Persons Prohibited From Possessing A Firearm

The Gun Control Act of 1968, as amended by the 1994 Brady Handgun Violence Prevention Act, prohibits certain people from possessing a firearm. The possession of any firearm by one of these “prohibited persons” is a felony offense. It is also a felony for any person, including a registered Federal Firearms Licensee to sell or otherwise transfer any firearm to a person knowing or having “reasonable cause” to believe that the person receiving the firearm is prohibited from firearm possession.

There are nine categories of people prohibited from possessing firearms under the Gun Control Act:

• Persons under indictment for, or convicted of, any felony crime punishable by imprisonment for a term exceeding one year
• Fugitives from justice
• Persons who are unlawful users of, or addicted to, any controlled substance
• Persons who have been declared by a court as mental defectives or have been committed to a mental institution
• Illegal aliens or aliens who were admitted to the United States under a nonimmigrant visa
• Persons who have been dishonorably discharged from the Armed Forces
• Persons who have renounced their United States citizenship
• Persons subject to certain types of restraining orders
• Persons who have been convicted of a misdemeanor crime of domestic violence

In addition, most persons under 18 years of age are prohibited from possessing handguns. These federal laws impose a life-long ban on gun possession by anyone convicted of a felony, as well as those merely under indictment for a felony. In addition, the federal courts have held that under the Gun Control Act, persons convicted of felonies are banned from owning guns even if they never serve jail time for the crime.

Prohibited Persons

Prohibited persons” may not possess firearms or ammunition. It is also unlawful to knowingly give a prohibited person firearms or ammunition. Those restrictions seem straight-forward, but there are unique definitions and exceptions that apply. These details should be understood so that you know exactly who is a prohibited person and precisely what they are prohibited from possessing. There are two categories of persons who may not possess firearms or dangerous weapons under Utah law. Penalties for weapons possession by category I restricted persons are more severe than the penalties for possession by category II restricted persons.

Category I covers persons who have “been convicted of any violent felony” or are “on probation or parole for any felony” or have been “within the last 10 years an adjudicated delinquent for an offense which if committed by an adult would have been a violent felony”. Under Utah law, “A Category I restricted person who intentionally or knowingly agrees, consents, offers, or arranges to purchase, transfer, possess, use, or have under his custody or control, or who intentionally or knowingly purchases, transfers, possesses, uses, or has under his custody or control any firearm is guilty of a second degree felony.”

Category II covers persons who have “been convicted of or are under indictment for any felony” or have “within the last seven years been an adjudicated delinquent for an offense which if committed by an adult would have been a felony” or are “an unlawful user of a controlled substance” or have “been found not guilty by reason of insanity for a felony offense” or have “been found mentally incompetent to stand trial for a felony offense” or have “been adjudicated as mentally defective as provided in the Brady Handgun Violence Prevention Act” or are “an alien who is illegally or unlawfully in the United States” or have “has been dishonorably discharged from the armed forces” or have “renounced his citizenship after having been a citizen of the United States”. A Category II restricted person who purchases, transfers, possesses, uses, or has under his custody or control any firearm is guilty of a third degree felony under Utah law. In addition to any person who has been convicted of any offense listed under §6105(b), the following persons shall not be eligible for or permitted to possess a firearm:

• You are a fugitive from justice.
• You were convicted of an offense under the “Controlled Substance, Drug, Device and Cosmetic Act”, or any equivalent Federal statute, or equivalent statute of any other state, that may be punishable by a term of imprisonment exceeding two years.
NOTE: This refers to the maximum sentence you could have received, not the actual sentence you did receive.
• You have been convicted of Driving Under the Influence of Alcohol or Controlled Substance (DUI) on three or more separate occasions within a five-year period. For the purposes of this paragraph only, the prohibition of possessing firearms shall only apply to transfers or purchases of firearms after the 3rd conviction. This means that you may keep what firearms you have if this is the only paragraph that applies to you. However, you may not transfer or receive any firearms.
• You have been adjudicated as an incompetent or you have been involuntarily committed to a mental institution for inpatient care and treatment under the Mental Health Procedures Act. This paragraph does not apply to any proceeding under §302 of the Mental Health Procedures Act if the examining physician issued a certification that inpatient care was not necessary or that the person was not committable.

• You are an alien who is illegally or unlawfully in the United States.
• You are the subject of an active final protection from abuse order issued pursuant to 23 Pa.C.S. §6108, are the subject of any other active protection from abuse order issued pursuant to 23 Pa.C.S. §6107(b), which provided for relinquishment of firearms during the period of time the order is in effect or are otherwise prohibited from possessing or acquiring a firearm under 18 U.S.C. §922 (g)(8). This prohibition shall terminate upon the expiration or vacation of the order or portion thereof relating to relinquishment of firearms.

• You, as a juvenile, were adjudicated delinquent of the below mentioned offenses, or under any equivalent Federal statute, or statute of any other state:

• §2502 (relating to Murder)
• §2503 (relating to Voluntary manslaughter)
• §2702 (relating to Aggravated assault)
• §2703 (relating to Assault by prisoner)
• §2704 (relating to Assault by life prisoner)
• §2901 (relating to Kidnapping)
• §3121 (relating to Rape)
• §3123 (relating to Involuntary deviate sexual intercourse)
• §3301 (relating to Arson and related offenses)
• §3502 (relating to Burglary)
• §3701 (relating to Robbery)
• §3923 (relating to Theft by extortion) when the offense is accompanied by threats of violence

• You, as a juvenile, were adjudicated delinquent of any of the offenses mentioned in §6105(b) or under any equivalent Federal statute, or statute of any other state with the exception of those crimes mentioned in paragraph 7. This prohibition will terminate 15 years after the last applicable delinquent adjudication or upon the person reaching the age of 30, whichever is earlier.

