Sunday, September 30, 2012

Limited Non-Durable Power Of Attorney For Children

A limited non-durable power of attorney for children is used when specific care is needed. The person that is appointed as the agent will only be allowed specific functions when it comes to the care of the children. With the a limited agent, the agent becomes ineffective if you ever become disabled or incompetent in any way. The powers are immediately terminated once you are no longer able to make decisions. The agent granting is only for the length of time that you determine. It is only valid during that time frame and immediately ends once the date is reached. It can also be created to only be for a specific function or action that needs to be completed with minor children and once the action or function is complete, than the power is revoked as well. The power can of course also be revoked at any time by you.
When appointing this type of attorney for child care, you are allowing them to complete any action you yourself could legally complete for a minor child. The powers can again be broad or specific. A limited non-durable power of attorney for a minor child authorizes the appointed attorney to have temporary custody as well in some instances. This is for a minor child that is not married and when the minor child will be living with the appointed agent. The agent is then able to make decisions for the child. This can be necessary when a parent needs to travel or go overseas and needs another person to take care of their child while they are away. This type of consent typically includes medical decisions that need to be made in the event of an emergency.
The powers that are granted can be, but are not limited to: 
  • Consenting to medical treatment.
  • Consenting to emergency medical treatment.
  • Allowing hospitalization.
  • Allowing surgeries to be performed when medically necessary.
  • Safety of the child.
  • Ensuring the continuing education of the child.
  • Enrolling a child in school.
  • Enrolling a child in sports and other after school activities.
  • Document signing when connected to medical treatment and medical care.
  • Allowing for discipline and supervision of the child.
  • Handling disputes and arbitration when necessary with the child.
  • Acting as the guardian of the child.
  • Handling other parental responsibilities, such as picking and dropping off at school, handling travel arrangements, appointments and other necessary functions.
Typically when granting power of attorney for a minor child, the form must be notarized or signed by two other witness. However, each state may differ, so it is best to check to make sure what the state requirements are for a valid granting of power for a minor child.

Article Source:

Saturday, September 29, 2012

By The People FAQ's

  • Are BY THE PEOPLE Personnel attorneys? No, we are not attorneys. We are Legal Document Assistants. In California, we are a licensed and bonded profession.

  • What if I need legal advise? You can always consult with an attorney of your choice. We can provide you with a referral for an excellent local attorney who specializes in cases similar to yours if you have questions we cannot answer for you, or your situation is more complicated than our services are meant to help with.

  • Do you have a Notary Public? Yes, whenever we are open we have a Notary Public on staff. If you are a BY THE PEOPLE customer, all Notarizations of your documents are included in our fees. If you have documents not prepared by BY THE PEOPLE, we charge $10.00 per signature you need notarized, in Cash Only. You must sign the document in our presence and provide valid photo identification.

  • Does BY THE PEOPLE handle Criminal Matters? No, we only handle uncontested civil matters. However, if you would like to contact us, we may be able to refer an excellent local attorney to you.

  • I need to have my documents prepared immediately. Do you have Rush or Same-Day document preparation services? Yes, we can prepare certain documents within a few hours, if necessary. Rush and Same-Day services are available for the following documents: Wills, Powers of Attorney, Health Care Directives, Deeds, LLC and Incorporation Articles. A modest Rush Fees will apply to these services.

  • How long will it take to prepare my documents? The documents we prepare at BY THE PEOPLE are typed specifically at your direction. All documents are then rigorously proofed to ensure you receive the highest quality legal documents available anywhere. Most of our documents are prepared and ready for you to sign within one week, depending on your situation.

Friday, September 28, 2012

Health Care and Living Wills Versus Power Of Attorney

Within your own personal health care there is the end of life issues that can occur. Knowing how you want these handled is important, so that there are not other problems that can arise if the situation were to occur. Even where is a living will in place, a power of attorney should also be in place as well, this helps to ensure that all issues are thoroughly covered and you know you will be taken care of the way you want to in the event of end of life.
Living Will
A living will covers what to do and not do in the event that there are end of life decisions to make. This document only goes into effect when you are no longer able to make decisions yourself and you are incapacitated. This could be for numerous reasons, from a coma to an injury that has occurred. It also covers if you are completely mentally incapacitated as well. A living will typically covers: 
  • Medical Care That Prolongs Life - This is care and treatment that will prolong your life. This could be blood transfers, dialysis, drugs, surgery or respirators for instance.
  • DNR or Do Not Resuscitate Orders - These stipulations work with the above in the sense that you can specify whether you wish to be resuscitated or receive CPR. These types of orders should be specified to the hospital and doctors you work with, as well as wearing a medical alert bracelet that specifies this decision.
  • Food and Water That Prolongs Life - This specifies whether you want to receive food and water through external means. This can happen when there is an injury or a coma and a person can only live through intravenous food and water. Typically when these are stopped a person will pass away from dehydration. You can specify if you want this type of treatment, the conditions when this should happen and for how long this should go on for.
  • Management Of Pain - This is also called comfort care as well and it is when you decide to die naturally, but not in pain. You are kept comfortable while dieing to improve the quality of life and dignity in the event of death. You can specify that drugs do be administered to keep you comfortable, but not in pain.
Power Of Attorney
Even when there is a living will in place, a durable power of attorney for health care decisions is necessary and recommended. The agent is given only as much power as you decide and can cover all decisions that the living will does not cover. If you do not specify the amount of power given, many states allow the agent comprehensive power when it comes to end of life decisions. A durable power of attorney for health care can cover, but is not limited to: 
  • The power to consent to medical treatments.
  • The power to deny medical treatments.
  • This is as long as it does not go against anything that is already in your living will.
  • Making the decision of which medical facility to use.
  • They can make the decision of which doctors and other personnel to use for your treatment.
  • They can go to court on your behalf to determine whether to with hold or continue medical treatment.
  • The power to decide what to do with your remains and whether or not to donate your organs.
  • Make sure to specify your wishes on these matters in the living will and even in the power of attorney document when you have direct feelings about these practices.
  • They can access your medical records.
  • They typically do have visitation rights.

