Frequently Asked Questions

A succession is simply the process of transferring assets from someone who passed away to their legal heirs. In some other states, this may happen automatically upon the person passing, however in Louisiana a legal proceeding must be conducted to document the transfer.

There are basically two different procedures for handling a succession in LA. The first is “simple possession” and the second is “administration.” The selection of which procedure to use is greatly dependent upon what issues need to be resolved in the estate and most importantly, whether the heirs of the estate are cooperative. As a rule of thumb, the more cooperation there is amongst the heirs, the quicker the succession can be completed and the lower the court costs and attorneys fees will be for handling the matter.

Where there is full cooperation amongst the heirs, a simple possession succession is typically recommended. Under a simple possession succession, as its name implies, the heirs are simply put into possession of the assets belonging to the decedent. Pleadings are drafted and filed with the court that set forth that the decedent passed away, list the assets of the decedent, and name the heirs who will inherit the assets. The end result is a Judgement of Possession issued by the court declaring the heirs to be the legal owners of the assets of the estate. That Judgement of Possession can then be brought to financial institutions to close and transfer bank accounts, brought to the DMV to transfer title to vehicles, and also recorded in the land records to transfer ownership of any real estate owned by the decedent. If any assets need to be sold, the heirs can handle that post-succession in their role as co-owners of the asset. Likewise, any obligation or liabilities of the estate can be paid by the heirs out of the common assets received through the succession after the succession is complete. Handling these issues after the succession is legally complete greatly lowers the legal cost and court cost for handling the succession. As such, it is the preferable procedure used when possible and there is cooperation amongst the heirs.

Feuding Heirs Complicate Successions

If there is not cooperation amongst the heirs or there are disputed issues that need to be resolved, placing the succession under administration is typically recommended. When a succession is placed under administration, a person, typically a family member, is appointed as a succession representative “either an administrator or executor” who is responsible for handling the assets of the estate. Appointment is accomplished by filing a pleading with the court asking for such appointment. If more than one person is interested in being appointed, the court will decide who is best qualified, taking into account their relation to the decedent. Unless it is waived by the heirs or in last will and testament, the person designated as the succession representative typically has to post a bond to serve as succession representative. The bond provides a source of recovery in the event the succession representative mishandles the estate causing damage to the heirs.

If the last will and testament provides for or the heirs agree to it, the succession representative can be appointed as an “independent” administrator of the estate. When a succession representative is appointed on an “independent” basis, he or she is not required to obtain court authority and approval before taking actions as administrator. For example, if the succession administrator wanted to sell real estate belonging to the estate, normally pleadings would have to be filed with the court approving the sale and seeking permission to move forward. As part of that procedure, succession administrator also has to publish notice of the requested action in the newspaper and there are legal time delays that must be waited out before approval can be obtained from the court. These extra steps are time-consuming and increase the cost of the administration of the estate. However, if the succession administrator is appointed as an “independent administrator,” these additional steps are not necessary and the administrator can move directly forward without court approval.

Although independent administration saves time and money in the administration of the estate, it does eliminate checks and balances system and court oversight that regular administration provides. In situations where the heirs do not fully trust the succession administrator, maintaining this oversight and not electing independent administration is typically recommended.

Whether simple possession or administration is being used, the main goal of any succession is to transfer ownership of the estate to the heirs and close the estate. Sometimes this means liquidating all of the assets in the estate and making a cash distribution to the heirs. Other times, assets are simply retitled in the name of the heirs and they become co-owners of those assets upon the closure of the estate and completion of the succession. Every estate is a unique combination of assets and the people and personalities involved. It is the combination of these factors that determine the best procedure to use to handle the estate.

Our lawyers also help clients achieve various estate planning goals using asset protection strategies, wills, advance directives, powers of attorney, revocable living trusts, irrevocable trusts, and other legal tools.

A Louisiana Supreme Court decision, Ogea vs. Travis Merritt, provides an extensive analysis of Louisiana’s limited liability company law as it relates to an LLC member’s comprehensive liability to third parties.

In that case, a new homeowner sued her builder, a Louisiana LLC, and its sole member personally, for alleged defective foundation work. After trial, judgment was rendered against the LLC and its sole member, Mr. Merritt, finding that Mr. Merritt personally performed a portion of the foundation work and failed to properly supervise the subcontractor who actually poured the concrete slab. The Court of Appeal affirmed but reduced the total award.

