Title: May 9, 2007
Q. What’s the difference between a living will and a living trust?
A. A living will is a document that spells out last wishes as far as should anything happen that makes one unable to make health care decisions, another can make such decisions in his/her place. The case of Terry Schiavo, the woman whose life was in limbo for some 15 or 20 years while her husband wanted her to be let die in peace and her parents wanted to keep her alive made it all the way to the Supreme Court. I believe she had an accident that left her in a coma. When it happened, she was a young woman. Most people in their twenties do not have a living will, because they do not think of death at their age. Unfortunately, life happens and so does death and life in between. On the other hand, a Living Trust is a document that is set up by a trustor who transfers his real estate and personal estate into an entity called “A revocable Living Trust”. Revocable means it can be changed during the life of the trustor. The property transferred into a Living Trust is managed by a trustee, who can also be the trustor. The trustor must name a successor trustee if he is also acting as the original trustee. At the trustor’s death, all the property that was transferred into the living trust then goes to the beneficiaries. It is the successor trustee’s job to make the transfer smooth. By setting up a Living Trust, the estate of the deceased need not go through Probate, a sometime very long court process that can be very costly. Depending on the complexity of the living trust, it can cost anywhere from $1500 to $5000, or more. The initial cost may appear to be high, but Probate Court cost a lot more.
Q. The winds that we experienced in Tehachapi in the past couple of weeks have damaged a large tree owned by my neighbor. A big branch broke and ended up on the roof of my garage, causing a gash that is going to cost several thousands of dollars to fix. I have not seen my neighbor in at least a month. I believe he is just a part-time resident here. What should I do?
A. You need to contact your homeowners’ insurance company. They will take care of the subrogation, in other words, they will contact the owner next door and ascertain what insurance he has and get reimbursed by that insurance. You must not wait until you have additional damage, otherwise you may have to pay for the additional damage yourself.
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
Showing posts with label damage. Show all posts
Showing posts with label damage. Show all posts
Monday, March 23, 2009
Legal Eaze #49 Apartment Property Damage/Informal Custody
Title: June 28, 2006
Q. I live in an apartment and my car was parked in front of the apartment building. The property management hired a weedwacking service and as the man was using his weedwacker, a rock flew up and hit my windshield, breaking it. I had just parked my car and was walking away from it when it happened. I saw the rock hit my windshield. What can I do?
A. Ask your property management to give you the name of the company that was taking care of the weedwacking. They should be insured for this type of damage. If they are not, then your property management should give information about the building’s property insurance for any damage that occurs on the grounds of the apartment building. You then make a claim with the insurance company. You obviously are going to need at least a couple of estimates on the repair.
Q.My husband and I are grandparents to two wonderful boys whom we have had in our care for approximately ten years. We never petitioned the court for their guardianship. My son, their father, who was awarded custody of his two boys, left them with us. Obviously, this is just an informal arrangement. But we are very attached to these boys and treat them like our own children. It is possible that their father could decide to pick them up some day and take them away from us?
A. Yes, it is possible, since you did not formalize your relationship with these boys through the court. However, if the boys are happy with you, doing well in school and their lives are stable, you could certainly dispute their father’s sudden interest in the children, especially if the boys have been in your care for 10 years. The court is most favorable to keeping the status quo, and if these children have been well taken care of for 10 years, it is very likely that you would be awarded permanent guardianship. You need to realize that you might have to fight your son for custody of the children in court and it might be a costly endeavor, but the best interest of the children is what is most important here, and the court will hopefully realize that you have the best of the children at heart.
Maxine de Villefranche is an attorney and civil general practitioner with 13 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 live in an apartment and my car was parked in front of the apartment building. The property management hired a weedwacking service and as the man was using his weedwacker, a rock flew up and hit my windshield, breaking it. I had just parked my car and was walking away from it when it happened. I saw the rock hit my windshield. What can I do?
