Month: March 2023

The probate process typically requires filing a Will and appointing an executor or administrator, collecting assets, paying bills, filing taxes, distributing property to heirs, and filing a final account. This can be a costly and time consuming process, which is why some people try to avoid probate by having only non-probate assets. 

Non-Probate assets can include the following:

• Bank accounts held in joint tenancy or with payable on death (POD) arrangements established. 
• Real estate that is held in joint tenancy.
• Life insurance or brokerage accounts that list someone other than the decedent as the beneficiary. 
• Retirement accounts.

By filling out a simple form at your bank, you can name the person you want to inherit the money in your accounts at your death. The person you name to inherit your money in a POD account has no rights to it until you die. Until then, you can continue to spend your money as you please, name a new Beneficiary, or close the account.

In regards to property, joint tenancy basically means co-ownership. Property owned in joint tenancy automatically passes, without probate, to the surviving owner when one owner dies. This is often a good arrangement for couples who own real estate, vehicles, bank accounts, securities or other valuable property together. 

Additionally, when you name Beneficiaries on your life insurance policy, the money passes to your Beneficiaries directly, without probate. This allows your beneficiaries to access cash after your death in a relatively short timeframe. When deciding on the amount of Life Insurance you should purchase, consider the following factors.

And lastly, in regards to retirement accounts you can name a Beneficiary for your retirement plan when you first open it, and usually an alternate or secondary beneficiary as well. If you are single, you can choose whomever you wish as your Beneficiary. If you are married, your spouse probably has legal rights to some or all of the funds. 

The issues of non-probate transfers in South Carolina can be a tricky one and has serious legal consequences. You should speak with an experienced South Carolina attorney regarding these issues.

Gaston, Marion & Stubbs P.A., is a full-service law firm with an outstanding team of professionals who work diligently, creatively and compassionately on behalf of our clients each day.  With offices in Chester, 803-385-2114, and Richburg, 803-789-2114, call today for a free consultation.

So you want to form a company, but you’re not sure about all the different types of business structures? It’s a problem that millions of Americans have every year, and without the right direction or knowledge it can be a treacherous situation. The following information will attempt to explain the various types of Business structures that are available to the citizens of South Carolina. 

Sole Proprietorship 

The sole proprietorship is a simple informal structure that is inexpensive to form. It is usually owned by a single person or a marital relationship. The owner operates the business, is personally liable for all business debts, can freely transfer all or part of the business, and can report profit or loss on personal income tax returns using the Schedule C.

 C Corporation 

This is a complex business structure with more start-up costs than most other forms. A corporation is a legal entity separate from its owners, who own shares of stock in the company. It can be created for profit or nonprofit purposes, and may be subject to increased licensing fees and more government regulation than other forms. Profits are subject to income tax at both the corporate level and again when distributed to shareholders.

Shareholders are not personally liable for corporate obligations unless corporate formalities have not been observed. Corporate formalities include: issuing stock certificates, holding annual meetings, recording the minutes of the meetings, electing directors or ratifying the status of existing directors. Corporation formation must be assisted by a qualified attorney.

S Corporation 

This structure is identical to the C Corporation in many ways, but offers avoidance of double taxation. If a corporation qualifies for “S” status with the IRS, it is taxed like a partnership. This means the corporation is not taxed, but the income flows through to the shareholders who report the income (their share) on their individual returns.

General Partnership

Partnerships are inexpensive to form. They require an agreement between two or more individuals or entities to jointly own and operate a business. Profit, loss and managerial duties are shared among the partners, and each partner is personally liable for partnership debts.  

Partnerships do not pay income tax, but must file an informational return, while individual partners report their share of profits and losses on their personal return.  Short term partnerships are also known as joint ventures.

Limited Partnership 

Limited partnerships are a partnership that have both limited and general partners. The general partner is liable for debts of the partnership and assumes management responsibility.  The limited partner typically has little voice and looks more like a shareholder. This agreement is often looked at as a hybrid between partnership and sole proprietorship for tax and like a corporation for liability.

