Sunday, March 31, 2013

Is Probate Really Costly and Lengthy?

A lot of people think that probate is costly and takes a long time, which can be true. There are plenty of horror stories about a probate gone wrong. Indeed, some estates are tied up in probate for years on end, as people fight over who gets what. In these cases, probate can get quite expensive as the fees of the professionals involved (such as accountants, appraisers, lawyers, bankers and so on) add up.

The truth, however, is that this is not the usual way things happen. Probate tends to be quite quick and usually does not cost too much because nearly all estates are simple and small. The delay and cost of probate depends mainly on the size of your estate and what type of assets it contains. Obviously, a large, complicated estate, with many assets, will result in a longer probate.

Nearly all states have a simplified or streamlined procedure if your estate has a fairly low probate value. If your probate assets fall below the state threshold (normally under $20,000) you probably do not need to worry about probate because it is likely to be fast and inexpensive. It could be done in days and cost only a small filing fee.

However, if you have more probate assets - above the simplified threshold (i.e. $20,000) - then your estate will have to go through probate. And, especially for larger estates, probate can be time consuming and expensive.

The most common reason for the delay in living trust or probate is if there are gift tax or estate tax issues. Certain things have to be sorted out before everything can be distributed. Death tax returns are usually due nine months after the death but tricky valuation issues could arise.

The trustee (of a living trust) or the executor (if it is a will) cannot distribute everything properly until he knows how much estate tax or gift tax will have to be paid to the State or Federal government. It can take up to eighteen months after filing the death tax return for the federal and state taxing authorities to review the estate and gift tax returns. If your estate is complicated, it could take several years to complete the probate.

So, the first thing to figure out is the value of your "probate assets."

Everything that is in your name when you die is potentially a probate asset. However, some assets, that are in your name, upon your death, are not considered probate assets. Common examples include bank accounts with 'payable on death' (POD) designations. If you designate someone as the POD for your bank account, they will automatically get the account when you die, rather than putting it through the probate. This also applies to life insurance proceeds if you have designated a life insurance beneficiary.

However, most assets, in your name, will have to go through probate. One way to avoid that is to put the assets into a living trust. Any assets you have in a living trust are in the trust's name, rather than in your name, and therefore do not go through probate.

It is important to realize that a living trust will not eliminate delays caused by asset collection or tax issues but it will usually speed up the distribution process because the probate court does not have to approve everything done by the trustee. This is one impediment removed.

Living trusts are very flexible and offer many other benefits as well. If you are thinking about getting a living trust, you should think about both the pros and cons before making any decision.

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Saturday, March 30, 2013

4 Tips on California LLC Formation

California LLC formation, just like in all states is different. Each state has their requirements, fees, and registered businesses. Below you will find a list of tips for becoming an LLC in California.

1.Requirements: If you need to know what the requirements are for California LLC formation you should go to the state of California business website and make sure that you meet them all before you try and go through with the formation of a LLC in this state. Doing this beforehand will save you time and grief later.

2.Fees: You are going to need money and probably lots of it. Starting an LLC is not cheap. Actually, the kind of business that you want to start will have a huge impact on the amount of money that you will need for start up costs. For example, if you wanted a California LLC formation to sell Avon products versus, open a restaurant. These two have a huge price difference when it comes to business fees. Also, don't forget about the fees associated with becoming a LLC. Filing fees vary for each state, so check on those as well.

3.Business Name: A decision you need to make for your California LLC formation is what your business name will be. You have to make sure that the particular name that you want is not all ready taken by someone else.

4.Filing Paperwork- Filling out and filing your California LLC formation paperwork is the most important step for becoming a LLC. When the paperwork is filled out, this is where the owners are named. Filing the paperwork puts your business on record with the state of California. It legalizes it.

As you can see, these are all important aspects that should not go untouched in starting a LLC.

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Friday, March 29, 2013

Avoiding Probate In California

California probate law governs estate matters when a family member or loved one passes away. Probate laws insure that creditors are paid and that assets are properly distributed to the descendants, or "heirs," of the deceased's estate. Probate is a long and expensive process, however probate can be avoided through a carefully designed estate plan.

Methods Of Avoiding Probate

Anyone can avoid probate if plans are made ahead of time. Among the methods of avoiding probate are the following:

* Living trusts. Certain assets, such as a home, savings, and investments, can be transferred into living trusts that do not pass through probate upon death. The trust property is not part of your estate because title to the assets is transferred to the trust. A trustee has legal control over the trust property and is bound by fiduciary duty to exercise that legal control for the benefit of the beneficiaries named in the trust. After your death, the trustee can quickly transfer the trust property to the beneficiaries you have selected, without probate. Living trusts are popular and effective because:

1. they are usually administered informally outside of the court
2. they are more flexible in resolving beneficiary disputes without court involvement
3. assets can be distributed faster than probate (usually in about 5 months after death)
4. they are less expensive to administer than probate matters
5. they are effective during periods of incapacity as well as at death
6. they are easily created.

* Joint tenancy. Assets are not probated if they are owned by two or more people, termed "joint tenants" or similar wording. When a joint tenant dies, the other joint tenant(s) take 100 percent ownership of the asset. A joint tenancy takes priority over the provisions of a will or trust.
* Small estates. Under the California Probate Code, estates of less than $100,000 are exempt from probate. In determining this amount, some assets are not considered probate assets, such as living trusts, life insurance, IRAs, 401Ks, and assets held in joint tenancy. The assets in estates valued less than $100,000 are turned over to the executor of the will and distributed according to the will, outside of probate. If there is no will, assets are distributed to the deceased's nearest relatives (under rules of intestate succession).
* Spousal property petition. The spouse of a deceased person can file a spousal property petition with the court to change ownership of the deceased's assets to the surviving spouse. This procedure is a simplified version of probate, which takes considerably less time and expense than regular probate.
* Death benefit assets. Certain assets which have death beneficiary designations avoid probate. These types of assets include life insurance, IRAs, qualified retirement plans and some annuities.

Approved Cash Advance

If you are the beneficiary of a living trust, joint tenancy, or other estate plan that was set up to avoid probate, Approved Cash Advance can provide you with the funds you need now. Although much quicker than probate proceedings, many of these avoidance methods can still take time.

