owner of a trademark can exclude others from using it in the sales of their goods. It not only protects the trademark owner but the public as well as it minimizes confusion, and buying something that is in fact something else.

Required Education and Coursework

Patent law is a specialized field within the practice of law. To enter into this profession, you will need to accomplish a number of things. First you will have to obtain a college degree. Then you will have to enter and finish law school as well as pass the bar exam. Once you pass the bar exam, you then become licensed to practice law.

If you are thinking about specializing in patent law, it is best if you obtain a college degree in engineering, physics or natural sciences such as chemistry and biochemistry. To succeed in this profession a general knowledge, understanding and liking of science is a must.

Patent law degree programs cover courses such as intellectual property, copyright law, patent law and policy, trademark law and unfair competition, antitrust, bioethics, genetics and the law, international intellectual property, international trade law as well as patent claim drafting. This list is in no way exhaustive but it does give you an idea of the curriculum and skills targeted and developed within this profession.

Careers with Patent Law Degree

Patent lawyers work in a variety of settings, from corporations and law firms to universities and government agencies. In corporations, you would work as an in-house counsel. You would have expertise in the technology of your corporations and your main task would be driven by the business of the corporation. In law firms, you would have a wide variety of clients and would practice patent law across a wide spectrum of technologies. At universities, you could work as a law professor. In these types of positions, you would not only teach but have the time to do research and write articles and presentations on intellectual property law. The federal government employs a large number of patent lawyers. In this role you would represent the government and litigate on behalf of government agencies.

A Day in the Life of a Patent Lawyer

Patent lawyers spend most of their time in procurement and licensing of patents. Procurement of a patent begins with the inventor describing his/her invention to the lawyer. You would then have to evaluate your client's description and think about its utility, novelty and obviousness of invention. Your job at this stage is to evaluate if your client's idea can be labeled a valuable patent and if a patent application should be filed. In order to accomplish this task successfully you will have to have great mastery of law but also the technical field involved.

Let's say a decision is based to apply for a patent. Your job then is to draft a patent application and file it with USPTO. The application is rather elaborate and includes a detailed description of the patent, how it is made and how it will be used. A significant portion of the application defines the inventor's patent rights. Once filed, the application is assigned to an examiner. As a patent lawyer, you would be the main contact person for the examiner and would need to spend many hours in correspondents with the goal of getting a favorable final action for your client.

If the patent application is not approve, you would be responsible for filling appeals to the decision to the USPTO's Board of Appeals or even to the US Court of Appeals for Federal Circuit. However, if the patent application is approved, you will then develop and investigate licensing and filing corresponding patent applications in other countries.

Patent Lawyer Salary - How much could you make?

If you like what you read about patent law so far, you are going to love what comes next! According to, in 2005 the average patent lawyer salary was $115,000. The American Intellectual Property Law Association reports the average salary to be over $180,000. If this surprises you, it should not. Keep in mind that you must have a strong science or engineering background in order to become a patent attorney. Due to such high education demands, this specialization of law is more in-demand that other legal areas of practice. As a result, salaries are high.

Maja Aleksic has a doctorate in education psychology and has worked for both the Arizona State Department of Education as well as a prominent Arizona High School District. For more tips and advice on choosing the best online law degree program, courses and career opportunities go to for up to date education news.

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Hiring a Good Professional

Having a solid relationship with a CPA or financial attorney can be a huge advantage especially if you run your own business. This is a very important relationship that you shouldn't overlook.

In the business world having the right financial professional in your corner is almost like having a partner. They can answer many business management questions and even help in your personal finance issues. The right financial professional can advise you on many other services, which could include advice on your accounting system, your financial performance, estate/tax planning, and even your retirement. They can even advise you in the right direction for a business loan.

Now let's dive in and look at some tips for hiring the right financial professional.

First and most important you need to do a thorough search for the right person. Check their background. This could include schooling and any former employers or work history in general. Next you need to verify the professionals' credentials. Many of the so called professionals are working unlicensed or not educated in finances. You definitely need to check references. If they have bad references you need to know because one wrong step and they could put you into a bad credit rating. This step may take some time but it will be worth it in the end.

You need to be sure that you are comfortable with the person. You don't want to get involved with a financial professional and find out that they are trying to damage your credit or any other investment you're trying to make. Going to a few lunches and informally talking can be a sure sign if you have chemistry. A last thing you should look at is will this person help if you have any special needs. These special issues could include everything including bankruptcy.

