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Questions Answered by Michael R. Smith

1 Answer | Asked in Business Formation for Illinois on

Q: Do I need to be a LLC or similar? As an independent contractor Process Server I want to protect myself, home, car etc.?

I use my own car and am paid 1099 in my own name. In case of an issue during the serve or an auto accident while working I want to protect my family, house, cars etc from litigation/responsibility.

Michael R. Smith answered on Aug 21, 2019

As an Indiana attorney, I'm not familiar with Illinois rules governing process servers, so I can't tell you if there are any specific provisions of those rules that might affect the answer to your question. But I can answer your question as a general matter.

As long as the LLC is properly...
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1 Answer | Asked in Estate Planning for Indiana on

Q: How does a benificiary benifit from a revocable trust after death of grantor

Michael R. Smith answered on Oct 17, 2014

You're probably talking about a so-called "living trust" which is revocable by the grantor until the grantor's death and then converts to an irrevocable trust. The answer to your question depends on the language of the trust instrument, probably called a declaration of trust or a trust agreement.... Read more »

1 Answer | Asked in Real Estate Law for Indiana on

Q: when buying a house for cash what fees are there

Michael R. Smith answered on Oct 17, 2014

Even when my clients are buying a house for cash, I advise them to use a closing or settlement agent to handle the closing to make sure everything is done correctly, and I also advise them to obtain an owner's title insurance policy, which will likely require a survey to be performed. The usual... Read more »

1 Answer | Asked in Real Estate Law for Indiana on

Q: Can I do anything about a buyer who doesn't disclose financial information?

We had a contract to sell our house. She didn't qualify for a loan. 2 weeks later she buys an even more expensive house. Can she legally withhold financial information to prevent the sale from proceeding?

Michael R. Smith answered on Jul 19, 2014

If I understand correctly, you are a bit suspicious that the buyer may not have disclosed all of her financial information in applying for a loan precisly so she would not qualify and therefore could get out of the purchase agreement. A couple of thoughts....

Most purchase agreements that...
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1 Answer | Asked in Real Estate Law for Indiana on

Q: I signed a contract as the seller in Indiana. I now do not want to sell. What do I do?

It was signed 2 days ago. Have already asked buyer if they would reconsider. As of right now it doesn't look like they will.

Michael R. Smith answered on Jul 8, 2014

This answer may be a bit late but. . . . based only on the facts you've given, and assuming the contract is valid and created a binding obligation for you to sell, it seems you have to possibilities: (1) Go through with the sale. (2) Try to negotiate a resolution with the buyer which will likely... Read more »

1 Answer | Asked in Landlord - Tenant for Indiana on

Q: My tenants lied about moving out if state to break lease - am I stuck?

They had just signed an 18 mo. lease (2nd lease) and then lied about accepting a job offer in DC and it would create a hardship if they couldn't get out of the lease. I just found out they never moved and just wanted out of the lease. Am I stuck without recourse?

Michael R. Smith answered on Jul 8, 2014

Based only on the facts you've given, it appears that you likely have a claim against the former tenants for fraud. I recommend you see an attorney to discuss the facts in more detail and to discuss the remedies you might have available to you. Take a copy of the lease with you and copies of any... Read more »

1 Answer | Asked in Collections for Indiana on

Q: Are withholding taxes owed by a defunct C-corp that did business soley in Indiana owed by the officers of that corp?

Michael R. Smith answered on Jul 8, 2014

Possibly. The Internal Revenue Code imposes liability for the failure to collect and pay withholding on "responsible persons." Responsible persons can include officers, directors, shareholders, and others. The test is not really the person's title but whether the he or she had a duty to account... Read more »

1 Answer | Asked in Business Law for Indiana on

Q: Can you own 2 different corporations in Indiana, example a hardware store and a cabinet store at the same time

Michael R. Smith answered on Jun 27, 2014

Sure. The only reason I can think of that might prohibit it is if one or both of them are franchises, and the franchise agreement prohibits you from owning a competing business -- but even that seems unlikely in your example of a hardware store and a cabinet store.

2 Answers | Asked in Real Estate Law for Indiana on

Q: Can emails stating there is an agreement override the fact that you can't have a verbal agreement to buy a house?

I have several emails discussing that we took over the house and that the seller would write an agreement. This never happen and now she wants to change the agreement after we have paid on it for 2 years. Can I stop her from doing this?

Michael R. Smith answered on May 16, 2014

I agree with Mr. Snyderman. In addition to the question of whether the email messages contain enough documentation of the essential terms, there can also be a question of whether the email messages are "signed."