Article Source:

Thursday, September 27, 2012

Basics About Power Of Attorney

There are two commonly used power of attorney forms that can be completed to give a person or company authority to act in your behalf, non durable and durable.
If a POA does not include a termination date, the authority of the agent to act on behalf of the principal will immediately end if the principal should become incapacitated or died. A durable POA will continue to remain in effect even if the principal should become incapacitated, but the agent's authority would end if the principal died. A termination date is not usually included in a durable POA because they are often made to protect the individual and their loved ones if the principal should be injured or become severely ill in the future. Another type of durable POA is the springing durable POA, which immediately goes into effect when the principal becomes incapacitated and is no longer capable of handling their affairs. A springing power of attorney is not allowed in some states due to legal issues such as legally determining and or proving that a person is now incapacitated. This may delay the agent from being able to immediately begin making life or death medical or care giving decisions on behalf of the principal and also from managing the principal's affairs in a timely manner.
With both types of power of attorneys, the principal may grant to his or her agent the authority to handle many of their affairs, including but not limited to the following:
  • The buying and selling of personal property.
  • The buying, selling and managing of real property.
  • The disclaiming of interests to avoid estate taxes.
  • Employing professional assistance when needed.
  • Entering into contracts.
  • The entering of safe deposit boxes when necessary.
  • Exercising any stock rights.
  • Filing tax returns.
  • Handling banking transactions.
  • The handling of government benefits.
  • The handling of transactions that involve securities.
  • The maintaining and the operating of all business interests.
  • Making gifts from the estate.
  • Transferring revocable trusts.
  • Purchasing life insurance.
  • Settling any and all claims.
Although a power of attorney form can be a very useful tool, the principal should carefully consider who they choose as their agent when preparing a POA. The document should be very specific about what powers the person will have and the principal may also include instructions to clarify what the agent is supposed to do for the principal. The person named as the agent should be a trusted relative or friend of the principal.
Also, if the form has not been completed and signed properly, it may be refused by a third party as being invalid. If the agent will be buying or selling real property for the principal, the form will also need to be filed with the other documents the agent has signed on behalf of the principal such as a land deed or mortgage.
A POA form can be revoked by tearing it up or by sending the agent a Revocation of Power of Attorney form.

Article Source:

Wednesday, September 26, 2012

Advantages of an Uncontested Divorce versus a Contested Divorce

An uncontested divorce is the only way to go when getting a divorce. For one, you do not need an attorney, the divorce is done in private, and issues can be negotiated 1 on 1. You may need an attorney if you can not make an agreement of every issue you negotiate. Disagreements you should be ready for are, the grounds for divorce, payment of family debts, visitation rights, division of the assets of the marriage, child support, alimony, custody of the children, payment of health insurance for the dependent, contribution toward educational expenses, and income tax.

It is important that you negotiate all the issues of the divorce before you file for an uncontested divorce. Uncontested divorces are given an identification number and are considered by the court as an issue that will eventually need trial time in order to resolve problem issues in the divorce. This is because until you two get all the issues of the divorce case negotiated your uncontested divorce is considered a "Contested Divorce".

When all the issues are negotiated you can then stipulate to the court to have the matters heard as an Uncontested Divorce or "no fault divorce" matter. The court will then expedite the Hearing then they will hear proof of the agreement of the grounds of the divorce. The proper way to prove the grounds of the divorce is with an Uncontested Divorce form. Id highly recommend you to get your form from for your state's specific up-to-date Uncontested Divorce form. Be aware of sites where you must type in your personal information so they can "generate" your legal form. Not only are you giving someone else your extremely sensitive information that could be used for all kind of identity fraud, your liable to have your money and information taken from hackers who put up legitimate looking sites then disappear off the net without ever giving you your Uncontested Divorce form.

Article Source:

Tuesday, September 25, 2012

Forming an LLC: Incorporating Success in Your Business

A Limited Liability Company (LLC) may be every businessman's dream. By forming an LLC, industries ranging from real-estate to construction will reap numerous benefits and provide more opportunities for the company and its clients.

For those who do not know what an LLC is, here is a brief description. LLC is a business structure that allows your company to enjoy legal responsibility like those of a corporation while avoiding annual reports, share distributions, bylaws, and other necessities when setting up a company.

Forming an LLC is helpful especially to fledgling businesses. It merges control and tax advantages of a partnership while having the advantage of limited accountability. LLC members are also protected from liability for business debts or claims. An LLC is more flexible than a corporation because owners can be individuals, trusts, partnerships, corporations and non-resident aliens. Plus maintenance is easy; LLC has less formalities and easier than running a corporation.

Differences of forming an LLC vs. Incorporation
Corporations are owned via share of ownership or stocks that are distributed to stockholders. An LLC, like partnerships, is simply owned by the members or the managers of the company.
Unlike an LLC, corporations require holding annual meetings and keeping written minutes. There is less paperwork in LLC because they do not have those requirements.
A corporation must pay taxes for their profits at the corporate tax rate. An LLC on the other hand is a "pass-through" tax entity. Meaning the profits or losses produced by the business will appear on the personal income tax return of the owners. Double taxation of paying corporate tax and personal income tax are therefore avoided.
What to expect after filing an LLC

Once you have decided to file for an LLC, you will receive two articles with a CD explaining the documents. The two articles are the Articles of Organization and the operating agreement. They will come along with the corporate or LLC kit.

The Articles of Organization formalizes your existence under state law. Once you have filed this, you have a legitimate business up and running.

