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
Showing posts with label living trust. Show all posts
Showing posts with label living trust. Show all posts
Tuesday, March 24, 2009
Legal Eaze #70 Living Trust Transfer Deed/Elder Abuse
Title: June 6, 2007
Q. My husband and I have a basic living trust. Our former residence is listed in the living trust but our new home here is not. Can I just type up an amendment to the living trust dropping the old one and inserting the new one? If so, how do I change our new property on the official records?
A. No, you cannot just type up an amendment to the living trust dropping the old one and inserting the new one. You need to have a Transfer Deed prepared, transferring the property from your name as individual owners to your name as trustees of your trust and have that transfer deed recorded with the county Recorder. This document needs to be notarized as well.
Q. My mother who is frail and elderly moved in with my brother last year. I think she is being abused by him. Can you define elder abuse and what can I do to help?
A. Elder abuse occurs when someone causes harm or risk of harm to an older adult. There are several forms of abuse, including physical abuse, sexual abuse, emotional abuse, financial abuse and neglect. Depending on what kind of abuse your mother is a victim of, you can file a Petition for Conservatorship, requesting that you become your mother’s conservator, and insist that your mother be placed in a home for the elderly, if you cannot take her into your home. It also depends on your financial ability to provide for your mother’s needs. People over 80 years old, especially women, are at a greater risk of experiencing elder abuse. If she is dependent on your brother to provide for her basic care, she is particularly vulnerable. Contact resources in your area, or your mother’s doctor to report your concerns. If you feel that your mother is in imminent danger, call the police. If you are not aware of an immediate danger to her health, or financial affairs, check with welfare and social service governmental agencies. Most cities and counties, according to state law, will investigate and protect vulnerable adults. The Adult Protective Services Agency, a component of Human Services state agency is typically responsible for investigating reports of domestic elder abuse. She is your mother and you should have a say in how she is being cared for and treated. It might be a mistake to talk to your brother about this situation.
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. My husband and I have a basic living trust. Our former residence is listed in the living trust but our new home here is not. Can I just type up an amendment to the living trust dropping the old one and inserting the new one? If so, how do I change our new property on the official records?
A. No, you cannot just type up an amendment to the living trust dropping the old one and inserting the new one. You need to have a Transfer Deed prepared, transferring the property from your name as individual owners to your name as trustees of your trust and have that transfer deed recorded with the county Recorder. This document needs to be notarized as well.
Q. My mother who is frail and elderly moved in with my brother last year. I think she is being abused by him. Can you define elder abuse and what can I do to help?
A. Elder abuse occurs when someone causes harm or risk of harm to an older adult. There are several forms of abuse, including physical abuse, sexual abuse, emotional abuse, financial abuse and neglect. Depending on what kind of abuse your mother is a victim of, you can file a Petition for Conservatorship, requesting that you become your mother’s conservator, and insist that your mother be placed in a home for the elderly, if you cannot take her into your home. It also depends on your financial ability to provide for your mother’s needs. People over 80 years old, especially women, are at a greater risk of experiencing elder abuse. If she is dependent on your brother to provide for her basic care, she is particularly vulnerable. Contact resources in your area, or your mother’s doctor to report your concerns. If you feel that your mother is in imminent danger, call the police. If you are not aware of an immediate danger to her health, or financial affairs, check with welfare and social service governmental agencies. Most cities and counties, according to state law, will investigate and protect vulnerable adults. The Adult Protective Services Agency, a component of Human Services state agency is typically responsible for investigating reports of domestic elder abuse. She is your mother and you should have a say in how she is being cared for and treated. It might be a mistake to talk to your brother about this situation.
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 #68 Living Will and Trust/Part-Time Resident Property Damage
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
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
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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