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Thursday, March 28, 2013

DUI Expungement Process - Steps to Clear Your DUI Record

If you are convicted of DUI, you may want to expunge your DUI record in order to get a job, loan, house, etc. Expungement refers to the process of removing or erasing your DUI records. You are required to petition the court in order to get your records expunged. This article discusses steps to clear your DUI record by covering the whole process from petitioning to obtaining expungement. Each state's expungement laws vary; therefore, this article gives you a basic idea on the process.
DUI expungement process:
1. Where to file a petition for expungement?
You need to file a petition for expungement in the superior court in the county where your DUI arrest occurred. 
2. What are the grounds for denial of expungement?
You can be denied for expungement:
- if you haven't completed probation.
- if you didn't show a good reason to expunge your DUI record.
- if you are convicted of severe felony.
- if a great deal of time has passed since your arrest or conviction.
3. What are the grounds for acceptance of expungement?
You are allowed to expunge:
- if this is the only conviction on your record.
- if you didn't spend any time in state prison.
- if you have rehabilitated yourself.
4. How to file for an expungement?
- Do you need a lawyer?
You don't necessarily need a lawyer for expunging your records. It's just that this process involves a lot of paperwork and if you have a lawyer by your side, he can give you advice regarding that. If you don't wish to hire a lawyer, you should learn all the procedures that are required to get this process done.
- How long does it take?
The entire expungement process could take anywhere from 4 to 6 months.
- What is the filing fee? 
The filing fee may vary from $50 to $400 depending on your case and your state.
- What forms do you need to fill and where to get them?
You need to go to your county courthouse and ask the clerk for the expungement forms. As mentioned above the forms may cost around $50 to $400. The clerk may give you the following forms: 1. Expungement petition, 2. Affidavit or proof of service form.
5. What happens after you file the petition for expungement?
After you file the petition for expungement, a copy will be sent to all agencies that have your records like arresting agency, the county attorney, the city police department etc. They may accept or refuse your request. If they accept, the court will grant your petition without hearing. If they refuse, a hearing will be held and you are required to attend. (This law can vary from state to state). You will be notified of hearing date through the mail. In some states, though, the court sets the hearing date, while in others you have to pick the date. You must ask your clerk beforehand regarding how your state's county court hearing date is set. 
6. The Court hearing and decision:
Your petition for expungement may or may not be granted. If you won the expungement hearing, you must check after 60 days to see for yourself whether your records show up during a criminal record check. The 60 days period is when the court orders all the agencies to seal your record. However, if you lose your hearing, you may need to ask for an expungement once again. 

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Wednesday, March 27, 2013

5 Features of Advanced Healthcare Directive You Should Know About

The advanced healthcare directive, as the name suggests, is a set of instructions made out in advance about the kind of treatment you should be given in the future should you be unable to express your wishes at that time.

The following 5 features will help you in better understanding of this directive.

• Instructions: There may come a time where you may be unable to communicate the kind of treatment you want due to age factors or a health condition that may render you unconscious or incapacitated to make sound decisions. A set of instructions made beforehand will come into effect in such situations and guide the healthcare personnel on the kind of treatment to be given or even what must be avoided. These instructions can be generalized or more specific, mentioning certain medications or procedures.

• Agent: You also have the option of appointing an agent who is generally a spouse, anther close member of the family or a close friend who will have the authority to make decisions regarding the treatment on your behalf. You have to communicate your wishes to the appointed person clearly and provide the required authority on paper which will become effective if you are unable to take your own decisions, just as in the case of instructions.

• Content: An ideal directive is the one that combines both the set of instructions as well as the document that appoints an agent to make the directive effective in any kind of situation. The details of the instructions or the extent of power to be given to the agent will of course be your personal decision; however, you must speak with your family, the agent, healthcare staff and any other concerned personnel before finalizing the same. The directive has to be in writing and must bear your signature along with the required witnesses. Once finalized, the directive must be distributed to all the concerned parties, especially your doctor.

• Implementation: An advance healthcare directive can be a very effective document to ensure a certain quality of life even in the future and can prevent distress to you and your family should any such condition arise. But poor awareness has resulted in the limited implementation of this directive and in several cases the content of the directive has made it ineffective or caused conflict with the right treatment. Medical organizations or providers can help to promote the directive by either educating the patient and family or appointing trained volunteers who can guide you in making an effective and valid directive.

• Evolution: The concept of the advance directive has come a long way since the time you could make a living will containing your instructions or creating a healthcare power of attorney for appointing an agent, to the advance healthcare directive combining both. The Five Wishes document is another well known advancement in this regard.

Advance healthcare directives have been adopted throughout the country; however, different states may have their own specific forms and requirements for such documents.

Article Source:

Tuesday, March 26, 2013

Advance Directives and Do Not Resuscitate Orders Explained

An advance directive outlines what wishes your doctor must follow if you become unable to make your own medical decisions. When you're admitted to the hospital usually the staff will ask you if you have an advance directive, or you can hand your doctor and hospital staff a copy yourself if they don't ask.

An ideal advance directive would be to describe the kind of treatment you would want depending on how sick you are at the time. Also, an advance directive is made to describe what to do if you have an illness that you most likely have no chance to recover from, or if your in a coma what kind of care you wish. The most important thing on an advance directive is what you don't want your doctor to do otherwise a doctor will usually do everything in his power he feels is necessary. However it works both ways, you can demand certain treatments no matter how ill you become.

The laws and forms on advance directives are usually different for every state, its important you get your state's specific form that conforms to your state's laws.

The good thing about an advance directive is that you don't stress out your family and loved ones by putting the burden of making medical decisions for you. If your 18 years or over you can prepare an advance directive.

A do not resuscitate order is like an advance directive but very specific. A do not resuscitate order is made for you to request if you want cardiopulmonary resuscitation (CPR). Usually if you don't fill this form out the whole hospital staff is trained in CPR and also trained to revive you using CPR if your heart stops or you stop breathing. Do not resuscitate orders are accepted in all states.

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Monday, March 25, 2013

LLC Vs Corporation - The Similarities and Differences

The LLC and the corporation are the two competing choices when it comes to deciding on a legal entity for running a business. Both offer the same level of personal asset protection for the owners of the business.
While the corporation has been around longer and so has a longer history of legal enforcement of its liability protection, the LLC protection provisions are based on the same principles and language of corporate statutes. What this means is that the courts will apply the same precedence by analogy when it comes to limited liability companies.
A corporation must have a central body of management structure. This is accomplished with a Board of Directors. Every corporation has a Board and its members are elected by the shareholders to serve terms. The Board has the authority to manage the company. Generally the Board will hire officers to execute the day to day operations based on the overall decisions agreed to by the board. Shareholders in their capacity as shareholders do not have management authority.
The LLC is a flexible shell when it comes to management. There are no required structures and a central management body is not required. A limited liability company can be member managed - here, the owners (members) have management authority by virtue of being members. However, this entity can also be set up similar to a corporation and can create a Board of Managers as the management authority. In summary, an LLC can start with a blank slate when it comes to management structures and can define how it wants to be governed based on the specific circumstances.
Both entities issue a unit of ownership to its owners. For a corporation, shares of stock are issued while membership units are given by a limited liability company. For a corporation, every share must represent an identical unit of ownership. For an LLC, there is the option to define different rights and obligations to members separate and apart from the membership unit. Corporate shares can be publicly traded if the business ever gets big enough to want to go public. There is no option for public markets for an LLC. It is more suitable for privately held businesses.
Management Structure Options
A third of the benefits of an LLC is that it is a flexible entity when deciding how the business will be managed. The members of a limited liability company can choose between two simple management structures: (i) member managed or (ii) manager managed. The laws afford this benefit by allowing members great flexibility in deciding how they want the limited liability company business to be managed and what rules to impose upon the business when it comes to governance and management.
The corporation laws of each state generally mandate that a corporation hold certain meetings and document corporate decisions with shareholder or director votes and resolutions. The limited liability company is not legally required to maintain as much paperwork or hold mandatory meetings, but it is always a good idea to engage in some governance and record keeping. Still, it is is preferred by busy business owners because the owners can focus more on operating the business without worrying about a lot of formalities or maintenance.
Tax Matters
The limited liability company beats the corporation hands down when it comes to taxation. This is because the IRS lets it be taxed however it chooses. It automatically qualifies for pass through, single layer of taxation but it can also elect to be taxed as a C corporation or an S corporation. The corporation by default is subject to double taxation which means that profits are taxed twice. It does not have any automatic qualification of a single tax structure, but there is a limited option to elect S corporation status if a corporation can meet and continue to maintain a laundry list of qualifications and limitations.
In essence, the LLC is more of a small business vehicle while the corporation is for larger businesses and ones with a larger investor base.