This document spells out the name, purpose, incorporators, amount and types of stock which may be issued and any other special characteristics of the business entity. The Operating Agreement on the other hand, contains the written rules for conduct of the LLC. These include meetings, elections of a board of directors and officers, notices, types and duties of officers, and other standard protocol.

You will also have a registered agent who can acknowledge official documents on your behalf. Examples of the documents you'll be receiving are tax notices, annual reports and legal-process documents such as summons, etc.

The last steps include filing for an Article of Amendment to reflect the changing of your company from a corporation to an LLC. You also need to file an Initial or Annual Report. Business filing experts can help process necessary changes in your business.

Article Source:

By The People in Fairfield can help you with the paperwork when forming an llc.  We try to make each process as simple and fast as possible, as well as affordable. Our fees are a fraction of the cost that you would pay at an attorney’s office. Please call or stop in for more information. There is no cost or obligation to stop in and have an initial consultation with us. 

Monday, September 24, 2012

Power Of Attorney Terminology

Completing the forms that need to give power of attorney to a person or corporation may be the easy part, the terminology that you should know can be a little more confusing. However, it is a good idea to be familiar with the terms used when power is being granted. This will ensure that you understand what you are signing and what your rights are.

Power Of Attorney is when a person gives power to another person or organization to act on their behalf. There are different types of power that can be granted, however they all still involve one person giving power to another person to act for them while they can not.

Advanced Directive is considered a general term that encompasses all methods of planning to be done for the possibility of incapacitation. This does include Durable and the Heath Care Surrogate as well.

Attorney In Fact is the person that has been granted the authority to act on another person's behalf. Sometimes it is also called the proxy or the agent. This also includes co-agents or successor agents as well.

Springing Power is when a certain act or event has to take place for the power of attorney to become effective.

Durable or DPOA means that the attorney in fact stays in place even when you are incapacitated. This must be explicit in the document.

Principle is the person that is initiating the power of attorney. This is the person that will be allowing another person or organization act on their behalf.

Capacity means that the person understands the documents they are signing, they know who they are, who their relatives are, who they are granting the power to and what their assets are. Capacity does need to be determined by a doctor if during the signing of power to another person has stated that the person has diminished capacity or is not mentally sound. In a situation of this nature a physician must perform an exam and give a written evaluation stating that the person either has capacity and is mentally sound or that they are not.

Monitor is a person that is appointed that helps to prevent elder abuse and abuse of power by the appointed agent. Currently it is a law in NY. A monitor can be appointed by the principle and they are given the power to request all documents, receipts, records, disbursements and transactions that the agent has performed on behalf of the principle.

SMRG or Statutory Major Gifts Rider is a document that the principle adds to the power of attorney short form that authorizes the appointed agent to make major gift transactions and other transfers. Currently, this is only in practice in NY. This form and the power form must read together as one document.

Article Source:

Sunday, September 23, 2012

The Difference Between a Revocable Living Trust and a Non-Revocable Living Trust

A living trust is a trust that exists and is operational during your lifetime. Such a trust may be set up for many different purposes and may be revocable or non-revocable.
Just for clarification, a trust that doesn't become active until your death is called a testamentary trust. 
By far, the most common living trust is a revocable living trust. "Revocable" means it may be terminated at will by any of the persons who created it. The primary reason these trusts are created is to avoid the nightmares of probate court that occur after the death of the person(s) who created or set up the trust.
There are many other benefits of such trusts, such as avoidance of estate taxes for the heirs, creating special needs trusts for heirs with difficulties, disinheriting heirs, protecting family businesses, and many others, but avoiding probate is almost always the principal reason for a revocable living trust.
Were such a trust not revocable, it would not be practical for the above purposes for virtually all persons.
Non-revocable, or irrevocable trusts are generally used for transfer of assets during one's lifetime, often for tax purposes. For example, an irrevocable trust could be established to provide income to certain heirs during their lifetime, with the assets going to charity after the heir's deaths. This is often used to avoid estate taxes. The creator, however, cannot revoke and usually may not change the terms of the trust or take back the assets. They are no longer owned by the creator of the trust.
The principal difference between the two types of living trusts is that with a revocable trust, the creator of the trust continues to own and control the assets placed into the trust; and with a irrevocable trust, the creator of the trust gives up ownership and control of the assets. There may be exceptions to this general explanation, but these are the principal distinctions.

Article Source:

Friday, September 21, 2012

Updating Your Will - There May Be More Reasons to Do So Than You Realize

Your Last Will and Testament is your only chance to decide what happens to your estate assets upon your death. It is the cornerstone of your estate plan -- the document from which all other estate planning tools flow. Once you have taken the time and effort to create your Will, don't make the mistake of failing to update it when necessary. Some reasons that a Will needs to be updated are obvious; however, consider the following, not so obvious, reasons as well when deciding if it's time to take another look at your Will.

Death: People think to update a Will when a parent, spouse or child dies, but the death of the person named as executor or guardian of your minor children can also prompt a review of your Will. The death of a business partner or even an in-law may also warrant a Will update.

Marriage or Divorce: Clearly, your own marriage or divorce calls for a revision of your Will; however, other marriages or divorces may also necessitate a change. The marriage or divorce of a parent, child or guardian, for example, can call for a review of your Will.

Birth: Although it is easy to rely on a generic term, such as "issue", to cover all of your children or grandchildren, it may be preferable to name each beneficiary by name in your Will to avoid any possible future confusion. As such, take the time to update your Will when there is a birth in the family.

Beneficiary Reaches the Age of Majority: Minors cannot inherit directly in your Will. As such, you likely named a trustee for any minor children when you made your Will. If a child has reached the age of majority, you will need to remove the trustee and provide for the direct transfer of those assets to the beneficiary in your Will.

