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IS THE STATE HOLDING PROPERTY THAT BELONGS TO YOU?

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Have you checked to see if your state has property belonging to you? If not, do so at least annually. The State of Georgia, and all states, have an unclaimed property department. Unclaimed property is given to the state for holding when a company or person has property that belongs to another, but cannot locate that person to give her the property.

This often occurs when you own stock in a company, or have a deposit at a bank, and merely forget about it. You move on in life, move to a new address, and the person holding your property can no longer find you. That company is under no obligation to spend its funds searching for you. When this occurs, companies can give your property to the state with the identifying information it has about you.

The State of Georgia holds unclaimed property for 5 years. If, after 5 years, you have not claimed the property, it then belongs to the state (escheats to the state). To find out whether you have any property being held by Georgia or any state where you once lived, go to https://www.unclaimed.org/ . This website is The National Association of Unclaimed Property Administration. Once on the website, you can choose from the 50 states to contact that state directly. You then search using your name in each state where you maintained an address in the past five years. Because many people share your name, you will then be requested to enter additional identifying information so the system can determine whether this property belongs to you or another person with your same name. Once you have confirmed with the state you are the owner of this property, the state will turn the property over to you.

Everyone should check the unclaimed property website annually for any state in which you have lived within the past five years.

Another Victory in Georgia Probate Court

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We are pleased to announce another successful outcome in a Georgia Probate Court for a very deserving client. Here, we believed our client was included in his grandmother’s Will after his father had passed away. Our client’s aunts and uncles believed that the grandmother deliberately omitted him from her Will. Despite our vigorous efforts to convince the opposing counsel that the Will included our client, we had to file numerous pleadings with the Probate Court asking that the Court interpret the Will. After months of legal wrangling, we secured a complete victory for our client. The Probate Court found that the grandmother included our client in her Will, and that he is entitled to his father’s share of the estate.

Once again, we have been able to defend the rights of one who otherwise would have been taken advantage of by his relatives. If you believe that you are being mistreated or taken advantage of in an estate dispute, please contact the lawyers at Robert W. Hughes & Associates and we will be happy to review your situation and give you an assessment. You may be entitled to more than you think.

 

Vote NO to the Constitutional Amendment No. 1 this year

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If you are for keeping your local school board in charge of local schools, vote no to the Constitutional Amendment No. 1 this year.

The Georgia Legislature determined that many of our schools throughout the state are failing. Shocking that they have awakened to this decade’s old problem! The Legislature’s solution for those failing schools is to terminate county authority for the schools and let the State run the schools.  This is a sad excuse not to approve charter schools which have proven to succeed where the previous school failed.  This is akin to the federal government deciding it knows better than our state on how to handle education.  Since the federal government became involved in our local education, schools have become more like daycare centers than the true learning centers they should be.  The local administrators have been handcuffed by the federal government in how to teach and how to discipline.  The State of Georgia is attempting to do the same here.  Local citizens recognize if one of their schools is failing and can take action by voting in new board members, demanding the firing of school superintendents, etc.

Whenever the State takes over a local school, the local citizens are relinquishing control to the State of Georgia over how the local school is run, what it teaches and how it disciplines its students. VOTE NO to Constitutional Amendment 1 on this year’s ballot.

Vote NO to Amendment THREE This November

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VOTE NO TO Constitutional Amendment THREE

The Georgia General Assembly, apparently upset that one of its members had been removed as a judge by the Judicial Qualifications Commission (JQC), has decided that the JQC is corrupt and does not properly discipline the judges in this State. The Legislature’s solution for the problem they described is to allow the legislature to choose the members of the JQC. This allows politics to become the primary driving force behind the JQC.

As it is established, the JQC is a model that many other states have copied. It has successfully removed many judges through the years. It has punished many more for conduct it found improper. The current JQC comprises seven members, two sitting judges, selected by the Georgia Supreme Court, three lawyers who have been working for at least 10 years and who are elected by the State Bar of Georgia Board of Governors, and two citizens, neither of whom shall be members of the bar and who are appointed by the Governor.

Lawyers expect judges to maintain the integrity of the bench. It is the cornerstone of all justice.  I expect it when I appear in Court.  All other attorneys expect the same. All trial lawyers expect that judges will comply with all rules of behavior. It is the only way we have an orderly judiciary and judicial system.  It guarantees that people appearing in court receive a just and proper hearing. All lawyers ask that the scales be balanced as their clients appear in court: nothing more and nothing less.

The JQC must remain free of political influence. Only if politics stays out of the business of disciplining judges will judges remain free to deliver decisions based only on the laws of the State of Georgia. I urge you to vote no to Amendment 3 on the November ballot.

WE CAN PROTECT YOUR 2nd AMENDMENT RIGHT TO KEEP AND BEAR ARMS

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WE CAN PROTECT YOUR 2nd AMENDMENT RIGHT TO KEEP AND BEAR ARMS

We are pleased to announce that we have a Second Amendment rights attorney in our firm. Shawn Owen is an accomplished marksman and gun owner. He is also a member of the National Rifle Association.  He has recently gained the training and experience to advocate for individuals’ rights to keep and bear arms.  He is accomplished at creating gun trusts for guns that must be placed into a trust.

