The impact of diminished capacity on estate planning is a particularly critical issue for individuals with significant assets, as the stakes are higher and the potential for family conflict or financial mismanagement increases exponentially. Diminished capacity, whether due to age-related cognitive decline, illness or injury, can severely impact an individual's ability to make sound financial and legal decisions. For high net worth individuals and families, this can lead to disastrous consequences, including the mismanagement of substantial assets, vulnerability to financial exploitation and the potential for contentious legal battles among beneficiaries. The challenge lies in balancing the need for proactive planning with the sensitivity of discussing potential cognitive decline. Many clients are understandably reluctant to confront this possibility, viewing it as a loss of independence or a sign of weakness. However, addressing this issue head-on is crucial for protecting not only the client's assets, but also their legacy and family harmony.

Affluent families face unique challenges in preserving their legacy while maintaining family harmony. One of the most crucial aspects of successful wealth transfer and family cohesion is the establishment of robust family governance structures. These structures not only facilitate effective decision-making but also play a pivotal role in resolving conflicts that may arise within the family unit.

In the latest development of the ongoing legal saga over the Corporate Transparency Act (CTA), the United States Supreme Court has allowed federal government to enforce the Corporate Transparency Act . The Court's January 23, 2024, decision stays the nationwide preliminary injunction from a Fifth Circuit US Court of Appeals that had temporarily blocked the law's enforcement, adding to the complex legal journey for this significant piece of financial regulation. This decision empowers the Financial Crimes Enforcement Network (FinCEN), operating under the U.S. Department of the Treasury, to resume enforcement of the CTA's reporting requirements. The stay will remain in effect through two potential phases: first, until the full Fifth Circuit Court of Appeals reaches its decision on the preliminary injunction, and second, through any subsequent Supreme Court proceedings. The Fifth Circuit scheduled oral arguments for March 25. The Supreme Court did not reinstate the January 13, 2005, deadline for filing beneficial ownership reports.

Vacation homes and secondary residences often hold a special place in a family's heart. These properties are not just valuable assets; they're repositories of cherished memories and family traditions. However, they can also present unique challenges when it comes to estate planning. Let's look at ways to effectively incorporate these properties into your estate plan.

Here we go again! The Fifth Circuit Court of Appeals has issued a nationwide injunction blocking enforcement of the Corporate Transparency Act's (CTA) beneficial ownership reporting requirements, marking another shift in the law's implementation status. This latest ruling suspends – at least temporarily – the obligation of small businesses and other entities deemed "reporting companies" to report ownership information to the Financial Crimes Enforcement Network (FinCEN) while the court reviews the government's appeal. The decision continues a series of rapid legal changes in December 2024, when the Eastern District of Texas initially blocked the requirements, followed by a Fifth Circuit ruling from a panel of judges that temporarily restored FinCEN's enforcement authority. The current injunction reflects the full Fifth Circuit court's need to evaluate competing priorities: the government's law enforcement objectives versus the regulatory impact on small businesses. The temporary pause allows for more thorough consideration of these factors during the appeals process. This ongoing legal battle holds significant implications for federal authority over private business ownership reporting requirements. The ultimate ruling could reshape how regulators collect corporate transparency data and affect compliance obligations for millions of small US businesses nationwide.

The Corporate Transparency Act is once again enforceable. A trial court injunction stopping enforcement of the Corporate Transparency Act (CTA) (and its Beneficial Ownership Information (BOI) reporting requirements) has been lifted by a federal appeals court. As a result, business entities must report their BOI information to FINCen promptly. While a preliminary injunction from a trial court had temporarily suspended the January 1, 2025 deadline, the U.S. Court of Appeals for the Fifth Circuit has now reversed this decision, effectively reinstating the original compliance deadline.

As an estate planning attorney, I've witnessed countless family transitions, but few offer as many teachable moments as the recent developments within the Murdoch media empire. The public challenges faced by Rupert Murdoch and his children during their court proceedings provide valuable lessons for families of all asset levels about the importance of thoughtful succession planning. The Murdoch situation highlights a fundamental truth: even with access to the world's best legal minds and resources, family business succession can become complicated when emotions and expectations collide with business realities. Please read the full article for a look at important lessons that every family business should consider when planning their estate.

In a December 3, 2024, decision in the case of Texas Top Cop Shop, Inc. et al. v. Garland, the U.S. District Court for the Eastern District of Texas issued a nationwide preliminary injunction against the federal government's enforcement of the Corporate Transparency Act (CTA). The Court found that the CTA is "likely unconstitutional," and therefore unenforceable. Consequently, the Court issued a broad order that the CTA beneficial ownership reporting requirement is enjoined and the compliance deadline of January 1, 2025, is stayed. This trial court order has the effect that entities that are deemed "reporting companies" under the CTA do not currently have an obligation to report their beneficial ownership. It is important to note that the preliminary injunction is subject to change. READ THE FULL ARTICLE BY CLICKING BELOW.