Change in Assets: Although you may have a general provision in your Will for any asset not specifically named, if you acquire an asset worth a significant amount of money, or sell one, you may need to update your Will to address that asset for clarification.

Change in Location: In the confusion of a move, people typically don't think of how residency can affect a Will. State laws, however, can directly impact provisions in your Will, warranting a review and possible revision.

Change in State or Federal Laws: Laws change on a regular basis. Federal tax laws, for example, seem to continuously change. A significant change in either a state or federal law can result in the need to make a corresponding change to your Will.

You Reach the Age of Required Distributions: IRAs and 401(k)s typically require you to start taking distributions around the age of retirement. If you have significant funds in one of these accounts, the required distributions can change your asset structure enough to warrant a Will update.

Change in Guardian: This is a big, yet often forgotten, reason to update your Will. Regardless of the reason why you wish to change the named guardian for your minor children, if you wish to do so you must make it official by revising your Will.

Article Source:

Thursday, September 20, 2012

Estate Planning: Living Trust vs. Simple Will - Which Do You Need?

Estate Planning, put simply, is the process of arranging one's affairs for when they pass away. This can usually be accomplished through the use of living trusts and wills. To most, the concept of estate planning sounds relatively straightforward. You probably feel that you should dictate how and to whom your assets are distributed after you pass away, with little concern for any other issues that may arise.
The reality of estate planning, however, is not always so simple. There are a number of factors to consider when preparing an estate plan, including, but by no means limited to, the following:
oThe value and types of your assets
oYour current and future income
oYour distribution desires
oYour mental and physical condition
oOther objectives, such as leaving a legacy, providing for a charity, taking care of your children or grand-children, or proving for someone with special needs
The most common estate planning instruments are wills and living trusts. There is a common misconception about the need to have a living trust. Many assume that they only need a simple will to best take care of their affairs when they pass away, and that only the wealthy need to have a trust. While this may be true in some instances, it often also leads to unexpected results.
A will is a document that lists how you would like your estate and affairs handled upon your death. The process by which this is accomplished is called probate, which is when a will is submitted to a court for administration after your death. The executor of the will, usually a person named in the will, is responsible for managing the affairs of the estate as it progresses through probate. The court will oversee your estate, payment of your outstanding obligations, and distribution of your assets according to the terms of your will. This process typically takes a number of months at a minimum to complete, usually involves your executor having to hire an attorney to handle the entire process, and is quite expensive for the estate. Further, since your will is submitted to the court, it becomes a public record for the entire world to see, which is problematic for those who desire a sense of privacy over their financial affairs.
Living Trusts
A living trust is also a document that details how you would like your estate and affairs handled after your death. However, unlike a will, a living trust does not require your heirs to submit to the probate process. The trustee of the trust, usually the person or company identified in the trust to handle the affairs of the trust, is responsible for managing the trust estate until the trust terminates pursuant to the terms of the trust. The terms of the living trust usually describe how one's assets are to be distributed. Further, this distribution can occur over many years if you so desire, thereby allowing you to retain a measure of control over your assets even after your death. You may also be able to place other restrictions over your assets, which can help to protect the assets from the creditors of your heirs or to ensure that your goals and objectives are met. Moreover, since your living trust is not submitted to a court, the terms of your living trust are kept out of the public domain.
Which Do You Need?
The determination of whether to choose a living trust or a will depends on a number of factors. In general the main factor to consider is the value of an estate. For persons who do not own any real property and have an estate worth less than $20,000.00, the entanglement of the probate process is minimal. In such a scenario, only an Affidavit of Entitlement is needed to transfer assets. For people in this category, it is usually recommended to have a simple will.
For those who own real property or have an estate worth more than $20,000.00, probate can get more complicated and costly. In these situations, it is usually advantageous to have a living trust. While it is usually less expensive to prepare a will than it is to create a living trust, this minimal savings is more than offset by the expense and burden of probate. However, as with most things that deal with your legal rights, your unique present and future state of affairs will dictate how you should best plan your estate.
In general, the main advantages of having a living trust instead of just a simple will are as follows:
1. Minimize Probate - If properly funded, probate can be minimized, if not entirely avoided, by using a living trust.
2. Tax Planning - There are limits on the exemptions one can claim from your estate having to pay Federal Estate Taxes.* For married couples, proper use of certain clauses in your living trusts can maximize the benefits of these exemptions, thereby saving more money for your heirs.
*For 2007 & 2008, the annual Federal Estate Tax Exemption is $2,000,000.00 per person. It is $3,500,000.00 per person for 2009. The exemption is unlimited for 2010. However, unless Congress adopts new limits, the Federal Estate Tax Exemption in 2011 will only be $1,000,000.00 per person.)
3. Protect Assets - While the creator(s) of a living trust generally will not be able to protect their assets from their own creditors simply by placing their assets into a living trust, with proper drafting, you can protect the assets included in the living trust from the creditors of your heirs.
4. Special Circumstances - One of the better features of living trusts are their flexibility. You can prepare a living trust to accommodate all types of unique situations, such as the special needs of an heir, desire to regulate the manner in which distributions are made to an heir, etc. . .
Lastly, in order to take full advantage of the benefits of a living trust, it is vitally important to make sure that the trust is properly funded. This ensures that all relevant assets are included in the trust. If not done properly, a situation can arise where one's heirs may have to probate an estate even though there is a living trust, which completely circumvents one of the main advantages of having a living trust.

Article Source:

Wednesday, September 19, 2012

Expungement - How Long Does it Take to Expunge a Criminal Record?