• You are prohibited from possessing or acquiring a firearm under federal law because you have been convicted of a misdemeanor crime of domestic violence*. If the offense which resulted in the prohibition under 18 U.S.C. §922(g) was committed by a person in any of the following relationships:

(i) the current or former spouse, parent or guardian of the victim;
(ii) a person with whom the victim shares a child in common;
(iii) a person who cohabits with or has cohabited with the victim as a spouse, parent or guardian; or
(iv) a person similarly situated to a spouse, parent or guardian of the victim; then the relationship need not be an element of the offense to meet the requirements of this paragraph.

• You, as the subject of a temporary or active final protection from abuse order, were convicted under 18 Pa.C.S. §6105(a.1 of failing to relinquish a firearm or other weapon or ammunition to the Sheriff or other law enforcement agency as required by the order. This prohibition terminates five years after the date of conviction, final release from confinement or final release from supervision, whichever is later.

What to Do if You’re a Prohibited Person

If you are a prohibited person, stay away from firearms for as long as you remain a prohibited person. Possession of a firearm is enough to get you into trouble – it doesn’t have to be your firearm. Also, be extremely careful near firearms even if you’re not physically holding one. Depending on the situation, having access to a nearby firearm might be enough to get you into trouble. If you want to regain your right to possess a firearm, you should contact an attorney in the state where the event happened that keeps you from possessing firearms. You may be able to overturn your status as a prohibited person. It is rare, but it can happen. Whatever you do, do not try to have someone else get a firearm or ammunition for you.

Prohibited Purchasers In Utah

Federal law prohibits certain persons from purchasing or possessing firearms, such as felons, certain domestic abusers, and certain people with a history of mental illness. Utah law provides that, subject to certain limited exceptions, no person shall possess a firearm if he or she:
Is a Category I restricted person, meaning a person who:

• Has been convicted of any violent felony;
• Is on probation or parole for any felony;
• Is on parole from a “secure facility”;or
• Within the last 10 years has been adjudicated delinquent for an offense which if committed by an adult would have been a violent felony; or
• Is an alien who is illegally or unlawfully in the U.S.;
Is a Category II restricted person, meaning a person who:
• Has been convicted of a felony or, within the last seven years has been adjudicated delinquent for an offense which if committed by an adult would have been a felony;
• Is an unlawful user of a controlled substance;
• Is in possession of a dangerous weapon and is knowingly and intentionally in unlawful possession of a Schedule I or II controlled substance;
• Has been found not guilty by reason of insanity of, or has been found mentally incompetent to stand trial for, a felony offense;
• Has been adjudicated mentally defective as provided in the Brady Handgun Violence Prevention Act, codified at 18 U.S.C. § 921 et seq. or has been committed to a mental institution;
• Has been dishonorably discharged from the armed forces;
• Has renounced one’s citizenship after having been a citizen of the U.S.;

• Is subject to a final domestic violence protective order if the order includes a finding that:
• The respondent or defendant represents a credible threat to the physical safety of an intimate partner as defined by federal law; or
• Explicitly prohibits the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily harm against an intimate partner or the child of an intimate partner; or
• Has been convicted of a domestic violence misdemeanor.
Individuals subject to a sexual violence protective order are prohibited from purchasing or possessing firearms so long as: The respondent has been given notice of the petition for a protective order and an opportunity to be heard; and the petition establishes:
• By a preponderance of the evidence that the respondent committed sexual violence against the petitioner; and
• By clear and convincing evidence that the respondent’s use or possession of a firearm poses a serious threat of harm to the petitioner or a family or household member designated in the protective order.
Additionally, a person who has been convicted of a crime for which the penalty was enhanced due to the offense being “gang-related” may not possess a firearm or ammunition within a minimum of five years after the conviction. Utah repealed its prohibition against firearm possession by a person currently under indictment for a felony.

A Category I restricted person who intentionally or knowingly agrees, consents, offers, or arranges to purchase, transfer, possess, use, or have under one’s custody or control, or who intentionally or knowingly purchases, transfers, possesses, uses, or has under one’s custody or control any firearm is criminally liable for a second degree felony.
A Category II restricted person who purchases, transfers, possesses, uses, or has under one’s custody or control any firearm is criminally liable for a third degree felony. A person may be subject to the restrictions of both categories at the same time. If a finding is made that the subject of a child protective order or an ex parte child protective order may pose a serious threat of harm to the minor, the order may prohibit the subject from purchasing, using or possessing a firearm.

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Utah probate Code 75-2-702

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Utah Probate Code 75-2-702

Requirement of survival by 120 hours–Under probate code or governing instrument Co-owner Exceptions Protection of payers, third parties, and bona fide purchasers’ Personal liability of recipient. Except as provided in Subsection (4), an individual who is not (1) established by clear and convincing evidence to have survived an event, including the death of another individual, by 120 hours is considered to have predeceased the event. Except as provided in Subsection (4), for purposes of a (2) provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by 120 hours is considered to have predeceased the event.

