As Trust and Estate practitioners, we have heard many of the same myths and misconceptions about Estates, Wills and Trusts over the years. Below are the most frequent we encounter.\n1.	\nReading of the will\nWhile dramatic and often seen on TV or in movies, this is not the process in Georgia. Wills are most often hand delivered or mailed to all of a decedent’s “heirs at law”. Whether they are beneficiaries under the Will or not, heirs are entitled to a copy. Heirs are those individuals determined by Georgia law to be the closest degree of relation to a decedent. Typically, this is the spouse and children.\n2.	\nRevocable/Living Trusts provide creditor or tax benefits\nThis is likely the most common misconception and I have written about it before. Revocable or “Living” trusts offer zero tax (income or estate) or creditor benefits. In other words, you can not avoid tax or protect your assets by placing them in a revocable trust.\n3.	\nSurviving spouses are guaranteed a portion of a deceased spouse's estate\nThis is true in almost every state, except for Georgia. In Georgia, spouses may only petition the probate court for a “Year’s Support”, which is the amount of money they need to maintain their standard of living for one year, taking into account their current assets and income and a variety of other factors. In many cases, this is near nothing. Accordingly, Georgia is one of the only states in the country where you can effectively disinherit your spouse without their consent and without resorting to re-titling assets.\n4.	\nThe government gets your property if you don't have a Will\nThe government will effectively write your Will if you do not have one. However, the government does not get your assets unless no heirs, of any degree, can be found. If four years have passed since an estate has been opened and no person has appeared to claim property as an heir, the personal representative must petition the probate court for a determination that the property has escheated to the state. The assets will actually be transferred to the county board of education. \n5.	\nYou have to give a child at least $1 in a Will to disinherit them\nAnother common misconception is that in order to disinherit a child, you must give them some minor sum of money. Not only is this inaccurate, but it actually gives them the status of a “beneficiary” and thus potentially greater informational rights from the Estate. The only real exception is if a testator does not provide in the will for a living child solely because the testator mistakenly believed that the child was dead. \n6.           \nEveryone pays estate tax\nIn 2024, the basic exclusion amount for determining the amount of the unified credit against estate tax is $13,610,000. Further, the concept of “portability” effectively allows spouses to double these amounts between them. Accordingly, unless you own (or gifted during life) assets greater than $13,610,000 (or $27,220,000 if married), you will not owe any estate tax. There is also no inheritance tax in Georgia.\n7.           \nSpouses are liable for each other's debts\n \nAbsent a spouse contractually agreeing by way of a guaranty or other mechanism, you are not liable for your spouse’s debts, medical or otherwise. \n8.           \nYou have to file life insurance claims immediately\n \nWhile life insurance companies will encourage you to file immediately, there are often many reasons not to. One such reason is that Georgia law requires insurance companies to pay the policy beneficiaries a 6% return from the date of death to payment of proceeds. Despite their threats of considering the policy “abandoned” if you delay a claim, Georgia law also provides that life insurance proceeds may only be presumed abandoned after 5 years.\n9.           \nPersonal Representatives/Beneficiaries are liable for the debts of the Estate\nPersonal Representatives cannot be held liable for the debts of an Estate, absent a failure to follow the proper procedure regarding creditor’s claims. Beneficiaries likewise have no liability for Estate debts unless the estate shall have been distributed to them without notice of an existing debt. In such a case, a creditor may compel them to contribute pro rata to the payment of the debt, but only up to the amount they received.\n10.         \nProbate is expensive and costly\n \nProbate in some states can carry with it onerous taxes, fees, and procedures. In Georgia, probate proceedings are relatively inexpensive and efficient. Often times, the expense of probate is less than the expense incurred in drafting and keeping up with an estate plan in order to avoid probate. 

Bryan A. Schivera  

10 Common Estate Myths & Misconceptions 

Depositions are a critical component of the discovery process. They help shape the direction of a case and let lawyers collect vital testimony. Georgia has a set of specific rules and regulations regarding depositions. One of these critical rules is the time limit of the process. \nContinue reading to learn more about Georgia’s deposition time limits and what they depend on. \nDeposition: A Vital Cog in Discovery\nIn court trials, discovery is a vital process that helps exchange crucial information between both parties. The primary aim of discovery is to eliminate the element of surprise, ensuring that each side is well aware of the evidence. Depositions, the cornerstone of effective discovery, are \nout-of-court interviews\n conducted under oath. These sworn statements can be in the form of transcripts or video recordings. The process serves multiple purposes: \nCase Insights:\n The process lets lawyers learn the strengths and weaknesses of each side's case. By questioning witnesses and scrutinizing potential evidence, lawyers can identify critical points and formulate effective counter-strategies.\nSecuring Witness Testimony:\n Depositions are vital when a witness may be unavailable at trial. Their pre-recorded statements help the court hear their voice and consider their perspective.\nExposing Inconsistencies:\n Lawyers can reveal discrepancies between a witness's pre-trial statements and their live testimony. This can undermine their credibility and impact the overall weight of their evidence.\n \nGeneral Time Limits\nIn Georgia, the clock for depositions begins ticking after initiating the lawsuit. This is a procedural formality to ensure a fair and efficient legal process. \nDuration:\n \nRule 5.3\n of Georgia law specifically addresses the period of depositions conducted through oral examination. It is limited to one (1) day, encompassing seven (7) hours. This limitation aims to speed up the process while ensuring the examination remains focused. The court holds the authority to grant additional time in some circumstances. \nWaiting Period: \nLawyers cannot start a deposition spontaneously in Georgia. They must file a notice and adhere to the stipulated waiting period. This is typically 30 days after serving the summons and complaint. This strategic pause ensures overall fairness as it allows defendants to better prepare. \nHolding Period:  \nAfter the trial, the court retains the transcripts or video recordings for five years after the initial deposition or two years after the final disposition. This ensures the information in the testimony remains accessible for future reference or potential appeals.\n\nFactors Influencing Deposition Duration\nSeveral factors can impact a deposition's time limit and waiting period in Georgia. Some of them are:\nComplexity of the Case: One of the primary factors influencing the duration of a deposition is the case's complexity. In intricate legal matters, where the web of evidence is dense, lawyers may need additional time to examine witnesses and scrutinize relevant details. In most cases, the court acknowledges this complexity and allows the extension of deposition time if necessary.\nTechnical Challenges: Technical challenges can sometimes impede the smooth progress of depositions. From connectivity issues to problems with recording equipment, these challenges may extend the deposition duration. Technical glitches may grant additional time to compensate for any delays.\nWitness Availability: Depositions generally happen at times convenient for all parties, including the witnesses. However, unforeseen circumstances can impact witness availability. The scheduled deposition time may need adjustment due to unexpected events. \nAgreement of Parties: Sometimes, the parties involved can agree to modify time limits themselves. This might include extending deadlines for discovery or depositions to allow for additional negotiations or settlements. However, the court must document and approve these to ensure fairness and adherence to legal procedures.\nLawyer Expertise and Conduct: While not explicitly stated in the rules, a lawyer’s capability can indirectly impact deposition duration. \nExperienced lawyers \nwill be more adept at precise questioning. By avoiding repetitive inquiries, they can keep the deposition focused. On the other hand, less-experienced lawyers might extend the duration. Courts do not encourage extensions due to lawyer competencies.\n \nStrategies for Efficient Depositions\nThe following is a list of strategies to help conduct Georgia depositions efficiently. \nEarly Planning: \nDeposition planning should be an essential part of any trial. Lawyers and plaintiffs should discuss and identify key witnesses as early as possible. This allows the team to delineate the scope of questioning and anticipate potential responses. Conducting mock depositions can be a valuable preparatory tool to help identify potential challenges and refine questioning techniques. \nClear Communication: \nEffective communication is the backbone of any successful legal endeavor. All parties involved must communicate openly. Understanding the agenda, expected duration, and potential issues can ensure a focused and efficient deposition.\nFlexibility:\n Plaintiffs must embody a spirit of flexibility, adapting to unforeseen circumstances. Whether addressing technical glitches, accommodating witness unavailability, or navigating unexpected events, a flexible approach is paramount for a smooth deposition process. Legal proceedings are dynamic, and the ability to pivot when necessary ensures a more efficient deposition.\nRight Lawyer:\n Having the right lawyer at the helm is instrumental in effective deposition. A seasoned lawyer, well-versed in the nuances of Georgia's legal landscape, can navigate the deposition process with finesse. Their expertise expedites the proceedings and ensures that the deposition remains focused and aligned with legal requirements.\nA Knowledge of Technology: \n Understanding the technology involved in a deposition can help reduce the duration. It is vital for all parties involved to have a basic knowledge of the devices and processes. For example, lawyers can pre-load relevant documents and multimedia evidence for seamless presentation and efficient reference during questioning. This can help minimize disruptions during the process.\n\nIf you are a Georgia resident worried about your upcoming trial or deposition, you can consult a reputed law firm. \nOliver Maner LLP\n can guide you through the process, ensuring a smooth legal process. \nContact us\n today to learn more!\n

Is There a Time Limit on Depositions in Georgia?

Have you or your loved one suffered a personal injury due to an accident or intentional actions? To get the fair compensation you deserve, you should take legal action immediately after the incident. Read on to learn more about the statute of limitations. This state law sets a time limit on your right to file a personal injury lawsuit. \n
Statute of Limitations in Georgia\nA personal injury case is any event when a person suffers an injury or damages or dies due to negligence or deliberate actions of another person. It's helpful to know the legal terms in this context. A plaintiff is a person who files and serves the lawsuit. A defendant is the person who is accused of causing damage. The statute of limitations is the period the injured person or their eligible family member or representative has to file the lawsuit.

Most personal injury cases have a \nstatute of limitations\n that lasts two years. This time frame applies to the following types of claims:\nCar, truck or motorcycle accidents\nPersonal injury \nInjuries due to a defective product\nWrongful death\nFraud\nFalse imprisonment\nAssault and battery\n\nMedical malpractice\n\nSome claims have different statutes of limitations. Specifically, it is four years for loss of consortium and property damage and one year for workers’ compensation. A loss of consortium is a claim that can be filed by a spouse who is affected by the injury of their loved one. For example, a serious injury to the other spouse may lead to the loss of love, society and companionship. This type of claim has a four-year statute of limitations.\n If someone caused damages to your property, such as your car, you have four years to file a lawsuit against the defendant. If you want to file a lawsuit because you have a dispute with your employer due to your compensation after a work-related injury, you have one year after the accident to start a case.\nUnderstanding the Statute of Repose\n\nSometimes, it may be hard to tell when the clock starts running for the statute of limitations. Consider the following situations: \nA person develops terminal cancer as a side effect of a prescribed treatment. \nA person develops mesothelioma due to living in a house with exposed asbestos.  \nIn both cases, the person is not immediately aware of the damages caused by the medical treatment or the unhealthy conditions of their property. \n Therefore, the statute of repose applies in medical malpractice cases and injuries due to a defective product. This is a hard deadline after which any lawsuit would be deemed void. In the case of medical malpractice, the statute of repose applies after five years, and in the case of a defective product, it applies after 10 years. \n In other words, after five years of receiving treatment, a person cannot sue a healthcare provider for medical malpractice. After 10 years, the lawsuit against a property manufacturer would be void.\nTolling the Statute of Limitations in Georgia\nTolling means the countdown until the deadline to file a lawsuit pauses due to extenuating circumstances. These may include:\nThe injured person is younger than 18 years.\nThe injured person has mental incapacity.\nFraud\nThe injury could not be reasonably discovered immediately after the accident.\nThe individual who has suffered a wrongful death does not have a personal representative.\nIn these cases, the statute of limitations resumes once the extenuating circumstance is no longer valid. For example, after an injured child turns 18, they can file a lawsuit. \n
Reasons Why the Statute of Limitations Exists\nWe understand that suffering a personal injury due to someone else’s negligence or purposeful actions is emotionally challenging. While emotions make it hard to focus on the legal procedures right after the tragic event, the statute of limitations exists for good reasons. \n When time passes, evidence gets lost, and memories of witnesses fade. These facts of life make it harder for an injured person to prove their injuries or for the defendant to defend themselves. Statutes of limitations ensure that legal proceedings are fair to all parties.\n
Getting Help With a Personal Injury Case\nAn experienced \nlawyer\n can help determine how much time you have to bring a lawsuit. They will also determine whether any extenuating circumstances apply. You should seek legal consultation as soon as possible because the quicker you file the case, the more time your lawyer has to develop a winning strategy. \n
Types of Damages in a Personal Injury Case\nA lawyer will seek compensation for your economic or non-economic damages. Economic damages are expenses or losses caused by the accident. These include:\nEmergency, non-emergency, and ongoing medical care\nLost wages\nReduced earning capacity\nDisability\nTrauma counseling\nLoss or damage to property\nNon-economic damages are:\nPain and suffering\nMental anguish\nLoss of enjoyment of life\nEmotional distress\nIf you or your loved one have suffered a personal injury in Savannah, Georgia, do not delay seeking justice. \nOliver Maner LLP\n will help you meet the deadlines in filing your lawsuit and fight for the just compensation you deserve. \nContact us\n today.

Statute of Limitations on Personal Injury Cases in Savannah, Georgia

Emotional distress is a significant yet often underestimated aspect of personal injury law. An individual's well-being is profoundly affected when they experience emotional distress due to the actions of others. But what qualifies as "evidence of emotional distress," and how does it fit into the legal process? \n Keep reading to understand emotional distress, its importance in personal injury cases, and how Savannah law firm Oliver Maner can provide expert assistance.\nThe Significance of Emotional Distress\nEmotional distress, also known as psychological distress or mental anguish, encompasses the emotional and psychological pain an individual experiences due to specific events or circumstances. These distressing events can range from accidents and injuries to intentional acts like harassment, defamation or invasion of privacy.\n \nEmotional distress\n often presents as:\nAnxiety\nDepression\nFear\nGrief\nPost-traumatic stress disorder (PTSD)\nSleep disturbances\nLoss of enjoyment of life\n It is important to understand that emotional distress can be as incapacitating as physical injuries and profoundly affect an individual's daily life, relationships, and overall well-being.\nEstablishing Proof of Emotional Distress in Personal Injury Cases\nDemonstrating emotional distress within a legal framework can pose challenges. Unlike physical injuries, emotional distress is not as visibly evident or quantifiable. To substantiate a valid claim for emotional distress, several essential elements need to be proven:\nDuty of Care\nAt the core of every personal injury lawsuit, particularly those that encompass emotional distress, lies the fundamental concept of "duty of care." This principle signifies that the defendant held responsibility toward the plaintiff, creating a legal obligation to behave reasonably and prevent harm to the plaintiff. This forms the foundation for proving negligence or misconduct on the defendant's part.\nBreach of Duty\nEstablishing a breach of duty is important in demonstrating emotional distress. It is essential to convey that the defendant violated their duty of care through negligence, recklessness or intentional misconduct. This element of the claim underscores the defendant's departure from the legally mandated standard of behavior, which directly led to the plaintiff's emotional anguish.\nCausation\nCausation is the linchpin connecting the defendant's actions or negligence to the plaintiff's emotional distress. Establishing a clear cause-and-effect relationship is crucial. In essence, it must be demonstrated that the defendant's actions were the direct catalyst for the plaintiff's emotional anguish. This often necessitates comprehensive evidence and expert testimony to substantiate the claims.\nSevere Emotional Distress\nIn an emotional distress claim, the plaintiff must demonstrate the severity of the distress experienced, which is one of the most crucial components. It is insufficient to establish mild distress or annoyance; the emotional suffering must be significant and severe. The plaintiff must prove that their distress has profoundly impacted their life, affecting their mental and emotional well-being.\nDocumentation and Evidence\nGathering compelling evidence is fundamental to constructing a robust case for emotional distress. The documentation should encompass a comprehensive range of materials, including medical records, therapy or counseling records, eyewitness testimonies, and expert witness testimony. These pieces of evidence authenticate and validate the claims, providing a solid foundation for the case.\nCorroborating Evidence\nWhile the elements mentioned above form the backbone of the emotional distress claim, corroborating evidence can further bolster the credibility of the assertions. This additional evidence may encompass photographs, videos or other documentation substantiating the narrative, rendering it more convincing and compelling to the court.\nVarieties of Cases Involving Emotional Distress\nEmotional distress is a multifaceted and frequently underestimated component of various legal cases. It can manifest in various scenarios and significantly impact an individual's mental and emotional well-being. Let's delve deeper into the cases where emotional distress plays a central role:\nPersonal Injury Claims\nPersonal injury cases encompass many different incidents, such as car accidents, slips and falls, and medical malpractice. In numerous instances, emotional distress naturally accompanies physical injuries. Consider a car accident victim, for example. They grapple with bodily harm and may experience psychological trauma linked to the accident. Demonstrating emotional distress in personal injury claims is crucial to demonstrate the comprehensive impact of the incident on the victim's life.\nWorkplace Harassment or Discrimination\nIdeally, the workplace should foster productivity and personal growth. Sadly, it becomes a source of emotional anguish for some, due to workplace harassment or discrimination. Employees enduring such conditions may suffer severe emotional distress. Harassment, discrimination, or bullying can create a hostile work environment that leads to various emotional symptoms, including anxiety, depression and constant fear.\nProving emotional distress in workplace harassment or discrimination cases is fundamental to obtaining the rightful compensation and ensuring that the emotional toll is acknowledged as part of the victim's suffering.\nDefamation\n\nDefamation\n lawsuits center on the spread of untrue claims that tarnish someone's reputation. These inaccurate statements can deeply affect a person's life, causing reputational harm and emotional distress. The emotional suffering in defamation cases can be notably severe, particularly when serious repercussions like job loss or damaged personal relationships occur. \nProving that emotional distress has occurred is essential during defamation cases when pursuing remediation and recognizing the harm caused by false statements.\nWrongful Death Cases\n\nWrongful death\n cases entail the tragic loss of a loved one due to another party's negligence or intentional actions. Surviving family members often experience profound emotional distress following the sudden passing of their loved one. The grief, anger and suffering that ensues can be overwhelming. \nEmotional distress in wrongful death cases extends beyond the deceased individual; it encompasses the anguish and emotional pain endured by those left behind. Recognizing and addressing this emotional distress is essential for seeking justice and supporting the grieving family.\n\n\nThe Importance of Legal Representation\nCases involving emotional distress demand an in-depth understanding of the legal system and the ability to communicate and demonstrate the severity of the pain effectively suffered. Oliver Maner has an established record of successfully managing personal injury cases, including those involving emotional distress. Their expertise, dedication and commitment to their clients sets them apart in the legal field.\nEmotional distress is a significant element in personal injury cases that merits recognition and compensation under the law. If you have suffered emotional distress due to the actions of others, it's advisable to seek legal assistance.\n Opting for \nOliver Maner LLP\n is a prudent choice. Our firm specializes in personal injury law and boasts a track record of success. \nGet in touch\n with our team to pursue the compensation and closure you deserve. Your emotional well-being is essential, and with the right legal representation, you can seek justice for the distress you've endured.