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Sunday, March 24, 2013

Living Trust - Great Way To Plan For Your Loved Ones

A living trust is basically a trust that is created when one is alive rather than being created when one dies. This legal agreement is drawn to ensure the property of an individual is dispersed as per his wishes when he dies. The individual transfers the ownership of assets to the trust. He then chooses a trustee who administers it. The trustee could be a friend, family member, a law firm or an attorney among others. The trustee holds the legal title of the property on behalf of the beneficiary.
Since this agreement is entered into when the owner is still alive, it can begin benefiting him immediately. It is revocable meaning that one can make any desired changes. It shows how the income and assets it has earned should be distributed after his death. If the owner is the trustee and he becomes disabled or incapacitated a successor trustee can manage the financial affairs.
It can be used for all kinds of properties. Just like the will, it offers quite a broad planning flexibility. For it to work properly it is important to ensure that all the property has been transferred from the name of the owner to that of the trust.
There are many benefits of having such an agreement. Firstly no property registered herewith will be subject to probate. Probate is a process supervised by the court that involves distributing your property to your inheritors and paying off your debts. With this kind of agreement, your assets technically are not yours any longer as the trust owns them. So, your loved ones are saved the hassle of probate which can be expensive and time consuming.
If one is able and willing, he is allowed to manage his own trust. In this case, he makes a provision for the successor trustee to take over after his death. Upon your death, the successor trustee simply transfers all ownership to beneficiaries named in the trust. After all the property has been transferred to the named beneficiaries, the trust ceases to exist.
Another benefit is that this document offers some level of privacy. This is because the terms of this agreement are not made public upon the death of the owner. This means that the deceased individual's debts, assets and inventories remain private. The estate is then distributed privately.
This is an easy way of transferring assets to your inheritors free of probate in a matter of weeks or a few months of your death. It is especially ideal for people with large estates. A married couple would also find it ideal at it could offer savings on income and on estate taxes in form of a joint living trust.

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Saturday, March 23, 2013

What Is the Difference Between a Contested Divorce and an Uncontested Divorce?

When you and your spouse are seriously considering divorce, you'll find that there are several options for dissolution of marriage for you to consider, depending on your situation. In many states the two most common types of divorce are contested and uncontested.


In an uncontested divorce, both parties are able to work out the divorce terms without any input from the court. More divorcing couples prefer an uncontested divorce simply because it is generally less stressful and is less complicated compared to getting a contested divorce.

Of course, not all couples may benefit from an uncontested divorce. Couples who are in conflict with one another may have difficulty agreeing to common decisions brought about by a divorce, such as child custody, child support, spousal support, visitation, and division of assets.

An uncontested divorce usually involved drawing up a separation agreement mutually agreed upon by the divorcing parties, filing for dissolution of marriage, and attending a hearing. This entire legal process can take less than two months.

In some situations, however, an uncontested divorce does not go as planned and thus transitions to a contested divorce. Should this occur, then the services of a capable and experienced divorce attorney may be needed to ensure that your rights are protected at all times.


A contested divorce, on the other hand, is a type of divorce where both parties are unable to reach an agreement when it comes to all essential divorce terms. Contested is significantly more stressful and complicated compared to uncontested or mediated divorces, and could take several months or even years to resolve.

In a contested divorce, a court judge resolves the case if both parties are unable to resolve all contested points before the scheduled trial date. The judge bases the decision on the facts of the divorce case, including marital documents, records, and testimonies. Common parties who testify at the trial include you and your spouse, as well as witnesses who are testifying on your and your spouse's behalf.

Contested divorces usually always require the hiring of a family lawyer. It is always advisable to seek the counsel of an experienced lawyer in your area if you think your divorce will require going to trial.

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Friday, March 22, 2013

Do You Need A Living Trust?

Living trusts are a much talked about topic in the field of estate planning, and for good reason. You may have heard financial planners or attorneys mention these trusts as a "must have" item in your planning portfolio, but may be confused as to what a living trust really is, what it accomplishes, and most importantly, if you really need one.
What Is A Trust?
A trust is an arrangement in which one person, the trustee, holds legal title to the property of another person or group of people, the beneficiaries. Every trust must have at least one trustee, one beneficiary as well as property which is placed into trust, called the corpus. A trust document sets out the rules that the trustee has to follow when managing, distribute, and generally overseeing the corpus. A living trust, also known as an inter vivos trust, is a trust which is set up by the settlor (person creating the arrangement and funding the trust) while he/she is still alive.
How Does This Benefit Me?
A. Reduces Cost: When a person passes away, assets titled in his/her name pass either under the will or by the laws of intestacy which dictate how assets are distributed if there is no will. Either process requires the intervention of the local Surrogate's Court and, most likely, an attorney. An attorney will typically charge 3-5% of the total value of the probate estate which is in addition to a similar amount charged by the executor/administrator. With a revocable living trust, there is a slightly higher initial fee to set up and fund the trust, but it is usually a fraction of the cost of probating a will.
B. Saves Time: By going through the judicial process of probate, the validity of your will is open to challenges by disinherited heirs and other interested parties. Intestate heirs, also known as distributees, can challenge the validity of a will if they stand to receive more money if there had not been a will at all. The probate/administration process can protract the transfer of assets by months in the best case scenario and years in the worst. This can delay getting your assets to those who need them and costs your estate unnecessary legal fees. Since a revocable living trust is not a public document and does not need to be filed with the court in order to distribute assets, there is less unnecessary delay in transferring the assets since the trust does not need to be probated. You will not have to waste time waiting to get letters testamentary appointing an executor since a successor trustee is appointed automatically by the trust. Additionally, while a living trust can be challenged, it is more difficult to do so than with a will.  All this means that your final wishes will be executed as quickly as possible.
C. Give You Control: Since a living trust will be prepared by you, typically in consultation with your attorney, you retain full control to specify what will happen to your assets when you pass away. You set the terms, pick the trustees, and direct them how/when to invest, manage, and distribute your assets.  Best of all, you retain complete control of the property in the trust while you are alive by naming yourself as trustee. Since the trust is revocable, you can amend or revoke the entire trust any time you wish.