The Louisiana Supreme Court reversed the judgment as it applied to Mr. Merritt personally, and affirmed the judgment as it pertained to the LLC entity.

The Court emphasized the legal status of a Louisiana LLC as a distinct, separate juridical person. The Court then closely scrutinized Louisiana’s limited liability company statute for exceptions to the general rule that a limited liability company member is not generally liable for company obligations. The Court found the exceptions of (1) fraud; (2) breach of professional duty; and (3) other negligent or wrongful act; and then determined that these exceptions were exclusive, rather than illustrative.

Applying the facts to the statute, the Supreme Court did not find that Mr. Merritt individually committed fraud, any breach of professional duty, or any negligent or wrongful act, under the facts of the case. And, even though Mr. Merritt was personally involved in the foundation construction process, the Court did not find that those actions constituted individual negligence or breach of a professional duty.

The Ogea decision establishes that a Louisiana limited liability company member is shielded from LLC obligations unless fraud, breach of professional duty, or negligence or other wrongful conduct is proven against the individual member associated with a particular transaction. No other exceptions to the general rule are to be applied.

Contact our office in New Orleans to discuss your claim with a highly-rated and experienced lawyer.You can reach Scott Vicknair, LLC by phone at (504) 500-1111 or send us a message using our online form to schedule your initial consultation.

As more New Orleans and Louisiana residents use Uber and Lyft for transportation, Louisiana residents should consider who is liable and what insurance protections are in place for an Uber or Lyft ride. This blog focuses on what insurance is available if you are a passenger in an Uber or Lyft to cover your injuries and property damages. Whether the driver of the other vehicle in the crash or the driver of the Uber or Lyft is at fault, Louisiana law has mandatory insurance coverage provisions which apply to Uber and Lyft vehicles.

Louisana Law SB 172

The Louisiana Legislature passed SB 172 in 2015. SB 172 was enacted to require mandatory insurance coverage limits on all Uber and Lyft vehicles. The insurance coverages vary depending upon the stage of the ride. Obviously, as a passenger in an Uber or Lyft, the only coverages which would concern you would be those while you are actually riding in the Uber or Lyft. This period is called the “trip acceptance period.”

If the driver of the other vehicle is at fault, their insurance on their vehicle would be primarily responsible to compensate you for personal injuries and property damage. However, you have secondary protections during the trip acceptance period which are found in the required uninsured/underinsured insurance coverages Uber and Lyft must provide under Louisiana law.

Million-Dollar Insurance Requirement

During the trip acceptance period, Uber and Lyft are further required to provide $1 million in uninsured/underinsured motorist coverage. This means that irrespective of the liability coverage of the other “at fault” vehicle, you would have an additional $1 million in insurance protecting you in uninsured/underinsured motorist coverage from the Uber or Lyft’s insurance.

If the driver of the Uber or Lyft is at fault, you would have the same insurance protections against the liability coverage of the Uber or Lyft as found in the uninsured/underinsured motorist coverage. Uber and Lyft are required to provide the same $1 million insurance liability coverage during the trip acceptance period as well. This $1 million in liability coverage on the Uber or Lyft would be primary to your personal uninsured/underinsured insurance policy to protect you for personal injuries and property damage.

This requirement does not have to be borne by the driver themselves. The driver’s vehicle insurance coverage may exclude periods when that driver is working for Uber and Lyft. It must be covered by Uber and Lyft, irrespective of the coverage or insurance that the individual driver has in place.

We all regularly use Uber or Lyft to provide safe and reliable transportation in our daily lives. The following post focuses on the steps you should take if you are in a vehicle crash with an Uber or Lyft as a passenger, or if an Uber or Lyft crashes into your vehicle.

Call the Police to Make a Report

Police reports are one of the most useful documents in a motor vehicle accident case. They contain statements from parties and possible witness information, all the information for both drivers, and a diagram of the accident. Police reports are also seen as objective sources. Often when the other driver doesn’t cooperate with their insurance or tells their insurance the accident happened in a different way, this police report is the only way to confirm how the accident happened. While police response times differ from city to city, it is always worth the time to wait for them to come make a report. It doesn’t matter if the Uber or Lyft driver is in a hurry, needs to go to the next ride/passenger, or requests you just exchange information, insist on the Uber or Lyft driver obtaining a police report related to the collision.