Limited Liability Company (LLC)

The LLC is generally considered the most advantageous for small businesses because it combines the limited personal liability feature of a corporation with the tax advantage of a partnership or sole proprietorship.

It is important to note that LLCs in South Carolina are automatically dissolved upon the death of any member (owner). This may be avoided by stating in the membership agreement that “The company (LLC) is not dissolved upon the death of any member.”

LLCs must indicate whether they will be member-managed or manager-managed.  Typically, multi-member LLCs are encouraged to put in the member agreement an exit plan or buy-out agreement. This is easy to do when the LLC is created, and can be very difficult when a member begins to entertain thoughts of leaving the company.

Every single one of these business structures offers various advantages and potentially influential disadvantages. It’s important that you sit down with a knowledgeable attorney who can explain and advise you on the best course of action that would be applicable in your business venture. You should speak with an experienced Chester, South Carolina attorney regarding these issues.

Gaston, Marion & Stubbs P.A., is a full-service law firm with an outstanding team of professionals who work diligently, creatively and compassionately on behalf of our clients each day.  With offices in Chester, 803-385-2114, and Richburg, 803-789-2114, call today for a free consultation.

In the state of South Carolina “discovery” is a pretrial process in which each party, through the rules of civil procedure can obtain evidence from the other side. Even though engaging in discovery can add to the expense of a case, learning about the other side’s case and being forced to reveal certain aspects of your own case can increase the chances of reaching a settlement agreement. Since both sides can have a better idea of what “facts” each side will try to prove at trial, each side will have the ability to weigh how strong their case is in relation to the other side. Additionally, discovery makes trial less of a “surprise affair” and more of an equal contest with the basic issues and underlying facts disclosed at an earlier date.

There are basically five types of discovery in civil trials: 1) interrogatories; 2) Requests for Production of documents; 3) requests for admissions; 4) depositions; and 5) subpoenas duces tecum.

Interrogatories. Interrogatories are written questions that may be asked of the other party with responses required to be in writing and under oath. These answers can be used as evidence by the other party at trial.

Requests for Production. Requests for production are designed to allow one party to seek documents from the other party. The other party is required to make available for copying documents that are in his or her “possession, custody, or control.” Therefore, even documents that are not in a party’s possession but are within his or her control (such as banking or medical records) must be made available for copying. Sometimes the way these records will be made available is by providing the party requesting the documents a release that allows that party to obtain the records from a third-party.

Requests for Admission. Requests for admissions require the other party to admit or deny specific facts or to admit or deny the authenticity of the documents. It is often helpful to have the authenticity of documents admitted prior to trial so that one can determine whether to call witnesses to authenticate these documents.

Depositions. Depositions allow a party to have any witness (including the opposing party) answer questions orally and under oath. Because one must pay the court reporter for attending the deposition (and transcribing the deposition if desired) and one must pay for one’s attorney to prepare for and attend the deposition, depositions can be extremely expensive. Depositions are best reserved for cases in which there are substantial disputes and the parties have sufficient funds to take them.

Subpoenas Duces Tecum. Subpoena duces tecum are similar to requests for production or inspection except that they may be sent to non-parties. They are especially useful for getting medical records, banking, and credit card records. They are most useful for obtaining records that a party would ordinarily not have in his or her custody or control, such as employment records or personnel records.

Discovery tools are vital in understanding the other party’s case and preparing for trial. Confronting discovery head on can be a complex and stressful situation. The lawyers at Gaston, Marion & Stubbs P.A., are here to help, and will be glad to sit down with you face to face to discuss your situation and determine the best possible approach to your lawsuit. You don’t have to deal with this stressful situation on your own, here at Gaston, Marion & Stubbs P.A., we understand that we aren’t just your lawyer, but also your adviser and confidant.

Gaston, Marion & Stubbs P.A., is a full-service law firm with an outstanding team of professionals who work diligently, creatively and compassionately on behalf of our clients each day. With offices in Chester, 803-385-2114, and Richburg, 803-789-2114, call today for a free consultation.