Need a Reference for an Attorney

16 Replies

I am a new investor in Fort Worth, TX looking for a reputable attorney for a LLC formation and associated documents with tax structuring. I have talked to a couple in my area and I'm having trouble finding an attorney that has working knowledge and experience with investors. Does anyone have any recommendations in the Westoplex of DFW?

@Matthew Sloan for flipping I suggest a basic series LLC. There is a one page form to fill out and $300 to pay to the state and it is done. I don't know if you would need anything more complicated than that. Have you researched in the process to form an LLC in Texas? I would check it out before you pay someone $200+ to do it for you.

@Ryan Blake from my research the formation of the LLC in Texas is simple. However, it's the governing and compliance documents that can cause you to loose the liability protection that the LLC offers if they are done incorrectly or do not exist.

@Ryan Blake There is no Secretary of State supplied form that creates a series LLC in TX. If you simply filled in Form 205 as supplied by the state, you do NOT have a series LLC. A series LLC must also have a compliant operating agreement with mandatory clauses in order to have a series LLC. There are several other important small details with a series LLC that a non-lawyer or a lawyer who is not an expert in series LLCs may overlook.

Most (if not all) of the DIY formed LLCs I've encountered in practice have not been correctly documented, and accordingly lack the full protections available to the owners under TX law. An experienced lawyer in LLCs really can add value when forming LLCs.

@James Miller Yes, I know you have to use the available section for additions or add an addendum to the base form to make a series LLC from the standard form to file with the state. That is what I operate under. I was just suggesting to @Matthew Sloan that he could do a little research and find all this information readily available with some time spent. Luckily we live in a business friendly state that makes this information accessible for the researched business owner. I own multiple business using a series LLC for my real eatate business, an LLC field as an S Corp from another business and I have one from a prior business just as a regular LLC (I really should close this one but it costs nothing in our state to keep it open other than the time filing the annual paperwork). One of these was opened my an RE attorney (the LLC filed as an S Corp) in Dallas I grew up with and he is the one that pointed me to all the obligatory information needed to file and sustain a proper asset protecting entity.

I was just giving him my opinion and experiences. I see that you have a different opinion and suggest he find an attorney like yourself. That is another valid option and opinion.

@Ryan Blake A very common DIY mistake I see in LLCs is someone thinking they formed a series LLC and they didn't. And usually they're figuring that out just as they incurred a large liability and it's too late to change structures without dealing with the UFTA. Another very common DIY mistake I see in LLCs are people using operating agreements and certificates of formation designed for disregarded entities and partnership entities, which typically automatically disqualify the entity from electing S-Corp status. Talk about a hefty IRS bill on your thought-it-was-an-S-Corp LLC until audited.

Hey @Matthew Sloan . I'm inclined to agree with 

@Ryan Blake that you should be looking for an attorney with experience forming Series LLCs, ideally one who has formed them for real estate investors before. Forming a Traditional LLC is fairly straightforward, but with any entity, particularly the lesser-known Series LLC, you want your documents drafted and filed correctly. This is not a "DIY project." Compliance is also an issue that an experienced attorney can help you manage. You're correct that improperly drafted documents and noncompliance could compromise the asset protection benefits of the structure.

@Ryan Blake @James Miller

Gents,

Thanks for the feedback. In talking to my CPA he said that "the local Big Boys" who have access to an army of attorneys do not use a Series LLC. They just do LLC's. He said that the only people asking for Series LLC's are "younger people" who have read some stuff online...

Why would the real estate "Big Boys" not use Series? From my limited reading it simplifies things at tax time and offer a layer of asset protection. What am I missing?

Thanks!

Originally posted by @François DesCotes :

@Ryan Blake @James Miller

Gents,

Thanks for the feedback. In talking to my CPA he said that "the local Big Boys" who have access to an army of attorneys do not use a Series LLC. They just do LLC's. He said that the only people asking for Series LLC's are "younger people" who have read some stuff online...

Why would the real estate "Big Boys" not use Series? From my limited reading it simplifies things at tax time and offer a layer of asset protection. What am I missing?

Thanks!