However, the situation that you describe presents a slightly different...
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1 Answer | Asked in Real Estate Law for Indiana on

Q: My mom and i own 32 acres can she let anyone move on it without my permission

Michael R. Smith answered on Apr 18, 2014

Yes. If land is owned jointly by two people (whether it's as joint tenants or tenants in common), each owner has the right to full use of the land. However, if the property is leased, each owner should get half the rent, regardless of which owner made the lease. And if there is a disagreement... Read more »

1 Answer | Asked in Real Estate Law for Indiana on

Q: My husband owned the house before we were married if he died will I still be able to own the home?

Michael R. Smith answered on Apr 18, 2014

I assume nothing has been done so far and the house is still entirely in the husband's name. In that case, if the husband dies, the house will pass to his heirs either under his will, if he has one. If dies without a will, the house will pass to his heirs according to the rules of intestate... Read more »

1 Answer | Asked in Real Estate Law for Indiana on

Q: If a spouse dies and both names are on the house, do the surviving spouse automatically own the house

Michael R. Smith answered on Apr 18, 2014

Yes, usually, but it depends on how the deed reads. Usually, if the house was bought during the marriage, the deed will give the married couple a "tenancy by the entirety." If they bought the house before they got married, the deed will usually give them a "joint tenancy." In either of those... Read more »

1 Answer | Asked in Real Estate Law for Indiana on

Q: What is the procedure to sell a house when a part owner does not want to sell in Indiana?

Mother sold house to her sons. One of the sons does not want to sell? Can we force him to sign the papers to sell house?

Michael R. Smith answered on Apr 7, 2014

You should consult an attorney about filing a court petition to "partition" the property under Indiana Code 32-17-4.

1 Answer | Asked in Business Formation for Alabama on

Q: Does a very small church need to nonprofit incorporate?

Michael R. Smith answered on Apr 7, 2014

Does a very small church NEED to incorporate? No. There are many small churches, and some large ones, that operate as unincorporated associations. However, I advise all my nonprofit clients, including churches, to incorporate. Although I can't speak specifically to Alabama law, in my experience... Read more »

1 Answer | Asked in Real Estate Law for Indiana on

Q: CAN I REMOVE A NAME FROM A DEED WITH A DEATH CERTIFICATE

Michael R. Smith answered on Apr 2, 2014

I'm guessing that you are talking about property that was held in joint tenancy with right of survivorship. One of the joint tenants died, and now the property is owned by the surviving joint tenant. If that's the case, the surviving joint tenant can sign a document called an affidavit of... Read more »

1 Answer | Asked in Business Formation for Pennsylvania on

Q: Own rental in Indiana, but live in PA, does LLC for rental need to be in IN or PA?

Michael R. Smith answered on Apr 2, 2014

Either one will work. If you organize the LLC in Pennsylvania, you'll need to obtain a Certificate of Authority to transact business in Indiana from the Indiana Secretary of State. Either way, you'll need a registered agent and registered office in Indiana. There are companies that provide... Read more »

1 Answer | Asked in Estate Planning for Indiana on

Q: I own a business that is in an LLC. My will says it goes to my kids. I'm thinking about setting up a living trust so

It will go to my kids without going through probate. Is that the only way to do it?

Michael R. Smith answered on Mar 26, 2014

A living trust can be a good way to leave your business to your children, but it's not the only way. Another very good way to do it is to designate your LLC interest as transfer on death (TOD) property with your children as benefiaries.

1 Answer | Asked in Estate Planning for Indiana on

Q: How is an estate divided in Indiana if there is no will, 2 deceased siblings,10 nieces & nephews--2 from 1,8 from other.

Michael R. Smith answered on Mar 22, 2014

Assuming the nieces and nephews are the only survivors (i.e., no spouse, no parents, no children, grandchildren, great grandchildren, etc.), the nieces and nephews will take "by representation" or "per stirpes." In other words, the two siblings, had they survived, would have each taken half. So... Read more »

1 Answer | Asked in Business Law for Indiana on

Q: Is it legal in INDIANA to own 2 corporations with the same name at the same time??? If so what are the statutes ???

We are trying to find out if it is legal in INDIANA to own 2 corporations with the same name at the same time??? If it is what are the statutes that allow said law. EX: ABC Inc. and ABC Inc.

Michael R. Smith answered on Mar 22, 2014

Indiana Code 23-1-23-1(b) says that the name of a corporation has to be distinguishable from the name of another corporation or other business entity organized in Indiana. So, no, there should not be two Indiana corporations with the same name. In fact, there should not be an Indiana corporation... Read more »

1 Answer | Asked in Business Law for Indiana on

Q: Does a sub-chapter "S" corporation need a minutes book, and if so, can annual meeting minutes be kept in any binder?

Michael R. Smith answered on Mar 22, 2014

Any Indiana business corporation -- whether it is taxed as an S-corporation or a C-corporation -- is required to keep certain records specified by Indiana Code 23-1-52-1, including, among other things, minutes of all shareholder meetings and meetings of the board of directors. Those records must be... Read more »

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