Florida Probate Court Information

Florida Probate Court Information

Word Count:
869

Summary:
The Florida probate court system is an efficient and speedy method by which the assets of a deceased Florida resident are gathered, debts of a deceased are paid, and the assets distributed to the beneficiaries of the deceased.

Keywords:
Florida probate court, will contests, undue influence, florida probate lawyer, probate attorney Florida

Article Body:
1. What is Probate?

Probate is the method by which the assets of a deceased person are gathered, creditors paid, and the remainder of the estate distributed to beneficiaries. In most Florida counties, the probate system is conducted in a specialized probate division of the Circuit Court, under the oversight of one or more probate judges.

2. How is Probate Initiated?

Although any beneficiary or creditor can initiate probate, normally the person named in the will as Personal Representative, also known as the executor in other states, starts the process by filing the original will with the court and filing a Petition for Administration with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition for Administration.

3. Who is Eligible to Serve as Personal Representative?

A bank or trust company operating in Florida, any individual who is resident in Florida, and a spouse or close relative who is not necessarily resident in Florida are all eligible to serve as the Personal Representative. Nonrelatives who are not resident in Florida are not eligible to serve as Personal Representative.

4. How is the Personal Representative Chosen?

If the decedent had a will, the person named in the will as the Personal Representative will serve, if eligible. If that person is unable or unwilling to serve as Personal Representative, the person chosen by a majority of the beneficiaries in interest of the estate shall choose the Personal Representative. If there is no will, Florida law provides that the surviving spouse may serve, or, if there is no spouse or the spouse is unable or unwilling to serve, the person chosen by a majority of the beneficiaries in interest shall serve.

5. Is the Personal Representative Required to Retain an Attorney?

In Florida, the Personal Representative is required in almost all probate estate to retain a Florida probate attorney.  Although the Florida probate forms are available to the public, these are of no use to a non attorney. 

6. How is the Personal Representative Compensated?

Florida law provides a compensation schedule for the Personal Representative, based on a percentage of the assets of the probate estate.

7. Is the Family of a Deceased Person Entitled to a Portion of the Estate?

Florida law provides for a family allowance for the surviving spouse and minor children of the deceased, as well as an elective share for a surviving spouse, thirty percent of the estate, if the surviving spouse would prefer the elective share to that left under the terms of the will. A Florida resident is entitled to disinherit adult children, for any or no reason. Of course, if it can be shown that the adult children were disinherited as a result of the influence of another, they may have recourse through the probate court.

8. What Assets are Subject to Probate?

Assets owned by the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as "Joint Tenants with Right of Survivorship," or bank accounts titled as "Transfer On Death" are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate.

In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process, particularly in the case of a surviving spouse choosing to take an elective share against the estate.

9. How is Distribution of the Estate Handled if there is no Will?

Florida law sets forth rules for the distribution of an estate if there is no will.

If these is a surviving spouse and no lineal descendants, the surviving spouse is entitled to the entire estate.

If there is a surviving spouse with lineal descendants, and all lineal descendants are also descendants of the surviving spouse, the surviving spouse is entitled to the first $20,000 of the probate estate, plus one-half of the remainder of the probate estate. The descendants share in equal portions the remainder of the estate.

If there is a surviving spouse with lineal descendants, and not all lineal desdendants are also descendants of the surviving spouse, the surviving spouse is entitled to one-half of the probate estate, and the descendants of the deceased share the other half of the estate in equal shares.

If there is no surviving spouse and there are descendants, each child is entitled to an equal share, with the children of a deceased child sharing the share of their deceased parent.

If there is no surviving spouse and no children or other descendants, Florida law provides additional rules for distributing an estate in such circumstances.

10. Who is responsible for paying estate taxes?

Under the Internal Revenue Code, the estate tax is collected from the estate of the deceased. Depending on the terms of the will, the estate tax may be paid from the probate estate only, or also from a living trust, life insurance proceeds, and other assets passing directly to beneficiaries outside the probate estate. The estate tax return, Form 706, is filed by the Personal Representative. The Form 706 is due to be filed 9 months after the date of death.

 

Florida Personal Injury Claims

Florida Personal Injury Claims

Word Count:
292

Summary:
The first thing that must be done before jumping into a personal injury claim is to have a good understanding of what is meant by a personal injury and on what grounds one might claim compensations for the wrongdoing. Personal injury can result from the use of dangerous or defective products. "Products liability" law refers to the rules governing a manufacturer or other provider's liability for products that harm consumers and workers.

Keywords:
florida personal injury lawyers, florida personal injury lawsuit funding, florida personal injury law firms, florida personal injury laws

Article Body:
The first thing that must be done before jumping into a personal injury claim is to have a good understanding of what is meant by a personal injury and on what grounds one might claim compensations for the wrongdoing. Personal injury can result from the use of dangerous or defective products. "Products liability" law refers to the rules governing a manufacturer or other provider's liability for products that harm consumers and workers.

First, you must have suffered an injury to your person or property. Second, you should consider whether your injury was the result of someone else's fault. It is not always necessary to have a physical injury to bring a personal injury lawsuit. Personal injury claims are often based on a variety of non-physical losses and harms. In the case of an assault for example, you do not need to show that a person's action caused you actual physical harm. However, you must show that you expected some harm to come to you. You also may have a case if someone has attacked your reputation, invaded your privacy or inflicted emotional distress upon you.

Injury claims are important enough to get the monitory support to heal and cure one's injury. Usually, it is claimed as a compensation for the misdeed one has practiced over the victim. Florida personal injury attorneys are the right people with their experiences and knowledge to get you your dues for a personal injury. Your protection is important and an experienced attorney can just do that for you. He or she can get claims you never thought of claiming. All you need to do is to select the right personal injury attorney if you happen to injure yourself in Florida. They take care of the rest.

 

Florida Homestead Property - The Basics

Florida Homestead Property - The Basics

Word Count:
369

Summary:
Florida Homestead property is one of the most misunderstood parts of Florida law.  The article gives the basics of Florida Homestead property.

Keywords:
Florida Homestead

Article Body:
Florida's Homestead protections are actually three distinct protections under Florida law, each with a different purpose and effect: asset protection, reduced property taxes, and protection of surviving spouses and minor children. Each is explained below.

The Florida Constitution exempts homestead property from levy and execution by most creditors. So long as the property qualifies as homestead, the amount that can be protected is not limited, which makes the Florida Homestead an excellent asset protection vehicle. Even if the purchase of the homestead was designed to defeat creditors, the protection still applies.
Under the Bankruptcy Reform Act of 2005, however, debtors in bankruptcy may lose all or a portion of the homestead protection. In bankruptcy, homestead protection is capped at $125,000, unless the debtor occupied the Florida homestead property and previous Florida homestead properties for 1215 days prior to the bankruptcy filing. Also, transfers into Florida Homestead within 10 years intended to defraud creditors may be challenged by the bankruptcy trustee.

Federal creditors, such as the Internal Revenue Service, mortgage holders, and persons holding mechanics liens on Florida homestead property are not restricted by the Florida homestead provisions.

Under Florida's Save Our Homes Act, the assessed value of a Florida Homestead is restricted to an increase of no more than 3% per year.

If a Florida resident passes away owning a Florida Homestead in his or her own name, if the resident had minor children, the minor children are entitled to the entire property, or, if the resident was married, to no less than a remainder interest in the property. A surviving spouse is entitled to no less than a life estate in Florida Homestead property.  The homestead provisions can be a trap for the unwary, especially for those with estate plans drafted while a resident of another state.  For example, a person owning a house in New York and a condominium in Florida may have decided, while a New York resident, to leave the house to his spouse and his condominium to a daughter from a first marriage.  If the person retires to Florida as a resident and then passes away, his spouse will inherit the house under the terms of the will and then be given a life estate in the Florida condominium.

 

Florida DUI

Florida DUI

Word Count:
331

Summary:
Like most states, there is a DUI law in Florida. DUI stands for "driving under the influence of alcohol". Getting arrested and charged with a dui is a criminal offense, because you are not only endangering yourself but those with or around you.

Keywords:
Florida DUI, Florida DUI arrests, Florida DUI attorneys, Florida DUI laws

Article Body:
Like most states, there is a DUI law in Florida. DUI stands for "driving under the influence of alcohol". Getting arrested and charged with a dui is a criminal offense, because you are not only endangering yourself but those with or around you.

When the alcohol percentage in human blood is 0.08% or higher, the person may be booked under DUI in Florida. It is important to remember that DUI laws vary from state to state in their severity, and some states may have a law that is a bit more relaxed than others. However, all states are unanimous in their views that driving while drunk is a crime that can end or destroy a lot of lives, and there must be steps to curb it.

When a person is arrested on DUI charges in Florida, he has approximately ten days to ask for a hearing with the Florida Department of Highway Safety and Motor Vehicle (FDHSMV) to protect his license from being confiscated permanently. If the person fails to request such a hearing, it may lead to a six-month jail term that could drag on for 18 months. 