The following are just guesses: maybe they never took the time to learn the series-LLC statutes? Maybe they are stuck in their ways? They are quite new in TX. (Law moves slowly, almost lugubriously, so anything newer than a decade or two is sometimes the cutting edge!) Lawyers as a profession are conservative by nature in their practice, and it even took me a few years before I spent the time to learn the TX series LLC statutes and offering them as a service.

Also, there are (currently) not a lot of "forms" available in the lawyer world in Texas that properly form series LLCs, so perhaps they haven't invested the time to create forms? Series LLCs also don't have the same history of case-law in the courts that other entities do, but we could even say that about traditional LLCs versus say, limited partnerships and corporations. 

Perhaps there is a financial incentive? The way I currently price LLC formations, a TX series LLC ends up about $300 more per LLC with about $100 out of pocket per series. So a single series LLC with two series is less out of the client's pocket than two non-series LLCs.

It may also be that the "big dogs" are doing deals where the ownership percentages need to differ often. While that's possible in a series LLC, you start making the accountant's job quite difficult and it may make sense to have separate traditional LLCs. (Or separate series LLCs).

@James Miller

Thank you for the info. My personal take was them folks are stuck in their ways, including my CPA (whom I love dearly.)

Also, isn't less expensive to do your taxes with a Series LLC as opposed to a bunch of separate LLC's? That might be an incentive for accountants not to do it...

Can you remind me what asset protection advantage the Series LLC offer over a bunch of separate LLC's?

Thanks again!

@Matthew Sloan Look into the Series LLC. I am an AP attorney and we do this for clients like you nationwide. We affiliate with @Scott Smith who is on BP and was on podcast 101, he is based in TX. Podcast 101 is great information on AP and the Series LLC. Never do this yourself / DIY. Get a lawyer and talk to your CPA. I have never seen a DIY LLC or anything legal done correctly. You will not know the words or clauses to use in the initial filing where AP starts then what to include and change in the operating agreements. How to set up and link a legal trust as a member to your SLLC so that the transfer of properties into your company is done smoothly and correctly without issues with lenders or banks, etc etc, same reason you don't DIY your own medical issues. Blogs and youtube videos are not legal experts and CPAs who do this for a living. It is all in the detail with AP. Not all in the cooky cutter copy past forms. @Ryan Blake a little research will not help him DIY it. If you are planning on creating an business and a system / structure, part of your budget should be using your team and getting thing done correctly from the very beginning. 

@Matthew Sloan
@Brian Bradley --Podcast 109, my friend! It's in my signature. Agreed 100% on your last point. If you're going to do it, do it right. I can't tell you how many clients have come to me after failed DIY/lackluster formation or usage of an entity.

Matthew: I have many articles here on BP that discuss the Series LLC. You can run through the list at:
https://www.biggerpockets.com/renewsblog/author/scottsmith-2/

@François DesCotes Typically, yes. It depends on the state/jurisdiction of the LLCs involved, but a TX Series LLC for instance is only required to file "no taxes due" annually. LLCs in other states may be liable for state income taxes (times however many you have). Filing is far more straightforward for an SLLC assuming the investor is banking appropriately.

Most of the advantages of the SLLC over many Traditional LLCs are operational. It's simply easier for an investor and their hired professionals to keep track of one infinitely scaleable entity as opposed to many entities (possibly from many different states with different requirements for compliance, etc.) As for asset protection advantages, the SLLC structure is easy to pair with Anonymous Trusts and makes for an ideal holding company that never conducts business with the public. I highly recommend that investors who use an SLLC as an asset-holding company use a Traditional LLC as a shell company that conducts all business but does not actually own anything. Some investors choose to separate their operations from their activities by conducting business personally while the SLLC holds assets. An additional benefit of the SLLC is that it reduces the possibility of multiple assets being seized upon judgment. Finally, while there are established ways to pierce the corporate veil of a Traditional LLC (and therefore seize the assets it holds), the Series LLC has not been directly attacked in over two decades. The law on SLLCs is clear. While they have been involved in lawsuits, the validity of the structure itself has not been challenged. You can read more about the asset protection benefits of the Series LLC from my previous BP article comparing Traditional and Series LLCs. The comments section addresses even more specific questions as well.

I hope that helps.

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