Title: July 23, 2008
Q: Does my prenuptial agreement need to address the commingling of assets?
A. The commingling of assets usually will signify a forfeiture of the protection afforded in the prenuptial agreement with regards to the particular assets that have been commingled. Once commingled, it will be difficult to separate these assets from the rest. Typically, the parties commingle because their intent is to share the entire value of the commingled assets. A prenuptial agreement can certainly address such subject, but it might be a waste of paper to do so, not to mention a waste of the time and energy it takes to draft the paragraph addressing the issue.
Q. MSA: What is it? Must I go to Court to deal with it?
A. An MSA stands for “Marital Settlement Agreement”. It is a document that enumerates all the issues the parties are in agreement with, regarding their dissolution of marriage. Typically, if drafted by an attorney, it will address every issue that pertains to the parties’ divorce, including child custody and visitation, child and spousal support, division of assets and debts, division of retirement benefits, division of business interests, if any, and all other issues that usually arise in the course of a dissolution of marriage. If properly drafted, the parties usually do not have to go to Court in order for the Court to process the Judgment and ancillary papers. This is usually the best way to resolve all issues relating to a divorce (aka dissolution of marriage).
Q. What is a limited Non-durable Power of Attorney for Minor (child/children) care?
A. Typically, it is an authorization by the natural parents or the parties who are usually liable for the care of the child/dren to appoint an agent or agents to care for the child/dren during their absence from the country or their unavailability for any other reason. Such authorization can include, and is not limited to, the right to consent to any necessary medical or dental treatment, or non-medical decisions required for the personal care of the child/dren and every act performed by the agent(s) is ratified by the parent(s) of the child/dren. Such limited Power of Attorney is granted for the duration of the parents’ absence from the country.
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Showing posts with label assets. Show all posts
Showing posts with label assets. Show all posts
Tuesday, March 24, 2009
Legal Eaze #93 Separate Vs. Marital Assets/Vacation Pay/Uncontested Divorce
Title: July 2, 2008
Q. What is considered “separate” assets vs. “marital” assets?
A. A separate asset would be an asset obtained through inheritance, bequest or gift from a relative or personal friend. Let’s say you received a house in a will from your deceased mother, that house would be considered your separate asset. Marital assets are the assets you purchase during a marriage with either one or both spouses’ income or retirement funds (if accumulated during the marriage), such as the family residence, cars, jewelry, or any other asset.
Q. I have been working for a company since November of ’05. Last year, I received one week vacation pay. I have recently quit. Do I have any more vacation pay coming?
A. That depends on the company employee policy. Did you get an employee manual when you started working there? Every company is different. It appears that the company gives 1 week vacation per year, but it is only a guess. You would have to contact the company and inquire as to whether or not you are entitled to vacation pay. Again, company policy is the rule here. Companies do not have to give paid vacation to their employees. It is not a written law, but it is advisable for companies to give time off to their employees if only to keep them working for the company. There are too many other companies that want to treat their employees well for retention’s sake.
Q. What is an “uncontested” divorce?
A. It is a dissolution of marriage where the parties are in agreement with all the terms that need addressing in a divorce, such as division of assets and debts, child custody and visitation. In such an event, a marital settlement agreement is usually drafted, could be by an attorney or a para-professional, the parties sign it, the Judge signs it and it them becomes part of the Judgment.
Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Q. What is considered “separate” assets vs. “marital” assets?
A. A separate asset would be an asset obtained through inheritance, bequest or gift from a relative or personal friend. Let’s say you received a house in a will from your deceased mother, that house would be considered your separate asset. Marital assets are the assets you purchase during a marriage with either one or both spouses’ income or retirement funds (if accumulated during the marriage), such as the family residence, cars, jewelry, or any other asset.
Q. I have been working for a company since November of ’05. Last year, I received one week vacation pay. I have recently quit. Do I have any more vacation pay coming?
A. That depends on the company employee policy. Did you get an employee manual when you started working there? Every company is different. It appears that the company gives 1 week vacation per year, but it is only a guess. You would have to contact the company and inquire as to whether or not you are entitled to vacation pay. Again, company policy is the rule here. Companies do not have to give paid vacation to their employees. It is not a written law, but it is advisable for companies to give time off to their employees if only to keep them working for the company. There are too many other companies that want to treat their employees well for retention’s sake.
