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.
Showing posts with label married. Show all posts
Showing posts with label married. Show all posts
Monday, March 16, 2009
Thursday, March 12, 2009
Legal Eaze #34 Wife on Drugs/Neighbor Kids Burned Down Shed
Title: November 23, 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 have been married for 18 years and have three children. My wife has not worked since we got married. Lately, I have noticed that she is up all night and sleeps a good portion of the day. She leaves the house sometimes in the evenings and does not tell anyone where she goes. The children have been late to school because she falls asleep. Two months ago, she crashed the car because she fell asleep at the wheel. She had two of our children in the back of the car and one of them was pretty banged up in the accident. She gets calls 24 hours a day from very rude people who hang up when I answer the phone. What should I do?
A. I fear your wife may be on drugs. Her “stay-up all night and sleep all day” routine is very much that of a person addicted to “crystal meth” which has become the scourge of Kern County. Before another dreadful accident occurs, I would strongly suggest you file for legal separation and get temporary custody of your children until she seeks drug rehabilitation. Her “sleep at the wheel” episodes could be deadly to your children. There is a strong possibility that a judge would grant temporary custody of your children to you if he or she believes your children are in serious danger.
Q. Last summer, on July 4, my neighbor’s kids were playing with fireworks despite the existing County ban on such dangerous toys. One of the “firebombs” they used exploded and was projected right into a woodshed located on the back of our property. Half of the shed burned down and damaged most of the items stored in it, such as tools, barbecue implements and other things. Our neighbors promised to pay for the damage which amounts to around $8,000, including a new shed. They have not paid a cent yet. What can we do to get our money?
A. You will have to sue them. If you file a Small Claims Court action, you can only obtain damages up to $7,500 (that’s a one time amount, then afterwards only $5,000 can be sued for). If you want to recover the full $8000, you will have to file a lawsuit in Superior Court (limited jurisdiction). Such a lawsuit could take up to a year or longer because it entails far more than a Small Claims Court action, which is usually over and done with within two months. Make sure that you take photographs of the burned out shed and make a list of the damaged items that were stored inside as well as the price you would have to pay to replace these items..
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 have been married for 18 years and have three children. My wife has not worked since we got married. Lately, I have noticed that she is up all night and sleeps a good portion of the day. She leaves the house sometimes in the evenings and does not tell anyone where she goes. The children have been late to school because she falls asleep. Two months ago, she crashed the car because she fell asleep at the wheel. She had two of our children in the back of the car and one of them was pretty banged up in the accident. She gets calls 24 hours a day from very rude people who hang up when I answer the phone. What should I do?
A. I fear your wife may be on drugs. Her “stay-up all night and sleep all day” routine is very much that of a person addicted to “crystal meth” which has become the scourge of Kern County. Before another dreadful accident occurs, I would strongly suggest you file for legal separation and get temporary custody of your children until she seeks drug rehabilitation. Her “sleep at the wheel” episodes could be deadly to your children. There is a strong possibility that a judge would grant temporary custody of your children to you if he or she believes your children are in serious danger.
Q. Last summer, on July 4, my neighbor’s kids were playing with fireworks despite the existing County ban on such dangerous toys. One of the “firebombs” they used exploded and was projected right into a woodshed located on the back of our property. Half of the shed burned down and damaged most of the items stored in it, such as tools, barbecue implements and other things. Our neighbors promised to pay for the damage which amounts to around $8,000, including a new shed. They have not paid a cent yet. What can we do to get our money?
A. You will have to sue them. If you file a Small Claims Court action, you can only obtain damages up to $7,500 (that’s a one time amount, then afterwards only $5,000 can be sued for). If you want to recover the full $8000, you will have to file a lawsuit in Superior Court (limited jurisdiction). Such a lawsuit could take up to a year or longer because it entails far more than a Small Claims Court action, which is usually over and done with within two months. Make sure that you take photographs of the burned out shed and make a list of the damaged items that were stored inside as well as the price you would have to pay to replace these items..
Sunday, January 4, 2009
Legal Eaze #15 Fireplace/ Community Property
Originally Printed: February 23, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 12 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.
Q. Recently we had our fireplace replaced, only to find out that it smokes and leaves soot on the masonry. All of our attempts to contact the manufacturer and have the problem fixed have been unsuccessful. What do we do?
A. Did the manufacturer install the fireplace or did you have someone else install it? It is possible that the installer did not follow the manufacturer’s instructions, in which case it is the installer who needs to fix the problem rather than the manufacturer. If the manufacturer provided the installation as well, you need to find out how much it would cost to fix the problem and have an attorney write a letter to the manufacturer, specifically requesting the amount it would cost to fix the problem so that you can hire your own repair person if the manufacturer refuses to fix it. If the attorney letter is ignored, then you should sue the manufacturer in Small Claims Court, if the amount is less than $7,500. Small Claims Court is very informal and the fastest way to get results in court without an attorney.
Q. I have read somewhere that California is a “community property” state. What does that mean?
A. It means that when you are married, you develop a community estate during the marriage. Both spouses’ income is considered community property, that is, each spouse is entitled to half of the income made by the other. If you purchase a house during the marriage, each spouse owns half of the equity developed during the marriage. Same goes with a car, furniture, stocks, bonds, jewelry and various other assets. Each party is also liable for the debts incurred by the family. However, such debts are not necessarily divided in half if a divorce eventually is granted because it depends on the income of each party and which party incurred each debt, as well as which party the debt benefited. Generally speaking, both spouses are entitled to half of everything that was acquired during the marriage. However, certain assets could be considered separate property if acquired with inherited or bequested money. An inheritance or bequest is separate property of the party who obtained it through death of a family member.