What Is Proof of Emotional Distress?

A pivotal moment unfolds in the courtroom, where justice takes center stage. A figure steps forward and raises their right hand, and their voice resonates with a solemn promise to uphold the truth. But what if, within this hallowed space, someone breaches that promise? What if false words replace the truth? \n Keep reading to unravel the intricate dynamics of truth-telling and the far-reaching consequences of deviating from this essential obligation.\nThe Importance of Oath-Taking\nIn the legal arena, taking an oath of truth is akin to laying the cornerstone of a building. When a person steps forward and swears to tell “the truth, the whole truth, and nothing but the truth," it is more than a mere formality. It is a profound commitment to uphold the principles of justice. This tradition has been part of legal proceedings for centuries, reflecting the inherent understanding that honesty is the bedrock upon which a fair legal system stands.\n This promise has profound implications. It is a powerful bond that holds everyone in a legal case accountable for telling the truth. This ensures that the information shared in court is reliable and trustworthy. If people could say whatever they wanted without consequences, chaos would reign and justice would crumble.\nMoreover, \nthe act of taking an oath\n reminds us that the pursuit of truth is more important than personal interests. It says, "I will put aside my own feelings or fears and speak only what I know to be true." This commitment, whether made by witnesses, defendants or others, reinforces the credibility of the entire legal process.\nThe Consequences of Lying Under Oath\nConsequences for Individuals\n
Perjury Charges\nLying under oath is commonly referred to as\n \n\nperjury\n, which involves intentionally providing false information or misleading statements. It is a severe offense that can result in criminal charges. If convicted, the consequences may include fines, probation, or even imprisonment, depending on the jurisdiction and the severity of the crime.\n
\nCredibility Damage\nPerjury irreparably damages individual credibility. Once a person is caught lying, their testimony becomes questionable, making it difficult to trust them in any legal context. Attorneys may use past instances of perjury to undermine a witness's reliability, impacting the outcome of a case.\n
\nCollateral Consequences\nThe repercussions of lying under oath extend beyond the courtroom. Individuals may face damage to their personal and professional reputations. They may lose their job, strain relationships and diminish opportunities. The ripple effect can be long-lasting and profound.\n
\nLegal Backlash\nThis scenario can also lead to a legal backlash beyond the immediate case. For instance, if someone lies in a civil case, future legal matters may be affected as courts view them skeptically due to their history of dishonesty. This can hinder their ability to seek justice or defend their rights in subsequent cases.\nConsequences for the Legal System\n\nErosion of Trust\nTrust in witnesses on the stand to uphold the truth is foundational to any justice system. When someone lies under oath, it erodes this trust, casting doubt on the integrity of the entire legal process. This can lead to a general mistrust of legal proceedings and a diminished faith in institutions.\n
\nWaste of Resources\nFalse information can lead to unnecessary legal proceedings, wasting valuable time, money and resources. Courts and legal professionals must invest additional effort to uncover the truth, delaying justice and burdening the system.\n
\nPrecedent and Legal Precedents\nLegal decisions are often based on precedent, which refers to previous court rulings used as guidelines for future cases. If perjury becomes common, it could set a dangerous precedent where dishonesty becomes normalized. This undermines the purpose of precedent, leading to inconsistent and unreliable legal outcomes.\n
\nUndermining Legal Consistency\nThe legal system thrives on consistency and predictability. Lying under oath introduces an element of unpredictability, where the truth is no longer a reliable foundation for decision-making. This can disrupt the balance and uniformity that the legal system strives to maintain.\n
\nPublic Perception of Fairness\nWhen perjury occurs, the public may perceive the legal system as skewed or unjust. This perception of failure can erode public confidence in the courts, leading to a lack of cooperation with legal authorities and a general disillusionment with the system.\n
\nAvoiding the Pitfalls: Tips for Upholding the Truth in Court\nPrepare Thoroughly\nWitnesses should be well-prepared before taking the stand. Review statements, documents and evidence to ensure accurate and consistent testimony.\nStay Calm and Composed\nNervousness can lead to unintentional misinformation. Remaining calm and composed helps in delivering accurate statements.\nAsk for Clarification\nSometimes, legal proceedings can get complicated, and you might not fully understand a question or situation. If that happens, do not hesitate to ask for clarification. It is better to ensure you understand the question before you answer than try to guess and speak inaccurately. Asking for help shows that you take the proceedings seriously and are committed to being truthful.\nStay Clear and Concise\nIt is essential to be clear and to the point when you are speaking in court. Sometimes, people get nervous and add extra details or simply make things up. But remember, sticking to the truth means sticking to the facts. When answering questions, try to give simple, accurate answers without adding unnecessary fluff. It is better to say "I don't know" than to guess and be wrong.\n Ready to navigate the legal landscape with confidence? At \nOliver Maner LLP\n, we guide you through the complexities of the law, providing expert advice and unwavering support. Call us at (912) 236-3311 or \ncontact us\n now to take the first step toward resolving your legal matters.\n\n

Nothing But the Truth: What Happens When You Lie Under Oath?

Corporate Transparency Act: How The New Reporting Law Will Impact Your Small Business & What You Need to Do Now\nEffective January 1st 2024, if you currently own or control a corporation, LLC, or other closely held business, you are now required by law to file a report with the U.S. Department of Treasury unless you are subject to an exemption. These filings must contain information on each beneficial owner and control person in the business and must be filed by the appropriate deadline depending on when the entity was formed. Once the filing is complete, nothing else needs to be done unless there is a change in the business or beneficial owners. Failure to file these reports subject senior officers and beneficial owners to civil and potentially criminal penalties. We can help you determine who the beneficial owners and control persons are and properly file all the required information. Keep reading to learn more about this new reporting requirement and find out what you need to do to comply with the law. Contact Katie Hembree at 912-236-3311 or \nkhembree@olivermaner.com\n if you have any questions or need assistance.\nThe Corporate Transparency Act (CTA) has been enacted to combat financial crimes, including money laundering, tax fraud, terrorist financing, and other illegal acts done through business entities. A secure database has been created by the U.S. Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) to which companies must report their beneficial ownership information for all applicable individuals. The CTA establishes reporting rules for corporations, limited liability companies, and other entities formed or registered to do business in the U.S. The Reporting Rule requires certain entities to file beneficial ownership information (BOI) reports to FinCEN. These reports will contain information about the entity, the beneficial owners, and the company applicants. Starting on January 1, 2024, FinCEN began taking beneficial ownership information reports on FinCEN’s website in the BOI E-Filing system. If these reports are not filed on time or contain fraudulent information, then the entity and individuals are subject to strict civil and criminal penalties.\nWhich companies are required to report BOI to FinCEN?\nEntities are required to report if they meet the Reporting Rule’s definition of a “reporting company” and do not qualify for an \nexemption\n. The company may be a reporting company if \nany \nof the following apply:\nIf the company is a \ncorporation\n;\nIf the company is a limited\n liability company (LLC);\nIf the company was created by the filing of a document with a secretary of state or any similar office under the law of a State or Indian tribe (this would include \nLimited Partnerships, LLP’s and LLLP’s\n, but not General Partnerships); or\nIf the company is a foreign company registered to do business in any U.S. State or Tribal jurisdiction by filing a document with a secretary of state or similar office of the State or Tribe.\n\nWhich companies are exempt from reporting?\nThere are \n23 exemptions\n to the “reporting company” definition which includes \npublicly traded companies, banks and credit unions, insurance companies, public accounting firms, and tax-exempt entities\n. There is also an exemption for a \n“large operating company”\n which is an entity operating in the U.S. that has more than 20 full time employees and reports more than $5,000,000 in gross receipts or sales from U.S. sources. \nWho is a beneficial owner?\nA beneficial owner is any \nINDIVIDUAL\n who exercises \nsubstantial control\n \nover a reporting company \nOR\n \nowns or controls at least \n25%\n of the \nownership interest\n of the company. When there is indirect ownership or control, you must really dig into the entity or Trust to find the individuals who have substantial control over those indirect owners.\nWhat is substantial control?\n\nAn \nINDIVIDUAL\n exercises substantial control over a company if they meet \nany\n of the following criteria:\nThe individual is a \nsenior officer\n (President, CEO, COO, CFO, General Counsel or similar officer);\nThe individual has \nauthority to appoint or remove senior officers\n or a majority of directors of the reporting company; \nThe individual is an \nimportant decision-maker\n over business, finances, or structure of entity; or\nThe individual has any other form of substantial control over the reporting company (meant to be a \ncatch all \nfor unique situations). \nBoard of Directors:\n While it is not clearly stated that \nmembers of a company’s Board of Directors\n be listed, the CTA requirements are broad, and it would be prudent to \nreport them.\nLLC Managers:\n LLC Managers, while not specified, \nshould be reported\n, like Directors.\nWhat is ownership interest?\n\nOwnership interest includes equity, stock, or voting rights; capital or profit interests; convertible instruments; options or privileges; and any other possible instrument, contract, or mechanism to establish ownership.\nEntity Ownership: \nIndirect ownership occurs when there is another entity (or Trust) that has at least a 25% ownership interest. The report must include all applicable information for \nINDIVIDUALS\n with substantial control of the indirect owner entities or Trusts.\nTrusts\n: Trusts which own more than 25% of the ownership interest must be considered and \nINDIVIDUALS\n with substantial control over the Trust must be reported and that would be the \nTrustee\n, a \nBeneficiary\n who is the sole recipient of income or principal who can demand distribution of or withdraw \nsubstantially all\n of the trust assets, or a Grantor who has the right to revoke the Trust or withdraw all of the trust assets\nWho is not a beneficial owner?\nThere are five exceptions when an individual who would otherwise be a beneficial owner qualifies for an exception and therefore doesn’t have to be included in the report. The beneficial owner exceptions apply to \nany\n of the following types of individuals:\nMinor child;\nIndividual acting as nominee, intermediary, custodian, or agent;\nEmployee (subject to the control of the employer and is not a senior officer of the company);\nInheritor (ownership is through a future right of inheritance like a Will); or\nCreditor.\nFigure 1\n below provides a flow chart for determining if an individual is a beneficial owner.\n\n\n\nWho is the company applicant?\nThe company applicant is the individual who directly or electronically filed the creation or first registration document for the reporting company with the secretary of state. This is often the incorporating or organizing attorney. The company applicant for every entity formed after January 1st 2024 must be included in the report. \nCompany applicants for entities formed before January 1st 2024 do not need to be included in the report. Figure 2\n below provides a flow chart determining if the company applicant must be included in the report.\nFigure 2\n\n \nWhat company information must be reported?\nCompanies that are subject to the Reporting Rule will have to disclose the following information on the entity:\nFull legal name of company\nAny trade name or “doing business as” name\nComplete current U.S. address (principal place of business)\nState of formation (or tribal or foreign jurisdiction of formation)\nIRS Employer Identification Number (EIN)\n\nWhat beneficial owner information must be reported?\nCompanies that are subject to the Reporting Rule will have to disclose the following information on all \nINDIVIDUAL\n beneficial owners \nand\n company applicants:\nFull legal name\nDate of birth\nCurrent residential address\nAn \nimage\n of one of the following:\nU.S. Passport\nState driver’s license\nState, government, or Tribe issued ID \nForeign passport if doesn’t have any of the above\nFigure 3\n below provides what information must be included in the report.\n\n\nWhen do these reports have to be filed by?\nEntities formed prior to January 1st 2024 have until January 1st 2025 to file their report. Entities formed between January 1st 2024 and January 1st 2025 have 90 days after receiving notice of creation or registration to file their initial BOI reports. Entities formed after January 1st 2025 will have 30 days from receipt of creation or registration notice to file their reports. Any changes in the required information for the report must be updated within 30 days of the change occurring. If there are any inaccuracies in the report, the entity has 30 days from the time of discovering or having reason to know of an inaccuracy to correct the report. \nFigure 4\n is a chart of these deadlines. \nFigure 4\n\n\nWhen do these reports need to be updated?\nAny of these events require the report to be updated within 30 days of the triggering event:\nIf a \nbeneficial owner\n:\nLegally changes their name (due to marriage, divorce, or any other reason)\nChanges their home address\nGets a new driver’s license number\nIf the \nentity\n:\nChanges their legal name\nRegisters a new assumed name\nMoves principal place of business\nChanges who the beneficial owners are (changes in who has substantial control or ownership interest)\nIf any senior officers are changed, removed, or added\nFigure 5\n is a chart indicating which events require the report to be updated within 30 days\n \n   Figure 5\n\n\n\nWhat are the penalties for failing to comply with the Reporting Rule?\nCompanies, senior officers, and beneficial owners (all individuals who need to be listed in the report) are subject to strict penalties if they fail to properly comply with the Reporting Rule. The criminal penalties include up to \ntwo years of imprisonment\n \nand/or\n a fine up to \n$10,000\n. \nThe civil penalty includes up to \n$500 each day\n that the violation continues. Senior officers and beneficial owners expose themselves to these fines and imprisonment if they fail to comply with the Reporting Rule by fraudulently reporting information, neglecting to report information at all, or failing to meet the reporting deadlines.

Katie S. Hembree 

Corporate Transparency Act: How The New Reporting Law Will Impact Your Small Business & What You Need to Do Now

Oliver Maner, one of Savannah’s most prestigious law firms, will
again partner with other local law firms to raise awareness and collect
supplies for Parker’s House at Union Mission during National Homelessness
Awareness Month. Parker’s House is Savannah and Coastal Georgia’s only facility
dedicated to providing emergency housing and comprehensive supportive services
for unaccompanied women experiencing homelessness. This is the third
consecutive year Oliver Maner has led this effort.\nThe donation drive runs throughout November with a challenge
from Oliver Maner to the Savannah-area legal community — and the public at
large — to join their drive to spread the word, increase donations, and collect
essential items for the women at Parker’s House. \n“So many of us are fortunate that we don’t think twice about
soap or socks, but to women in crisis facing homelessness, it’s yet another
hurdle in the way of a stable and fulfilling life. Everyone deserves that, so
we are happy to help and grateful for the response from the Savannah
community,” said Oliver Maner associate Amelia Stevens.\nOliver Maner has set up an Amazon \nregistry\n to make
donating more convenient.\nThe items needed most this year include:\n·      Personal care items (toothpaste, shampoo,
soap, deodorant)\n·      Bedding (new pillows, sheets)\n·      Paper products (toilet paper, paper
towels)\n·      Cleaning supplies (Swiffer products, Lysol
cleaners, disinfectant wipes) \n·      Undergarments (socks, undershirts) \n·      Laundry supplies (detergent pods, dryer
sheets) \nAdditionally, these items can be dropped off at the Oliver Maner
office, 218 W. State St., during business hours. The firm will accept donations
at their office through Thursday, Nov. 30.