Q. What is an “uncontested” divorce?
A. It is a dissolution of marriage where the parties are in agreement with all the terms that need addressing in a divorce, such as division of assets and debts, child custody and visitation. In such an event, a marital settlement agreement is usually drafted, could be by an attorney or a para-professional, the parties sign it, the Judge signs it and it them becomes part of the Judgment.
Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Legal Eaze #91 Statutory Rape Custody/Revocable Living Trust
Title: May 28, 2008
Q: My daughter, who just turned 18 years old, had a child with a man who has a criminal record. They never married. The baby is a little over 2 years old now. My daughter wants to have sole custody of the child, but this man insists that he wants joint custody of the child and wants to be involved in the life of the child. What should we do?
A: If your daughter just turned 18 and the baby is over 2 years old, this man committed statutory rape. Your daughter was only 16 years old when she gave birth to the child, and was probably only 15 when she was impregnated. She needs to file a Paternity action with the Court to establish who will have custody of the child and also to establish how much child support this man must pay to her. She could certainly also file charges against him for statutory rape. If he already has a criminal record in addition to the statutory rape charge, it is unlikely that he will obtain any kind of custody of this child.
Q: If older people with families from previous marriages get married again, how do they each protect what they want to leave to their own children or grandchildren?
A: By having a Revocable Living Trust prepared, called an A-B Revocable Living Trust. Each trustor basically sets up his/her own trust, although the A-B Trust is usually combined in one book. Each trustor can give his/her assets to members of a previous family, or friends, or a charity or church. Such a trust is very flexible and there are numerous ways of leaving one’s assets to beneficiaries. If one trustor dies before the other, that portion of the Trust becomes irrevocable, and assets from the deceased trustor can be distributed according to the deceased trustor’s wishes, right then and there. I highly recommend that everyone have a Living Trust. If you own a house in California, you should have a Living Trust. The threshold for an estate to have to go through the Probate process when one dies is $100,000. Even though the real estate market is in a downward mode at this time, it is unlikely that your house is worth less than $100,000. Do not think that only the equity is counted towards the minimum threshold. It does not matter that you have a mortgage still on the house. It is the value of your entire estate, i.e. bank accounts, stocks, bonds, cars, jewelry, art, real estate, boat, RV. All will be added up towards the minimum threshold. Having a Living Trust and transferring your assets into the Living Trust will protect your beneficiaries from having your estate go through Probate Court and will instead be transferred directly to them through a minimal process.
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Q: My daughter, who just turned 18 years old, had a child with a man who has a criminal record. They never married. The baby is a little over 2 years old now. My daughter wants to have sole custody of the child, but this man insists that he wants joint custody of the child and wants to be involved in the life of the child. What should we do?
A: If your daughter just turned 18 and the baby is over 2 years old, this man committed statutory rape. Your daughter was only 16 years old when she gave birth to the child, and was probably only 15 when she was impregnated. She needs to file a Paternity action with the Court to establish who will have custody of the child and also to establish how much child support this man must pay to her. She could certainly also file charges against him for statutory rape. If he already has a criminal record in addition to the statutory rape charge, it is unlikely that he will obtain any kind of custody of this child.
Q: If older people with families from previous marriages get married again, how do they each protect what they want to leave to their own children or grandchildren?
A: By having a Revocable Living Trust prepared, called an A-B Revocable Living Trust. Each trustor basically sets up his/her own trust, although the A-B Trust is usually combined in one book. Each trustor can give his/her assets to members of a previous family, or friends, or a charity or church. Such a trust is very flexible and there are numerous ways of leaving one’s assets to beneficiaries. If one trustor dies before the other, that portion of the Trust becomes irrevocable, and assets from the deceased trustor can be distributed according to the deceased trustor’s wishes, right then and there. I highly recommend that everyone have a Living Trust. If you own a house in California, you should have a Living Trust. The threshold for an estate to have to go through the Probate process when one dies is $100,000. Even though the real estate market is in a downward mode at this time, it is unlikely that your house is worth less than $100,000. Do not think that only the equity is counted towards the minimum threshold. It does not matter that you have a mortgage still on the house. It is the value of your entire estate, i.e. bank accounts, stocks, bonds, cars, jewelry, art, real estate, boat, RV. All will be added up towards the minimum threshold. Having a Living Trust and transferring your assets into the Living Trust will protect your beneficiaries from having your estate go through Probate Court and will instead be transferred directly to them through a minimal process.