In legal terms, an expungement is a legal procedure where someone who is a first time offender tries to have the records of their offense sealed by the courts, thus making them unable to be seen in police and federal criminal databases. When the record is sealed, the legal term commonly used is that it has been "expunged", essentially making it as if it never even happened. You should not get the terms "expunge" and "pardon" confused however, as they both mean very different things in the legal system. When a criminal record is expunged, as far as everyone is concerned, the record never existed in the first place. If someone is granted a pardon, they essentially given forgiveness, but the record still remains on their profile and is never erased.

There are a number of reasons why someone would seek expungement and every legal jurisdiction is free to set their own rules regarding how the procedure is carried out. It is widely accepted that the word expunge means to take a record away from where it can be seen for general review. However, a large number of states have provisions set up so that the expunged records are not gone completely from databases that are accessible by police officers, judges, who made need the information to determine future sentencing and lock up facilities, which may house an inmate for a future conviction.

Keep in mind, though, that not just any crime can be expunged. There are certain crimes that are eligible and others that are ineligible for expungement. Most crimes are able to be expunged as long as a certain number of requirements are met beforehand. Some of these include things like waiting a certain amount of time between the crime and requesting expungement, not having anymore related crimes, having less than a certain number of crimes, the cannot be too serious of an offense, and a probation period completed. Some of the crimes that are ineligible to be expunged include felonies where the victim was younger than 18, rape, sexual assault, corrupting someone who is underage, sexual annoyance and obscene gestures aimed at or pornography involving an underage individual.

As mentioned earlier, each jurisdiction can set its own expungement rules. And each state can determine what can qualify to be expunged, as well as decide to not allow any records to be expunged whatsoever. If a record is eligible to be expunged, it can take anywhere 3 months and sometimes as long as year for more complex crimes. The average should be around 6 months however.

Article Source:

Tuesday, September 18, 2012

Living Trust Vs Will: An Easy-To-Read Comparison for Californians

If you're from California, you probably keep hearing about Living Trusts and you might be wondering why do I need one? Indeed, my clients often ask me, "Isn't a Will good enough?" Well, the answer to that question depends on your particular circumstances.

You see, if you don't own a home and your personal property assets total less than $100,000, a Last Will & Testament is probably the appropriate transfer planning device for you. With a Will, you can avoid having your assets arbitrarily distributed to unintended beneficiaries and you can also nominate guardians for any minor children.

But, if you own a home or have over $100,000 in personal property assets, then it's highly likely your estate will need to pass through Probate. Probate is an expensive and time-consuming court proceeding that is usually unnecessary. Some people think if they have a Will they can avoid Probate. The opposite is true though. If you own a home or have personal property assets totaling over $100,000, having only a Will virtually guarantees that your estate will need to be Probated. Conversely, if you create and fund a legally valid Living Trust there will be no need for a Probate. That's because a Trust holds your assets, similar to the way in which a corporation holds it's assets. Since the Trust holds your assets instead of you directly, there are no assets for a Probate court to transfer upon your passing. Instead, the Trust itself enables the Trustees to easily take care of this process themselves for the benefit of the Living Trust's beneficiaries.

But what is a Living Trust exactly?

Simply put, a Living Trust replaces what most people think of, when they think of a Will. In other words, a Living Trust dictates to whom and how your assets are to be distributed after you're gone. A Trust also empowers a person or persons to carry out these duties. So far, this is virtually identical to a Last Will & Testament in California.

However that is where the similarities end. Besides Probate avoidance, a competently drafted Living Trust allows for sophisticated transfer tax planning and it helps families avoid conflicts. A Trust also can protect family assets from spendthrift children and their creditors. These are just a few financial examples of the post-death concerns that Living Trusts address and resolve.

But also, if you become incapacitated during life because of mental or physical disability, a Trust enables Successor Trustees to step in and help you. This is a major difference to Wills because they only take effect after a person's death. This additional function of Trusts helps to avoid an embarrassing, time-consuming, and expensive court Conservatorship. A Conservatorship is yet another court proceeding that is needed to appoint someone to help you, if and when you can no longer take care of yourself because of physical or mental incapacity. A properly drafted and executed Revocable Living Trust helps you to avoid a Conservatorship similar to how it helps your family avoid a Probate proceeding.

Without a doubt, Living Trusts allow families to achieve all sorts of unique and important goals. That is why Trusts are highly publicized. It is also why, Californians who own a home or have personal property assets that total greater than $100,000, should seriously consider setting up a Living Trust instead of just a Will.

Article Source:

Monday, September 17, 2012

Why Advance Health Care Directives Are Important

Consider this scenario. You are in a hospital with a terminal illness, unconscious, connected to all kinds of medical machines, and has a very poor prognosis. Who will speak on your behalf during this time of illness? Who would tell the doctors, the nurses and your family members what your medical wishes are if ever you get into this terminal condition? Who would let your caregivers know what you would like to happen to you and your body in such a condition like this? Would you like to be kept alive by all means? Or would you rather decide not to be subjected to futile treatments knowing that this is not a dignified living for you? But how would you let everyone know all these wishes now that you are no longer capable of speaking up for yourself?
This is why Advance Health Care Directives (AHCD) are very important. As a clinical counselor working in a hospital for several years now, I have personally worked with families and witnessed them break apart because they could not agree in making medical and end-of-life decisions for the dying loved ones. Their loved ones, who were unable to speak up for themselves, did not have an advance directive. Remember the Terry Schiavo case?
I have witnessed many cases where, because patients did not have an AHCD, families and caregivers are plagued with guilt and have constantly asked themselves if they were making the "right" decision for their loved one or for themselves. Yet, I have also witnessed many cases where, because patients had an AHCD, their families and caregivers felt at peace, in spite of the pain, just because they knew they were honoring their loved one's medical wishes as reflected on their AHCD.
AHCD are legal documents that enable you to do the following:
1. Appoint or designate a primary and secondary power of attorneys for health care whom you trust to speak on your behalf and honor your medical wishes in an event that you could no longer speak up for yourself.
2. Appoint a primary physician whom you trust to be your doctor or caregiver.
3. Make your end-of-life wishes known.
4. Make your wishes known regarding organ donation.
5. Make your wishes known regarding pain control.
For an AHCD to be legal, it has to be signed by you (the person creating the document) before two witnesses. These witnesses could not be your designated power of attorneys or your immediate family members or your health caregivers where you receive medical care. Close friends or distant relatives could be witnesses. If you cannot find witnesses, the document could be notarized by a notary. The notary can only notarize an advance directive if you have a valid photo ID (e.g. driver license or passport). This process applies particularly in California. Other states may have different processes.
I would also like to mention that a Living Will is a kind of AHCD. Likewise, an AHCD could also be known as "Durable Power of Attorney for Health Care."
Once you created your AHCD, you keep the original and remember to keep it in an accessible place in your home. If possible, make several copies to give to your designated power of attorneys, your primary physician and to your hospital. I strongly encourage people to always bring a copy with them whenever they go to the hospital so that the hospital will not only have a copy of your document but also will know and honor your medical wishes. While creating an AHCD is not mandatory, it is a Federal Law that hospitals have to ask patients during their admission if they have an AHCD.
Most, if not all, hospitals have AHCD forms. You can always ask your hospital if they have available forms. You can also ask your doctor if he/she has a form. There are many websites now on the Internet that offer AHCD forms. Just do a search on "Advance Health Care Directives."
I believe that your completed (properly witnessed or notarized and signed) AHCD is legally recognized in states other then your own. However, since each state may have its own froms and probably laws on AHCD, the best thing to do is to always bring an extra copy with you when traveling.
Many folks think that an Advance Health Care Directive is only for patients who are terminally ill. Not so. Any competent adult, 18 years old and above, can fill out an AHCD. I remember dealing with the family of a 20 year old woman who ended up on a persistent vegetative state (PVS) as a result of a car accident. Her parents ended up divorcing just because they could not agree as to what to do with her in her grave condition. The mother believed that her daughter loved life so much that she would not like to be living in such a terrible medical condition where there is no dignity of life any longer. The father thought otherwise. This sad break-up of a family would have not happened if, even at early age, their daughter had an advance heatlh care directive.
I strongly encourage you to talk to your physician or family members about this difficult yet very important subject. I just hope that this article has been a source of help.

Article Source:

Sunday, September 16, 2012

When Is The Best Time For An Uncontested Divorce?

When a marriage fails, there a few different options for the couple. Some options include marriage counseling, legal separation, contested divorces or uncontested divorces. When going through a divorce, today's most popular way is an uncontested divorce. Uncontested divorces can bypass many expensive legal avenues while making the process quicker.

No matter how you look into a divorce, it's going to be expensive. Uncontested divorces allow the separating couple to save more money and time. Whatever the reasoning behind a divorce, it is not easy for anyone associated with either party. Having a contested divorce, will only make things more difficult on you and your pocketbook in the long run.

For obvious reasons, both parties of a divorce have disagreed on certain issues and will continue to do so in the future. If both parties understand that it won't work out, but can still rationally work out agreements, an uncontested divorce would work out best. If major issues can be solved during mediation and not have conflicts, it can save you thousands of dollars in the long run. Everyone knows that divorce will bring heartache to both sides, but choosing an uncontested divorce will make the process more understandable.

If however, there are issues where both parties are too far apart in a fair agreement, then a contested divorce may be more likely. Many issues that are become combative are child custody, child support, alimony, asset division, liability division and other financial obligations. Many couples fight over these items in a divorce due to the high financial or sentimental value that carries with them. Depending upon your location and laws, sometimes an uncontested divorce isn't even an option when children are involved.

Many divorce records are now made available to the public. If you choose to take the uncontested divorce route, subject matters will not be made public unless both parties decide upon it. However, if a contested divorce is your only option, all matters regarding a divorce a disagreements between spouses become public record. This privacy issue may not work with all couples going through a divorce. If both parties can't come to an agreement, then contested divorces must be implemented. Not only do uncontested divorces save everyone time and money, it may also keep your matters more private. Everyone has secrets, but no one needs to know about them.

By choosing an uncontested divorce will save you a lot of time and hassle through the legal system. If you cannot agree with your soon to be spouse, then a contested divorce may be more to your requirements. Usually both parties are in fumed with regret and remorse during the early part of a divorce. However, if both parties can think rationally and see eye to eye for a short amount of time to work out a few problems, with the help and mediation of divorce attorneys, then everyone will be able to save money.

Article Source:

Saturday, September 15, 2012

Executor of Will - How to Choose Who to Disperse Your Property

Many people make a will to leave directions behind as to the dispersal of their worldly goods. In addition to naming the inheritors, a will can also include a name of someone who is to act as executor of will. This person will be responsible for ensuring that the will and last requests are followed through, and can include overseeing and estate or even handle the little every day details - including helping the grieving family - in order to make sure things go smoothly and according to the will's wishes. An executor does not need to be an attorney, and they are usually a close friend or family member.

State laws are widely varied, and the laws regarding an executor of a will vary also. If you are making out your will and wish to name an executor, you need to look up the local laws in this matter, or visit with an attorney who will walk you through the process. Typically, your executor may be expected to handle: asset management and distribution, assess the need for probate court, deciding upon the inheritors if there is no will, filing of the will, banking of estate monies, and payment of debt and taxes.

An executor will have many responsibilities, and it is important that you choose wisely. It is easier if you state your wishes for your property very clearly in a will that has been made a legal document, as without a will, an executor will have no instructions as to what you would have liked. It may be a good idea to have a back up executor as well; in case the first one refuses or cannot proceed. If you wish your worldly goods to go to a specific place, the only way to make sure that happens is to leave it documented.

