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 trustee. Show all posts
Showing posts with label trustee. Show all posts
Monday, March 23, 2009
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.
Sunday, January 4, 2009
Legal Eaze #16 Warranty Expired/ Bankruptcy
Originally Printed: February 9, 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. I purchased a new construction home in September 2002 with a one-year warranty. Six months ago, the ceramic floor tile begun to creak and pop out in several places. The builder said the installer will be contacted, but he may not be able to get to me for several months due to the building boom. Who would expect to have to replace tile after two years? The tear-up and replacement, if a similar tile can be found, will be expensive. Is the builder still responsible although the one-year warranty has expired?
A. You must give a chance to the installer (probably a subcontractor) to fix the tile floor and replace the broken and/or missing tiles himself. Get the name, address and telephone number of the installer from the builder and contact the installer yourself to make your complaint. And keep complaining until he finishes the job. Whether there is a construction boom or not, the installer should make good of his own work. It sounds like the installer failed to install a proper foundation for the tile work. The builder gives a one-year warranty and after that it is up to the installer to finish the job properly, not the builder.
Q. What is the difference between a Chapter 7 and a Chapter 13 Bankruptcy?
A. A Chapter 7 Bankruptcy is a liquidation of your assets, if any, and a Chapter 13 Bankruptcy is a reorganization of your debts. A trustee is involved in both chapters, but each has a different job. In a Chapter 7, the trustee will make sure there are no assets to distribute to the creditors before the debtor can get a discharge. In a Chapter 13, the trustee will get a monthly payment from the debtor and spread the money among all creditors, paying aback a percentage of the debt owed to each creditor. Despite the fact that a debtor can only file for Chapter 7 Bankruptcy every seven years, the same debtor could file a Chapter 13 within seven years from having filed a Chapter 7 Bankruptcy.
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. I purchased a new construction home in September 2002 with a one-year warranty. Six months ago, the ceramic floor tile begun to creak and pop out in several places. The builder said the installer will be contacted, but he may not be able to get to me for several months due to the building boom. Who would expect to have to replace tile after two years? The tear-up and replacement, if a similar tile can be found, will be expensive. Is the builder still responsible although the one-year warranty has expired?
A. You must give a chance to the installer (probably a subcontractor) to fix the tile floor and replace the broken and/or missing tiles himself. Get the name, address and telephone number of the installer from the builder and contact the installer yourself to make your complaint. And keep complaining until he finishes the job. Whether there is a construction boom or not, the installer should make good of his own work. It sounds like the installer failed to install a proper foundation for the tile work. The builder gives a one-year warranty and after that it is up to the installer to finish the job properly, not the builder.
Q. What is the difference between a Chapter 7 and a Chapter 13 Bankruptcy?
A. A Chapter 7 Bankruptcy is a liquidation of your assets, if any, and a Chapter 13 Bankruptcy is a reorganization of your debts. A trustee is involved in both chapters, but each has a different job. In a Chapter 7, the trustee will make sure there are no assets to distribute to the creditors before the debtor can get a discharge. In a Chapter 13, the trustee will get a monthly payment from the debtor and spread the money among all creditors, paying aback a percentage of the debt owed to each creditor. Despite the fact that a debtor can only file for Chapter 7 Bankruptcy every seven years, the same debtor could file a Chapter 13 within seven years from having filed a Chapter 7 Bankruptcy.
Wednesday, December 31, 2008
Legal Eaze #3 Divorce Reorganization of Debts
Originally Printed: July 23, 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. Last year, I represented myself in a divorce action and I had to sell the house and other items in order to pay my wife her half of the community assets. I seems I was stuck with all the community debts. Now I am broke and cannot meet my financial obligations. What can I do?