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Legal Eaze #90 Rental Car Wreck/Pour-Over Will/Checking Credit Report/Power of Attorney
Title: April 16, 2008
Q. I rented a car recently. Because I was working when the car was due for return, I asked my brother to return it for me. My brother wrecked the car on the way to the rental car office. Now, I owe a lot of money. What do I do?
A. It depends on the rental contract you signed. If you had to name the authorized drivers when you entered into the rental contract, and your brother was not one of them, yet you let him drive the car back to return it, then it is your responsibility to pay for the damages. If you had insurance on the rental car, then let the insurance pay. If you had no insurance to protect you from this kind of occurrence, then shame on you.
Q. If I have a living trust prepared for me, do I still need a will?
A. Yes, it is called a “pour-over will” and is usually part of a Trust package. The pour-over will is a catch-all document, that will “catch” any assets you forgot or failed to transfer to the trust. Sometimes, an asset worth a substantial amount of money has not been transferred, and if the asset is worth over $100,000, the threshold amount to necessitate that a Probate case be opened in Court, hence it is a good idea to have a Pour-over will drafted so as to make your wishes known with regards to your un-transferred assets.
Q. Will checking my own credit report appear on the credit report as an inquiry for credit?
A. No. New credit applications will appear as an inquiry, but you have the right to verify all credit report entries to ensure they are accurate. Your own verification will not be used as an inquiry for credit. In fact, most credit card companies check your credit report every month. These checks are not reported as credit inquiries. Only new applications for credit are counted.
Q. When does a Power of Attorney for Medical Care go into effect, and how long it is effective?
A. It depends on how the POA was drafted. Most of them become effective when one or two physicians declare you incompetent. Some of them become effective on the date they are signed. If you do not wish a POA to be effective upon signature, then you need to make sure the POA contains a clause that only makes it effective upon your incapacity for making medical decisions about yourself, and are nul and void upon your recovery.
Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Q. I rented a car recently. Because I was working when the car was due for return, I asked my brother to return it for me. My brother wrecked the car on the way to the rental car office. Now, I owe a lot of money. What do I do?
A. It depends on the rental contract you signed. If you had to name the authorized drivers when you entered into the rental contract, and your brother was not one of them, yet you let him drive the car back to return it, then it is your responsibility to pay for the damages. If you had insurance on the rental car, then let the insurance pay. If you had no insurance to protect you from this kind of occurrence, then shame on you.
Q. If I have a living trust prepared for me, do I still need a will?
A. Yes, it is called a “pour-over will” and is usually part of a Trust package. The pour-over will is a catch-all document, that will “catch” any assets you forgot or failed to transfer to the trust. Sometimes, an asset worth a substantial amount of money has not been transferred, and if the asset is worth over $100,000, the threshold amount to necessitate that a Probate case be opened in Court, hence it is a good idea to have a Pour-over will drafted so as to make your wishes known with regards to your un-transferred assets.
Q. Will checking my own credit report appear on the credit report as an inquiry for credit?
A. No. New credit applications will appear as an inquiry, but you have the right to verify all credit report entries to ensure they are accurate. Your own verification will not be used as an inquiry for credit. In fact, most credit card companies check your credit report every month. These checks are not reported as credit inquiries. Only new applications for credit are counted.
Q. When does a Power of Attorney for Medical Care go into effect, and how long it is effective?
A. It depends on how the POA was drafted. Most of them become effective when one or two physicians declare you incompetent. Some of them become effective on the date they are signed. If you do not wish a POA to be effective upon signature, then you need to make sure the POA contains a clause that only makes it effective upon your incapacity for making medical decisions about yourself, and are nul and void upon your recovery.
Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Legal Eaze #89 Paying For Free Gift/Debt Collection Statute of Limitations/Joint Revocable Living Trust
Title: April 2, 2008
Q. I received a book in the mail that I did not order. The box had printing on it describing the contents as a free gift. There was no bill enclosed, therefore I assumed it was indeed a free gift. I just received a bill for $36.00. Do I have to pay for a “free” book or waste an hour of my time waiting in line at the post office to return a book I did not order?