A. Ask your property management to give you the name of the company that was taking care of the weedwacking. They should be insured for this type of damage. If they are not, then your property management should give information about the building’s property insurance for any damage that occurs on the grounds of the apartment building. You then make a claim with the insurance company. You obviously are going to need at least a couple of estimates on the repair.
Q.My husband and I are grandparents to two wonderful boys whom we have had in our care for approximately ten years. We never petitioned the court for their guardianship. My son, their father, who was awarded custody of his two boys, left them with us. Obviously, this is just an informal arrangement. But we are very attached to these boys and treat them like our own children. It is possible that their father could decide to pick them up some day and take them away from us?
A. Yes, it is possible, since you did not formalize your relationship with these boys through the court. However, if the boys are happy with you, doing well in school and their lives are stable, you could certainly dispute their father’s sudden interest in the children, especially if the boys have been in your care for 10 years. The court is most favorable to keeping the status quo, and if these children have been well taken care of for 10 years, it is very likely that you would be awarded permanent guardianship. You need to realize that you might have to fight your son for custody of the children in court and it might be a costly endeavor, but the best interest of the children is what is most important here, and the court will hopefully realize that you have the best of the children at heart.
Maxine de Villefranche is an attorney and civil general practitioner with 13 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 16, 2009
Legal Eaze #39 Homestead Declaration, Cow Damage
Title: January 4, 2006
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. What is a Homestead Declaration and why should we have one recorded with Kern County?
A. If you have a family residence in Kern County and your family resides in it, a Homestead Declaration will help reduce your property taxes because $7,500 will be deducted from the total assessed value of your property before the county assessor will estimate your yearly property taxes due. In addition, should you be sued by a creditor for a debt, $50,000 of your equity will be exempted from the creditor’s grasp if you are a single individual, $75,000 for a husband and wife, and $125,000 if you are over 65 years old. I advise anyone who owns a home to have a homestead declaration prepared and recorded with the county recorder, no matter whether you are single, married or a senior citizen. The Homestead Declaration is only applicable to your “residence”, not a vacation home or a rental.
Q. I am writing about the newspaper article in the Tehachapi news on December 28 regarding the cow that was hit by the people driving a 1997 Buick on the 58 going west. Who is responsible for the damage to their car?
A. Typically, the owner of the cow would be responsible. However, it is my understanding that the owner of the cow leases the land where he grazes his cows. Caltrans is not liable because it is not Caltrans’ job to put fences up to stop cattle from walking onto roadways. It is the property owner’s duty to ensure that the fencing around his property is strong enough to stop cattle from coming onto roadways. If the property owner leases the land to a cattle owner who plans to graze his cattle there, then it is the property owner’s duty to fence his property properly. If cattle escape from the leased land and cause damage to vehicles on the roadway, the property owner is liable for the damage. However, if the property owner has a contract that shifts liability for escaped cattle to the cattle owner and that clause also specifies that the cattle owner is responsible for building strong fencing that will contain cattle within the grazing land, then the cattle owner is liable for the damage(s) caused by any escaped cattle. However, if you happen to hit a deer and it causes a lot of damage to your vehicle, then it is your problem. A deer is not owned by anyone; it is a wild animal. The argument that the State of California is responsible for its wild animals will not hold.
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. What is a Homestead Declaration and why should we have one recorded with Kern County?
A. If you have a family residence in Kern County and your family resides in it, a Homestead Declaration will help reduce your property taxes because $7,500 will be deducted from the total assessed value of your property before the county assessor will estimate your yearly property taxes due. In addition, should you be sued by a creditor for a debt, $50,000 of your equity will be exempted from the creditor’s grasp if you are a single individual, $75,000 for a husband and wife, and $125,000 if you are over 65 years old. I advise anyone who owns a home to have a homestead declaration prepared and recorded with the county recorder, no matter whether you are single, married or a senior citizen. The Homestead Declaration is only applicable to your “residence”, not a vacation home or a rental.