Through the Emergency Housing Programs, Union Mission provides clients with
individualized case management and access to an array of comprehensive
supportive services that work to address clients’ medical, mental health,
transportation and employment needs in order to help them permanently end their
homelessness.\n
Union Mission’s Parker’s House partners with women to foster
personal, economic, and housing stability by providing 90 days of emergency
housing with supportive services for up to 32 women at a time.

The women served at Parker’s House are the face of resilience and hope. Since
opening on September 6, 2022, Parker’s House has achieved the following:\n·       222 women served, more than double initial
projections\n·       60% employed at entry\n·       136 obtained safe and stable housing\n·       148 increased income through employment and
benefits\n·       50% engaged in Mental Health Counseling
Services\n·       19,980 meals provided\nUnion Mission provides basic human needs for the residents,
including food, clothing, transportation, access to mental healthcare,
employment support and other services. The goal of Parker’s House is to help
residents maintain stable housing and reemerge as independent members of the
community.\nParker’s House is located at 125 Fahm St., Savannah, in the
former JC Lewis Healthcare building. The 10,590-square-foot renovated facility
offers emergency housing, on-site Case Managers, Resident Assistants, and
support services for up to 32 women for as long as 90 days.\nSavannah-Chatham County has the second-highest rate of
homelessness in Georgia. According to the Chatham Savannah Authority for the
Homeless 2023 HUD PIT Survey, on any given night, more than 180 women in
Chatham County are experiencing homelessness.\nABOUT UNION MISSION\nUnion Mission has cared for Savannah’s homeless community for 85
years, offering emergency, transitional and permanent housing solutions to
those in need. Union Mission also collaborates with the community’s network of
service providers to make comprehensive, wrap-around supportive services, such
as mental health counseling and culinary arts job training, available to all
homeless persons in the community. The mission of Union Mission is to partner
with people to end their homelessness. For more information, call (912)
238-2777 or visit \nwww.unionmission.org\n.\n


Amelia C. Stevens

Oliver Maner Recognizes National Homelessness Awareness Month with Third Annual Donation Drive for Union Mission's Parker's House: A Place for Women

In legal proceedings, a deposition is a pivotal juncture in building a robust case, particularly in the context of personal injury litigation. Navigating the aftermath of an injury that potentially jeopardizes your livelihood can undoubtedly induce significant stress, but having more information about depositions can help you understand the situation and elude the most significant hurdles. \nDepositions are part of the fact-finding process, allowing both parties to gather information, question witnesses and build their cases. However, depositions can also be complex and intimidating, requiring careful preparation and strategic execution.\nIf you are a claimant, understanding what a deposition is and having some insights can improve your success in a personal injury lawsuit. Read on to learn more.\n\nWhat Is a Deposition?\nIn a\n \npersonal injury\n case, a deposition is a formal meeting between witnesses and lawyers. This part of the pre-trial discovery process involves the testimony of a witness, taken under oath, outside of the courtroom. The purpose of a deposition is to gather information and evidence from the witness, allowing both parties to gather facts, assess credibility and prepare their case.\nWhy Are Depositions Important?\nDuring a deposition, the witness may be a plaintiff, defendant, expert witness or any other relevant party. The testimony is typically recorded verbatim by a court reporter to ensure an accurate record of the proceedings. Attorneys from both sides can ask questions and delve into the details of the case, clarifying facts, exploring motives and evaluating the strengths and weaknesses of the arguments. \nMoreover, a deposition allows attorneys to gather information, assess witnesses' credibility and develop strategies for trial. The information obtained during a deposition can be used in preparing legal arguments, negotiations or as evidence in court.\n\nWhat Happens During a Typical Deposition?\nBefore the questioning begins, the examining attorney may provide brief opening remarks or instructions. These introductory statements set the tone for the deposition and outline the purpose and scope of the proceedings. The witness is then sworn in under oath to provide truthful testimony. This oath establishes the legal requirement for the witness to tell the truth during the deposition.\nQuestioning and Cross-Examination\nThe primary purpose of a deposition is to gather information through the questioning of the witness. The examining attorney asks questions, while the opposing attorney may ask follow-up questions. The aim is to uncover facts, obtain details, test credibility and identify potential strengths and weaknesses in the case.\nObjections\nAttorneys may raise objections during the deposition if they believe a question is inappropriate or violates legal rules. Most commonly, objections are made to the form of a question or are based on privilege. In most instances, except, for example, where the objection is based on privilege, the witness must answer the question subject to the objection. If a witness’s attorney instructs him or her not to answer, the examining attorney may rephrase the question, argue the objection or move on to a different line of questioning. \nBreaks\n \nBreaks may be taken during a deposition to allow witnesses or attorneys time to rest, gather their thoughts, or consult with their teams. These breaks can help maintain focus and prevent fatigue during what can often be lengthy and difficult proceedings.\n \nConclusion\nOnce all the attorneys involved in the deposition have completed their questioning, the deposition will conclude. The court reporter will then finalize the record, ensuring an accurate transcript of the proceedings.\n6 Tips for Preparing for Personal Injury Case Depositions\nDepositions can be stressful and emotionally charged events, but proper preparation and understanding of the deposition process can make all the difference in the outcome of a case. Well executed depositions may assist attorneys in achieving favorable outcomes for clients.\nHere are 6 tips for preparing and conducting a successful deposition:\n1. Understand the Deposition Process\nKnowing the purpose and mechanics of a deposition is crucial for effective preparation. Review the rules for depositions in your jurisdiction and understand the role of each participant, including the witness, examiner and court reporter. Knowing what to expect will help you remain composed and confident during the proceedings.\n2. Be Prepared\nThe key to success in a deposition is thorough preparation. Work with your attorney to understand the facts of your case and anticipate the questions that may arise during the deposition. Practice active listening and alertness to communicate effectively and concisely.\n3. Only Answer What is Asked\nOne of the most significant difficulties in a deposition is the temptation to provide more information than required. Opposing counsel may ask leading or confusing questions in an attempt to elicit specific responses. Answer only what is asked and nothing more.\n4. Be Truthful\nMisleading or inaccurate responses can have severe consequences in a personal injury case and may result in legal penalties. Let the examiner know if you are unsure about a question or do not recall information. Never knowingly lie.\n5. Remain Calm and Composed\nIt seems obvious, but your ability to remain composed without losing your temper might be tested during the deposition. Do not let opposing counsel bait you into an emotional response; remain respectful and professional throughout the process.\n6. Take Your Time\nListen carefully to each question and take your time before answering. Refrain from rushing your response or offering additional information not explicitly requested. Take as many breaks as necessary to collect your thoughts and focus on the task at hand.\n\nWhy Do You Need Experienced Attorneys?\nWhen it comes to navigating the complexities of a personal injury case and preparing for a successful deposition, the experience of your attorney can make all the difference. Having seasoned legal professionals on your side, like the attorneys at Oliver Maner, can significantly impact the outcome of your case.\nOliver Maner has built a reputation for successfully handling\n \nserious injury cases\n in Savannah and across Georgia. Their broad scope of legal expertise allows their lawyers to excel in various types of personal injury cases.\nThe aftermath of a personal injury can be devastating for its victims. If you need assistance with your case or thorough preparation, contact our attorneys at \nOliver Maner LLP\n. Our experienced team is ready to handle your injury case in Savannah and across Georgia. Call us at (912) 236-3311 or \ncontact us now\n to discuss your case.\n \n\n \n

A Guide to Success: Depositions in Personal Injury Cases

Among the myriad potential injuries resulting from accidents, catastrophic injuries stand out as the most damaging and debilitating. These injuries can render victims permanently disabled, subjecting them to a lifelong journey of rehabilitation and recovery. \nFiguring out the right steps to take after a serious accident that causes such an injury, as well as how to manage the financial burdens that may arise from missing work, can pose a challenge for individuals and their families. Questions about covering expenses and the possibility of seeking legal recourse for compensation require expert legal advice. \nKeep reading to learn more about the legal process, and the importance of getting the best representation for your case.\n \nWhat Is a Catastrophic Injury?\nA\n \ncatastrophic injury\n is a broad term often employed to depict an exceedingly grave injury causing substantial physical, emotional, and financial detriment to a person. These injuries can yield lasting disabilities or profoundly hinder a person's quality of life.\nFor instance, a 55-year-old construction worker in Georgia with a back injury, specialized skills, and an inability to resume strenuous labor after an accident is an example of a catastrophic injury.\n\nHow to Prove Your Injury is Catastrophic\nFor catastrophic injuries, the victim bears the responsibility of showing the seriousness and enduring effects. Here are key steps to prove an injury is catastrophic:\n \n1. Gather Thorough Medical Documentation\nOne of the most important pieces of evidence in proving a catastrophic injury is thorough medical documentation. This includes medical reports, diagnostic tests, imaging results and expert opinions from healthcare professionals who specialize in the specific injury you have sustained.\n \n2. Establish the Scope of Life-Altering Consequences\nThe victim also needs to demonstrate a permanent loss of bodily functions, a significant impairment in their ability to work or long-term physical and emotional suffering.\n \n3. Show the Injury Was Sudden and Unexpected\nIt is important to establish that the injury occurred without warning and resulted from an accident or event that was beyond the victim’s control. This can be supported through witness testimonies, accident reports or surveillance footage.\n \n4. Provide Evidence of Long-Term Effects\nThis may include ongoing medical treatments, therapy sessions, the need for assistive devices and future surgeries.\n \n5. Work with Experienced Catastrophic Injury Attorneys\nNavigating the process of proving a catastrophic injury can be complex and overwhelming. Therefore, it is highly advisable to work with experienced catastrophic injury\n \nattorneys\n who specialize in handling these types of cases.\n\nWhat Determines a Catastrophic Injury?\n\nWhen an injury occurs, compensation should address all sustained damages. In catastrophic cases, increased emotional pain, elevated medical costs and lifelong income reduction are experienced. Hence, substantial financial compensation is warranted to cover losses.\nShort of getting a lawyer, it’s important to understand how a catastrophic injury is determined, as there is often a substantial sum of money at stake. A catastrophic injury in the context of a personal injury case may include:\n \nLoss of Limb\nWhen an individual has lost a body part, such as an arm, a leg or the significant function of a limb, it is considered a catastrophic injury. This type of injury causes significant functional limitations and often requires specialized medical care and rehabilitation and reduced quality of life.\n \nParalysis\nParalysis may be a catastrophic injury when it results in the complete or partial loss of movement and sensation in specific body parts, leading to significant and often irreversible physical impairment that profoundly affects an individual's quality of life and daily functioning.\n \nSpinal Cord Injuries\nWhen the injury involves significant damage or impairment to the spinal cord, resulting in loss of motor function or sensory abilities, it is usually considered catastrophic. Spinal cord injuries can lead to paralysis, loss of bodily functions and long-term medical and rehabilitation needs.\n \nSevere Brain Injuries\nInjuries that result in traumatic brain damage, leading to significant cognitive impairments, memory loss, or changes in behavior, can be classified as catastrophic. These injuries often require extensive medical treatment, rehabilitation and long-term care. \nSevere Burns\nSevere burns resulting in significant damage to the skin and underlying tissues are considered catastrophic. These injuries, along with permanent scarring or disfigurement, can lead to substantial physical and psychological trauma. Those who suffer severe burns often require extended medical treatment, extensive surgeries and rehabilitation efforts.\nAny Other Severe Injury\nThis category encompasses any life-changing injury that can lead to long-term complications, such as chronic pain, impaired mobility and the need for surgeries and ongoing medical care.\n\nTypes of Compensation for Catastrophic Injuries\n Suffering a catastrophic injury can be a life-changing experience, causing extensive physical, emotional and financial pain for both the victim and their family. Some of the claims a person can pursue include:\nEconomic Damages\nEconomic damages refer to the financial losses incurred as a direct result of the catastrophic injury. These include medical expenses, both current and future, rehabilitation costs, loss of income or wages and potential loss of future earning capacity.\nNon-Economic Damages\nNon-economic damages encompass the intangible losses associated with the catastrophic injury. These can include pain and suffering, mental anguish, loss of enjoyment of life, emotional distress and loss of consortium for the victim's spouse or family. \nPunitive Damages\nIn certain cases where the responsible party's behavior is deemed reckless, intentional, or grossly negligent, punitive damages may be sought. Unlike economic or non-economic damages, punitive damages aim to punish the wrongdoer and deter similar misconduct by others. An example would be if the catastrophic injury was caused by the defendant's drunk driving or deliberate harm.\n\nExpert Representation\nIf you suffered a serious injury in an accident and need assistance with your case or legal matter, contact\n \nOliver Maner\n. Our experienced team of attorneys and legal professionals has a long-standing track record of successful litigation. Call 912-236-3311 or\n \ncontact us now\n to discuss your case.\n

What Determines a Catastrophic Injury? 

Partner Drew Wilkes has been appointed as an At-Large-Member of the Executive Committee within the Family Law Section of the State Bar of Georgia.  The Family Law Section, comprised of nearly 2,000 active members, is active in the State Bar of Georgia and strives to keep its members updated on all matters within the legal specialty of Family Law.   In addition to assisting in drafting legislation in the areas of family law, the Section coordinates and sponsors continuing legal education via the annual Family Law Institute (in May) and the Nuts & Bolts of Family Law Seminars (traditionally held in Atlanta and Savannah).   

Andrew M. Wilkes 

Drew Wilkes Appointed to Family Law Executive Committee

Thank you, WTOC, for having attorneys Amelia Stevens and Joy Bonner speak about this year’s donation drive for Parker’s House at Union Mission. Please click the link below to purchase items from the shelter’s Amazon registry or stop by our office to drop off donations. \n\nhttps://www.amazon.com/hz/wishlist/ls/OK1EZDP7HMBK/ref=hz_ls_biz_ex?pldnSite=1\n\n
\n


WTOC Spotlights Oliver Maner's Donation Drive

Congratulations to Oliver Maner Partner Bryan Schivera on being
selected as a 2022 Rising Star by the Daily Report Georgia Legal Awards. This award recognizes and honors the state’s top lawyers 40 and under, and we’re so pleased to have Bryan among such a distinguished group of attorneys. Congratulations to Bryan on this prestigious award, and thank you for all of your work on behalf of our firm and clients. \n


Partner Bryan Schivera Selected as Rising Star by The Daily Report

Union Mission hosted its 7th Annual Raising Hope at the \nSavannah Convention Center\n. The event was presented by \nOliver Maner LLP\n and \nNine Line Apparel \nand emceed by Rabbi Robert Haas, Leader of \nCongregation Mickve Israel\n. Special honorary sponsors included The Sarah Mills Hodge Foundation and \nParker’s\n. The evening began with a cocktail reception featuring \nJeremy Davis & the Equinox Jazz Trio\n and travel silent auction items, followed by dinner.

“The funds raised from Raising Hope are vital to assisting those who are ready to leave homelessness behind for good,” said William Hunter, Presenting Sponsor and Partner at Oliver Maner. “Raising Hope will help Union Mission continue to provide comprehensive supportive services to give people the tools they need to rebuild their lives.”

The program featured Keynote Speaker Douglas Brinkley, an American Historian and Best-Selling Author. He is the Katherine Tsanoff Brown Chair in Humanities and Professor of History at Rice University, CNN Presidential Historian, and a contributing editor at Vanity Fair. Brinkley works in many capacities in the world of public history, including on boards, museums, colleges and historical societies. \nAbout Union Mission: \nUnion Mission \nhas cared for Savannah’s homeless community for more than 80 years offering emergency, transitional and permanent housing solutions to those in need. Union Mission also collaborates with the community’s network of service providers to make comprehensive, wrap-around supportive services, such as mental health counseling and culinary arts job training available to all homeless persons in the community. The mission of Union Mission is: \nto partner with people to end their homelessness through housing and supportive services\n. For more information on how to support Union Mission, contact Michael Traynor, President & CEO, at \nmtraynor@unionmission.org\n or (912) 238-2777 or visit \nwww.unionmission.org\n. \n


Timothy D. Roberts

Union Mission Hosts Annual Raising Hope Event to Benefit Emergency Housing Programs

Oliver Maner is proud to support \nUnion Mission\n as the Title
Sponsor of Raising Hope on June 7. Thank you to Partner Bill Hunter for serving on the Union Mission Board of Directors and Executive Committee and getting the firm involved in such a wonderful cause. \nCheckout this \nFacebook post\n.  For tickets and sponsorship opportunities, visit \nhttps://www.unionmission.org/raisinghope\n.\n


William J. Hunter 

Union Mission's Raising Hope 2022

Oliver Maner is proud to sponsor the Executive Women’s Day at the Club Car Championship at the Landings on April 1.  Oliver Maner Partner, Paul H. Threlkeld, will be the emcee. The event will begin with a keynote address by SSU President Kimberly Ballard-Washington and include a merchant marketplace and lunch. A panel discussion will close out the inspirational event with attendees invited to stay for the golf tournament, including special access to at The Landings Company Eagle’s Nest on the 18th green. For more information or to participate, contact Brit Donahue at 614-315-8787 or \nbdonaue@hnssports.com\n.