Except as provided in Subsection (4), if: it is not established by clear and (a) convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by 120 hours, 1/2 of the property passes as if one had survived by 120 hours and 1/2 as if the other had survived by 120 hours;  and there are more than two co-owners and it (b) is not established by clear and convincing evidence that at least one of them survived the others by 120 hours, the property passes in the For the proportion that one bears to the whole number of co-owners. purposes of this subsection, “co-owners with right of survivorship” includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitles one or more to the whole of the property or account on the death of the other or others.

Survival by 120 hours is not required if: the governing instrument contains language (a) dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case; the governing instrument expressly (b) indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event by a specified period;  but survival of the event or the specified period shall be established by clear and convincing evidence; the imposition of a 120-hour requirement (c) of survival would cause a non-vested property interest or a power of appointment to fail to qualify for validity under Section 75-2-1203 or to become invalid under Section 75-2-1203 ;  but survival shall be established by clear and convincing evidence;  or the application of a 120-hour requirement (d) of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition;  but survival shall be established by clear and convincing evidence. A payer or other third party is not liable for having made (5)(a) a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who, under this section, is not entitled to the payment or item of property, or for having taken any other action in good faith reliance on the beneficiary’s apparent entitlement under the terms of the governing instrument, before the payer or other third party received written A payer or notice of a claimed lack of entitlement under this section. Other third party is liable for a payment made or other action taken after the payer or other third party received written notice of a claimed lack of entitlement under this section. Written notice of a claimed lack of (b) entitlement under Subsection (5)(a) shall be mailed to the payer’s or other third party’s main office or home by registered or certified mail, return receipt requested, or served upon the payer or other third party Upon receipt of in the same manner as a summons in a civil action. written notice of a claimed lack of entitlement under this section, a payer or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to the decedent’s The court estates located in the county of the decedent’s residence. Shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the Payments, transfers, or deposits made to or with the determination. Court discharge the payer or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.

A person who purchases property for value and without (6)(a) notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment But a person who, not or the value of the item of property or benefit. for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. If this section or any part of this (b) section is pre-empted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not pre-empted.

Requirement That Heir Survive Decedent

In addition to determine who potential heirs might be, certain states have strict survival requirements in order for heirs to inherit their shares of the intestate decedent’s estate. I thought I would take this opportunity to discuss more in depth this requirement, and how it typically takes shape. In many states (including Alaska, California, Texas, Kentucky, Wisconsin, etc.), it is required that the relevant potential heir survive the decedent by at least 120 hours–5 full days– in order to be considered an heir entitled to inherit (remember heirs are determined at the time of the decedent’s death, prior to that time the class of people we think might be heirs are referred to as heirs apparent). The reality of the 120 hour requirement, then, is that if the heir apparent fails to survive the decedent by even 119 hours, then they are not entitled to the share. What this means in practice, is that the share merely passes on to the next relevant heir. So, for example, if the person who fails to survive is the child of the decedent, then their share would merely pass to their children (or issue). The main potential downside is that the heir apparent cannot utilize their estate plan in determining what they leave to their heirs, or other beneficiaries. In any case, however, the heirs down the line will still be entitled to shares according to their relationship to the decedent.

State’s Express Intent to Avoid Escheat

This is the only explanation I can think of to explain why the Probate Code goes to great lengths detailing the order of intestate heirs, which includes predeceased spouse’s children, parents, or siblings. Additionally, even when it comes to the survival requirement, the state is willing to waive the requirement if it means the potential for escheat: The requirement of this section that a person who survives the decedent must survive the decedent by 120 hours does not apply if the application of the 120-hour survival requirement would result in the escheat of property to the state…Thus, it can be the case that the failure to survive the decedent by more than even 1 hour is sufficient enough if the only other alternative is the escheat of the property to the state. Therefore, it is more accurate to categorize this type of statute as one that attempts to streamline the process of determining heirs. If there are additional heirs, then the estate will pass to them should the 120 hour survival requirement not be fulfilled. Absent additional heirs, the buck stops with the heir apparent who failed to survive the decedent by 120 hours.

Uniform Simultaneous Death Act

The Uniform Simultaneous Death Act is a uniform act enacted in some U.S. states to alleviate the problem of simultaneous death in determining inheritance. The Act specifies that, if two or more people die within 120 hours of one another, and no will or other document provides for this situation explicitly, each is considered to have predeceased the others. However, the Act contains a clause that states if the end result would be an intestate estate escheating to the state, the 120-hour rule is not to be applied. The Act was promulgated in 1940, when it was adopted by all 48 then-existing states. It was last amended in 1993. As of 2010, 19 states (Alaska, Arizona, Arkansas, Colorado, Hawaii, Kansas, Kentucky, Massachusetts, Montana, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, South Dakota, Utah, Virginia, and Wisconsin), as well as the District of Columbia and the Virgin Islands have explicitly adopted the Act in its current version. A number of other states have indirectly adopted the Act as part of the Uniform Probate Code. The Act primarily helps to determine the heirs of a person who has died intestate. The 120-hour period is intended to simplify estate administration by preventing an inheritance from being transferred more times than necessary.

Survivorship Periods in Wills and Trusts

A “survivorship period” is a standard feature of many wills and trust documents. A survivorship clause states that beneficiaries named in the document cannot inherit unless they live for a specific amount of time after the will- or trust-maker dies. This time is called a survivorship period, and commonly ranges from about five to 60 days. For example, a will might state that “a beneficiary must survive me for 45 days to receive property under this will.” It’s unusual to see a survivorship period longer than 60 days. If a survivorship period is more than 120 days, it could jeopardize the estate-tax-free transfer of assets from a deceased spouse to the survivor. Federal estate tax isn’t a concern for most people (more than 99.5% of estates don’t owe any tax), but even without the tax consequences, a long survivorship period isn’t necessary.