A. You do not have to pay nor do you have to return the book and pay for postage out of your own pocket to return something you did not order. I hope you kept the box as well as the bill. I would write a letter to the sender stating exactly that: you will not pay for this book because you did not order it, and because you thought it was a gift, nor will you pay for postage to return it.
Q. Is there a statute of limitations on collection of debts?
A. Yes there is. If the debt was incurred as a result of a written contract, the statute of limitations is 4 years. If the debt was made orally, the statute is 2 years. Very often, some collection agencies will buy debt in bulk for a couple of pennies on the dollar owed and will then attempt to collect on the debt. Sometimes, the debt is 10 to 15 years old. The collectors can really harass people, calling them at all times of day and night, calling at work, despite laws that protect from this kind of harassment. Often, the debtors don’t know any better and pay the debt. The statute of limitations will protect the debtors, but the collection agency can place a derogatory note on the debtor’s credit report. If that happens, it falls upon the debtor to respond and ask the credit reporting agency to put a note written by the debtor explaining why that particular debt has not been paid. If the debt is older than 10 years, the credit reporting agency cannot still report it. Even when a debtor files for bankruptcy, the debts unpaid due to a bankruptcy cannot be reported for longer than 10 years.
Q. If older people with families from previous marriages get married, how do they each protect what they want to leave to their own children or grandchildren?
A. By setting up a Joint revocable Living Trust. When one spouse dies, that spouse’s half of the trust becomes irrevocable, and whatever assets are in it will get transferred to the intended beneficiaries.
Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Q. I received a book in the mail that I did not order. The box had printing on it describing the contents as a free gift. There was no bill enclosed, therefore I assumed it was indeed a free gift. I just received a bill for $36.00. Do I have to pay for a “free” book or waste an hour of my time waiting in line at the post office to return a book I did not order?
A. You do not have to pay nor do you have to return the book and pay for postage out of your own pocket to return something you did not order. I hope you kept the box as well as the bill. I would write a letter to the sender stating exactly that: you will not pay for this book because you did not order it, and because you thought it was a gift, nor will you pay for postage to return it.
Q. Is there a statute of limitations on collection of debts?
A. Yes there is. If the debt was incurred as a result of a written contract, the statute of limitations is 4 years. If the debt was made orally, the statute is 2 years. Very often, some collection agencies will buy debt in bulk for a couple of pennies on the dollar owed and will then attempt to collect on the debt. Sometimes, the debt is 10 to 15 years old. The collectors can really harass people, calling them at all times of day and night, calling at work, despite laws that protect from this kind of harassment. Often, the debtors don’t know any better and pay the debt. The statute of limitations will protect the debtors, but the collection agency can place a derogatory note on the debtor’s credit report. If that happens, it falls upon the debtor to respond and ask the credit reporting agency to put a note written by the debtor explaining why that particular debt has not been paid. If the debt is older than 10 years, the credit reporting agency cannot still report it. Even when a debtor files for bankruptcy, the debts unpaid due to a bankruptcy cannot be reported for longer than 10 years.
Q. If older people with families from previous marriages get married, how do they each protect what they want to leave to their own children or grandchildren?
A. By setting up a Joint revocable Living Trust. When one spouse dies, that spouse’s half of the trust becomes irrevocable, and whatever assets are in it will get transferred to the intended beneficiaries.
Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Legal Eaze #83 Intestate Assets/Paralegal Paperwork
Title: December 26, 2007
Q. My boyfriend of 7 years and I bought two adjoining properties in Los Angeles County. The house was built on my side. Utilities were installed on my side, but are connected to his side to operate machinery, and provide water and electricity to various out buildings he installed on his side. He died 2 years ago. He left no will. Now his mother wants to take over and take away out buildings, and various items that we purchased together but located on his side. Do I have any rights?
A. If I understand you correctly, your boyfriend died intestate. This means all of his assets will be distributed according to intestate laws. If he has no children, his assets will go to his parents, if they are still alive. If not, next his assets will go to his brothers and sisters and/or aunts and uncles, then grandparents and nieces and nephews. Since you were not married to him, you have no rights to his assets, however if you can prove that you participated in the purchase of the items being taken away by your boyfriend’s mother, such as having receipts in your possession, then you can claim ownership of these items. If you do not have any proof that you participated in the purchase of the items, and they are located on his side, then they belong to his heirs and not you. This is why it is so important to have at least a will drafted so that your assets will be distributed to the people you decide should inherit them rather than the persons the state of California decide should get them.