An executor can still manage an estate after a death, even if there is no will. It places a great burden and responsibility on the shoulders of the executor, and sometimes can make a task quite difficult if there is not proper documentation. Most executors will follow through honestly and diligently, but it is not unknown for some people to take advantage of this situation for their own financial gain. It is vital that you select a person who is honest, has integrity and can understand the process of dispersing the goods where they need to go.

Article Source:

Thursday, September 13, 2012

Grasping the Concept of a Conservatorship

As people begin to age, practical issues begin to rear their head that nobody really contemplated before hand. Specifically, the ability of the senior to make financial or health decisions can become questionable and a conservatorship might be needed.

There is little doubt that we begin to slow down as we age. This is true for both our physical and mental capabilities. This is never more so the case then when people start to get into their sixties and older. The memory starts to go. The mind starts to slow down. If things start to degrade quickly, the issue of whether a senior has the capacity to make decisions for themselves can lead to a conservatorship hearing.

What is a conservatorship? It is the appointment of a third person to handle decisions for the individual in question. The decisions can be related to medical care, financial issues or both. The conservatorship is created by a judge during a court hearing. The conservator is often a family member, but the court can select a third party trustee or separate individual to handle the issues surrounding the impacted person.

So, what does the conservator actually do? For health decisions, the conservator is the person authorized to give informed consent to medical procedures such as surgeries. For financial decisions, the conservator takes over the person's bank account, investment accounts and so on.

The conservator is not given free reign over the life of the individual being evaluated by the court. Instead, the conservator has a duty to make decisions in a manner that reflects the best interests of the person in question. The specific ramifications of how this plays out is determined state by state as conservatorship law is controlled at the state level and each has a slightly different way of going about it.

So, what keeps the conservator from "playing funny" with the money and such? The court will assign a second person, usually an attorney, to oversee the decisions being made by the conservator. If the conservator starts taking action that looks contrary to the best interests of the individual in question, the overseeing party can alert the court.

There is no secret we have a bulge in our population known as the baby boomers. As that bulge moves into their senior years, conservatorships will become more and more common. If you have a senior adult in your life, make sure you understand the basic concept and what you might be required to get into.

Article Source:

Wednesday, September 12, 2012

Durable Limited Power of Attorney Forms - When to Use

When you would like to allow someone else to have the authority of acting on your behalf, you will have to use a legal document called a power of attorney. It is widely used legal form for any circumstance where there is a need for owner's signatures to make the contract legally binding. When a person signs the power of attorney form, he or she will be granting the legal authority to another individual to be able to stand in the owner's shoes; therefore he/she could act legally for the benefit of owner. In this situation, the person receiving the power of attorney is called attorney-in-fact. Contrary to many people's belief, the person doesn't have to be a lawyer in order to be the recipient.

In many occasions, power of attorney forms are very useful and popular among those who are especially interested in their own asset distribution or inheritance. The forms also can be used to give an authority to someone else to sign particular documents in case you are not able to be present but your signatures are required.

There are few different types of power of attorney forms, such as unlimited power of attorney, limited one and durable unlimited one. Among them there is one called durable limited power of attorney. With this form, you are providing for a limited grant of authority to another individual for very specific reasons. You are designating a person to act for you in a particular occasion, in a very specific manner and you can actually limit the activity that the person will perform. Therefore there are a lot more details described in the document and certainly there will be a limitation.

But this legal form and the contents inside will remain effective even though you become disabled or incapacitated, thus allowing the assigned person to act on your behalf in case of your losing ability. Your attorney-in-fact can keep the authority that is already given through the document and remain valid even if the power is limited. In order for this to be complete, the both parties' names and addresses should be clearly written on the document and signatures are required at the time of signing. Also there should be a full detailed descriptions and outlines of work area described on the document. Usually the owner's signature should be notarized and two other witnesses will be accompanied when the document is complete. In that case, the person who will receive the document is not eligible for being one of the witnesses.

Article Source:

Tuesday, September 11, 2012

What is an Advance Healthcare Directive?

What is an advance healthcare directive?

When we are drafting an estate plan, we start out with what's called an "advance healthcare directive". It is a written document that says what you would like to see happen with your healthcare decisions if you cannot make them. It is a power that you give to somebody else to make those decisions. If you don't have a healthcare directive and you are under a doctor's care, there are things the doctor can and cannot do because you haven't given him the power to do so when you were able to do it and you haven't given someone else the power to do so when you are unable to give it. The healthcare directive usually gives this power to your wife/husband, close relative, or close friend. It basically says that this person has the right to make decisions for me. Within that healthcare directive, it says what kind of decisions you want to have made.

Monday, September 10, 2012

What is a Durable Financial Power of Attorney?

A durable financial power of attorney (POA) is a document that grants authority to someone of your choosing to handle your financial matters. This can include paying your bills, accessing your bank accounts and even selling or buying assets and negotiating real estate deals.

A regular Durable POA allows the named agent to step in at any time and doesn't require a disability to be active. For example, your wife could sign a financial document for you while you are out town.

A "springing" Durable Power of Attorney on the other hand, only gives your financial agent access to your finances when a doctor has diagnosed you as mentally or physically unable to handle your own affairs. In the case of a "springing" durable POA, you will be in full control of your own financial matters while you are of sound mind and body.

If your family depends upon you for financial security, a POA can allow them to continue using your assets if you should become disabled. If you do not name a power of attorney your spouse or family will have to get a court order to handle your finances. This will require a judge to declare you "incompetent" and could delay paying bills and paying for any medical care you may need.

Your Durable Financial POA is only valid while you are still alive. Upon your death, control of your financial assets will pass to your estate executor or your trustee if you have named one.

