ATF-41P Changes the Rules for Gun Trusts

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On January 4, 2016, a new regulation—commonly referred to as ATF-41P—proposed by the Bureau of Alcohol, Firearms, Tobacco & Explosives (The “ATF”) was signed as a final rule by Attorney General Loretta Lynch. The final rule, which goes into effect 180 days after it is published in the Federal Register (27 C.F.R. § 479), changes three key aspects of the regulations governing applications to make or transfer an NFA firearm, especially for Gun Trusts.

Background Checks for Trustees

Perhaps the biggest change made by ATF-41P requires “responsible persons” of a trust, partnership, association, company, or corporation to complete the same forms, and to submit photographs and fingerprints to the ATF whenever such a legal entity is applying to make or transfer an NFA firearm. (27 C.F.R. § 479.11). This means that for Gun Trusts, each and every trustee of the Gun Trust will have to submit to a background check anytime the Gun Trust is applying to add a new NFA firearm to the trust.

While this requirement eliminates one of the greatest advantages of using a Gun Trust to acquire NFA firearms, Gun Trusts still allow more than one person to serve as a “responsible person” for any one NFA firearm. In contrast, a person making or purchasing an NFA firearm in his or her individual name will be the only person authorized to possess or use that firearm. Thus, while ATF-41P makes it much more inconvenient for the trustees of a Gun Trust to acquire new NFA firearms to add to their trust, it is still possible for the Gun Trust to have multiple authorized users as long as each of those users has passed a background check.

CLEO Signatures No Longer Required

One benefit of ATF-41P for gun owners is that it eliminated the requirement for applicants to obtain a certified signature from their county’s Chief Law Enforcement Officer (CLEO) as part of an application to make or transfer an NFA firearm. Applicants for NFA firearms must still send a copy of their applications to the local CLEO as part of the application process, but the CLEO’s signature is not necessary in order for the application to move forward with the ATF. Several comments submitted during the rulemaking process of ATF-41P noted that the CLEO signature requirement was somewhat redundant with the requirement to submit to a criminal background check. Commenters also noted that many CLEOs in the past have refused to sign applications for NFA firearms, and thus requiring a CLEO signature often gave too much unfettered discretion to CLEOs who were generally opposed to anyone owning an NFA firearm. By eliminating the requirement for a certified CLEO signature, the ATF has addressed these criticisms and somewhat streamlined the already complicated process for acquiring NFA firearms.

Executors of Estates may Possess NFA Firearms

The ATF also “clarified” that an executor, administrator, or personal representative of an estate may possess any NFA firearms registered in the individual name of the deceased gun owner during the term of the probate process without having to treat the gun owner’s death as a “transfer.” (27 C.F.R. § 479.90a). Instead, when the executor is ready to transfer an NFA firearm to a certain beneficiary or heir, he can submit the application to the ATF, along with an ATF Form 5 (5320.5) Application for Tax Exempt Transfer and Registration of Firearm. This means that the estate of an NFA gun-owner will not have to pay the $200 transfer tax per NFA item that was registered in the gun owner’s individual name. For Gun Trust owners, this clarification has little impact, since many Gun Trusts (done correctly) may be designed to continue after the death of the person who originally created the Gun Trust.

Helpful Links

The final ruling of ATF-41P can be found here: https://www.atf.gov/file/100896/download

For a helpful guide to the benefits of a Gun Trust, see our FAQ blog post: http://www.wolfejones.com/what-is-a-gun-trust/

New Updates to Official Bankruptcy Forms

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A large number of official bankruptcy forms were recently updated by the Advisory Committee on Bankruptcy Rules.  These new forms are required starting December 1, 2015.  Importantly, use of the new bankruptcy forms is required for all pending bankruptcy cases, whether filed before or after December 1, 2015. While the majority of revisions relate to those forms used by debtors, Official Forms B10, B10A and B10S-1 used by creditors to file proofs of claim have all been heavily revised in the form of Official Forms B410, B410A and B410S-1, respectively.

The new Official Forms may be found by clicking here.

Creditors with more questions on the recent updates in bankruptcy should contact our attorney, William M. Hancock, for more information.

