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Year End Decisions - Do You Have The Right Tax Person

11/24/2020

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Michael Lodge, NCPM, CRTP - Mediator and Business Advisor - www.lodge-co.com

Just one more month to go and it will be tax time where you sit down with your tax person and do your tax return.  Now if you are a business you should be sitting down with your tax accountant way before the end of the year.  Have you even made a call to your tax person about your 2020 tax reporting?  You should have.  But that is not what this blog is about, it was just my lecture I give business owners every single year.  What we are going to talk about is if you have the right individual preparing and advising you on taxation.

PROTECTING YOUR TAX DATA:  One of my concerns is tax preparers and are they staying up with the laws that surround them a tax practitioners.  One issue that should be a big concern is if your tax practitioner is protecting your tax data?  There are specific rules for tax preparers on protecting your tax information.  The Internal Revenue Service has specific rules on how your tax data is to be protected to safeguard the issue of fraud, people stealing your information.  Not only are tax practitioners given rules by the IRS but tax preparers are also under the Federal Trade Commission (FTC) because they are under the classification of banks.  Same rules and regulation apply to tax preparers and banks.  Think of all the data that tax preparers collect on you, almost your whole financial life is collected by your tax preparer.  So, the IRS and FTC have said that there is to be a written Client Data Security process to be published for each client to read.  Is your tax practitioner protecting you tax data?  If not - time to find another tax practitioner that does protect your information.  Look on their website where it is supposed to be published and make sure they are following what they have published.  Protect your financial and tax data and make sure your tax practitioner is doing the same.

PUBLISHED FEES:  A good reputable firm will publish their firms tax preparation fees.  This is a transparent provision for you as a client to understand what you will be charged for.  If a firm is unwilling to provide you with an estimate or do not publish their fees, expect your tax preparation fees to be questionable and you should find a firm that will discuss their fees openly and be consistent with their fees.  When I was doing thousands of tax returns, we always published our fees, even to this day I keep that fee structure posted.  Check your state, some states have very strict laws on tax preparers who are licensed under a state tax preparation program.  In the state of California they have CTEC or the California Tax Education Counsel that requires tax preparers to fulfill many requirements in order to prepare taxes in California, in fact the IRS recognizes CTEC and treats them differently when getting approved to prepare taxes under the IRS program.  Make sure that your tax practitioner is in compliance and can prepare tax returns and that he is transparent on the fees for preparing tax returns.

KNOWLEDGE:  Make sure you tax preparer has the experience and knowledge of taxation - Federal and State.  Ask them how many years they have been preparing taxes.  If they are in a state like California you can review their status with CTEC online, if there are any complaints or complaints where his tax preparers bond had been used to settle an issue.  Do you due diligence on the tax preparer, remember he or she has your whole financial life in their hands.  Make sure they know what they are doing.  Also, if you are with a tax preparer are, they keeping you informed on the new tax changes each year.  When you ask them a question, do they have an answer for you - a legal answer.  

A PRO-ACTIVE TAX ACCOUNTANT:  Make sure you have a tax accountant who is calling you from time to time throughout the year or sending you an e-mail to check about your financial or business status.  Remember, any change in your tax status will change your tax return.  Changes like getting married, having a baby, divorce, etc.  They all change your tax return, and you should be aware, through your tax preparer, how it will affect your tax return.  By the way, you as a tax filer should be pro-active and asking questions constantly.

As the laws change for tax preparers, so should the tax preparer be changing how he practices as a tax practitioner.  If you have questions or concerns about your tax preparer start doing due diligence on interviewing another tax preparer.  Remember, do what is right for you.  If they are talking to you about something you feel is questionable, walk away, it is time to find a new tax preparer.  

If you have any questions, just send me a text at 818.252.5682 or send me an email at www.lodge-co.com  Happy tax season my friends.



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Politics in the Workplace

11/17/2020

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Michael Lodge, NCPM, CRTP - Nationally Certified Professional Mediator - www.lodge-co.com - PH 305.824.2963

We have gone through a nasty political season, really for the last four years.  We just went through an election that was probably the most corrupt political scene we have seen from all sides of the political parties.  And maybe some politics that crept into the office and created an even more stressful workplace environment.  The question is how did and are companies managing politics from not disturbing the workplace?  

