Rainbow Marriage; Green Card

by Jen Green, Burch Law

OK, so the federal government has finally recognized that love is love and a true marriage of souls is valid whatever may be the physical gender(s) of those uniting in matrimony. The U.S. federal government now recognizes the validity of same-sex marriages, even though some of the individual states of the United States do not. Fortunately for those whose marriage partner is of the same gender but of another nation, the marriage-based immigration process is a federal matter.

So, if you are a U.S. citizen, and your true love is from abroad and happens to be of the same gender as yourself (as gender is commonly defined – the full continuum of gender identity being beyond the scope of this particular blog entry), you now have the opportunity to sponsor them for legal permanent residence in the United States! Yes, your partner may now obtain a U.S. green card through marriage. For purposes of this blog, let’s call it the U.S. rainbow card!

The marriage itself is just the first step though in the green card process. If you are a U.S. citizen, a visa is immediately available for your spouse. If you are a U.S. permanent resident and your spouse is from abroad, they fall into the second preference category, and may have a lengthy wait (currently around two years) before a visa becomes available for them.

In either case, there are forms to fill, documents to gather, and a medical exam with a government-approved physician to undergo. If you married and live together in the USA, you may file everything by mail, and simply wait. There will be a biometrics appointment in your local community for photos and fingerprints of your spouse, and an interview at the local USCIS office.

The marriage-based interview can be notoriously difficult. The interview process is designed to weed out fraudulent applications. It isn’t infallible, clearly, but it does have some success here and there. People might fail even with a genuine marriage if they don’t pay attention to their spouse’s habits or preferences (does anyone else know people who don’t pay close attention to their spouse’s habits or preferences?), or if they guess at the answer to a question where they don’t know. There are other challenges if your chosen life mate has criminal convictions or has associations with groups the government is not fond of. Basically, there is a long list of questions about your spouse’s background and activities in the permanent residence application, and even if they choose to answer untruthfully, the truth is out there and may well be found during the background check phase. And falsifying information on an application can make your spouse permanently ineligible for permanent residence.

Alternatively, if you were married abroad, you may have to travel back to the U.S without your spouse and wait for a time until they receive their immigrant visa and can rejoin you in the U.S. You will need to file a marriage-based petition, and they will need to fill out the immigrant visa application and submit it to the U.S. Consulate in their home country (or sometimes in a nearby country, depending on the status of diplomatic relations). When their application is reviewed and approved, they will schedule an interview at the Consulate, take their original biographical documents with them, and with luck, receive their passport back with an immigrant visa stamp allowing them to enter the U.S. as a permanent resident. The actual “green card” or permanent resident card is received in the mail afterwards.

The initial green card received by someone sponsored through marriage is a conditional one however, good for two years only. Slightly before the end of that two years, you will file a petition to remove the conditions on your spouse’s permanent residency. Timing of the filing is critical; if you miss the deadline, you may find your spouse in removal proceedings. An interview at the local USCIS office may be required with this petition also. If all goes well, and the conditions on your spouse’s permanent residence are removed, your spouse receives a non-conditional green card, and is eligible top apply for naturalization as a U.S. citizen in another 3 years. And you could live happily ever after. (Or not. But that’s marriage.)

If you are ready to undertake the well-papered path of the marriage-based green card process, or if you already have and now need to apply for your citizenship, contact us. We can help. We have been down those paths with many people before. Your success is our goal.

Rental Properties & LLCs: How to Protect your Investment

by Jen Green, Burch Law

You may be one of the many people contemplating how to expand your investment and income possibilities. In an era of uncertain economic outlook and roller coaster returns in the stock market, many people are turning to real property as the more certain investment. Whether it is flipping houses or acquiring rental properties, real property represents to many people a solid investment offering real returns in an age of unreal and insubstantial wealth offerings, like derivatives. Unlike less tangible assets, you can insure your real property against most worst-case scenarios.

However, real property can also be a real target for lawsuits, frivolous or genuine, so you want to shield yourself and your assets from liability exposure as much as you can. Slip and fall incidents, landlord-tenant disputes, breach of contract, all kinds of issues and unexpected situations are out there waiting to complicate your life.

One way to shield yourself from unnecessary liability exposure in Texas is the limited liability company (LLC). The traditional LLC is a favorite of real estate investors. And the LLC is a flexible vehicle that generally allows you to register your LLC in other states, as a foreign entity, when you find your business and opportunities expanding. The flexibility is one of things investors and business owners love about the LLC. It has pass-through tax treatment, you can easily you’re your entity and customize your operating structure as needed in your LLC Agreement, and decrease your personal and asset exposure to liability, all in a user-friendly package.

For an investor with numerous properties, there is even an additional level of protection that you can find: the Texas Series LLC. The ancestor of the Texas Series LLC evolved in Delaware, initially as a vehicle to allow different classes of mutual funds to be treated as a single whole for SEC filing purposes. And the Texas LLC for real property investments also allows you to have different classes of property located in different series of a single LLC. The entire Series LLC is taxed as a single entity, but the separate series can engage in their own contracts and business transactions. The annual corporate filings with eth Texas Secretary of State are also for the single, overall Series LLC; no separate filings are required from the individual series within it. Whether you choose to have separate bank accounts for each series, or account for them separately within a single account, depends upon the complexity of their transactions and your own (or your accountant’s) love of detail. Single entity tax and filing treatment can streamline operations for those who plan well.

If you have rental properties, you could hold each one in a separate series of your Series LLC. You could obtain assumed names (d/b/a names) for each to make it easier to interface with your market. You could have single family residences, duplexes, and other types of rental properties in separate series. If you are fortunate enough to have multiple properties with vastly different tax treatments (farm/agricultural, urban commercial, and residential rentals), you may want to set up separate Series LLCs for each tax type of property, since your overall Series LLC(s) will (each) get treated as a single entity for tax purposes. Word to the Wise: creating complex tax headaches for the tax man could create tax headaches for you too.

And to keep your liability shield in place, you must clearly account for the transactions of each separate series, even if it is all within one bank account, so that anyone looking at the account can tell which income, expense, and other transactions relate to which individual series. Mixing and muddling the accounting loses you the protection of your Series LLC, so don’t skimp on record-keeping.

There are several ways to structure your LLC or Series LLC that we could discuss with you. You might prefer a single traditional LLC for its simplicity. Or you may prefer to have a traditional LLC conducting all of the business operations while a Series LLC acts as a holding company for the assets. You may prefer to own the LLC directly as Managing Member or have one entity own another. You can throw in trusts and additional structures too as additional layers of shielding from liability, but the more you add, the more you must keep track of, and you may find the complexity adding time and expense to your operations. The LLC’s flexibility ensures that you should be able to find a structure that works best for you and your investment goals, with the level of protection you need from liability.

And if someone has a slip-and-fall, for example, at one of your properties and obtains a judgment, they can only collect against the series that contains the property at which they allegedly fell. They cannot collect against any of the other series within that Series LLC or against the Series LLC itself. Or against you personally. They are limited to that one series asset. Note: when you are transferring properties in and out of your business(es), especially if you will be holding it for a long term, ensure you transfer them into an individual series, and not just into the name of the overall Series LLC. That missed property is a sitting duck for collections of judgment – it doesn’t have the extra shielding that slipping it into its individual series affords. If someone wants to assault your business battlements, make them work for it.

Let us help you build your fortress LLC as you build your business. Texas is a business and property-friendly state, and that’s the goal behind the extra liability protection in a Texas Series LLC – to tend your assets so that they are there to help your business grow and conquer.

Do I Need a Living Trust?

What is a Revocable Living Trust?

Much has been written regarding the use of “living trusts” (also known as a “revocable trust,” “inter vivos trust,” or “loving trust”) as a solution for a wide variety of problems associated with estate planning that wills cannot address. Some attorneys regularly recommend the use of such trusts, while others believe that their value has been somewhat overstated. The choice of a living trust should be made after consideration of a number of factors.

The term “living trust” is generally used to describe a trust that you create during your lifetime.  A living trust can help you manage your assets or protect you should you become ill, disabled or simply challenged by the symptoms of aging. Most living trusts are written to permit you to revoke or amend them whenever you wish to do so.  These trusts do not help you avoid estate tax because your power to revoke or amend them causes them to continue to be includable in your estate.  These trusts do help you avoid probate, which may not always be necessary depending on the cost and complexity of probate in your estate.

A “living trust” is legally in existence during your lifetime, has a trustee who currently serves, and owns property which (generally) you have transferred to it during your lifetime. While you are living, the trustee (who may be you, although a co-trustee might also be named along with you) is generally responsible for managing the property as you direct for your benefit. Upon your death, the trustee is generally directed to either distribute the trust property to your beneficiaries, or to continue to hold it and manage it for the benefit of your beneficiaries. Like a will, a living trust can provide for the distribution of property upon your death. Unlike a will, it can also (a) provide you with a vehicle for managing your property during your lifetime, and (b) authorize the trustee to manage the property and use it for your benefit (and your family) if you should become incapacitated, thereby avoiding the appointment of a guardian for that purpose.

Advantages of a Living Trust:

  • It’s a smart way to avoid probate.
  • Keep more money in the family by avoiding potentially lengthy and expensive court proceedings.
  • Your personal and financial matters remain private. By creating a living trust, the public doesn’t get to see what you owned, who you owed, or who will inherit your assets.
  • Your affairs get handled if you’re incapacitated. Avoid going to court by appointing a trustee to take charge of your finances according to the instructions provided in your living trust.
  • A living trust doesn’t change your financial affairs. A living trust lets you do whatever you want with your money – buy and sell assets, open bank accounts and make investments just like you do now. You can amend or change the trust any time, or even revoke it and pull your assets out. It remains on the shelf, ready to act if something happens to you or your spouse.
  • Avoids probate in multiple states if you own real estate outside of Texas.

Considerations before choosing a Living Trust:

  • Time-consuming to maintain – you will need to transfer all of your property, beneficiaries, bank accounts, and other assets to the trust AND you will need to remember to acquire any new assets in the trust throughout your life in order to avoid probate.
  • More expensive. Now, if you are successful in transferring your assets to your trust, then the trust will ultimately save money as it can avoid or at least significantly reduce probate costs.

Frequently Asked Questions:
What is a living trust?
It’s a legal document that states who you want to manage and distribute your property if you’re unable to do so, and who receives it when you pass away. Once signed, you transfer ownership of your assets into the trust and you remain in complete control of your property. The trust property can be managed and distributed without going through the probate court.

Can I transfer property into and out of the trust while I’m alive? Yes. If you have an individual trust, you can transfer property whenever you want. If you have a shared trust, you’ll need your co-trustee’s consent if you own the property together.

Do I still need a Will if I have a living trust? Yes, because you may not have transferred your property into your trust before you pass away. A Living Trust includes a pour over will. It transfers property still in your name alone when you pass away to the trust to be distributed to your beneficiaries. It also lets you name guardians for your minor children.

Aren’t living trusts just for the wealthy? Not at all. People of all income levels can set one up to manage their finances in case they become disabled, or to provide for loved ones without going through probate court, which may be required of relatively modest estates.