DISCLAIMER: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

 

Alabama Eminent Domain – When the State takes Private Property

New Homestead and Property Exemptions Eminent Domain & Condemnation Proceedings – What Happens when the Government takes Private Property?

The power of eminent domain is a power given to federal, state, and local governments to take private property for public use. The U.S. Constitution, as well as the Alabama Constitution, require the state to provide “just compensation” to property owners whenever it exercises its eminent domain power.

Landowners are often caught off guard when they learn that the government intends to take their property. When this happens, it is good to know the procedures that the government has to follow, and how an attorney can help.

Public Use

The power of eminent domain is limited to property that is being taken for “public use.” Common examples of public use include new roadways, roadway expansions, state parks, public utilities, and even private developments that will generally benefit the public and local economy, such as new retail or commercial developments.

For example, in Kelo v. City of New London, the U.S. Supreme Court held that the city of New London, Connecticut, could take property from several landowners that would be used by private developers for “economic development.” More specifically, the city intended for the property to be developed into a new state park and marina, as well as a new office and research facility for Pfizer Inc. The Supreme Court found that this taking was consistent with the definition of “public use” under the Takings Clause of the Fifth Amendment, but that state governments can further limit the use of eminent domain powers if they so choose.

The Kelo decision illustrated that the definition of “public use” is broad, and that the federal, state, and local governments can take private property for virtually any purpose that provides a benefit to the general public – even if the general public does not directly “use” the property.

 Alabama Eminent Domain Code

The Alabama Eminent Domain Code (Ala. Code § 18-1A-1 et seq.), consistent with the U.S. Constitution, requires the State to pay “just compensation” for a total or partial taking of property for public use. The Eminent Domain Code also applies to county, municipal, and city governments when exercising their power of eminent domain.

When the State chooses to take property for public use, it must first conduct an appraisal of the property and make an offer to the landowner that is based on that appraisal. These appraisals are often far below what the actual fair market value of your property might be. If the landowner rejects the offer, the State will then file a Complaint for Condemnation with the probate court for the county in which the property is located.  These proceedings are known as “Condemnation” proceedings. The Probate Court will usually determine two questions (1) if the State has the power to take the subject property, and (2) what amount of “just compensation” is due to the landowner.

After the Probate Court issues its final judgment, the State or the landowner may choose to appeal the case to the circuit court for the county in which the property is located. The Circuit Court will then hold a trial de novo – a new trial – in which the Probate Court’s decision is disregarded. An appeal to Circuit Court is often advantageous to a landowner since the amount of “just compensation” will be determined by twelve jurors rather than a real estate appraiser or judge.

How an Eminent Domain Attorney Can Help

An experienced eminent domain and condemnation lawyer can help guide you through the legal process – from the time the State makes an offer for your property and through the entire appeals process. An attorney is often essential to finding the right witnesses to testify as to the fair market value of your property. Our firm usually handles condemnation cases on a contingency fee basis – meaning you will not owe us anything unless we recover an amount greater than what the State initially offers you for your property. If the State tells you or your family that it intends to take your property, contact our experienced attorneys immediately for a free and confidential consultation.

DISCLAIMER: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

How Alabama’s Budget Crisis Affects The State Courts

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The fiscal year for Alabama begins October 1st, and with that deadline rapidly approaching, Alabama’s budget crisis continues to look grim. The budget cuts Alabama is facing will affect state parks, employment, healthcare, and the entire state judicial system. Without proper funding to Alabama courts, serious disruptions to the state’s legal system could follow.

(Before court funding goes into effect, be sure to have your necessary business contracts in place.)

Alabama Budget Cuts

After being reelected, Governor Bentley announced that the Alabama budget is suffering, stating that the General Fund for the new fiscal year could face a loss of up to $265 million. While severe, Alabama has seen this on the horizon for some time.

In addition to that massive deficit, much of Alabama’s borrowed money is due within the next few years. This money includes payments to the Federal government for Medicaid, prison improvements, and much more. The borrowed money amounts up to a potential $700 million debt.

What Are the Cuts the Courts Are Facing?

The Alabama court system already receives only 1.6 percent of the state’s general fund. Governor Bentley’s most recent proposal was a $17.8 million cut for Alabama courts. This would leave only $163 million to fund the Alabama state court system.