Maxine de Villefranche is an attorney and civil general practitioner with 12 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.
Q. Recently we had our fireplace replaced, only to find out that it smokes and leaves soot on the masonry. All of our attempts to contact the manufacturer and have the problem fixed have been unsuccessful. What do we do?
A. Did the manufacturer install the fireplace or did you have someone else install it? It is possible that the installer did not follow the manufacturer’s instructions, in which case it is the installer who needs to fix the problem rather than the manufacturer. If the manufacturer provided the installation as well, you need to find out how much it would cost to fix the problem and have an attorney write a letter to the manufacturer, specifically requesting the amount it would cost to fix the problem so that you can hire your own repair person if the manufacturer refuses to fix it. If the attorney letter is ignored, then you should sue the manufacturer in Small Claims Court, if the amount is less than $7,500. Small Claims Court is very informal and the fastest way to get results in court without an attorney.
Q. I have read somewhere that California is a “community property” state. What does that mean?
A. It means that when you are married, you develop a community estate during the marriage. Both spouses’ income is considered community property, that is, each spouse is entitled to half of the income made by the other. If you purchase a house during the marriage, each spouse owns half of the equity developed during the marriage. Same goes with a car, furniture, stocks, bonds, jewelry and various other assets. Each party is also liable for the debts incurred by the family. However, such debts are not necessarily divided in half if a divorce eventually is granted because it depends on the income of each party and which party incurred each debt, as well as which party the debt benefited. Generally speaking, both spouses are entitled to half of everything that was acquired during the marriage. However, certain assets could be considered separate property if acquired with inherited or bequested money. An inheritance or bequest is separate property of the party who obtained it through death of a family member.
Saturday, January 3, 2009
Legal Eaze #6 Probate/ kid throwing rocks
Originally Printed: September 15, 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. When my father died several years ago, he had a will which had to go through Probate Court. Thousands of dollars of his estate were spent on attorney’s fees, accountant’s fees and court fees, not to mention that it took a couple of years for members of his family to receive their inheritance. I would prefer my children did not have to go through this long and expensive court process. Is there anything I can do now?
A. I am glad you asked. Yes, there is, and it is called a revocable living trust. As the trustor or settler, you can create a trust in which you transfer all your assets, including your residence. In California, all estates worth more than $100,000 must go through probate, unless the bulk of your estate is your residence which is held in a joint tenancy with your spouse, or your assets have been transferred into a living trust. You can control all your assets by naming yourself the trustee. If you are married, your wife can be your co-trustee. During your lifetime, you can change the terms or beneficiaries of your “revocable” trust. You must name a successor trustee who will enforce the terms of your trust after your death. After your death, your part of the trust (if you are married, it is called an AB Trust) becomes irrevocable, and it is the successor trustee’s job to distribute your assets to the beneficiaries designated in your trust. A knowledgeable attorney can help you with other estate planning tools that will avoid the necessity for conservatorship if you become disabled and incapable of making your own financial and health decisions. Often, such tools are encompassed in a Trust package which, compared to the cost of probate, is very affordable and simply a necessity for most families.
Q. A neighborhood kid has been throwing rocks at my dog for several months. A few days ago, my German shepherd escaped the backyard by climbing over the fence in pursuit of its tormentor. What is my liability?
A. When you dog escaped your backyard, you became liable for any injuries caused by your dog, under the Dog Bite Act, even if the injuries were not caused by a dog bite. However, depending on whether the child was old enough to understand the consequences of his actions in inciting your dog’s revengeful instincts, your liability may be lessened by the child’s contributory negligence.
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. When my father died several years ago, he had a will which had to go through Probate Court. Thousands of dollars of his estate were spent on attorney’s fees, accountant’s fees and court fees, not to mention that it took a couple of years for members of his family to receive their inheritance. I would prefer my children did not have to go through this long and expensive court process. Is there anything I can do now?
A. I am glad you asked. Yes, there is, and it is called a revocable living trust. As the trustor or settler, you can create a trust in which you transfer all your assets, including your residence. In California, all estates worth more than $100,000 must go through probate, unless the bulk of your estate is your residence which is held in a joint tenancy with your spouse, or your assets have been transferred into a living trust. You can control all your assets by naming yourself the trustee. If you are married, your wife can be your co-trustee. During your lifetime, you can change the terms or beneficiaries of your “revocable” trust. You must name a successor trustee who will enforce the terms of your trust after your death. After your death, your part of the trust (if you are married, it is called an AB Trust) becomes irrevocable, and it is the successor trustee’s job to distribute your assets to the beneficiaries designated in your trust. A knowledgeable attorney can help you with other estate planning tools that will avoid the necessity for conservatorship if you become disabled and incapable of making your own financial and health decisions. Often, such tools are encompassed in a Trust package which, compared to the cost of probate, is very affordable and simply a necessity for most families.
Q. A neighborhood kid has been throwing rocks at my dog for several months. A few days ago, my German shepherd escaped the backyard by climbing over the fence in pursuit of its tormentor. What is my liability?
A. When you dog escaped your backyard, you became liable for any injuries caused by your dog, under the Dog Bite Act, even if the injuries were not caused by a dog bite. However, depending on whether the child was old enough to understand the consequences of his actions in inciting your dog’s revengeful instincts, your liability may be lessened by the child’s contributory negligence.
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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