Get the Other Driver’s Information

If you are a passenger in the Uber or Lyft, make sure you get the other driver’s information, such as a picture of their driver’s license and proof of insurance. If they don’t have a license or proof of insurance, or will not show them to you, take a picture of their license plate. Even if the other driver refuses to show you their license or proof of insurance, their license plate can be used to search for insurance information.

Take Pictures of Both Vehicles

While you are taking photographs of the other driver’s license plate, take pictures of the physical damage to their car as well. Pictures of physical damage can be used to help reconstruct an accident later on and are always useful to illustrate the severity of the collision. Property damage claims can often be handled relatively quickly, and you may not get another chance to take pictures of their vehicle or your own before the damage is repaired.

Consider Obtaining Legal Counsel Before Talking to Their Insurance Company

If you’ve done all of the above, you should have all the information you need to call the insurance company covering the Uber or Lyft vehicle and/or the other driver, and then start your claim. However, before you speak to an insurance adjuster, consider calling a legal professional. For starters, whether the insurance company is covering the Uber or Lyft vehicle or another driver, they are going to record your call. It can be used against you later in the claims process and/or in litigation. Insurance companies don’t make a profit by paying out the full value on injury claims. Their adjuster is going to try and do whatever they can to settle your claim for as little money as possible. They may try to ask you leading questions that can be used against you later on, which will be recorded.

It’s not unreasonable to expect that the products you buy for your family should be completely safe. Unfortunately, that’s not always the case, especially with toys for small children. Despite safety protocols and recall notices, hundreds of thousands of kids are still hurt by various toys every year. Whether the defective toy was an action figure, a hoverboard, stroller attachment, or something else entirely, you need to speak with an attorney if your child sustained an injury.

Potential Dangerous Toy Hazards

Although organizations like the Consumer Product Safety Commission monitor for potential dangers, toys still make it onto shelves that can hurt your loved ones. They may include hazardous materials like lead paint or sewing needles, or feature improperly manufactured parts leading to product instability.

In some cases, there may also be a lack of proper warnings on the packaging or in the instructions about the potential dangers of the toy, especially for younger children. Depending on the specific problem, any toy could involve dangers such as:

• Choking – Small detachable parts may be swallowed and caught in the airway.
• Flammable or acidic – Batteries can leak or explode, while toys with electronics or motors can catch fire.
• Projectiles – When fired, these objects can injure eyes or become lodged in the ears or throat.
• Strangulation – Long strings, cords, or rope can wrap around a child’s throat.
• Toxic – Certain chemicals and parts can be extremely dangerous if ingested.

The repercussions of any of these defective toy injuries can range from cuts and bruises to blindness, disfiguration, hearing loss, permanent disability, and even wrongful death. Your family may end up dealing with devastating medical bills while you have a loss of income, needing to take time off work to care for your child. That’s where an attorney comes into the situation to help you recover compensation from the at-fault party.

Why You Need an Attorney If Your Child Was Hurt by a Toy

Before the first meeting with a legal professional, it’s important for parents of injured children to understand when you can bring a lawsuit against a manufacturer. A child being harmed during the normal course of play doesn’t necessarily mean you have a case. For any chance at recovering damages, you need to work with an attorney to gather and produce evidence that:

• A dangerous and unexpected defect caused the injury
• The product was being used as intended
• The toy was in its original condition and not modified in some way by a parent or child

Depending on how the injury occurred, you may end up suing for liability over a defect that didn’t occur on purpose, or for direct negligence if you can provide evidence the manufacturer was aware of a problem but ignored the potential for harm. In other cases, the lawsuit may involve a breach of warranty instead. No matter what type of injury occurred or how the toy was defective, it is critical to talk to a lawyer early, as there is a statute of limitations on bringing lawsuits for child injuries.

The earlier you contact an attorney, the more time they have to thoroughly investigate the product chain. Whichever specific part caused your child’s injury may have a different manufacturer than the rest of the toy. The negligent party in the product chain could involve multiple manufacturers in different countries, quality control staff, engineers or other experts who advised the manufacturers, or even the retailer that sold the toy.