District attorneys and retired prosecutors have salaries that are protected by statute, therefore the funding will be cut from other aspects of the system. That means this 17% budget cut cannot be spread around, and will instead fall hard on particular services.

What Could Happen?

Without proper funding, the Alabama state courts cannot meet their basic constitutional requirements, such as the right of the accused to a speedy trial. With the backlogs that will inevitably result from cuts in court funding, defendants in Alabama could be waiting even longer for their day in court. The delay in trials and other court hearings will fill Alabama’s already overpopulated county jails far past capacity.

Slashing court funding would also prevent courts from paying jurors, and would also require many court circuits to cut the minimal staff that are currently employed by the court system. These job losses would only add to the suspension and delay of both civil and criminal cases in Alabama.

If we look back a few years, in 2012 Alabama cut funding to the courts by $17 million and over 300 jobs were lost. The same, or more, is to be expected in 2015. That is not only a blow to the Alabama’s judicial system, but to the employment rate as a whole.

These are among a few of the major problems the court system could face. The lack of proper funding could prevent access to justice for businesses and citizens alike.

It is up to each citizen of Alabama to reach out to their community and representatives to educate them on these matters. The Alabama State Bar has released a letter directed to bar members that further explains these conditions. Read it here.

Searching for a commercial, real estate, or personal injury lawyer in Huntsville, Alabama? Contact us today.

Why Should You Hire A Contract Law Attorney

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One of the most important reasons to consider hiring a commercial attorney is to handle contracts. Contracts serve as the most basic foundation for essentially every type of business dealing. It’s important to understand how a contract law attorney can help.

Drafting the Contract

The contract is the single most important aspect of your business affairs. A contract defines each relationship you make with another business person or institution. It commands both parties to fulfill their individual obligations or face repercussions if breached. While a good contract can support your objectives, a poorly drafted contract can cause more problems than it solves.

(Buying or selling a home? Real Estate contracts are exhaustive. Be sure you have full understanding of your real estate transactions.)

Common language errors may hinder the clear definition of your proposal. There could be major loopholes in your contract that would grant the second party the ability to break certain terms with no repercussions. Contract law attorneys are educated to understand the complexities of contracts and can work with you to create one that is clearly defined to protect your best interests.

Pursuing Legal Action

Because lawsuits and litigation are expensive, it is often most cost-effective for the party of a breached contract to negotiate and reach a settlement agreement before filing suit.

Contract lawyers are generally more successful at handling breach of contracts. The specific role an attorney plays depends on your role in the dispute. If you are the plaintiff, the objective is to forcibly assert and prove that a breach of contract took place.  In order to prove a breach has been made, you need to conduct very careful review of the contract. An experienced contract attorney understands contracts and the law governing contracts.

If you are the defendant, the lawyer’s role is to mount a vigorous defense and refute claims made by the plaintiff that a breach occurred.

Often-times very creative arguments will be made in court over very detailed points in a contract. A good lawyer will be prepared to face these arguments head-on.

The contract law attorneys of Wolfe, Jones, Wolfe, Hancock, Daniel & South, LLC, have a thorough experience in contract litigation, from state law to international contract enforcement. Learn more on our business attorneys can assist you.

The Advantages of a Last Will and Testament

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We all want to provide for our families. We all also want to ensure our legacy is protected and that our last wishes are respected – both emotionally and legally. The need for this grows as an estate does, to the point where a complex estate with many components – and many heirs – can be quite complicated to resolve after death.

The only thing that comes from a lack of preparation is confusion, which leads to stress, strife, and conflict. One of the best ways to ensure that this doesn’t happen – and that things proceed smoothly after your passing according to your wishes – is to create a Last Will and Testament.

Here are a few of the advantages to having a Last Will and Testament.

You Can Choose Your Executor

The most important person involved in the administration of the estate is the executor or administrator. The executor is the person who has essentially been placed in charge of the estate after your death.

This person has the legal responsibility to resolve and handle all outstanding financial obligations and other responsibilities, which includes anything from paying taxes to distributing property, maintaining property, paying bills, and appearing in court on behalf of the estate.