For more Information on this topic visit a free Online Home Improvement Directory in 100 Cities in North America. Featuring over 2 million Real Estate classifieds, helpful articles, contests, home improvement videos, virtual home tools, Qualified Trades people, ask an expert, a moving center, get free quotes for Insurance, Moving, Mortgages, Contractors, Find Foreclosures and a finance blog that will save you money on bank rates & credit card rates.

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Will Bankruptcy Leave You in the Dark? Answers About NJ Bankruptcy Laws and Utility Service

Immediately upon the filing of a bankruptcy petition, no creditor may pursue or commence an action against the debtor (person filing the petition). It's the law. Therefore, after the filing, a utility company may not terminate the debtor's service, even though there may be substantial arrears. Also, in the event that the debtor's service was terminated prior to the filing, the service must be restored, upon notifying the utility provider after the filing. Generally, the provider will restore the service within 24 to 48 hours after the filing.

The bankruptcy code states that within 20 days after the filing, the debtor must pay a security deposit to establish a new account. Each utility company may apply a different criteria in determining the deposit amount. The utility companies generally apply the following criteria to determine the amount of the security deposit: 1. average monthly usage for the 12 months prior to the filing; 2. average of the highest two months of usage during the 12 months prior to the filing; 3. twice the average monthly usage for the 12 months prior to the filing.

Is the debtor required to pay the pre-bankruptcy debt owed to the utility provider? If the debtor has filed for chapter 7 bankruptcy protection and meets all of the requirements for a discharge, the debt is eliminated without any payment. After a debtor has established a new account, subsequent to a chapter 7 discharge, the utility company may terminate the service for payment arrears, based on their typical standards.

The following pertains to chapter 13 protection. An individual may file a chapter 13 case for numerous reasons that are unrelated to utility issues. A chapter 13 typically requires the debtor to make monthly payments to a trustee (bankruptcy administrator) over a 36 to 60 month period. The trustee payments may be paid to various creditors based on the debtor's financial position and desires. Utility debt is classified as unsecured. The debtor may be required to pay none, some, or all of their unsecured debt, based on the following factors: personal and household income; personal and household expenses; real and personal property values; amount of arrears on secured debt; and, to some extent, the debtor's desires. A chapter 13 may permit the debtor to eliminate the entire utility balance, without payment.

Similar to a chapter 7, in the event that a debtor falls behind with the utility payments after the chapter 13 filing and the establishment of a new account, the company may terminate the service, based on their typical standards relating to payment default.

For more information on bankruptcy laws in New Jersey, visit

Robert Manchel is a New Jersey, Board Certified Consumer Bankruptcy Attorney, whose practice is limited to foreclosure resolution and bankruptcy law.

For more information, please contact Mr. Manchel at (856) 797-1500, 1(866) -503-5655 or go to his web site.

Robert Manchel handles cases from the following counties: Cumberland, Atlantic, Salem, Gloucester, Camden, Burlington, Hunterdon, Somerset, Middlesex, Ocean, Mercer, Monmouth, and Philadelphia.

Disclaimer: The bankruptcy laws are complex and may be applied differently, in each case, and State. There may be numerous exceptions and variations for each law and rule. Do not rely on the information provided in this article. If you are considering filing for bankruptcy protection or have foreclosure issues, you should consult with an experienced lawyer. We are a debt relief agency. We Help people file for bankruptcy relief under the bankruptcy code.

Robert Manchel, The Law Offices of Robert Manchel, 1(866) -503-5655,,

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Intellectual Property Management & Budget Cuts - Have Your Cake and Eat it Too!

Unless you've been shipwrecked on a remote island in the South-Pacific, you are probably aware that we've got somewhat of a global economic downturn on our hands. While no one really knows how long it will last, everyone can attest to the fact that it is having an effect on what had become a fairly comfortable state of "business as usual." Already we are seeing the all too predictable rounds of budget cuts and layoffs at many companies in a multitude of industries.

IP departments and the portfolios they manage are often perceived as matters of legal expense and are often the target of corporate cost cutting measures. In the economic downturn they are being asked to contribute even greater expense reductions to the corporate good. While it is easy for a corporate finance department to arbitrarily allocate a 20% budget cut, it is not always easy for the IP department to implement those cuts. Should the cuts come from allowing certain patents to expire? What if they are core to a revenue stream of the company? Should the cuts come from applying for fewer patents? What impact will those cuts have on the future competitiveness of the company? Cost savings can be realized, and companies can strategically manage their IP portfolios at the same time. Making them more efficient in the short term, without sacrificing competitive advantage in the long term.