In March of 2020 I received an email requesting mediation in a company located in Oakland California for employee workplace conflict, all geared to politics.  The story - the manager of the company had one employee that was politically right leaning and expressed his views on politics.  The other two employees, who were left leaning, wanted the other employee fired.  They did not agree with his political views and want him gone.  There were a lot of hostile threats against the one employee, so bad that the manager requested mediation to resolve he political hate in the office.  Is this harassment?

Now in the office and in places like business social media like Linkedin some people want to make their political point.  I think of Linkedin as a place to conduct business and build relationships.  Just like an office.  But people post political pictures and remarks that offend other people and then the words begin to fly in the thread of the post.  I would say that if you are using Linkedin or other apps for work, at your work, you should probably adhere to your company policies and procedures on politics in the office. If you have one.

A recent trend survey on politics in the workplace was put out in July 2020 by ComplyRight.  Let us point out that companies have a responsibility of protecting its employees against discrimination/harassment against any protected class covered by federal, state and local laws, it should not be tolerated.  So, we as business owner have a responsibility in our companies stop employees from harassing or discriminating on the basis of political views. So, what policies do companies have in place?  Let's look at the study in brief.

SURVEY - DOES YOUR COMPANY HAVE WIRTTEN POLICIES ON TIME OFF FOR VOTING OR POLITCAL DISCUSSION AT WORK
49.2% surveyed said they had no written policies on politics or voting.
36.1% surveyed said they have policies for time off for voting
6.7% surveyed said they were not sure if they had a written policy on politics
6.1% surveyed said that yes, they have policies on political discussion at work and time off for voting
1.9% surveyed said yes they have policies for political discussions at work

Then Comply right asked the question -What are your current company policies on political discussions at work?
60% surveyed said we have a written anti-harassment policy that states any discrimination/harassment against any protected class covered by federal, state and local law will not be tolerated.
40%  surveyed said, we prohibit political discussions during working hours
40%  surveyed said, we have a formal complaint procedure for employees to follow when they feel harassed or discriminated against
20%  surveyed said, we have clear guidelines for discussing politics at work

Policies and procedures are so very important to businesses, big or small.  Harassment is a common theme when it comes to employee work related issues.  We now have come to the age of political harassment which creates even more serious situations in companies.  People may think they can say and do whatever they like on social media and they will shout it is freedom of speech.  Many names and accusations are flung in the evilest way towards people on social media.  However, the workplace is a totally different ballgame where harassment is taken very seriously.  

Does your company have a policy on politics in the workplace?  Perhaps, it is time to develop one because politics will get worse and more emotionally charged between people in the United States.  Be proactive before politics becomes a problem of harassment.

If you have workplace conflict, provide mediation to resolve the issue.  Workplace conflict can affect the productivity of your employees, it spreads.  Contact my office for mediation at:  305.824.2963



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So What Happens To Your Taxes and Finances Under A Biden Presidency

11/7/2020

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Michael Lodge, NCPM, CRTP - www.lodge-co.com
Nationally Certified Professional Mediator and Business Advisor

First let me state that as I write this, Biden has not been certified by the States as a winner in those states, and there are ongoing lawsuits on voter fraud in several states.  So at this moment we don't have a clear winner.  But if he does win, what are the tax issues out there that we could be facing.  I like how Money magazine explains their view.

Money -  "As a candidate, President-Elect Biden advocated a different set of tax priorities, promising to raise corporate taxes and income taxes on households making more than $400,000, raising upwards of $2 trillion over the next decade. At the same time, Biden would also temporarily expand the Child Tax Credit to a maximum $3,000 from $2,000 for children under 18, and provide a $600 credit for children under 6. Biden also proposed tweaking the tax treatment of 401(k) retirement accounts, in an effort to make the system’s benefits skew less toward the wealthy.

Given Republicans’ deep aversion to tax hikes, it seems unlikely that key parts of Biden’s plan would advance if Democrats fail to retake the Senate. One important wrinkle: Many provisions of the 2017 Trump tax cuts aren’t permanent, and are set to expire during the upcoming Biden Administration, which could force the parties to negotiate on at least some issues. However, the key provisions affecting individual’s income taxes are not slated to expire until December 2025."