Paul H. Threlkeld  

 Club Car Championship at The Landings Club 2022 Executive Women's Day

Sixteen attorneys from Oliver Maner LLP were recently recognized as 2022 Georgia Super Lawyers and Rising Stars.\n\n“We’re honored by this recognition.  These lawyers reflect the hard work done by all of our lawyers and staff”, said Patrick T. O’Connor, partner.  “We work hard for our clients, and we will strive to continue to earn their trust and confidence every day.”\n  \nSuper Lawyers surveys outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations.\n \nOliver Maner attorneys named to the 2022 Georgia Super Lawyers list include:\n \nWilliam P. Franklin, Jr. – Of Counsel\nDavid H. Dickey – Partner\nI. Gregory Hodges – Partner\nPatrick T. O’Connor – Partner\nPatricia T. Paul – Partner\nTimothy D. Roberts – Partner\nLee A. Summerford – Partner\nAndrew M. Wilkes – Partner\nWilliam J. Hunter – Partner\nBenjamin M. Perkins – Partner\nPaul H. Threlkeld – Partner\n \nOliver Maner attorneys named to the 2022 Georgia Rising Stars list include:\n \nT. Lawrence Evans – Partner\nR. Benjamin Lingle – Partner\nBryan A. Schivera – Partner\nDavid Bobo Mullens, III – Partner\nI. William Drought, III – Associate\n \nThe list and profiles of selected attorneys are published in Super Lawyers Magazine, distributed to attorneys in their state or region. Super Lawyers is also published as a special section in leading city and regional magazines across the country. Lawyers are selected to a Super Lawyers list in all 50 states and Washington, D.C.\n

Oliver Maner attorneys named Georgia Super Lawyers and Rising Stars

The financial exploitation of elders is becoming an exceedingly common occurrence as the population ages. Financial elder abuse is the illegal or improper use of an elder's funds, property, or assets. The abuse can take many forms, ranging from outright theft via forged checks or withdrawals to the alteration of beneficiary designations. One form of such abuse is improperly influencing an elder to make or alter a will, thereby disposing of estate assets in a manner contrary to the elder’s true intentions. In most cases, the perpetrator of this abuse is a family member or trusted friend. Accordingly, the exploitation may not be discovered until the passing of the elder who allegedly made the will (the “testator”). \n\nTime can be of the essence after a victim’s passing, as probate
deadlines begin to run immediately upon service of notice of the offering of a will for probate. A legal challenge to a will (a “caveat”) must be made immediately upon receiving this notice. Will caveats are typically made on two grounds: Lack of testamentary capacity and/or undue influence. \n\nDiminished capacity often plays a central role in a perpetrator’s ability to influence a testator to create or alter a will. Because the required capacity to draft a will is lower than a contract, challenging a will solely on the ground of lack of testamentary capacity can be very challenging. In general, a testator will be deemed to have the required capacity to make a will when they are “capable of framing a decided and rational desire as to the disposition of his or her property.” Courts typically apply a 4 part test in which they ask whether the testator (1) understands the nature of the act (that is, that this is the execution of an instrument that will dispose of the testator's property at death), (2) understands the nature of the property that is subject to disposition, (3) is capable of remembering generally those individuals who, by blood or affection, would be the natural objects of the testator's bounty, and (4) is capable of conceiving and expressing any intelligible distribution scheme. Because the required capacity is so minimal, an individual suffering from Dementia or other cognitive impairment will not be presumed to lack capacity. In fact, capacity is presumed and the caveator most overcome this presumption. Even though a testator’s diminished capacity may not by itself be sufficient enough to overturn a will, it is highly relevant in determining whether any undue influence was exercised over them.\n\nA scheme of control and influence being exerted by the perpetrator over the testator is required to overturn any will on the grounds of undue influence. This “control” must reach a level where the perpetrator’s desires are substituted for those of the testator. Perpetrators will typically engage in a variety of behaviors to exert their influence such as isolation from friends and family, control of medication, control of finances, and taking the lead role in arranging the drafting and execution of the will. This may mean everything from communicating with the drafting attorney and transporting the testator to their office to actually drafting the will.\n\nConvincing a judge or jury of lack of capacity or undue influence is a matter of presenting compelling evidence in a variety of forms. This typically involves a combination of financial and medical records and testimony of family and friends demonstrating the will was unlawfully procured. For instance, fraudulent wills often alter a dispossessory scheme that had been in place for a significant period of time with a long-standing attorney or disinherit the expected beneficiaries/family members. Absent initiation of litigation, however, these records and testimony will not be discoverable by those seeking to challenge a will. That is why in addition to remaining vigilant in protecting an elder’s finances and legal affairs during their life, potential caveators must be quick to contact an attorney once any formal proceedings are filed in probate court.    \n\n



Challenging a Will in Georgia

In December 2021, firm partner Paul H. Threlkeld presented at the Georgia Supreme Court’s 175th anniversary during a seminar sponsored by the Georgia Legal History Foundation. Threlkeld’s lecture highlighted the Georgia Supreme Court’s \nPavesich v. New England Life Ins. Co. \ndecision from 1905 which was the first decision by a state supreme court to recognize the right to privacy. Pavesich has been cited more than 200 times in courts across the United States and is considered a seminal opinion in privacy and personal liberty jurisprudence.

Paul Threlkeld presents at the Georgia Supreme Court’s 175th Anniversary in seminar sponsored by the Georgia Legal History Foundation

Statistics show more than 180 women each night are homeless in Chatham County.  \nUnion Mission\n recognized the need for a program to serve these women and developed Parker's House: A Home for Women, set to open in the first quarter of 2022.\n\nOliver Maner held a donation drive in November to help stock the shelves of Parker's House with supplies, and it was a huge success! \nWTOC-TV\n covered the great news. \nWatch the segment here.\n\n


Oliver Maner's Donation Drive to Union Mission Is A Huge Success

At the beginning of the holiday season, Oliver Maner pledged to help fight homelessness in our community by supporting Parker’s House: A Home For Women. Under Union Mission's umbrella, it is an emergency housing center and program for homeless women that will open in the first quarter of 2022. The firm’s effort, headed by attorneys Amelia Stevens, Victoria Nease and Joy Bonner included a challenge to other Savannah law firms and members of the community to collect supplies so the program will open fully stocked.\n \nThe response has been wonderful, and one large donation, in particular, caught the attention of the firm.\n \nIn late November, Victoria White and her daughter Alethia Edwards, two individuals not affiliated with a Savannah law firm or business, dropped off a carload of donations for the women’s shelter. It was such a large amount of supplies, Oliver Maner Firm Administrator Sara Jo Rowell couldn’t let them leave without finding out more about them and the story behind their generosity.\n \nMs. White was happy to oblige. Many years ago, the mother of seven children was tragically widowed at a young age. Despite the odds stacked against her, the family pulled through with the help of friends and the community. Her children are grown now and have families of their own, and they never forgot how blessed they were to survive intact.\n \n“I've always been a very compassionate person and I always felt the need to give back. I became a single mom at a very early age, and we have just been blessed. I just feel the need to help someone in need with what little do I have. I always want to try to share it and teach my children,” White said.\n \nThis informal holiday custom became a family-wide tradition four years ago when Ms. White and her children decided to forego giving gifts to each other and instead chip in to a common cause. They share ideas on what charity to support and do the best they can to help.\n \nHomelessness was a cause they all agreed to support in the first years of their endeavor. Helping women suffering from domestic abuse was also a cause to which they offered assistance. This year, Ms. White’s daughter Alethia Edwards saw the story of Parker’s House, which is set to open early next year, and the donation drive that Oliver Maner was hosting. A program exclusively for homeless women resonated with Alethia because she believed that when people hear about homelessness, they typically think of men.\n \n“My daughter saw this organization for homeless women on the news and she asked me, ‘Mom, why don’t we do something for them?’,” Ms. White explained. “We all agreed that would be a good thing.”\n \nThe family can relate to the challenges these women face, to an extent. While they were never homeless after Ms. White’s husband died, there were struggles. “I always said, if it wasn’t for someone else reaching out to help us, we wouldn’t be where we are today, able to help others,” she added. “I appreciated it so much and it is such a blessing.”\n \nMs. White and her family are the personifications of what Oliver Maner set out to do when it first made the challenge to others to join in and support the fight against homelessness. While many local law firms and citizens answered the call, a family joining together to make a difference in lieu of giving each other gifts is a remarkable testament to the generosity of our community. Their heartwarming tale of perseverance, gratitude, love and selflessness is inspiring, and a lesson that extends beyond the spirit of the holiday season.\n

Local family answers Oliver Maner's challenge to donate to the women’s emergency housing center supply drive  

Georgia’s top attorneys were chosen by their peers to be ranked in the 19th-annual listing in the statewide magazine\n\n(SAVANNAH, Ga.) Seven partners of the Savannah law firm Oliver Maner LLP were recently named to Georgia Trend's 2021 Legal Elite list. Robert W. Schivera, Timothy D. Roberts, Lee Summerford, Andrew M. Wilkes, Benjamin M. Perkins, Paul H. Threlkeld and George T. Major Jr. were recognized by their peers as being outstanding in their fields of practice.\n\nThis is the 19th time the magazine has recognized attorneys considered the best in their field.\n\nThe lawyers selected this year practice throughout Georgia in markets ranging from large metro areas to smaller rural towns and represent 15 distinct legal practice areas: Bankruptcy/Creditors’ Rights, Business, Corporate, Criminal, Entertainment & Sports, Family, General Practice/Trial, Healthcare, Immigration, Intellectual Property, Labor & Employment, Personal Injury, Public Finance/Bonds, Real Estate/Construction and Taxes, Estates & Trusts.\n\nThe following partners at Oliver Maner were recognized:\n\n•	Robert W. Schivera in Taxes, Estates & Trusts\n•	Timothy D. Roberts in Business Law\n•	Lee Summerford in Corporate Law\n•	Andrew M. Wilkes in Family Law\n•	Benjamin M. Perkins and Paul H. Threlkeld in General Practice/Trial Law\n•	George T. Major Jr. in Personal Injury\n\nTo compile this listing, attorneys submitted hundreds of nominations to Georgia Trend's website. Anyone who is a member of the State Bar and lives and practices in Georgia was eligible to vote and to be voted onto this list. Respondents were not allowed to vote for themselves.\n\n

Georgia Trend Names Seven Partners of Savannah's Oliver Maner LLP as "Legal Elite" 

Oliver Maner earned another honor as U.S. News & World Report’s Best Lawyers rating entity named the venerable firm to its 2022 list of “Best Law Firms.” This accolade is in addition to multiple attorneys at the firm earning individual awards earlier this year. 
\n
Available only in select markets, “Best Law Firm” winners are specific to practice areas. They are determined based on several factors, including feedback from lawyers recognized by Best Lawyers on individual lawyer and firm-wide work, the size and coverage of the firm in a specific practice area, historical analysis of the firm’s “Lawyer of the Year” awards in this area, and research surrounding the firm’s overall scope and areas of expertise.\n
“It’s gratifying to be recognized like this by such a distinguished publication. I know how hard our people work, because I see what they do day in and day out to serve our clients. We are proud of this honor and will work even harder to justify it,” said Patrick T. O’Connor, a partner at Oliver Maner.\n
Recognition by Best Lawyers is based entirely on peer review. The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. It is a sophisticated, conscientious, rational and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services.\n
The firm achieved the highest Tier 1 ranking for 12 out of 15 categories: \nBet-the-Company Litigation\nCommercial Litigation\nLegal Malpractice Law - Defendants\nMediation\nMedical Malpractice Law - Defendants\nMunicipal Law\nPersonal Injury Litigation - Defendants\nPersonal Injury Litigation - Plaintiffs\nReal Estate Law\nTax Law\nTrusts & Estates Law\nWorkers' Compensation Law - Employers\n\nBest Lawyers is the oldest and most respected lawyer ranking service in the world. For 40 years, Best Lawyers has assisted those in need of legal services to identify the lawyers best qualified to represent them in distant jurisdictions or unfamiliar specialties. Best Lawyers awards are published in leading local, regional and national publications across the globe. \n
Regarding individual honors, Oliver Maner boasts 11 attorneys on this year’s “Best Lawyers in America” list, including the following: William P. Franklin, Jr., David H. Dickey, I. Gregory Hodges, Robert W. Schivera, Patrick T. O’Connor, James P. Gerard, Patricia T. Paul, Timothy D. Roberts, Lee A. Summerford, Andrew M. Wilkes and William J. Hunter.

U.S. News Names Savannah’s Oliver Maner Among The “Best Law Firms” for 2022

In recognition of November as National Homelessness Awareness month, Oliver Maner raising funds and collecting supplies for Union Mission’s \nA Haven for Her \nCapital Campaign to expand their Emergency Housing Program to unaccompanied, homeless women. \n\nThe firm is holding an internal donation drive and asking for the community’s help to collect goods for the new women’s program expected to open in the first quarter of 2022. \n\nAttorneys Amelia Stevens and Victoria Nease are leading the effort and challenging other Savannah law firms and businesses to help homeless women in our region.\n\n“Helping these women will, in turn, improve our community,” said Stevens, who also volunteers as an Adult Exploring Adviser with the Coastal Georgia Council of Boy Scouts of America. “Organizations like Union Mission help make Savannah a better place. Hopefully, our efforts will make life better for these women and assist this nonprofit in meeting its goal of helping 100 women each year.”\n\n Donations of goods can be dropped off at the Oliver Maner offices at 218 West State St. during business hours. The firm will accept donations until Tuesday, Nov. 30, then donate the items to Union Mission. This new Emergency Housing Program is in need of the following:\n\nPersonal care items (toothpaste, shampoo, soap, feminine hygiene products, etc.)\nBedding (sheets, blankets, pillows and pillowcases)\nLaundry supplies\n\nUnion Mission created an \nAmazon Wish List\n with the items needed to get the program started, as well as for the long term. Statistics show more than 180 women each night are homeless in Chatham County. \n\nThe renovated space will have 16 bedrooms and eight bathrooms serving 100 annually. It’s designed to provide emergency housing and supportive services to 32 unaccompanied, homeless women for up to 90-days at a time. Union Mission provides basic human needs for the residents, including food, clothing, transportation, access to mental healthcare, employment support and more. The goal of this program is to help residents maintain stable housing and become independent members of the community. \n\nOnce completed, this new Emergency Housing Program will be the only facility along the I-95 corridor from Florida to South Carolina dedicated solely to unaccompanied women experiencing homelessness. \n\n“Homeless women can be living alone on the streets, sleeping in their cars, couch-surfing or if able, living in motels,” said Union Mission President and CEO Michael Traynor. “Many of them feel unsafe. With your help, and in partnership with the broader community, we will begin to address the need and provide a safe, supportive space for unaccompanied women to transition out of homelessness.”