Discussing your child’s injury with an experienced product liability attorney is crucial to finding all possible sources of compensation and understanding which legal route to take for the best shot at a positive outcome.

Protect Your Family’s Legal Rights After a Dangerous Toy Injury

If your child was hurt playing with a toy that should have been safe, get in touch with the Scott Vicknair law firm as soon as possible. Our trial-savvy team of experienced product liability attorneys wants to learn about your case and help you decide how to move forward.

It isn’t unreasonable to expect your brand-new home to be built competently and remain free of major problems after moving in with your family. The New Home Warranty Act aims to ensure those expectations are met when buying freshly constructed property. Under this Louisiana statute, builders are required to fix defects in the home or open themselves up to litigation, but there is crucially a limited timeframe to act.

How the Louisiana New Home Warranty Act Protects You

The warranty required by law on new homes is designed to protect any owners during the five-year period after construction is complete and the home is first sold. That means it covers you even if you aren’t the original owner. Essentially, the construction company is required to fix specific problems that could damage load-bearing portions of the home if those issues are caused by defective materials or improper building practices.

If the builder doesn’t act in a timely manner to fix the damage, you can file a lawsuit for the costs of repairs, as well as attorney and court fees. The New Home Warranty Act gives you five years to seek repairs on major structural defects. When the five-year period is up, you are on the hook for the cost of any maintenance from that point forward.

Specific aspects of the construction have a more limited timeframe, however. While significant structural problems are given a full five years, you only have two years to request fixes for:

• Electrical
• HVAC
• Plumbing

Critically, a new home warranty only makes the builder liable for one year for cosmetic issues such as cracked paint, plaster, or siding. If you experience those issues you need to have them inspected and reported to the builder quickly, or they won’t be required to take care of the problem.

Limits to Coverage Under the New Home Warranty Act

While the warranty can be extremely helpful to keeping your house livable, it’s important to know what specifically isn’t covered under the New Home Warranty Act, such as:

• Damage caused by someone besides the construction company
• Driveways
• Fencing
• Insect infestations or mold growth
• Landscaping
• Normal wear and tear expected for a new home
• Property damage to anything not included in the original purchase
• Walkways

So long as your problem is covered, you can contact the home builder to let them know about the problem and provide an opportunity to fix the issue. In cases where the builder refuses, the law allows you to bring legal action to recover costs for the damage. There are some potential stumbling blocks in the process to be aware of, however.

Notification has to be provided within one year of first noticing the problem and must be given in writing to leave a paper trail that can be verified. You need to provide a certified mail account of the problem to the construction company quickly. If you don’t offer written notification immediately, a court may decide the extent of the repairs would have been less if the builder had been made aware of the problem earlier.

It’s also important not to undertake the needed repairs yourself either, as this can void the warranty and leave you with no protection. In cases of catastrophic defects causing major damage across multiple areas of the home, the amount you can recover can also be capped to the original purchase price of the property.

If your home was damaged by defective parts or a negligent building crew, the bottom line is that you need to speak with an experienced home warranty lawyer to discuss the specifics of your situation and find out if you have a case.

Get Help From a Skilled Attorney Sooner Than Later

Take action quickly to avoid running into problems with time limits that can prevent you from bringing litigation against your home’s builder. Don’t let a construction company get off the hook for leaving you with a house featuring major structural defects. Talk to the Scott Vicknair law firm as soon as possible to get the process started.

When performing a spin-off, a company shifts products or services, current team members, and other assets over to a brand-new entity. There are plenty of reasons to consider a spin-off, along with some potential pitfalls, that should be discussed with a skilled team of lawyers who can guide you through the process.