Now there are some if's.  If the Republicans continue to control the Senate, anything regarding taxes or 401K bills has to go through the US Senate.  None of them will get through and may never get to the floor.  Money magazine is correct on the natural ending, but the tax cuts bill, they end in certain years.  So those tax cuts will naturally disappear.  The other thing to remember, Biden talks about taxing the higher end earners at a higher tax rates.  Now what Democrats view a rich person never ends up correctly in the law.  When Obama said that his healthcare and economic plan was only going to touch millionaires and above it hit every American at lower wages.  So be very concerned as to what level a Democrat thinks someone is rich.  It is never what they say it is.  Biden wants to change the 401K tax deduction for the "rich" so they get lower tax benefits, but I will promise you this - the Democratic rich will be you.

Now my suggestion to you is this.  Watch what is going on in Congress and out of the White House.  Challenge your members of Congress and the Senate.  Be aggressive in fighting for your financial and tax issues.  During a four year Biden administration challenge everything that goes through Congress and headed to the President's desk.  Protect your freedoms, and use your speech to make a difference.  Taxes play a big part in our personal lives and it should be part of your financial planning and expressing your voice to protect your finances.  
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Let's see what happens after the court battles are exhausted or won.  Remember - NO ONE HAS WON OFFICIALLY.  Stay calm, respect the results, but keep fighting for your financial lives and freedom.



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There Is A Code Of Ethics For Journalists

11/6/2020

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Michael Lodge, NCPM, CRTP - Nationally Certified Professional Mediator - www.lodge-co.com

As I am writing this, next to my desk is a code of ethics for the accounting profession that is hanging on my wall.  In my website, for mediation, I have posted a code of ethics that mediation professional follows.  We all follow this codes and live by them.  There is also a cod of ethics for journalists.  Do they follow their code, no not really.  However , the Society of Journalist there is a very good code that the media, even bloggers and vloggers should really be following.

The Society of Journalists website has a full copy of their code of ethics.  You can get a PDF copy of it or read it on the website.  

​www.spj.org/ethicscode.aspp  Their code of ethics goes as follows:


Seek Truth and Report It

Ethical journalism should be accurate and fair. Journalists should be honest and courageous in gathering, reporting and interpreting information.

Journalists should:

– Take responsibility for the accuracy of their work. Verify information before releasing it. Use original sources whenever possible. 

– Remember that neither speed nor format excuses inaccuracy. 

– Provide context. Take special care not to misrepresent or oversimplify in promoting, previewing or summarizing a story. 

– Gather, update and correct information throughout the life of a news story. 

– Be cautious when making promises, but keep the promises they make. 

– Identify sources clearly. The public is entitled to as much information as possible to judge the reliability and motivations of sources. 

– Consider sources’ motives before promising anonymity. Reserve anonymity for sources who may face danger, retribution or other harm, and have information that cannot be obtained elsewhere. Explain why anonymity was granted. 

– Diligently seek subjects of news coverage to allow them to respond to criticism or allegations of wrongdoing. 

– Avoid undercover or other surreptitious methods of gathering information unless traditional, open methods will not yield information vital to the public. 

– Be vigilant and courageous about holding those with power accountable. Give voice to the voiceless. 

– Support the open and civil exchange of views, even views they find repugnant. 

– Recognize a special obligation to serve as watchdogs over public affairs and government. Seek to ensure that the public’s business is conducted in the open, and that public records are open to all. 

– Provide access to source material when it is relevant and appropriate. 

– Boldly tell the story of the diversity and magnitude of the human experience. Seek sources whose voices we seldom hear. 

– Avoid stereotyping. Journalists should examine the ways their values and experiences may shape their reporting. 

– Label advocacy and commentary. 

– Never deliberately distort facts or context, including visual information. Clearly label illustrations and re-enactments. 

– Never plagiarize. Always attribute. 


Minimize Harm

Ethical journalism treats sources, subjects, colleagues and members of the public as human beings deserving of respect.