Over several decades of estate planning, I've seen firsthand the unique challenges that collectors face when planning the disposition of their prized possessions. Whether you've amassed a collection of fine art, rare antiques or other valuable items, proper estate planning is crucial to ensure your legacy is preserved and your wishes are carried out. Here are some key considerations and strategies for collectors engaged in planning their estates.

Premarital and postmarital agreements can serve an important purpose in protecting assets and preventing disputes. These documents are legal contracts which can play a crucial role, not only in potential divorce proceedings but also in estate planning. In this article, we'll explore the significance of these agreements, their impact on estate plans, and how they can help you secure your financial future.

The the critical importance of privacy and confidentiality in the estate planning process cannot be overstated. These principles not only protect a client's sensitive information but also ensure the integrity of their wishes and the smooth transfer of assets to their beneficiaries. Let's explore the various aspects of privacy and confidentiality in estate planning, discussing why they matter, how they're maintained, and what challenges we face in the digital age.

The world of estate planning is constantly evolving. Being aware of these developments is essential to staying ahead of the curve to protect your loved ones and legacies. In this article, we'll look into some of the emerging trends and factors that individuals should be aware of when thinking about their own estate plans.

On July 3, 2024, Judge Ada Brown of the U.S. District Court (Northern District of Texas) issued a decision that has sent some shockwaves through the American business landscape. In Ryan LLC v. FTC the court blocked a recent Federal Trade Commission (FTC) regulation that sought to ban worker noncompete contracts nationwide. This decision effectively maintains the status quo, allowing states to continue regulating noncompete agreements according to their own laws and precedents. Judge Brown said she intends to issue her substantive ruling by the end of August – prior to the date the rule was to go into effect.

The recent decision of the Supreme Court of the United States has significant implications for everyone who relies on life insurance to fund buy-sell agreements, a commonly used strategy for owners of closely held businesses. The Court's June 6, 2024 ruling in Thomas A. Connelly, as Executor of the Estate of Michael P. Connelly, Sr., Petitioner v. United States, highlights the urgency of individuals covered by buy-sell agreements and the companies that use them carefully reviewing and structuring these agreements to minimize potential estate tax liabilities for a deceased owner's estate and the companies' own financial obligations.

Creating an estate plan that includes provisions for a loved one with special needs is an essential task to ensure that they are well taken care of after you're gone. A proper plan can provide for their financial needs without jeopardizing their eligibility for government benefits such as Medicaid or Supplemental Security Income (SSI). Here's an overview of what estate planning for individuals with special needs might involve.

Estate planning is a significant undertaking that can have lasting repercussions for an individual's loved ones. However, despite its importance, the process and its results are often shrouded in mystery, leading to confusion, hurt feelings, or even legal battles after a family member passes away. To avoid such outcomes, fostering open communication and transparency through family meetings can be invaluable. Here's how they can help.

On April 24 the Federal Trade Commission (FTC) passed a groundbreaking new rule that bans employers from imposing non-compete agreements on their workers. This new regulation, which is scheduled to become effective 120 days after being published in the Federal Register, has the potential to significantly impact businesses across the United States, forcing them to reconsider their strategies for retaining talent and protecting corporate secrets. The rule is not yet effective and it may not reach that point. Let's take an overview of the new rules, discuss how they might affect existing non-compete agreements, and explore alternative measures businesses can take to adapt to this change.

The Financial Crimes Enforcement Network (FinCEN) has proposed a new rule aimed at combating money laundering in the U.S. residential real estate sector. The rule would require certain professionals involved in non-financed residential real estate transactions to report information to FinCEN, including beneficial ownership details of entities and trusts receiving the property. This nationwide reporting requirement builds on FinCEN's existing Geographic Targeting Order program and is designed to enhance transparency while minimizing business burden. The proposed rule, if finalized, would help law enforcement investigate and prosecute money laundering through U.S. residential real estate, protecting the country's economic and national security. A fact sheet about the proposed rule from FinCEN.gov can be accessed at the link below.

The digital age has brought about a new frontier in estate planning: the protection of our online assets. From social media accounts and email to cryptocurrency and cloud storage, our digital lives hold a wealth of personal and financial value. Yet, many people neglect to consider these assets when planning their estates, leaving their loved ones with a confusing and often daunting task in the wake of their death.

The Corporate Transparency Act (CTA) that went into effect on January 1, 2024 is already facing pushback. Only two months after the Act went into effect, a federal district court in Alabama declared the Act "unconstitutional because it cannot be justified as exercising Congress's enumerated powers." For a deeper dive into the CTA's origin and requirements, please see Richard P. Breed, IV's article, Corporate Transparency Act Overview. The below summary gives some information on the Alabama case and its practical implications for the Act.