Article Source:

Thursday, March 21, 2013

Medical Power of Attorney

A Medical Power of Attorney gives specific instructions, prepared in advance, that are intended to direct medical care for an individual if he or she becomes unable to do so in the future. Plainly speaking, a Medical Power of Attorney is made in anticipation of a medical emergency. If you are in an accident or suffer a disease or disorder that may leave you incapable of making a sound medical decision, a Medical Power of Attorney permits you to choose in advance who will represent and enforce your interests. The person authorizing the other to act on his behalf is the "principal" and the one authorized to act is the "agent".

A Medical Power of Attorney should be given to someone whom you trust unreservedly; this is an individual who will be making decisions for you when you are incapacitated, even if you are not on life support or terminally ill. However, an agent does not have the authority to act until the principal's attending physician certifies in writing that the principal is incompetent.

A Medical Power of Attorney is not legally effective unless the principal signs a disclosure statement that he or she has read and understood the contents before signing the document. If the principal is physically unable to sign, another person may sign the document in his or her presence and at his or her directive. Two qualified witnesses, who are competent adults, must witness the procedure. At least one of them must not be related to the principal, the principal's attending physician or the attending physician's employee, entitled to a part of the principal's estate, an individual who has a claim against the principal's estate, or an officer, director, partner or business office employee of the healthcare facility.

An individual may revoke the Medical Power of Attorney by notifying either the agent or the principal's health care provider of his or her intent to revoke the document. This revocation will take place regardless of the principal's capability to make sound medical judgments. Further, if the principal executes a later Medical Power of Attorney, then all prior ones are revoked. If the principal designates his or her spouse to be the agent, a divorce revokes the Medical Power of Attorney.

An agent, acting in good faith, will not incur criminal or civil liability for a medical decision made under a Medical Power of Attorney.

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Wednesday, March 20, 2013

Top Reasons to Create Power of Attorney

People are often confused about power of attorney and if they need it. The simple answer is nearly everyone can benefit from these legal forms. However, it's advisable to become informed about the various types and their uses.

Power of attorney forms are needed to designate an agent to conduct business or personal transactions on your behalf. They are also required to authorize agents to be involved with healthcare decisions if you are unable to communicate.

There are laws in place that forbid unauthorized people from accessing bank accounts, using credit cards, or buying or selling titled property. The only way to give permission to others is to prepare power of attorney forms.

The type used depends upon the transactions agents are involved with. Some forms let agents perform a wide variety of tasks, while others are limited to a specific duty. Each has a unique purpose, but can be customized to address the needs of each individual. Three of the most popular are general, limited, and medical.

General power of attorney allows agents to carry out many duties. They are often used by companies to ensure business operations can continue in the absence of senior management or partners.

They can also be used to let a company or professional act as a negotiator. For example, if a person owes money to creditors or the IRS they can hire a lawyer to enter into a deal. Or, a real estate investor could authorize an agent to buy and sell properties or act as a property manager.

Power of attorney forms normally do not have to be recorded through local courts. However, if they are used in association with real estate transactions then they might need to be filed with the county clerk's office. Furthermore, whenever agent powers are revoked another POA has to be recorded to document removal of privileges.

Limited power of attorney is used when agents are responsible for performing a specific task. Once agents carry out the assigned task their privileges are automatically revoked and the form is null and void.

Duties can range from basic tasks, such as balancing a checkbook to complex tasks, such as selling an automobile or real estate. As a rule of thumb, if a transaction requires your signature a form should be created to let someone else take care of things if you're unable to do so.

Medical power of attorney is one of the more important forms. Every adult should create one to ensure they have a voice in their medical care, even if they can't speak. This form grants agents the right to be involved with medical decisions regarding your care. It is also used to define any lifesaving procedures you desire or are against.

Agents do not get involved until a person is declared incapacitated by a medical doctor. It is advisable to openly communicate your wishes regarding treatments or procedures. Doing so will assist them in making choices that are in alignment with yours.

For the most part, spouses and relatives are designated as healthcare agents, but the choice is completely up to you. The only requirement is that agents are at least 18 years of age.
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Monday, March 18, 2013

Advance Directives: Who Will Manage Your Affairs If You Cannot?

What happens if you are out of town and some kind of business has to be transacted? Who makes medical decisions when someone is in an accident and needs surgery?
There are many situations where it is necessary to make medical, personal, and financial decisions for another person. Many people assume their spouses or children will automatically be allowed to make medical, personal and/or financial decisions for them, but this is not necessarily so.
Even though we all know of situations where health care providers and others have turned to the immediate family to make decisions under these circumstances, actually the law provides that only someone with the legal right to make such decisions -- or otherwise act on behalf of someone else -- can do so. You don't want to take chances on how things might go in a medical emergency. And, certainly, when it comes to financial decisions, or taking action in court or banking situations, legal authority to act is imperative.
The basic documents that provide such authority are known as Advance Directives and include a Power of Attorney, a Living Will, and a Health Care Proxy. (1)
In the absence of Advance Directives, a Guardianship proceeding would then have to be brought in Court to have the Judge appoint someone to make such decisions. To avoid the necessity of a costly and lengthy Court proceeding, and to make sure that your wishes are expressed and the authority to carry them out is given, Advance Directives must be put into place.
Power of Attorney
A Power of Attorney is a legal document that allows one person (called the principal) to appoint someone else (called the agent or attorney-in-fact) to act on his or her behalf. The powers that can be exercised by the agent can be broad or narrow; the principal chooses them, in advance. You might, for example, authorize your agent to do a specific thing (e.g., sell your house) or you might give the authority to do any legal act you could do yourself.
There are three different types of Power of Attorney:
conventional Power of Attorney gives the agent whatever powers the principal chooses, often for a specific period of time, beginning when it is signed.
durable Power of Attorney stays in effect for the principal's lifetime, beginning when it is signed. It contains specific language stating that the agent's power is to stay in effect even if the principal becomes incapacitated.
springing Power of Attorney "springs" into effect upon a specific event, such as when the principal becomes incapacitated. It must be carefully drafted so that there is no difficulty determining when the springing or triggering event has occurred.
By signing a Power of Attorney, you are not giving up your right to act in your own behalf; you are instead empowering your agent to also act when and how you have directed. Also, it's important to note that you can revoke, or cancel, a Power of Attorney at anytime, and you do not need to give a reason for doing so. If you do make changes to your Power of Attorney it is a good idea to let all involved parties know of your decision - particularly your appointed agent and anyone they may be dealing with, as well as your attorney.
All Powers of Attorney automatically end when the principal dies. Consequently, your agent's powers do not overlap with those of the executor of your estate. Choosing an agent is an important decision. You need to trust the person completely, and you need to make sure they are capable of performing the job.
Living Will
A Living Will allows you to specify the kind of treatment you want in particular situations, especially what happens if you are terminally ill. For example, you might choose to specify that you do not want to be treated with antibiotics if death is imminent. Or that treatment is to be withheld if it only serves to prolong your death. You can ask that maximum pain medications, however, be given even if they hasten death.
Health Care Proxy
The Health Care Proxy identifies the person you've chosen to make medical decisions for you if you become unable to do so yourself. It is activated anytime you're unconscious or unable to make medical decisions.
In choosing an agent, keep in mind the following: Most states disqualify anyone under the age of 18, as well as and your health care provider and its employees, to act as your agent. Furthermore, the person you name as your agent must be willing and able to advocate on your behalf, deal with conflict among friends and family members should it arise, and must understand and respect your wishes. Needless to say, the person must be someone you trust with your life.
Although death is a difficult subject to bring up, it is a good idea to discuss these issues with friends, family members, and your agent to ensure that they understand your values and beliefs.
Once you've finalized Advance Directives, give copies to your family, agent, and your health care providers.
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Sunday, March 17, 2013

Do You Need Information About Legal Guardianship

If you would like to have legal guardianship over an incapacitated individual, you need to petition the probate court that has jurisdiction regarding your case. The probate court that serves the area where the person you want guardianship over resides is the court with jurisdiction.