Utah Survivorship Period

Utah has a survivorship period. To inherit under Utah’s intestate succession law, the heir in question must survive the decedent by at least 120 hours. In addition, relatives conceived before you die but born after the decedent’s death are eligible to inherit as if they had been born while the decedent was alive. However, posthumous relatives must survive at least 120 hours after birth in order to be eligible for their inheritance. Immigration status is irrelevant when it comes to inheritance. If a relative of yours is entitled to a share of your assets, they can inherit no matter what their citizenship status is. Half-relatives inherit as much as “whole” relatives. For example, your half-sibling would get the same share as any other sibling. Utah considers non-probate transfers to be advancements on a relative’s share of the estate. That means if an heir receives life insurance proceeds or funds from a payable on death account, those amounts are calculated as part of that heir’s share. In addition, if you make a gift to a future heir while you are alive, and put in writing that this should be advancement on their inheritance, or if the inheritor puts it in writing, the value of the gift is subtracted from their share.

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Can A Limited Liability Company Be A Qualified International Buyer?

A limited liability company (LLC) is a corporate structure in the United States whereby the owners are not personally liable for the company’s debts or liabilities. Limited liability companies are hybrid entities that combine the characteristics of a corporation with those of a partnership or sole proprietorship. While the limited liability feature is similar to that of a corporation, the availability of flow-through taxation to the members of an LLC is a feature of partnerships.

A limited liability company (LLC) is a hybrid legal entity having certain characteristics of both a corporation and a partnership or sole proprietorship (depending on how many owners there are). An LLC is a type of unincorporated association distinct from a corporation. The primary characteristic an LLC shares with a corporation is limited liability, and the primary characteristic it shares with a partnership is the availability of pass-through income taxation. As a business entity, an LLC is often more flexible than a corporation and may be well-suited for companies with a single owner. Although LLCs and corporations both possess some analogous features, the basic terminology commonly associated with each type of legal entity, at least within the United States, is sometimes different. When an LLC is formed, it is said to be organized, not incorporated or chartered, and its founding document is likewise known as its articles of organization, instead of its articles of incorporation or its corporate charter. Internal operations of an LLC are further governed by its operating agreement, rather than its bylaws. The owner of beneficial rights in an LLC is known as a member, rather than a shareholder. Additionally, ownership in an LLC is represented by a membership interest or an LLC interest (sometimes measured in membership units or just units and at other times simply stated only as percentages), rather than represented by shares of stock or just shares (with ownership measured by the number of shares held by each shareholder). Similarly, when issued in physical rather than electronic form, a document evidencing ownership rights in an LLC is called a membership certificate rather than a stock certificate. In the absence of express statutory guidance, most American courts have held that LLC members are subject to the same common law alter ego piercing theories as corporate shareholders. However, it is more difficult to pierce the LLC veil because LLCs do not have many formalities to maintain. As long as the LLC and the members do not commingle funds, it is difficult to pierce the LLC veil. Membership interests in LLCs and partnership interests are also afforded a significant level of protection through the charging order mechanism. The charging order limits the creditor of a debtor-partner or a debtor-member to the debtor’s share of distributions, without conferring on the creditor any voting or management rights.

Limited liability company members may, in certain circumstances, also incur a personal liability in cases where distributions to members render the LLC insolvent.

What is a QIB?

A qualified institutional buyer (QIB), in United States law and finance, is a purchaser of securities that is deemed financially sophisticated and is legally recognized by securities market regulators to need less protection from issuers than most public investors. Typically, the qualifications for this designation are based on an investor’s total assets under management and specific legal conditions in the country where the fund is located. Rule 144A requires an institution to manage at least $100 million in securities from issuers not affiliated with the institution to be considered a QIB. If the institution is a bank or savings and loans thrift they must have a net worth of at least $25 million. If the institution is a registered dealer acting for its own account it must in the aggregate own and invest on a discretionary basis at least $10 million of securities of issuers not affiliated with the dealer. Certain private placements of stocks and bonds are made available only to qualified institutional buyers to limit regulatory restrictions and public filing requirements.

Understanding Limited Liability Companies (LLCs)

Limited liability companies (LLCs) are a business structure that is allowed under state statutes. The regulations surrounding LLCs vary from state to state. LLC owners are generally called members. Many states don’t restrict ownership, meaning anyone can be a member including individuals, corporations, foreigners and foreign entities, and even other LLCs. Some entities, though, cannot form LLCs, including banks and insurance companies. An LLC is a more formal partnership arrangement that requires articles of organization to be filed with the state. An LLC is much easier to set up than a corporation and provides more flexibility and protection. LLCs don’t pay taxes. Instead, profits and losses are listed on the personal tax returns of the owner(s). If fraud is detected or if a company hasn’t met legal and reporting requirements, creditors may be able to go after the members. Members’ wages are deemed operating expenses and are deducted from the company’s profits.

Some Advantages

• Choice of tax regime. An LLC can elect to be taxed as a sole proprietor, partnership, S corporation or C corporation (as long as they would otherwise qualify for such tax treatment), providing for a great deal of flexibility.

• A limited liability company with multiple members that elects to be taxed as partnership may specially allocate the members’ distributive share of income, gain, loss, deduction, or credit via the company operating agreement on a basis other than the ownership percentage of each member so long as the rules contained in Treasury Regulation (26 CFR) 1.704-1 are met. S corporations may not specially allocate profits, losses and other tax items under US tax law.