Oliver Maner To Raise Funds and Collect Supplies for Women’s Emergency Housing Program

Celebrity deaths often highlight what not to do in the field of estate planning. James Brown and Prince famously died without wills. Fifteen years later, Brown’s estate is still in litigation. Three years later, Prince’s estate is in the middle of an aggressive estate tax audit. Recently, we learned that prior to his death, Larry King handwrote a will. Ironically, Mr. King was likely successful in meeting the bare minimum standards under the law for an enforceable will. However, he was also likely successful in plunging his family into years of litigation and heartache. Let us explain why.\n\nBy all accounts, Mr. King had an established estate plan in 2019. However, following the initiation of divorce proceedings and a stroke, he handwrote a will which is short enough to state here in its entirety: \n\nThis is my Last Will & Testament. It should replace all previous writings. In the event of my death, any day after the above date I want 100% of my funds to be divided equally among my children Andy, Chaia, Larry Jr Chance & Cannon.\n\nThere are several material details we do not know. First, what pre or post-nuptial agreements were in existence requiring testamentary gifts by Mr. King? Second, what trusts were in existence directing some or all of his assets at death, regardless of the language of the will? Third, what type of titling, beneficiary or Pay on Death (“POD”) statuses, or buy-sells were in place for his real property, financial accounts and closely held business interests? Finally, what type of California community property rights did his wife retain since Mr. King passed while separated, but not yet legally divorced? Any one of these questions could have a drastic impact on the disposition of Mr. King’s Estate. \n\nAssuming for a moment that none of those details materially impact his estate, what exact legal issues are presented by the handwritten will? First, there is the basic question of enforceability. Unlike California, Georgia requires all wills to be witnessed by two qualified individuals, even if the will is entirely handwritten. So, absent invalidity on some other grounds (eg: testamentary capacity, undue influence, fraud, etc.), Mr. King’s handwritten will likely meets the formality requirements to be admitted to probate in Georgia. However, admittance to probate is where the problems begin. The two largest issues created by his will are Mr. King’s failure to appoint an Executor and use of the word “funds” in the only sentence actually disposing of assets. As a result, in addition to the likely challenges to the Will on capacity grounds, there will be a legal battle as to both the appointment of the Executor and whether Mr. King intended to dispose of the entirety of his Estate or just cash or cash like assets. You would not typically expect real property, personal property, royalty rights or closely held business interests to be encompassed by the term “funds.” If Mr. King’s words do not adequately dispose of his assets, a dispute would follow over whether his attempted revocation of previous wills was effective or whether a partial intestacy results and the laws of the state are employed to distribute his estate.\n\nMr. King’s circumstances are unfortunately not unique. The legal pitfalls surrounding divorce and estate planning are abundant. While there is protection for individuals failing to change their will after the entry of a final divorce decree (in Georgia the former spouse is treated as if he or she had predeceased the testator), there is no such protection for those passing away during divorce proceedings. Because he lived in a community property state, Mr. King would have also faced unique challenges in disinheriting his spouse prior to their formal divorce. Interestingly, Georgia is the only state in the country that would have permitted Mr. King to effectively disinherit his spouse in a will. \n\nEven more challenging to account for are non-probate assets (ie., life insurance, retirement accounts, joint financial accounts, etc.). Georgia law does not automatically void the designation of an ex-spouse as the beneficiary of a life insurance policy in the event of a divorce. Similarly, divorce does not automatically void the designation of an ex-spouse as the recipient of an employee's retirement plan benefits nor does a property settlement ordered in conjunction with a divorce automatically allow the ex-spouse access to the employee's retirement benefits. Even prior to divorce (with the potential exception of marriages of less than one year), beneficiary designations on retirement accounts can only be changed by the owner of the account and in conformance with the rules that are set out by the plan sponsor. With regard to 401ks, federal laws actually require spousal consent in writing before removing a spousal beneficiary.   \n\nFor those with a variety of probate and non-probate assets, estate planning can already feel like a complex task. Introducing divorce into the picture can certainly complicate and endanger the plans we all have for taking care of our families at our deaths. A competent team of domestic and estate planning attorneys, often working in tandem, is necessary to ensure you arrive on the other end with your property and plans intact. Fortunately, you do not have to be famous or rich to achieve this outcome.\n\n\n

What Larry King Can Teach Us About Estate Planning

By Trevor Kupfer on August 5, 2021\n\nThere’s a vast difference between the resources of a small startup and a thriving corporation, yet both need legal advice—and that’s usually not cheap. As a result, some law firms and nonprofit entities try to represent the have-nots on a pro bono basis (meaning free of cost) or “low  bono” basis (meaning at a reduced cost).\n\n“Lawyers care about playing a role in our system of justice. When lawyers participate, the system works better,” says John E. Thies, a business litigator at Webber & Thies and past president of Illinois State Bar Association. “So all of us have an innate interest in doing a certain amount of pro bono work. And if lawyers don’t, they should.”\n\nSo how do lawyers decide to take a case at a discounted rate? A number of factors come into play, including their area of law, current workload, and the complexity of the case.\n\n“Is it something we can handle? Are we available to do it at that particular time? What’s the source? What is the particular job or task? And in the end, what’s an appropriate fee for the circumstances?” Thies says of the criteria he considers. “And if it’s a not-for-profit, or somebody who needs a limited amount of help, there’s a greater chance that the firm would get involved. But we’ve handled some very sophisticated cases on a pro bono basis.”\n\nThe culture and resources of the law firm can be a determining factor as well, says Merri A. Baldwin, a professional liability attorney at Rogers Joseph O’Donnell and former president of the Bar Association on San Francisco. “My firm has plenty of resources if I were to take on a pro bono lawsuit, but a solo attorney or in-house counsel may not have those kinds of resources.”\n\nUsually a firm’s website will detail its commitment to pro bono and low bono. “Some firms are all about just billable hours,” says Patrick T. O’Connor, former president of the State Bar of Georgia and civil defense attorney at Oliver Maner. “In large part, the firm’s philosophy about helping nonprofits or indigent people depends on the leadership of the law firm.”\n\nLarge firms often have pro bono committees that decide which cases their attorneys will take and when. Some firms have pro bono coordinators and/or ask young attorneys to serve as pro bono fellows to gain experience.
That doesn’t mean a small firm is less likely to take a business case; in fact, it may have more incentive.\n\n“With startup businesses—somebody you're just trying to help get incorporated—oftentimes lawyers have a mixed motive,” says O’Connor. “You want to help somebody, but you also think, ‘Maybe this business will be
successful and one day we’ll become legal counsel for this business.’ I see that more often with lawyers who are trying to develop a client base, because if you help a business start up and two years from now it’s very successful, then the business can pay legal fees and can become your paying client.”\n\n“In business, more common than doing something for free is to provide more of a discounted rate,” says business litigator and past president of the State Bar of Michigan Jennifer M. Grieco. “Our preference would be to develop that relationship, so that when they have more significant issues, and as they expand and grow, you can be a partner with them.”\n\nWhile O’Connor is at the phase in his career where he’s more selective about the work he takes, he still plays a role in giving back. “In Georgia, young lawyers are required to be mentored. They learn about pro bono efforts through the mentoring program and through the Bar,” he says. “What I do with the lawyers that I mentor is I tell them that they should seek out pro bono opportunities. But when they find them, they should confer with me or some other more senior lawyer in the firm to make sure it’s an appropriate matter to handle.”\n\nWhile you can reach out to firms directly, other routes may be more fruitful.\n\n“If a firm has a pro bono coordinator, then it might be possible to get the firm's attention directly for a pro bono matter,” Baldwin says. “But the likelihood of finding representation is going to be greater when a pro bono client goes through an organization, because that organization can run due diligence and make sure the case has merits and the person meets their eligibility guidelines.”\n\nBar associations can often point you in the right direction, as can an online search for terms such as “legal aid society,” “lawyer referral service” or “mediation center.” Asking other business owners can also be helpful, and business groups usually have resources.\n\nIt may take time to find someone willing to negotiate rates and take your case, but it’s better than doing it yourself.\n\n“For the majority of cases it would be in a person’s best interest to get legal representation to handle a legal matter,” O’Connor says. “I’ve been involved in dozens of matters that were in litigation only because a lawyer was not involved on the front end. And then it winds up in litigation and the cost is much higher and the matter becomes much more complicated. Whereas if the people involved had had a lawyer at the outset, they might have
paid some fees, but they would have been much better off.”\n\nAt the very least, Thies says, “it can’t hurt to ask.”\n\n“W always do our intake and our calls for free—as far as finding out what the facts are, maybe even looking at some documents, figuring out what it is that they need,” Grieco says. “If it is something that’s outside our area of expertise, we can’t take it low bono for whatever reason, or we are not a good fit for them, we want to direct them to somebody who will. But if it’s just a couple hours worth of work to get them started in the right direction, then we’re happy to do that. I think that that’s one of those things where karma kind of all comes back.

Patrick T. O'Connor

NO BUSINESS LIKE PRO BONO BUSINESS- How to find attorneys who represent businesses at a discount

Largely as a result of their flexibility, Limited Liability Companies (“LLCs”) account for the vast majority of newly formed business entities. The Operating Agreement of an LLC is the governing document and often only memorialization of LLC ownership. A well drafted and thought out Operating Agreement is worth its weight in gold. Not only can an Operating Agreement head off and resolve potential membership disputes, it can also protect the members from various tax and transfer issues. \n\n#1 – Failing to draft one\n\nAll too frequently this document is ignored or parroted from an internet repository to disastrous effect. Much like fences make good neighbors, Operating Agreements make good partners and the lack of one can drive an LLC into the ground. Similar to a Will, if you fail to draft one, the state will dictate the terms of your business relationship, likely to everyone’s displeasure.\n\n#2 – Failing to adequately address Management and deadlocks\n\nUnlike a corporation, LLCs by default have no Board of Directors or Officers. Rather, much like a partnership, the default provisions in Georgia grant members the right to bind and manage the LLC. However, members may wish to appoint “Managers” of the LLC. A well drafted Operating Agreement will address who these Managers are, how they can be elected, removed and replaced and their duties, powers and compensation. Inherent in any LLC governed by an even number of Managers or Members (or where Members have veto authority over certain Manager actions) is the possibility for deadlock. The possibilities for breaking such a deadlock are endless but they will not be found in the default provisions of Georgia law and must be drafted into an Operating Agreement.\n\n#3 - Failing to consider the resultant fiduciary duties and need for restrictive covenants\n\nClosely related to Item 2, all parties must be aware that members in a Manager-managed LLC generally owe no fiduciary duties to the LLC or their fellow members. This can arise as a rude awakening in the form of members taking actions that are not in the best interest of the LLC. If this is a concern, an Operating Agreement must include restrictive covenants and other provisions which protect the LLC’s business interests.\n\n#4 - Failing to adequately protect member rights in a Manager-Managed LLC\n\nTypically arising in Manager-managed LLCs, it is imperative that any non-Manager member or minority owner take the time to ensure their interests are adequately protected by an Operating Agreement. Otherwise, a member can easily fall subject to various “minority squeeze out” techniques by controlling members or managers. These can range from the seemingly benign (lack of full rights to LLC records) to the patently unfair (oppressive actions resulting in ownership dilution).\n\n#5 - Failing to address mandatory distributions\n\nClosely related to Item 4 is the necessity for an Operating Agreement to set a formula for mandatory distributions to members. A failure to do so can be compounded if one member or his family is on the LLC payroll, to the exclusion of other members. Further, an LLC taxed as a partnership results in partners being subject to tax as income is earned by the partnership even in the absence of any distributions (referred to as “phantom income”). Accordingly, requiring mandatory tax distributions made on a regular basis can ensure members will not be holding a phantom tax bill with no cash to pay it.\n\n#6 - Failing to adequately provide for transfer restrictions \n\nMost people know that they want a “Buy-Sell” agreement. Broadly speaking, transfer restrictions are typically included in an Operating Agreement. They encompass both prohibitions on or requirements for transferring LLC ownership to third parties and triggers for buyout rights for other members and/or the LLC itself (eg: death, disability, retirement, etc.). These provisions can get complicated quickly and are highly dependent on the unique dynamic between any given LLC’s members. Perhaps more than any other type of provision found in an Operating Agreement, there is no “one size fits all” approach with transfer restrictions, as is often claimed by legal websites or form repositories.\n\n#7 - Failing to draft the Operating Agreement to conform with tax elections\n\nWhile a full discussion of the various tax elections and implications of operating an LLC is beyond the scope of this article, any Operating Agreement must be drafted taking into account the current and potential future tax elections of an LLC. With more than one member, LLCs are taxed by default as partnerships, requiring the filing of a Partnership Tax Return (Form 1065). However, many LLCs elect to be taxed as an S-Corporation (Form 1120S). The S-Corp tax election, in particular, is susceptible to being lost as a result of language contained in an Operating Agreement, with very negative effects for the LLC and its members.\n\n#8 – Failing to Address Member Voting Power\n\nBecause LLCs are most akin to partnerships, the default Georgia law provides that each member (or, if management is vested in managers, each manager) shall have one vote, with decisions made by majority vote with respect to most matters. This can be a devastating outcome for a member who thought by being 51% owner of an LLC, they were in a position of power. In fact, a 1% owner of an LLC has an equal membership vote to a 99% owner if an Operating Agreement fails to properly address membership voting rights.\n\n#9 - Failing to address distributions upon dissolution \n\nMembers may bring different contributions to an LLC in the nature of cash and “sweat,” resulting in equal capital accounts as memorialized in an Operating Agreement. Unless addressed properly, however, in the event of a dissolution these members may receive an equal distribution of the company assets, even if those assets consist entirely of the cash contributed by one member.\n\n#10 - Failing to address BBA tax elections\n\nA well drafted Operating Agreement must include language to address the new partnership audit regime introduced by the Bipartisan Budget Act of 2015, effective as of 2018. This Act imposes liability for federal income taxes directly on the partnership, regardless of any changes in ownership between the taxable year in which the partnership items arose and the taxable year in which the partnership items are adjusted. In short, unless the Operating Agreement is drafted appropriately, a member who was not in the LLC in a year under audit could be liable for the partnership’s previous tax liability.\n\n

Top 10 LLC Operating Agreement Mistakes

On May 18, 2021, Bill Hunter presented "The Happy Warrior and the Six Deadly Sins That Prevent Us from Being Great Trial Lawyers" at the SE GA ABOTA Chapter's Lunch and Learn Webinar Series.  The webinar was sponsored by Legal Technology Solutions, Inc.  ABOTA is an organization dedicated to the preservation of the right to trial by jury in our justice system.  

Bill Hunter Presents at SE GA ABOTA Lunch and Learn Webinar

The effects of Georgia’s 2005 sweeping tort reform legislation continue to alter the landscape for litigants. One of the latest alterations will most likely be considered by proponents of tort reform as an unintended consequence because it eliminates a doctrine that has long been favorable for employers. For several decades Georgia lawyers on both sides of the “v.” dealt with the decisional law rule known as the “Respondeat Superior Rule,” which states:\n\n[I]f a defendant employer concedes that it will be vicariously liable under the doctrine of respondeat superior if its employee is found negligent, the employer is entitled to summary judgment on the plaintiff’s claims for negligent entrustment, hiring, training, supervision, and retention, unless the plaintiff has also brought a valid claim for punitive damages against the employer for its own independent negligence. \nQuynn v. Hulsey\n, 	 Ga. 	850 S.E.2d 725, 727-28 (Nov. 2, 2020) (Bethel, J. concurring in judgment only; McMillian, J. dissenting) (quoting Hosp. \nAuth. of Valdosta v. Fender\n, 342 Ga. App. 13, 21 (2017) (citations omitted)). In other words, once an employer admitted the agency relationship and that it would be vicariously liable for the negligence of its employee, any independent claims against the employer that arose from employing, training, supervising, or retaining that employee would collapse unless the plaintiff had a valid claim against the employer for punitive damages. The theory behind the Rule was that once the employer admitted it was responsible for the negligence, if any, of its employee, allowing independent claims against the employer for negligent hiring, retention, training, and entrustment would not entitle the plaintiff to any greater recovery but would serve to prejudice the employer. Id. (quoting \nMasTec North Am. v. Wilson\n, 325 Ga. App. 863, 865 (2014) (citation and punctuation omitted)). \n\nThe Rule’s obvious benefit to defendant employers was that evidence of poor hiring practices, training, retention, and supervision of employees would be deemed as irrelevant, immaterial, and prejudicial since it would not provide the plaintiff an avenue to recover any additional damages. An arguable benefit to plaintiffs is that the Rule incentivized defendants to admit the employee/employer relationship such that no further proof was required of this relationship. \n\nThe Respondeat Superior Rule was first adopted in Georgia in 1967 by the Court of Appeals in \nWillis v. Hill\n, 116 Ga. App. 848, 853-868 (1967), rev’d on other grounds, \nHill v. Willis\n, 224 Ga. 263 (1968). As of November 2020, the Rule is no more after the Georgia Supreme Court held in \nQuynn v. Hulsey\n that Georgia’s 2005 enactment of sweeping tort reform legislation, and more specifically O.C.G.A. § 51-12-33 (the “apportionment statute”), abrogated the Respondeat Superior Rule:\n\n[T]he claims encompassed by the Respondeat Superior Rule are claims that the employer is at “fault” within the meaning of the apportionment statute. Adherence to the Respondeat Superior Rule would preclude the jury from apportioning fault to the employer for negligent entrustment, hiring, training, supervision, and retention. Any allocation of relative fault among those persons at fault, which may include the plaintiff, could differ if one person’s fault was excluded from consideration. It follows that the Respondeat Superior Rule is inconsistent with the plain language of the apportionment statute.\n\nId\n. at 729.\n\n	In reaching its decision, the Georgia Supreme Court rejected several arguments made in defense of the Rule. First, the employer argued that abrogating the Rule would undermine Georgia’s comparative negligence doctrine because evidence of whether an employer had negligently hired, trained, entrusted, or retained an employee was not relevant to whether the employee was negligent in causing the plaintiff’s injury. \nId\n. at 729. The Court rejected this argument finding instead that “[e]vidence tending to establish the employer’s fault would be of consequence to the determination of the action as the jury is required to consider the fault of ‘the persons who are liable’ and ‘all persons or entities who contributed to the alleged injury or damages.’” \nId\n. at 729-730 (quoting O.C.G.A. § 51-12-33 (b)-(c)).\n\n	The Court next rejected the employer’s argument that the Rule was not abrogated by the apportionment statute because claims against the employer are derivative of the claim for the employee’s tortious conduct. The Court held that “claims that an employer was negligent are divisible from claims that its employee was negligent, and so are capable of being assigned percentages of fault.” \nId\n. at 730. Similarly, the Court rejected the employer’s argument that it and its employee were ‘“working toward a common goal – the employer’s business’” such that fault from their concerted action was indivisible and not subject to apportionment. \nId\n. at 731. In rejecting this argument, the Court noted that the “acts of an employer in negligently entrusting, hiring, training, supervising, and retaining an employee are the independent acts of the employer separable from the actions of the employee, not necessarily a concerted act between an employer and its employee.” \nId\n. Lastly, the Georgia Supreme Court rejected the employer’s contention that the Georgia General Assembly did not intend to abrogate the Rule by enactment of the apportionment statute. \nId\n.\n\n	The practical effects of this recent opinion and significant change in Georgia law remain to be seen. At the very least, litigants and lawyers should expect an expansion of discovery relating to acts of the employer as well as spending time to pursue or defend the employer’s acts at trial. Time will tell whether the new admissibility of the employer’s acts in the hiring, training, supervising, or retaining of its employee will lead to increasing verdicts and affect the way juries apportion fault for an injury between employee and employer.\n

George T. Major, Jr.  

