David began practicing law in 2007. His practice is focused on the areas of estate planning and real estate transactions. David enjoys helping clients find individualized solutions to meet their personal and professional goals. David joined Smith Legal Group, LLC in January 2023 after practicing law for over 15 year at Hiestand Law Office.
David is committed to the Duneland community and likes to stay active. He is a Past President of the Chesterton-Porter Rotary Club (2013-2014), Past Chair of the Board of Directors of the Chesterton/Duneland Chamber of Commerce (2022), and member of the Board of Directors of the Duneland Economic Development Corporation. David enjoys spending time with his family and participating in local Rotary projects and groups. David has an active lifestyle, participating in various running events, playing in an over-30 men’s soccer league, and coaching both of his children’s Duneland Soccer Club teams. In 2016, he was the Race Director for the Field Station Frenzy 5K. David’s wife, Martha, is a Sixth Grade Teacher at Westchester Intermediate School and together they have two children, Ben and Ruby.
David graduated from Chesterton High School in 1999. He completed his undergraduate education at Indiana University where he majored in Economics and Political Science. He also obtained an Area Certificate in Liberal Arts and Management. While at Indiana University, David participated in leadership roles within his fraternity and IU Dance Marathon. David graduated law school at Indiana University—Bloomington, where he also earned his Masters of Business Administration from the Kelley School of Business, concentrating on Corporate Innovation and Entrepreneurship.
David is admitted to practice law in Indiana, in the United States District Court for the Northern District and in the United States District Court for the Southern District.
AREA OF PRACTICE
Estate Planning (Wills and Trusts)
Trust and Estate Administration
Real Estate Transactions
I represent both individuals and commercial clients in all types of real estate transactions. Select a box to learn more.
Real Estate Development
We represent developers of all types of real estate, including unimproved land, commercial office buildings, residential projects, and shopping centers. Our work includes drafting and negotiating purchase contracts, ground leases, site development agreements, restrictive covenant and easement agreements, and related documents pertaining to the development and use of unimproved or improved real estate. Our attorneys also have an understanding and expertise in all aspects of land use planning such as zoning, subdivision, annexation, variances, special exceptions, signage, planned unit developments and work diligently to obtain all necessary governmental approvals.
Buying or Selling a Home
Purchase Agreement The purchase agreement is a written contract which is binding upon both the buyer and the seller. If there is something that is important to you, it should be contained in the purchase agreement. At a minimum, the purchase agreement should contain the property description, price, earnest money, personal property which the seller should leave, financing, title and inspection contingencies, dates for closing and possession, and tax and cost allocations. For most people, purchasing real estate is the largest transaction they will undertake during their lifetime; you need to adequately protect yourself during the process. Financing If you are a buyer, you may want to meet with a lender prior to searching for your new home. Your lender will help you understand your anticipated mortgage payments, applicable interest rate, and the funds which will need to be escrowed. As a seller, you will want your prospective buyer to be “pre-approved” for a loan in the amount stated in the purchase agreement. Inspections The buyer should ask for acceptable inspections as a contingency in the purchase agreement. As attorneys, we see a lot of disputes develop after transactions that are the result of inadequate inspection or not fully exploring issues that are included in the inspector's report. Marketable Title/Survey The seller typically is required to provide a title insurance policy to the buyer insuring marketable title to the property. The title commitment will list all of the recorded documents which affect the property including easements and restrictive covenants. These documents should be reviewed carefully. A survey is often recommended and will help protect against boundary disputes with neighboring property owners. Insurance Your home is one of your most valuable assets and you should carry home owners insurance which typically covers damage to the property as well as general liability. Closing Typically, it takes around 30 to 45 days to satisfy all of the conditions and prepare for closing. At closing, the seller will deliver a warranty deed and each party will sign the closing statement which shows the allocation of costs and distribution of monies.
Our office has years of experience in representing suppliers, subcontractors, builders, and property owners in all aspects of construction from the initial planning stage through actual construction. On behalf of builders, suppliers, and subcontractors, we prepare supply and service contracts, pre-lien notices, mechanic’s liens, and foreclose the liens. We counsel individuals undertaking construction projects on the drafting of construction contracts with particular focus on warranties, time and delay, payment procedure, and services covered to avoid many of the unexpected problems that are encountered during the construction process.
Person Entitled to Lien A contractor, subcontractor, mechanic, a laborer, or any other person performing labor or furnishing materials or machinery for the erection, alteration, repair, or removal of a house, building, bridge, structure, sidewalk, drain, well, sewer, or any other earth moving operation may have a lien. Lien Requirements The statement and notice of intention to hold a lien must specifically set forth (i) the amount claimed, (ii) the name and address of the claimant, (iii) the owner’s name and latest address as shown on the property tax records of the county, and (iv) the legal description and street and number, if any, of the lot or land. Filing of Lien The lien notice must be recorded not later than 90 days after performing labor or furnishing materials. If the labor is performed or materials furnished to a one or two dwelling unit, the deadline for filing the lien is 60 days. Pre-Lien Notices to Owners A person who sells or furnishes on credit any material, labor, or machinery for the alteration or repair of an owner occupied single or double family dwelling to anyone other than the occupying owner must furnish the occupying owner a written notice of the delivery or work and of the existence of lien rights not later than 30 days after the date of first delivery. If it is original construction, the notice must be furnished and a copy of the written notice must be recorded not later than 60 days after the date of first delivery. Attorney Fees A lienholder who recovers a judgment in any sum is entitled to recover reasonable attorney’s fees unless the property owner paid the contract consideration. Foreclosure of Lien The complaint to enforce a lien must be filed not later than one year after the lien was recorded.