In the absence of an appointed executor, the court will appoint someone on your behalf. You obviously will have no control over who this is, which means the administration of your estate is out of your hands.

The only way you will be able to personally appoint your executor is to create a Last Will and Testament naming one (ideally two, with one serving as a backup) to the position.

You Control the Distribution of Property

When you die without a Last Will and Testament, the state makes certain assumptions about division of property and how it will be handled. These assumptions are part of Alabama’s laws regarding intestate estates – estates in which there is no Last Will and Testament governing the probate administration. These assumptions in the intestacy laws were made without knowing anything about you, your family, or your particular circumstances.

For many, this is unacceptable. Unfortunately, without a Last Will and Testament, the state will rely on these assumptions when it’s time for probate. This could result in your property being handled in a way that doesn’t suit you or your family, or benefit them.

For example, in Alabama, if you died intestate, leaving your spouse and children, the surviving spouse will inherit the first $50,000 of your property without a will, plus half of the remaining balance of your property’s value. The rest will go to your children. If, for some reason, you want to alter this arrangement, you will need to create a Last Will and Testament that divides the property according to your wishes.

You Can Appoint Guardians for Your Children

Ideally, a father or mother who dies will have the other spouse take care of the children after his or her death. This is not always the case, either because there is no other spouse or the spouse is incapable of caring for children by themselves.

If this unfortunate scenario were to happen, and you don’t have a Last Will and Testament, you wouldn’t be able to control who takes care of your children. The court will decide that issue, not you. With a will, you can appoint a suitable guardian for your children, ensuring that they will be taken care of if something were to happen to you prematurely.

Conclusion

Having a Last Will and Testament isn’t necessary for everyone, but for many people it is a very wise decision – albeit one that should certainly involve the help of a qualified attorney. For larger estates, other estate-planning and tax-planning devices, such as Living Trusts, may be advisable.

For help drafting your Last Will and Testament and planning your estate, please contact the law firm of Wolfe, Jones, Wolfe, Hancock, Daniel & South, LLC.

Credit Card Fraud: How New Technology Could Make Your Company Liable

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Starting October 1st, credit card companies will begin to harness the power of technology in an effort to reduce credit card fraud in the United States.

Already, credit cards throughout the nation have been upgraded with EMV chips. You may have already seen one, or may have one in your possession. EMV chips work by replacing magnetic strips and ensuring that whomever is holding the card is the card owner.

While extremely beneficial for consumers, American retailers who fail to remain up to date with this technology could suffer the repercussions.  Below, we examine the effects EMV chips will have on businesses.

Liability Shift

In 2008, the United Kingdom adopted the use of EMV chips and has since seen a major decrease in fraud and identity theft. Magnetic strips have been outdated for some time, but different costs along the way have prevented the United States from staying up to date in credit card technology for some time.  By adapting EMV chips in America, credit card technology will finally match up with the always-increasing computer technology we have.  Consumers can finally breathe a small sigh of relief each time they make a transaction: their money and identity will soon be much safer.

Retailers, however, have some major reason to worry. Failure to purchase the terminals necessary to read these chips makes a business vulnerable to credit card fraud costs.  Banks will no longer be liable. Without these new terminals, your business can not offer the advanced security of EMV chips, making you the weakest link in the security chain, and ultimately the sole entity responsible for paying the costs of fraud.

Cost: Time and Money

Fortunately, if a business has adopted the new EMV technology by October 1, 2015, fraud is made nearly impossible.  This change will benefit consumers and businesses alike with a newfound feeling of safety in regards to money.

The negative? These terminals will cost your business a pretty penny, and a decent chunk of your time.  EMV terminals run around $400-$500 in cost, but advanced terminals are predicted to cost somewhere in the thousands. Not only that, but transaction time with your customers will increase, as the scanning of chips takes longer to process.

Remember though, the advantages of avoiding fraud liability – potentially forever – greatly exceeds any short-term costs your business might endure.

Litigation

Attorneys across the country are anticipating a high demand for help on this upcoming change. New parties will be acquiring the responsibility of fraud charges as banks step back. If your company is ill-prepared for these changes, due to lack of knowledge or funds, you could be subject to major financial damages.