Recent Developments: The Georgia Supreme Court’s Recent Opinion Significantly Alters Employer Liability

Partner Drew Wilkes was a speaker at the 2021 Nuts & Bolts of Family Law seminar held (virtually) on February 25, 2021. Drew submitted written materials and spoke on the issue of Post-Judgment Modification Actions. The seminar was sponsored by the Family Law Section of the State Bar of Georgia. Drew devotes a substantial portion of his trial practice to representation of those with family law needs.  

Drew Wilkes Speaks at 2021 Nuts & Bolts of Family Law Seminar

Revocable Trusts and Wills are often sold to the public as analogous estate planning tools, capable of achieving various levels of creditor, tax and probate protection. The truth is that each vehicle offers unique advantages, and the selection of either or both as an estate planning tool should only be made after carefully considering the respective costs and benefits. Below is a basic discussion of the differences between Revocable Trusts and Wills as a method for disposing of property at death. \n\nThe creation of a Revocable Trust requires the re-titling of property in the name of the Trust. So, real property, vehicles, bank accounts, securities accounts, etc. must all be re-titled. The advantage is that any assets titled in the name of the Trust at the grantor’s death will not have to be “probated” to pass to the desired beneficiary. Rather, the beneficiary (perhaps a spouse or child) will have immediate access to the assets of the Trust. While a Will does not require re-titling of assets, the power of the Probate Court must be invoked at death in order to pass assets to the desired beneficiaries. This is not an overly complex or financially burdensome process in Georgia, but it will involve a delay compared to the passing of assets via a Revocable Trust. It should be noted, however, that any practitioner drafting a Revocable Trust will also draft a “safety net” will, to direct to the Trust assets the grantor may not have re-titled during life. It is sometimes the case that a single asset, such as a bank account or car, will require the probate of a Will even if a Revocable Trust was drafted and funded.\n\nIf all assets successfully pass through a Revocable Trust without the need for probate, there will be no public record of the Will. Confidentiality can sometimes be a desired benefit for those leaving property at death, and a Revocable Trust can accomplish this. Another concern often raised by those wishing to leave property at their death is potential challenges to their desired testamentary scheme. Both Revocable Trusts and Wills can be challenged in a court of law. However, those attempting to challenge a Will actually face a more difficult task than those seeking to set aside transfers to a Revocable Trust, because of the legal presumption in favor of permitting an individual to dispose of his assets via a Will.\n\nFor creditor and tax purposes, the property in a revocable trust is treated as being owned by the creator, or “grantor” of the trust.  This is so because the grantor can at any time prior to his or her death, “revoke” the trust and take the property back. Thus, revocable trusts do not offer unique tax benefits or creditor protection. Most common estate planning objectives achievable in a Revocable Trust may also be accomplished by a Will. ​\n\nAdditional benefits of Revocable Trusts may exist if the grantor is or may become disabled. Trusts can serve as a vehicle allowing a family member or institution to easily transition into managing the assets of a disabled individual.\n\nWhile a well drafted Will in Georgia can almost always accomplish the required estate planning objectives, a Revocable Trust may be the best option for individuals seeking heightened privacy or those with unique family situations.  An individual must weigh these benefits with the added complexity, necessary funding and cost of a Revocable Trust to determine if it is the best option. \n\nBryan A. Schivera is a partner in Oliver Maner’s tax and corporate department. He can be reached at bschivera@olivermaner.com or 912.236.3311.

Revocable Trusts and Wills in Georgia

“Never sign anything without letting your attorney review it first”. This is advice many in the business community have likely heard ad nauseam from their legal counsel. As business litigators can attest, it is also advice not always heeded. This was seen often after the real estate crash, where many deep pocketed individuals had personally guaranteed speculative real estate or business endeavors, only to be pursued vigorously upon their failure. While the danger of signing a personal guarantee is still fresh in the minds of the business community, individual liability arising out of a limited liability entity can still rear its ugly head.​\n\nIn June, the Georgia Court of Appeals issued another opinion confirming the dangers of signing any document without seeking legal advice. In Buffa v. Yellowbook Sales and Distributing Co., Inc., No. A14A0209, 2014 WL 2766746 (Ga. Ct. App.), a Georgia LLC was sued along with its manager in his individual capacity for failing to pay invoices under several service agreements. The trial court found the manager was individually liable for the debt, despite his argument that he only signed the agreements as a representative of the LLC. The Georgia Court of Appeals affirmed the trial court’s decision, finding that language within the agreement bound the manager individually.​\n\nSpecifically, the Court of Appeals focused on a clause within the agreements which indicated the manager had agreed to become personally liable for the debt. Clause 15F in the agreements provided the following: “The signer of this agreement does, by his execution personally and individually undertake and assume the full performance thereof including payments of amounts due thereunder.” Additionally, the signature blocks indicated personal liability for the manager: “This Is an Advertising Contract Between Yellow Book and [printed company name] and [signature] Authorized Signature Individually and for the Company (Read Clause 15F on reverse side).” \n\nThe manager was held individually liable for the full amount due, in addition to attorney fees and interest. It is likely the Court would have found Clause 15F to have bound the manager individually even if it had not been referenced in the signature block. The lesson is of course that every word in a contract – even one found in the 15th section – can be tremendously important.\n\n​Corporate lawyers always prefer the ease of counseling clients pre-transaction rather than litigating any subsequent fallout. Clients typically prefer the size of the bill, too, when they seek advice before signing on the dotted line.\n\nBryan A. Schivera is a partner in Oliver Maner’s tax and corporate department. He can be reached at bschivera@olivermaner.com or 912.236.3311.

Guarding Your John Hancock

Let’s face it: no one welcomes the idea of unexpected litigation, especially business owners. Lawsuits can cause stress and heartache, impact productivity, alter new business opportunities, and precipitate substantial and unexpected costs.  \n\nBut what if I told you there were ways small business owners could plan for legal action in a way that would minimize the risk of incurring those costs? There are a number of action items all small businesses may consider so as to be best prepared when litigation arises.  \n\nThese include:\n\nDefine your business’s legal structure. How is your business structured? Is it a corporation, meaning it is authorized to act as a single entity and recognized as such by the law? Or is it a partnership, a business operation between two or more people who share management and profits? The differences matter, as they affect your business’s legal obligations and therefore, the opportunities and drawbacks available to your business. For example, in a general partnership the partners assume responsibility for the partnership’s debts and other obligations. In a limited partnership, the general partners own and operate the business and assume liability while the limited partners serve only as investors. If you don’t know which one your small business is, or why it is structured the way it is, find out. \n\nDraft policies and procedures. Whether you have one employee or two hundred employees, it is wise to have clear policies and procedures in place. Without them, issues of critical importance to your company such as health and safety, legal liabilities, regulatory requirements, and others are left undefined–and this can have serious consequences when something goes wrong, whether it be an injury on the job or a non-fulfilled purchase order. \n\nTrust but verify! Miguel de Cervantes, the author of Don Quixote and creator of the character of the same name, is credited with saying, “An honest man’s word is as good as his bond.” While that may be true, proving the exact meaning of words said by someone (honest or otherwise) that weren’t written down is difficult, and leaves room for ambiguity that can lead to disputes down the road. Business owners should always try to get agreements and contracts in writing for every deal they make–even if it’s with people they trust! \n\nProtect your intellectual property. Last April, the Commission on the Theft of American Intellectual Property estimated annual costs from the loss of intellectual property ranges from $225 billion to $600 billion. As a business owner, consider obtaining confidentiality agreements with all employees as well as trademark registration for any applicable logos, names, and slogans unique to your business.\n\nCall your lawyer. It is always a good idea to have legal counsel review your business and its processes, both for your specific concerns, as well as for a general analysis. While there will be some upfront costs to doing so, catching mistakes early can alleviate significant financial and mental strains later.\n\nIn short, small business owners will be well served if they are organized and prepared, manage conflicts before they become full-blown disputes, and get help early. Spend some money now to save even more later.\n\nDavid Bobo Mullens, III, is an associate in Oliver Maner’s litigation department and specializes in business litigation, local government matters, and maritime and transportation law. He can be reached at dbmullens@olivermaner.com or 912.236.3311

David Bobo Mullens, III

Planning for Litigation: How Small Businesses Can Minimize Costs

In a community-focused city like Savannah, there are plenty of ways to give back. Whether supporting fundraisers or joining the boards of local nonprofits, the altruistic can fin a way to get involved. In an effort to do their part, three lawyers combine personal passions and legal expertise to give back both in their everyday jobs and in their free time.\n\nThe Helping Hand\n\nBill Hunter considers himself fortunate. “I’ve been tremendously blessed with my job and my family. You get old enough, and you realize how often we take that for granted,” he says. “But it’s not that way for everybody.” \n\nIn 2016, Hunter’s passion for helping the less fortunate led him to join the Board of Directors for Union Mission, Savannah’s leading organization for providing assistance to the homeless. \n\nThrough Hunter’s involvement, his firm Oliver Maner is a major sponsor for the Union Mission’s annual Raising Hope fundraiser. “Solving homelessness in Savannah couldn’t be more important,” Hunter says. “People simply want a little help getting back on their feet, and that’s what Union Mission does so well: it gives people the skills and training that will help them get a job.” \n\nAdditionally, Hunter does pro-bono work with Compassionate Release, an organization aimed at securing releases for the most vulnerable federal prisoners.\n\n“There’s always been a shortage of attorneys to handle these motions, but it took on a whole new importance and urgency with COVID-19,” Hunter says, noting that prisons often don’t have the resources to manage COVID outbreaks properly. “I’m happy to say we’ve gotten three people released.”\n\nWritten by Ariel Felton

Raising the Bar – How Local Lawyers Pay It Forward

In a recent article, we discussed using trusts in order to protect assets from creditors and predators; specifically, the limitations of protecting assets in Self-Settled Trusts. In this installment, more attention is devoted to the use of Third Party Trusts and other techniques to protect assets from creditors and predators.  \n\nGeorgia law seeks to strike a fair balance between the claims of creditors and the right of a person to leave his or her assets only to persons he or she chooses. As described in the previous installment, a Settlor cannot defeat his or her own creditors by transferring his or her assets to a Self-Settled Trust. However, in Third Party Trusts, the creditors of a beneficiary (who is not the Settlor) of such trust should not be able to seize assets which the beneficiary never directly owned and transferred.   \n\nWith respect to a Third Party Trust, a Settlor may, in general, dispose of his or her property as he or she sees fit in a manner which shields the property from the claims of the beneficiaries’ creditors. The property passing pursuant to a Third Party Trust was not originally the property of the beneficiary(ies) of such trust and, therefore, should not have to be available to pay the debts of the beneficiary(ies). The intent of the Settlor is paramount. If the Settlor does not wish for his or her property to be seized by the creditors of a third party beneficiary, then that intent generally will be respected if the instrument is properly drafted (because, in most circumstances, the Settlor has the right to benefit only the persons he or she chooses and has no duty or obligation to pay the debts of the beneficiary).  \n\nO.C.G.A. § 53-12-81 entitled Limitations on creditors’ rights to discretionary distributions provides in pertinent part:  “[a] transferee or creditor of a beneficiary shall not compel the Trustee to pay any amount that is payable only in the trustee’s discretion regardless of whether the trustee is also a beneficiary.” (Emphasis added.)  This Section does not apply to the extent, if any, that a proportion of the trust property is attributable to the beneficiary’s own contribution. To that extent, the beneficiary would be considered a Settlor. \n\nThus, if the Trustee has the sole discretion to determine whether a payment of income or principal may be made to a beneficiary and the Settlor is not the beneficiary, then the creditors of that beneficiary cannot reach the assets of the trust unless and until they are paid out to such beneficiary.  Even in a Third Party Trust, however, the creditors of a non-Settlor beneficiary can reach the income or principal if the debtor/beneficiary has an absolute right to receive the distribution (for example, if the Trust does not leave it in the Trustee’s discretion but rather requires that all income be paid to the beneficiary).  In that event, the creditors can reach the income whether or not it is actually distributed.  It should be noted again the interplay between the rights of creditors versus the right of a Settlor/decedent to leave property as he or she wishes:  under O.C.G.A. § 53-12-81, the provision does not apply to the extent the beneficiary made a contribution of property (or is a Settlor) to the Trust.    \n\nO.C.G.A. § 53-12-80(e) provides that:\n\n[a] provision in a trust instrument that a beneficiary’s interest shall terminate or become discretionary upon an attempt by the beneficiary to transfer it, an attempt by the beneficiary’s creditors to reach it, or upon the bankruptcy or receivership of the beneficiary shall be valid except to the extent of the proportion of the trust property attributable to such beneficiary’s contribution [i.e., to the extent the beneficiary becomes a Settlor].  \n\nIn other words, even if the payment of income is mandatory in a Third Party Trust, a provision may be included in the instrument to terminate the distributions or change them from mandatory to discretionary if a beneficiary’s creditor is looming.  In this case, the provision could give the Trustee the discretion to pay such distributions to the beneficiary’s spouse or children or to accumulate all or part of the income.  In any event, the creditor could not reach the trust property except to the extent actually paid to the debtor/beneficiary.   \n\nIf an individual does not wish to place assets in a trust for an extended period of time but is only concerned about attempting to thwart the claims of his or her own creditors and predators upon death, then under O.C.G.A. § 53-12-82 (3), the simple re-titling of assets or the naming of beneficiaries for assets may be sufficient to defeat the claims of a debtor’s own creditors.  This Section provides that “[p]ayments that would not be subject to the claims of a settlor’s creditors if made by way of beneficiary designation to persons other than the settlor’s estate shall not be made subject to such claims. . . . .”  O.C.G.A. § 53-12-82(3). This means that, in those instances where beneficiaries are named or “designated” (such as on insurance policies, retirement plans, annuities, transfer on death accounts, payable on death accounts, joint tenancy with right of survivorship accounts, etc.), the assets will not be in the decedent’s probate estate and will not, absent other circumstances, be subject to the claims of creditors of the deceased debtor.  It should be kept in mind that, notwithstanding the above, if one wishes to avail himself or herself of the above-described planning techniques, he or she should engage in the planning prior to incurring the subject liability.  \n\nAs will be discussed in more detail in a subsequent installment of this article, the person who makes the transfer of an asset (whether in trust, outright or by beneficiary designation) and desires to put it beyond the reach of his or her own creditors, must not run afoul of the UNIFORM VOIDABLE TRANSACTIONS ACT (the “Act”), O.C.G.A. 18-2-70 et. seq. (primarily §§18-2-74 and 18-2-75). In a nutshell, this Act provides that if a person (the transferor) transfers property to a donee by a gift or to a trust (or by beneficiary designation or retitling), with a specific intent of hindering or defeating a creditor, or if the transferor is rendered insolvent by the transfer, the transfer may be set aside by a court as a “voidable transfer” so the creditor can reach it. But, assuming one does not run afoul of this Act, assets transferred to a trust for a beneficiary receive a much broader level of protection against claims of that beneficiary’s creditors. Thus, the time for an individual to engage in planning to insulate assets from the claims of creditors, is before those creditors appear on the horizon, and while the transferor is solvent.\n\nDavid H. Dickey is a partner at Oliver Maner LLP and concentrates his practice in the areas of Estate Planning, Business Law, Business Entities, Probate & Estate Administration and Taxation. He can be reached by email at ddickey@olivermaner.com and by phone at 912.236.3311.\n\nRyan Beasley is an associate at Oliver Maner LLP and concentrates his practice in the areas of Estate Planning, Business Law, Business Entities, Probate & Estate Administration and Taxation. He can be reached at rbeasley@olivermaner.com and by phone at 912.236.3311.