There are many reasons why you might want guardianship over an individual. Perhaps the person is not capable of taking care or him or herself. In many cases children of elderly parents petition the court for guardianship over their parents who are no longer to care for themselves.

As the legal guardian, you will be responsible for that persons well being. You will have to make living arrangements that are the least restrictive possible. You cannot simply place that person in a nursing home when the person is able to live an assisted living facility.

You will need to make sure the person is receiving the proper nutrition. You will be responsible for his or her medical care. That is, you must make sure that he or she visits the doctor regularly, and that his or her medication is available.

Of course if you are asking for guardianship for a loved one, then you will naturally take good care of the person you are responsible for. But you do need to demonstrate to the court that you are capable of this responsibility before the court awards guardianship.

Your care will also be subject to regular court review. You will have to provide documents and other evidence demonstrating that you are providing proper care and that you are respecting the requests of legally incapacitated person.

In some cases the court will have to appoint an emergency guardian. This need could arise if someone is severely injured in an accident and cannot care for himself. This could be a temporary situation until that person recovers and resume normal responsibilities. Even though this is an emergency court appointment, the guardian is still under the legal duty to provide the necessary care required under the law of guardianship.

When you apply for guardianship, you will need to include in your petition medical records detailing that persons incapacity and also sworn testimony of interested parties who agree that you should be appointed legal guardian by the probate court. The court will appoint an objective person to meet with the incapacitated person in order to evaluate that persons capacity regarding your request for guardianship. Once you are approved you will have legal guardianship over the incapacitated person.

The information you obtain in this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

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Saturday, March 16, 2013

The Probate Process - Following Final Wishes

Death is inevitable to everyone in this world, and yet few people prepare for that eventuality in a legal manner. Regardless of the circumstances, the possessions and last wishes should always be documented with a will in order to avoid difficulty or problems for those left behind. Typically, if someone has a will, it will go to probate after the death. Many people wonder, "What is probate?" It is the first step in executing the last wishes that are included in the will. It means that it is the start of dispersing the items or finances to whom they will belong.

The probate process can sometimes be a long and drawn out process, simply because there is the inevitable red tape that goes along with any procedure of this nature. For example, in the midst of this process, usually begun by an attorney, creditors must be informed, a probate court may need to rule on the validity of the will, assets assessed and dispersed, among many other things. In addition, sometimes there is a dispute over the contents of a will, and an attorney can help straighten out a legal mess before it gets started.

There are many ways that you can look at the probate process. It can be what is happening while the will is being looked over by judges and an attorney, or it can be the process of distributing the worldly goods as mentioned in the will. The taxes must be taken care of first, as well as any debt, so the rules must be followed. Without a will, however, this makes the process much more difficult, and sometimes the state in which the deceased lived gets to decide the property and asset dispersal. If you do not yet have a will for yourself, you need to get one.

Unfortunately, even death is now a bureaucratic mess that can involve miles of red tape and can sometimes take years to straighten out. However, by preparing for the worst, you can protect your estate and see that it goes to the people you want, and is not distributed according to a random act by the state. While it is always advisable to have a personal representative named in the will, it is also important to have an attorney double check every bit of the documentation to ensure that it will be complied with and is compliant with state laws.

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Friday, March 15, 2013

What is a Notary Public - The Short & the Long of It

Notary Public: The Short Answer

A notary public is a certified official that is capable of acting as a reliable, impartial witness for the signing of important documents. A notary public is also able to administer oaths and may have other official capacities depending on the jurisdiction.

In the United States, most notary publics charge a nominal fee for their services. Notary publics dispense their official duties by marking documents with their signatures and a distinctive embossed stamp or inked seal. A document which has been witnessed by a notary public has been notarized.

Notary Public: Benefits

The benefits of using a notary public are simple. By certifying the veracity of the signing parties, the notary provides an inexpensive way for organizations and individuals to enter into contracts and conduct business with a reasonable assurance that the notarized documents will be recognized in court.

Using a notary public is a way to protect against fraud, as the notary is responsible for requiring the signer of a legal document to establish his or her identity. Although this is not conclusive proof of identity, it provides reasonable evidence of identity so that every day business can be conducted. A notary also acts as a disinterested third party for parties entering into a legally binding agreement.

Notary Public: More Info, Please


The concept of a notary is as old as the Western concept of civil law, which has its beginnings in the courts of Rome. As the Roman legal system became more codified, the law courts became more and more reliant on the use of scribes for maintaining the court records. These scribes developed a system of legal shorthand, called notae. In time, a legal scribe earned the name notarius.

The name has been handed down through the centuries, living on past the fall of the Roman Empire. During the Middle Ages, the role of the notary public was often taken by the clergy, who were charged with recording private and public transactions, as well as drawing up official documents.


Today, a notary public's duties are somewhat different than the duties of a notarius. In the United States, a notary public has been authorized by a specific body, usually a state government, to perform the services of a notary. These duties are usually confined to the witnessing of documents and the administration of oaths. Some states also allow notary publics to certify copies of official documents

Two of the most common documents that a notary public will witness have to do with the sale or transfer of real property and the granting of power of attorney. A few examples of the documents that a notary public can officially witness include the following:
§ Acknowledgements
§ Affidavits
§ Jurats
§ Oaths
§ Formal protests

Some states give notary publics significantly more duties. For example notary publics in Louisiana are able to perform most of the duties that a lawyer can provide with the exception of representing another person before a court. Three states--Florida, Maine and South Carolina--allow notary publics to solemnize a marriage ceremony.

Some states will require the notary public to maintain a record of official acts. Although keeping a journal of official acts performed is not mandated by all states, many professional notary organizations recommend that all notaries keep records of their actions.

SIDEBAR: Legal Language

Ever wonder why legal documents are about as clear as mud?

The wording of legal document has to abide by certain customs and restrictions in order to have any binding effect in a court of law. This wording is called acceptable language.

SIDEBAR: Documents and Definitions

Know your jurat from your acknowledgement? Here are the definitions of some of the common documents handled by a notary public.

