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Legal

14 mins read

Fashion Attorney: Brand Partnerships, Fashion Law & Protecting Your Work From Copycats

The internet age has exacerbated many of the legal issues that creators and fashion companies encounter, fueling the necessity for specific legal advice and protection.

For example, design piracy and copycat litigation have grown in recent years, prompting new legislation that provides legal protection for fashion designs.

We decided to get in touch with a legal expert to shed light on these issues and others facing those involved in the creator economy.

Ashley N. Cloud, Esq., MBA is the Founder and Principal Attorney of The Cloud Law Firm, PLLC based in Brooklyn, New York.

fashion law
Ashley N. Cloud, Esq., MBA

What inspired you to become a lawyer?

My mother was the first person to suggest I become a lawyer. My mom was super strict, so I was always advocating for myself to hang out with my friends on the weekends for longer than 2 hours at a time. We would have full-on debates and I’d write her letters with carefully crafted arguments. I was relentless.

Although I was very convincing, most of the time, my mom’s answer was usually still “no,” but she figured I would be able to help others with my talents. Once my mom gave me the idea of being a lawyer, it just made sense. I’ve never been one to accept the status quo. I’ve always been quick to point out unfairness and injustices and I never shy away from the opportunity to help those in need.

Black women only make up 2% of the legal profession. The road has not been easy, but it has been more than worth it. Representation matters and I know the work that I do greatly impacts my community. It brings me so much joy to be a voice for the voiceless and to empower and educate people who look like me.

I am so thankful and honored to do this work. I have so many ideas of how I can continue to be a positive force in this world and I am just getting started!

What should creators include in brand partnership agreements?

Usually, creators are presented with brand partnership agreements, so there are a few clauses they should always be on the lookout for. They include but are not limited to Compensation, Deliverables, Exclusivity, Termination, and Disclosures.

Compensation is important for obvious reasons – you want to make sure you are aware of what you will be paid, any conditions associated with payment, and when you should expect your payment. With respect to deliverables, you want to make sure you understand what the brand expects to see from you and make sure what you create is aligned with their requirements. There will likely be an approval process that you will want to make sure you are compliant with as well.

Oftentimes, brands will require you to work with them exclusively for their respective industry. For example, if you work with one shoe company, you may be restricted from working with other shoe companies during the term of your agreement. Pay attention to the length of the agreement and under what conditions you or the brand may terminate the agreement; including any morality clauses.

If you are a content creator, you’ll also want to pay attention to any disclosure requirements, as the Federal Trade Commission requires you to disclose your relationship with any brands you promote. You can check out some helpful guidance on the FTC’s guidelines here.

Kim Kardashian was recently ordered to pay over $1 million for violating the FTC’s rules, so you’re going to want to pay attention to this!

In any case, you will want to read your contract, ask questions if you don’t understand something, and remember to know your worth! Advocate for what you want if you are unhappy with the terms of your agreement.

If you are unsure if the partnership is right for you or if you still don’t understand the implications of the terms of your agreement, I suggest you reach out to an attorney you trust to assist you.

What are some common misconceptions in fashion law?

One of the biggest misconceptions about fashion law is that it’s all about intellectual property. Sure, intellectual property is one exciting facet of fashion law, but there is so much more to fashion law than just intellectual property.

Fashion is a multi-billion-dollar industry. It can be glamorous, but like any other industry, fashion is a business. Aside from intellectual property, fashion law includes, business law, contract law, labor and employment law, real estate law, international law, e-commerce law, privacy law, supply chain law, technology law, consumer protection law, environmental law, and so much more! The law really touches every aspect of a fashion business.

As the creator economy grows, what types of legal matters do you foresee arising?

There are more and more creators entering the marketplace now that the barrier to entry is lower and consumers are more accessible. The major legal matter I can see growing in popularity is the world of Non-Fungible Tokens (NFTs), blockchain, and the Metaverse.

Because the law hasn’t quite caught up with this facet of fintech and intellectual property, I am interested to see what types of precedents are established to help further guide creators and attorneys in this space.

What are some recent lawsuits in the fashion world that you find interesting? That designers can learn from?

Recently, Skechers USA Inc. filed a lawsuit against Hermès International and Hermès of Paris, Inc. for patent infringement in relation to its Massage Fit sole technology. This case excited me because it is the perfect example of properly policing and enforcing your intellectual property rights.