Shawn can ensure that Wills are written properly to allow the transfer of firearms to another person under federal law. Some firearms cannot be transferred by an estate to an individual without federal laws being followed. Shawn is trained to ensure that the executor does not violate federal law when transferring certain firearms.

One of our clients recently exercised his Second Amendment rights in defending himself during a home invasion . We are proud of citizen action like this and urge all of our clients to exercise their Second Amendment rights to protect themselves and their belongings. Call Shawn if you have questions concerning your right to keep and bear arms; to ensure that your will properly transfers your firearms to another; or if you are an executor or administrator and the deceased owned certain firearms that require special licenses or permits before you can transfer the firearms to another person.

Has Someone Nominated You to Be the Executor of Their Estate?

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Has Someone Nominated You to Be the Executor of Their Estate?

If someone has named you as the executor of his or her Estate, there are many considerations you should think about prior to accepting that appointment. Among them are:

  1. Is the Estate going to involve contentious parties? Are the heirs and beneficiaries on the same page as the matter moves forward? This, more than most any other item, should be a point of concern for you before accepting the nomination to be executor. As the nominated executor, you may retain counsel to assist you in offering the will to the probate court and defending the validity of the Will if it is challenged.
  2. How much time do you have to devote to handling estate matters? If the will is challenged, the litigation can take substantial time of yours and involve substantial financial resources from the Estate. As the nominated executor, you will be paid a fee for your time. Although it is not an exact calculation, you will be entitled to approximately 5% of the value of the assets in the estate as compensation for being the executor. You also can pay all attorney fees from the estate if your hire an attorney to assist you with the administration of the estate.
  3. Are you a beneficiary under the Will in addition to being the nominated executor? If you are a beneficiary under the Will, you must take extraordinary care to make sure that all of your actions are fair and equitable. Under Georgia law, you must make sure that where discretion is allowed, that you err on the side of benefiting the other beneficiaries rather than yourself. This is so even if all of you are to be treated equally. This normally arises in distributing tangible assets such as household items and mementos. Also, selling homes or cars to yourself or your immediate family can cause great concern if all beneficiaries do not agree with your decision or the price you have placed on the item. You can ask the court for approval before selling items if all beneficiaries do not agree.

If you have been nominated as the executor of a will, please call us at 770-469-887 to schedule an appointment to insure you are handling things properly. We work throughout the State of Georgia to insure that executors handle their duties properly. Remember, if you misstep, you may be personally liable for the money you cost the estate or a beneficiary.

 

 

 

 

 

Social Security Benefits

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Last year, Congress made significant changes in the Social Security Act that now limits the options husbands and wives have to maximize their Social Security payments. In the past there were many different variants to be examined when deciding when to start your Social Security benefits. Do you start at age 62, or do you wait until age 70 or some number in between those two? Because of the different earning capacities of most married couples, it was always beneficial for the lower earning spouse to begin receiving benefits earlier than the higher earning spouse.  This provides greater benefits once both spouses reach age 70 and provides greater benefit for the survivor of the two spouses. Now, Congress has changed the law to take away some of the options you had available.

At Hughes & Associates, we are not financial planners. However, we work with many reputable financial planners to make sure that our clients’ estate plans are thought through and are proper for each client. We do not use a cookie cutter approach in our estate planning. For more information, please contact us at your first opportunity.

Effects of the Attorney General’s Final Rule Amending the Regulations of the National Firearms Act

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EFFECTS OF THE ATTORNEY GENERAL’S FINAL RULE AMENDING THE REGULATIONS OF THE NATIONAL FIREARMS ACT
BY: SHAWN OWEN

On January 4th, 2016, Attorney General Loretta E. Lynch signed the Department of Justice’s Final Rule amending the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regarding the making or transferring of a firearm under the National Firearms Act (NFA).[1]

BACKGROUND

In 2014, the ATF processed 29,191 applications from individuals for the manufacture or transfer of an NFA regulated weapon, while it processed 115,829 from trusts and legal entities.[2] The current regulations at 27 CFR 479.63 and 479.85, which require fingerprints, photographs, and a law enforcement certification for individual applicants to make or transfer NFA firearms, do not apply to trusts or legal entities.  On September 9, 2013, the Department of Justice published in the Federal Register a notice of proposed rulemaking.[3]  The proposed rulemaking would amend current regulations to “conform the identification and background check requirements applicable to certain trusts and legal entities to those that apply to individuals.”[4]

CHANGES

The Department of Justice’s Final Rule essentially expands the current “identification and background check requirements [to] apply equally to individuals, trusts and legal entities.”[5]  However, the Final Rule eliminates the requirement that the Chief Law Enforcement Officer (CLEO) approves and certifies each NFA application.