Q. I am writing about the newspaper article in the Tehachapi news on December 28 regarding the cow that was hit by the people driving a 1997 Buick on the 58 going west. Who is responsible for the damage to their car?
A. Typically, the owner of the cow would be responsible. However, it is my understanding that the owner of the cow leases the land where he grazes his cows. Caltrans is not liable because it is not Caltrans’ job to put fences up to stop cattle from walking onto roadways. It is the property owner’s duty to ensure that the fencing around his property is strong enough to stop cattle from coming onto roadways. If the property owner leases the land to a cattle owner who plans to graze his cattle there, then it is the property owner’s duty to fence his property properly. If cattle escape from the leased land and cause damage to vehicles on the roadway, the property owner is liable for the damage. However, if the property owner has a contract that shifts liability for escaped cattle to the cattle owner and that clause also specifies that the cattle owner is responsible for building strong fencing that will contain cattle within the grazing land, then the cattle owner is liable for the damage(s) caused by any escaped cattle. However, if you happen to hit a deer and it causes a lot of damage to your vehicle, then it is your problem. A deer is not owned by anyone; it is a wild animal. The argument that the State of California is responsible for its wild animals will not hold.
Monday, March 2, 2009
Legal Eaze #30 house repair/divorce property
Title: September14, 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. I just bought a house and moved in a couple of weeks ago. I found mince running around the house at night. The bathroom tap is leaking under the sink, and now that I am looking at it closely, the problem is obviously not new. There’s rot under that sink. I am sure that other problems will surface along the way. While the house was in escrow, I noticed that all the disclosures signed by the seller were at least one year old. But because I did not really care for nor trusted the real estate agent representing me, I did not say anything. What can I do at this point?
A. When a house is being sold, disclosures by the seller should be recent. A lot of things can break down and get damaged during a year’s time. This is why it is so important to have an experienced home inspector inspect the house before purchasing it. An inspector would have seen the rot under the sink and pointed it out to you. Electrical, heating and septic systems should be fully operational before buying a house. The roof should have a few years left on it. If the disclosures do not reflect the true condition of the house, you have recourse against the seller of the house for breach of contract and fraudulent disclosures. It is too late to do anything about your lack of trust in your agent.
Q. I am undergoing a divorce right now. I inherited a house from my father when he died. This was a good 23 years ago. I live in the house with my wife and kids during the entire marriage. The mortgage was fully paid form insurance proceeds at the death of my father. Of course, I made improvements to the house, but the house is still free and clear. Now my wife claims an interest in the house. Is this house community property or not?
A. You failed to tell me whether you added your wife’s name to the title of the house. If you did not, the house may be separate property and your wife is not entitled to any part of it, if she did not contribute to the improvements made. If you added your wife’s name to the deed, she may have a community interest in it. Depending whether your wife contributed to the improvements made, she may be entitled to a reimbursement of monies spent towards the improvements. Monies spent on improvements may have come from your earnings, which are considered community property. This is a very complicated issue, with many factors to consider.
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. I just bought a house and moved in a couple of weeks ago. I found mince running around the house at night. The bathroom tap is leaking under the sink, and now that I am looking at it closely, the problem is obviously not new. There’s rot under that sink. I am sure that other problems will surface along the way. While the house was in escrow, I noticed that all the disclosures signed by the seller were at least one year old. But because I did not really care for nor trusted the real estate agent representing me, I did not say anything. What can I do at this point?
A. When a house is being sold, disclosures by the seller should be recent. A lot of things can break down and get damaged during a year’s time. This is why it is so important to have an experienced home inspector inspect the house before purchasing it. An inspector would have seen the rot under the sink and pointed it out to you. Electrical, heating and septic systems should be fully operational before buying a house. The roof should have a few years left on it. If the disclosures do not reflect the true condition of the house, you have recourse against the seller of the house for breach of contract and fraudulent disclosures. It is too late to do anything about your lack of trust in your agent.