Journalists should:

– Balance the public’s need for information against potential harm or discomfort. Pursuit of the news is not a license for arrogance or undue intrusiveness. 

– Show compassion for those who may be affected by news coverage. Use heightened sensitivity when dealing with juveniles, victims of sex crimes, and sources or subjects who are inexperienced or unable to give consent. Consider cultural differences in approach and treatment. 

– Recognize that legal access to information differs from an ethical justification to publish or broadcast. 

– Realize that private people have a greater right to control information about themselves than public figures and others who seek power, influence or attention. Weigh the consequences of publishing or broadcasting personal information. 

– Avoid pandering to lurid curiosity, even if others do. 

– Balance a suspect’s right to a fair trial with the public’s right to know. Consider the implications of identifying criminal suspects before they face legal charges. 

– Consider the long-term implications of the extended reach and permanence of publication. Provide updated and more complete information as appropriate. 



Act Independently

The highest and primary obligation of ethical journalism is to serve the public.

Journalists should:





– Avoid conflicts of interest, real or perceived. Disclose unavoidable conflicts. 

– Refuse gifts, favors, fees, free travel and special treatment, and avoid political and other outside activities that may compromise integrity or impartiality, or may damage credibility. 

– Be wary of sources offering information for favors or money; do not pay for access to news. Identify content provided by outside sources, whether paid or not. 

– Deny favored treatment to advertisers, donors or any other special interests, and resist internal and external pressure to influence coverage. 

– Distinguish news from advertising and shun hybrids that blur the lines between the two. Prominently label sponsored content. 


Be Accountable and Transparent

Ethical journalism means taking responsibility for one’s work and explaining one’s decisions to the public.

Journalists should:

– Explain ethical choices and processes to audiences. Encourage a civil dialogue with the public about journalistic practices, coverage and news content. 

– Respond quickly to questions about accuracy, clarity and fairness. 

– Acknowledge mistakes and correct them promptly and prominently. Explain corrections and clarifications carefully and clearly. 

– Expose unethical conduct in journalism, including within their organizations. 

– Abide by the same high standards they expect of others. 

Now as you read this code of conduct, think about the journalist, media reporters and commentators, who are reporting the news or discussing the news.  Have they lived up to this code?  My opinion is no, they have not even come close.  And that is the problem because journalism, tabloid new, blogger and vloggers have all become mixed in together.  And no one is following any code of ethics.  Bloggers, who become news commentators, can say and do anything, no one is checking their stories for accuracy, in fact most bloggers can just make stuff up.  And then they go onto mainstream media outlets and do the same, and just because they have a well read blog they are taken as fact when there is no fact whatsoever.  The other problem is that people hired to be journalists then start doing the same thing.  Unidentified Source when no one can examine who that is, as we saw who Anonymous was in the newspaper reports, and then we find out he wasn't even where he said he was.  And if you read the Journalists code you saw how it frowned on Unidentified Sources.

What has to happen?  The media industry has to clean itself up - become ethical.  If not, then the American people have to clean them up by challenging he journalist and the sponsors to support the journalists place they work at.  If we don't start demanding the industry to clean themselves up, stop them from promoting their own political agendas, then the media becomes a political promotor and not a journalist entity.  At this time, journalists and the media are not operating independently, they are scheming with political parties.  Their agenda is to do harm and destroy.  No reporting or code of ethics.

If I as an accountant and a business mediator have to live by two code of ethics in my profession, then the media needs to be held accountable to their code of ethics.  Challenge these journalists, become aggressive in getting to the truth.  The key work is challenge the story and their ethics in gathering the story.  Tabloid news on a daily basis, 24 hours and 7 days a week - isn't happening anymore.  Journalists - act like real journalists, because Americans are going to hold you accountable for every word, commas and period to your stories in print, radio, internet, and television.  We are watching you from this point forward.

