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The Texas Series LLC
by Scott Hively

After many decades of creative business entity innovation, the gold standard for today’s privately owned and closely held businesses is the Limited Liability Company (LLC). But does it get any better than the LLC? For real estate investors especially, the answer is yes! Meet the Series LLC. A Series LLC is an LLC, except that the owners can create multiple sub-entities within the LLC, which are called “series.” If done correctly (see a lawyer), each series is responsible for only the liabilities and obligations of that series, and the LLC generally is responsible for only the liabilities and obligations of the LLC generally. This is especially valuable to real estate investors who may own several properties. For example, if you own 15 properties, you could either: (i) leave them all in a single liability bucket with an ordinary LLC, leaving all properties exposed to the liability of each other property; or (ii) place each property in its own series, all within a single Series LLC—where the potential liability to which each property is exposed is limited to that specific property (assuming one property per series). The former option leaves all the properties exposed to all potential liabilities for the LLC, where the latter option effectively places each property in its own liability silo. As an added bonus, while the State of Texas treats each series as its own entity for liability purposes, the Series LLC is generally treated as a single entity for tax purposes—providing ultimate administrative efficiency. If you think a Series LLC might be right for you—especially if you are a real estate investor—then you should speak with a real estate and business lawyer to explore your options.
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Why are LLCs so popular? By Scott Hively

You may have noticed that most new businesses formed over the past decade or so have chosen to use the LLC (Limited Liability Company) form of business entity. It wasn’t always this way. In the past, the most popular business entity forms were partnerships or corporations, and the various hybrids of the two—LPs, LLPs, LLLPs, etc. So what makes the LLC special?

In short, the LLC is the best of both worlds—partnership law and corporation law—and is the most flexible form of business entity. The laws governing partnerships and corporations are at two ends of the spectrum, with the other entity types falling between the two. Unlike the other entity types that are relatively fixed along this partnership-corporate spectrum, an LLC can be structured to weave through both ends of this spectrum to capture the most advantageous aspects while avoiding the disadvantages associated with each other entity type. Take taxes for example: an LLC is the only entity type that can tell the IRS whether it wants to be taxed as a partnership or as a corporation. Depending on your particular situation (and tax bracket), one option or the other may be more beneficial to you. The same is true for other aspects of the business entity: management and control (day-to-day), authority for fundamental transactions (i.e., mergers), liability protection (generally, and liability for acts of other owners), corporate formalities, economic rights (who gets paid what and when), etc.

Because of the extreme flexibility of an LLC, the one-size-fits-all approach typical of a form downloaded from the internet is statistically more likely than not to frustrate your goals, rather than further them. If you are considering forming a new business entity, I would encourage you to consult an attorney familiar with such matters to guide you through the vast labyrinth of business entity options.
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On Thursday, June 25 at 11:00am, Wise Capital Partners will be hosting a Virtual Seminar on the topic of Estate Planning.

Our very own Scott Hively will give a high-level overview of the nuts and bolts of Estate Planning (in plain English for non-lawyers)!

A link will be provided at a later time, but prior to the Virtual Seminar. If you have any questions, or would like to register for this seminar, please see the link below or give Miriam O. Angel (of Wise Capital Partners) a call at 281-360-9473 ext. 304.

Feel free to share with others, and we look forward to seeing you all there!

Please register in advance for this meeting at

us02web.zoom.us/meeting/register/tZUlfu6vqjosGdAzqJBqgOhu0KtpIg0n0RnJ
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Extramarital Children and the Testamentary Trust
by Scott Hively

When drafting Wills for a married couple, one common issue that often arises is that one spouse (or both) has children from outside the current marriage, and wants to leave everything for their surviving spouse (the most common scenario)--yet also wants to protect their extramarital children from being effectively disinherited later on down the road. The precise issue is that by leaving everything to the surviving spouse, all of the estate could be spent, wasted, or given to others either during life or by the surviving spouse changing his or her Will, with the extramarital children, not being children of the surviving spouse, never receiving a single dime from their parent's estate.

One solution is to leave everything to the surviving spouse in a testamentary trust, with the surviving spouse serving as the trustee and the primary beneficiary--and the extramarital children as remainder beneficiaries. The trust can be set up to allow the trustee/primary beneficiary to enjoy all, most, or some of the property during life, and can provide for certain restrictions (i.e., may not sell my sports car). Upon the death of the surviving spouse (primary beneficiary), all trust assets would be distributed outright and free from trust to the extramarital children (remainder beneficiaries), thereby preventing the surviving spouse from doing anything, whether during life or in their Will, from effectively disinheriting the extramarital children.