Acknowledgement: A legal declaration of an act.
Affidavit: A sworn statement of fact
Jurat: A part of an affidavit containing the oath or affirmation.

Becoming a Notary Public

In the United States, each state is responsible for commissioning notary publics to practice within its jurisdiction. In general, the requirements for becoming a notary public are relatively easy to meet. In most states, an applicant must be at least 18 years of age. Most states charge a small fee as part of the application process. Some states require satisfactory performance on an exam before commissioning the notary officer. In some states, the notary is required to hold a bond as insurance in case of a lawsuit leveled against the notary public.

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Thursday, March 14, 2013

Is An LLC Right For My Business

There are a lot of people that are ditching the traditional route of making money, and looking for alternatives. One of the biggest alternatives that have been around for a great deal of time is the formation of a business. Whether you work online or you're working on building a brick and mortar store, you'll find yourself looking at different options to make things legal. Sure, you could go at it without forming a real company, but there are going to be issues that you will deal with on a legal level that could close you down fast. Consider the following things before you can fully understand whether forming an LLC is right for your needs as an entrepreneur.

The first step to understanding whether an LLC is right for your business is to fully be aware that you are going to start a business. Some people are OK with working without the banner, but that will mean you'll have to pay more taxes, and your personal finances can be affected if you get in legal trouble of any kind. If you're dead set on starting a legitimate company, than that could be the first sign that this option is right for you.

As mentioned above, when you form this type of company you will be thrilled to know that your assets are going to be protected. What that means it that you are not going to be personally responsible for any debts that you incur as a business, and creditors will have to go at your business and not any personal money you might have such as savings, a home, or even a car. When you're working alone, you are going to have to defend yourself tooth & nail to keep your assets.

When it comes to forming this structured option, you will find that your taxes aren't going to be the same. You won't have to pay at the business level at all, and that means that you can get your income and losses passed through and your regular personal tax statements will apply. All the taxes that you will have to pay or report will come down to the personal level and will not go through a business funnel, which is a great thing overall.

The number one thing that you will want to consider when starting this company is the sheer fact that you will have authority in regards to whatever business you're in. No matter what you do, no matter where you are in your career path, you will find that those that have a full fledged LLC have a certain authority that others do not. Your competitors that do not form a company and are freelancing will start to look like amateurs and hobbyists compared to you, so you'll inherit a great deal of work that you might not had previously.

The above issues are important to consider w hen you start to question whether or not an LLC is right for you. Take your time considering your options and make sure that you're fully aware of what you're up against when forming such a company. You'll find that the benefits are quite good overall.

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Fairfield-Suisun Chamber Happy St. Patrick's Day Celebration Mixer Is Tonite in Fairfield

Happy St. Patrick's Day Celebration Mixer
Fairfield-Suisun Chamber of Commerce at:
Integrity Auto Collision Center Inc.

March 14th, 5:30 - 7:00 pm

Appetizers by Azevedo's
Green Drinks
Have Fun! Wear Green!!

If you would like additional exposure for your business, please feel free to bring a raffle prize with your business card on it to the mixer. 

Wednesday, March 13, 2013

LLC Vs Sole Proprietorship - A Few Things To Consider

When you are tired of working for someone else and you want to start your own business you will often times be faced with several questions. If you do things the smart way you're going to have to decide whether or not you go for an LLC or a sole proprietorship moving forward. There are many differences between the two, and figuring out which one will help you out the most can be a daunting task, which is why it's important to look at some pros and cons on each side.

First and foremost, if you're going to conduct business on your own, without a lot of outsiders coming in and helping you, you're going to want to start a sole proprietorship. In this type you will be doing everyone from marketing to financial matters on your own. You could get an employee to help you down the road, but often times people focus on this type if they are dealing with businesses that are highly personal and have low risk of getting into legal issues that many will have to face.

The downside to going at it solo is that you could be liable for many issues and if you get sued or someone gets injured your place of work, you will be liable and your assets can be seized. You could lose all your profit, plus your personal home, bank account, and anything else you have in your possession. This poses a danger to most people, which is why they opt for another way to go about doing business.

The second way to get your business going is to form an LLC. This type of company will allow you to structure your business as a separate entity from who you are and what you personally do. Even if you're the only owner, you will have a set of books and documents that will outline your role within the company, and you will have to manage things in a method that is outside of just being "personal" about it.

The upside to this option is that you will not get sued or be responsible on a personal level if something within your business goes wrong. If you get sued and you lose, your assets will remain under your custody, however, your business will have to foot the bill. Only the profits and accounts that are possessed as the business will be liable for anything. This is why many people go with this option, as it helps keep personal and business options away from each other.

Forming an LLC also pays a different type of tax than having a sole proprietorship. It can also be set up in another state where the cost of doing business can be quite less than other areas. An LLC can act with several owners, one owner, or a variety of different manager styles, which makes it a versatile option moving forward.

Whether you go at it alone or try to form an LLC, you'll see that the two options abound for those that want to start a business.

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Monday, March 11, 2013

Probate Process - What Is Probate? The Steps to Administering an Estate

Most people have heard the word probate before, but they might be wondering 'what is probate?' The probate process can refer to several things. The probate court determines whether or not a will is valid. If an executor is not named in the will, the court will assign an executor to perform those duties. However, the entire process of administering the estate of the deceased according to the will's instructions can also be referred to as probate. Many people think that an executor simply reads the will and hands out the bequests to the heirs. There is so much more involved in the duties of an executor during probate.

The actual court probate process is only a part of the responsibilities of the will's executor. The first duty is to file a petition to start probate in each of the states where the deceased owned property. Because each state has slightly varying probate laws, the answer to the 'what is probate?' question will change a little depending on a specific state's legal code. However, there are some common events between states when it comes to processing wills and other estate administration. Before the executor of the will can even be formally appointed or approved, a petition has to be filed, a notice of petition must be published with a certain amount of lead time (usually at least 15 days), the legal documents must be given to the judge for approval, and the concerned parties (such as beneficiaries) must be notified.

Following these notifications, the court hearing will formally begin the probate process and approve the named executor of the will. After the court hearing, the executor needs to inventory all of the deceased's assets. This information has to be filed with the probate court. Next, all creditor's claims are addressed and paid off. The IRS also has to be paid. It is the executor's responsibility to file all taxes, including income, estate, and others, by their respective deadlines. The timelines are not adjusted due to the death of the taxee. What is probate? It's probably a lot more than most people realize.

Once all debts and taxes are paid, the executor of the will files a petition for the judge's approval of the distribution of assets to the beneficiaries. The concerned parties are notified, and there is a court hearing where the judge approves the distribution of assets. Finally in the probate process, the executor transfers those assets to the beneficiaries. These steps are the main answer to the 'what is probate?' question.

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Sunday, March 10, 2013

Understanding Living Wills

Expressing Wishes in Writing

Many people do not understand the difference between a living will and a final will and testament. While both are very important legal documents, a "Living Will" is completely different form a "Final Will and Testament". A "Final Will and Testament" specifies to whom individuals will leave personal assets, property, valuables, or custody of minor children. A "Living Will" is for use in a health care aspect. Individuals without tangible assets may still wish to enact a "Living Will".