David H. Dickey

Ryan Beasley

Use of Third Party Trusts, Other Techniques to Protect Assets from Creditors and Predators

Most employers understand that federal laws (the Civil Rights Act, the Equal Pay Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and others) make it illegal to discriminate against employees on the basis of race, color, religion, sex, national origin, age, and disability. These prohibitions apply not only to workplace treatment but also to the hiring process. An employer sued for discriminatory hiring has a strong defense if it can prove that it was not aware of the candidate’s protected status when it made its hiring decision. Accordingly, conscientious employers try, where possible, to avoid learning protected demographic information in the screening process. For example, prudent employers avoid asking demographic questions such as age, race, gender, religious affiliation, etc. on employment application forms if such information is not required to evaluate candidates for a particular position.\n\nAt the same time, social media has become a ubiquitous and valuable tool that employers use to screen candidates for open positions. Social media often provides insight into candidates that employers simply cannot gain through written applications or even interviews. Unfortunately, in most instances, social media searches will also reveal demographic information about candidates that employers want to avoid. Accordingly, social media searches can create risks for employers that their hiring practices will be challenged as discriminatory. Further, the law is still developing concerning the degree of privacy individuals can reasonably expect with information placed on social media sites. \n\nSo how can employers protect themselves without abandoning the wealth of information that can be gleaned from social media? We have several recommendations. First, employers should assign someone who is not involved in the hiring decision to conduct social media searches of job candidates. The assigned screener can prepare a memo to the hiring officer(s) outlining useful, relevant information learned about each candidate and excluding protected demographic information. \n\nSecond, the screener should review only a candidate’s public profile to avoid allegations of invasion of privacy. It is clear that individuals do not have a reasonable expectation of privacy as to information they post publicly. However, it is less clear when information is shared unintentionally (e.g., by others in the candidate’s network or through the candidate’s online activities) or shared on a limited basis (e.g., only to friends or contacts). We recommend that employers do not send “friend requests” to candidates to gain access to additional information. A candidate could argue that, as a job seeker, he or she felt compelled to accept the request to avoid being eliminated from consideration.\n\nThird, employers should not rely exclusively on information learned through social media in their hiring decisions. Data suggests that the adoption and use of different social media platforms varies among different age groups. Thus, reliance solely on social media risks excluding certain age groups from the hiring process.\n\nFourth, if an employer relies on positive or negative social media information in its hiring decision, it should keep a record of the information found and the manner in which it impacted the hiring decision. That way, if a candidate later brings charges, the employer will have a contemporaneous record to show that its decision was based on relevant, non-discriminatory information.So far, we’ve explored the risks of relying on social media in the hiring process and how to mitigate those risks. Are there also risks in not searching social media sites as part of the hiring process? The law is clear that employers have a duty to act reasonably in their hiring decisions. An employer who hires an individual with a known history of dangerous, harassing or illegal conduct may be held liable for negligently hiring that individual if he or she later commits a similar act while on the job. \n\nAn employer’s concern is how broad its duty is to uncover a candidate’s past harmful conduct. We are not presently aware of any cases where an employer has been held liable for failing to uncover prior conduct information through social media. However, we can envision an employer being held liable if it does not conduct any social media searches when a cursory public search would have quickly revealed a candidate’s dangerous past. Accordingly, we recommend employers conduct searches of publicly available social media information so long as precautions are taken to mitigate risks of discrimination claims.\n\nLarry Evans practices in the litigation section of Oliver Maner LLP. He has extensive experience handling all aspects of commercial litigation including professional malpractice defense, financial services litigation, creditor’s rights, construction litigation, directors and officers liability, employment litigation and general business disputes. He can be reached at 912-236-3311 or levans@olivermaner.com.

T. Lawrence Evans  

Social Media and Discriminatory Hiring Practices: What Businesses Need to Know

As many of us move forward following the conclusion of this year’s tax season, many individuals and professionals continue to adjust to the major tax revisions approved by Congress in the Tax Cuts and Jobs Act of 2017 (TCJA) and signed into law by the President. The TCJA went into effect on January 1, 2018 and made substantial changes to the prior tax code.  Additional changes that impact divorce and separation instruments will occur beginning in 2019.  \n\nOne of the more publicized changes to the tax code relates to the tax treatment of alimony (spousal support).  Alimony (as defined in IRC Section 71) is not part of every divorce in Georgia, but is frequently awarded or agreed upon for purposes of providing support and maintenance to a former spouse.  Recent tax data reveals that approximately 600,000 Americans claimed alimony in their tax returns.   The revisions to the tax code relating to the treatment of alimony will have a material impact on the manner in which financial issues are negotiated and resolved attendant to a divorce \n\nPrior to the TCJA, payments meeting the definition of alimony were deductible from the gross income of the payor spouse and includible in the gross income of the recipient spouse.  Under the TCJA, alimony payments will no longer be deductible from the gross income of the payor spouse or includible in the gross income of the recipient spouse for divorce or separation instruments executed after December 31, 2018.   If the divorce or separation instrument is in effect before December 31, 2018, the tax treatment of alimony remains the same as it was before the enactment of the TCJA.  The elimination of the “alimony deduction” may have a far-reaching effect on all financial issues that have to be decided attendant to a divorce, including child support and property division.  \n\nThe tax changes present new challenges for divorcing spouses (and their lawyers) trying to plan for their future financial security.  The potential impact of the alimony changes can be illustrated as follows:  Under the pre-TCJA law, the wife earns $500,000 per year and is in the top tax bracket.  She is paying her husband $100,000 a year in alimony.  After deduction from her gross income, the $100,000 in alimony only costs her roughly $50,000.  Her husband will receive $100,000, but nets approximately $75,000 after taxes (assuming the husband is in a lower tax bracket).  Under the TCJA, the wife will argue that she can only afford $50,000 (the after-tax benefit cost to her under the previous tax code), and the husband would receive $25,000 less than the $75,000 under the previous tax code.\n\nAdditional regulations that impact the treatment of or further expand on alimony issues may be promulgated later this year with forthcoming clarifications by the IRS.  \n\nOther notable changes under the TCJA include changes to the Child Tax Credit.  Under the previous law, the child tax credit provided for a partially refundable $1,000 child tax credit for the first two children with income phase-out at $110,000 for married or joint filers.  Under TCJA, the tax credit increases to $2,000 for “qualifying children” (generally under age 17 at the end of the year).  The income phase-outs were increased to $400,000 for married or joint filers. \n\n529 savings plan accounts also became more flexible.  Under the previous tax code, the distributions were allowed only for qualified higher education (college). Under TCJA, distributions of up to $10,000 per student are allowed for tuition at public, private, or religious elementary or secondary schools.  These changes may impact child support and property allocation issues attendant to divorce.\n\nFor most divorce cases involving alimony, there will be an incentive to get divorce matters resolved before the close of 2018.  Likewise, although already a common practice amongst divorce lawyers, consultation with a qualified tax professional incident to a divorce becomes even more important given the new landscape that exists under the TCJA.\n\nAndrew M. Wilkes is a partner in the litigation section of Oliver Maner LLP and concentrates his practice in the areas of medical malpractice defense and family law/divorce. He can be reached by email at dwilkes@olivermaner.com and by phone at 912.236.3311.

Tax Cuts and Jobs Act: Impact on Divorcing Spouses

In this article, Mr. Dickey and Mr. Beasley address the use of limited liability companies (“LLC”) in estate planning and asset protection and important drafting tips for LLC governing documents to keep property beyond the reach of creditors.\n\nLLCs are best known for the favorable characteristics they take from the other types of entities.  In the most rudimentary sense, LLCs can combine the favorable liability protection from corporations with the often favorable tax treatment from partnerships.  \n\nLLCs are known as “pass through entities” meaning all of the profits and losses of the LLC pass through the business to the owners of the LLC, or “members.”  The LLC itself does not pay federal income tax.   If the LLC elects to be taxed as a partnership, the LLC will issue a Form 1065 K-1 to its members showing that member’s lawful share of the LLC’s profits and losses.  The members then report this information on their individual tax returns.  It is important to note that the LLC is not required to distribute profits to its members.  How distributions are handled is typically set out in the LLC’s governing document, or operating agreement.  Even if the LLC does not distribute the profits to its members, the members will be taxed on their share of those profits. This fact will become important later in the article in regards to charging orders.      \n\nBottom-Up Protection.  LLCs, like corporations, are legal entities, separate and distinct from the individuals who create and own them.  In that regard, just like the shareholders of a corporation cannot generally be held liable for the obligations of the corporation, the members of an LLC cannot generally be held liable for the obligations of the LLC.  There are obviously some exceptions to this general rule.  First, like the shareholder of a corporation, a member of an LLC will be liable up to the amount of his or her investment in the LLC.  Thus, any capital or property the member transfers to the LLC in exchange for his or her ownership stake in the LLC or “membership units” (similar to shares of stock of a corporation) is an asset of the LLC and therefore can be used to satisfy the claims of its creditors.  Another exception to the general rule, is when the members of the LLC do not observe the formalities of the entity and the formal separation between themselves and the entity, or the members commit fraud on the LLC’s creditors.  In these situations, a court could “pierce the corporate veil” and impose personal liability on the individual members.  However, assuming the members refrain from these kind of activities, the liability to creditors of the LLC is generally limited to the assets of the LLC.  This concept of protecting the members of the LLC from personal liability to the creditors of the LLC is known as “bottom-up” liability protection; in other words, the creditors cannot go above the entity to the owners to seek satisfaction of their claims.   \n\nLet us consider the example of an LLC that is the record title holder of a rental house.  Let us assume that Dick and Jane Members, a married couple, owned the house jointly, and each transferred their respective interest in the rental house to the LLC in exchange for 50% of the membership units of the LLC.  Now, let us assume that a guest of the tenant of the rental house was injured due to some construction defect of the rental house.  The only asset owned by the LLC is the rental house which has a fair market value of $150,000.  Dick and Jane both have personal assets outside of their respective LLC interest in excess of $1,000,000 each.  If the guest sues the LLC for his injury and is awarded a judgment of $500,000, he may very well be able to levy on the rental house itself because it is an asset of the LLC.  However, assuming Dick and Jane have not committed any of the kind of actions mentioned above, the guest plaintiff should not be able to go above the assets of the LLC to reach Dick and Jane’s personal wealth.  This is referred to as “bottom-up” protection.     \n\nTop-Down Protection.  Most people understand the concept of bottom-up protection, which is why so many people form LLCs.  However, consider the following example.  Let us assume that Dick is the sole member (100% owner) of an LLC that owns the same rental house described in the example above.  Dick’s personal wealth outside of the LLC interest is roughly $1,000,000.  Dick accidently lets his car insurance lapse and subsequently runs a red light, injuring another driver.  Driver sues Dick and is awarded a judgment in excess of $1,000,000.  Can plaintiff driver levy on the rental house in an attempt to satisfy his judgment even though the LLC is the record title holder of the rental house?  In other words, does Dick have “top-down” protection, preventing the creditor from levying on the LLC’s assets to satisfy his personal debt?   \n\nIn a case out of Florida, Olmstead v. FTC, the Florida Supreme Court held that the provision of the Florida Limited Liability Company Act providing a judgment creditor with the right to a “charging order” against the judgment debtor’s ownership interest in a single-member LLC was not intended to be an exclusive remedy and that the judgment creditor may pursue the standard remedy of levy and sale of the LLC’s underlying assets upon execution.  On the other hand, a charging order is an order issued by a court directing an LLC’s manager to pay to the debtor member’s personal creditor distributions of income or profits, if any, that would otherwise be distributed to the debtor member.  In coming to this decision the court reasoned that the charging-order provision must be understood within the context of the basic rule under Florida law that an assignee of an LLC interest (i.e. a creditor) may only become a member if all members other than the member assigning the interest consent.  \n\nThe limitation on assignee rights [under the Florida statute] has no application to the transfer of rights in a single-member LLC. In such an entity, the set of ‘all members other than the member assigning the interest’ is empty. Accordingly, an assignee of the membership interest of the sole member in a single-member LLC becomes a member—and takes the full right, title, and interest of the transferor—without the consent of anyone other than the transferor.   \n\nBecause the judgment creditor becomes a member and takes the sole member’s full rights, title and interest, he too takes the right to manage the LLC and to liquidate it and have access to the underlying assets.  To that point, the court held: \n\n[s]ection 608.433(4)'s provision that a ‘judgment creditor has only the rights of an assignee of [an LLC] interest’ simply acknowledges that a judgment creditor cannot defeat the rights of nondebtor members of an LLC to withhold consent to the transfer of management rights. The provision does not, however, support an interpretation which gives a judgment creditor of the sole owner of an LLC less extensive rights than the rights that are freely assignable by the judgment debtor.  \n\nAfter the Olmstead decision, the Florida Legislature later revised the statute to make clear that “a charging order is the sole and exclusive remedy by which a judgment creditor of a member . . . may satisfy a judgment from the judgment debtor’s interest in a limited liability company or rights to distributions from the limited liability company” for multiple-member LLCs.  § 605.0503(3), Fla. Stat. (2014).  Again, this is because the consent of all members is required for the admission of a new member (i.e. a creditor).  The revised statute did, however, preserve the court’s holding in regards to single member LLCs.      \n\nWhy is this case from Florida relevant?  Because it is conceivable that a Georgia court could reach the same conclusion.  The relevant Georgia statute is O.C.G.A. § 14-11-504, which, before a 2009 amendment, stated:  \n\n(a) On application to a court of competent jurisdiction by any judgment creditor of a member or of any assignee of a member, the court may charge the limited liability company interest of the member or such assignee with payment [from the debtor member’s share of income distributions, if any] of the unsatisfied amount of the judgment with interest. To the extent so charged, the judgment creditor has only the rights of an assignee of the limited liability company interest [to receive any such distributions]. This chapter does not deprive any member of the benefit of any exemption laws applicable to his or her limited liability company interest.(b) The remedy conferred by this Code section shall not be deemed exclusive of others which may exist, including, without limitation, the right of a judgment creditor to reach the limited liability company interest of the member by process of garnishment served on the limited liability company.\n\n(Bracketed information added).  A court could easily apply the same equitable logic to the Georgia statute which also provides that consent of all the members of the LLC is needed to admit a new member to the LLC.   But, when the only member is the judgment debtor, there are no other members who have to consent to the creditor becoming a member.  And, if a court finds that a single member judgment debtor assigns all of his rights and interests in the LLC to his creditor, then it logically follows that said debtor also assigns his right to manage and to liquidate the LLC.  If such a decision were reached, then there is nothing to stop the judgment creditor, as the sole member and manager of the LLC, from forcing a liquidation sale of the LLC assets in order to satisfy his or her judgment.  \n\nThe 2009 amendment to the statute may make such a decision less likely.  The following proviso (the “proviso”) was added to the end of subsection (b) quoted above:  \n\n[E]xcept as otherwise provided in the articles of organization or a written operating agreement, a judgment creditor shall have no right under this chapter or any other state law to interfere with the management or force dissolution of a limited liability company or to seek an order of the court requiring a foreclosure sale of the limited liability company interest [nor would it allow the sale of the underlying assets of the LLC].  \n\nO.C.G.A. § 14-11-504(b)(bracketed information added).  However, although the proviso expressly gives the judgment creditor no right to interfere with management or force a foreclosure sale, it does not specifically address the situation described above – that a court could find in single-member LLC cases that the judgment creditor takes all of the rights (including management rights) of the single member debtor.  The bottom line is, without case law interpreting the proviso, a judgment creditor in Georgia may still have an argument as to why he or she can levy on the underlying assets or the membership units of a single-member LLC.    \n\nThus, in order to ensure “top-down” protection, it is a good idea in Georgia to have more than one member in an LLC.  If the LLC is a multi-member LLC, then the reasoning from Olmstead is moot.  O.C.G.A. § 14-11-308(b) states that unless otherwise provided in the articles of organization or a written operating agreement, the unanimous vote of the members is required to approve the following non-exhaustive list: dissolution of the LLC; the sale of all or substantially all of the assets of the LLC; and the admission of new members.  In the case of a multi-member LLC, one member (irrespective of how small of an interest such member owns) can prevent a judgment creditor from becoming a member, selling the assets of the LLC or dissolving the company.  This is a very powerful tool for top-down protection.  It is important to note however, that the terms of § 14-11-308(b) can be altered by a written operating agreement.  Therefore, when drafting an operating agreement for top-down protection, it is good practice to require unanimous consent for such matters.  Even without 14-11-308(b), however, multi-member LLCs would likely still be protected from judgment creditors under the proviso of 14-11-504(b).  Customized drafting could prove critical in the asset protection arena.\n\nThere are some drawbacks to forming a multi-member LLC.  Unlike single-member LLCs, Multi-member LLCs must file a separate tax return.  Again, the LLC does not pay federal taxes, but a separate return must be filed and K-1s issued to the members if the LLC elects to be taxed as a partnership for federal tax purposes.  This obviously adds extra administrative expense to the LLC, but, when considering the top-down protection it adds, it should be well worth it.  \n\nThe manner in which LLC members are taxed also provides a very powerful tool in protecting assets of the LLC.  As was mentioned above, O.C.G.A. § 14-11-504(a) gives a court the right to issue a charging order in favor of the judgment creditor to charge the LLC interest of the judgment debtor with payment of the unsatisfied amount from distributions, if any, made to the member.  In other words, the creditor, who is awarded a charging order, is entitled to the judgment debtor’s distributions from the LLC.  However, if the operating agreement is carefully drafted, the management of the LLC may not be required to make distributions to the members.  From the proviso, we know that at least in the case of a multi-member LLC, a judgment creditor has no right to interfere with management.  Therefore, the creditor cannot force a distribution to the members if the operating agreement gives management or all members the power to declare distributions.  And, as was mentioned above, the LLC will issue a Form 1065 K-1 to its members showing each member’s lawful share of the LLC’s profits and losses.  The members must report this information on their individual tax returns.  This is the case whether or not the LLC distributes the profits to the members.  Thus, imagine the situation where management of an LLC decides not to make any distributions of the profits, but the LLC issues a K-1 to a judgment creditor showing his or her share of the profits.  The judgment creditor must report the profits on his or her individual return and pay income tax on such amount.  Therefore, the judgment creditor may very well think twice before seeking a charging order if all it will render is an income tax bill with no accompanying distributions to pay it.  Again, this can be a very powerful tool, assuming the operating agreement is drafted in such a way that the management has discretion over the distributions (or all members, including any relatives in the debtor’s family who are also members of the LLC, must approve any distributions of profits).   \n\nLLCs can be powerful business and estate planning tools to provide bottom-up and top-down protection of assets.  However, when using LLCs for liability protection, one should consider the pitfalls that exist if the LLC is formed a certain way (single member versus multi member) or if the governing document of the LLC is not carefully custom drafted.  Bottom line: one should seek the advice and service of an experienced business attorney when considering the possibility of forming an LLC.       \n\nDavid H. Dickey is a partner at Oliver Maner LLP and concentrates his practice in the areas of Estate Planning, Business Law, Business Entities, Probate & Estate Administration and Taxation. He can be reached by email at ddickey@olivermaner.com and by phone at 912.236.3311.\n\nRyan Beasley is an associate at Oliver Maner LLP and concentrates his practice in the areas of Estate Planning, Business Law, Business Entities, Probate & Estate Administration and Taxation. He can be reached at rbeasley@olivermaner.com and by phone at 912.236.3311.

