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Stuart’s Blog, A Look at Probate, for March 3, 2014

 

What is probate and when is it required?

Probate is the process, required by law after someone passes away, to properly dispose of that person’s assets.  In California, probate is required if the total assets of the decedent’s estate are greater than $150,000.00.

The first thing you need to do is find a local probate attorney to petition the probate court to accept the executor named in the will.  Once the court accepts this person, he or she can begin to inventory the assets of the deceased.

Creditors must be notified by posting a notice of the death of the testator in the local paper and must be given six months to file any outstanding claims.  Once all claims have been settled, using the assets from the estate, the executor can distribute the remaining assets as directed in the will.

This process usually takes a year to complete but can take much longer if there are any complications or contests to the will.

A good probate attorney will lead you through this process and help assure that the wishes of the testator are complied with.

 

 

Jill’s Blog: A First Look at Wills, for February 24, 2014

Did you ever notice how easy it is to avoid doing something you don’t want to do?

Have you thought you should write your will, but you never get around to doing it?

Unless you are powerfully motivated, either to make sure somebody is taken care of in your absence, or to keep somebody else from getting your assets, it’s probably not on your “things to do today” list.

We hear the term “will” frequently, but what is it, exactly?

A will tells our heirs what we want done with our property after we die. It can be handwritten, prepared by a lawyer after a discussion on your circumstances and wishes, or you can record a video where you tell your heirs, or those who think they should be, what you want done with your property. This is referred to as “the disposition of your assets.”

A will can be as simple as a few words written in blood on a tractor fender when the writer realized his death was imminent, as described in Wikipedia.  Or it can be a detailed plan for the itemized distribution of every asset, owned or potential. Most people find something in between those extremes.  Either way, it is wise to think about it and make a plan that fits your choices.  It is, of course, one of those things that may not be done the way you want if you wait too long.

It is our goal to make you aware of some of your choices, and some of the terminology, which may be foreign to many people. For example, a testator is the person who makes the will and decides how his property is to be distributed, to whom and in what form. You may also hear of a holographic will, in which the essential elements are written in the testator’s handwriting, instead of being typed or printed.

Another term you may hear is undue influence, which means just what it says: somebody may appear to have controlled the testator’s actions or decisions in some way that the testator otherwise would not have done. Undue influence is presumed if:

A beneficiary is one of the two required witnesses to the will, or
A person with a confidential (lawyer-client, doctor-patient, clergy-penitent) relationship with the testator, improperly benefits from that relationship.

We will discuss this further. If you have any questions, please e-mail us.

Jill’s Blog for the week of February 10, 2014:

Sometimes we forget how long ago and how diligently we studied to learn the language of the law. Sometimes we forget that not everybody is comfortable with those words. Here are a few definitions (paraphrased from Black’s Law Dictionary) so we all know what we mean:

Disinherit: when someone who expects to be in the will is not going to benefit from it.

Asset: an item that is owned and has value, such as cash, real estate, and/or the property of a deceased person available for paying the decedent’s debts.

Contested: a matter at issue, in dispute.

Decedent: a person who has died.

Incapacitated Person: someone who is impaired by mental or physical illness or disability to the extent he or she cannot make binding decisions or have legal consequences attach to those decisions. For example, a minor child generally cannot be required to act as she promised in a contract. There are exceptions for necessities of life, i.e., food and shelter.

i.e.: abbreviation meaning “for example”, or “such as”

Designee or Designated Person: a person authorized to act for another, generally because the other is incapacitated or otherwise not available.

Contract: an agreement, written or oral, between two or more persons where each agrees to do something. A contract is binding if the terms are enforceable, i.e., the terms and the act(s) promised are legal. The parties are the people who make the contract.

Agent: generally, one who is authorized to act for another in a variety of situations.

Trust: Very generally, a trust is a document where a trustee holds title of the property at the request of the settlor for the benefit of another, the beneficiary. A valid trust must identify the specific property, describe the settlor’s intent in making the trust, and be created for a legal purpose.

Trustee – person who holds title in trust for the beneficiary
Settlor – person who owns the asset and sets up the trust
Beneficiary – person or other entity who benefits from the trust

We hope this helps make what we write easier to understand. Sometimes, we have to use the specific words to make our meaning clear to those who interpret it, like judges. If you aren’t sure what we mean, ask us.