So, what is a "Living Will" anyway?

A living will or advance directive generally directs health care providers whether or not to use heroic treatments or extraordinary measures that would delay death, such as breathing machines (respirators/ventilators), or to stop such treatments if they have been started. Individuals can also specify their views about giving food and water through a tube (artificial nutrition or hydration), as well as the length of time such treatments are to continue.

Who carries out these wishes?

The party responsible for following specified wishes is completely up to the patient. A Health care Power of Attorney is given to the person named to make medical decisions predetermined by the patient. This person is called a "health care agent" or "proxy." The agent or proxy is the voice of the patient and voices only the feelings and thoughts that the patient has expressed. They are to present decisions in an unbiased manner, regardless of their own viewpoints.

Will physicians and staff ignore the patient and go directly to the Power of Attorney or Proxy?

No. Make no mistake, patients' thoughts, feelings, and values take priority over anything else. Health care providers will provide any available information so that patients may make an educated decision, but the final decision rests with the patient and those wishes will be respected. A health care Power of Attorney or Proxy only becomes effective in the event that is physically or mentally unable to make their own choices known.

What happens if there is not a Living Will or Advance Directive in place?

The decisions of health care become the responsibility of next of kin, even if the patient would not want that person to be involved. If the patient does not have proof of their wishes outlined, there is no way for anyone to know what they would have wanted.

The topic of living wills or advanced directives may be one of the most uncomfortable conversations a family ever has, but the only way to ensure that everyone understands and respects each others' wishes is to maintain an open dialog. This discussion will also relieve some of the stress and tension from grieving family members during a difficult time.

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Saturday, March 9, 2013

Reasons Why It Is Important to Assign Someone Power of Attorney

Establishing the extent of, and limitations to, the agent's power is essential to a successful relationship between the two parties. An agent can be anyone the principal trusts (who is typically 18 years old or older) to carry on the principal's important matters, which may include financial, personal tax, and real estate matters. The letter of attorney may identify alternative agents if the named agent dies, becomes legally disabled, resigns, or refuses to act on behalf of the principal. A letter of attorney sets the standard for the amount of authority that the agent will have. It should be very specific about what powers are being granted and what limitations are placed on these powers.

With a durable letter of attorney, the document typically states that the transfer of power is effective immediately or when the principal is unable to coherently make decisions on his/her own due to some disability or incapacity. If the durable letter of attorney is to become effective when the principal becomes disabled or incapacitated, the definition of "disability" and "incapacity" should be included in the power of attorney, along with a method of showing the existence of a disability or incapacity. This helps the agent and third parties know when the powers pass to the agent. This is important because some third parties may be cautious about recognizing the agent's power to act on behalf of the principal. A statutory power of attorney, simply tracks the language from the State's letter of attorney statute. To make a legally binding, it must comply with all state laws, and should be signed, dated and notarized by the principal.

Medical power of attorney assigns an agent to make health care decisions for the principal when a physician certifies in writing that the principal is no longer able to make these important decisions. For example, a person is unable to make health care decisions while in a severe coma. Despite the significant grant of power, an agent is obligated to follow the principal's instructions when making decisions on his/her behalf and the principal may revoke the authority granted to the Agent. Two witnesses must be present for the signing of the written medical power of attorney, and there are limitations on who may serve as witnesses.

The letter of attorney is a valuable tool that can provide the principal with the peace-of-mind that his/her affairs will be taken care of. If you would like to know more about durable, statutory and medical power of attorney, consult with a trusted legal professional.

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Friday, March 8, 2013

Planning for Incapacity: Control Your Fate

Mention estate planning and most people think of Wills and Trusts. But a good estate plan includes things to help you if you become incapacitated (Alzheimer disease, dementia, coma, vegetative state, severe illness, etc.). Three documents should be considered: an Advance Healthcare Directive, a Power of Attorney for Finances, and a Trust. The first two are vital. The third is usually advisable, but may not be necessary in all cases.

An Advance Healthcare Directive is sometimes called a living will or a power of attorney for health care. It is a document that tells your doctors and your loved ones whether you want to be placed on life support, and who will have authority to access your medical records and consent to treatment for you. (It is a good idea to name at least one backup as well.) Be sure to discuss your wishes with the person you nominate as your decision maker. Not everyone is comfortable with such responsibility. You should also discuss these things with your loved ones. It's always easier to hear when things are calm, rather than suddenly learning of your wishes in a crisis situation.

A Power of Attorney for Finances appoints someone to handle your money, your property and your bills when you are incapacitated. The person appointed is called an attorney-in-fact," which has nothing to do with being a lawyer (a lawyer is an attorney at law). The person nominated should be someone who is good with money and responsible enough to care for your property.

Sometimes the Advance Healthcare Directive and the Power of Attorney are sufficient, especially if you have few assets and nothing very complicated. But for many people, having a Trust is also a very good idea. Think of a Trust as being a special box into which you place your assets (bank accounts, stocks, your home, rental properties, etc.) The person you appoint to take care of the box is called the Trustee. This person is NOT the Executor. An Executor is appointed in a Will, approved by a court, and only has authority after you die. A Trustee generally does not need court approval, and can handle things during your lifetime, as well as after your death. A Trust can provide greater protection and easier management than relying upon a Power of Attorney alone.

The number one mistake people make in estate planning is putting things off until it's too late. Without a directive, your care is left to fate. We all hate to think about our own mortality, so most of us do nothing. As the saying goes, "Failing to plan is planning to fail." Don't be the next headline court case because you failed to provide for your end-of-life wishes. Don't leave your family unable to mange your affairs without a court order. With proper planning, you are in control. Make arrangements. It's unpleasant to think about, but believe me - you'll feel much better once it's finished.

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Thursday, March 7, 2013

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.

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Wednesday, March 6, 2013

Power of Attorney and Living Trust: Why Do I Need Both?

A Trust and a Power of Attorney for Finances serve two separate, but complimentary functions.
A Power of Attorney for Finances appoints someone to handle your money, property and bills when you are incapacitated. The person nominated should be someone who is good with money and responsible enough to care for your property. The person appointed is called an "attorney-in-fact", which has nothing to do with being a lawyer. A lawyer is an "attorney at law". A Power of Attorney for Finances is sometimes called a Durable Power of Attorney. "Durable" means the Power of Attorney remains valid, even if you become incapacitated. There can also be a "power of attorney for healthcare," that is a separate document and unrelated to your finances. Most lawyers mean a Power of Attorney for Finances when they say "power of attorney." If they mean the kind that is for healthcare, they generally say so.
A Living Trust can provide greater protection and easier management than relying upon a Power of Attorney alone. Think of a Trust as being a special box into which you place your assets (bank accounts, stocks, your home, rental properties, etc.) The person you appoint to take care of the box is called the "Trustee". This person is NOT the "Executor". An Executor is appointed in a Will, approved by a court, and only has authority after you die. A Trustee generally does not need court approval, and can handle things during your lifetime "and" after your death. This is why it is called a "living" trust. It is customary (though not required) to name the same person as Trustee and as attorney-in-fact, so that control of both Trust and non-Trust financial matters are centralized with one person.
Even if you have a Trust, you still need a Power of Attorney because it applies, during your lifetime, to management and control of your property that is "not" in the Trust. Certain property does not get put into your Trust during your lifetime. For example:
  • If you try to title your IRA to your trust, the IRS will treat that as an early withdrawal of the entire account. Your attorney-in-fact can direct IRA investments, contributions and withdrawals.