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Controlling Your Contracts

10/29/2020

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Michael Lodge, NCPM, CRTP - Certified Mediator - www.lodge-co.com

When I first started out in the business world I worked for a company that built co-generation power plants all over the world.  Big combustible bed boilers that created several types of revenue streams and were big projects to build.  These were big $300 to $500 million dollar projects.  My role was as the Project Administrator, to go through the contracts, organize the contracts, and put together the building budgets for the projects.  Then from their I went to work for a investment banking firm that invested and owned power facilities throughout the United States.  Two big jobs that gave me the best lesson ever - know your contracts.

Now on big building projects you have hundreds of contracts, you read them through, because they are going to be a part of your life through a particular part of the building stage.  If you do not know your contracts then you will not know how to organize your vendors around those contracts.  Not knowing your contracts will cost you a lot of money if you do not follow the contract and question certain parts of the contracts.  In my role I had to know both, the contracts and the finance administration side of the contracts.  A contract has a land of its own, it can cover risk, insurance, taxation, due dates, penalties, changes, etc.  I remember that as soon as we had a build contract this big set of binders of every set of construction contracts were put on my desk, and page by page I would go through them and onto a spreadsheet the information would go.

On the operational side of a contract there are also a lot of contractual data you have to know.  In my case they were energy projects.  This meant that I had to know production schedules, on-peak hours to super-on-peak hours, inventory of natural gas in the pipeline, what partners in the contract were going to get paid, and the list goes on.  The first job I had was to make sure the contracts and the data were organized, the second job the same.  The point is - know your contracts.

If you don't have experience in the reading of contracts, get some help.  There are schools that teach this information. Take some project management classes. The better you know your contracts the better you will make money.  Be smart, be proactive, know your contracts.

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Divorce, Separation and Your Taxes

10/12/2020

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Michael Lodge, NCPM, CRTP - Nationally Certified Professional Mediator - www.lodge-co.com

One of the most important aspects, often forgotten about, is the tax consequences as you go through separation and then divorce.  I always tell those who are going through separation and divorce to consult your tax practitioners.  Go to one that really understand the tax rules of separation and divorce.  The IRS has guidelines to follow.  Do your own due diligence in knowing your financial and tax situation.  You need to understand the separation agreement and all the way through to the final divorce decree, it will affect your tax situation.

Taxpayers should be aware of tax law changes related to alimony and separation payments. These payments are made after a divorce or separation. The Tax Cuts and Jobs Act changed the rules around them, which will affect certain taxpayers when they file their 2019 tax returns next year.


Here are some facts that will help people understand these changes and who they will impact:
  • The law relates to payments under a divorce or separation agreement. This includes:

    • Divorce decrees.
    • Separate maintenance decrees.
    • Written separation agreements.

  • In general, the taxpayer who makes payments to a spouse or former spouse can deduct it on their tax return. The taxpayer who receives the payments is required to include it in their income.

  • Beginning January 1, 2019, alimony or separate maintenance payments are not deductible from the income of the payer spouse, or includable in the income of the receiving spouse, if made under a divorce or separation agreement executed after December 31, 2018.

  • If an agreement was executed on or before December 31, 2018 and then modified after that date, the new law also applies. The new law applies if the modification does these two things:

    • It changes the terms of the alimony or separate maintenance payments.
    • It specifically says that alimony or separate maintenance payments are not deductible by the payer spouse or includable in the income of the receiving spouse.

  • Agreements executed on or before December 31, 2018 follow the previous rules. If an agreement was modified after that date, the agreement still follows the previous law as long as the modifications don’t do what’s described above.
IRS PUBLICATIONS - More Information:
  • Publication 504, Divorced or Separated Individuals
  • Publication 5307, Tax Reform: Basics for Individuals and Families


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The Parenting Agreement

10/2/2020

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Michael Lodge, NCPM, CRTP - Nationally Certified Professional Mediator - www.lodge-co.com

Over the last three weeks I have been contacted by new clients wanting to negotiate a separation agreement or re-negotiate the agreement when it pertains to child care and parenting agreements.  And some did not understand what they were signing and want help understanding what they signed and maybe change it slightly.  Perhaps, people sat around not doing anything during Covid and came up with new wants because they had time to think about it.  Maybe not so good.

​The other issue is that some have decided that they want out of the marriage.  So separation and parenting agreements are needed, to set up some rules during the separation.  Some parents come into the mediation session with me steaming mad and other come in with a real desire to set up some rules for the parents to go by during their separation.  I like those kinds of parents.