• The owners of the LLC, called members, are protected from some or all liability for acts and debts of the LLC, depending on state shield laws.

• In the United States, an S corporation has a limited number of stockholders, and all of them must be U.S. tax residents; an LLC may have an unlimited number of members, and there is no citizenship restriction.

• Much less administrative paperwork and record-keeping than a corporation.

• Pass-through taxation (i.e., no double taxation), unless the LLC elects to be taxed as a C corporation.

• Using default tax classification, profits are taxed personally at the member level, not at the LLC level.

• LLCs in most states are treated as entities separate from their members. However, in some jurisdictions such as Connecticut, case law has determined that owners were not required to plead facts sufficient to pierce the corporate veil and LLC members can be personally liable for operation of the LLC)

• LLCs in some states can be set up with just one natural person involved.

• Less risk of being “stolen” by fire-sale acquisitions (more protection against hungry investors).

• For some business ventures, such as real estate investment, each property can be owned by a separate LLC, thereby shielding the owners and their other properties from cross-liability.

• Flexible membership: Members of an LLC may include individuals, partnerships, trusts, estates, organizations, or other business entities, and most states do not limit the type or number of members.

Some of the Disadvantages

Although there is no statutory requirement for an operating agreement in most jurisdictions, members of a multiple member LLC who operate without one may encounter problems. Unlike state laws regarding stock corporations, which are very well developed and provide for a variety of governance and protective provisions for the corporation and its shareholders, most states do not dictate detailed governance and protective provisions for the members of a limited liability company. In the absence of such statutory provisions, members of an LLC must establish governance and protective provisions pursuant to an operating agreement or similar governing document.

• It may be more difficult to raise financial capital for an LLC as investors may be more comfortable investing funds in the better-understood corporate form with a view toward an eventual IPO. One possible solution may be to form a new corporation and merge into it, dissolving the LLC and converting into a corporation.

• Many jurisdictions—including Alabama, California, Kentucky, New York, Pennsylvania, Tennessee, and Texas—levy a franchise tax or capital values tax on LLCs. In essence, this franchise or business privilege tax is the fee the LLC pays the state for the benefit of limited liability. The franchise tax can be an amount based on revenue, an amount based on profits, or an amount based on the number of owners or the amount of capital employed in the state, or some combination of those factors, or simply a flat fee, as in Delaware.

• Renewal fees may also be higher. Maryland, for example, charges a stock or nonstock corporation $120 for the initial charter, and $100 for an LLC. The fee for filing the annual report the following year is $300 for stock-corporations and LLCs. The fee is zero for non-stock corporations. In addition, certain states, such as New York, impose a publication requirement upon formation of the LLC which requires that the members of the LLC publish a notice in newspapers in the geographic region that the LLC will be located that it is being formed. For LLCs located in major metropolitan areas (e.g., New York City), the cost of publication can be significant.

• The management structure of an LLC may not be clearly stated. Unlike corporations, they are not required to have a board of directors or officers. (This could also be seen as an advantage to some.)

• Taxing jurisdictions outside the US are likely to treat a US LLC as a corporation, regardless of its treatment for US tax purposes—for example a US LLC doing business outside the US or as a resident of a foreign jurisdiction. This is very likely where the country (such as Canada) does not recognize LLCs as an authorized form of business entity in that country.

• The principals of LLCs use many different titles—e.g., member, manager, managing member, managing director, chief executive officer, president, and partner. As such, it can be difficult to determine who actually has the authority to enter into a contract on the LLC’s behalf.

Forming an LLC

Although the requirements for LLCs may vary by state, there are generally some commonalities across the board. The very first thing owners or members must do is to choose a name. Once that’s done, the articles of organization must be documented and filed with the state. These articles establish the rights, powers, duties, liabilities, and other obligations of each member of the LLC. Other information included on the documents includes the name and addresses of the LLC’s members, the name of the LLC’s registered agent, and the business’ statement of purpose. The articles of organization must be accompanied by a fee paid directly to the state. Paperwork and additional fees must also be submitted at the federal level to obtain an employer identification number (EIN).

• Limited liability companies are corporate structures in the United States where owners are not personally liable for the company’s debts or liabilities.

• Regulations surrounding LLCs vary from state to state.
• Any entity can form an LLC including individuals and corporations; however, banks and insurance companies cannot.
• LLCs do not pay taxes—their profits and losses are passed through to members, who claim them on their tax returns.
Requirements to qualify as a QIB
The U.S. Securities and Exchange Commission (SEC) requires that an entity meet one of the following requirements to qualify as a QIB:
• Any of the following entities, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with the entity:
• An insurance company
• An investment company registered under the Investment Company Act of 1940
• A Small Business Investment Company licensed by the US Small Business Administration under the Small Business Investment Act of 1958
• A plan established and maintained by a state, its political subdivisions, or state agency, for the benefit of its employees
• An employee benefit plan falling under the Employee Retirement Income Security Act of 1974
• A trust fund whose trustee is a bank or trust company and whose participants are exclusively plans established for the benefit of state employees or employee benefit plans, except trust funds that include as participant’s individual retirement accounts or H.R. 10 plans
• A business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940.
• A 501(c)(3) charitable organization, corporation (other than a bank or a savings and loan association), partnership, or Massachusetts or similar business trust; and
• An investment adviser registered under the Investment Advisers Act of 1940.