New Home Construction
Construction Contract In a construction contract, the scope of work and allowances should be carefully reviewed. Also, consider inserting an outside completion date with a penalty for late delivery. Finally, make sure you have the right to inspect the home during the building process and prior to closing — just because a home is new does not mean it was properly built. No Lien Provision A contract for the construction of a home may include a provision that a lien may not attach to the real estate or any improvement of the owner. To be effective against subcontractors/suppliers the contract must be recorded not more than 5 days after execution. Contractor’s Affidavit and Lien Waivers Any payment request should be accompanied by a sworn contractor’s affidavit and lien waivers from the subcontractors and suppliers. If lien waivers are not provided, the check should be payable to the general contractor and subcontractor/supplier to ensure the subcontractor/supplier receives payment. Responsibility to Subcontractors and Suppliers A subcontractor/ supplier may have the right to file a lien against the real estate even if you pay the general contractor in full. In addition, if you receive a notice of personal liability, you may be responsible to the subcontractors/suppliers for the amount paid directly to the general contractor after receiving the notice if the general contractor fails to pay the subcontractors/suppliers. Holdback If you close prior to completion, make sure that sufficient funds are held back (escrowed) at closing to motivate the builder to complete the remaining items — typically 200% of the cost of the items. Statutory Warranties If your new home is defective, there are statutory warranties provided by a new home builder (unless properly disclaimed) which may provide you some help. However, before filing a lawsuit, there is a statutory notice and dispute procedure with which you must comply.
Your estate plan needs to be customized for your individual situation. Select a box to learn more.
Indiana Probate Law
Everyone has an Estate Plan Provided by the State Whether or not you have ever stepped foot into an attorney’s office, you already have an estate plan. The State of Indiana provides an estate plan for everyone. If you do not take steps to change the plan, the State will decide how your assets are distributed upon your death. This collection of statutes, known as the Probate Code, is available on the as Title 29 Article 1 of the Indiana Code. An Indiana resident that dies without a will dies intestate, which means that the distribution of their probate assets will be determined by the State of Indiana. Beneficiary Designations Many people make designations on their retirement, investment, and other financial accounts. These designations tell the institution holding the asset what to do with it when you die. Unintended Consequences Did you know that if you die without a will as a married person (and without children), the Probate Code says that your parents will be entitled to a portion of your assets? This can deprive your spouse of necessary resources to move on after your death. This is a surprise to most of our clients. The simple solution to this quirk in the Probate Code is to have a will prepared by an attorney knowledgeable about estate planning issues. An attorney can discuss the best way to distribute your assets and help plan for any possible state or federal taxes that may result from your death. This may include a will, trust, or changing beneficiary designations on your assets. Typically, an attorney-prepared estate plan will also include advanced health care directives (including living will) and a power of attorney document. Take Charge of Your Estate Plan It is important to be informed about the estate plan that the State has provided you. If you want to take charge of your family’s future by reviewing your estate plan, please contact us to help you navigate these important issues.
Parts of Your Estate Plan
Your estate plan will consist of a few different documents. Some of the documents that we prepare are listed below. Additional documentation may be needed for your particular situation. Will A will provides for the disposition of your property upon your death. It provides you the opportunity to specify who will receive your property, who will manage your estate (your personal representative), and who you would like to act as guardian of your minor children. A will may be revoked or changed at any time before your death (although it is possible to create a will which cannot be changed). Living Trust (Revocable Trust) A living trust allows you to avoid probate and keep your financial matters private; however, it does not avoid death taxes. During your lifetime, you are the trustee of the trust and can change the terms of the trust. Upon your death or disability, the successor trustee would manage the trust property and distribute the trust assets to accordance with the terms of the trust. In conjunction with establishing a trust, it is important to actually transfer your assets to the trust. General Durable Power of Attorney A power of attorney appoints another person to act on your behalf. The person appointed is your “attorney-in-fact” and has a fiduciary obligation to act on your behalf. A general durable power of attorney is unlimited (covers all acts) and will continue to be effective even if you are incapacitated. A general durable power of attorney will hopefully eliminate the need for a court-appointed guardian in the event you are unable to manage your own affairs. Advance Health Care Directives Advance Health Care Directives appoint another person to make your health care decisions in the event you are unable to do so. They also typically information that states, in the event of a terminal illness, life prolonging procedures are not to be used or are to be withdrawn if they have already been used.