If you have children that are not also the children of your current spouse, you should speak with an estate planning attorney to see if setting up a such a testamentary trust in your Will is the right move for you.
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Private Financing and Bank Regulations
~by Jeffrey W. Burnett

You may one day choose to sell real estate via seller financing or even loan a friend some money to purchase real estate from a third party, in either of which case you basically serve as the buyer's lender - you have a lien against the real estate, and the buyer pays you over time.

There are all sorts of federal and state laws (RESPA, Dodd-Frank, SAFE Act, etc.) that could potentially put you into the same regulatory category as a bank, requiring formal loan applications, good faith estimates and other documentation that you may not be aware is required, with pretty severe penalties for violation.

Private lenders should definitely consult with a lawyer regarding memorializing the transaction, but they should also consider consulting with a licensed mortgage broker to determine whether they are within the safe harbor for or, if not, then in compliance with, these lending laws.
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My Irresponsible Child – The Spendthrift
~by Scott Hively

As most people do, you may be considering leaving some (or all) of your estate to your children after you pass. A common issue arises where one (or more) of your children have demonstrated a clear inability to prudently manage his or her financial affairs. If such an individual receives their portion of the estate outright, you are sure it will be quickly squandered away. How do you prevent this?

One of the most common ways to ensure that such an individual receives the benefit of their portion of your estate for as long as possible is to create a Spendthrift Trust. Simply put, such individual’s portion of your estate would be irrevocably transferred into a trust (either during life or at death). The trustee would then make distributions to the beneficiary as needed, according to the terms of such trust. The undistributed principal and income of the trust assets remain legally in the name of the trustee—and therefore beyond a creditor’s reach until a distribution is made to the beneficiary (and then only to the extent of such distribution). There are pros and cons of setting up such a trust, so you should speak with an estate planning lawyer to learn more and find out whether a Spendthrift Trust is right for you.
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Needing a Loan for your Small Business?

Many small business owners are currently experiencing an acute shortfall in revenue due to the COVID-19 crisis, making it difficult to meet on-going expenses. Whether you are having trouble meeting payroll expenses or making your monthly commercial lease payments, if you own a small business you may have considered a loan to get you through these economically challenging times. While your lender will be able to guide you through the loan process, one recurring problem that your lender may be unable to help you with, and which can delay or derail your loan process altogether, is your inability to provide sufficient business entity documentation (as distinguished from financial/accounting documents).

For all loans, a lender is going to need to see official legal documents showing your entity: (a) legally exists; and (b) is in good standing with its state of formation/incorporation. You will also need to provide the official legal documents evidencing management authority for your entity--corporate bylaws or LLC operating agreement, for example. In most cases, a corporate board resolution or resolution of members/managers of the LLC will also be required to provide specific authority for the contemplated transaction. These requirements are the bare minimum that any lender would want to see before making a loan to your business, so if you are missing an operating agreement or any other type of business entity document, or if you have not been diligently documenting important transactions (such as the transfer of all or part of the business ownership interests from one person to another), then now is the time to get your business affairs in order.

You would be wise to speak with an attorney familiar with handling sophisticated corporate law matters in order to ensure that your business entity documents are complete, and if necessary, make certain business-entity level changes to prevent ineligibility for certain loans (if applicable). Many headaches can be avoided in the loan process through proper business entity planning and by having your business entity documents in order before you go see your lender.

Scott R. Hively, Associate Attorney
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Few things are more difficult and emotionally draining than picking up the pieces and resolving the legal issues left behind after a loved one has passed. We often hear from individuals who are simply trying to make sure that they and their siblings maintain and take ownership of “Mom and Dad’s” old home, and who are understandably overwhelmed in dealing with this process.

There are several options for how to handle the estate of a decedent, depending on the family situation (natural heirs), the property situation, and whether or not there was a Will. As you are likely aware—a full probate can be expensive! You should speak with a probate lawyer to determine your options so that you do not overpay for unnecessary legal services and court costs, while ensuring the path you choose will accomplish all of your probate-related goals.

For example, if the only asset of the estate is Texas real estate (no bank accounts, etc.), then a full probate of the Will may often be unnecessary. In such a scenario, a limited probate process called “Probate as Muniment of Title” can be used to transfer title of the Texas real estate to the beneficiaries named in the Will. This process is much quicker and less costly than a full probate, as it does not involve the appointment of an executor and an administration process after the Will has been admitted to probate by the court. In some situations when the beneficiaries named in the Will are the same as the decedent’s natural and statutory heirs (or in certain scenarios where there is no Will), it may be possible to bypass the probate process in the courts entirely with an even quicker and less costly process.