Credit card fraud is a serious issue finally being addressed, but your business needs to be prepared.  Adapt to new technology before it’s too late.

Need legal assistance? Contact Wolfe, Jones, Wolfe, Hancock, Daniel & South, LLC today.

DISCLAIMER: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

New Homestead and Property Exemptions

New Homestead and Property Exemptions

On June 11, 2015, Governor Robert Bentley signed into law Senate Bill 327, increasing the Alabama homestead and property exemptions for the first time since 1982.  The bill, sponsored by Sen. Cam Ward (R-Alabaster) and Rep. Jim Hill (R-Moody) passed unanimously by legislative members, increases the homestead exemption for an individual to $15,000 (or $30,000 for a couple) and the personal property exemption for an individual to $7,500 (or $15,000 for a couple).  Prior to this amendment, the homestead exemption was $5,000 (or $10,000 for a couple) and $3,000 for personal property (or $6,000 for a couple).  The exemptions will be automatically adjusted every 3 years beginning July 1, 2017 to reflect the change in the consumer price index.

The homestead exemption applies only to the family home, or principle residence, which is typically the most valuable asset of the debtor and is part of their long-term savings and retirement plan.  The new exemption amount increases the equity a debtor may have in their home before a creditor can seize the property to satisfy the debt.  As an example, suppose a debtor owes $150,000 on their home and the county tax assessor has valued that home at $158,000, meaning the debtor has $8,000 equity in their home on paper, i.e. less than the new exemption amount of $15,000.  Under the former exemption statute, the creditor would be able to seize the home in satisfaction of the debt because the debtor has more than $5,000 equity in the property.  With the new homestead exemption amount, the debtor’s equity would not exceed the $15,000 allowed; therefore, the creditor would be unable to seize the property where the debtor claims such exemption.

The personal property exemption protects items such as household goods, books, pictures, clothing, jewelry, tools, lawn equipment, and equity in a car. A creditor has the ability to seize a debtor’s car and household goods in order to satisfy the debt owed.  Before the exemption increase, the debtor could keep these items only if the total value of the personal property was less than $3,000.  The new law allows a debtor to retain personal property with a total value up to $7,500.

In civil lawsuits, when a debtor is sued for past due accounts the law of exemptions sets the maximum amount that can be protected from seizure by a creditor.  It does not erase the debt owed and does not exempt the debtor’s wages; creditors may still recover additional monies owed through the debtor’s employer.

The effect of an exemption in bankruptcy is such that it allows a person to keep certain property or assets even after bankruptcy is filed.  For example, these exemptions establish what property, and how much of it, a debtor in Chapter 7 may retain.

The law of exemption has taken on new significance in the state of Alabama. Wolfe, Jones, Wolfe, Hancock, Daniel & South, LLC is uniquely situated to assist creditor’s in issues dealing with this new law.

Contact us today for a free consultation.

5 Common Causes of 18-Wheeler Accidents

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We share the road with 18-wheeler trucks everyday. The risks associated with an 18-wheeler accident are greater than most other vehicle collisions due to their massive size and the increased number of blind spots.

Why, exactly, are there so many trucking accidents? Below are 5 common causes of 18-wheeler accidents.

Remember, if you or a loved one has been injured in an 18-wheeler accident, then turn to the attorneys at Wolfe Jones. Allow us to learn more about your accident and see if we can help you get the compensation you deserve!

#1 Excessive Schedule Expectations

Truck drivers often have unrealistic schedules. They can be encouraged to drive for too many consecutive hours, causing driver fatigue. This can lead to poor decision making or even falling asleep at the wheel.

#2 Distracted Driving

Distracted driving is dangerous for any driver. Using a cellphone to text or look up an address while driving can cause the truck driver to take their eyes off of the road long enough to result in a terrible accident. Anything that takes a driver’s attention off of the road is incredibly dangerous, especially when you are driving an 18-wheeler.

#3 “Minor” Traffic Violations

We often tend to think of traffic violations such as speeding, tailgating, and failure to signal as minor. There are no “minor” traffic violations when it comes to an 18-wheeler.

A tractor trailer truck can’t stop as quickly as a smaller vehicle. If one were to be speeding or tailgating, and the driver in front of them had to brake quickly, an accident would most likely occur.