You would be surprised of the role of the Mediator in a parenting planning, the mediator becomes the educator.  The mediator focuses on the needs of both the parents and the children.  One part of this is to educate the clients about their new parent roles.  In my sessions, I share my expertise with the clients, acting sometimes as a mediator and sometimes as an educator, but always in a way that helps the clients stay in charge of their decisions.

As a mediator I can be helpful as an educator to the parents about the future developmental needs of their children.  I will share relevant information in general terms but no in a therapeutic way.  In fact I have told parents I have not their therapist.  Children at each age group have different responses to separation and divorce and different needs from their parents.  It is important that a mediator knows this information so that the education process of the mediation means something to the parent(s).

Mediators can make a positive impact in working through the separation, parenting agreements, and through to the divorce.  If everyone understands the rules and lives by them, the process is no longer just a process it is a meaningful way to help the children cope with the whole experience.  It helps the parents to.  Sometimes, even after the divorce, the parenting agreements needs to be revisited.    

A great quote that I have found is, "Husbands and wives divorce but family's never do".  

If you are going through a separation and need to sit with a mediator to help you, contact my office at: 305.824.2963

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What Are Your Responsibilities As An Executor Of An Estate?

9/18/2020

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Michael Lodge, NCPM, CRTP - Nationally Certified Professional Mediator - www.lodge-co.com - Ph:  305.824.2963

Over the last three years I have been working as the executor of my Mom's estate and I also do mediation on estates with families.  If you are the executor, you have some responsibilities.  Now this may vary from state to state, but is pretty standard in the United States.  This is not a legal opinion or advice, it is just some of the rules that you have as an executor of an estate.  If you are having issues on the division of assets within the family, call in a mediator that can help you through the process.  Please consult with the family attorney on understanding the language of the will.

The executor or personal representative of a will is responsible for wrapping up the estate's affairs according to the will's instructions. After someone dies, the executor becomes responsible for the estate, and usually must report to the probate court. You can expect the executor to file the will with the court, manage the estate's assets, pay the estate's bills and distribute the remaining estate assets to the beneficiaries.

Filing the Will


The executor's first step is usually to file a copy of the will with the probate court. This action opens the probate process. Along with the will, the executor may file a petition for letters testamentary, which is an official court document that gives the executor the power to speak directly to the estate's creditors, handle the estate's bank accounts and take similar actions necessary to probate the estate, according to the American Bar Association.


Inventory the Estate
In order to fulfill his duties to pay creditors and distribute the estate, the executor is required to inventory the estate to determine the amount of assets it has, according to FindLaw. In most states, the executor is required to file a copy of the inventory with the probate court and to give copies of the inventory to the beneficiaries. The executor may hire professionals like an accountant, attorney or appraiser to help him determine the value of the estate's assets, if necessary, and may pay for the professionals' help with the estate's assets.

Pay the Estate's Debts

The executor is also responsible for paying any outstanding bills or debts the estate has. In order to do this, the executor is expected to contact any known creditors and also to notify any unknown creditors by placing an ad in the newspaper or by whichever other means the state's probate laws permit, according to FindLaw. State probate laws typically give creditors a certain time limit in which to present their bills to the estate. The executor must wait out this time limit to ensure all bills have reached the estate before proceeding to distribute the estate's assets. The executor must also settle the estate's final tax matters, and may hire an accountant at the estate's expense to do so.


Distribute the Estate's Assets
Once all the bills are paid, the executor must distribute the estate's assets according to the rules laid out in the will. Distributing assets may include giving particular items, like furniture and jewelry, to specific people named in the will. It may also involve giving certain amounts in cash to certain people or charities named in the will. In order to distribute the estate's assets according to the will's requirements, the executor may liquidate certain assets, like stock, if necessary, according to FindLaw.

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FINAL NOTE:  The executor or personal representative of a will is responsible for wrapping up the estate's affairs according to the will's instructions. After someone dies, the executor becomes responsible for the estate, and usually must report to the probate court. You can expect the executor to file the will with the court, manage the estate's assets, pay the estate's bills and distribute the remaining estate assets to the beneficiaries.