• Any registered dealer, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $10 million of securities of issuers that are not affiliated with the dealer.
• Any registered dealer acting in a riskless principal transaction on behalf of a qualified institutional buyer.
• Any investment company registered under the Investment Company Act, acting for its own account or for the accounts of other QIBs, that is part of a family of investment companies which own in the aggregate at least $100 million in securities of issuers, other than issuers that are affiliated with the investment company or are part of such family of investment companies.
• Any entity, all of the equity owners of which are QIBs, acting for its own account or the accounts of other QIBs.
• Any bank or any savings and loan association or other institution, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with it and that has an audited net worth of at least $25 million as demonstrated in its latest annual financial statements, as of a date not more than 16 months preceding the date of sale under Rule 144A in the case of a US bank or savings and loan association, and not more than 18 months preceding the date of sale for a foreign bank or savings and loan association or equivalent institution.

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Telephone: (801) 676-5506

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Home Buying Agent Vs. Real Estate Attorney

Purchasing a home will likely be the largest and most significant transaction of your life, which is why many people choose to hire a real estate agent to assist in the search and negotiate on their behalf. Real estate agents generally fall into two categories: home buying agents and home selling agents. Home buying agents aim to level the playing field a bit for homebuyers (almost all sellers have seller’s agents, whose job is to get the very highest price for the property) through the agents’ knowledge of the industry and familiarity with the particulars of a neighborhood, sellers, contractors, etc. Some states require the use of buying agents to ensure fair dealing between buyers and sellers.

In addition to, and perhaps in place of, buying agents, homebuyers may also employ real estate attorneys to represent their interests in the purchase of a home. Attorneys are experts in real estate law and can provide counsel on legal issues which may arise. Whether you hire a buying agent or a lawyer, you’ll be paying them for their services (more on agent commissions below), so the question is: which is preferable?

State Laws

Some states require buying agents while other states stipulate that only attorneys can prepare home purchase agreements. You’ll have to investigate to determine the laws in your state. This article will assume that there is no law requiring either a home buying agent or a real estate attorney.

Hiring a Buying Agent

The primary reasons to hire a buying agent are obvious–home purchases are significant and the process of finding a home is burdensome, therefore it’s a relief and an assurance to have an agent who will walk you through the process and look out for your interests. Buying agents can be very helpful in hiring inspectors, negotiating over who will pay for repairs, finding listings, and other matters which are everyday activities for agents, but may be foreign to most homebuyers.

Choosing an Agent

Home sales have traditionally favored sellers. Sellers have selling agents, who sometimes aim to become buying agents as well. Be wary of so called dual representation, because in the end you can’t be sure whose best interest the seller has in mind. Don’t be shy about asking potential buying agents if they are seller’s agents. You should be positive about whom the agent is representing.

When searching for a buying agent, keep in mind that they are in high demand during housing booms. In a depressed market, the demand for buying agents is quite low. You can use this fact to negotiate a lower commission and take your time in finding the right house.

How Buying Agents Are Paid

In a typical arrangement, real estate agents are paid through commission–generally around 5% of the home’s purchase price. In the common two agent situation (the seller’s agent and the buyer’s agent), the agents split the 5% and the commission is paid by the seller.

Some buyers prefer to pay commission to the buying agent in order to retain the complete loyalty of the agent, however, because of the inherent conflict of interest when the buying agent, who is purportedly representing the homebuyer, is being paid by the seller. Whether or not you choose to pay the buying agent yourself, you shouldn’t be shy in asking them directly who the agent really represents.

Keep in mind that during strong homebuyer’s markets you can try to negotiate a lower commission for the agent if you so desire. Just remember that you’ll already be getting an excellent value on your home due to the depressed prices. Driving a very hard bargain with the person whose job it is to find the perfect home for you may discourage them from zealously pursuing the purchase of your home.

Keep Informed and Stay in Control

No matter who you hire, you should stay in control of the process. Don’t let the agent pressure you when it comes to homes, neighborhoods, or home attributes that you don’t feel comfortable with or don’t want. Particularly in down markets, the buyer reigns supreme and you should make sure that your buying agent knows exactly what you want.

Additionally, you should stay proactive in your search. There are plenty of commercial websites which not only provide listings of homes for sale, but give detailed information such as the market value of the home and the date and price of its last sale. Check out www.zillow.com or www.trulia.com and you will have a better idea of what a reasonable bid looks like and may even find listings which your agent may not know about or may not want to show you. Letting your agent know about what you’ve found will not only increase your options, but will keep the agents on their toes with the knowledge that their buyer has the ability to find a home on their own.

Reasons to Hire an Attorney

In most states, real estate attorneys are not required by law for the purchase of a home. While a home purchase is a significant investment, the actual sale is fairly standardized, with boilerplate clauses and lots of filling in blanks.

In the event of a legal problem related to the purchase of a home, however, only a licensed attorney may provide legal counsel and represent you in court (although you can, of course, always represent yourself). For example, if there are liens or other legal encumbrances on the property or there is a tenant who you want to evict in order to rent to another person–an experienced real estate lawyer can investigate and analyze the facts and then guide you on how, or even if, you should proceed.

Legal Review and Confidentiality

Attorneys can also be very useful in reviewing contracts. Particularly if you are purchasing a home without a buying agent, you should have an attorney review the contract to make sure that you will not be subject to terms which unfairly favor the seller.

In addition, attorneys are bound by strict professional rules of confidentiality. In the event that you wish to keep your cards very close to the vest, your attorney is prohibited from exposing information which you do not wish to make known. You can speak to an attorney with complete candor without worrying that the information will be released in any fashion.