In tough economic times, IP departments are caught between a rock and a hard place: asked to spend less (cut your budget by 20% please) while ensuring future revenue streams are protected (you better not let anything slip through the cracks). The "rock-and-a-hard-place" analogy is probably not harsh enough. A more applicable analogy is one of being caught in a vice: on one side the need to lower expenses is pushing in. On the other side, the need to protect the company's business strategy and future revenue streams is squeezing in the opposite direction. There is constant pressure. The effect of the economic downturn is to apply a few additional twists to the vice, squeezing IP departments even harder.

It is possible to do both: reduce expenses (and be more efficient), and be strategic with your IP portfolio at the same time. In fact, some research points to the possibility of being able to reduce IP expenses, while freeing up resources to focus on more strategic IP issues.

Lesson from the Past

When companies sought efficiency from CRM solutions, they did not focus solely on cost reduction at the expense of losing valuable customers. They took a strategic approach that included being more efficient and saving money. For example, they used the exercise as an opportunity to focus appropriate resources on the most valuable customers, and consciously decided it would be okay for other non-core or non-profitable customers to leave the fold.

IP management should be handled in a similar manner. IP departments should become more efficient and reduce costs, but not at the expense of the competitive advantage their business derives from its IP portfolio.

Reduce IP-related expenses: streamline communication with outside counsel firms, say good-bye to the multitude of partial-hour billing line items related to administrative overhead & communication, prioritize invention disclosures so only the most important inventions evolve to a patent application, allow unused patents to lapse.

Be more efficient: automate the more repetitive tasks & workflows, keep more files electronically in the database of your IP management solutions so they are easily accessed by those who need them. Free up your employees to focus on more value-add activities such as mapping patents to products, business units, technology segments, etc.

Be more strategic: analyze the results of your portfolio mapping, assess relative areas of strength and weakness, rate & rank patents by relevant business grouping, set & measure progress against patent production goals that align with the growth plans of the company, profile competitive IP portfolios, patent for strategic advantage in your market.

It has been said recently that no company has ever saved its way to success. Successful companies invest their way to growth. They invest in innovation. They invest in business process and infrastructure, and they invest in their people. The companies who invest in IP and their ability to strategically manage their IP portfolios will benefit from cost savings in the short term and competitive advantage in the long term.

Ron Carson is VP of Marketing for Innovation Asset Group, an intellectual property management solution.

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Saturday, January 24, 2009

Investors in the Green Economy - You Could Lose Your Investment by Not Understanding Relevant Patent

With President-Elect Obama's announcement that he will establish an "Apollo Project" to develop a Green Economy, there is no doubt that "the Green Technology train has left the station." Indisputably, investors will start to invest heavily in companies that appear to possess commericializable Green Technology that will enter the marketplace as the US embraces the Green Economy and develops the necessary infrastructure to make this happen. Before staking a claim to one or more of these companies, however, investors should understand whether existing patent rights owned by third parties could undermine the investment potential of even the most promising Green Technology innovators.

Anyone seeking to capitalize on the Green Economy and its attendant Green Technology must recognize a fundamental reality of US patent law: in granting a patent, the Patent Office cares only that an invention is useful, novel and nonobvious. Significantly--and this is the rub for investors in Green Technology companies--the Patent Office cares not a wit that an invention has commercial significance either today or in the future. As a result, many patents exist today for inventions that did not possess commercial viability when the patent issued, but that cover Green Technology that today may be on the cusp of commercialization. The owners of such patents can (and quite likely will) enforce their rights against those companies that successfully introduce that same Green Technology into the marketplace. Put simply, investors in Green Technology innovators must be hyper-diligent to ensure that inventors who had the same idea but could not commercialize that technology do not derail their commercial plans.

A salient and well-known example of an inventor extracting a patent toll from a successful innovator is found in the infamous NTP vs. Research in Motion ("RIM") patent litigation. In this case, NTP acquired patents issued in the early 1990's to email technology for use on mobile devices. The inventor of the NTP-owned patents never commercialized the patented technology and the patents issued several years before RIM introduced the technology into its BlackBerry(r) device. Nonetheless, after several years of contentious litigation, RIM settled with NTP for over $600 million. The huge settlement was bad enough, but RIM also suffered from loss of market share due to the uncertainty resulting from the litigation, which certainly led to significant additional financial loss. No doubt investors in RIM would have liked to know about the NTP-owned patents prior to making their investments in this mobile email innovator.

Many people reference the NTP vs. RIM case using the term "patent troll litigation." However, it would likely be wrong to characterize the owners of patents to not-yet-commercialized Green Technology with the pejorative "patent troll." Many reasons can be present for such patented inventions having failed to be successfully commercialized, not the least of which is that a market simply may not have existed at the time the patent covering the technology issued. In the US, however, any inventor owning a patent possesses superior rights to the patented technology over one who successfully commercializes that same technology. In short, inventors' US patent rights trump those of innovators. (Note that this rule differs in some oher countries, where the patent laws require compulsory licenses from the patentee to those seeking to commercialize the patented technology.)