Q. I represent myself in my own divorce and hired a paralegal to fill out all the paperwork to be filed in court. Come to find out that the paperwork was filled out incorrectly and now my divorce has turned into a nightmare. What do I do now?
A. Hire an attorney to represent you. All is not lost. Legal paperwork can be amended. Paralegals are not attorneys and they cannot practice law. Many are quite knowledgeable and can do wonders with the court paperwork, but not all. Unfortunately, paralegals do not have to answer to the California State Bar and cannot be sued for malpractice. It is true that attorneys charge more for their services, but rightfully so. They do answer to the California State Bar and can be sued for malpractice.
I wish all of my readers to have good cheer, good food and good company for very Happy and Safe Holidays.
Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Q. My boyfriend of 7 years and I bought two adjoining properties in Los Angeles County. The house was built on my side. Utilities were installed on my side, but are connected to his side to operate machinery, and provide water and electricity to various out buildings he installed on his side. He died 2 years ago. He left no will. Now his mother wants to take over and take away out buildings, and various items that we purchased together but located on his side. Do I have any rights?
A. If I understand you correctly, your boyfriend died intestate. This means all of his assets will be distributed according to intestate laws. If he has no children, his assets will go to his parents, if they are still alive. If not, next his assets will go to his brothers and sisters and/or aunts and uncles, then grandparents and nieces and nephews. Since you were not married to him, you have no rights to his assets, however if you can prove that you participated in the purchase of the items being taken away by your boyfriend’s mother, such as having receipts in your possession, then you can claim ownership of these items. If you do not have any proof that you participated in the purchase of the items, and they are located on his side, then they belong to his heirs and not you. This is why it is so important to have at least a will drafted so that your assets will be distributed to the people you decide should inherit them rather than the persons the state of California decide should get them.
Q. I represent myself in my own divorce and hired a paralegal to fill out all the paperwork to be filed in court. Come to find out that the paperwork was filled out incorrectly and now my divorce has turned into a nightmare. What do I do now?
A. Hire an attorney to represent you. All is not lost. Legal paperwork can be amended. Paralegals are not attorneys and they cannot practice law. Many are quite knowledgeable and can do wonders with the court paperwork, but not all. Unfortunately, paralegals do not have to answer to the California State Bar and cannot be sued for malpractice. It is true that attorneys charge more for their services, but rightfully so. They do answer to the California State Bar and can be sued for malpractice.
I wish all of my readers to have good cheer, good food and good company for very Happy and Safe Holidays.
Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Legal Eaze #69 Hit and Run/Will
Title: May 23, 2007
Q. I attended a court hearing and parked my car on the street in front of the Courthouse because there was simply no parking available in the parking lot. When I came out of the hearing, my bumper had been torn from my car, the whole side of the car had been scraped and no one in sight that witnessed the accident. What am I supposed to do now?
A. The first thing you must do is to call the police and report the “hit and run” accident. Second, you have to call your insurance company and report the claim. Third, you have to arrange to get your car repaired. Fourth, hopefully your insurance will cover a rental car so that you have a vehicle to get to work and continue on with your life. If your insurance does not cover the rental car, you will have to pay for it out of your own pocket. Obviously, you do not know who hit your car, and unless you find a witness to the accident, you will never find out. Your own insurance will cover your loss. You will have to pay the deductible.
Q. I am young, poor and single. Why should I have a will?
A. If you are single and die without a will, all of your assets will generally go to your next of kin. If you do not have any children, and your parents are still alive, that means they will get your diary, the one in which you wrote all of your dirty secrets when you were a kid, your love letters, porn stash, naked photos or private sex videos of you that your ex-girlfriend took, items that you would rather have your parents know nothing about. You need to name an “executor”, someone you trust to dispose of the private things you would prefer be destroyed or go to a specific person. If you have a dog or a cat, your will can designate who will take care of your animals. It is important to specify how your pet will be taken care of and by whom. If you get married and have children after you write your will, you need to update it. One should always update his/her will when a major event occurs, or if you experience a significant change in your financial situation. You can also exclude anyone of your choosing from receiving anything under your will. Consider that a will, at the very least, is the insurance that your assets will go where you want them to go. I also advise anyone who owns real estate to have a revocable living trust.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I attended a court hearing and parked my car on the street in front of the Courthouse because there was simply no parking available in the parking lot. When I came out of the hearing, my bumper had been torn from my car, the whole side of the car had been scraped and no one in sight that witnessed the accident. What am I supposed to do now?