Q. I am undergoing a divorce right now. I inherited a house from my father when he died. This was a good 23 years ago. I live in the house with my wife and kids during the entire marriage. The mortgage was fully paid form insurance proceeds at the death of my father. Of course, I made improvements to the house, but the house is still free and clear. Now my wife claims an interest in the house. Is this house community property or not?
A. You failed to tell me whether you added your wife’s name to the title of the house. If you did not, the house may be separate property and your wife is not entitled to any part of it, if she did not contribute to the improvements made. If you added your wife’s name to the deed, she may have a community interest in it. Depending whether your wife contributed to the improvements made, she may be entitled to a reimbursement of monies spent towards the improvements. Monies spent on improvements may have come from your earnings, which are considered community property. This is a very complicated issue, with many factors to consider.
Sunday, January 4, 2009
Legal Eaze #13 Road Rage
Originally Printed: January 12, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, 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.
Q. This is about road rage. I was on my way home at 9 p.m. and came to a stop light at Tucker and Valley Boulevard. A big Ram 3500 truck was following me very closely and actually hit me in the back as I was waiting to make a right turn on Valley Boulevard. I moved the car into the first parking lot available while the truck was still behind me. I got out of the car to check and make sure there was no damage, but there was a lot of damage. There was a huge dent right in the middle of my trunk where his front grill imprinted itself. As I approached the driver of the truck who had not yet opened his window, I shouted I needed to see his driver’s license and his insurance card. He then opened his window and started screaming at me on the top of his lungs, calling me foul names and saying that I had no business driving so slowly on city streets. I was totally taken by surprise as I got off the 58 and was driving at a speed considered safe while driving in sleet and rain. I became scared because he appeared to be a big man totally out of control as he started to open his door. I thought he was going to attack me. As he was still screaming at me, I ran back to my car and drove away. Now I have a huge dent in the trunk of my car, and am angry about what happened. What do I do?
A. You failed to tell me whether you wrote down his license number. Tucker and Valley Blvd., is a pretty busy corner, wasn’t there anyone around? Do you have a cell phone? If you do, that was the time to use it and call the police immediately. This man was at fault. He apparently scared you out of getting the information you were entitled to. I am not sure why so many people feel invulnerable when they get into their big truck or SUV, and are literally ready to kill or drive over anyone who does not drive fast enough. First, you need to report this to the police, then report it to your insurance company. They will investigate the incident. If you did not write down the license plate number, you may be out of luck. If there is a next time, do not run away. Just sit in your car, call the police and write down the license plate number and take note of any characteristics the offending vehicle may have.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, 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.
Q. This is about road rage. I was on my way home at 9 p.m. and came to a stop light at Tucker and Valley Boulevard. A big Ram 3500 truck was following me very closely and actually hit me in the back as I was waiting to make a right turn on Valley Boulevard. I moved the car into the first parking lot available while the truck was still behind me. I got out of the car to check and make sure there was no damage, but there was a lot of damage. There was a huge dent right in the middle of my trunk where his front grill imprinted itself. As I approached the driver of the truck who had not yet opened his window, I shouted I needed to see his driver’s license and his insurance card. He then opened his window and started screaming at me on the top of his lungs, calling me foul names and saying that I had no business driving so slowly on city streets. I was totally taken by surprise as I got off the 58 and was driving at a speed considered safe while driving in sleet and rain. I became scared because he appeared to be a big man totally out of control as he started to open his door. I thought he was going to attack me. As he was still screaming at me, I ran back to my car and drove away. Now I have a huge dent in the trunk of my car, and am angry about what happened. What do I do?
A. You failed to tell me whether you wrote down his license number. Tucker and Valley Blvd., is a pretty busy corner, wasn’t there anyone around? Do you have a cell phone? If you do, that was the time to use it and call the police immediately. This man was at fault. He apparently scared you out of getting the information you were entitled to. I am not sure why so many people feel invulnerable when they get into their big truck or SUV, and are literally ready to kill or drive over anyone who does not drive fast enough. First, you need to report this to the police, then report it to your insurance company. They will investigate the incident. If you did not write down the license plate number, you may be out of luck. If there is a next time, do not run away. Just sit in your car, call the police and write down the license plate number and take note of any characteristics the offending vehicle may have.