So what does all this mean for those who seek to capitalize on the emerging Green Economy by investing in innovative Green Technology companies? At a minimum, Green Technology investors must endeavor not to focus solely on the viability of the technology itself such that they fail to determine whether another party owns superior rights to that technology. To this end, Green Technology investors must obtain Freedom to Operate opinions, which will inform them whether the technology of interest is covered by a third party's patent rights. While this may seem like an obvious step when vetting a new Green Technology investment, I am nonetheless repeatedly surprised that even sophisticated VC's and private equity investors fail to conduct the most basic of Freedom to Operate analyses before moving forward with an investment decision in a technology company.

A Freedom to Operate analysis should only be the first step when investing in a potentially commercializable Green Technology company, however. An investor must also conduct what I call a "Permission to Innovate" analysis. A Permission to Innovate analysis tells the investor whether any third party patents exist that are close to the likely development and commercialization path of the relevant Green Technology. A knowledge of such closeness is critical to know when a technology is yet-to-be commercialized because an innovator must be able to develop technology freely in response to market forces. A Permission to Innovate analysis will provide the investor with knowledge of whether the area of Green Technology in which she seeks to invest is crowded with third party patents that could limit the freedom of a Green Technology company to innovate in the future.

Many investors will see the emerging US Green Economy to constitute a possible "gold mine" and will rush to stake a claim. Nonetheless, investors would be well-served by realizing that good Green Technology ideas have been in existence for many years, and many of these ideas are covered by US patents. Investment success may hinge on knowledge of such pre-existing patent rights to ensure that a company's commercialization of promising new technology is not restricted by the person who first invented and patented that technology. As such, I believe it is critical for Green Technology investors to develop substantive patent knowledge of the relevant patent landscape prior to joining the Green Technology "gold rush.

Jackie Hutter is Principal of The Hutter Group, a leading provider of IP ("Intellectual Property") business counseling and competitive analytics to forward-thinking organizations that seek to maximize firm asset value by capitallizing on the power of intellectual property. She has over 13 years experience counseling innovation-driven companies, universities and business development and investment professionals in maximizing their firm intellectual asset value. Jackie was named a SuperLawyer(R) in Intellectual Property in Georgia in 2004, and she has been a frequent speaker on IP issues to her fellow lawyers. Jackie was formerly Senior Patent Counsel at a Georgia-Pacific LLC, where she had sole responsible for Dixie(R) patent matters and, later, the company's Chemicals business. Prior to joining Georgia-Pacific, Jackie was a shareholder at the prestigious IP firm of Needle & Rosenberg, PC (now Ballard & Spahr), where she represented mulit-national companies, universities and innovators in protecting their IP to create maximum asset value. Jackie has also been a patent and IP litigator, which gives her a unique perspective in how to maximize firm IP value by avoiding litigation. Prior to attending law school on a full academic scholarship and where she graduated with honors, Jackie obtained her M.S. in Pharmaceutical Sciences and she spent several years as practicing chemist at Helene Curtis (now Unilever). She is a named inventor on one U.S. patent. Jackie lives in Decatur, Georgia, in a groovy mid-Century modern house with her husband, 2 daughters and several pets.

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Protect Your Ideas - The 411 on Patenting

Do you have an idea so original and unique that you are afraid someone might steal it? You might even be tempted to keep it to yourself and never let it see the light of day. Well, an idea is only as good as what other people think of it. Your idea has no value if you are not exposing it to the real world. It is a fairly simple process to protect your ideas while showing them off to others and possibly making money all the while. It is called patenting and it is an exclusive right that you can have to eliminate others from copying your idea. A patent is in effect for a certain amount of time and it prevents anyone from making, selling or using your invention.

You might have always wondered, "Where do I start?" Little did you know you already began the process when you created your idea. Nice work. Next step is to ask yourself some questions. The first question you must ask yourself is what kind of idea do you have? Is it a process or method, machine, manufacture, composition, or new use? Secondly, ask yourself if your idea will be useful or ornamental? This means that it can have a new use or it can be a new design of an existing invention. Thirdly, is your idea novel? Is it a new and fresh idea that differs from the previous inventions or knowledge? Last but not least, how obvious is your idea? Would someone else easily come up with the same idea? I say that this step is not least, because it is the hardest requirement to fulfill. The less obvious your idea is the more likely it will pass the test.