A. The first thing you must do is to call the police and report the “hit and run” accident. Second, you have to call your insurance company and report the claim. Third, you have to arrange to get your car repaired. Fourth, hopefully your insurance will cover a rental car so that you have a vehicle to get to work and continue on with your life. If your insurance does not cover the rental car, you will have to pay for it out of your own pocket. Obviously, you do not know who hit your car, and unless you find a witness to the accident, you will never find out. Your own insurance will cover your loss. You will have to pay the deductible.
Q. I am young, poor and single. Why should I have a will?
A. If you are single and die without a will, all of your assets will generally go to your next of kin. If you do not have any children, and your parents are still alive, that means they will get your diary, the one in which you wrote all of your dirty secrets when you were a kid, your love letters, porn stash, naked photos or private sex videos of you that your ex-girlfriend took, items that you would rather have your parents know nothing about. You need to name an “executor”, someone you trust to dispose of the private things you would prefer be destroyed or go to a specific person. If you have a dog or a cat, your will can designate who will take care of your animals. It is important to specify how your pet will be taken care of and by whom. If you get married and have children after you write your will, you need to update it. One should always update his/her will when a major event occurs, or if you experience a significant change in your financial situation. You can also exclude anyone of your choosing from receiving anything under your will. Consider that a will, at the very least, is the insurance that your assets will go where you want them to go. I also advise anyone who owns real estate to have a revocable living trust.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Monday, March 23, 2009
Legal Eaze #62 Insurance Damages/Extramarital Child Support
Title: January 17, 2007
Q. I had a car accident and two persons died as a result of the accident. I was at fault. My insurance was insufficient to pay for all the damages caused in that accident. Can my assets be taken away over and above what my insurance paid to the estates of the two deceased?
A. Yes, unless your insurance company settled the lawsuit for the total insurance amount paid to the deceased’s estates. For example, if the damages sustained by the Plaintiffs were $5 million, and the Plaintiffs won $5 million at trial but you only had insurance for $2 million, then $3 million remain unpaid and your assets can be taken to cover the unpaid amount, if you have assets worth that much. Future assets you might obtain may also may be taken away as you accumulate them. Interest also accumulates at 10% per annum on the unpaid balance if the full amount of the judgment is not paid swiftly.
Q. If I have an extramarital affair and have a child issued from that affair, but my husband raises the child as his own and is named as father on the child’s birth certificate, can I later get child support from the true father of the child after I get a divorce from my husband? Can I have the birth certificate changed to reflect the name of the true father and get him involved with his child?
A. After you get a divorce, you can get anyone you want involved with your child, but you need authorization from your now ex-husband to remove his name from the child’s birth certificate. Unless you do that, or litigate the issue, it is unlikely that you will ever be able to pursue the other man for child support. If you have a child out of wedlock, but are married at the time, your husband will be considered the father of your child, unless you let it be known that he is not, and he insists on a DNA test to prove he is not the true father of your child. I realize these incidents occur all the time, but it is not very ethical for you to let your husband believe for years that he is the father of a child, support that child for all that time and then try to get child support from someone else. At the very least, it seems opportunistic and calculating to use the child in that manner.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I had a car accident and two persons died as a result of the accident. I was at fault. My insurance was insufficient to pay for all the damages caused in that accident. Can my assets be taken away over and above what my insurance paid to the estates of the two deceased?
A. Yes, unless your insurance company settled the lawsuit for the total insurance amount paid to the deceased’s estates. For example, if the damages sustained by the Plaintiffs were $5 million, and the Plaintiffs won $5 million at trial but you only had insurance for $2 million, then $3 million remain unpaid and your assets can be taken to cover the unpaid amount, if you have assets worth that much. Future assets you might obtain may also may be taken away as you accumulate them. Interest also accumulates at 10% per annum on the unpaid balance if the full amount of the judgment is not paid swiftly.