Punishments in Florida DUI arrests are varied with far-reaching consequences. There are fines that start at a $250 but could shoot up to $2000 or beyond, depending on the nature of the damage done and the number of times the person has been caught committing the same offense. There are severe jail terms too that a person might have to face. These jail terms could be between six months to five years. Community service, with alcohol education classes is also a mandatory requirement.

If you are arrested in Florida for a DUI, it is extremely important to get in touch with an expert DUI attorney without delay. Other than retaining a good lawyer, visiting highly informative websites that talk about Florida DUI are a big help. However, it is always advisable to drive in a sober state so that such unfortunate incidents can easily be avoided.

 

Five More Rules For Negotiating Like A Pro

Five More Rules For Negotiating Like A Pro

Word Count:
847

Summary:
Anything can be negotiated if you are in the proper emotional state of mind and know the strategies and tactics needed to close the deal. Here are five more rules that will help you Negotiate Like A Pro.

Keywords:
negotiating strategies, negotiating tactics, union negotiations, how to negotiate, self-help, selfhelp, bargaining, negotiation training, negotiation tips, negotiation rules,

Article Body:
Copyright 2006 Mary Greenwood

Anything can be negotiated if you are in the proper emotional state of mind and know the strategies and tactics needed to close the deal. Here are five more rules that will help you Negotiate Like A Pro.

1. Get A Reality Check. What Is It Worth?

Whether it is a car, a raise at work, a house, a pedigreed dog or a collectible on eBay, you need to know what it is worth before you start the negotiation. You also need to set a spending or buying limit before you begin the negotiation. If you are buying or selling something, you need to do some comparative shopping. A good source is the internet, especially eBay. Looking at selling prices for comparable items can be a good reality check. What an item is worth is often a lot less than what you paid for it and less than a listing in a catalogue unless the item is extremely rare. Be sure to get the right comparables. For example the value of a coin can be affected by the date, condition or mintage. It is important to know the item's rarity. If something is readily available, buyers might not offer much because they know that if they don't get the item from you, they can get it somewhere else. However, if your item is very rare, then the whole psychology is different. Now the buys know that if they don't buy it from you, there probably won't be another chance anytime soon.

2.. Always Have A Plan B.

It is an important strategy to always have a backup plan. As they say, you should not put all your eggs in one basket. You should be asking yourself questions that start with how or what if? How can I sweeten the deal? How can I close the deal? What if the party likes this? What if they reject this? Try to come up with some alternatives that will help seal the deal. Having a Plan B gets easier the more you negotiate. It becomes a way to be flexible and react to what the other side wants and think fast on your feet.

3. Does The Other Side Want Something Other Than Money?

Sometimes the other party wants something other than money such as time or an apology. We are so used to negotiating about money that sometimes we forget that money is not everything. For example a truly heartfelt apology can go a long way to help resolve a consumer dispute. If the other side feels that the apology is sincere, the apology may even be enough to close the deal. An employee might want time-off instead of money. You may be able to suggest part-time work or flex time or vacation time if the employee is one that you want to keep. Sometimes what is wanted is convenience rather than money. These suggestions may be a way to resolve the problem and to save money at the same time.

4. Only Negotiate with Someone with Authority.

Someone with authority is someone who can speak or act on behalf of the company or employer. If you are not dealing with someone with authority, then you are not really negotiating and are wasting your time. If you are not sure whether a person has authority to give you what you want, ask them directly. If you are in a more complex setting, you may ask for a written statement from the principal that this agent speaks or acts on his behalf. Sometimes someone will have the authority to act on someone else's behalf, but they may have restrictions such as a set monetary amount. They can sell you an item at a certain price but cannot go any lower. This is important because you do not want to find out at the very end that the person you thought you were negotiating with did not have any the authority to do so.

5.. Set the Tone and Look the Part.

You are the one who should set the tone of the negotiation. When you come into the room for the first time, you should look the part. You should wear professional clothes. If a woman, don't wear a lot of distracting jewelry. Act as though you know what you are doing and get to business quickly. Have a notebook and a briefcase and start right in. Project the image that you want to project. You might even try it in the mirror a few times. You want to give good eye contact and be a good listener. You want to seem knowledgeable about the issue or issues to be discussed of the day. You can state what your philosophy is and what your negotiation style is. Think of the qualities of a negotiator that you admire most and try to project them. For example, my idea of a good negotiator is someone who is firm, flexible, fair, and honest, and has a good sense of humor. That is the tone I would like to set.

 

Finding the Right Lawyer in Spain.

Finding the Right Lawyer in Spain.

Word Count:
652

Summary:
Finding the right lawyer in Spain goes hand in hand with finding the perfect house. You wouldn't buy a house without doing your research and this also applies to find a good reliable lawyer. This article covers issues you need to consider before putting pen to paper

Keywords:
Lawyers in Spain , Law Firm in Spain , Real estate in Spain , Solicitors , Marbella , Malaga , Costa Blanca

Article Body:
This is probably the most important step and should be one of your first priorities if you are serious about buying a house in Spain. Seek the services of a good lawyer, before you start the hunt. Why? Because with Spain currently still experiencing a property boom, and the market favoring the seller, it is important that you are ready to act quickly, to avoid any disappointment, should that perfect property present itself. A lot of house hunters start searching first and then worry about other things later. Considering that this will be a large investment of your time and money it is important to start off with your paper work in order first.

Your lawyer should be an independent professional who will protect your interests, and should be someone with whom you are comfortable with in terms of service and of course price. He or she should be fully conversant with both Spanish and U.K law.

Your lawyer or Abogado must be fluent in English as any badly translated contracts can, and have in the past rendered them useless, and can lead to a whole host of problems and some massive headaches in the future.

It is very important that you never sign any documents without getting your lawyer to check them first. This may sound like common sense, and it is. But picture this scenario: You've decided to buy a property in Spain but you are not entirely certain what you want . So you decide to start looking, 'just to get a feeling for the market'
You are with really nice agents and they have a great deal that has just come in that morning, a perfect property at a very low price. So you rush off to view it. And guess what, it's the one.
But you haven't arranged a lawyer yet.
"That's not a problem ", say the nice agents ,"all you need to do is place a deposit to reserve it, then we can take it off our books immediately (so no one else will snap it up) and then your lawyer can check the property and legal stuff later."
So you go ahead read and sign the deposit contract, under the premise that you only are reserving the property.

But this isn't true, and the contract can have clauses that bind you to adverse terms in the main document that you receive at a later date. If you were to do this then you could well have a problem getting your deposit back later, should your lawyer find something that may make you not go through with purchasing the property. So get a lawyer in place before you start your search.

Check that the person representing you is actually fully qualified and is a registered member of the Law Society. He or she should be happy to give you their registration number for 'the Colegio de Abogados' which you can and should double check. If you should have any problems then you can and should complain to them.
Also, by using a register lawyer/solicitor you are covered in the unlikely event that they make a mistake or act negligently. Register lawyers are covered by professional liability insurance, so you would be able to take action against them, knowing that the fund exists to compensate you if your lawyer is found liable.

An added bonus would be whether your lawyer can advise you on the various forms of property ownership and the associated taxes. It is however advisable to get the advise of a specialized financial advisor or accountant.

 

 

Finding a Bankruptcy Attorney in New Hampshire

Finding a Bankruptcy Attorney in New Hampshire

Word Count:
316

Summary:
Bankruptcy attorneys work to understand and represent you to the court.  A good lawyer will always look at your entire financial situation and suggest filing for bankruptcy only after all other options have been exhausted. Your job is to find this good lawyer whether you live in New Hampshire or elsewhere and this article can help you..

Keywords:
new hampshire bankruptcy attorney, keyword bankruptcy attorneys

Article Body:
People living with debt that they can't handle have a few options to choose from. They can contact a debt or credit counsellor and try to work out a debt settlement plan. If this don't work, bankruptcy is the ultimate option.  Unfortunately there may come a time in your life where unforeseen events may force you into declaring bankruptcy as a way to get your financial life back in order and regain your footing.  Finding a bankruptcy attorney that understands your situation and circumstances is crucial to help your case and help you understand the law and how it applies.  In New Hampshire there are a number of lawyers who specialize in this area and picking the right one takes some research.

Bankruptcy attorneys work to understand and represent you to the court.  A good lawyer will always look at your entire financial situation and suggest filing for bankruptcy only after all other options have been exhausted.  You should be very cautious of any lawyer who suggests filing without first looking at the facts and figures.  Remember, this decision will affect your credit for 10 years until it ages off your credit report.  Combined with the cost and potential loss of property it is something that takes an experienced lawyer who understands that each case is different and will offer counseling to the client instead of rushing to court.

An unexpected illness is the number one reason that most people go bankrupt.  It doesn't take much, especially if you lack insurance, to drain your bank account and send your finances into disarray.  You should never look at having to file for protection from creditors as a reflection of you.  All one has to do is look at large companies such as Enron to see that companies use and abuse the system for their benefit - therefore you should not feel ashamed to use it for a legitimate reason.

