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 probate. Show all posts
Showing posts with label probate. Show all posts
Tuesday, March 24, 2009
Monday, March 16, 2009
Legal Eaze #40 attorney fees, child support, probate, lost a long trial
Title: February 8, 2006
Q. I just went through a divorce and the attorney’s fees were very costly. I am wondering if the attorney’s fees are tax deductible?
A. Generally, attorney fees and other costs paid in connection with a Dissolution of marriage are nondeductible. There are several exceptions such as attorney fees incurred specifically for production of income, such as spousal support issues in the case, tax advice and preservation of title to a capital asset, such as land, buildings and machinery. Attorney’s fees related to child custody and child support are nondeductible. Your attorney needs to make sure that accurate billing records are kept which allocates the services and expenses into those which may have a tax benefit to the client from those which are purely personal.
Q. Do I have to support my children through college?
A You are obligated to support your children until they are either 18 years old and graduated from high school, or when they turn 19 years old. You do not have to support your children through college, unless you want to.
Q. Does my estate need to be probated if it is worth less than $100,000?
A. No. An estate must reach the threshold amount of $100,000 to require that it be probated. There is an administration procedure sanctioned by the Court for estates worth less than $100,000, which is a very efficient way to have your assets pass to your heirs. However, you must have a will drafted. Otherwise, your assets will pass to persons you may not want to leave anything to, but according to the laws of the California. Nightmarish outcomes have been reached through California intestate laws. Make very sure you have a will spelling out your last wishes with regards to your assets. That way, the state cannot decide who your assets will go to.
Q. I have lost a long jury trial. I want to appeal. What now?
A. Even though you are angry and disappointed, some basic knowledge about the appellate process is necessary before you decide to appeal all the way to the Supreme Court. An appeal is not a retrial. You cannot call witnesses or present testimony. The Court of Appeal is not deciding your case on its merits. It will look for legal error in the trial below. That error may be one committed by the court, the jury, or even opposing counsel. To justify reversal, the error must be prejudicial and result in a miscarriage of justice. Of course, errors often occur during a trial; no trial is perfect. You must show that the error is so significant that it is more likely than not it affected the outcome of the case.
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 just went through a divorce and the attorney’s fees were very costly. I am wondering if the attorney’s fees are tax deductible?
A. Generally, attorney fees and other costs paid in connection with a Dissolution of marriage are nondeductible. There are several exceptions such as attorney fees incurred specifically for production of income, such as spousal support issues in the case, tax advice and preservation of title to a capital asset, such as land, buildings and machinery. Attorney’s fees related to child custody and child support are nondeductible. Your attorney needs to make sure that accurate billing records are kept which allocates the services and expenses into those which may have a tax benefit to the client from those which are purely personal.
Q. Do I have to support my children through college?
A You are obligated to support your children until they are either 18 years old and graduated from high school, or when they turn 19 years old. You do not have to support your children through college, unless you want to.
Q. Does my estate need to be probated if it is worth less than $100,000?
A. No. An estate must reach the threshold amount of $100,000 to require that it be probated. There is an administration procedure sanctioned by the Court for estates worth less than $100,000, which is a very efficient way to have your assets pass to your heirs. However, you must have a will drafted. Otherwise, your assets will pass to persons you may not want to leave anything to, but according to the laws of the California. Nightmarish outcomes have been reached through California intestate laws. Make very sure you have a will spelling out your last wishes with regards to your assets. That way, the state cannot decide who your assets will go to.
Q. I have lost a long jury trial. I want to appeal. What now?
A. Even though you are angry and disappointed, some basic knowledge about the appellate process is necessary before you decide to appeal all the way to the Supreme Court. An appeal is not a retrial. You cannot call witnesses or present testimony. The Court of Appeal is not deciding your case on its merits. It will look for legal error in the trial below. That error may be one committed by the court, the jury, or even opposing counsel. To justify reversal, the error must be prejudicial and result in a miscarriage of justice. Of course, errors often occur during a trial; no trial is perfect. You must show that the error is so significant that it is more likely than not it affected the outcome of the case.
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.
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.
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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