Currently, the ATF requires any individual, but not trusts or legal entities, to obtain CLEO approval and certification before the applicant is permitted to make or receive an NFA firearm. Essentially, an application does not just require a clean background check, but also the approval of a CLEO who may, but is not statutorily required to, approve the same. Many proponents of NFA Trusts argued understandably that NFA Trusts were essential in many areas of the country due to the fact that some CLEOs outright refused to approve any applications.  The Department of Justice admittedly “reassessed the need for CLEO certification and is implementing a new approach that focuses on notifying CLEOS.”[6]

Although gun rights activists may initially celebrate the elimination of the requirement that CLEOs approve and certify each individual NFA application, we need to understand this came at great costs. First, the net cost for CLEO involvement in NFA applications will increase.  The “ATF estimates that the total cost of CLEO notification requirement will be approximately $5.8 million annually ($0.5 million for individuals; $5.3 million for trusts and legal entities).  The current cost of CLEO certification for individuals is approximately $2.26 million annually.  Consequently, the final rule’s estimated net cost increase is approximately $3.6 million annually.”[7]

Second, we may no longer argue that NFA Trusts are essential due to the fact that CLEOs are not required to approve or certify any individual application. This comports with the Department of Justice’s expressed goal of essentially treating individuals, trusts and legal entities the same.

The only relevant restraint imposed by the Final Rule is that the identification and background check requirements currently applied only to individuals, will now apply equally to trusts and legal entities. To accomplish this, the Final rule “requires trusts and legal entities to complete and submit to ATF a new form (Form 5320.23), photographs, and fingerprint cards for each responsible person before the trust or legal entity is permitted to make or receive an NFA firearm.”[8]

The Final Rule defines a “responsible person’ as follows:
“[A]ny individual who possesses, directly or indirectly, the power or authority to direct the management and policies of the trust or entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or legal entity. In the case of a trust, those persons with the power or authority to direct the management and policies of the trust include any person who has the capability to exercise such power and possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, transport, or otherwise dispose of a firearm for, or on behalf of, the trust. Examples of who may be considered a responsible person include settlors/grantors, trustees, partners, members, officers, directors, board members, or owners. An example of who may be excluded from this definition of responsible person is the beneficiary of a trust, if the beneficiary does not have the capability to exercise the powers or authorities enumerated in this section.[9]”

IS IT CONSTITUTIONAL?

Unfortunately, “the right to keep and bear arms has never been unlimited.” Nat’l Rifle Ass’n (NRA) v. ATF, 700 F.3d 185, 200 (5th Cir. 2012) (quoting District of Columbia v. Heller, 554 U.S. 570, at 626). The Supreme Court held explicitly in Heller that the Second Amendment protects an individual – not a collective – right to bear firearms; however, it did not extend to “dangerous and unusual weapons” not in “common use.” See Heller, 554 U.S. at 627; see also United States v. Miller, 307 U.S. 174, 178-79 (1939) (regarding short-barreled shotguns). Courts of Appeals have consistently found NFA weapons to be “dangerous and unusual.” See United States v. Henry, 688 F.3d 637, 640 (9th Cir. 2012); Heller v. District of Columbia (“Heller II”), 670 F.3d 1244, 1263 (D.C. Cir. 2011); United States v. Marzzarella, 614 F.3d 85, 94 (3d Cir. 2010); Hamblen v. United States, 591F.3d471, 473-74 (6th Cir. 2009); United States v. Tagg, 572 F.3d 1320, 1326 (11th Cir. 2009); United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008).

Further, the Attorney General’s issuance of the Final Rule is likely lawful, given that the Attorney General is responsible for enforcing the provisions of the NFA.[10]

MOVING ON…

Many gun rights activists already condemn this Final Rule as a death blow to gun rights.  This is simply not true. While the Final Rule certainly neuters the utility of NFA Trusts, it does not restrict an individual right to make or transfer NFA firearms.  In fact, it expands the individual’s rights under the NFA by eliminating entirely the requirement for CLEO approval.

Further, the current ATF regulations already require that FFLs run a background check on any person picking up a firearm on behalf of a trust or legal entity.  Therefore, arguments that this Final Rule unduly expands background checks mistakenly ignores the fact that individual transferees of NFA Trust items already have to undergo a background check.

Moreover, the Final Rule’s amendments to the current regulations require simply that “responsible persons for trusts and legal entities will undergo a background check as a part of the application process.  Therefore, a responsible person will not have to undergo a background check at the time of the transfer from the FFL.”[11]

Those who take issue with this Final Rule should take note that “only Congress can bring a weapon under the purview of the NFA”[12] and “only Congress can remove a class of weapons from the purview of the NFA.”[13]  Therefore, those of us who disagree with the NFA should take issue with our legislature – not the ATF, nor the Attorney General.

  1. https://www.atf.gov/file/100896/download
  2. See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 214]
  3. See 78 FR 55014 (ATF 41P).
  4. See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 4]
  5. Id.
  6. See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 5]
  7. See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 6]
  8. See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 214] [Emphasis added]
  9. See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 238]
  10. Congress originally delegated the authority to promulgate NFA regulations to the Secretary of the Treasury; however, Congress re-delegated that authority to the Attorney General. See 26 U.S.C. 7801(a)(2); 28 U.S.C. 599A(c)(l); see also 26 U.S.C. Chapter 53.
  11. See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 44] [Emphasis added]
  12. See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 75]
  13. See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 77]