  • If you're receiving social security, your right to benefits can only be held personally, not in a Trust. Once a monthly benefit is paid to you, the amount paid can be placed in your Trust, but not prior to payment. Your attorney-in-fact can transfer social security payments into your Trust and access your records with the Social Security Administration.

  • Your attorney-in-fact has authority to prepare and sign your personal tax returns or speak to the I.R.S. about your taxes. Your Trustee does not.

  • Your attorney-in-fact, but not your Trustee, can make Medicare benefits elections and enforce your rights under Medicare.

  • If you forgot to put an asset into your Trust, your attorney-in-fact can make that transfer.
A good estate plan contains both of these important documents, but if you can only have one, choose the Power of Attorney. Without it, your loved ones will need a court ordered conservator or guardian to handle your property. This requires an expense and very public procedure.

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Tuesday, March 5, 2013

How Is Child Custody Percentage Determined in an Uncontested Divorce?

Uncontested divorces are generally cheaper and less of a hassle, making them very popular options for couples who are pursuing a divorce. One of the most hotly contested issues in a divorce is child custody, although when an uncontested divorce is pursued both parties must agree on an arrangement. Otherwise, the divorce turns from an uncontested one into a contested one. Lawyers may still be consulted during the divorce process when the other spouse does not contest it, but generally both parties must agree on all issues outlined in the divorce agreement including child custody, child support, visitation rights as well as asset division and other legal matters. The moment that any of these items cannot be agreed upon, the divorce turns contested in which case the Court may ultimately determine the terms of the agreement and child custody.

Whether to pursue a 50/50 child custody arrangement or a 60/40 arrangement or any other division of time spent with the child is largely up to the parents in an uncontested divorce. Cases of joint physical custody typically involve an arrangement that has both parents spending relatively equal amounts of time with the child. In cases of sole physical custody, the child may live with one parent, but that does not mean the non-custodial parent is not able to see the child. Visitation rights (holidays, weekends, etc.) are still involves in many cases of sole physical custody. Joint legal custody, which means both parents may make decisions involving the child's health care, religion, education, etc., may be present even if sole physical custody is present.

When determining the child custody arrangement while pursuing an uncontested divorce, it is important that both parties be fair with the other. Joint custody, whether physical or legal, should only be an option if both parents provide a safe, nurturing environment for the child. If this is the case with both parents, finding a way to divide the time equally will be helpful in the pursuit of a non-disputed divorce. The parents may also opt for sole physical custody in which one parent sees the child on weekends and holidays while still pursuing an uncontested divorce as long as both parties agree to the arrangement.

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Monday, March 4, 2013

LLC FAQs - What Is an LLC?

When in the process of creating a new company, the business organizers have several options to choose from. The decision will impact tax status, liability and how the profits are shared. Although the options depend on the type of business that is being formed, owners can choose from corporation, sole proprietorship, partnership or the relatively new limited liability company (LLC).

The LLC is a flexible option for organizing the owners of a company. The LLC partners are called associates. Individuals, partnerships or any other business entity can all be associates in an LLC. The main benefit for choosing this method is that all owners are protected from any losses that the LLC might incur. The company is an entity on its own. Associates are not personally responsible for taxes, and if it is sued, only the company itself will bear any responsibility from damages. The main benefit to forming an LLC for the associates is the ease in which it is possible to get the profits. The losses stay on the books of the company.

This form of a company has been on the law books for over 30 years. In 1977, it began in Wyoming, but adoption was slow until Florida followed suit in 1982. It was in the 1990's that forming a company as an LLC really took off and started becoming a popular option that took the place of the other business ownership formats. Since then, it has remained on of the most popular options when creating a new business.

The structure of an LLC is simple. There can be an infinite number of partners in the entity, or there can be just one. Although corporations require bylaws and annual meetings for shareholders, these are not required by an LLC. The only requirement is to record the formation of the company with the secretary of state and pay the proper filing fees.

Among the many benefits of forming an LLC, there are a few disadvantages to associates who choose to structure their company this way. Since each state has its own laws governing LLCs, your company will be treated differently state to state. The earnings of the members of an LLC are also subjected to a self employment tax. This is not the case for corporations where profits are passed on as distributions and are not taxed this way. The final disadvantage only applies in certain states. Some states will apply a tax to an LLC but not to a business formed as a partnership. In those states, it may make more financial sense to form a partnership instead of an LLC.

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Sunday, March 3, 2013

Valuable Information for People Planning to Form an LLC

Putting up a business is a good way to earn money. While it can be rewarding, it can also come with a few potential risks. For instance, starting a corporation during challenging economic times may not be ideal. This can cause substantial losses especially when you are putting up the corporation on your own for the first time. Forming an LLC can be your best option when looking for an alternative that is less formal but is as flexible as a corporation.

What is an LLC?

A Limited Liability Company or LLC is a relatively new business model slowly becoming popular among small business in the US. This type of business combines the limited liability feature of a corporation and the operational flexibility of a partnership.

The concept of an LLC was introduced in the late 70s. In other countries, this business model came much earlier and has different statutes and guidelines than that of the US.

Advantages of forming an LLC

LLCs in the United States normally call its partners "members." These members benefit from the incorporation while maintaining small business setups. They also report losses and profits on their individual tax returns much like in a partnership or proprietorship. On the other hand, members also have protection from personal liability. This means they are not responsible for any company debts just like in the setting of a corporation.

Moreover, if the company encounters any legal trouble, only the company assets are at risk. Credit companies cannot go after any of the members of the LLC and their respective personal assets. This is the reason many people today want to form an LLC.

How to form an LLC

The first step is to choose a business name. It must be distinct from other businesses in the state. It also needs to have a clear labeling as an LLC. There are states that do not allow using certain words in the name of the LLC. "Bank" and "Insurance" are two examples. Make sure to choose the proper words for the company.

The next step is to file for the Articles of Organization. This document contains a complete overview of your business. The Articles of Organization include basic information such as your business name, address, and its members. It also documents the stocks that your LLC may issue and legitimizes the operation of your enterprise.

Another important document is the Operating Agreement. It contains the written code of conduct of your company. This actually works as a binding contract among the members. This document also needs formal adaptation and amendment. While this may be not required in most states, people who want to form an LLC are advised to at least draft one.

Like other business models, you also have to secure the necessary licenses and permits. These may vary depending on the nature of the business and the state laws. Document filing companies can be of great help when you are too busy to file the necessary documents.

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