Wednesday, December 31, 2008
Legal Eaze #5 Tree Roof Damage/ Sick Puppy
Originally Printed: September 1, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. My neighbor has a tree with large branches overhanging my roof. In the past, some of these branches have caused damage to my roof on windy days. I have asked my neighbor to do something about his tree, but he refuses to do anything. What can I do?
A. You have the right to abate this nuisance by cutting off the offending branches. However, you cannot cut off more than necessary and you must be careful not to cause an imbalance that will eventually cause the tree to die or to fall down to the other side. Obviously, it would be to your neighbor’s advantage to cooperate in hiring a professional to deal with the tree. I would suggest that you contact an attorney to write a strong letter to your neighbor and make him aware of his liability for the damage caused to your roof and to reach a consensus as to how the offending branches should be removed. The cost of hiring a tree professional should be borne by the owner of the tree.
Q. I purchased a cute puppy from a pet store. Two weeks later, it was diagnosed with Parvo disease. I was expensive to save the puppy’s life. What should I do?
A. If a licensed veterinarian has made a written diagnosis within 15 days after the dog was purchased to the effect that the dog became ill due to any pre-existing illness or disease, you may return the dog to the store for a refund of the purchase price and reimbursement of reasonable veterinary fees for diagnosis and treatment in an amount not to exceed the original purchase price. As an alternative, you may get another dog of your choice and of equal value, plus reimbursement of the veterinary fees. If you choose to keep the dog, you can still be reimbursed for reasonable veterinary fees in an amount not to exceed 150% of the original purchase price of the dog. Lastly, if the dog dies as a result of the same illness or disease, regardless of the date of its death, obtain a refund for the purchase price, or a replacement dog of equivalent value and reimbursement for veterinary fees in an amount not to exceed the purchase price of the dog. The same goes for a dog with a congenital or hereditary condition diagnosed by a veterinarian to suffer or have died from this condition within one year of its purchase.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. My neighbor has a tree with large branches overhanging my roof. In the past, some of these branches have caused damage to my roof on windy days. I have asked my neighbor to do something about his tree, but he refuses to do anything. What can I do?
A. You have the right to abate this nuisance by cutting off the offending branches. However, you cannot cut off more than necessary and you must be careful not to cause an imbalance that will eventually cause the tree to die or to fall down to the other side. Obviously, it would be to your neighbor’s advantage to cooperate in hiring a professional to deal with the tree. I would suggest that you contact an attorney to write a strong letter to your neighbor and make him aware of his liability for the damage caused to your roof and to reach a consensus as to how the offending branches should be removed. The cost of hiring a tree professional should be borne by the owner of the tree.
Q. I purchased a cute puppy from a pet store. Two weeks later, it was diagnosed with Parvo disease. I was expensive to save the puppy’s life. What should I do?
A. If a licensed veterinarian has made a written diagnosis within 15 days after the dog was purchased to the effect that the dog became ill due to any pre-existing illness or disease, you may return the dog to the store for a refund of the purchase price and reimbursement of reasonable veterinary fees for diagnosis and treatment in an amount not to exceed the original purchase price. As an alternative, you may get another dog of your choice and of equal value, plus reimbursement of the veterinary fees. If you choose to keep the dog, you can still be reimbursed for reasonable veterinary fees in an amount not to exceed 150% of the original purchase price of the dog. Lastly, if the dog dies as a result of the same illness or disease, regardless of the date of its death, obtain a refund for the purchase price, or a replacement dog of equivalent value and reimbursement for veterinary fees in an amount not to exceed the purchase price of the dog. The same goes for a dog with a congenital or hereditary condition diagnosed by a veterinarian to suffer or have died from this condition within one year of its purchase.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
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