If however, there is any estate property other than Texas real estate (or if there is any non-mortgage debt of the Decedent, including Medicaid-related debt), a full probate of the Will—or an administration if there is no Will—may be required to properly pay estate debt to the creditors and transfer title of the remaining property to the beneficiaries. Even if a full probate would otherwise be required, in certain cases where the value of the estate falls below a certain threshold, a small estate proceeding may be available to transfer title to the natural and statutory heirs.

The costs for these options and services can vary dramatically from a couple hundred to several thousand depending on your specific needs and which type of probate-related process is necessary for your specific situation. If you find yourself in the unenviable position of responsibility for handling the affairs of a loved one after they have passed, then you would be doing yourself a favor by speaking with a probate lawyer to bring clarity to an otherwise convoluted process to the uninitiated.
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The Mortgage “Due on Sale” Clause.

If you took out a mortgage loan to purchase your home, that mortgage almost certainly includes what is called a "due on sale clause". That provision likely says that your FULL loan amount becomes IMMEDIATELY due if you transfer any part of your home to someone else.

I often receive calls from clients asking to add a child, parent, fiancee, etc. to their home title. I also receive requests to sell a home "subject to" the existing mortgage. These are all likely technical violations of the due on sale clause.

So, before you change title to your mortgaged home, please discuss any unintended consequences with an attorney.

*The above is a generic discussion and is not intended as legal advice. Each situation is different. You should hire an attorney to discuss your specific situation.
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Meet Sandy Galvan, our project manager and paralegal. Sandy (together with our attorneys) handles most of our institutional bank and title company matters. ... See MoreSee Less

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8 months ago

Jeffrey W. Burnett, PLLC - Attorneys

Thanks to Kayden Lee Photography for our wonderful photos! ... See MoreSee Less

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Meet Scott Hively, with our firm. Scott is involved in all of our practice areas, but he generally focuses on probates and estate planning, Please call Scott at 713-952-0104 to address your probate and/or estate planning needs. ... See MoreSee Less

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8 months ago

Jeffrey W. Burnett, PLLC - Attorneys

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8 months ago

Jeffrey W. Burnett, PLLC - Attorneys

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Beautiful day to be out at the St. Jude’s Golf Classic. Thanks again, players Adam, JT, Walt, and Casey. ... See MoreSee Less

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10 years ago

Jeffrey W. Burnett, PLLC - Attorneys

Corporate FormalitiesWhen you organized your business, you likely chose to do so using a corporate, limited liability company, or limited partnership structure.  You did this in an effort to insulate your personal assets from the liabilities of your company.  Simply forming your company may not be enough to protect your assets. It is imperative that you undertake certain “corporate formalities” in order to ensure that your company is indeed treated “separately”.  Some of those formalities include:Holding an annual meeting; Keeping records of those meetings (e.g. company minutes); and Maintaining a “company book”.You can focus on operating your business, and let our office host your annual meeting, record your annual minutes, and maintain your “company book”.  Please contact us to schedule your annual meeting.  If you are a lender or title company, please suggest that your clients contact us to discuss maintaining their company records. ... See MoreSee Less

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10 years ago

Jeffrey W. Burnett, PLLC - Attorneys

The Importance of Filing Your Texas Franchise Tax ReturnWhen you organized your business, you likely chose to do so using a corporate, limited liability company, or limited partnership form. You did this in an effort to insulate your personal assets from the assets of your company. Let’s say an employee of your company is involved in an accident in which the employee is deemed “negligent” (ideally, your company would have insurance covering such an accident). A lawsuit by any injured parties would be against your company, rather than you individually. As I have mentioned in prior newsletters, it is imperative that you undertake certain “corporate formalities” in order to ensure that your company is indeed treated “separately”.One such formality is the filing of your annual Texas franchise tax return (even when no tax is due). A failure to file that return on an annual basis will cause the State of Texas to revoke your corporate privileges, resulting in your company being synonymous with you individually. ... See MoreSee Less

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10 years ago

Jeffrey W. Burnett, PLLC - Attorneys

Rights of Third Parties to Assets Purchased by Your CompanyWhen your business purchases assets, or when you purchase a business, you likely assume that the assets are being purchased "free and clear", but that is not always the case. A search of UCC filings with the Secretary of State and the applicable county real property records can likely rule out bank liens. However, litigation claimants, governmental agencies (e.g. the State Comptroller with regard to unpaid Sales Taxes) and other potential third parties make up a secondary pool of parties with potential rights in purchased assets. You can often have your seller provide warranties and representations relating to any such claims and hire companies in the business of performing detailed searches to rule out such claims. We always recommend using competent legal counsel in order to draft such warranties and representations and to review such search results. ... See MoreSee Less

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