 

Find a Good Family Law Attorney

Find a Good Family Law Attorney

Word Count:
382

Summary:
The decision to divorce is never an easy one. You hurt, your spouse hurts, and if children are involved, you wonder if the decision you are making is in their best interests or not. Finding a family law attorney means interviewing candidates to represent your interets. I have listed five steps to help you navigate the process.

Keywords:
legal, attorney, family law attorney, custody, divorce, alimony, child support, Biblical counseling

Article Body:
If you are in need of locating a good attorney, one who specializes in family law, then you need someone who can look after your interests as well as the interests of your children. I have listed five options to help you find the attorney who is right for you.

1. Check with Friends, Family – People you know can be an excellent resource to help you locate a family law attorney. Somebody you know probably has been through a similar experience; their advice and support can be useful to you.
 
2. The Bar Association – A local or state bar association can be a wonderful resource as they will tell you which of their members specialize in Family Law. Get a hold of that list, contact the attorneys directly, and interview them. Typically, your first visit is free so that you can learn what the family law attorney will do for you, their fee structure, and much more.

3. Legal Aid Societies – Your state or county should have a legal aid society. If you find that the cost of retaining counsel is prohibitive, consider contacting your local chapter for help. Some will offer their services for free or "pro bono."  Some attorneys will charge you based on a sliding scale, taking into consideration your ability to repay. For parents with limited means, this can be a terrific option.

4. Research – Your library has legal directories featuring all kinds of legal professionals, while the internet is an excellent resource for accurate and up to date information. Forums, list servs, ads, and articles like the one you are reading now can be good sources to help you find attorney related information.

5. Check the Phone Book – One of the most popular places for attorneys to list their availability is with an old stand by: your phone book. Right smack dab in the yellow pages you will find scores of attorneys featured with all the of their contact information listed, including web sites.

Divorce certainly isn't fun, in fact it is downright painful. Your children will suffer, but you can help ease the transition for them and you by finding an attorney who is compassionate and caring. For additional support and spiritual guidance, arrange a visit with your pastor today.

 

Estate Planning -Intent to Disinherit or Oversight?

Estate Planning -Intent to Disinherit or Oversight?

Word Count:
684

Summary:
Over views incomplete estate planning and some laws that are in place to remedy the situation of overlooked heirs as opposed to those specifically disinherited.

Keywords:
estate planning,testator,will,attorney,no contest clauses,intestate

Article Body:
Copyright 2006 Ronald Hudkins

Sometimes family and estate planning begins before the family is complete, particularly in an age where people (generally) are waiting until later to have children. In that case there could be grandchildren named in a will and others not, who are all in the same family. The reason may simply be that the children who were left out were not born when the will was made and it is too late to remake it.  Fortunately, most states now have laws that are designed to remedy this situation.

Generally children are protected if they are left out, because they are considered to be overlooked as opposed to specifically disinherited.  Some states protect spouses and grandchildren under the theory that they have been omitted rather than excluded.  But, states have a couple different ways of handling omitted relatives.  Many states assume that if the testator (the will maker) had a chance or had not forgotten to do so, that they would have included the omitted relative.  This is important because the suggestion is that naming the individual would have been the testator's intent had they recognized the omission.  Other states make no mention of what the testator's intentions would have been, because they want a testator who intends to disinherit someone to do it using positive language rather than just not mentioning that person.  Both of these approaches can fly in the face of the facts regarding what the testator wanted or intended.  But, one thing is clear, if you intend to leave someone out of your will who is a close relative you must do so expressly.  That can be done by saying something like, "And, to my wife Sheila I leave nothing," or "To my son Thomas, I leave the kick in the rear end I should have given him years ago."

Such a scenario is a nightmare for your estate planner who knows that Shelia and Thomas will challenge your will because they have no reason not to. As was discussed in a previous article, it is better to leave a relative something that they are afraid to lose and use a no-contest clause in many instances.  However, sometimes a client is clear in the desire not to leave a thing to one of his/her relatives.  This is become increasingly difficult under state laws that protect omitted relatives and disfavor no-contest clauses.  It is another case of laws that are designed to protect our interest also protecting us from being free.  Why shouldn't the testator be able to disinherit those they don't like with ease?  Why should the government decide who your assets will go to?  Remember that most people die intestate so the state is used to making these decisions, but why should they be able to do so if you make a will?  Perhaps it is another legal road paved with good intentions or perhaps it is another instance of big brother deciding for you.

This is another pitfall that your estate planner will be able to help you avoid.  If you want to disinherit someone, then let your estate planner clearly know your intention.  There is nothing wrong with that.  Remember that, as an attorney, your estate planner's job is not to judge your wishes, but to make them happen and guard you and your estate against what you don't want.  Your estate planner should not, and most likely will not, make you feel judged.  They work for you and have taken an oath to faithfully serve your legal wishes to the extent that they have the legal power to refuse to break your confidence even after you pass away.  Any estate planner who isn't ready to fight tooth and nail to see your wishes met is not doing their job.

Just remember that if you intend to leave someone out of your will, you can do that.  And conversely, your estate planner can help you provide for extra grandchildren that you may not have been lucky enough to meet, but that you still might help go to college.

 

Estate Planning - Undue Influence Considerations

Estate Planning - Undue Influence Considerations

Word Count:
615

Summary:
Over views common means of contesting a will such as undue influence, lack of capacity, psychological domination and/or degenerated mental state.

Keywords:
care,bequests,will,heirs,contesting,claim,undue influence,lack of capacity,degenerated mental state,undue influence,psychological domination

Article Body:
Copyright 2006 Ronald Hudkins

Often during the final years of a dear friend's or relative's life some person or persons will take over the task of caring for their sick and elderly friend or relative to a greater degree than the other people in their lives.  This is sometimes due to sheer geography where the aged or sick person lives nearer to one set of relatives than to another.  In addition, some relatives or friends may be better suited to dealing with the realities of sickness, age and dying than are others.  There are some people who do not have the temperament to be care givers for those they love dearly, because they cannot bear to see a parent decay and succumb to age and death, particularly if the process is prolonged.

Those who are elderly, sick and in need often attempt to show their gratitude for the care that they are being given through bequests in their will.  It seems only fair that the relative who is actually caring for their loved one should be rewarded by the one who is being cared for.  However, there is the potential that the other heirs want an equal share of the bequest regardless of who took care of whom in the final days of a person's life.  Sometimes, for no other reason than that they want to feel that they were loved equally and view an equal share of the will as a demonstration of that.

When this happens, a common means of contesting a will is employed that involves a claim of undue influence.  This claim is essentially grounded in the idea that a relative exercised an extreme amount of coercive ability with respect to the deceased.  It must be true that the person who is claimed to have undue influence also received an 'undue benefit.'  Undue Influence is usually combined with a claim of lack of capacity in one form or the other.  The less forceful the waning personality of the deceased becomes in the eyes of the courts, the easier it is to establish the dominance that the undue influencer had over that person.  After all, it is difficult to say that a strong, healthy, fully cognizant adult was duped by his/her insidious caregiver.  To be sure, there are people who try to take advantage of those whom they care for, but there are a great many claims of undue influence raised by those that simply didn't pay attention to their elderly loved ones, yet expect and equal share of the bequest.  Another interesting facet of undue influence claims is that they can involve the degenerated mental state of the will maker without relating that state to the property or to whom it goes.  Part of the undue influence claim is showing that the person being influenced was addled and that the person doing the influencing used that to their advantage.  This is unfortunate, because the elderly often become more absent minded or less mentally acute than they once were, and yet they may still be attempting to reward a relative who has come to their aid when it mattered to them the most.

Undue Influence is also shown by proving an opportunity to exercise such influence.  In one case a test of "psychological domination" was used to prove undue influence.  But, the central question is always whether an unwarranted coercive force or ability existed and was exercised.  This is problematic, in that there may be one child or relative whose advice really is important to the will maker, but that fact is not attendant to undue influence so much as a general respect for that person's counsel.

 

Estate Planning - The Life Estate

Estate Planning - The Life Estate

Word Count:
630

Summary:
Looks at the history of property law and over views the life estate as an instrument of wealth transfer and how it helps to get the answer to the difficult questions associated with estate planning.

Keywords:
the life estate,estate planning,asset management,asset,estate planner

Article Body:
Copyright 2006 Ronald Hudkins

The life estate is something every first year law student learns about when they study the arcane and often bizarre history of property law that harkens back to the days of English knights, lords and serfs, and the transfer of property through the ceremonial throwing of dirt clods with oaths of duty to accompany.  The life estate is about as old as they come as instruments of wealth transfer go and students love it, because it is relatively easy to understand.  Apart from what students love and what is easy to remember, however, the life estate still has practical value today in your estate planning and assets management schemes.

The basic idea of the life estate is that a person can be left a piece of property for life, and upon their passing, the property in question can go to whoever is designated to receive that property afterward.  The individual or group who receives the property after the life-tenant passes is called the remainderman or remaindermen, which is useful only in that it helps one to remember that the person who remains gets the property.  If, for example, one wants to leave a family estate that has been with the family for many generations to their spouse and then have it immediately pass on to their children or another relative who will maintain the estate for the generation to come, then a life estate might be the perfect vehicle to do so.  Another example is the same family estate, left to a surviving spouse until the surviving spouse either dies or remarries.  Again, the aim is to ensure that the estate stays in family, a contingency which is threatened by the remarriage because that creates a new marital joint-tenancy, absent any other provision.  Often the life-estate was used to keep assets, like the family home, headed down a single line of familial ownership.