How Attorneys Are Paid

Unlike real estate agents, most lawyers are paid on an hourly basis, and therein lies the biggest drawback of hiring a real estate lawyer in the purchase of your home–attorney’s fees range from $175-$400 per hour. However, there are attorneys who charge flat fees for certain services such as preparing or reviewing closing documents, and you can also tell an attorney upfront that you can only afford a specific number of hours. Communication with an attorney about payment should be clear from the beginning so that there are no misunderstandings, and it should always be put in writing.

Whether you choose to hire a buying agent, a real estate attorney, or both, remember that you are in charge of the process and they are there to provide you with a service. Be clear in communicating your needs and desires, get agreements in writing, and stay active in the process.

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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

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8833 S. Redwood Road, Suite C
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84088 United States
Telephone: (801) 676-5506

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Utah Formal Probate

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Utah Formal Probate

In Utah, as in many other states, there are two ways to administer the estate of a decedent in probate. In Utah these are called formal and informal probate. Other states may have different names. Georgia, for example, calls its two methods of probate solemn and common. In Utah, informal probate is the more common. It’s simpler, faster and generally less expensive. All that has to be done is to file an application for probate with the will. The application for probate names the proposed personal representative (also known as the executor) and lists the names and addresses of the heirs. Then the court gives notice of the application to the heirs, who have a period of time in which to object the appointment of the personal representative. If there is no objection, the application is granted and the applicant is named as personal representative. Letters Testamentary are also issued by the court. This is a document that gives the personal representative the power to act on behalf of the estate, such as signing documents such as deeds or contracts to sell property, taking control of bank and financial accounts and doing everything necessary to administer the estate. That’s about the only involvement with the court system that there is in an informal probate.

A formal probate starts out much the same way with the appointment of the personal representative. However, after that much more is involved. Notices to creditors to file claims against the estate have to be given, either by mail or publication. There is a waiting period in which claims can be filed. The personal representative files periodic reports with the court of property she collects and claims she pays. When the probate is finally administered (meaning all property has been collected, all bills have been paid and all remaining property has been distributed to the heirs) there is a final accounting and the personal representative is discharged and the probate closed.

Why Would Anyone Use Formal Probate?

It’s longer, more complicated and more expensive. The reasons for using formal probate all have to do with the protection given the estate and personal representative by the court’s supervision. After notice to creditors is given, after the claim period has expired and after the estate is closed, any claims are cut off. Neither the estate nor the personal representative has any further liability for any debts unless gross malfeasance or fraud is shown. In informal probate, if a claim arises years later, the estate or personal representative could potentially be held liable. One advantage, besides simplicity, that informal probate has over formal probate is that the probate is never closed. So if, years after the fact, some property is discovered, such as shares of stock or a forgotten life insurance policy, the appointed personal representative can deal with it without having to reopen the probate.

What Are My Probate Options?

• Small Estate Affidavit: You may be able to avoid filing a probate by signing a small estate affidavit, which can be used to collect a decedent’s Utah property, except real estate, if the net value of the decedent’s property subject to probate does not exceed $100,000. A small estate affidavit is not legally available, however, until 30 days after the decedent’s death.

• Filing Options. If filing a Utah probate cannot be avoided, the most common filing options are:

• Informal probate, which is generally appropriate for simple, uncontested estates and usually costs less than a formal probate because no attorney travel or in-court time is required. In some circumstances, the decedent’s relatives may be required to sign written consents to this process.

• Formal probate, which is appropriate for estates in which the right of the person seeking appointment as personal representative is contested or in which some other dispute may arise. Formal probate requires an in-court hearing, which the attorney (but not the client) is required to attend.

• Order determining heirs, which are appropriate when the decedent’s Utah real estate or other property located in Utah, needs to be sold and more than three years have passed since the decedent’s death.

• Ancillary probate for out-of-state decedents. This option can be used when the decedent resided outside Utah at the time of death, a probate has been filed there, and the decedent owned Utah real estate or other property that needs to be sold.

What You Need for File A Formal Probate For An Estate

Formal probate matters are typically heard by a judge and may involve one or more hearings before the court. A formal probate proceeding requires both written notice and publication notice before the allowance of the formal petition. There are different forms you’ll need to file depending on whether or not the decedent (the person who has died) died with a will.
If the decedent died with a will, you’ll need to file:

• Petition for Formal Probate of Will and/or Appointment of Personal Representative
• Surviving Spouse, Children, Heirs at Law
• Devisees
• The original will if it’s available, or if not, a statement of the will’s contents
• A certified copy of the death certificate if it’s available, or if not, an affidavit
• Citation-Return of Service , which will be issued to you by the court
• Decree and Order on Petition for Formal Adjudication
You may also need to file:
• Bond if you want to appoint a personal representative
• Military Affidavit if not all interested parties (anyone having a property right in or claim against an estate) agree to the petition
• An authenticated copy of the will and appointment if it’s for an ancillary (additional) probate proceeding
• Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties
• Cause of Death Affidavit, Affidavit of Witness to Will , Affidavit of Domicile or no conflict of a conservator (an affidavit stating a conservator of an incapacitated person or minor with an interest in the estate has no conflict of interest)
• Proof of guardianship or conservatorship
• Uniform Counsel Certification Form
If the decedent died without a will
You’ll need to file:
• Petition for Formal Probate of Will and/or Appointment of Personal Representative
• Surviving Spouse, Children, Heirs at Law
• A certified copy of the death certificate if it’s available, or if not, an affidavit
• Citation-Return of Service , which will be issued to you by the court
• Decree and Order on Petition for Formal Adjudication
You may also need to file:
• Bond if you want to appoint a personal representative
• Military Affidavit if not all interested parties (anyone having a property right in or claim against an estate) agree to the petition
• Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties
• Cause of Death Affidavit , Affidavit of Domicile or no conflict of a conservator (an affidavit stating a conservator of an incapacitated person or minor with an interest in the estate has no conflict of interest)
• Proof of guardianship or conservatorship
• Certification Form
Fees For File A Formal Probate For An Estate
• Probate petition filing fee – $360

How to File file a Formal Probate for an Estate

In person
Once you have the required forms, file them at the correct Utah District Court.