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How The Pandemic Has Increased Mediation

9/17/2020

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Michael Lodge, NCPM, CRTP - Nationally Certified Professional Mediator - www.lodge-co.com - Ph. 350.824.2963

During the lock down of Covid, my office was really silent for about two months.  Then, all of a sudden people decided to mediate and they found out they could do it virtually and got results.  This article is about how the Pandemic has created more mediation cases to be heard.  This is a good read on mediation and arbitration.

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The COVID-19 pandemic wiped out our workouts. It disrupted our dinners. It squashed our social life. Now, it’s likely to trim the number of trials our legal system sees. To further prevent the spread of COVID-19, Maricopa County Superior Court issued an order that steers certain litigants away from jury trials in favor of mediation and arbitration, which is a fairly big deal if you’re facing a business dispute.

“It is not so much the kind of jury trial, but rather the posture of the case that will drive the diversions to mediation and arbitration,” says Gary Smith, manager at Guidant Law Firm. “Cases will go through a triage of sorts. Mediation will be encouraged for cases more susceptible to settle. Arbitration will be encouraged for smaller-dollar, simpler-issue or lower-risk matters. No one will be forced to give up a jury trial if they prefer it and are otherwise entitled.”  According to legal experts, there is one major advantage to taking your business dispute to mediation or arbitration instead of a jury trial.“In one word, speed,” says Wendi Sorensen, shareholder at Burch & Cracchiolo. “Opting for mediation or arbitration instead of a jury trial will likely bring your matter to a close much sooner than awaiting trial.”  Experts say the coronavirus has severely affected our court system, due largely to the need to socially distance, and the effect that has on the ability to appear in person and to impanel a jury.

“Although some courts have tried options involving Zoom–type trials, the results have been mixed, and parties involved in litigation are hesitating to stipulate to this option,” Sorensen says. “Once we are able to safely resume in-person appearances, criminal matters will take priority due to the constitutional right to a speedy trial. Therefore, we expect it will be at least a year before trials are able to resume.”

What’s involved in mediation and arbitration?
When it comes to a business dispute, Smith says mediation is the parties’ opportunity to write their own outcome.  “It is a negotiated settlement facilitated by a mediator,” he says. “The mediator makes no decisions or rulings, and is there strictly to help the parties communicate and help in the architecture of settlement.”

According to Smith, mediation succeeds when these stars align:
• The parties know what they need — not what they want
• Are ready to be done with the dispute
• Can accept not having all of their questions answered
• Are willing to compromise
• Logic overrules emotion

“That does not mean mediation is easy or pleasant,” Smith says. “It is a lot of work and long days.”  Arbitration, by contrast, substitutes a traditional judge with a privately hired arbitrator.  “It often replaces court rules for other rules, and offers flexibility as to time and place for the arbitration hearing,” Smith says. “In many ways, arbitration mirrors court. However, the arbitrator can be selected using criteria such as subject matter knowledge.”

Because you are buying their time, an arbitrator will have as much time for your case as you want, which is in stark contrast with Superior Court, where judges carry hundreds of cases.  “Arbitration is the antithesis of mediation,” Smith says. “It is a ‘day in court.’ It requires fastidious preparation and deep focus on discrete issues. Arbitration’s strong suits are ‘faster and final,’ as there is effectively no appeal from arbitration. Parties have to show up like it’s the Super Bowl.”

Pros and cons of mediation and arbitrationAs with all forms of dispute resolution, Christopher Zarda, director of complex litigation at MacQueen& Gottlieb, says there are definite pros and cons to mediation and arbitration.  “Mediation, a non-binding dispute resolution procedure, allows the parties to separately present their subjective case to an independent mediator,” Zarda says. “Picking the right mediator with the right experience allows for a full and frank discussion and exchange of information couriered between the parties. This also allows an experienced intermediary to provide frank commentary on the relative strengths and weaknesses of asserted claims and defenses, with the mediator advocating not for one party over the other, but rather for the successful settlement of the claims.”