Skechers has gone after brands for a similar infringement. With the popularity of the thicker, chunky shoe sole emerging in recent years, it will be up to the courts to decide if Hermès infringed on Skechers’ patents or if the company is simply hopping on a popular trend not originated by Skechers.

fashion law
CREDIT: UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Another case that stands out and is not fashion-related but falls more within the realm of entertainment, is the lawsuit recently lodged by, Goldenvoice, the company responsible for the popular U.S. music festival, Coachella, against Afrochella, a popular Ghanaian music festival. Allegedly, Afrochella has infringed on Coachella’s trademark and goodwill in the promotion of Afrochella.

There are arguments on both sides on whether Afrochella should be held liable for infringing on Coachella’s trademark. One argument is that Afrochella specifically identified its own festival as being inspired by Coachella, which some say creates an unauthorized affiliation between the brands.

Another argument is that Afrochella is only held in Ghana and should be permitted to use its name since the company does not currently host its festival in the United States. I am interested to see how the courts decide this case or if the brands will be able to come to an amicable settlement.

How can smaller designers protect their work from being copied?

Formal intellectual property protections of fashion designs (i.e. the shape, style, or cut of a garment) are virtually unprotected. However, there are a few ways you can protect certain aspects of your work as a fashion designer. One way is that you can protect an original print, pattern, or sculptural adornment that is included on a garment through copyright protection. You can also protect certain types of creations through a design or utility patent.

Additionally, you should protect your brand through trademark and trade dress protection. Another way of protecting your designs is through the contracts you draft and sign in partnership with others. For example, you can require the manufacturer of your designs to sign a non-disclosure and non-compete agreement so they don’t disclose your design to another brand or try to replicate your design by creating a knock-off of their own. If they do, you may be able to recover damages for violating your contract and the sales associated with doing so.

I also suggest designers use the power of their communities to fill in the gaps where the law falls short. When you see another designer or brand copy your design, let it be known via social media. It’s a lot less expensive and you may be able to resolve the dispute a lot quicker than suing in court.

 

Ashley hails from Houston, Texas, and is a proud graduate of Howard University School of Law and School of Business. Ashley is licensed to practice law in New York, Texas, and the District of Columbia. Follow Ashley at @cloudesq  and @thecloudlawfirm, @cloudesq and @yourfashionattorney for updates. You can also visit www.thecloudlawfirm.com for more information.

Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  Information on this website may not constitute the most up-to-date legal or other information.  This website contains links to other third-party websites.  Such links are only for the convenience of the reader, user or browser; Ashley N. Cloud and The Cloud Law Firm PLLC do not recommend or endorse the contents of the third-party sites.
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5 mins read

5 Reasons Black Business Owners Should Incorporate Now

Starting a business doesn’t automatically equate to success for anyone – but Black businesses owners face additional challenges compared to businesses started by other racial and ethnic groups, like:

  • Lack of Funding: This is a common issue across the board for start-ups and new entrepreneurs, but because black business owners are also experiencing the racial wage gap and – according to the U.S. Census – have the lowest average American household income by race, they’re often subject to even more financial strain.

 

  • Lack of Mentorship and Social Capital: Research has long suggested that mentoring can make a massive impact on the success of a small business – with one analysis finding that founders mentored by a top-performing entrepreneur were three times more likely to become top performers. Because many of these relationships are often formed organically as part of our social and familial networks, black business owners can be at a disadvantage.

 

  • High Failure Rates: Despite the dramatic increase in the number of black businesses, especially ones that are owned by black women, black businesses still have some of the highest failure rates, compared to businesses started by entrepreneurs from other racial and ethnic groups. 

While many people may not see it as critical, especially in the early stages of a venture when money and time are limited, there are five reasons why incorporation can help be a buffer against these challenges.

1) Credibility: Many people are afraid of getting scammed, or spending their hard-earned money on a faulty product, a mediocre service or an item that never materializes. Incorporation is one of the first steps towards building credibility – by helping your potential customers believe that you are who you say you are, and that you’ll deliver on your brand promise. Credibility can be especially crucial in the early stages when you haven’t yet built any other testimonials or social proof.

2) Finances: Incorporating a business can almost immediately improve fundraising efforts for reasons similar to credibility building – people can now look to a brand to invest in, rather than a person that they don’t know. But it can also allow eligible businesses to access and pursue additional financial resources in the form of grants, and can allow them to accept donations from various parties – activities that will improve the financial viability of the business. 

3) Tax Advantages: This will ultimately be dependent on the type of business you choose to form, but some of the tax advantages of incorporating can include avoiding a higher tax bracket, drawing a salary, and deducting eligible expenses on your taxes – all of which equate to more money saved (or a more profitable business).

4) Personal Liability: Incorporating can protect your personal assets (like your savings accounts, car, and home) from being at risk if your business were to ever find itself in legal trouble – such as being sued or in the midst of a dispute. And regardless of industry, there’s always a possibility of liability when you’re doing business.

5) Access to Business Resources: Business incubators, networks, meet-ups, mentorship activities and other programs designed to connect entrepreneurs with valuable business resources, and to help them build social networks and capital, can be easier to access when you’ve incorporated. 

Fortunately, incorporating your business doesn’t have to be as daunting as it seems. In fact, it can actually be done in three steps. But if that still causes overwhelm, don’t worry – legal businesses, such as Rocket Lawyer, provide complete incorporation services, including document preparation and filing, and can help you connect with an attorney if you have specific questions, all at an affordable price. 

About Rocket Lawyer: Rocket Lawyer delivers legal documentation and attorney advice, anytime, anywhere, on any device. Since 2008, we’ve helped over 20 million businesses, families, and individuals obtain the legal help they need, at a price they can afford. That’s legal made simple.® Visit www.rocketlawyer.com for a free trial.

9 mins read

Legal and Life Lessons Learned From the Passing of the Great John Singleton

I remember as a child watching Boyz in the Hood with mixed emotions. Although I could not relate to many of the characters’ issues, as a Black teen growing up in the Appalachian mountains, it was a relief to see Black people in a Black community living their Black lives.

I remember feeling proud that the filmmaker was a Black man and that he wrote the story. Admittedly, I was also sad that the story depicted realities for some Black people in America.

John Singleton on set of his debut film Boyz N the Hood, 1991.
BY AARON RAPOPORT/CORBIS/GETTY IMAGES
After reading the news about John Singleton’s health and the rumors of conflict it brought up for his family, I again had mixed feelings. His work and his tenacity in an industry that is not inviting to Black people has had an indelible impact on our community and on film.
credit: Biography.com

My gratitude and pride in his work maintain. Unfortunately, the circumstances of his legal affairs and some of the responses I’ve seen on social media gave me a sense of horror, albeit quite different from that I felt in watching Boyz in the Hood.

Luvvie Ajayi (@luvvie) pleaded with her public to basically get your shit in order, presumably in response to Mr. Singleton’s situation. Her post is timely because celebrities’ stories often astonish and spark conversation. However, I read some of the comments with great concern and, quite frankly, frustration.

Quite a few people suggested websites where you can get your power of attorney documents, wills, and etc. done for cheap or even free. Some folks suggested to simply write your wishes down and give them to someone you trust. Others expressed that they don’t know what to do because they are not married or have kids.

There were, of course, people who recommended working with an attorney and offered advice that is legally sound. God bless you!

From my 12+ years as an attorney working in death and dirt*, I believe we as a community don’t do ourselves justice when it comes to the power we have to do estate planning that works for us with the help of an attorney.

john singleton
Credit (AP Photo/Keystone, Alessandro della Valle)

Disclaimer: non-Black people also don’t value hiring attorneys to do this work. Most Americans don’t. However, not only are black people not planning, we are also dealing with all the adversity our country has to offer. We’re undermining our own ability to fight back against all the systemic bullsh*t we’ve had to and continue to fight.

If Mr. Singleton’s condition had continued, someone would have to seek appointment from a judge to make decisions on his behalf regarding health care and assets. If multiple people applied or if others contested the application, there would be a delay in taking care of him and his assets and it would have cost a lot.

The initial fees for conservatorship in California are $1,115, and they go higher. Contrast this with an estate plan prepared by an attorney that includes a financial power of attorney and healthcare power of attorney, which would cost between $800-3,500 in California. Mr. Singleton’s plan would have likely costed more given the mix and complexity of assets, but it would have saved thousands of dollars and preserved relationships.

What sounds better? A person other than you making the decision of who can care for you at great expense or you making the decision for yourself at some expense?

A new set of challenges come into play in addressing his estate now that he has passed. If he didn’t have an estate plan, and it appears that he did not, there will be significant legal fees that drain his estate.

Mr. Singleton had multiple children. For any child born from a relationship that was not a marriage, there will be legal fees, and likely emotional pain, to confirm if the children were legitimated and, therefore, entitled to inherit. I have estates where thousands of dollars have been spent just confirm if a child is an heir.

john singleton
Maya Angelou with John Singleton in 1993, the year “Poetic Justice” was released.CreditCreditColumbia Pictures, via Everett Collection

For the minor children, additional legal fees will have to be paid to seek guardianship of each minor child’s estate until they turn 18 years old in order to manage their inheritance. I’ve had custodial parents who can’t qualify for the bond required to manage their child’s inheritance. So it sits in limbo.

Like Aretha Franklin, Mr. Singleton apparently personally owned assets totaling more than the threshold amount for consideration of estate taxes. His assets will be significantly diminished to pay the taxes and assets may have to be sold in order to pay the estate tax. His creations could be sold to pay the IRS.

Then there was his significant other. If he doesn’t have a will or trust that provides for her or if he didn’t list her as a beneficiary on a financial account, she likely gets nothing.

I’ve had estates where the deceased had a will that they never updated even after having a kid and after getting married. Their spouse and adult child didn’t inherit anything. Instead, their surviving parent inherited everything, including the home.

If you haven’t worked with an attorney to create a plan customized to your unique, beautiful life I hope you find the following encouraging:

  • you are worth every dollar you spend with the attorney;
  • many attorneys accept payment plans;
  • an attorney gives you a lot more than the documents, i.e. you get intimate counsel online and boxed plans can’t give you;
  • people with no partner or spouse can do so many wonderful things with their assets like give back to your favorite organizations and schools or treat your besties a life celebrating trip.

 

I could go on but I want to hear from you. If you haven’t created an estate plan with the help of an attorney, why not? What’s holding you back?

I’d love to hear from you and I will share some additional horror stories I’ve seen.

Let us know in the comments or by sending a message through my website.

 

– Contributed by Mavis Gragg

Mavis Gragg is an attorney at the Gragg Law Firm, PLLC in Durham, North Carolina where she specializes in estate planning and estate administration. She is very passionate about maintaining and growing Black wealth through sound legal strategies and problem solving. When she is not being a justice girl, she can be found at an art gallery, trotting the globe, or on the dance floor.

 

Feature Image: John Singleton on the set of Poetic Justice in Los Angeles, 1993.BY ANTHONY BARBOZA/GETTY IMAGES.

5 mins read

Black Attorneys, Lawyers & Legal Professionals

In 2009, Black attorneys represented 1.71% of law firm partners. Today, Black attorneys represent 1.81% of partners.

According to the National Association for Law Placement 2017 Report on Diversity in U.S. Law Firms, “women and minority partners remain fairly dramatically under-represented in U.S. law firms,” with women minorities being the “most dramatically underrepresented group” of all.

Given this information, we felt it fitting to acknowledge some of the  Black Attorneys, Lawyers, and Legal professionals who are the best in their field.

Black Attorneys, Lawyers & Legal Professionals

Ryan StoweStowe Law Firm, PLLC  (Salisbury, NC) Practice areas: Traffic violations, Criminal defense, DWI

black attorneys

Portia Wood – Wood legal Group (Pasedena, CA) Practice Areas: Estate Planning, Wealth Creation

Angel Murphy – The Murphy Law Firm (Upper Marlboro, MD and Oxon Hill, MD) Practice Areas: Family Law, Criminal Law, Personal Injury, Notary Services)

black lawyer

Ken Lanier – The Law Office of Ken Lanier (Decatur, GA) Practice Area: Personal Injury

black lawyer

Michael A. Walker –  The Walker Firm (Pennsylvania, PA) Practice Areas: Criminal Defense, Personal Injury, Real Estate and Discrimination.

Max Elliott – The Law Offices of Max Elliott (Chicago, New York City) Practice areas: Estate Planning, Estate Administration, and Business Planning

black lawyers

Diane Butler – Law Offices of Diane Butler (Hawthorne, CA) Practice areas: Personal Injury, Probate, Estate Planning, Bankruptcy and more)

James Saintvil – Jayde Law PLLC (Washington, DC and Marlton, NJ) Practice areas: Estate Planning, Estate Administration, and Business Succession Planning

Sekou Campbell – Law Offices of Sekou Campbell (Philadelphia, PA) Practice areas: Corporate Law, Entrepreneurship and Startups, Intellectual property, Tax

Shavon J. Smith – The SJS Law Firm (Washington D.C. & Maryland ) Practice areas: Entrepreneurship and Startups, Non-Profits, Government contracting.

Ayanna Jenkins -Toney – Law Offices of Ayanna L. Jenkins-Toney (San Francisco, CA) Practice areas: Matrimonial and Family Law

Image result for Ayanna L. Jenkins-Toney

Pamela Price – Pamela Y. Price, Attorney at Law (Oakland, CA) Practice Area: Civil Rights

Jerome Carter – Carter Law Firm (Mobile, AL) Practice Areas: Civil Plaintiff, Matrimonial and Family Law, Wills, Trusts and Estates

Aimee Griffin – The Griffin Firm, PLLC (Washington, DC) Practice Areas: Wills, Trusts and Estates

Black Attorneys

Hughie Hunt II – Kemet & Hunt (Calverton, MD) Practice Areas: Real Estate, Matrimonial and Family Law, Wills, Trusts and Estates

Black Attorneys

William Jenkins – Jenkins & Roberts LLC (College Park, GA) Practice Areas: Business Formation, Wills, Trusts and Estates

Image result for William Jenkins attorney

LaKesha Shahid – Shahid & Hosea LLC (Montgomery, AL) Practice Areas: Civil Plaintiff, Employment Law, Matrimonial and Family Law, Wills, Trusts and Estates

Black Attorneys

Andrew MaloneyMaloney Law Group (New York, NY) Practice Areas: Corporate Law, Mediation / Arbitration, Real Estate

Kwaku OforiOfori Law Firm, LLC (Silver Spring, MD) Practice Areas: Civil Plaintiff, Commercial Litigation, Real Estate

Joey Ofori

Natalee Drummond-Fairley -The Fairley Firm (Atlanta, GA) Practice Areas: Business Transactions, Civil Plaintiff

Ryan Hintzen – Franklin Square Law Group (Washington, DC) Practice Areas: Business Transactions, Employment Law

Image result for Ryan Hintzen

Fraline AllgaierAllgaier Patent Solutions (Glencoe, IL) Practice Areas: Intellectual Property, Trademark and Patents

Michelle Thomas – M.C. Thomas & Associates, PC (Washington, DC ) Practice areas: Matrimonial and Family Law

Picture of Michelle C. Thomas

Darcia Tudor – Eastside Mediation & Arbitration (Kirkland, WA) Practice Areas: Matrimonial and Family Law

Image result for darcia tudor

 

Joe H. Tucker – Tucker Law Group (Philadelphia, PA) Practice Areas: Civil litigation, Complex breach of contract, Products liability and employment discrimination litigation

Black Attorneys

Marirose RoachRoach Law (Philadelphia, PA) Practice Areas: Family Law, Foreclosure Defense, Sports & Entertainment Law, Estates & Asset Protection

Black Attorneys

George Edwards III – Edwards Sutarwalla PLLC (Houston, TX) Practice Areas: Corporate Law, Real Estate, Insurance, Retail Litigation

Shelice Tolbert – Tolbert & Tolbert LLC (Gary, Indiana) Practice Areas: Business Formation, Civil Plaintiff, Litigation and Insurance Defense

Johnny Hawkins – Law Office of J L Hawkins (Southfield, MI) Practice Area: Civil Plaintiff

Shevelle McPherson – McPherson Law Offices (Cherry Hill, NJ) Practice Area: Criminal Defense
E. Michelle Martin – The Martin Law Firm (Columbus, OH) Practice Areas: Civil Plaintiff, Criminal Defense

Alicia Howard – The Law Office of Alicia A. Howard(Memphis, TN) Practice Areas: Matrimonial and Family Law


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17 mins read

Growing and Maintaining Black Wealth: Estate Planning

This is the first installment in our series around the topic of “Growing and Maintaining Black wealth through sound legal strategies and problem solving.” Let’s begin with a discussion about Estate Planning.

Estate Planning

In October of 2015, retired NBA player Lamar Odom suffered several strokes and kidney failure at the young age of thirty-five, leaving many people shocked and shaken by the fact that someone so young and presumably healthy could possibly die.

Of course, given his position in the Kardashian realm, many were also enthralled by the latest drama in America’s most famous (for now) family. Yet, if we unpack that drama and look at it plain and simple, Lamar’s circumstances should be a lesson for us all.

la-et-mg-khloe-kardashian-lamar-odom-still-married-20151014

At the age of 35, Lamar was in the final stage of divorce and a father of two minor children from a previous relationship when he experienced a life-altering medical event.

Those are the mind-numbing facts: 35 years old, estranged wife, father of two minor children—and a very uncertain future. While his medical crisis was extraordinary, the other key circumstances in Lamar’s life were not.

Amidst all of the sensational discussions surrounding Lamar’s unfortunate situation, there was little, if any discussion around whether or not he had legal documents appointing someone to handle his affairs, i.e. step into his shoes to make his medical and financial decisions.

Presumably he did not, because his estranged wife put a halt to their divorce, and under the authority of California law as his wife, became his decision-maker.

Thankfully, Lamar’s health has improved and he is still with us. However, imagine if someone in the exact same situation as Lamar passed away leaving an estranged wife, two minor children, and no legal documents to dictate what happens with whatever assets they have and how their affairs are settled.

Now ask yourself, if something happened to you today, who would step in? Who could legally step into your shoes? You may not know the answer to the last question. And you probably do not even like the question.

So, let’s consider this question instead: if you had the rare opportunity to become a secret agent on some James Bond-type mission but you had to pick a family member or friend to assume your identity and continue living your life until you came back, who would that person be?

Who is most likely to have your life intact when you come back? Who would be your agent? The person you would choose to be your agent and who the law chooses could and likely would vary greatly when you do not have the legal documents in place to effectuate your choices.

The solution is simple. Go to a knowledgeable estate planning attorney and create an estate plan.* If you don’t know who to use then you might want to check out someone like this new york estate attorney. However, there are loads that you could use. Many, in fact, most of us avoid estate planning. We think we do not have an “estate” or that lawyers are too expensive. We believe our loved ones will “take care of everything” because we trust them. We think we are too young. Most importantly, it is very unpleasant and scary to think about a time when we cannot take care of ourselves or when we die. If you have any questions about preparing your estate it is worth speaking to an estate planning lawyer as they might have the information needed to put your mind to rest and help you plan for the future.

Black-Family

So, consider the fact that you have a unique opportunity to put the law on your side. This power is especially important during a time when many of us have considerable doubts and questions about the laws of our nation and our states when it comes to issues such as policing, voting, and clean water—to say the least.

You have the power to create a plan and make decisions about how you are cared for in a time of need or transition. You have the power to create a plan for optimizing your assets for their use while you are living and when you pass away.

Take advantage of this opportunity! ??The first step is developing a basic understanding of estate planning, which is the purpose of this series of articles.

What is estate planning? Estate planning is making a plan in advance for what happens to you and your assets when you cannot take care of them yourself and for when you die. You get to make the decisions on the who, what, when, and how of your affairs rather than that determination being made by the law. A basic estate plan includes a will, a financial power of attorney, a healthcare power of attorney, and a healthcare directive (a “living will”).

Growing and maintaining Black wealth

What is an estate? Many people believe they do not have an “estate.” We all have an estate. An estate is everything you own from your collection of baseball cards or Chanel purses to your cash, retirement accounts, life insurance and vehicles. When it comes to real estate, find out more information through companies such as PFC Property Management, especially if you are looking to work in this particular industry. There’s a lot to learn, but it is quite interesting. I’m sure you’d rather know more now, than know nothing at all. Even if the cash value of your what you own is small, you have an estate.

What is a will? A will is a document that states your final wishes. In a will you appoint someone to settle your affairs: an executor. You state who gets your property, what property they get, and how much of it. You can even state when they get your property.

You can nominate guardians for your minor children. The court ultimately decides who the guardians will be, but a will provides very useful information in that determination. You can even provide instructions on paying your debts and on your funeral.

Signing Last Will and Testament

In most states, the property of someone dying without a will, leaving behind an estranged spouse and children from a previous relationship, would have to be divided between the estranged spouse and children. For most people, this scenario is not ideal, it’s a nightmare.

On the other hand, you could have circumstances that are not complex at all. Perhaps you are a single person with no children. Without a will, in most states, the person(s) eligible to manage your estate would be your parents. Does that work for you? If you do not have parents, the law looks to your siblings. Again, does that work for you? If you don’t have parents or siblings, then who?

A will is a critical document that can save relationships and money. It can also be a foundational element in your legacy. So, it is important to have a will and for it to be designed with a knowledgeable estate planning attorney.

What is a power of attorney? There are two types of power of attorney documents: financial power of attorney (also known as durable power of attorney) and health care power of attorney. Both allow you to appoint someone as your attorney-in-fact which means they can make the same actions you can make.

The types of activities the person operating under your power of attorney can do vary from speaking to financial institutions about your accounts, signing legal documents, such as contracts and deeds, to speaking with healthcare providers, including your doctor.

The power of attorney document can be very powerful, especially if you use a fill-in- the-blank type of document, instead of one tailored to your needs. If you use one that’s fill-in-the-blank, you could be unintentionally giving someone the ability to abuse the role you have given them.

In a customized power of attorney, you can set the conditions under which the attorney-in-fact can act, as well as limit the types of things they can do. For example, you can have a limited power of attorney for real estate that allows the attorney-in-fact to take actions related to a specific piece of property during a specific time or transaction.

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Having either power of attorney, and preferably both, can give you peace of mind that the person you trust most will be able to help you when you are unable to take care of yourself.

If you are incapacitated and do not have power of attorney documents, it is extremely difficult and costly for someone to be able to help you.

The absence of power of attorney documents could even lead to litigation and destruction of relationships. Consider the scenarios discussed under the description of the will when thinking about what would happen.

Also, keep in mind, a power of attorney document does not replace a will. Many people mistakenly believe that the instructions in their power of attorney or in their loved one’s power of attorney carry over after a person dies. The power stops at death.

What is a living will? A living will is also known as an advanced directive and it is a document in which you give the medical personnel instructions for your end-of-life medical care. It comes into to play when your death is certain and gives instructions on things such as palliative care (easing pain and suffering), extraordinary measures, and nourishment.

The decisions you have to make in a living will are very difficult to think about but imagine if your spouse, child, or parent had to make those decisions for you. Having a living will is also a key part of your estate plan.

Estate Planning

How do I get started on my estate plan? The first step is to find an attorney who specializes in estate planning. Many people believe they can do their estate planning themselves and want to do so to save money. Imagine your profession is a hair stylist, a bank manager, or a professional athlete.

You are very good at what you do. Your car needs new brakes and they are expensive. You can probably go on YouTube to find a video with instructions for putting new brakes on your car. Let’s say that technically you can put new brakes on your car and save a good deal of money.

Is this the best choice? Alternatively, you could save money by taking the car to the detail shop where you get your car cleaned and let the owner put brakes on your car. He takes good care of your car and he can save you money. Is he the best choice, though?

If your well being or the well being of those you love depended on it, are you or the detail shop guy the right choice for putting brakes on your car? Can you be reasonably sure that the condition of your car will be safe and it will not lose monetary value after you or the detail shop guy repair it?

Your life and your assets deserve the same level of consideration and you deserve to have a comprehensive estate plan done by an attorney who focuses on estate planning.

Estate Planning

Attorneys charge by the hour or offer a flat fee for estate planning. A typical plan costs on average $600-$800 for a single person and around $1,000 for a couple. The costs depend on your circumstances. Many attorneys require a retainer.

A retainer is money delivered in advance to the attorney and held in trust for the client. They take the fees earned from that retainer. Many people balk at the request for a retainer. However, you should consider the retainer as incentive to you fulfilling your role in this process.

It is not uncommon for someone to start the process and then not complete it because they still have the fears around estate planning or simply do not prioritize it.

In the next articles we will discuss the financial components of your estate planning including life insurance, retirement accounts, and real and personal property. Stay tuned!

– Contributed by Mavis Gragg

Mavis Gragg is an attorney at the Gragg Law Firm, PLLC in Durham, North Carolina where she specializes in estate planning and estate administration. She is very passionate about maintaining and growing Black wealth through sound legal strategies and problem solving. When she is not being a justice girl, she can be found at an art gallery, trotting the globe, or on the dance floor.

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