• File in any county where the decedent had property when they died. You may need to file additional forms in the state where the decedent lived as well.

• Serve thenotice: After you file and pay for a formal petition, the Registry of Probate will issue formal notice to the petitioner (the person filing for probate). The formal notice is called a citation. You’ll need to serve a copy of the citation on all interested persons and publish a copy in the newspaper listed in the Order of Notice.

When planning your estate and your future, there are always many different decisions that need to be made ranging from your particular financial needs to the types of estate planning instruments that will best accomplish your goals to who should be the beneficiary of your will or a trust. One thing that will not be planned by you personally will be whether your estate goes through informal or formal probate after you pass away. Your personal representative will probably be the one who makes this decision, but it is still important to understand the difference between the two processes. Informal probate begins when a personal representative makes application to a probate registrar. In informal probate, the application does not go to a judge. It is very important to make sure the personal representative completes the paperwork accurately as there will not be a probate hearing; the paperwork will be what the probate registrar uses in order to make all decisions that come up in the future. The paperwork needs to include a variety of information, ranging from the names of the heirs, the assets and debts of the estate, and personal information of the decedent. In some counties, the application must be presented in person to the registrar, but in many counties, the application may be simply mailed in.

If the application is approved by the probate registrar, notice can then be sent to all interested parties such as heirs, creditors, and the personal representative, if that is not the person who filed the application. The personal representative will receive letters testamentary from the registrar allowing him or her to take action to dissolve the estate, such as paying off debts and selling assets. Informal probate can go forward with very little oversight from the courts. By contrast, formal probate begins with the filing of a petition asking a judge to decide if the will is valid, appoint a personal representative, and determine the heirs of the deceased. In some cases, the petition may also request that the process be supervised, which mean the court would must approve distributions to the heirs before they are made. Formal probate may be appropriate where there are minors who stand to inherit; there is a dispute over the validity or existence of the will, or not knowing who should be appointed as the personal representative of the estate.

When a person dies, they are called a decedent. A decedent leaves property behind. That property needs to be passed on to those who will inherit it. The property could include:
• Real property (houses and other buildings, land and the things attached to it)
• Personal property (furniture, cars, and other things not attached to land)
• Bank accounts
• Stocks and bonds
• Debts owed to the person
The law spells out how a person’s property must be distributed when that person dies. In some states, the probate courts are in charge of making sure a decedent’s estate is distributed correctly. This is called probate administration. The estate includes a lot of the decedent’s property. Some of the property is not part of the estate and is not distributed through the probate court. The estate does not usually include:

• Jointly owned property
• Insurance policies
• Retirement accounts
• Trusts that are not established by a will

Jointly Owned Property

Jointly owned property is property owned by more than one person. It is generally not included in an estate. Examples of jointly owned personal property are if you and the decedent are both listed on the title of a car or if you have a joint bank account. When the decedent died, you automatically had full ownership of that property, so it is not part of the estate. You may want to take a copy of the decedent’s death certificate to the bank or Secretary of State Office to remove the decedent’s name from the account or car title. However, sometimes joint ownership is more complex. If you own real property with the decedent, or if you own any property with the decedent and someone else, ownership can be hard to understand after a death.

There are different ways an estate can be administered. If the estate does not have much property in it, you may be able to use a simplified process where the probate court is not involved at all, or only a little bit. The simplified processes are:
• Assignment of property
• Transfer by affidavit
• Collecting money due from an employer
• Transferring a vehicle
• Collecting personal property
These processes ignore the wishes in a decedent’s will, if any. In order to qualify for a simplified process, an estate must be worth $23,000 or less for a decedent who died in 2019. This number goes up every few years.

Appointing a Personal Representative

The order from highest to lowest priority is:
• The person named as personal representative in the decedent’s will
• The decedent’s surviving spouse, if the spouse is a devisee
• Other devisees of the decedent
• The decedent’s surviving spouse, if the spouse is not a devisee
• Other heirs of the decedent who are not devisees
• A creditor’s nominee (the creditor must wait 42 days after the decedent’s death to nominate someone, and the court must find the nominee suitable)

• The state or county public administrator (this person must wait 42 days after the decedent’s death, and there must be no known heir or U.S. resident beneficiary entitled to a share of the decedent’s estate)
A person who is named as the personal representative in a valid will has the highest priority. This person cannot transfer this priority to anyone else. However, everyone else can transfer their priority by nominating another person to be the representative. Also, a judge can find the person with the highest priority to be unsuitable and nominate and appoint someone else. If someone has a higher priority than you do to be the personal representative, it does not mean that you cannot be appointed as the personal representative. It only means that if that person challenges you to be the personal representative, he or she will likely be appointed.

Formal Probate Lawyer Free Consultation

When you need a Utah Formal Probate, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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