Explanation of Probate Process
Probate Explained What is Probate? One of the first concerns our clients have when they meet with us to discuss their estate plan is that they want to avoid probate. Probate is a common term for the administration of a a person’s estate through the local court system. The probate system in Indiana is not overly burdensome but it may cause some delays in distributing assets and also exposes many of your estate documents as public records open to review. So, when is probate required and how can clients avoid probate? We use a simple two-prong test for determining what assets will become probate assets: Assets that are in one person’s name (not owned jointly); and Assets that have no agreement in place as to what happens to them when you pass away. For married couples, there are likely no probate assets (and probate is not required) on the first death. Married couples tend to own assets jointly and any individual assets (such as retirement assets) have beneficiary designations. One common expression we use for married couples is that “we are planning for the second death.” It is not until the second death that a probate estate is likely to occur. How to Avoid Probate The are several simple approaches to avoid probate if the client desires it. All of the approaches to avoid probate either deal with the first prong or second prong of our probate test. A revocable trust is the first approach. When you put your assets in a revocable trust, it is no longer a probate asset because it is no longer in your name alone; it is owned by the revocable trust. Owning assets jointly is the next way to fail the first prong and avoid probate. By changing ownership of assets from individual to joint ownership, you are postponing probate until the death of the surviving joint owner. Making a transfer on death designation for assets that you keep in your individual name. This creates an agreement as to what happens to the asset and it now fails the second prong. Changing beneficiary designations to your family and friends. This is a common method used for retirement accounts and life insurance proceeds. This also creates an agreement as to what happens to the asset. These approaches can seem simple but it is important to meet with an attorney that can review your objectives and goals while making the decision how to best handle your estate plan. We have met with clients that have similar assets but very different goals or family situations; these clients end up with different estate plans.
Trust and Estate Administration
When you are faced with the loss of a loved one, the legal aspects of settling an estate or trust can be overwhelming. We will work closely with you in the administration of the estate or trust. We will assist you in the collection, appraisal, and preservation of assets and ensure that all interest, dividends, or other incomes are received. We will help you sort out the claims and liabilities which must be paid and work to minimize the taxes and administrative costs. We will prepare and file all required pleadings, reports and returns. If you are thinking about a person to put in charge, we recommend someone that is organized and will be able to keep accurate records. This person should also be able communicate with all of your potential heirs.
Advance Health Care Directives
Your advance health care directives address who will be in charge of making medical decisions on your behalf if you cannot make those decisions for yourself. The directives also allow the nominated person access to your private health information. The last part of your directives allows you to make choices regarding end-of-life treatments that your designated person will use in making those decisions on your behalf.
Starting a New Business
Entity Selection Common types of entities are sole proprietorships, general partnerships, limited partnerships, corporations (“C” corporations or “S” corporations), and limited liability companies. Limited partnerships, corporations, and limited liability companies are required to file with the Indiana Secretary of State. Tax Applications Your new business will need an employer identification number (Form SS-4) and you will need to file an Indiana Business Tax Application (Form BT-1). If you elect to be taxed as an “S” corporation, that election will also need to be made. You may work with your accountant or CPA to file these forms. Licenses and Permits Depending on the type of business, you may be required to obtain licenses or permits. Assumed Name Certificates If you plan on operating your business under a name different than its legal name, you must file a Certificate of Assumed Business Name with the Indiana Secretary of State. Finance If you are contributing money to your new business, it can be considered capital (investment in the company) or a loan (which must be repaid) — this classification has important tax consequences. Outside financing may be obtained through loans from financial institutions (possibly SBA loans), loans from venture capitalists/angel investors, loans from friends and family, or public/private offerings of stock/ownership interests (subject to securities laws). Hiring Employees You must register your business with the Indiana Department of Workforce Development (Report to Determine Status) to create a state unemployment account. Also, it is very important to obtain workers compensation insurance.
Sole Proprietorship A sole proprietorship is a business in which one person owns all the assets, owes all the liabilities, and operates in his/her personal capacity. A sole proprietorship is the easiest type of entity to form and operate; however, the owner is personally liable for all of the obligations of the business. General Partnership A partnership is an association of two or more persons to operate a business for profit. No filing is necessary to form a general partnership. All the income and losses flow through the entity and are taxed to or deducted by the partners. Each partner is jointly and severally liable for the obligations of the partnership and each partner has the power to act on behalf of the partnership. Limited Partnership A limited partnership is a partnership that has general partners and limited partners. Only the general partner is personally liable for the partnership’s obligations and, in exchange, the limited partners have no right to act on behalf of the partnership. A limited partnership must comply with statutory requirements. Corporation A corporation is a legal entity created by statute which has shareholders (owners), directors, and officers. Shareholders are not personally liable for the corporation’s obligations (except in rare instances). A “C” corporation is subject to taxation at the corporate level and then dividends are taxed at the shareholder level. An “S” corporation may only have one class of stock and has a single level of taxation (income and losses are passed through to the shareholders). Corporations must comply with many statutory requirements (annual meetings, record keeping). Limited Liability Company A limited liability company is an unincorporated association created by statute in which the owners are called members. The company may be member-managed (the owners control the day-to-day activities) or manager-managed (the owners appoint a manager to handle the day-to-day activities). Members are not personally liable for the company’s obligations (except in rare instances). A limited liability company may be taxed as a disregarded entity, partnership, or “S” corporation.