Limited Liability Companies: Drafting for Bottom-Up and Top-Down Liability  

In this article, attorney Ryan Beasley and I will address the issue of how trusts can be used to protect property from the claims of creditors and predators.\n\nProtecting Trust Property from the Claims of Creditors and Predators \n\nIn speaking of claims by creditors and predators against property held in trust, we normally hear about two major types of trusts, “Self-Settled Trusts” and “Third Party Trusts.”  \n\nSelf-Settled Trusts are trusts created where the Grantor (the person who creates the trust) is also a beneficiary of the trust.  A Third Party Trust, on the other hand, is one where the Grantor establishes a trust for beneficiaries other than himself or herself (for example, for his or her spouse, children, and/or other descendants).  Georgia law does not look kindly upon efforts of Settlors (the terms Settlor and Grantor are interchangeable) to defeat the claims of their own creditors by creating Self-Settled Trusts.  \n\nFor example, the Georgia Code states that “[during the lifetime of the settlor, the property of a revocable trust shall be subject to the claims of the settlor’s creditors.” O.C.G.A. § 53-12-82(1).  If the Settlor creates a Living Trust and makes it Irrevocable, the creditors of the Settlor may reach the “maximum amount that can be distributed to or for the settlor’s benefit during the settlor’s life or that could have been distributed to or for the settlor’s benefit immediately prior to the settlor’s death.” O.C.G.A. § 53-12-82(2). Thus, even if the property in a Self-Settled Trust is placed in the hands of an independent Trustee with discretion, but not any obligation, to pay the assets back to the Settlor, the creditors of the Settlor can still reach the maximum amount that the Trustee could, in the full exercise of his or her discretion, pay to the Settlor.  \n\nAfter the death of a Settlor, “the property of a trust that was revocable at the settlor’s death or had become irrevocable as the result of the settlor’s incapacity, shall be subject to the claims of the settlor’s creditors to the extent that the settlor’s probate estate is inadequate” to pay the debts. O.C.G.A. § 53-12-82(3). \n\nThus, it is very difficult for a Settlor to transfer his or her assets to a trust that is Revocable (or Irrevocable but provides lifetime benefits to the Settlor) and put those assets beyond the reach of his or her own creditors.  \n\nNote, however, that Georgia law is far more favorable to a debtor who is a beneficiary of a trust (i.e., a debtor/beneficiary) in the case where the beneficiaries of such trust do not include the Settlor.  Such trusts are called Third Party Trusts and include, for example, Testamentary Trusts that might be set up by a wife for her husband, children, and/or other descendants following her death. \n\nIn the next installment, we will explain in greater detail the Third Party Trust and the overlay of Georgia law as it balances the interest of creditors and the right of a person to leave his or her assets as he chooses.   \n\nDavid H. Dickey is a partner at Oliver Maner LLP and concentrates his practice in the areas of Estate Planning, Business Law, Business Entities, Probate & Estate Administration and Taxation. He can be reached by email at ddickey@olivermaner.com and by phone at 912.236.3311.\n\nRyan Beasley is an associate at Oliver Maner LLP and concentrates his practice in the areas of Estate Planning, Business Law, Business Entities, Probate & Estate Administration and Taxation. He can be reached at rbeasley@olivermaner.com and by phone at 912.236.3311.

Asset Protection through Trusts

Mr. Dickey and attorney Ryan Beasley address the issue of how trusts can be used to protect property from the claims of creditors and predators. (For purposes of this article, capitalized terms have the same meaning as in the prior installment of this article.)\n\nProtecting trust property from the claims of creditors and predators. In speaking of claims by creditors and predators against property held in trust, we normally hear about two major types of trusts, “Self-Settled Trusts” and “Third Party Trusts.”  \n\nSelf-Settled Trusts are trusts created where the Grantor (the person who creates the trust) is also a beneficiary of the trust.  A Third Party Trust, on the other hand, is one where the Grantor establishes a trust for beneficiaries other than himself or herself (for example, for his or her spouse, children, and/or other descendants).  Georgia law does not look kindly upon efforts of Settlors (the terms Settlor and Grantor are interchangeable) to defeat the claims of their own creditors by creating Self-Settled Trusts.  For example, the Georgia Code states that “[d]uring the lifetime of the settlor, the property of a revocable trust shall be subject to the claims of the settlor’s creditors.”  O.C.G.A. § 53-12-82(1).  If the Settlor creates a Living Trust and makes it Irrevocable, the creditors of the Settlor may reach the “maximum amount that can be distributed to or for the settlor’s benefit during the settlor’s life or that could have been distributed to or for the settlor’s benefit immediately prior to the settlor’s death.”  O.C.G.A. § 53-12-82(2).  Thus, even if the property in a Self-Settled Trust is placed in the hands of an independent Trustee with discretion, but not any obligation, to pay the assets back to the Settlor, the creditors of the Settlor can still reach the maximum amount that the Trustee could, in the full exercise of his or her discretion, pay to the Settlor.   \n\nAfter the death of a Settlor, “the property of a trust that was revocable at the settlor’s death or had become irrevocable as the result of the settlor’s incapacity, shall be subject to the claims of the settlor’s creditors to the extent that the settlor’s probate estate is inadequate” to pay the debts. O.C.G.A. § 53-12-82(3). \n\nThus, it is very difficult for a Settlor to transfer his or her assets to a trust which is Revocable (or Irrevocable but provides lifetime benefits to the Settlor) and put those assets beyond the reach of his or her own creditors.  \n\nNote, however, that Georgia law is far more favorable to a debtor who is a beneficiary of a trust (i.e., a debtor/beneficiary) in the case where the beneficiaries of such trust do not include the Settlor.  Such trusts are called Third Party Trusts and include, for example, Testamentary Trusts that might be set up by a wife for her husband, children, and/or other descendants following her death. \n\nGeorgia law seeks to strike a fair balance between the claims of creditors and the right of a person to leave his or her assets only to persons he or she chooses.  As described above, a Settlor cannot defeat his or her own creditors by transferring his or her assets to a Self-Settled Trust.  However, in Third Party Trusts, the creditors of a beneficiary (who is not the Settlor) of such trust should not be able to seize assets which the beneficiary never directly owned and transferred. \n\nWith respect to a Third Party Trust, a Settlor may, in general, dispose of his or her property as he or she sees fit in a manner which shields the property from the claims of the beneficiaries’ creditors.  The property passing pursuant to a Third Party Trust was not originally the property of the beneficiary(ies) of such trust and, therefore, should not have to be available to pay the debts of the beneficiary(ies).  The intent of the Settlor is paramount.  If the Settlor does not wish for his or her property to be seized by the creditors of a third party beneficiary, then that intent generally will be respected if the instrument is properly drafted (because, in most circumstances, the Settlor has the right to benefit only the persons he or she chooses and has no duty or obligation to pay the debts of the beneficiary).  \n\nO.C.G.A. § 53-12-81 entitled Limitations on creditors’ rights to discretionary distributions provides in pertinent part:  “[a] transferee or creditor of a beneficiary shall not compel the Trustee to pay any amount that is payable only in the trustee’s discretion regardless of whether the trustee is also a beneficiary.” (Emphasis added.)  This Section does not apply to the extent, if any, that a proportion of the trust property is attributable to the beneficiary’s own contribution. To that extent, the beneficiary would be considered a Settlor. \n\nThus, if the Trustee has the sole discretion to determine whether a payment of income or principal may be made to a beneficiary and the Settlor is not the beneficiary, then the creditors of that beneficiary cannot reach the assets of the trust unless and until they are paid out to such beneficiary.  Even in a Third Party Trust, however, the creditors of a non-Settlor beneficiary can reach the income or principal if the debtor/beneficiary has an absolute right to receive the distribution (for example, if the Trust does not leave it in the Trustee’s discretion but rather requires that all income be paid to the beneficiary).  In that event, the creditors can reach the income whether or not it is actually distributed.  It should be noted again the interplay between the rights of creditors versus the right of a Settlor/decedent to leave property as he or she wishes:  under O.C.G.A. § 53-12-81, the provision does not apply to the extent the beneficiary made a contribution of property (or is a Settlor) to the Trust.   \n\nO.C.G.A. § 53-12-80(e) provides that:\n\n[a] provision in a trust instrument that a beneficiary’s interest shall terminate or become discretionary upon an attempt by the beneficiary to transfer it, an attempt by the beneficiary’s creditors to reach it, or upon the bankruptcy or receivership of the beneficiary shall be valid except to the extent of the proportion of the trust property attributable to such beneficiary’s contribution [i.e., to the extent the beneficiary becomes a Settlor].  \n\n(Alteration to original.)   \n\nIn other words, even if the payment of income is mandatory in a Third Party Trust, a provision may be included in the instrument to terminate the distributions or change them from mandatory to discretionary if a beneficiary’s creditor is looming.  In this case, the provision could give the Trustee the discretion to pay such distributions to the beneficiary’s spouse or children or to accumulate all or part of the income.  In any event, the creditor could not reach the trust property except to the extent actually paid to the debtor/beneficiary.  \n\nIf an individual does not wish to place assets in a trust for an extended period of time but is only concerned about attempting to thwart the claims of his or her own creditors and predators upon death, then under O.C.G.A. § 53-12-82 (3), the simple re-titling of assets or the naming of beneficiaries for assets may be sufficient to defeat the claims of a debtor’s own creditors.  This Section provides that “[p]ayments that would not be subject to the claims of a settlor’s creditors if made by way of beneficiary designation to persons other than the settlor’s estate shall not be made subject to such claims. . . . .”  O.C.G.A. § 53-12-82(3). This means that, in those instances where beneficiaries are named or “designated” (such as on insurance policies, retirement plans, annuities, transfer on death accounts, payable on death accounts, joint tenancy with right of survivorship accounts, etc.), the assets will not be in the decedent’s probate estate and will not, absent other circumstances, be subject to the claims of creditors of the deceased debtor.  It should be kept in mind that, notwithstanding the above, if one wishes to avail himself or herself of the above-described planning techniques, he or she should engage in the planning prior to incurring the subject liability.  \n\nAs will be discussed in more detail in a subsequent installment of this article, the person who makes the transfer of an asset (whether in trust, outright or by beneficiary designation) and desires to put it beyond the reach of his or her own creditors, must not run afoul of the UNIFORM VOIDABLE TRANSACTIONS ACT (the “Act”), O.C.G.A. 18-2-70 et. seq. (primarily §§18-2-74 and 18-2-75). In a nutshell, this Act provides that if a person (the transferor) transfers property to a donee by a gift or to a trust (or by beneficiary designation or retitling), with a specific intent of hindering or defeating a creditor, or if the transferor is rendered insolvent by the transfer, the transfer may be set aside by a court as a “voidable transfer” so the creditor can reach it. But, assuming one does not run afoul of this Act, assets transferred to a trust for a beneficiary receive a much broader level of protection against claims of that beneficiary’s creditors. Thus, the time for an individual to engage in planning to insulate assets from the claims of creditors, is before those creditors appear on the horizon, and while the transferor is solvent.\n\nDavid H. Dickey is a partner at Oliver Maner LLP and concentrates his practice in the areas of Estate Planning, Business Law, Business Entities, Probate & Estate Administration and Taxation. He can be reached by email at ddickey@olivermaner.com and by phone at 912.236.3311.\n\nRyan Beasley is an associate at Oliver Maner LLP and concentrates his practice in the areas of Estate Planning, Business Law, Business Entities, Probate & Estate Administration and Taxation. He can be reached at rbeasley@olivermaner.com and by phone at 912.236.3311.

Non-Tax Uses of Trusts

As I prepared to write this piece, my 14-year-old son was required to undergo knee surgery at Augusta's Children’s Hospital. The complicated (and lengthy) pre-op process was a reminder of the multi-faceted challenges we face related to COVID-19, especially when considering reinitiating jury trials across our State.\n\nLet me explain.\n\nThe specimen from my son’s mandatory COVID-19 test was mistakenly sent to the “slow” lab instead of the one used for pre-surgical patients. After a delay, which included a new test and several hours waiting for the results, the surgery was successfully performed. \n\nNo matter one’s age and health, the personal, professional and societal implications of contracting COVID-19 can be daunting. It is also affecting a matter of much greater significance — the efficient administration of justice.  \n\nEach person asked to serve on a jury in the coming months will undoubtedly ask two basic questions: What are the risks? And, is it worth the risk to report to jury duty?   \n\nHow do we convince prospective jurors — all of whom will have the same thoughts that I did in that waiting room — that we can keep them safe and that their service is “worth the risk”?\n\nThis quandary has been evident in every decision made thus far by Chief Justice Harold D. Melton and the Supreme Court of Georgia,which recently issued a new judicial emergency order prohibiting any trials until at least Feb. 7. \n\nChief Justice Melton has made it clear that while business will eventually proceed, it will not be “business as usual.”   \n\nThe business of the courts shall only be conducted in a safe manner following Centers for Disease Control (CDC) guidelines. Every court in the state has submitted a provisional plan outlining how that court will re-engage in seating jurors for trials while making sure that every juror feels safe.  \n\nWhen we tell prospective jurors that they are safe and that their service is worth it, we have to be right.  And getting it “right” could not be more important.   \n\nJury trials in civil cases have been mandated since 1791 through the Seventh Amendment to the U.S. Constitution. In fact, Americans who were seeking independence from British rule served on colonial juries as a way to govern themselves.\n\nThus, it is no small thing when our courts cease operation of the most fundamental guaranteed right of procedure in our justice system. This is especially true now. \n\nIt is imperative that those who feel aggrieved, and those who have been accused, have their Constitutional rights to a timely jury trial through a fair process.   \n\nThese are big questions with no clear answers and known and unknown obstacles in our path.   \n\nAnyone who receives a jury summons in the coming months can believe that the judges and lawyers in this State are cognizant of their thoughts and fears and are taking every conceivable action to address them.  We can have faith that Chief Justice Melton and the other justices are thoughtfully negotiating what is one of the most intricate balancing acts our justice system has faced.    \n\nThere are going to be more bumps in the road which require our patience and cooperation. However, jury trials must soon again become a reality throughout our country. Our entire system of justice depends on it.   \n\nThis is an op-ed by lawyer William J. Hunter, a partner at the Savannah law firm of Oliver Maner LLP. He is a member of the American Board of Trial Advocates, an organization devoted to protecting the Seventh Amendment right to civil trial by jury for Americans.\n

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