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2015 Resolution: Take Care of Your Legal Needs

On behalf of all of us at the Law Offices of Ian S. Topf, APC, best wishes for a happy, healthy and prosperous 2015!

It’s not too late to make a New Year’s resolution that will benefit you and your family throughout the new year. This is a great time to take care of some essential legal planning responsibilities – and you’ll feel much better when you do.

Estate planning

Many people mistakenly think of an estate plan as something that matters only when they die, but there’s really much more to it than that. With a thorough and carefully prepared plan in place, your loved ones won’t have to experience the additional stress of wondering about your final wishes (health, financial, etc.) should you become physically incapacitated and unable to share those wishes during a highly emotional time.

If you already have an existing estate plan, the new year offers a perfect opportunity to review the plan so it reflects any changes that took place during 2014. Such changes might have included:

  • Got divorced or remarried
  • Blessed with the birth or adoption of an additional child in the family
  • Need to remove or replace an agent or beneficiary who passed away
  • New wishes for how you want to have your medical needs addressed

It’s also important to note that, depending on when you first created your estate plan, California law may have changed in ways that invalidate some provisions (or at least affected them so they’re no longer practical). In my legal practice, for example, I’ve come across very old estate plans that haven’t been modified to accommodate requirements under HIPAA (Health Insurance Portability and Accountability Act) and/or the California Probate Code. Without being updated, such plans could run into serious legal problems at a later date; the same problems you have sought to avoid by creating your estate plan in the first place.

In summary, now’s a good time to check with an experienced lawyer to make sure your estate plan is still legally valid and will sleeping aids carry out your wishes, and, if you do not have an estate plan in place, get to it!

Debt relief

Are you one of the many, many Americans who spent too much money during the holidays and find yourself starting the new year in considerable debt? Rather than wallow in this predicament, take advantage of free consultation offered by many debt relief attorneys (including myself)!

We can help you design pro-active ways to resolve your debt and gain control of your financial situation, so you can actually move forward in 2015 without this enormous weight on your shoulders. Don’t wait for debt collectors to start coming after you!

Take action

This brings me to what I think should be everyone’s most important New Year’s resolution: Stop procrastinating! It’s understandable that people put off their legal planning—after all, approaching a lawyer about estate planning or debt relief or any other legal matter seems like a severely negative thing, and most of us naturally drag our feet on these issues, sometimes until it is too late. But think how much better you’ll feel after you address and resolve these matters directly.
For families and individuals who have enrolled in legal insurance plans, I suggest you take a closer look at what these plans have to offer. Many plans provide full-service benefits for legal matters like estate planning and debt relief. They’re also very helpful for general legal advice on a wide range of legal matters.

Remember—you don’t have to wait until you’re facing a lawsuit (or initiating one) to get in touch with an attorney. We can help you cope with many of life’s challenges and free you up for other important goals in the coming year.

Are you in need of legal counseling or have any questions about the above topics? The Law Offices of Ian S. Topf, APC offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

The Legal Obligations after a Family Member Dies

In recent weeks, it’s been my sad misfortune to lose two close relatives in my family. After the initial shock of the loss of each beloved family member, I have been swamped with questions from other family members and friends about what to do (in terms of legal obligations) when a loss like this occurs.

My response? It’s always a good idea to reach out to an attorney to get helpful advice on the right actions to take.

As we all know, the death of a loved one is an extremely stressful experience, charged with a variety of emotions. But if you’re in some way responsible for what this person has left behind, you must be able to promptly take a step back and figure out—Where do we go from here?

While it’s not always clear who should take charge in these situations, the “default person” is usually a deceased person’s spouse or another close family member. This can be altered if an estate plan designates some other individual.

Here are some essential things that need to happen:

Make arrangements to obtain your loved one’s death certificate. Numerous governmental and financial entities will likely require proof of death. That’s why I suggest obtaining multiple (at least 6-8) certified copies of the death certificate. Hospital staff or funeral home representatives can assist in getting these documents.

Determine if the deceased left behind a will and/or trust. These documents will help guide you through the legal process required to properly handle the deceased person’s estate. In California, a proper living trust will generally allow you accomplish this without court involvement, whereas if there is only a will or if the deceased failed to leave behind any estate planning documents, you may have to open probate, a court procedure for obtaining orders related to the administration of the estate.

Locate advanced mans health healthcare directive. Did the deceased person have an advanced healthcare directive or any other document identifying his or her wishes regarding organ donation and burial instructions? This can help determine what to do with their remains.

In the event of a death, other small but important tasks include:

  •  Notifying the deceased’s employer, Social Security Administration, any government agency benefits programs (such as Veterans Affairs)
  • Contacting creditors (a person’s debt is still enforceable after his or her death)
  • Locating insurance policies, claims forms, etc.
  • Caring for a pet
  • Collecting mail
  • Cancelling newspaper and magazine subscriptions
  • Disposing of clothing and personal items

As you can see, your death can create a great deal of work for those you leave behind. A proper estate plan will definitely relieve your loved ones of what can be an overwhelming burden to wrap up your affairs. In addition to the proper documents (e.g. trust, will, power of attorney, advance healthcare directive, etc.), I also advise people to create two lists to help their survivors know what to do following their death:

Contact list. This includes a set of addresses (with all pertinent contact information) for those people named in any of the documents as well as anyone who should be contacted and notified of your death.

Informal inventory. With a comprehensive listing of all of your assets, survivors can avoid an emotionally-draining and time-consuming “scavenger hunt” through your possessions. The inventory tells them what they need to know about your estate.

This is a broad description of what should take place after a loved one’s death, but it is by no means comprehensive. If you’ve recently suffered a loss and feel bewildered by all the obligations thrust upon you, contact an attorney as soon as possible. This attorney can help you navigate the emotional journey that lies ahead.

Considerations When Funding a Trust with Your Real Estate Holdings

Generally speaking, people own two kinds of real estate – a primary residence and/or investment property (residential rental, commercial real estate, etc.). So when the time comes to design an estate plan, the natural question is: Should I put my house or investment property in my living trust? There are several factors to consider before adding your property to your trust.

In California, there are several ways to hold title to a piece of real estate. You can, of course, do so under your own name. When two or more people are involved (married or otherwise), they can hold title in one of numerous ways:

  •  Community property – A jointly owned asset between spouses
  • Tenants-in-common – Two or more people each hold title to an equal share of the property or some other stated percentage. Each person can sell, transfer or otherwise dispose their share of the property, usually without disrupting the other shares.
  • Joint tenancy with right of survivorship – In the event of one owner’s death, the property passes to the surviving joint tenant (the deceased person’s will is generally not relevant here).
  • Community property with right of survivorship – If a spouse or domestic partner dies, the property passes to the surviving spouse or partner (also unaffected by the deceased person’s will).

These are the most common ways people hold title to property. If you decide you want to put that property (or more specifically, your share of that property) in your trust, you must re-title your interest into the name of your trust. Many people forget to do this; they see the property listed in the initial inventory of their trust and figure that by naming the property as an asset of the trust, it automatically is transferred into the trust.  However, in California, a transfer deed (e/g/ Grant Deed to Revocable Trust) must also be executed and recorded with the County Recorder where the property lies.  If you fail to do so, your future beneficiaries will experience difficulties transferring the property into their names and the County Recorder will probably need a court order through probate for such a transfer. 

An exception to this is when the property is held with right of survivorship (Joint Tenancy with Right of Survivorship or Community Property with Right of Survivorship) and the property transfers to the other person(s) listed on the title.  However, what happens when all persons on title antiviral pass away?  Answer: expensive and time consuming probate.

Drawbacks with placing property in a trust

 In the vast majority of situations, your primary residence should be placed in a trust. Why? Again, to avoid probate and/or other unnecessary delays and costs in transfers to your beneficiaries. As a side note, in California, this act of transferring this type of property is excluded from a reassessment by the County Assessor’s Office and therefore is not subjected to reassessment and what can result in a supplemental property tax.

However, if either your primary residence or investment property is subject to a mortgage, your deed of trust (mortgage note) may include a term that stipulates, “Upon transfer of the property, the mortgage may come due and payable in full.” (Often, in this case, the lender may look the other way and not require that the mortgage come due. But it’s always advisable to check with a lender before making a transfer of this kind.)

Your liability with investment property in a trust

A more pressing concern is this: Whether you keep investment property in your individual name or add it to your living, revocable trust, all of your assets remain together in one big pot that may be subject to attachment by creditors.

People who own investment property are typically more vulnerable to liability from third parties than owners of just their private residence. Investment property owners have tenants, tenants often have guests and, in the case of a commercial property, customers may be involved. In all of these situations, you as the owner have little to no control over possible accidents that may occur.

With every person who comes into contact with your property, you’re exposed to various liability claims (a customer falls, another makes a claim under the Americans With Disabilities Act, etc.). Let’s say you’re sued by a tenant or customer and you lack sufficient insurance coverage to cover that claim. In such a situation, everything that is held in your name—including property you’ve placed in a basic living trust—is subject to collection by the claimants.

There are alternative solutions including but not limited to getting an “umbrella insurance policy” or placing the real estate holding in an LLC or other business entity. Before making any decision about this critical issue of how to hold title to your property(ies), contact an experienced estate planning attorney and learn more about your options.

 

Legal Resolutions You Can Make in 2014

There’s no better time than the start of a new year to get your legal and financial house in order. That’s why I advise all of my clients to make sure certain legal documents are in place and to take other precautions so there’s a better chance that 2014 will be a “legally hassle-free year.”

Here are some actions to take in the new year:

Run a credit report. Many people don’t realize that they’re entitled to one free credit report a year. I strongly recommend taking advantage of this. You may think you know everyone you owe money to, but if you run a credit report, the results might surprise you:

You may have forgotten about a debt you owe to a creditor.

  • A creditor may have made a mistake, identifying you as owing a debt when in fact that’s not the case.
  • A creditor may have failed to report that a particular debt has been satisfied.
  • You may be the unwitting victim of identity theft, possibly resulting in numerous debts you didn’t know about.

There are different ways to go about running a free credit report. To get started, check out www.annualcreditreport.com.

Create an estate plan. Thinking about one’s incapacity (e.g. coma) and eventual death is generally not a pleasant experience but, in this day and age, it’s become a necessity.  The overall extent of estate planning will depend on not only what you have but also what you want to do with it.  Without the requisite documents (e.g. living trust, will, power of attorney, health care directive), you and your loved ones may find yourselves in a serious legal situation.

Or update your estate plan. Most experts recommend reviewing your estate plan at least every five to seven years. Why? A lot can happen during that time-frame, including changes in the law and changes in your life – like having children, getting a divorce or inheriting some significant assets.

If you’re a renter, be sure to keep good records. Some recent “Topf of Mind” blog posts have covered tenants’ rights regarding apartment leases and security deposits. The underlying lesson weight loss here is to always keep copies of essential documents. If you don’t already possess a copy of the lease, contact the landlord and get a copy. While you’re at it, ask for copies of any other rules and regulations affecting your status as a tenant as well as other documents relating to your lease. For example, in order to preserve your rights in the event you have to vacate the property, obtain a copy of any inspection report of your residence (e.g. move-in inspection).

Review legal considerations before you get married. With the recent increase in marriages due to the legalization of same-sex marriage in California, we’re seeing again the need for everyone planning to get married to talk to an attorney before taking their vows. (Most couples don’t consult a lawyer until they’re considering a divorce).  Pre-nuptial agreements, for example, are an important consideration to think about prior to marriage.

Get help if you’re facing bankruptcy. This time of year, as people swarm the malls both before and after the holidays, I tend to get a lot of inquiries about bankruptcy. If you face an increasing mountain of debt, it’s definitely time to contact an attorney. And, as I’ve emphasized many times in the past, prior to making that appointment, put together all relevant documents (proof of income, estimates of monthly expenses, an inventory of your personal assets, list of creditors, etc.). Your time spent talking with an attorney will be far more productive if you have the necessary documentation at your fingertips.

This last point applies to all of the resolutions above. Whether the situation involves debt, a tenant’s issue, pre-nuptial or DUI, make contacting an attorney the first thing you do. This will help make 2014 a much better year for you and your family.

Happy New Year!

Are you in need of legal counseling or have any questions about the above topics? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

Should I Have an Advance Health Care Directive?

Comprehensive estate planning not only provides instructions for others to follow upon a person’s death, but also for times when a person is alive but not “available,” due to some form of medical incapacity.

That’s why one of the key elements in any effective estate plan is a document called an Advance Health Care Directive. Including a directive in your plan means that when you can’t speak for yourself (in the event of a coma, the onset of Alzheimer’s, etc.), your wishes concerning important medical decisions will be followed by those caring for you.

What goes into an Advance Directive?

Assignment of rights. You can assign various rights to another person, such as:

  • The right to change or get rid of a particular healthcare provider
  • The right to consent to or refuse medical care
  • The right to withhold or withdraw life-sustaining treatment

A selected agent to represent you. For such an important responsibility, you should obviously choose a person whom you trust. In your directive, you can be very specific in your instructions or you can leave many decisions up to your agent (such as types of treatment to be provided, organ donation, etc.). If this person agrees to act as your agent, he or she is legally bound to follow your wishes as indicated in the document.

I suggest to clients that they choose alternate agents—at least two—in case their first selection is unavailable or declines to accept this responsibility. Many clients choose a family member or spouse as their agent, but you are free to select anyone you wish, with a couple of exceptions. Your physician can’t be named as an agent, nor can a representative of a nursing facility or other medical facility where you receive treatment.

Your agent will not be legally liable for medical bills or other expenses incurred for treatment. His or her obligation is to carry out the instructions contained in your directive. Should they stray from this obligation or otherwise commit a breach of their duties, they can be sued for whatever harm occurs to you as a result of their actions or inaction. For example, if you state that you do not want life-support withdrawn and the agent proceeds to authorize its withdrawal, he or she may be sued for wrongful death damages.

Living Will. In California, a “Living Will” can be incorporated into your advance directive. If you are diagnosed as terminally ill or have become permanently unconscious, or if it’s possible you may come out of the coma but remain in a vegetative state, your agent can instruct the healthcare provider to withhold artificial life-support or withdraw it entirely (“pull the plug”).

If a living will that directs the withholding/withdrawal of life support is not included in your directive, the treating medical provider is legally required to keep you on life-support.

Financial matters are excluded. An advance health care directive is specifically intended to cover key decisions regarding your medical care. It does not grant authority to your agent to make any financial decisions. That is usually covered in another document called a Durable Power of Attorney.

Other aspects of an advance directive include the following:

  • You can make the directive effective immediately or arrange to have it take place upon your medical incapacity.
  • You can direct your agent to authorize alternative or holistic care, as well as treatment for relief from pain.
  • You can include a Do Not Resuscitate (DNR) provision.

Once it’s created, an advance health care directive is legally valid for an indefinite period of time. But because laws concerning medical care and estate planning change from time to time, it’s advisable to have an attorney review this important document periodically, generally at least once every five years.

Are you in need of legal assistance regarding your estate plan or have any questions regarding the above topic? The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from estate planning, debt collection defense, bankruptcy, family law, as well as DUIs and civil matters.

When Should You Get a Trust?

A trust is a document created to manage your assets—property, financial holdings, personal belongings) not only during your lifetime, but after you’re gone. There are generally three kinds of trusts to consider in your estate planning:

  • Living trust—A document concerning the management of your assets which can be amended or revoked at any time during your life
  • Testamentary trust—A document based on language in a will, covering the management and distribution of your assets
  • Irrevocable trust—A document with specific distribution provisions that cannot be revoked later on

The primary reason for a living trust is so you can manage and administer your assets both in life and death, without the intervention or supervision of a court of law. While a living trust in and of itself won’t eliminate estate taxes, it’s the best way to avoid the expensive, time-consuming (and often emotionally traumatic) process of probate.

As noted by the State Bar of California, a living trust:

  • Gives the trustee (an individual, spouse or domestic partner named by you) the legal right to manage and control assets in the trust
  • Names beneficiaries who receive the trust’s assets per your instructions
  • Provides guidance to the trustee in charge of managing and distributing your assets. This individual is held to strict responsibilities and high legal standards, and “cannot use your trust’s assets for his or her own personal benefit without your explicit permission.”

What’s the difference between a will and a trust? A will is the document that’s prepared for use in case of any probate action. It also serves to nominate a guardian for any minor children. When you have a will without a trust, your instructions on how to settle your estate have to be approved by a court. The executor of your estate must submit the will to the court and have it officially recognized, before your last wishes can be carried out.

I assist clients in a range of issues related to estate planning, including living trusts and wills. These documents can complement each other, such as when a living trust is drafted together with what’s commonly called a “pour-over will.” Such a will is designed to protect any assets which were either forgotten when creating a living trust or left out for some reason. The pour-over will ensures that these assets become part of the living trust upon the individual’s death. It “pours over” all assets that failed to be originally placed in the trust and which now can be distributed as originally intended in the trust.

In California, people who want to pass real estate on to their beneficiaries should look into getting a living trust. If the value of all the property of your estate is less than $150,000, simplified probate procedures and/or affidavits to collect your assets without any court proceedings may be available to your beneficiaries. However, if you believe your estate will be more than that threshold at your death, or if you want to try to ensure your estate passes to your beneficiaries as smoothly as possible, you should contact an estate planning attorney about obtaining a trust.

As your assets grow, so does the need to create an estate planning team. This group of professionals—a financial planner, tax advisor and estate planning attorney—help make sure your instructions for distribution of your assets are followed both during your lifetime and in the event of your death. Contact the Law Offices of Ian S. Topf to learn more.