However, the life estate has other uses, for example, it can leave an asset to be owned by one person until the death of third person.  If an older relative has become incapacitated, such that it is difficult for them to make decisions for themselves, then the asset can be left in the care of another for the incapacitated person's lifetime.  An example might be, that Blackacre (the fictitious name for a piece of property used in law schools everywhere) is left in the care of cousin Tilly, until great aunt Nelly's death.  Thus, Tilly is allowed to make Nelly comfortable at Blackacre (the family home) until Nelly passes on.  In this instance, Nelly's life is what is called, the measuring life of the life estate, and Tilly's ownership ends when Nelly is gone.

On the whole, the life estate may be falling out of use for a number of reasons and being replaced by the much more fluid instrument of the trust.  But, the life estate still captures, from time to time, our instincts regarding how property is to pass from one generation to another and that is why it is still relevant even for an estate planner who uses it very rarely.  It helps us to ask and to get the answer to very difficult questions, which is part of the act of estate planning.  Both the client and the attorney must face tough questions, and the life estate (even if it is sometimes regarded as a legal relic of the past) tells us how people used to answer questions of intra-generational wealth transfer and why.  We may use different instruments to bring about our legal ends (or we may not), but even if we do, the life-estate still has relevance in helping us think about the questions that underlie the choices to be made in estate planning.

 

Estate Planning - Real Property Disbursement Problems

Estate Planning - Real Property Disbursement Problems

Word Count:
711

Summary:
Over views some problems that are created by evenly splitting an interest in real property between you heirs.

Keywords:
real property,estate planning,estate planner,estate planning strategies

Article Body:
Copyright 2006 Ronald Hudkins

Many parents want to give an equal share of the family home or some other sentimental form of real property (actual land usually) to their surviving children in equal shares.  As an estate-planning attorney, one often sees the strange problems created by such plans.  In particular if there are an even number of children, this may create hardships as voting blocks of family members eventually have to resolve votes that are evenly split in court or at least face the hardship of that choice among their siblings.

Suppose, for example, that well-meaning parents leave the family home to four children who are well intentioned adult human beings who generally wish to treat each other fairly, as family members often endeavor to.  The problem is that four children will usually have some important differences in age, lifestyle and financial needs.   When four such people own property, they must all pay a fourth of the tax and of the general maintenance and upkeep of the property.  Suppose one of the children is unsentimental about the family home and wants to sell the property to finance a business or vacation, and two of the other children want to keep the family home to gather for Christmas (or any other important holiday).  The fourth child has a hard time deciding, but is also having financial difficulty paying their share of the taxes, maintenance and upkeep.   In order to keep the home and avoid going to court, the two children who wish to keep the home will have to pay the other children what their shares of the property are worth.  This can create definite hard feelings even if the children who wish to keep the property have the ability to pay the others for their interest in it.   When family Christmas (or any other important holiday) comes around, the children who sold their share of the property will feel badly about using it for the celebration of Christmas around their siblings who had to pay to keep it. By the same token, the children who had to pay to keep it may feel awkwardly about having to share it with their siblings whom they had to pay.  This kind of thing can create long standing rifts in a family, difficulty between relatives who formerly got along well together.

The problem, from an estate-planning point of view, is that the property was given in equal shares to prevent any of the children from having their feelings hurt or feeling less loved and important than the other children.  If, an estate planner does not help their clients see this possibility, for it is a very likely situation in the real world, it is felt that they (the attorney) have failed.  Unless the family is extraordinarily wealthy the possibility that they will have differing financial needs is very common.  Anyone who is a middle class American is usually at some point in need of money, particularly if they have children.

It is important for both the client and the attorney to face tough questions and to look toward non-idealized versions of the future when crafting estate planning strategies.  The problem of the four children is easy enough to fix, but it illustrates a more important principle.  When you are ready to start your estate planning it is important that you answer hard questions for yourself.  Clients should be asked questions about how they have seen other families handle wills after their loved ones have passed on.  Usually the client is able to tell stories about the greedy children or relations of others, and that helps broach subjects that might otherwise be difficult to bring up.  When you prepare to visit your estate planner remember the worst family you ever heard of and imagine that part of the problem that they were having is because bad estate planning forced them to do things they might not otherwise have done.  If there is any skill estate planners try to hone, it is the ability to talk to their clients about why they are asking for certain bequests and to help them see that there are several options to reach the goal they are seeking, rather than offering them a cookie cutter version of  a will or trust.

 

Estate Planning - The Life Estate

Estate Planning - The Life Estate

Word Count:
630

Summary:
Looks at the history of property law and over views the life estate as an instrument of wealth transfer and how it helps to get the answer to the difficult questions associated with estate planning.

Keywords:
the life estate,estate planning,asset management,asset,estate planner

Article Body:
Copyright 2006 Ronald Hudkins

The life estate is something every first year law student learns about when they study the arcane and often bizarre history of property law that harkens back to the days of English knights, lords and serfs, and the transfer of property through the ceremonial throwing of dirt clods with oaths of duty to accompany.  The life estate is about as old as they come as instruments of wealth transfer go and students love it, because it is relatively easy to understand.  Apart from what students love and what is easy to remember, however, the life estate still has practical value today in your estate planning and assets management schemes.

The basic idea of the life estate is that a person can be left a piece of property for life, and upon their passing, the property in question can go to whoever is designated to receive that property afterward.  The individual or group who receives the property after the life-tenant passes is called the remainderman or remaindermen, which is useful only in that it helps one to remember that the person who remains gets the property.  If, for example, one wants to leave a family estate that has been with the family for many generations to their spouse and then have it immediately pass on to their children or another relative who will maintain the estate for the generation to come, then a life estate might be the perfect vehicle to do so.  Another example is the same family estate, left to a surviving spouse until the surviving spouse either dies or remarries.  Again, the aim is to ensure that the estate stays in family, a contingency which is threatened by the remarriage because that creates a new marital joint-tenancy, absent any other provision.  Often the life-estate was used to keep assets, like the family home, headed down a single line of familial ownership.

However, the life estate has other uses, for example, it can leave an asset to be owned by one person until the death of third person.  If an older relative has become incapacitated, such that it is difficult for them to make decisions for themselves, then the asset can be left in the care of another for the incapacitated person's lifetime.  An example might be, that Blackacre (the fictitious name for a piece of property used in law schools everywhere) is left in the care of cousin Tilly, until great aunt Nelly's death.  Thus, Tilly is allowed to make Nelly comfortable at Blackacre (the family home) until Nelly passes on.  In this instance, Nelly's life is what is called, the measuring life of the life estate, and Tilly's ownership ends when Nelly is gone.

On the whole, the life estate may be falling out of use for a number of reasons and being replaced by the much more fluid instrument of the trust.  But, the life estate still captures, from time to time, our instincts regarding how property is to pass from one generation to another and that is why it is still relevant even for an estate planner who uses it very rarely.  It helps us to ask and to get the answer to very difficult questions, which is part of the act of estate planning.  Both the client and the attorney must face tough questions, and the life estate (even if it is sometimes regarded as a legal relic of the past) tells us how people used to answer questions of intra-generational wealth transfer and why.  We may use different instruments to bring about our legal ends (or we may not), but even if we do, the life-estate still has relevance in helping us think about the questions that underlie the choices to be made in estate planning.

 

Estate Planning - Real Property Disbursement Problems

Estate Planning - Real Property Disbursement Problems

Word Count:
711

Summary:
Over views some problems that are created by evenly splitting an interest in real property between you heirs.

Keywords:
real property,estate planning,estate planner,estate planning strategies

Article Body:
Copyright 2006 Ronald Hudkins

Many parents want to give an equal share of the family home or some other sentimental form of real property (actual land usually) to their surviving children in equal shares.  As an estate-planning attorney, one often sees the strange problems created by such plans.  In particular if there are an even number of children, this may create hardships as voting blocks of family members eventually have to resolve votes that are evenly split in court or at least face the hardship of that choice among their siblings.

Suppose, for example, that well-meaning parents leave the family home to four children who are well intentioned adult human beings who generally wish to treat each other fairly, as family members often endeavor to.  The problem is that four children will usually have some important differences in age, lifestyle and financial needs.   When four such people own property, they must all pay a fourth of the tax and of the general maintenance and upkeep of the property.  Suppose one of the children is unsentimental about the family home and wants to sell the property to finance a business or vacation, and two of the other children want to keep the family home to gather for Christmas (or any other important holiday).  The fourth child has a hard time deciding, but is also having financial difficulty paying their share of the taxes, maintenance and upkeep.   In order to keep the home and avoid going to court, the two children who wish to keep the home will have to pay the other children what their shares of the property are worth.  This can create definite hard feelings even if the children who wish to keep the property have the ability to pay the others for their interest in it.   When family Christmas (or any other important holiday) comes around, the children who sold their share of the property will feel badly about using it for the celebration of Christmas around their siblings who had to pay to keep it. By the same token, the children who had to pay to keep it may feel awkwardly about having to share it with their siblings whom they had to pay.  This kind of thing can create long standing rifts in a family, difficulty between relatives who formerly got along well together.

The problem, from an estate-planning point of view, is that the property was given in equal shares to prevent any of the children from having their feelings hurt or feeling less loved and important than the other children.  If, an estate planner does not help their clients see this possibility, for it is a very likely situation in the real world, it is felt that they (the attorney) have failed.  Unless the family is extraordinarily wealthy the possibility that they will have differing financial needs is very common.  Anyone who is a middle class American is usually at some point in need of money, particularly if they have children.

It is important for both the client and the attorney to face tough questions and to look toward non-idealized versions of the future when crafting estate planning strategies.  The problem of the four children is easy enough to fix, but it illustrates a more important principle.  When you are ready to start your estate planning it is important that you answer hard questions for yourself.  Clients should be asked questions about how they have seen other families handle wills after their loved ones have passed on.  Usually the client is able to tell stories about the greedy children or relations of others, and that helps broach subjects that might otherwise be difficult to bring up.  When you prepare to visit your estate planner remember the worst family you ever heard of and imagine that part of the problem that they were having is because bad estate planning forced them to do things they might not otherwise have done.  If there is any skill estate planners try to hone, it is the ability to talk to their clients about why they are asking for certain bequests and to help them see that there are several options to reach the goal they are seeking, rather than offering them a cookie cutter version of  a will or trust.

 

Estate Planning - Protecting Your Furred Friend

Estate Planning - Protecting Your Furred Friend

Word Count:
628

Summary:
Over views the care considerations for pets after their owner dies and possible alternatives to their owners estate planning and subsequent assurance the well being of their pets will remain important.

Keywords:
pets,animals, caregiver,pet care businesses,assets,trusts,pet trusts

Article Body:
Copyright 2006 Ronald Hudkins

The whole concept of estate planning has a couple of primary aims: 1) making sure that your assets are distributed where and how you want them to be, and 2) ensuring that your loved ones are cared for and able to comfortably live out their lives after you are gone.  If you consider your pets as part of your property, to whom do you leave them – and the obvious answer is to someone who won't immediately haul them to the nearest shelter and drop them off.

Providing for your beloved pets may be more complicated than it sounds.  There is much to be considered.  For example, who will take your dogs and cats in and provide for them with the same loving care you have shown them?  Who will develop the same kind of close relationship that your animals are used to sharing with you?  Your son may not want a cat that insists on sleeping on his head or your daughter may abhor a dog that sheds all over her chic apartment.

Choosing an appropriate caregiver requires some careful thought and planning.  First, you must make certain that whoever is going to care for Bootsie or Fluffy or Shadow, actually likes them and wants to have them around.  Sure, a few thousand dollars to provide for Spot's care over the next 15 years is a huge incentive – big enough to have all kinds of people professing their love and admiration for your friend in fur.  While your next door neighbor may genuinely care for Callie the cat and all of her progeny into perpetuity, what happens when the kitty litter budget runs out?  If you leave Fergus the dog to your cousin Harold, along with $10,000 to provide Fergus with the best of everything, what's to guarantee that Harold won't buy himself the best of everything and let Fergus eat cheap kibbles?  What if there is simply nobody to leave Callie or Fergus to because you have no children and don't trust the neighbors?

Pet care businesses are springing up and advertising their facilities as havens for pets with money.  It sounds good in print, but what happens when the facility is full, Sparky is getting old and there is still a few thousand left in Sparky's care account.  If Sparky were to depart a little early, there'd be room for another wealthy resident and Sparky's assets would revert to the care facility.

That's precisely why, over the past few years, estate planning for pets has taken a whole new twist.  Many people don't consider their cat or dog as property, but as their best friend, not to be subjected to the twisted machinations of those bent on exploitation.  Rather than leaving the pets to someone to be cared for from their assets, some pet owners are choosing to leave the assets to their surviving pets, or at least to make certain the pets are cared for throughout their lifetimes through the mechanism of a trust.

In fact, a trust may be the only way of insuring that your pet receives the love and care to which he or she is entitled after you are gone, particularly if the trust stipulates that any money left over after the pet dies is inherited by a third party rather than the caregiver.  The caregiver then has sufficient incentive to keep the pet in question alive and well as long as possible.

Several states already recognize and enforce pet trusts and others will inevitably follow. If your aim is to make certain your pets are not just cared for, but pampered just as you would pamper them, talk to your estate planner about setting up a trust specifically for that purpose.

 

Estate Planning - No Contest Clause in your Will

Estate Planning - No Contest Clause in your Will

Word Count:
821

Summary:
Over views the consideration of putting a no contest clause into one's will if they feel the will is going to be heavily contested. Additionally, advises how courts react to such a clause and suggests an alternative consideration.

Keywords:
no contest clause,will,estate,marital property,bequest,terrorem clauses,assets,living trust

Article Body:
Copyright 2006 Ronald Hudkins

There is value in the story of an older client who had seen a very interesting clause employed in a will.  There was a great deal of money at stake and the many family members had little reason to love each other, because they had never met and never knew of each other's existence.  It was expected that the will would be heavily contested on several different fronts in every conceivable way.   The testator realized that a truly lengthy contest would result with the bulk of his estate in the hands of people he really didn't care for in the least: Lawyers.

In fact, that is not an unworthy consideration in a heavily contested will or long fought divorce; lawyers may end up with the bulk of the estate or marital property.  The move to arbitration is one of the ways that the legal profession is trying to prevent these unseemly outcomes.  The clause that this client had seen employed in his grandfather's will was like the following, "Anyone named in and contesting this will receives the maximum bequest of $1, regardless of the outcome."  This clause meant that regardless of whether the litigant had proven undue influence or diminished capacity or fraud, they would still only receive $1 as a bequest specifically because of having brought and proven their claim.  Since none of the family knew or trusted one another a great deal, this effectively eliminated potential contests.

Often testators anticipate their will to be contested and they wish to insert what is called a no-contest clause in their will.  The no contest clause is exactly what this elderly client had described, because it was designed to terrorize a would-be contestor of the will into thinking twice about facing the threat of getting just a dollar rather than the sum they had been left.  Such clauses are also sometimes called terrorem clauses, because they are designed to scare the beneficiaries into accepting the bequest they are given.  The no-contest clause described above was executed correctly in that each relative was wisely given something in the will that was worth the fear of losing.

In drafting a no contest clause, it is important not to entirely disinherit someone or to give them a bequest that is not something that they are afraid to lose.  If someone is entirely disinherited, then they risk nothing by contesting the will.  If they are successful, they may be able to have the will nullified in whole or in part.  That is risked when the testator decides not to give someone who would traditionally receive money nothing at all.  That is a mistake, a crucial error in such a clause, where the person who might challenge is given nothing to fear losing and therefore has no reason not to contest the will with every possible means.  This situation is made worse when there is a group of people who are "disinherited," and contesting the will.  When this happens, the rest of the family must wait to inherit, which may cause substantial hardship on those who have done nothing wrong and are often those who are nearest and dearest to the testator.

Many jurisdictions refuse to strictly enforce no contest clauses because they discourage valid and invalid contests alike.  These states look to "probable cause" to bring the contest and, if there is any, refuse to enforce the penalty against the challenger.  Furthermore, no-contest clauses are falling out of vogue legally and are being construed very narrowly by courts.  Many enquires into the will are not deemed contests in the eyes of these courts, because they wish to see no contest clauses become a thing of the past.

Before deciding to insert such a clause you should ask your attorney how your state is handling them and what is likely to happen in the future.  In addition, you must make sure that those whom you decide not to make a substantial part of your will and attempt to intimidate with a no contest clause are left some amount of money that they would think twice about losing.

However, there may be better ways to leave your assets to those you choose rather than that traditional will.  For many reasons the living trust is the superior instrument for most people's needs.  It is important to consult your attorney to find out the best way to protect your assets and whether a will with a no contest clause is a viable option in your state. A will, in many ways, is too encumbered with restrictions that make a trust a much better option if you would like to leave your assets to those that you choose and reduce the chances of your desires being challenged.  Again, as always, ask your local attorney for advice about your wishes and find out whether no contest clauses are becoming a thing of the past in your jurisdiction.

 

Estate Planning - Changing A Will

Estate Planning - Changing A Will

Word Count:
600

Summary:
Over views the legal complications that could result in changing a last will and testament without doing so by not using an express change statement.

Keywords:
will,express change,disinheritance, legal difficulties

Article Body:
Copyright 2006 Ronald Hudkins

"I am taking you out of the will," or "I am going to disinherit Gregory and leave all my money to Steven," are statements that seem far more like they belong in an Agatha Christie novel than in a serious discussion of estate planning.

Although the world is not filled with conniving relations who maneuver endlessly to gain the favor of a truly despicable older family matron or patron who uses their wealth to control them all until it culminates in murder most foul, this model is instructive regarding how changing a will can cause hard feelings between family members and create legal difficulties.  The chief legal difficulty created by changing a will is that sometimes the two wills look like sequels to a movie and are literally called (Will I) and (Will II).

When this happens there will be, just as in the Agatha Christie mysteries, a group of relatives and friends who are favored by the first will (Will I) and not by the second (Will II). These relatives realize that if they can challenge and get rid of Will II, Will I will take its place, and they set out to get rid of Will II after the deceased is gone and can not take further action.  Of course there are also the relations or friends that are favored by the revised will (Will II) and fight to keep it valid in the eyes of the law.   There are many ways to attempt to invalidate a will that can be the subject of another article.  The point of this article is to make it clear that changing a will by substituting it with another will drafted later in time is an exercise fraught with peril.

A better way to go is to expressly change from one will to the other or to expressly repudiate the first will.  An express change is a change in writing.  For example, if you want to get rid of the first will write that, "I hereby repudiate the first will with this writing and all of its provisions hereby are to be considered void."  It is difficult to get around the fact that you intend to get rid of the first will entirely if you fail to make such a claim in writing.  Once that is settled, then you can begin the second will by stating again that you made another will before and that it is entirely void and does not in any way reflect your desires with respect to your property.  And finally, include in the second will that it and it alone are a reflection of what you want when you are gone.

Another good way to go is not to let anyone, other than your attorney, know you are making a will or replacing an old will with a new one.  People cannot fight over what they have no idea exists or has existed.  This is a good way to keep the elements of an Agatha Christie novel regarding wills out of your life and the lives of your heirs.  The fictional tyrant who rules the family with their notions of inheritance or disinheritance is the kind of person who has people fighting over their will because they are always blabbing about it.  With wills it is best to adopt the policy that loose lips sink ships when it comes to your relatives fighting over what you meant after you are gone. This is not what anyone wants for their families and, with a little discretion and a lot of planning, it is easily avoided.

 

Estate Planning - Capacity Challenges

Estate Planning - Capacity Challenges

Word Count:
619

Summary:
Over views the elements of capacity used to contest the legality of a will. Looks at mental deficiency, insane delusion and mental derangement characteristics that have been used to invalidate a will.

Keywords:
wills,trusts,legal doctrine,capacity,assets,will maker

Article Body:
Copyright 2006 Ronald Hudkins

Wills and trusts have an interesting history in a culture as heavily influenced by British common law as our own.  The bequests of wills have been the pole star around which a great deal of mystery fiction has been written where furtive and anxious relatives wait around a long imposing table to hear what is to become of the family fortune and thus; what is to become of them.  As usual, fiction and the media give one side of what something has been or is, while the other side of the tale exists behind the scenes or on an obscure back page of a newspaper.

What is not often shown about a will is that it is contested.  Perhaps this is because the craving for legal courtroom drama is a relatively new phenomenon, and perhaps because the way the family members behave toward one another over large sums of money is too violent even for television.  Wills are contested in long bitter rivalries that often leave no member of the family unscathed.  Often there are two opposing camps and each relative must decide which "side" they are going to be on.  It is refreshing when the sides earnestly agree that they each wish to bring about what they believe the deceased would have wanted, but it is more often the case in which that is merely the incantation recited to get what each opposing camp thinks is their due.

One means of opposing a will is to suggest that the person making the will was crazy when they made it.  That is why even most lay people begin their will with the phrase, "I (so and so) being of sound mind and body…."  This legal doctrine is not unique to wills, but affects the right to enter into contracts and agreements of all sorts.  In the context of wills, this is called capacity.

Capacity can be broken down into two elements -- first, the will maker must not be mentally deficient. For the most part this means that the will maker must understand what they own, who will get it and the basic arrangements used to get that person whatever it is they are to receive. These elements combine such that the will maker must understand how these elements relate.  It seems that video taped sessions where the deceased explains the whole process are changing the applications of this law.  There is the deceased on-screen explaining who gets what, why and how and in what way that affects the rest of his/her property.  Note that the requirement of mental deficiency is not about what the person understands generally, but what they understand about what they own.  It is tempting to wonder if this requirement stems from the fact that the rich are allowed to be 'eccentric' to a certain extent in our society.

The second prong of capacity is whether the will maker is operating under an "insane delusion" or "mental derangement." However, again, this insane delusion or "false belief against reason," is not about anything other than the assets in the will.  Provided that someone has an insane belief against reason, it doesn't matter unless it affects the property divided up by the will.  If someone believes they see dead people, but doesn't attempt to leave money to any of them, then that is probably all right.  Usually, insane delusions come in the form of an irrational belief that someone is not the deceased's child or that the deceased spouse has been disloyal in the conjugal sense.  But, again the deceased can hold a whole host of irrational beliefs about matters other than their property, and that would not invalidate their will.

 

Estate Planning - Rules and Trustees

Estate Planning -  Rules and Trustees

Word Count:
786

Summary:
Reviews problems associated with forming a trust such as deciding the powers which the trustee(s) have and do not have relative to the assets placed into a trust.

Keywords:
 assets,trust,inter vivos,wills,estate planning,contest,estate planning attorney,trustee,beneficiaries,defense,settlor

Article Body:
Copyright 2006 Ronald Hudkins

If you are wisely attempting to put some assets into a trust (inter vivos) in your lifetime, then you have been paying attention to the important differences between wills and trusts.  A trust created during your life will be far more secure with respect to its ability to withstand challenges to how your assets are to be distributed during estate planning than a will.  Making a trust is a brave thing to do, because it telegraphs, to a certain extent, what you are going to do with your assets while you are still alive.  This is what insulates it from attacks on your capacity, because it is unlikely, for example that, one of your relations is going to say you are insane or feeble and unduly influenced by another of your relatives to your face and this makes the trust a far surer bet than a will, in some cases.

However, the trust also may engender hard feels regarding the exclusion of a relative and those feelings will become known to a person creating a trust while they are still alive.  This is the advantage of a will -- if people don't like it, you will never know.  The will maker is long gone when those that don't like what they have done contest the will and those that do like it try to defend it.  Although, it should be noted that clever drafting should be able to alleviate the necessity of either a contest or a defense.  That is why you need a clever estate planning attorney to create your will rather than just a form.  The attorney that creates your will often defends its contents, or in other words, their understanding of your wishes.  The trust is a different story, because your trust will be administered by someone (called the trustee) for the purpose of those that the trust benefits (the beneficiaries).

One of the paramount problems of forming a trust is deciding what powers the trustee has and what powers they do not have relative to the assets you have placed in trust.  Remember that a trustee is already assumed to have a duty to benefit the trust and that many states have laws regarding what a trustee can and cannot do, if the settlor (the creator of the trust) does not specify otherwise.  But, again, you don't want to leave the financial destiny of your trust up to the state any more than you want the state to decide who gets your assets.  Your wills and trusts attorney will be able to give you a list of the traditional powers of a trustee in your state and tell you what they mean.  Many of the powers concern what type of assets the trustee can invest in on behalf of the trust.  For example, the trustee is sometimes prohibited from buying general securities for the trust because they are considered too risky.  But, if you have chosen your trusted stock broker as your trustee and she has agreed, then this might be exactly the restriction you don't want.  Consult with your attorney about the kind of trust you would like to create and what the rules are in your state.  Remember, that these rules are there to cover the bases in case you don't make your own rules.  Understanding the rules that are there, and why, will give you a sense of the kinds of rules that might be good and the ones that you would rather not have.  In addition, you will be able to give the trustee more freedom than the state rules would allow, or less, depending on how conservatively you want your assets to be managed.

Be prepared to have a candid conversation with your attorney regarding what the rules are and what you would like to see happen.  It is good to remember that your estate planning attorney has seen many trusts and understands how they work.  Sometimes restrictions that seem good today might be the very restrictions that cripple your trust in a vastly different economic environment.  In some cases, a trust may span several decades and the trustee may change along with the climate the trust was created in. When radical economic changes have occurred, a trust with greater flexibility will be beneficial.  So you have a lot to think about as you enter the exciting world of forming a trust.  Don't let rules be off-putting, they are there as guides and when you understand them you will have a greater understanding of what you need.  Ask your estate planner to give you information about the current rules and some general advice about how to choose a trustee.

 

Estate Planning – Protecting your Will’s Integrity

Estate Planning – Protecting your Will's Integrity

Word Count:
608

Summary:
Over views modern day techniques (evidence) one can present to the courts that uphold the decisions the testator dictates in their written last will and testament.

Keywords:
mental capacity,evidence,mental deficiency,estate,judicial interpretation,bequests,testator

Article Body:
Copyright 2006 Ronald Hudkins

In the not overly distant past, the writings of the testator were the only evidence of his or her intentions and mental capacity. Undue influence was harder to defend against when the only evidence was the testator's writings and the recollection of those around them.  Imagine the scene, the packed court room (perhaps I have a flair for the dramatic), the testimony as to the deceased's mental health and the influence exercised over them by their final caretakers and close family members made the testator's mental health and the influence of others over them a matter of the testimony of the living and those often involved in contesting or defending the will.

But new options exist today that make it far easier for the testator to present evidence after they have passed away.  The first question to be asked in a contest involving mental capacity is that of mental deficiency.  Mental deficiency is demonstrated by the testator not being able to comprehend what he/she owns, to whom he/she is giving it, and how it will be transferred in addition to the overall impact such transference will have on their estate as a whole.  Previously this could only be done in writing and it was often suspected that the attorney representing the deceased might have helped that writing have all the necessary components, rendering the doctrine more flexible and open to jury or judicial interpretation than a clear matter of fact.

However, today the process can include having the testator explain on video tape what the asset is, how it is to be transferred and to whom, and the overall implications of that transfer to the overall estate.  It is easier to see the deceased, to see whether he or she seems to understand all the implications and to see whether or not he/she is the type of person who is weak willed enough to be susceptible to undue influence.   In addition, protecting your client by having them explain it in their own handwriting and, on a couple of different occasions, on video tape alters the essential landscape of the court room proceedings by making the deceased a witness.

In addition, it is often useful to send a client to a psychiatrist to verify their mental health and acuity on an ongoing basis.  This is evidence that those contesting the testamentary instrument will not easily be able to counter, because they will not have their own psychiatrist who has had access to the testator.  This is another excellent card to have in your arsenal as an attorney in order to protect your client's interests which again alters the landscape of the proceeding if the will is contested.  Questions as to whether a client is mentally capable of understanding his/her bequests, the implications of those bequests, and the relation of those bequests to the rest of his/her estate as well as questions regarding to what extent, if any, their own personality was waning and susceptible to undue influence can be answered in different way.  The more the judge and jury are able to see the testator, how they behaved, and how lucid and in control of their faculties they appeared to be, the more the trial regarding wills shall depend on a more direct perception of the testator rather than one provided by second hand accounts.  The wise estate planner will use video tape in conjunction with psychiatry and standardized psychiatric tests to show that the testator knew exactly what he/she was doing and will not be hamstrung, as in days past, by the perception of others.

 

Estate Planning – Considering a Second Marriage Late in Life

Estate Planning – Considering a Second Marriage Late in Life

Word Count:
644

Summary:
Over views estate considerations that should be accommodated as widows and widowers (with their longer life spans) increasingly meet and decide upon a second marriage. Addresses for consideration a set of unique legal questions that those getting remarried, do not often think through.

Keywords:
widow,widowers,remarriage,inherit,assets,real property,personal property,marital rights,attorney

Article Body:
Copyright 2006 Ronald Hudkins

As the life expectancy of people in the United States increases, the reality of second and third marriages becomes more likely even for those who tend to marry for a long time if not until the death of their first spouse.  Widows and widowers are increasingly likely to meet and decide that a second marriage is an excellent way to avoid spending their autumn years alone and that love is not the exclusive province of the young.  It is often a surprise to adult children to meet the boyfriend/girlfriend or husband/wife of their elderly parents.

However, remarriage later in life creates a unique set of legal questions that those who are getting married don't often think through.  For example, many older clients take it for granted that their adult children will inherit from them when they pass away, because the majority of their property and life has been spent with their previous spouse who was often a co-parent to those children and the one who helped to build or sustain the family assets.  But, a new marriage means that the marital property is governed by the laws of the new marriage.  Absent any prenuptial agreement, the surviving spouse would, in most jurisdictions, receive at least half of the marital assets, which means that the adult children from the first marriage might be in for a big surprise if they think the family home that their family has owned for years will become theirs.

Another problem is that as people get older they often move to places where it is warmer.  This means that they move to states where they have not traditionally lived before and these states not only have different (warmer) climates, but different laws as well.   If they spend the colder months (or the entire year) in these states, it becomes increasingly likely that they will pass away in these states.  But, are the laws of the state in which they pass away the ones that control the transfer of their assets or do the laws of where they have lived most of their lives control that transfer?  If they have a will, then this question becomes even more complex.  Often the real property (real estate) assets are governed by the laws of the state in which they sit, whereas the personal property (bonds, stocks, money, possessions) are controlled by the laws of the state that is their final residence.

The problems that are created by second marriages should not be taken lightly.  It is important to talk these things through with your future spouse because, chances are, they want to make sure that their adult children get their assets upon their passing just as much as you do.  If you don't have a frank discussion with your would-be spouse, you may end up causing all those whom you love a great deal of heart ache and confusion as they struggle to figure out what would be best and what you would have wanted.  This happens every day -- earnest people do their best to honor their deceased loved one, but honestly and simply disagree about what he/she would have wanted; a situation further complicated by those who just want to fight for any dollar they can get.

Consult with an attorney who can help you set up an agreement waiving certain marital rights that may be tailored toward married couples who start out together, rather than those who meet later in life's journey.  Be prepared to be honest and up front about what you want and ask your attorney what kinds of problems they commonly see with respect to estate planning and autumn romances and how they think such problems are best avoided.  Your attorney will have plenty of good ideas that will ultimately help you safe-guard the important people in your life.

 

Employment background check

Employment background check

Word Count:
348

Summary:
Employment background checks are becoming increasingly common these days. The reasons for this include the fact that negligent hiring lawsuits that result from the actions of an errant employee can damage a company's credibility and lead to hefty fines;

Keywords:
employment background check, software

Article Body:
Employment background checks are becoming increasingly common these days. The reasons for this include the fact that negligent hiring lawsuits that result from the actions of an errant employee can damage a company's credibility and lead to hefty fines; companies have become more selective in their choice of employees following the threat of terrorist activities; accepting a resume at face value has resulted in many companies wasting time and money due to frequent hire-and-fire situations. Also, more companies are now conducting employee background checks as information from databases all over the world is available online. Employers are not bound to conduct an employment background check in all cases; however, federal and state laws make employment background checks compulsory for jobs that require interacting with children, the infirm, and the aged.  

Information that can be included in an employment background check includes driving records, details of past employments, criminal records, military records, educational records, character references, and drug test records. However, background check companies that provide information to employers have to abide by the Fair Credit Reporting Act (FCRA) which regulates the type and amount of information that an external agency can provide to an employer. Bankruptcies that are more than 10 years old as well as civil suits and records of arrest more than seven years old cannot be reported. FCRA regulations vary with the state and agencies that carry out a pre-employment background check need to ensure that they comply with the state regulations. 

Employment background checks can be conducted by companies in-house or can be outsourced to third parties that may include private investigators, H.R firms that screen applicants, and data brokers who are established online. Outsourcing an employment background check has its advantages but if a third-party is conducting a background check, consent from the applicant is required and under FCRA regulations the applicant should be provided with a copy of the investigations. If the employment background check is conducted in-house, the employer is not bound to obtain the applicant's consent or apprise him in detail of the reason for rejecting his application.

 

Employment background check

Employment background check

Word Count:
348

Summary:
Employment background checks are becoming increasingly common these days. The reasons for this include the fact that negligent hiring lawsuits that result from the actions of an errant employee can damage a company's credibility and lead to hefty fines;

Keywords:
employment background check, software

Article Body:
Employment background checks are becoming increasingly common these days. The reasons for this include the fact that negligent hiring lawsuits that result from the actions of an errant employee can damage a company's credibility and lead to hefty fines; companies have become more selective in their choice of employees following the threat of terrorist activities; accepting a resume at face value has resulted in many companies wasting time and money due to frequent hire-and-fire situations. Also, more companies are now conducting employee background checks as information from databases all over the world is available online. Employers are not bound to conduct an employment background check in all cases; however, federal and state laws make employment background checks compulsory for jobs that require interacting with children, the infirm, and the aged.  

Information that can be included in an employment background check includes driving records, details of past employments, criminal records, military records, educational records, character references, and drug test records. However, background check companies that provide information to employers have to abide by the Fair Credit Reporting Act (FCRA) which regulates the type and amount of information that an external agency can provide to an employer. Bankruptcies that are more than 10 years old as well as civil suits and records of arrest more than seven years old cannot be reported. FCRA regulations vary with the state and agencies that carry out a pre-employment background check need to ensure that they comply with the state regulations. 

Employment background checks can be conducted by companies in-house or can be outsourced to third parties that may include private investigators, H.R firms that screen applicants, and data brokers who are established online. Outsourcing an employment background check has its advantages but if a third-party is conducting a background check, consent from the applicant is required and under FCRA regulations the applicant should be provided with a copy of the investigations. If the employment background check is conducted in-house, the employer is not bound to obtain the applicant's consent or apprise him in detail of the reason for rejecting his application.

 

Emigration and Legal Aid in UK

Emigration and Legal Aid in UK

Word Count:
466

Summary:
Study shows that emigration in UK is higher than ever before. Also immigration is on the rise in UK. It can be derived from figures which came from different research conducted by various organizations that in 2006 alone 207,000 British citizens left their country. To know more about commercial litigation solicitor, commercial conveyancing, commercial property solicitors, london solicitors, find a solicitor, lawyer in Manchester, family law solicitor, divorce solicitor, lawyers in Manchester, accident solicitor,

Keywords:
Solicitor, find solicitor, uk solicitors, London solicitor, legal advice, commercial lawyer, commercial solicitor, commercial litigation solicitor, commercial conveyancing, commercial property solicitor, conveyancing, Conveyancing solicitor, employment lawyer, Employment solicitor, family law solicitor, divorce solicitor, emigration, uk solicitors, injury claim, accident solicitor

Article Body:
Study shows that emigration in UK is higher than ever before. Also immigration is on the rise in UK. It can be derived from figures which came from different research conducted by various organizations that in 2006 alone 207,000 British citizens left their country. But the immigrants also came by more than double. In the same year around 510,000 foreigners arrived in UK to stay for a year or more.

After the labor party came into power in 1997, the British emigration figure shows 1.8 million people have left while only 979,000 have returned. In 2006 half the British emigrants went to only four countries mainly Australia, Spain, New Zealand and France. Almost 8 percent of every 100 emigrants went to USA. According to the research by ONS last year UK recorded the highest number of emigrants about 400,000 and immigrants of 591,000.

The majority of the immigrants are from commonwealth countries like India, Pakistan, Bangladesh and Sri Lanka. The legal aid service is very strong and a well spread network in UK. One can seek legal advice on various maters like personal injury, employment law (both for employer and employee), conveyance, will and probate, commercial litigation. Solicitors provide legal advice on family matters, criminal case, medical negligence, financial advice as well along with those mentioned above. Solicitors also give legal advice to estate agents but this service is limited to Scotland only.

Information on solicitors is also widely available on internet. One can find out the solicitor or lawyers based on their locality or law firms or even on the problem concerned. The fees for legal advice vary with the area of law involved in the concerned case. There is Community Legal Advice organization which provides free and confidential legal advice if someone lives on low income or benefits.

If one has been injured in an accident with no fault of his he can seek legal advice from an accident solicitor. The Accident Solicitors is one such legal firm which assists in getting the victim his injury claims for compensation. The accident solicitors can take up cases from places throughout UK including Cheshire, Cornwall, Devon, Lancashire, Manchester and Yorkshire.
 
Accident solicitors help victims get injury claim for accidents causing head injuries, spinal injuries, scarring, broken bones or torn ligaments, paraplegia, loss of eye sight, limbs, damaged or lost teeth etc. the accident solicitors also take on cases involving all sorts of personal injury, medical negligence, fatal accidents, head injury claims, spinal injury claims, sports injury claims, holiday accidents, defective product or service claims, marine or aircraft injury claims, psychiatric injury claims etc.

One can find lawyers in Manchester simply by logging into internet. On internet every detail of information is provided regarding different law firms as well as lawyers in Manchester. Lawyers of different arenas of legal scenario are available with their details on the web.

 

Domain Name Trademarks

Domain Name Trademarks

Word Count:
476

Summary:
As your Internet business grows, the value of your domain name increases. The issue of a domain name trademark should move to the top of your list. You need to guard against unscrupulous competitors that may try to incorporate your domain name in their meta tags to obtain search engine rankings under your name. If you have a domain name trademark, you can go after these individuals and compel the search engines to remove their listings.

Keywords:
domain name trademarks

Article Body:
As your Internet business grows, the value of your domain name increases. The issue of a domain name trademark should move to the top of your list. You need to guard against unscrupulous competitors that may try to incorporate your domain name in their meta tags to obtain search engine rankings under your name. If you have a domain name trademark, you can go after these individuals and compel the search engines to remove their listings.

What Is A Trademark?

A trademark is a distinctive item that is used to identify a logo, product, device, package or service. The trademark identifies the item as being provided by a particular firm. To protect these items you can obtain a mark from the patent and trademark office that prohibits others from trying to gain economic advantage from your mark.

Domain Name

The patent and trademark office views domain names in a unique way. The office views the "http://www" element as a part of the file transfer process, not your domain name. The ".com", ".net", etc., designations are considered top-level domain identifiers and are also disregarded for the purpose of a domain name trademark. For example, our domain name is If we submitted the domain name for registration, only the "sandiegobusinesslawfirm" portion would be considered for a mark.

Locators Cannot Be Registered

A domain name is a locator for file pages. When you type in your domain name, a server locates and displays files. If a domain is used solely for this purpose, it will not be granted a mark. Instead, the domain name must be incorporated into the site. For instance, Amazon is recognized as an online bookstore and the site actually has the word "Amazon" on every page. Since "Amazon.com" is more than a locator, Amazon can apply for and receive a trademark. If Amazon used the domain name, bookstore.com, the company would be able to register "Amazon", but not "bookstore."

Generic and Descriptive Terms

Domain names that are generic or descriptive in nature cannot be registered because they fail to designate a distinctive product or service. For example, "sandiegobusinesslawfirm" is comprised of generic terms and describes who and where we are, to wit, a San Diego business law firm. This domain name cannot be trademarked. The same result would occur with bank.com, book.com, advice.com, etc.

You may be thinking, "What about 'Coke?' "Coke" is a trademarked term because it is a distinctive term for a soft drink product. It just so happens that a brilliant marketing plan has convinced most people to refer to soft drinks as "cokes", even if they actually prefer another brand!

Trademarks are an important factor in protecting your Internet business. Armed with a trademark, you can keep competitors from pulling traffic off the search engines when people search for your site.

 

Do You need an Accident Lawyer in Ohio?

Do You need an Accident Lawyer in Ohio?

Word Count:
406

Summary:
An Accident lawyer Ohio helps you to claim the compensation for the agony or sufferings you have due to the accident met and also claim for the property loss due to accident.

Keywords:
accident lawyer ohio, accident car lawyer virginia

Article Body:
Are you injured in an auto accident in Ohio? An Accident lawyer Ohio helps you to claim the compensation for the agony or sufferings you have due to the accident met and also claim for the property loss due to accident. They will decide whether your case has merit and is worth pursuing. They will also confirm you that how long you have to wait to file a lawsuit. 

Similarly, the accident car lawyer Virginia will assist the persons who met with such accident cases in a systematic manner and you are entitled to receive fair compensation for all your injuries and sufferings.

These attorneys know very well how to prepare your case and to get good value for your lost belongings. Most of the attorneys from Ohio work on a contingency-fee basis.

Once you receive the compensation from the insurance firms, you will be charged a percentage of the claim settled. If you have lost your case against the insurance firms, then you're not entitled to pay these attorneys. Hence it is always advisable to contact an experienced lawyer from either of these states.

These experienced lawyers are well versed with the local laws and will definitely get you the required claim at the earliest possible time.

Though it may be a complicated battle with the concerned legally, the points put forth by these accident attorneys will be of more useful in a legal manner to claim amounts for all these expenditures that are expected or made already. 

The claim forms need to be filled up correctly and one thing that the accident legal representative at Ohio insists is that the clients or the victims or the care takers in these car accident cases need to avoid the delay in filing cases. Hence, the claims may be settled at a fast rate in such cases of accidents. The client is supposed to give proper information with regard to the property loss due to accident. 

In this regard, it is to be remembered that the loss of salary or the wages during the day of accident may also be claimed if the issues of the car accident are met in a proper manner without causing any delay on part of client. 

However, the documentary evidences should be provided to accident public prosecutor in a precised manner and these will help him to deliver legal points in a correct manner that will assist the accident cases.

 

 

Dallas Law :: Do I need a lawyer for my asbestos lawsuit

Dallas Law :: Do I need a lawyer for my asbestos lawsuit

Word Count:
291

Summary:
Making the hard desision of getting a lawyer for your asbestos case.  Do I need a lawyer? If so, what type of lawyer should I look for.

Keywords:
asbestos lawsuit, asbestos lawyer, Dallas, dallas asbestos lawyer, dallas lawyer, dallas lawyers, finding asbestos lawyer

Article Body:
If you have become sick from exposure to asbestos, then you may be looking to take legal action.  If so you might be asking yourself the question, "Do I need a Lawyer," or "What type of Lawyer Should I Hire?" Legal issues are tough, and you need to make a decision if you are going to fly solo, or have an attorney represent you.

First off, you will need a lawyer if you want to win a lawsuit in an asbestos case, but the good news is that if you circumstances meet the qualifications then you can get a lawyer without having to pay anything out of pocket.  They will get paid after the case has been won.

Second, you are going to need to look for a lawyer that specializes in asbestos cases, and has a strong background of winning cases.   When you enter that courtroom and all eyes are on you.  A lawyer that is specialized in winning cases that deal with asbestos is going to make all the difference in the world because they will have answer to the hard questions, and will have an idea to as to what type of questions opposing counsel is going to ask.  A great lawyer is the difference between winning and loosing, so be sure to take you time and make sure you find the right attorney to represent you.

In closing if you are looking to win your asbestos case then you are going to need a tough lawyer that is ready to fight for you, and has a history of dealing with these specific cases.  I believe once you have the right lawyer, then you will be on your way to the settlement that you deserve for your injury.