The downside to mediation, according to Zarda, is its non-binding nature, meaning that no matter how strong your position may be, there is no guarantee the matter will be resolved as the parties cannot be compelled to settle.  “Arbitration can be quicker than waiting for a dispute to wind its way through the court process and the court’s burdened calendars,” says Michael R. Ross, shareholder at Gallagher & Kennedy. “Arbitration typically involves less discovery — the acquisition of information, documents, and pretrial testimony — than the court system, which generally means that the parties save money and time.  Arbitration hearings are typically less formal and rigid than trial, although arbitration hearings in complex matters can often feel just like a trial without the courtroom and the judicial robes.”  The downside of arbitration is that it comes with a price.  “Private arbitrators, typically former judges or active attorneys, charge an hourly fee for their services, and there are also significant administrative fees charged by neutral services that oversee the appointment of arbitrators and the process,” Ross says.

Another frequent complaint from participants in arbitration and their counsel is that an outcome at arbitration is generally not subject to appeal.  “Parties that are not satisfied with the outcome have to live with it — there is not another bite at the proverbial apple except under vary narrow circumstances,” Ross says. “Of course, the flip side to that concern is that an arbitration provides finality and avoids what some view as a drawn-out appellate process.”

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The Pet Mediator

9/16/2020

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Michael Lodge, NCPM, CRTP - Nationally Certified Professional Mediator - www.lodge-co.com - Ph:  305-824-2963

In mediation, you never quite know what type of mediation will land on your desk and into your schedule.  In the past two weeks I have had to only mediate two cases that involved a dog.  And then one landed on my desk yesterday for a cat.  Not a full divorce mediation, just on who is going to get the family pet.  This is a very emotional subject in divorce where there are pets involved.  So since so pet meditations have landed on my desk,s I have now named myself the Pet Mediator.  No pet whispering in mediation.

So Jon and Janet (names made up) have a beautiful pet bull dog that they love greatly.  The wife contacted me and said in her email that they had come to an agreement on all of the finances and assets from the marriage. The only thing remaining was who would get the dog.  I provide my clients with a 30 minute consultation meeting on the process of mediation.  They didn't want to make the decision, they wanted me the Mediator to make the decision.  So I told them to agree to mediate and submit their intake documents to me to review, and we set a date for mediation.  Two days prior to the mediation in came the in-take documents with their pictures and stories as to why they should get the dog.

We when first had our 30 minute consult the husband had failed to tell anyone that the dog was a support animal to his son (from another marriage) that was going through a very big healthcare crisis.  The dog was his support.  The wife did not know that his son was going through this crisis and that the dog had been issues a special care document to allow the son to live independently and to fly on plains with the dog.  The dog was his support through his healthcare battle.  So the story now changes that there is a son very dependent on the dog to help him through this crisis.

It was time to meet with both the husband and wife in mediation.  I gave each person a 15 minute time period to present their argument as to why they should have the dog.  Both presenting very good cases, both who really loved this dog.  I knew this from the first consult with them that both persons love this pet, it was a family member that was obtained during the marriage.  I could see in their faces that this dog as creating a big stress in resolving the end of this marriage.  I presented various visitation plans for the dog.  But the case always came back to the need of the child for this dog.  It was pointed out that the son was very upset about losing this pet and it was creating a healthcare stress on him.  It was important for me to understand the complexities of this health crisis of the son and decided I would talk to his doctor to understand the issues.  Both husband and wife agreed to that it would be good to talk to the doctor.  

Everything worked out in the end.  The wife thought about it over the evening and sent me an email in the morning explaing she thought it would be best for the husband to keep the dog and that she would move on.  A MOA was written, both signed, and the mediation was complete.  Pets are a part of the family, and it is hard for couples to make that decision on who will get custody of that loved pet.  I feel for them since I have three dogs and they are part of my home.  However, these types of disputes can be worked through, providing the couple with a thought process of each others circumstances and needs.  So I am not only a dog walker in real life with my own dogs and not the Pet Mediator.

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    Michael Lodge is a Nationally Certified Professional Mediator specializing in business disputes, as well as family conflicts.  He has written three books and hosts an international podcast on IHeartRadio and other podcast media stations.

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