Here are some tips to establish if your idea is obvious or not. Ask yourself again about the usefulness of your idea. Does it have great potential to be sold commercially? If you believe you have a winning idea then make sure you have evidence to prove it. Act like you already have been rejected and you have to plead your case to why your idea is viable in the marketplace. You will then be ready to back up your idea if need be.

So you still think you have something special? Well, now you need to take a visit to the U.S. Patent and Trademark Office website. This website provides great answers to any additional questions you may still have. You can also file a patent application, pay fees, and search patents. The patent process can take several years to complete. I know this seems like an extremely extensive time to wait, but you do not have to wait. You can start marketing your idea now and its success could make the patent process go faster. Just remember to put "patent pending" on your invention so others know that you are in the process of being patented. This is a precautionary measure to prevent people from taking your idea.

So now that you have stopped coddling your baby, aka your idea, you can let it grow into something big financially. Good luck!

Kelly Abbe has experience in counseling, professional presentations, and business consultation. Her business interests include woman specific recreation apparel and outdoor mentorship programs. Kelly is also currently enrolled in the Master's Degree in Entrepreneurship Program at Western Carolina University. Webmasters and other article publishers are hereby granted article reproduction permission as long as this article in its entirety, author's information, and any links remain intact. Copyright 2008 by Kelly J. Abbe.

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How Can You Prove You Wrote and Copyrighted Your Songs When You Said You Did?

The Law of Copyright is dead simple: there are just TWO simple steps to take -

1) You write something down on a piece of paper - it can be in words, or a design or a logo, or a piece of music, or a stream of data to create a ring tone or a program for example. Or record it on a CD or in a computer file. Then -

2) You write 'Copyright by' [YOUR NAME] and the date at the bottom. And Voilа! That's it. This is now your copyright under the law in over 160 countries. Nobody can use this without your say-so. But there's a problem with this. A HUGE problem...

The Problem is... Proving It.

If someone rips off your copyrighted material, they're breaking the law. Simple as falling off a log. But what's not so simple is actually proving that you copyrighted your story, your song, your music, your design, your data...when you claim you did - which is why Law Courts Worldwide are overflowing with cases of Copyright Infringement.

The United States Copyright Office provides the best established copyrighting service. (Many other countries, including the UK, offer no governmental copyrighting service). In fact, if you copyright using this US system, you can qualify for statutory damages if someone steals your stuff, same as J.K.Rowling, the 'Harry Potter' lady did in September 2008.

But it's pretty expensive - $45.00 per copyright. That's not a lot to successful songwriters like Diane Warren, or to authors like J.K. Rowling, but it's a lot to creative people often struggling to pay the rent. But it DOES prove that you copyrighted your stuff when you said you did.

What the US Copyright Office is actually doing is 'bearing witness' to the fact that you are the creator of your property. Because of the massive increases in Copyright Theft, independent companies have begun to offer similar services that effectively (and legitimately) 'bear witness' to the creation of Copyright.

Theft of Intellectual Property - Copyright Property - in the 21st Century is at pandemic proportions. At a global scale that has never been seen before. An incredible 58 Billion US dollars in Copyrights were stolen in the USA alone in 2007.

58 Billion is such a massive figure as to be difficult to understand. But the reality is that 58 Billion translates into over 6.6 million dollars worth of Copyright Material being stolen every hour of every day of the year.

Although the definitive Law on Copyright is well covered and established under the Terms of 'The Berne Convention on Literary and Artistic Works', actually proving that you Copyrighted your material when you said you did can be difficult - unless you have a credible 'witness'.

A simple, easy way to actually copyright your songs is to publish them yourself on the Internet. This creates copyright (provided you state it's copyright!) but it's very dangerous too; simply stating that your song is 'Copyright by [your name here and the date]' is no threat to people who decide to steal your music.

But if you publish your music using a 'Third Party Witness', someone or some company that can independently attest to the date and place you published your songs, then you're in a very strong position. This is, of course, something that the US and Canadian Governments provide, but it's not cheap at about $50 per song.

There are Internet companies now that offer a similar service but at the fraction of the price, bearing in mind that they are usually small, efficient, enthusiastic entrepreneurs as opposed to massive Government Offices with hundreds of Civil Servants shuffling papers.
using now offers

This form of online publishing and copyright, if done properly, can effectively provide independent verification that your song's copyright existed when you say it did.

Norman MacLeod, originally from Edinburgh, Scotland, is a writer, author and musician living and working in Spain. In 2008 he founded intelLoc, an online Self-Publishing Service for Songwriters, Composers and Authors, having had copyright material stolen by a US-based record label. intelLoc allows Songwriters, Musicians, Lyricists and Composers to publish and copyright their material online as they actually create it for a small fee. More details at

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