A. It appears you did not get a fair deal in family law court. It may have been to your advantage if you had hired a lawyer to represent you. At this point, you may be forced to file for bankruptcy. If you are employed and get a regular paycheck, you may be able to file a Chapter 13, which is also known as “a reorganization of debts”. A trustee will oversee your estate and distribute portion of your income to all of your creditors. In such a case, you may keep all of your assets, or what is left of them and pay your creditors over a period of time, but not more than 60 months. Depending on the amount to be distributed, your creditors may or may not be fully paid. All of your secured creditors, i.e. those who hold collateral sufficient to support the debt, will be fully paid or at least to the extent of the value of the collateral. If you are making monthly payments on your car (often the car is worth less than the balance owed) you may be able to discharge the amount that is not secured, but if you want to keep the car, you must pay the “secured” balance. The unsecured creditors are those you may suffer. If you do not have a regular paycheck, the better alternative is to file a Chapter 7 Bankruptcy, or “straight (liquidation)” bankruptcy. A trustee will be appointed to review your assets, and if he/she finds some assets that are not exempt, these assets will be liquidated and the proceeds will be divided among your creditors. Everyone is entitled to exemptions when it comes to personal assets, such as furniture and furnishings, clothing, kitchen appliances, etc. These assets are exempt in different amounts, depending on which system of exemptions one uses, i.e. California Code of Procedure Sections 703 or 704. CCP Section 704 system is preferable to the 703 system if one has a house to protect. A single person owning a residence is entitled to keeping up to $50,000 in equity, a married couple is entitled to $75,000 in equity and a person over the age of 65 years old, $125,000. In order words, if you do not have this kind of equity in your home, you can keep it through the bankruptcy, as long as you keep making your mortgage payments. The same holds for your car. You are entitled to a certain amount of exemption, again depending on which system you use. Bankruptcy is meant to allow you a fresh new start and does not carry the stigma it once carried. Millions of people have taken advantage of bankruptcy laws, especially through difficult financial times experienced by the entire country.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 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. Last year, I represented myself in a divorce action and I had to sell the house and other items in order to pay my wife her half of the community assets. I seems I was stuck with all the community debts. Now I am broke and cannot meet my financial obligations. What can I do?
A. It appears you did not get a fair deal in family law court. It may have been to your advantage if you had hired a lawyer to represent you. At this point, you may be forced to file for bankruptcy. If you are employed and get a regular paycheck, you may be able to file a Chapter 13, which is also known as “a reorganization of debts”. A trustee will oversee your estate and distribute portion of your income to all of your creditors. In such a case, you may keep all of your assets, or what is left of them and pay your creditors over a period of time, but not more than 60 months. Depending on the amount to be distributed, your creditors may or may not be fully paid. All of your secured creditors, i.e. those who hold collateral sufficient to support the debt, will be fully paid or at least to the extent of the value of the collateral. If you are making monthly payments on your car (often the car is worth less than the balance owed) you may be able to discharge the amount that is not secured, but if you want to keep the car, you must pay the “secured” balance. The unsecured creditors are those you may suffer. If you do not have a regular paycheck, the better alternative is to file a Chapter 7 Bankruptcy, or “straight (liquidation)” bankruptcy. A trustee will be appointed to review your assets, and if he/she finds some assets that are not exempt, these assets will be liquidated and the proceeds will be divided among your creditors. Everyone is entitled to exemptions when it comes to personal assets, such as furniture and furnishings, clothing, kitchen appliances, etc. These assets are exempt in different amounts, depending on which system of exemptions one uses, i.e. California Code of Procedure Sections 703 or 704. CCP Section 704 system is preferable to the 703 system if one has a house to protect. A single person owning a residence is entitled to keeping up to $50,000 in equity, a married couple is entitled to $75,000 in equity and a person over the age of 65 years old, $125,000. In order words, if you do not have this kind of equity in your home, you can keep it through the bankruptcy, as long as you keep making your mortgage payments. The same holds for your car. You are entitled to a certain amount of exemption, again depending on which system you use. Bankruptcy is meant to allow you a fresh new start and does not carry the stigma it once carried. Millions of people have taken advantage of bankruptcy laws, especially through difficult financial times experienced by the entire country.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 1840, Tehachapi, CA 93581
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