New laws in California on noncompete clauses will have very broad implications and are part of a growing trend against employee restrictive covenants. It has long been the rule that noncompete provisions in employment agreements are unenforceable in California under that state's general prohibition against restraints of trade (CA Bus. and Prof. Code Sec. 16600). As of January 1, 2024, two new California Business and Professions Code sections make such agreements unenforceable (CA B&P Code Section 16600.5) and illegal, allowing employees to sue if they are subject to such noncompetes.

Life insurance is an important tool that can be used to protect your legacy and family in the event of your death. It can provide liquidity to pay for estate taxes, funeral expenses, and other debts, and it can also be used to leave a financial legacy to your loved ones. Business owners often use life insurance to fund buy-out agreements with their co-owners or to insure against the untimely death of a key employee. CLICK BELOW TO READ MORE.

eir fiduciary duty. A fiduciary duty is a legal obligation to act in the best interests of another person. Executors and trustees are both fiduciaries, which means that they have a legal obligation to act in the best interests of beneficiaries of the estate or trust. READ THE FULL ARTICLE BY CLICKING THE LINK BELOW.

The Corporate Transparency Act will affect 32 million businesses in 2024. Tarlow, Breed, Hart & Rodgers summarizes the key issues you need to be aware of in the article linked below.

Estate planning is the process of creating a plan for how your assets will be distributed after your death. It is an important component of your overall financial planning, and it can help to ensure that your wishes are respected and that your loved ones are taken care of after you die. However, even the most carefully drafted estate plan can be challenged. There are several reasons why someone might challenge an estate plan. Read about them by clicking below.

In the dynamic world of business ownership, entrepreneurship often intertwines personal aspirations with the pursuit of business success. With the day-to-day demands of starting, building and managing a venture, a business owner is often forced to place their estate planning in the backseat, leaving the owner vulnerable to unforeseen circumstances and potential disputes. However, a well-structured estate plan is not just about planning for an unexpected death or incapacity. Estate planning goes beyond the mere transfer of assets upon your death. It's about preserving the continuity of your business, mitigating tax implications, providing for the well-being of your loved ones, and ensuring the continued success of your venture. A comprehensive estate plan serves as a roadmap, guiding your business through transitions, safeguarding its future, and preserving the legacy you have worked hard to create.

The proper management and transfer of wealth are central concerns in estate planning. With a myriad of instruments at one's disposal, it is critical to choose the right tools to achieve specific financial objectives. Among the most versatile and effective instruments is the Grantor Retained Annuity Trust (GRAT), especially useful for high net worth individuals aiming to transfer significant assets to beneficiaries while minimizing estate and gift taxes. This article will briefly highlight the mechanics, benefits, and considerations using GRATs in estate planning.

Massachusetts recently made a substantial change to its estate tax laws by increasing the estate tax exclusion amount from $1.0 million to $2.0 million, effective as of January 1, 2023. It is essential to understand how this change could impact you. Residents of Massachusetts, non-residents with Massachusetts property, and those administering estates in Massachusetts should pay close attention to the details and its potential ramifications for estate planning purposes. CLICK BELOW TO READ THE FULL ARTICLE.

Estate planning is not a one-and-done affair; rather, it is an evolving process that requires periodic attention and updates. For evidence of the need for reviewing and revising an estate plan one need look no further than the recent changes to the Massachusetts tax laws, which include an increase in the estate tax threshold from $1 million to $2 million. This single change opens up an opportunity for significant tax savings for a wide range of people, but requires a new look at existing estate plans. One cannot overstate the importance of regular estate plan reviews in ensuring effective asset distribution. Once thought of as a concern reserved for the ultra-wealthy, estate planning has now become a crucial activity for everyone, regardless of the size of their estate or age. With the complexities of modern family dynamics, volatile economic conditions, and ever-changing laws, keeping your estate plan up to date becomes critical to avoid unnecessary headaches, legal complications, and most importantly, to ensure your assets are distributed according to your current wishes. CLICK BELOW TO READ THE FULL ARTICLE.

Blended families, those comprising divorced and remarried individuals as well as multiple step-siblings, often face unique challenges when it comes to estate planning. Traditional estate planning approaches may not be suitable or fair for everyone involved. This article delves into some estate planning strategies specifically tailored to the needs of blended families. These aim to provide peace of mind, protect assets, and ensure that each family member is taken care of.

As a seasoned trust and estate attorney, I have often encountered the apprehensions and confusion that surround estate planning. This frequently revolves around the often daunting term, "probate." Understanding the intricacies of probate and the advantages of alternative methods, such as trusts, can significantly streamline the estate settlement process.

Charitable trusts offer high net worth individuals, business owners, and entrepreneurs a powerful tool for strategic philanthropy. By establishing such a trust, you can not only support the causes you care about but also enjoy significant tax benefits. A charitable trust is an arrangement where one donates money or property in trust to benefit nonprofits – organizations established generally for educational, religious, scientific, or medical purposes. In addition to furthering your charitable intentions, incorporating philanthropy into your estate plan through charitable trusts can lead to reduced estate taxes for your heirs. But it is important that you select competent trustees who can effectively manage your charitable trust's assets and responsibilities.

The new Massachusetts "Millionaires Tax" will have a significant impact on estate planning for high-income residents of the state. The tax (officially an amendment to Article 44 of the state's Constitution) was approved by voters in November 2022, and imposes an additional 4% income tax on the portion of annual taxable income in excess of $1 million. This is on top of the 5% state income tax already in place. For example, a couple with a combined taxable income of $2 million could eventually pay an additional $80,000 in state income tax. The tax will be phased in over time, starting with a 1% surcharge in 2023, increasing to 2% in 2024, and reaching 4% in 2025. The tax is also indexed for inflation, so it will increase over time as well. The Millionaires Tax will likely lead to changes in estate planning strategies for high-income Massachusetts residents. The impact of the Millionaires Tax on estate planning will vary depending on individual circumstances. However, the tax will have a significant impact on how high-income Massachusetts residents plan for their estates.

Accessing retirement funds while avoiding the 10% penalty using an exception for distributions that are part of a series of substantially equal periodic payments ("SEPPs") is the topic of an article written by Tarlow Breed Hart & Rodgers' David Valente and published in the American Bar Association's Fall 2021 E-Report. You can read the full article by clicking the link below.

With the Baby Boomers passing on their wealth to the next generation, the most significant transfer of wealth is currently occurring. Although the current federal estate and gift tax exemption offers a generous opportunity to transfer wealth (i.e., currently $11.7 million per individual and $23.4 million per couple), there is no guarantee that this exemption will remain in place in the current political climate. Even if left untouched, the federal lifetime estate and gift tax exemption is scheduled to revert back to approximately $5.5 million per individual on January 1, 2026. This realization makes estate planning even more important for anyone who wants to pass on generational wealth right now. There are a number of tools and techniques that we use in developing an estate plan that can be effective in minimizing the tax burden associated with these transfers. Which planning tools and techniques you choose to include within your personal estate plan will depend on many factors, one of which is how much control you wish to retain over your wealth when it passes onto your designated heirs.

The prospect of probate, when left unconsidered during one's lifetime, can unintentionally lead to a costly and time-consuming process for loved ones. You have the ability to control this situation and ensure your estate, and your loved ones, avoid this onerous process.

This time of year, many people are focused on gathering their income information and filing their annual income tax returns. But people often overlook the need to file gift tax returns, which share the same due date. With high federal exemption amounts and the ability to transfer up to $15,000 ($30,000 for married couples) each year to any number of individuals tax free, it's unusual for even very wealthy clients to have to pay a gift tax. So why does the IRS require you to report taxable gifts on an annual gift tax return (Form 709) even if no tax will be due? And what constitutes a taxable gift?

While still a long way from becoming law, the far-reaching "For the 99.5 Percent Act" introduced into the U.S. Senate could have a considerable impact on generational wealth transfer, and thus on estate planning. The legislation includes a number of provisions that would affect everything from estate tax exemptions, to gift tax rates, to how trusts are structured. The name of the Act, according to one of its sponsors, Sen. Bernie Sanders of Vermont, is in reference to the estimated 99.5 percent of Americans who would not be affected by changes to the estate tax system. But what about the 0.5 percent who would be impacted?

In an effort to encourage private investment in certain economically depressed areas, the 2017 Tax Cuts and Jobs Act created the concept of "opportunity zones." To date, the IRS has designated approximately 8,500 areas throughout all 50 states as opportunity zones. The good news? The Act also included a tax incentive for certain investments in these new opportunity zones, presenting yet another "opportunity" for savvy investors. You can read the full article by clicking the link below.

The recent death of legendary broadcaster Larry King elicited scores of laudatory messages celebrating his lengthy career. But King, who often bragged of never preparing in advance for his estimated 60,000 interviews, also did not do a great job of preparing his estate. In fact, he did just about everything wrong. Here are five lessons we can learn from Larry King's less than exemplary disposition of his estate, which is estimated to be $2 million.

Falling behind on the rent will not force a Boston area restaurant to give up its liquor license to the landlord – at least not during a public health crisis. In a Memorandum of Decision and Order issued in the case of NFLSRE 51 Sleeper, LLC, vs. Hopster's LLC, et al., the Suffolk Superior Court denied the landlord's request to enjoin the use of its liquor licenses by the restaurant tenant after it had missed rent payments in March and April. The court also limited the landlord to an attachment solely for back owed base rent and not holdover charges because it is not clear that the lease was actually terminated and also because the state's moratorium on evictions during the COVID-19 emergency prohibited late fees.

While we may be in a "new normal," the "old" rules still apply to your business's relationships governed by contracts. Whether you are looking to hold the other party to its bargain or seeking a way out, the terms of the contract will determine what options are available to you. For example, while the seller of Victoria's Secret anticipated that the prospective buyer might seek to use the pandemic as a grounds to back out of the deal, the buyer nevertheless found a hook in the contract which it sought to use to free itself from the deal. That case both demonstrates not only the need to think broadly and creatively about all the potential "what ifs" to address in a contract, but also the need to examine and understand the terms of your existing contracts to identify the risks and opportunities within them. In the end, it often comes down to one question: What does the contract say? This series will explore considerations your business should give to the agreements which govern its various relationships, including internal relationships between or among business partners; relationships with your employees; and external relationships with your customers and vendors. Now more than ever, closely examining the agreements which manage your business's various relationships is critical to protecting your interests and making informed decisions about whether to seek to avoid or pursue litigation.

Project developers and managers, along with general and subcontractors, are finding that construction insurers are rejecting COVID-19 claims against policies written pre-pandemic. Insurers also are opposing any legislative effort to broaden the scope of already written coverage. Notwithstanding, the construction industry needs lawsuit protection from liability exposure and depends on insurers to stand behind those policies. There are four main areas of concern for owners and those in the construction industry: Workers Compensation, Subcontractor Default, Surety and Performance Bonds, and General Liability.

In addressing the respective rights and obligations of commercial landlords and tenants under a lease during the time of coronavirus, most of the focus has been on the force majeure provision in the lease and whether the coronavirus would, in fact, be identified as a force majeure. There are, however, other defenses available to tenants under contract law, which exist mostly outside of the concept of force majeure and which could be applied by tenants under a lease. These are the two related concepts of "impossibility of performance" and its cousins "frustration of purpose" and "commercial impracticability". Click the link below to learn more.

Companies face a rapidly shifting global economy due to the coronavirus pandemic and various government responses. Planning may seem impossible, but we need to look forward for what may come next. While much of the country remains under government orders mandating that non-essential services close, states are looking at what re-opening will look like. As businesses consider and plan the process of re-opening, it is sensible to review important agreements. Most businesses will face a critical question of how they – or a contract counterparty – can or will be able to perform under contracts entered into prior to this crisis. Some will have to decide whether to assert that it should be excused from performing its part of an agreement due to force majeure. Without a proper force majeure or other applicable excuse, a party will breach its agreement if it does not perform on time. There are three basic defenses to non-performance under a contract: (1) force majeure, (2) impossibility/impracticability, and (3) frustration of purpose. This article provides an overview of each.

Most businesses have basic property and casualty insurance to cover the cost of repairing or replacing property damaged by a casualty, catastrophe or other hazard. Many prudent businesses choose to extend their property insurance to additionally guard against the financial losses that might accompany these insured events. Known as business interruption (BI) insurance, such policies insure a business against the loss of profits and the added expenses that an interruption might cause its operations. In recent weeks, policy holders have been outraged to learn that insurance companies have been routinely denying BI claims for losses associated with the Covid-19 pandemic. Read more about this emerging issue by clicking the link below.

On April 23, 2020, after over a month of intense lobbying and several revisions to the original bill, the Massachusetts Legislature passed the Virtual Notarization Act, which will allow remote notarization (via video conference) of estate planning documents like wills, trusts, durable powers of attorney, health care proxies and HIPAA authorizations, as well as mortgages and other documents transferring title to real estate, during the COVID-19 state of emergency. Governor Baker signed the Act into law on April 27, 2020. The Act provides a means for front line workers, hospitalized individuals and other contemplating their own mortality during these extraordinary times, to execute documents that will allow their final wishes to be carried out should the worst happen, and also permits real estate transactions that may have been months in the making to proceed to completion. With remote notarization, the principal, the witnesses and the notary do not have to be present in the same place as long as they are visible to each other via video-conferencing technology, such as Zoom or FaceTime. You can read more about it by clicking the link below.

Almost all commercial landlord leases will contain a force majeure ("Delays") provision. While the terms "Act of God" and "force majeure" are sometimes used interchangeably, the term force majeure is usually defined more broadly than simply an Act of God. The litigation regarding force majeure provisions in a lease is limited nationally, and even more sparse in Massachusetts. Most of the cases are in fact commercial contract cases which do not involve a lease, but rather a commercial contract of some kind. You can learn more about force majeure and how it can affect lease contracts by reading the full article by clicking below.

On March 27, 2020, the President signed The Coronavirus Aid, Relief and Economic Security Act (the "CARES Act") into law. One of the central features of the CARES Act is the Paycheck Protection Program ("PPP"). Under PPP, the class of borrowers eligible to receive Small Business Administration ("SBA") backed loans is significantly expanded and includes most employers with 500 or fewer employees, sole proprietors, independent contractors, self-employed individuals, "gig economy" workers and certain non-profit organizations. Applications for small businesses and sole proprietors may be submitted to SBA approved lenders starting Friday April 3.

Under current Massachusetts law, estate planning documents require in-person notarization and two (2) in-person witnesses. With social distancing, individuals are prevented from signing estate planning documents during the COVID-19 state of emergency. A bill, referred to as the "Notary Bill," is in development within the Massachusetts legislature. This bill allows for remote notarization of conveyancing and estate planning documents during the COVID-19 state of emergency. A copy of the original bill filed by Senator Tarr on Friday, March 20, is on the legislature's website (https://malegislature.gov/Bills/191/SD2882). Some changes have been made to the bill. We will provide more details once we have confirmation of the final text of the bill as filed. If enacted as published, the bill will grant powers to Massachusetts notaries public who are either licensed attorneys or a paralegal under direct supervision by a Massachusetts licensed attorney, to notarize documents utilizing electronic video conferencing in real time, to supervise signings with virtual witnesses as though they are physically present, and to execute documents in counterparts. These powers can only be used if everyone participating in the signing conference are physically present in Massachusetts. We ask for your help in appealing to your representatives in Massachusetts legislature to consider the urgency of the bill. To search for your representatives and senators, go to: https://malegislature.gov/Search/FindMyLegislator

April 1st (and the first day of the next several months) will bring a new kind of anxiety for landlords and tenants, as the gravity of the current events surrounding the ongoing coronavirus crisis plays out. Inevitably, the economic fallout from the pandemic will make it impossible for many tenants to pay their normal rent, or even a portion of the amount due. Until the funding from the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) arrives, any changes to the ordinary payments will quickly flow upstream to landlords, their lenders and their investors. Moving forward, here are some critical things landlords and tenants should do to avoid surprises.

What a difference a few weeks makes. The longest bull market in U.S. history has come to an abrupt end – at whiplash speed. It ended on the back of a novel coronavirus – COVID -19. Here are a few things you can do now relating to your funding matters to help manage the uncertainty that currently exists with no clear end in sight.

Beyond the terrible human and social cost of the coronavirus pandemic, Covid-19 is causing enormous business losses from disrupted workforces and supply chains, social distancing practices, travel restrictions, cancelled events and, more recently, government ordered shelter-in-place/stay-home orders. Some business owners may be wondering whether they can blunt the effect of Covid-19 related losses by filing claims under their insurance policies – perhaps their business interruption coverage. We highly advise business owners to do a quick review of the fine print in their insurance coverage to prepare for what might come next

On August 10, 2018 Governor Charlie Baker signed into law Massachusetts Noncompetition Agreement Act of 2018 (G.L. ch. 149, s. 24L) which limits the use of noncompetition agreements in Massachusetts. The new law applies to all post-termination noncompetition agreements between employers and certain employees and independent contractors entered into on or after October 1, 2018.

On December 22, the Tax Cuts and Jobs Act of 2017 ("TCJA") was signed into law. The TCJA is billed as the largest overhaul of the Internal Revenue Code since the Tax Reform Act of 1986 and it will affect almost every individual and business in the United States. Generally, the new law goes into effect on January 1, 2018, with many of the provisions relating to individuals expiring at the end of 2025. The following is a summary of the TCJA's more salient aspects:

In May 2016, President Obama signed the Defend Trade Secrets Act of 2016 (“DTSA”) into law. This is the first federal law that regulates trade secrets, a critical type of intellectual property that, until now, has been regulated solely by the states - often in inconsistent ways.

Despite signs of economic recovery, many municipalities in the Commonwealth are continuing to deal with lingering effects of the collapse of housing prices, prolonged high unemployment and ensuing declines in revenue and local aid. They are confronting soaring demands for spending on public workers’ pensions and retirees’ health care resulting in slashed services, payroll cuts and municipal employee layoffs.

Richard P. Breed, III was quoted in the June 29th issue of the Boston Business Journal in the article "Checked Out But Still Logged On."

Within an estate planner’s bag of tricks, lays the much beloved, yet much feared, family limited partnership (or more recently, the limited liability company). On its face, FLP planning can provide our clients significant transfer tax savings as wealth is transferred to the next generation, while allowing our clients to retain somecontrol over gifted assets. However, these tax savings may be illusory if an FLP is implemented for the “wrong”client.

There is always the risk of conflict in business. But when family is involved the risk of dispute is even greater. Family business disputes generally center around governance, business management, ownership and succession (transition) and can be exacerbated by the personal dynamics and history among family members.

Increasing numbers of business ownersand in-house counsel are requesting, in addition to a budget for the rendering of legal services, some evaluation of the uncertainties and exposure of a case even at the early stages of litigation.[1] Counsel defending a lawsuit are well aware that the process of dismissing a complaint or complying with discovery are costs which cannot often be recovered absent a showing that the matter was frivolous. This article addresses the risk/cost evaluative process.

Joseph was a successful businessman during his lifetime and died owning a majority stake in a newspaper empire. Joseph provided for his estate to be held in trust for the benefit of his sons and then the remainder to be distributed among his descendants.

Each year the U.S. Food and Drug Administration ("FDA") receives over four thousand applications are submitted for approval of medical devices. For thirty years, under the U.S. Food and Drug Cosmetic Act ("F.D.C.A."), medical device manufacturers have been required to demonstrate to the FDA that new medical devices are safe and effective.

"Cloud Computing" has recently become the catchphrase of those who look to this evolving area to assist their businesses in lowering technology budgets and operating costs. All manner of business is being conducted. Even recording studios are operating in the cloud. Indaba Music, a music social network company, recently launched a web based media recording studio.

Grantor Retained Annuity Trusts (GRATs) are among the most popular and powerful estate planning strategies. But they may soon lose some of their power. Legislation to restrict the use of GRATs has been passed by the House of Representatives in two separate bills, most recently on June 15, 2010 in the Small Business Jobs Tax Relief Act of 2010.

The Legislature long ago established that government records must be preserved, maintained and made available to the public in accordance with state law (M.G.L. Ch. 66, Sect. 8). The state’s Supervisor of Public Records, meanwhile, has required municipalities to implement policies governing the backup and archiving of electronic public records (SPR Bulletin No. 1-99).

On March 24, 2010, the United States Supreme Court in United Student Aid Funds, Inc. vs. Espinosa, 559 U.S. ___ (2010) unanimously affirmed the Ninth Circuit Court of Appeal"s decision to let stand an erroneous Order of a U.S. Bankruptcy Court.

One of the icons of the early Earth Days was the Pogo poster: “We have met the enemy and he is us.” Forty years on, the time has come to face frankly whether we have moved from environmental renaissance to a baroque, self-defeating era of regulation.

It’s hard to beat the ancient Greeks at turning a phase. Hippocrates, the Father of Medicine, once said “Man is an obligate aerobe.” In modern terms, no breath, no life. So the Massachusetts Department of Environmental Protection should care, and care deeply, about the quality of the air we all must breathe to live.

A business dispute is a business dispute, at least until it becomes an intra-family dispute. As owners of family-owned businesses know, a business dispute between owners or shareholders can spill over into family relationships. Conversely, the breakdown of family relationships can precipitate disputes on the business side.

At the time, it was an appropriate estate planning strategy for your family to establish an irrevocable trust. You named your trusted friend, John, as trustee and purchased life insurance. At your death, the trust property would be distributed outright to your children at age 30.

It goes without saying that costs associated with litigation can really add up. For some small businesses, even if they are in the right, a lawsuit can literally put them out of business. Having represented clients on both sides of the litigation table, what comes across loud and clear is that many of these lawsuits could have been avoided

As the federal estate tax exemption climbs, and as the 2010 repeal approaches, many families and their advisors are relieved that $2 million to $7 million of assets can be inherited federal estate tax-free. However, residents of most states must still plan for looming, and often substantial, state death taxes.

Owning and operating a family business presents many challenges, perhaps none more daunting than planning for succession to the next generation. This challenge may become particularly complicated when not every member of the succeeding generation is or wants to be an active part of the business.

The mediation is on for next week. Your attorney explains in detail the cost benefit analysis you will want to consider to prepare for the mediation. But did he explain the nuts and bolts of the mediation process itself? It's the process that may determine whether the experience is a great success or a colossal waste of time.

“[W]hat constitutes an injury or loss for purposes of a G.L. c. 93A claim, where the plaintiffs had purchased automobiles with allegedly defective door latches, were nonetheless able to use the vehicles, and had not suffered any direct personal injury or economic injury?”

To avoid costly and many times slower proceedings in our court systems, alternative dispute resolution provisions in contracts and sometimes as independent agreements have become very popular. Unfortunately, however, as these provisions have become more popular, they have become more complicated

Given the uncertainty of the 2007 real estate market, now might be a good time for business owners and developers with real estate mortgages to double check their mortgage covenants to see what obligations they might face should property values deteriorate. In a strong market

Strategies for Brand Protection During Retraction (PDF)

At the time, it seemed an appropriate estate planning strategy: purchase life insurance; set up an Irrevocable Life Insurance Trust ("ILIT"); name trusted friends and advisors, John and Jane, as co-Trustees; and following the insured's death, authorize the Trustees to make outright distributions of principal to the children at ages 25, 30 and 35. But that was 1986 and this is 2006.

Liquidated Damages: Protecting Your Franchise's Good Name (PDF)

A good document retention policy will save your business time and money. After the Arthur Andersen meltdown, Congress and the Securities Exchange Commission created laws making it a crime (including obstruction of justice) for public companies to destroy records, even if there are no pending proceedings.

Nobody wants to pay income taxes on compensation they have not yet received. But many executives who are entitled to receive deferred compensation from their employers may soon have to do just that. The problem was created by new Section 409A which was added to the tax law by the American Jobs Creation Act of 2004.