Q. If I have an extramarital affair and have a child issued from that affair, but my husband raises the child as his own and is named as father on the child’s birth certificate, can I later get child support from the true father of the child after I get a divorce from my husband? Can I have the birth certificate changed to reflect the name of the true father and get him involved with his child?
A. After you get a divorce, you can get anyone you want involved with your child, but you need authorization from your now ex-husband to remove his name from the child’s birth certificate. Unless you do that, or litigate the issue, it is unlikely that you will ever be able to pursue the other man for child support. If you have a child out of wedlock, but are married at the time, your husband will be considered the father of your child, unless you let it be known that he is not, and he insists on a DNA test to prove he is not the true father of your child. I realize these incidents occur all the time, but it is not very ethical for you to let your husband believe for years that he is the father of a child, support that child for all that time and then try to get child support from someone else. At the very least, it seems opportunistic and calculating to use the child in that manner.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Thursday, March 12, 2009
Legal Eaze #36 Easment/Probate
Title: November 9, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. How does one go about researching property lines and where easement/utility roads run? I believe there is an easement that runs behind my home. A new development of homes is going up soon, and the developer is going to build a home right behind my house without allowing the easement space between properties. On top of everything, the house planned will be a two-story house. Isn’t that illegal?
A. It depends. You have a choice of places to go to find out where the property lines are located or whether or not there is an easement running behind your house. You can hire a surveyor or you can have a title company prepare a preliminary report. You can also go to Kern County Engineering Department in Bakersfield and look at the plat maps of the entire Kern County. Lastly, you can go to the planning department right here at Tehachapi City Hall. The developer may have paid money to build over the easement or the easement may have been abandoned. There are a million reasons why this house may be built where you think it should not be built. If it is infringing upon your privacy, it is up to you to complain about it to the city planning commission. However, it may be too late to stop it.
Q. What is the difference between a living will and a living trust?
A. There is a major difference. A Living Will is a document that tells health workers that you do or do not want extraordinary efforts to be made to save your life or to maintain you alive, no matter your health condition. It makes your last wishes known as to how you want your dignity to be respected at death and that you do not want your life to be extended if the quality of your life is nonexistent. If you have a Will and your assets are worth more than $100,000, you Will must go through Probate court. A Living Trust is a legal scheme to avoid Probate court. Your assets are transferred into the Living Trust, in other words, the trust becomes the owner of your assets. The trust assets are managed by a Trustee. Often the trustee is the same person as the Trustor. As long as the Trustor is alive, the terms of the trust can be changed. Upon the death of the Trustor, a Successor Trustee takes over and distributes the assets to the beneficiaries according to the terms of the trust. It is all perfectly legal and far more efficient than the Probate Court.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. How does one go about researching property lines and where easement/utility roads run? I believe there is an easement that runs behind my home. A new development of homes is going up soon, and the developer is going to build a home right behind my house without allowing the easement space between properties. On top of everything, the house planned will be a two-story house. Isn’t that illegal?
A. It depends. You have a choice of places to go to find out where the property lines are located or whether or not there is an easement running behind your house. You can hire a surveyor or you can have a title company prepare a preliminary report. You can also go to Kern County Engineering Department in Bakersfield and look at the plat maps of the entire Kern County. Lastly, you can go to the planning department right here at Tehachapi City Hall. The developer may have paid money to build over the easement or the easement may have been abandoned. There are a million reasons why this house may be built where you think it should not be built. If it is infringing upon your privacy, it is up to you to complain about it to the city planning commission. However, it may be too late to stop it.
Q. What is the difference between a living will and a living trust?
A. There is a major difference. A Living Will is a document that tells health workers that you do or do not want extraordinary efforts to be made to save your life or to maintain you alive, no matter your health condition. It makes your last wishes known as to how you want your dignity to be respected at death and that you do not want your life to be extended if the quality of your life is nonexistent. If you have a Will and your assets are worth more than $100,000, you Will must go through Probate court. A Living Trust is a legal scheme to avoid Probate court. Your assets are transferred into the Living Trust, in other words, the trust becomes the owner of your assets. The trust assets are managed by a Trustee. Often the trustee is the same person as the Trustor. As long as the Trustor is alive, the terms of the trust can be changed. Upon the death of the Trustor, a Successor Trustee takes over and distributes the assets to the beneficiaries according to the terms of the trust. It is all perfectly legal and far more efficient than the Probate Court.
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