#4 Jackknifing

Jackknifing is when the trailer being pulled by the 18-wheeler skids forward, giving the truck the appearance of a folding pocket knife. This can be caused by improper braking procedures, faulty equipment, or poor road conditions, such as an ice-covered bridge. There are devices to combat jackknifing, but none of them carry a 100% success rate.

#5 Driving Under the Influence (DUI)

Often times, 18-wheeler drivers are driving under the influence of alcohol, illegal drugs, or prescription drugs that impair their ability to safely operate an 18-wheeler. These truck drivers place other drivers at serious risk of death or injury.

Trucking companies are subject to strict federal regulations designed to prevent this from happening. But when a truck driver was driving under the influence, it is often best to have an experienced attorney to help investigate, uncover, and hold truck drivers accountable for their reckless behavior.

Involved in an 18-Wheeler Accident? We Can Help!

If you have been involved in an accident with an 18-wheeler, seek medical attention right away. Some injuries may not be immediately apparent, so see a doctor even if you feel ok. It’s better to be safe than sorry.

If the accident was the fault of the 18-wheeler, you need to act quickly to ensure the evidence is properly preserved!

After an accident, gathering the proper evidence and documentation can seem overwhelming. This is especially true if you sustained any injuries. The truck accident lawyers at Wolfe Jones can help you navigate this process. We have experience representing people who have been injured in 18-wheeler accidents and are familiar with the steps that need to be taken to ensure your rights are protected.

Along those lines, do not accept any settlements without getting the advice of a trained legal professional. Insurance companies aren’t always looking out for your best interests. You need an attorney that has your welfare in mind.

Don’t Wait. Call Today!

If you have been injured in an 18-wheeler accident that wasn’t your fault, you need legal assistance.

Contact the 18-wheeler wreck attorneys at Wolfe Jones today for a consultation. We will look out for your best interests and help you receive the compensation you deserve!

No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Injured by a Defective Product? You May Have a Case.

lawyer huntsvilleIf you have suffered an injury as the direct result of using a defective product, you may have a product liability case. To help you determine if you have a case, let’s take a look at the three different types of product liability claims.

#1: Defective Design

In a defective design claim, you must prove that the design of the product was inherently dangerous. In this type of defect, all of the products in that product line will be considered defective.

A good example of defective design is a car that, because of its design specifications, loses braking ability after a certain amount of normal use. If you were driving this car and the brakes stopped working, causing you to have a wreck, you would have a defective design claim.

#2: Defective Manufacture

A more common product liability claim is due to defective manufacture. In a defective manufacture claim, an error in the manufacturing process caused the defect. Not all of the products in the product line are affected. It may be only a batch or even just one product.

For example, if a few drops of poison were to accidentally get mixed in with a bottle of antacid at the manufacturing plant, and you were to be poisoned by the medicine, you would have a defective manufacture claim.

#3: Failure to Provide Proper Warnings or Instructions for Proper Use

The final type of product liability claim occurs when you are injured by a product that isn’t labeled properly. The manufacturer is required to warn you of things that are likely to happen when your product is used properly.

Imagine you are taking an allergy medicine and it fails to mention on the packaging that it can cause drowsiness and that you shouldn’t drive while taking it. If you were to get into a wreck on the way to work after taking this medicine, you could have a product liability claim.

What Other Factors Determine Whether You Have a Claim?

There are two other determining factors when deciding if you have a valid product liability claim:

  • You must have been using the product for its intended use.
  • You must have been injured by the defect.

If you are using a can of hairspray and a lighter as a makeshift blowtorch and get burned, you won’t have much luck with your claim. Hairspray is not intended for that use so the manufacturer is not required to make sure it is safe for that use.

Likewise, if you are driving the car with the faulty design and the brakes go out, yet you manage to roll safely to a parking spot and escape with no injuries, you don’t have a case. You have to prove that there was a defect and that the defect directly caused you injury.

Do You Have a Product Liability Case?

If you feel that your situation meets the standards for a product liability case, or if you would like more information, please contact the product liability attorneys at Wolfe Jones today.

We can answer any questions you may have and help you navigate the process of filing a product liability claim.

No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.