Family Businesses (PDF)

Use of the condominium form of ownership can be a creative solution for problematic real estate development. A typical condominium regime vests ownership of a "unit" in the owner, and the places ownership of the common elements in a unit owners association. This arrangement can, in some cases, be employed when developing real estate by subdivision is problematic.

The trend in retail toward big-box retainers presents several particular concerns for landlords in crafting leases. The size and configuration of a big-box retailers' space require the landlord to pay special attention to the lease provisions dealing with the tenant's operations and tenant turnover.

When negotiating a lease, due consideration must be given to a prospective lender's and purchaser's objectives regarding the lease. Whether the lease is for retail, office or industrial space, at some point during the course of financing the property, or upon the ultimate disposition of the property, a third-party will want to hear from your lessee.

RFID systems offer tremendous opportunities for businesses that have a clearly defined mission for the system. It is vital to have clear and realistic targets for the system, as well as a detailed understanding of its larger operating environment as it may evolve over time.

As we hunker down to ride-out the winter doldrums, now might be a good time to review your banking cash management procedures, especially in light of a recent changes to the banking system intended to overhaul the way paper checks are processed.

Using standardized contracts in business is not a new concept. Although this notion is not a particularly innovative one, contract standardization has proved an invaluable resource in streamlining transactions while maximizing the legal protection for all parties involved.

Estate Planning for Family Owned Businesses and LLCs (PDF)

By Richard P. Breed, III The Economic Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA"), in addition to its well-publicized income tax relief for many taxpayers, repeals the federal estate tax for persons dying in 2010.

The Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), signed by the President earlier this summer, received much fanfare for its income tax rate reductions, marriage penalty relief and phased-out elimination of the estate tax.

With the expected rise in interest rates looming, the cost of real estate projects will be more closely scrutinized. Perhaps the most critical factor in the cost equation with respect to interest rates is time. Identifying possible sources of delays and working to minimize the risks of delays maximizes the project proponent's chances of taking advantage of lower interest rates.

Financing a construction project presents a myriad of issues for the owner. In fact, it requires the owner to negotiate separate contracts with two parties that have differing, and possibly conflicting, objectives.

When property owners turn their attention to estate planning, a review of their real estate holdings and the manner in which title to their properties is held can yield beneficial results not only in terms of avoiding probate or succession planning, but also in terms of a present benefit from changing the manner in which title is held to a more advantageous form.

For as long as there has been business, there has been conflict between owners. While a robust conflict of ideas can lead to constant improvement, systemic conflict can be destructive to an operating business.

A tax ruling was just released in Massachusetts that accepts an innovative tax strategy that can eliminate the 10.5% financial institution excise tax now imposed on many mortgage companies.

Massachusetts imposes a corporate tax at a rate of 3% - 4.5% on taxable income of S corporations such as XYZ with more than $6 million of gross receipts. Under Massachusetts regulations, a Massachusetts Business Trust (or corporate trust) that is an S corporation for federal income tax purposes does not qualify for treatment as an S corporation in Massachusetts and is, therefore, not subject to the special Massachusetts tax on large corporations.

R.E. Orgs. Become Active in Lobbying Legislatures to Avoid Cutting Budgets (PDF)

You, Your Estate Plan, and Your Pet (PDF)

On November 5, 1990 Congress enacted the Omnibus Budget Reconciliation Act of 1990 ("OBRA"). Included within the myriad provisions of OBRA was Section 11601 which retroactively repealed the "estate freeze" provisions of Section 2036(c) of the Code which, of course, had caused great concern to estate planners and their closely-held business clients since its introduction in late 1987.

Owners of closely-held businesses require guidance from their business advisors to ensure continuity of management and ownership in succeeding generations during the life cycle of the business. Entrusting the management of the business to the proper person(s) may determine the ultimate success or failure of the enterprise.

Thinking about updating your estate plan? Whether due to the birth of a child, the death of a friend, reaching retirement, the sale of your business, reaching a certain age, or hitting the lottery, whatever the reason, most people eventually decide to see a lawyer about preparing a Will or updating their old one.

With the surging growth of our economy, many executives are now finding themselves in a position of having either fully funded, or over funded, their anticipated retirement needs using various retirement vehicles, including qualified defined benefit plans and defined contribution plans, individual retirement accounts, and non-qualified deferred compensation plans.

All corporations experience development cycles that are affected not only by their market area and the prevailing economic climate, but also by the personalities of the directors, officers and shareholders. This is especially true for closely-held corporations and, in particular, for family businesses. In the family business setting, the level of formality is often dictated by what stage of development the business has reached.

This year has brought much economic uncertainty. Lenders and borrowers alike struggle to determine whether the real estate market is weakening. Curiously, however, mortgage rates are low, encouraging a large amount of refinancing. In a similar fashion, the title insurance market has been in flux.

On January 12, 2001, Acting Governor Jane Swift signed into law legislation supported by both lawyers and Land Court judges which can provide significant economic relief for the owners of registered land, by allowing them to withdraw their property from the registered land system (also known as the Torrens system).