Jill’s Blog – Planning for the Future February 3, 2014

Are you hoping that if you don’t think about it, you won’t die?  Nice thought, but most of us do not achieve immortality. So far, we cannot take it with us, at least not in a usable fashion. This blog is for those who, reluctantly, acknowledge the need to make some preparations.

We suggest you start by considering whom you wish to provide for, and what assets you have available.

These are the usual methods:

A will is a document that transfers your assets to those you choose to use as they wish after you are gone.

A trust allows you to designate a trustee to oversee how your assets will be used to provide for your heirs, according to guidelines you establish.

If you do not take affirmative action to direct the disposition of your assets, the state will distribute your assets through the rules of intestacy.  Intestate succession means you have no will, and the rules the state has established will control the way your assets are distributed.  If you have a legal spouse and no other heirs, your spouse will take it all.  If you have a legal spouse and children, your spouse will take a share, and the children will take another share to be divided equally among them.  If you do not have a spouse or children, other relatives, such as parents and siblings or grandparents, will take according to the law of the state.

If you have no relatives or other designated legal heirs, your assets will revert to the state.

This gives you information to start, and may bring up some questions, such as:

When should I use a trust, or a will?

What if I am OK with the intestate succession?  Do I need a will?

What about probate?  Estate taxes?  What are the limits?

What about asset transfer while I am alive?

We will be adding more information soon.  Let us know if you have other questions you would like discussed.

Jill’s Blog for the week of January 27, 2014

Why did we decide to go with a virtual law office instead of the traditional brick and mortar?

We went to a virtual law school instead of a brick and mortar school. We learned what can be done on the internet with experience and creativity.  We became comfortable attending lectures where we could see and talk with the professor and our classmates. We took tests online, submitted our homework online, and achieved legal as well as technical knowledge and experience.

From these experiences, we firmly believe this is the law practice of the future.

We found out about the economies of using the internet.  Our tuition was considerably less expensive because the school did not have to maintain large physical facilities.  We learned from some of the most noted law professors in the country – at substantially lower cost because those lectures could be and were recorded and reproduced.  The professors we worked with every week “met” with us from wherever they lived and worked. 

The question then became how we could practice law according to California Rules from the internet.  Stu learned about this, and approached me about working with him in this venture.  We think it is a new and exciting opportunity on the cusp of a major change in how law is practiced.  We wanted in on it, and we think you will want to try it as well.

Keep checking back with us, as we update these blogs to explain how we can help you!

Jill’s Blog: Advance Directive for Health Care – January 20, 2014

What’s an Advance Directive for Health Care? Why might I need or want one?

An Advance Directive for Health Care is exactly what it sounds like: It speaks for you if you cannot speak for yourself. It lets you choose while you can, and lets a person you choose speak for you if you cannot.

It’s that same old “What if” thinking I’ve been encouraging you to do!

If you only have elective or non-emergency medical procedures, you may not need to make one before you have a specific need. However, life does not always give you that choice, and the Advance Directive covers the unplanned issues, like an accident or sudden incapacitating illness.

If you go in for elective surgery, there is no immediacy because you are coherent and capable of telling the medical staff what you want done if things go wrong. In fact, you will usually complete an Advance Directive as part of your admission papers, if you don’t already have one.

However, let’s take another look at Mr. What If. What if you are going along minding your own business, perfectly healthy, and an accident or sudden incapacity occurs? You could be unconscious, and thus unable to tell the medical staff what choices you would make in this circumstance.

If you have an Advance Directive, the person you designate to make those choices for you already knows how you would want to handle it, and has the authority to enforce your wishes.

Your representative should be someone who knows you well, knows what you would want, and will stand strong for you if others seek to impose their choices for you. It is also a good idea to designate successor representatives, in case your first choice is not able to represent you when the need arises.

The best defense really is a good offense – and a good plan! We can help you make your plan.

Welcome to the Stuart E. Richardson, Esq., Blog!

Welcome to the Web site of Stuart E. Richardson’s law firm!

This is our first blog post. Our goal is to make regular posts in this blog in the areas of Wills and Trusts, Corporate Law, and Collection matters. Our posts will be mostly designed to educate our readers in these areas.  These areas of law are also constantly evolving; therefore, we will attempt to post major changes as soon as they become known to us. However, we will occasionally make posts in other areas that interest small businesses and individuals such as landlord/tenant law.

Please remember that none of our posts is to be construed as legal advice. For legal advice in your particular matter, please contact us or other attorneys to help you.

One last thing – unless otherwise stated, all of the posts here will be based on California law.