In addition, a Durable Financial POA will also terminate automatically if you cancel it, a court deems it invalid, your spouse was the agent and you divorce, or if the named agent is not available. Considering this last case, it is a good idea to name a back-up financial agent.

Article Source:

Sunday, September 9, 2012

3 Reasons Why You Should File An Uncontested Divorce

Divorce is one of the most difficult situations that any individual can go through in their lifetime. The situation can actually become significantly more difficult in the event that there are children involved. However, it is a common misconception that all forms of divorce are difficult and only can be handled by engaging a fierce legal battle. Many times if the parties to divorce can agree on several major points they can actually file what is known as an Uncontested Divorce. This sort of legal remedy is not only mutually beneficial but it also is significantly less costly than a standard action that would be filed in the courts. Here are 3 major reasons why you should opt to file an Uncontested Divorce.

1. A significant decrease in costs associated with attorney fees and legal expenses due to the fact that most of the major issues that are typically disputed in the courts are already decided by the parties. It is without a doubt that attorney fees are quite high when it actually comes to cases dealing with a Divorce. As a result, it is always a very good idea to come to terms with the other side in order to taken advantage of an uncontested filing. This will not only speed up the process of the separation but it will also be significantly less expensive had it been a standard disputed case.

2. A very stress free and simple way of dividing the assets of the marital property between the parties. Typically there is a great deal of dispute regarding the splitting of the marital property. There is so much controversy and legal fighting that occurs as to who is really entitled to have a specific asset from the estate. However, when the parties decide as to who is to receive what asset then it makes sense to file an Uncontested Divorce because there will be no need for extra legal expense and headache associated with adjudicating the matter in court.

3. Easy method by which the custody of minor children is divided as well as determination of visitation rights. This is one of the most sensitive topics throughout the whole process because it involves minor children and they can be severely affected by the quarreling of the parents. However, when the matter is solved via an Uncontested Divorce then essentially there is less of a emotional burden on the children.

Article Source:

Saturday, September 8, 2012

Why Use a Limited Power of Attorney?

A limited power of attorney is sometimes called special or specific because it is granting limited power for a special or specific purpose. With limited authority, the agent will not have broad authority over the grantor's finances and property but only the specific authority that is granted to him in this limited type of form.

At any time, a person may require this limited type of form to give another person the power to act in his or her place and to complete a specific task for them. It could be given by a business owner to another person so that the person can handle the responsibilities of managing the grantor's business while he or she is out of the country. Individuals, who are suffering from health issues, preventing them from completing all of their business responsibilities, may also use a limited power of attorney form to appoint someone as their agent to help them complete the work in their place and stead.

Different states have different requirements for executing this type of legal document. But most of the states require that you sign the document in the presence of a notary public. So, it is advisable to make sure that you are using an acceptable form with the correct acknowledgment when you have decided to prepare and execute this type of legal document. This type of legal document can also be revoked for any reason or when the task is completed. Though the grantor granted the agent the authority to take over some of his or her responsibilities, the grantor can continue to make those decisions and manage their affairs themself at any time.

A limited power of attorney is commonly used when conducting banking transactions, collecting debt, buying or selling real estate, investing in financial products and in negotiating with the IRS.

As the name suggest, a limited type of form is given when the task requires limited power. The agent or the recipient of the authorization or power is allowed to engage only in the tasks that are listed in the document.

When choosing an agent, the law requires that you choose someone who is at least 18 years of age. It is also important that the person you choose to be your agent is trust worthy. Depending on the task required of them, they may have access to your personal information like your bank account. Giving this information to an untrustworthy person may lead to theft. It is also important that the person you choose is capable of completing the task in a manner that is acceptable to you and with the outcome you are anticipating. So, make sure to talk to your prospective agent before including his or her name in your limited power of attorney document.

Article Source:

Friday, September 7, 2012

Points To Consider In Effective Estate Planning

It is always important for an owner to look after their worldly possessions and whilst some aspects such as money may be affected by some issues like tax and age, most of the time, an individual would want to make sure that these are properly maintained and protected both at the present time and in the future. This is the reason why some wealth manager experts recommend estate planning. This means that an individual should think about what they are going to do with everything they own in the future. It may mean that they formally or legally designate tasks to people that the owner trusts to be capable of managing their wealth well and distribute it accordingly to the people who deserve it.

Estate planning involves several processes such as creating a will and a testament, setting up specific funeral arrangements in case the owner dies or setting up medical arrangements in case the owner become severely ill. It may also include identifying the direct beneficiaries and an executor to the estate.

At first, planning about what is going to happen to an estate may seem just as easy as jotting down a plans on a piece of paper. But it is not. There are actually a lot of things that an individual would need to consider in estate planning. The first thing that they have to consider are the elements that are involved in effective estate planning such as If they would like to write a will. It may also require having to assign the power of attorney and a living will or a health care proxy.

The planner would also have to consider the federal laws and estate laws that affect the estate. The owner should also be mindful about what rights the government may have in case they prove that a will is invalid or if they have not paid the right taxes.

One suitable way to start estate planning is perhaps by making an inventory of everything that the owner owns including any taxes from their biggest investment, any retirement savings and business interests. It's important to remember that everything has to be documented.

The estate owner should also consider discussing their plans to their heirs or beneficiaries in order to avoid conflicts after the individual has died. They should discuss the responsibilities they have and the reasoning for giving them that amount. Then the owner would also have to consider the federal tax exemption because it changes regularly and it could have an effect on the estate planning process.

They would also have to choose a lawyer and other officials' professionals that would make sure that any documents produced are legally binding and that the wishes of the deceased are carried out once they have passed away.

All in all, estate planning is very important to make sure that things end up exactly the way the owner of the estate has planned them. That way, everything is legally sound and it would ensure that the family of the deceased can remember their relative fondly and happily.

Article Source: