Four Selected for Inclusion in The Best Lawyers in America©

Aug 15

Clark, Mize & Linville, Chartered, 129 S. 8th Street, Salina, is pleased to announce that it has four attorneys named to the 2020 Edition of The Best Lawyers in America© publication.  Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence.  Best Lawyers lists are compiled based on an exhaustive peer-review evaluation.  Lawyers are reviewed on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing.  Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor.  The following attorneys were named:

Peter L. Peterson has been included since the publication’s inception in 1983 and currently is listed in the practice areas of Trusts and Estates, Non-Profit/Charities Law, Tax Law, and Employee Benefits (ERISA) Law.  Previously, Mr. Peterson was selected as the 2013 Best Lawyers in America Lawyer of the Year in the Wichita/Salina Area for the practice area of Trusts and Estates.

Eric N. Anderson has been listed since 2013 in the practice areas of Business Organizations (including LLCs and Partnerships) and Trusts and Estates.

Dustin J. Denning has been listed since 2018 in the practice areas of Medical Malpractice – Defendants and Personal Injury Litigation – Defendants.

Peter S. Johnston has been listed since 2016 in the practice areas of Medical Malpractice – Defendants, Personal Injury Litigation – Defendants, and Insurance Law.

What You Need to Know About LLCs

May 10

New business ventures can be structured in many different forms, including as a sole proprietorship, partnership, or corporations. With that being said, limited liability companies (“LLCs”) have become one of the most common forms in Kansas. An LLC can limit the liability of the owners, so they are not liable for the debts of the entity. Members of an LLC are generally only at risk to the extent of their investment in the LLC, and their other personal assets are protected.

One of the biggest advantages of LLCs is that they can be a bit more simple and flexible than corporations. Some formalities, such as annual minutes, are not required of all LLCs unlike other entities in Kansas. The members of the LLC often actively participate in the management of the business. The use of an LLC is a good choice for many business types with a limited number of owners.

Although LLCs can be used in myriad different contexts, a common usage is for rental real estate. In this case, once the LLC is properly established, the rental real estate can be transferred into the LLC. If an accident subsequently occurred on the real estate premises, the liability may be limited to the assets of the LLC and not reach the other assets of the owner.

To form an LLC, Articles of Organization must be prepared and filed with the Kansas Secretary of State. Next, internal documents controlling the LLC are prepared including an operating agreement, organizational minutes, and a membership certificate. LLCs in most cases also receive a taxpayer identification number that is used for tax purposes.

LLCs are most commonly taxed as partnerships for federal tax purposes. Accordingly, LLCs are not subject to two layers of tax. Instead, income or loss from the LLC flows from the LLC to the members and is reported on the member’s individual tax returns. LLCs with only a single member are a bit different, however, and are treated as sole proprietorships, which means that the single-member LLC’s income is reported directly on the member’s tax return.

An often overlooked benefit of LLCs is that they can provide for ongoing and centralized management of assets. For example, some families create LLCs to allow for inherited or family assets to remain jointly owned with a management structure in place.

Please contact the lawyers at Clark, Mize & Linville, Chartered to discuss the formation of a limited liability company to protect your assets.

Written by:      Joshua C. Howard

Related Practice Area:            Business Formation and Governance

 

Clark, Mize & Linville Named a Tier 1 Law Firm by U.S. News and Best Lawyers®

Nov 09

Clark, Mize & Linville, Chartered, is once again pleased to announce that it has been named a Tier 1 law firm, the highest ranking level, for the Salina/Wichita Metropolitan regions in the 2019 Edition of the U.S. News – Best Lawyers® “Best Law Firms.” Firms included in the 2019 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

The firm’s Tier 1 rankings are in the areas of Health Care Law, Trusts & Estates Law and Personal Injury Litigation – Defendants. In addition, the firm received a Tier 2 ranking in the practice areas of Medical Malpractice Law – Defendants, Insurance Law, Non-Profit/Charities Law and Tax Law, and a Tier 3 ranking in Business Organizations (including LLC’s and Partnerships) and Employee Benefits (ERISA) Law.

Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.  The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

Ancillary Administrations

Nov 09

When an out-of-state individual dies owning Kansas real estate, Kansas probate proceedings are necessary to transfer the real estate. Depending on the facts and circumstances involving the assets, beneficiaries, and planning, the necessary probate proceedings may take a number of different forms.

If less than six months have passed since the date of death, then a full administration in Kansas would be necessary.  If, however, a probate administration has already been started in the decedent’s state of residence and more than six months have passed, an expedited ancillary administration in Kansas can be used to transfer the real estate.  Accordingly, if the immediate sale or use of the Kansas property is not required, the most efficient method of transferring it often is waiting six months.

In order to begin this process, an “authenticated” (referred to as “exemplified” in some states) copy of the will and order admitting the will to probate is required.  The next step is the preparation of the petition, order for hearing, and published and actual notice in Kansas.  At the hearing, the Court would enter a journal entry transferring all the Kansas property to the beneficiaries.  Once initiated, this process takes approximately a month and a half.

If the decedent owned additional real estate in other Kansas counties, authenticated pleadings from the first Kansas court would then need to be filed with the courts in the other counties to ensure clear title.  Under the expedited probate process, the title in the properties would vest directly in the beneficiaries.  Therefore, if the beneficiaries wished to sell the properties, they could do so in their own names following the completion of the probate matters.

While these procedures can be used for any Kansas property owned at death by a non-resident, they are most common for the transfer of family farmland and mineral interests. The attorneys at Clark, Mize & Linville, Chartered have assisted numerous families and out-of-state attorneys with these probate actions.

Written by:   Joshua C. Howard

Related Practice Area:   Probate and Estate Settlement

Five CML Attorneys Selected as Best Lawyers©

Aug 16

Five Selected for Inclusion in The Best Lawyers in America©

Clark, Mize & Linville, Chartered, 129 S. 8th Street, Salina, is pleased to announce that five of its attorneys have been selected for inclusion in the 2019 Edition of The Best Lawyers in America©.  Inclusion in The Best Lawyers in America© is based entirely on peer review and recommendations of lawyers with experience working in the same practice areas as those receiving recognition.

Peter L. Peterson has been included since the publication’s inception in 1983 and currently is listed in the practice areas of Trusts and Estates, Non-Profit/Charities Law, Tax Law, and Employee Benefits (ERISA) Law.  Previously, Mr. Peterson was selected as the 2013 Best Lawyers in America Lawyer of the Year in the Wichita/Salina Area for the practice area of Trusts and Estates.

John W. Mize has been listed since 1995 in the practice area of Health Care Law. Previously, Mr. Mize was selected as the 2018 Best Lawyers in America Lawyer of the Year in the Wichita/Salina Area for the practice area of Health Care Law.

Eric N. Anderson has been listed since 2013 in the practice areas of Business Organizations (including LLCs and Partnerships) and Trusts and Estates. Mr. Anderson has also been selected as the 2019 Best Lawyers in America Lawyer of the Year in the Wichita/Salina Area for the practice area of Business Organizations (including LLCs and Partnerships).

Dustin J. Denning has been listed since 2018 in the practice areas of Medical Malpractice – Defendants and Personal Injury Litigation – Defendants.

Peter S. Johnston has been listed since 2016 in the practice areas of Medical Malpractice – Defendants, Personal Injury Litigation – Defendants, and Insurance Law.

Eric N. Anderson Obtains AV Preeminent Rating from Martindale-Hubbell

Aug 07

Clark, Mize & Linville, Chartered, is pleased to announce that Eric N. Anderson has obtained his “AV® Preeminent™” peer review rating by Martindale-Hubbell Law Directory, which is its highest rating for lawyers who have obtained a reputation among their peers for exemplary professional expertise, experience, stature, and high ethical standards.

Eric focuses his practice primarily on tax, estate, and business planning for both individuals and businesses.

Goals of Estate Planning

Apr 27

Estate planning is the process of planning for the eventual distribution of assets upon death. Although there are many different reasons to plan an estate, the following general goals are applicable to everyone:

  1. People want to give what they want. They want the flexibility to decide what to give.
  2. People want to give their property to whom they want. They do not like being told that they must include or exclude certain proposed beneficiaries.
  3. People want to distribute their property how they want. They want the freedom to choose the manner in which they make distributions of their property.
  4. People want to distribute their property when they want. They want the flexibility to make decisions for themselves based on the circumstances existing at the time.
  5. People want to accomplish these goals as conveniently as possible and at the lowest possible cost. People generally do not want the asset transfer process to be more difficult than necessary. Nor do they want to pay any more in taxes than is minimally necessary. Thus, the goal is to develop an estate plan that streamlines the transfer process and maximizes the value of property passing to the decedent’s family.

The role of an estate planning attorney is to help the client accomplish their goals. An experienced attorney has various tools at his or her disposal, and an estate can be transferred at death using the following methods:

  1. Last Will and Testament – The benefit of a will is that the testator can direct how he or she would like the assets to be distributed. Within a will, guardians for minor children can be named and language can be included to provide for children until they are old enough to manage assets. Wills, however, require a probate administration for transferring assets.
  2. Joint Tenancy – This type of ownership is one of the most common forms. The benefit of joint tenancy is that assets are transferred automatically to the joint owner upon the first death. However, the assets are then held in the survivor’s name alone and are subject to probate. Also, joint tenancy often does not work well outside of a marriage relationship.
  3. Transfer-on-Death and Beneficiary Designations – These types of designations can be used for various assets, including bank accounts, investment accounts, retirement accounts, life insurance, and real estate. Naming beneficiaries allows for assets to be distributed without the need for probate. Unfortunately, these designations sometimes lack the flexibility that is often necessary in estate plans.
  4. Revocable Living Trusts – Trusts are a time-honored method of avoiding probate. A properly established and funded trust provides all the benefits of avoiding probate and at the same time allows the necessary flexibility to leave assets in the desired manner. For example, trusts can be used to hold assets until children become older and protects assets from the beneficiaries’ creditors.

None of these tools are right in every circumstance. The estate planning attorneys at Clark, Mize & Linville, Chartered would welcome the opportunity to discuss your individual circumstances with you to tailor a plan to meet your needs.

Written by:     Joshua C. Howard

Related Practice Area:            Wills, Trusts and Estate Planning

Significant Changes of the 2017 Tax Reform

Mar 15

Major tax reform legislation was signed into law at the end of 2017 and resulted in sweeping changes to the tax code for both individuals and businesses. The legislation impacts not only federal income taxes but also the estate, gift, and generation-skipping transfer taxes.

Individuals

The tax act implemented seven tax brackets: 10%, 12%, 22%, 24%, 32%, 35%, and 37%. These brackets also have higher income breakpoints, which are intended to lower the tax assessed. The standard deductions were nearly doubled; however, the law eliminated the $4,050 per person personal exemptions. State and local tax deductions are now capped at $10,000. Given these facts, far fewer taxpayers will be itemizing their mortgage interest, state and local taxes, charitable contributions, and other deductions, instead relying on the standard deduction.

Additional changes include (i) the child tax credit being doubled to $2,000 and made partially refundable; (ii) mortgage interest deductions being limited to $750,000 of new debt; and (iii) home equity loans being deductible only if used to build or improve a home.

Estate Planning

The law doubles the estate, gift, and GST tax exclusion amounts to $10 million (to be adjusted for inflation from a base year of 2010). For 2018, the inflation-adjusted amount will be $11.2 million. Effective as of December 31, 2025, the increased exclusion amounts will sunset, returning to a $5 million inflation-adjusted amount.

Businesses

Businesses should be aware of the provisions that have changed and plan now for how they affect the business moving forward. The corporate rate cuts are significant as the 2017 tax act provides for a 21% flat C corporation tax rate. In addition, no special tax rate is applicable to personal service corporations.

Businesses conducted as sole proprietorships, partnerships, or S corporations are subject to a special deduction under the 2017 legislation, generally equal to 20% of the qualified business income received by the individual from a pass-through business. Congress, however, placed income limits and conditions that affect the receipt of the deduction in certain circumstances.

The tax changes under the new law are far reaching and stretch beyond the coverage in this article. Please contact the attorneys at Clark, Mize & Linville, Chartered to schedule a convenient time to discuss your planning if you believe that the tax laws changes might impact you, your family, or your business.

Written by:      Joshua C. Howard

Related Practice Area:

Wills, Trusts and Estate Planning

Probate and Estate Settlement

Business Formation and Governance

Defense Verdict Obtained in Bowel Perforation Case

Mar 11

Dustin J. Denning and Jacob E. Peterson successfully defended our client, an obstetrician/gynecologist (OBGYN), in a medical malpractice jury trial in which the plaintiff alleged that our client was negligent when performing a laparoscopic assisted vaginal hysterectomy (“LAVH”) during which her small bowel was perforated through and through with a 5 mm optical trocar. The perforation occurred during the initial introduction of the optical trocar into the abdomen, but was not observed intraoperatively during the nearly 2-hour surgery. As compared to traditional trocars that involve the “blind” insertion of a Veress needle and bladed trocar, the plaintiff argued that the optical method is arguably a safer method of obtaining access into the abdominal cavity because the surgeon should be able to visualize each layer of tissue as the tip of the trocar is advanced into the abdominal cavity. The plaintiff alleged at trial that our client deviated from the standard of care in failing to recognize the bowel perforation at the time it occurred and failing to recognize it during the surgery prior to closing up plaintiff.

The plaintiff began showing signs consistent with a post-operative ileus the day after surgery (Post-Op Day 1), and her condition continued to worsen until she was returned to the operating room the morning of Post-Op Day 2 for exploratory surgery that revealed the through and through small bowel perforation. The plaintiff developed sepsis and other significant complications following the second surgery but recovered and was discharged from the hospital 35 days later. The plaintiff sought approximately $870,000 at trial.

We defended the case by showing that while our client preferred the optical port because he felt it was a safer alternative to the “blind” approach, the optical port is still not without risks, including injury to the bowel, and that such a complication occurred absent negligence on the part of our client. We demonstrated that the layers of tissue through which the optical trocar passes can be distorted for various reasons, including the patient’s body habitus, and that failing to observe the perforation intraoperatively is not a deviation from the standard of care. Medical literature suggests that perforations go unrecognized at the time of surgery in 30-50% of all cases.

After a four-day jury trial, a Riley County, Kansas, jury agreed and returned a verdict in favor of our client after deliberating about 45 minutes.

Defense Verdict Obtained in Surgery Case

Jan 25

Dustin J. Denning and Jacob E. Peterson successfully defended our client, a general surgeon, in a medical malpractice jury trial in which the plaintiff alleged that the surgeon was negligent when performing a colostomy takedown with primary anastomosis. This procedure is designed to reconnect the rectum to the descending colon so that the patient no longer has a colostomy bag. The plaintiff alleged that the surgeon deviated from the standard of care by stapling the posterior vaginal wall when forming the anastomosis. She alleged that the stapling error caused her to develop rectovaginal fistulas, which is a communication, or opening, between the rectum and vaginal canal, that allowed the passage of stool and gas through the vagina. The plaintiff had to undergo additional surgeries to repair the fistulas. She sought $500,000 at trial.

We defended the case by showing that the patient developed a leak of her anastomosis, which is a known surgical complication that occurs in about 5% of all anastomotic procedures. The leak led to the development of an abscess, which then led to the development of the fistulas, through no fault on the part of the surgeon. We demonstrated to the jury that the surgeon would have had a clear view of the rectal stump that was being stapled to the descending colon using the EEA stapler double-stapling technique. Reinforcing sutures were applied as well, which gave the surgeon a second opportunity to observe the connection and reassure himself that he did not incorporate the posterior vaginal wall when creating the anastomosis.

After a five day jury trial, a Dickinson County, Kansas, jury returned a verdict in favor of our client after deliberating about 1 hour and 15 minutes.