Why to Spin-Off a New Subsidiary From the Parent Company

Separating one area of a company from the whole can be an attractive proposition for many reasons. For instance, the new entity can acquire debt and attract new investors, which could be less of an option for the parent company. Some of the other top reasons to form a spin-off include:

• Alternative to a sell off – In some cases, a company may want to be rid of a specific division but can’t find a buyer. In these situations, spinning off offers a secondary solution.
• Managerial concerns – The goals of an existing division may start to diverge from the parent company and require different strategies to be successful. Spinning off a separate entity can solve these problems with management and allow the spun-off division to go in its own direction.
• Market factors – Sometimes value for shareholders remains static with a reliable company. Creating a separate entity with its own stock is a way to increase value. The spin-off trades separately, and shares of the new company are distributed to existing shareholders. Sometimes a company may decide to forgo a spin-off and perform a split-off instead. In a split-off, existing shareholders are required to surrender their current stock to exchange for shares of the new subsidiary company.
• Regulatory hindrances – Depending on the type of business being run, oppressive legal regulations that interfere with operations or reduce earning potential may not apply to the spun-off entity.
• Profitability – A new entity could potentially produce more profit and create more shareholder value as its own separate company than as a division of the existing parent company.
• Spreading risk – If one particular department has the potential to cause losses for the company as a whole, it may make more sense to spin it off as a separate entity.
• Strategic problems – Due to changes in the local and national economy, basic structural changes to the company may be needed to survive and continue to thrive. A spin-off can help make those structural shifts in specific divisions.
• Tax issues – In some circumstances, there is no tax incentive to keep a division within the parent company. It may make more sense from a tax standpoint to spin-off into a separate entity.

Issues to Consider Before Spinning Off a New Company

Spinning off a new company is an involved process that requires making a public announcement, contacting the IRS about the spin-off’s taxability, filing with the Securities Exchange Commision, and in some cases, even acquiring shareholder approval. An experienced legal team with a track record of success in business litigation and helping startups is critical in navigating that process.

An attorney can also carefully go over potential complications you may not have considered ahead of time that will require legal assistance. For instance, existing contracts for the parent company will likely need to be updated with vendors or lending institutions to include the spin-off as well.

Although it can be extremely beneficial under specific circumstances, there are situations when forming a spin-off can actually be detrimental. Existing employees may be opposed to starting over in a new work environment, while two companies mean dealing with twice the costs in terms of:

• Building upkeep
• Insurance policies
• Marketing
• Property taxes
• Rent

Talk to an Attorney If You Are Considering a Spin-Off

The bottom line is that you need to ensure you have considered all the pros and cons before proceeding with a spin-off to mitigate any potential negative impacts and maximize your ability to earn profits. Your company’s situation is unique and should be fully examined with an attorney’s help before making any decisions. Call the Scott Vicknair law firm today to set up a consultation.

So, you’ve got a fabulous idea to meet an unfilled need, create a new customer base, and turn a tidy profit. Now it’s time to take that idea and turn it into a reality, which means formally creating your company under a specific legal structure. One of the earliest and most important decisions you will make is choosing exactly what type of business entity is most appropriate to launch your project.

Choosing the Best Structure for Your Business

To put yourself on the path towards success and protect yourself in the event the business fails, it is crucial to pick the right kind of structure. This choice has significantly bigger repercussions than just the level of paperwork involved. The structure of your business has a direct impact on your:

• Available methods for raising capital
• Personal liability if your company is ever sued or held liable for damages
• Tax concerns
• Methods for exiting the business or passing it on to family members

While the type of entity you create has a drastic impact on future operations, it’s important to understand that there isn’t one single “best” option. Which specific type of structure you should pick hinges on a variety of factors unique to your business plan. Here’s what you need to know about the differences between each type of structure before making this critical decision:

• Sole Proprietorship – The simplest type of entity to set up provides the most personal control over your business, but also saddles you with the most potential liability. Your business and personal assets are one and the same with a proprietorship, meaning a lawsuit can devastate you financially. It may also be more difficult to secure startup funds from lending institutions, and you can’t sell stock to raise capital. A sole proprietorship can be worthwhile if your business has little risk and a low chance of experiencing legal hurdles, however. In some cases, there may also be benefits to your taxes since you can take a variety of business deductions at tax time.
• Partnership – This is a relatively simple way for two or more people to form a business together, but it is critical to ensure you are doing business with a reliable partner, and to have an attorney thoroughly go over the partnership agreement. Different methods of setting up a partnership exist that should be discussed with legal counsel. For instance, one partner can have limited liability and pay self-employment taxes while the other has unlimited liability but receives the profits, or it instead can be crafted so all partners are shielded from liability and from the actions of the other partners.
• Corporation – Also known as a C corporation, this type of entity shields you from personal liability and offers multiple methods for raising funds, including offering stock. It is also more expensive to form, requires extensive record-keeping, and is taxed differently than sole proprietorships or partnerships.
• S Corporation – Similar to a C corporation, this type of business entity protects you from liability but uses different tax rules. Profits and certain losses can be taxed personally rather than using the corporate tax rate, and you can also avoid issues of double-taxation when profits are taxed on the business and then a second time on your personal taxes. There are more stringent rules for forming an S corporation, however, and it won’t be feasible for every type of business.
•  LLC (Limited Liability Company) – An LLC provides an option partway between a partnership and a corporation. This entity protects your personal assets from liability so you don’t have any danger of losing your home or savings if the business is sued. Still, you do need to consider how self-employment tax with an LLC may affect you.

Talk to an Experienced Business Startup Lawyer

Even the greatest business idea can be easily scuttled by legal problems. Be sure to consult an attorney early in the process to protect your entity and get help making the right moves financially and legally. Set up a consultation to find out how we can assist in choosing a structure, help with any permits and licensing needed for your specific operations, and represent your business if it faces legal challenges.

When customers see your logo or company name, they associate that unique branding with specific attributes such as the quality of a product or the type of service you offer. Your brand has actual value and deserves to be protected to the fullest extent possible under the law. Trademarking different facets of your brand is a critical method of stopping others from using your name or confusing potential customers with similar phrases and imagery.

Why Trademarks Are Important to Safeguarding Your Brand

The point of branding is to create immediately identifiable iconography or slogans that build up a base of repeat customers to help your business thrive. Essentially, your brand consists of distinct features that consumers immediately link with your business and set it apart from other companies. Going through the trouble to legally trademark a brand helps to prevent imitators and competitors from harming what you’ve built.

However, you have to zealously defend your trademark to keep it, which is why you should discuss your brand with an experienced business startup lawyer before making any decisions. A strongly identifiable brand is much easier to defend and makes it more likely a court will side with you if you need to bring legal action against someone for misusing that branding.

Not everything can be trademarked, of course, and there are strict limits on what specific words or images can be protected. You can typically apply to trademark elements of your business like your:

• Brand name
• Logo
• Packaging
• Tagline or slogan

Creating a Strong Trademark for Your Unique Brand

To guard your brand, you need to apply to register a specific trademark with the U.S. Patent and Trademark Office. A trademark can be registered either at the state level for Louisiana, or instead registered federally to gain international protections for your brand, although the latter option has stricter rules.

In either case, it’s important to perform a thorough search ahead of time to ensure the particular logo or name you want to trademark isn’t already in use by another business. Whatever portion of your brand that you want to protect as your own must also be “strong” enough to warrant trademarking.

For instance, certain extremely common terms and phrases aren’t eligible to be trademarked under most circumstances. Generic descriptive terms are often rejected outright, although they may be accepted in cases where the term is outside the norm. There is a notable exception in cases where the word is arbitrary and not typically used in your specific industry.

For instance, “spaghetti” probably can’t be trademarked for a restaurant or pasta producer, but it could potentially be part of a trademark for a brand in a completely different industry. One of the most famous examples is “apple,” which obviously has been trademarked for a massive global tech company, but would likely be rejected for a fruit business.

In general, the tagline, logo, slogan, etc., needs to be unique and connect the end customer with a key concept or element of your brand somehow. You have the best shot at getting a trademark approved if the word or image is fanciful and unique, or strongly suggests the specific quality of your service.

With your attorney’s help, the application also needs to explicitly list out the goods or services associated with the name or logo, and it must be strictly limited to your specific business type and the sorts of services you offer. If you apply for too broad a trademark covering a wide range of products you don’t actually provide, your application may be turned down, and you will need to start over.

Protect Your Brand With the Help of an Experienced Business Attorney

What facets of your brand to trademark and how you should proceed depends on your specific, unique situation. Your business is different than any other and will benefit from different legal advice than other companies. If you’re ready to take the next step and start protecting the brand you’ve built, get in touch with the Scott Vicknair law firm to schedule a consultation.