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What You Need To Know About Wills and Trusts

Many have experienced anxiety by reminding themselves of their own mortality with the COVID-19 pandemic. As a result of this, people are reaching out to me for estate planning. They ask if they need a Will or a Trust? Would they be able to get by with just a Will? As an attorney, I will advise if one needs either a Will, a Trust, or both.

What is a Will?
A Will is a document that states the wishes of a person after his/her death. It is a document that can contain provisions for guardianship over minor children as well as distribution of one’s estate after their death. However, a Will on its own has very little power or authority; a person who is responsible for handling another person’s estate, the “Executor”, cannot just take a copy
of a Will to a financial institution, hand it over to the bank representative and obtain the funds of the deceased. The Executor can only act out the terms of the Will after the Will is submitted to the Court (a.k.a. Probate). The Court will then consider the terms set out in the Will to create Orders authorizing the Executor to act. (A Will is generally only words on a paper until it’s
submitted to Probate and the Court takes action on it.) A Will sets up an estate for Probate… so, is a Trust the only means to avoid the expenses and consumption of time (Probate)? Not necessarily…

Do I need a Trust?
A living revocable trust is a legal instrument that sets out ownership of assets, guidelines for the management of those assets while you are still alive, and distribution of assets after you pass away. Generally when you have a living trust created, you still maintain full control over the assets. In California, the extent and value of your assets determine whether a trust is needed or not.

If the value of your estate is $166,250 or more, or if you own real estate, it is strongly recommended to have a living trust to avoid possible probate when you pass away. It allows the designated agent (Successor Trustee) to act/corral assets and distribute them without court intervention.

When is a Trust not needed? Small Estate Petition/Probate Code 13100
In California, if a person’s estate is under $166,250 and does NOT have an ownership interest in real estate, there is an administrative action that can be taken without going to court to corral and distribute one’s assets. One can obtain a Small Estate Petition (Probate Code 13100). This declaration will be presented to the entity (i.e. financial institution, plan administrator, agency)
who currently has control of the assets being sought, under California law, the declaration will give the entity the authority to release the assets to the deceased’s next of kin/legal heir(s).

Example:
A person has three bank accounts and a car in their name. The total assets are $100,000. The personal representative of the estate may be set out in the person’s Will, or, if there is not a Will, the next of kin/legal heir(s) can sign a Small Estate Petition under Probate Code 13100 to collect personal property of a small estate.

Another consideration when making a decision on whether you need a Will or a Trust or both is that a person cannot just focus on the here and now – a Trust will serve as the depository for current and future assets. Anticipate how your estate will look in the foreseeable future before making the decision.

Unsure if you have sufficient estate planning? Check with a lawyer to verify that your estate is in order. Take control of your estate rather than having your state control your assets when you pass. 

If you have any questions about a new estate plan or in need of updating your existing estate plan, contact the Law Offices of Ian S. Topf, APC by calling (619) 546-9777 or by email: ian@topf-law.com.

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Time To Review Your Estate Plan

Here we go again… Another year has passed and with it came life events that may have affected your estate plan, if you in fact have one.

The overwhelming truth is that far too many people don’t plan ahead and if they at one time did have the wherewithal to do so, they forget to update as time goes on. If you don’t have an estate plan, now is the time to get started to give yourself peace of mind. Depending on what you want and what your overall situation is, (financial, family, etc.), there are various ways you can go about it.

Estate planning is not just having a trust or a will to plan for what happens after you pass away. It’s also preparing for having someone act when you cannot due to illness (e.g. Alzheimer’s) or other incapacity. If you just have the shirt on your back, you may be able to get away with a durable power of attorney (for your finances) and advance health care directive (medical), but don’t limit yourself to the here and now. Estate planning goes much further than that; the future you – the one with the family of four and a house in the suburbs – will thank you. It’s on you to reach out to a legal professional to see what you really need.

Over the last couple of weeks, I have had individuals come in and want to discuss recent deaths in their family. They want to know how to take care of their recently departed loved one’s estate. In some cases, there was no estate plan in place and others have old estate plan documents, (circa 1980’s), that were never reviewed and updated. I’m seeing more and more situations where trusts were created but only partially funded, (meaning assets actually transferred to the name of the trust), and others not funded at all. By maintaining an account or property in an individual’s name, the third party who controls the asset (e.g. bank, county recorder) will not recognize the trust and, in many cases, the intended beneficiary will need a court order, (e.g. probate), to receive the asset(s). Again, a properly prepared estate plan and some good advice and guidance from an estate planning attorney now will avoid the hassle of probate.

Do You Have An Estate Plan?

Myth: Estate plans are only for the retired or rich so I don’t need one.

Truth: Everyone has an estate. Have a bank account? How about a car? Everyone needs a way to handle their affairs should they get sick or worse.

There are many reasons for creating your estate plan. In my opinion, the two main ones are as follows:

1. To ensure your wishes are carried out during your lifetime and beyond with as little complication, (cost, time, court involvement), as possible.

2. To organize your life by identifying your assets and obligations, as well as making sure you have a plan in place for both. By creating an estate plan, securing your assets, and having your financial obligations inventoried, you are avoiding a scavenger hunt for your loved ones who would have to figure out what you had and what needs to happen.

Depending on the overall value of your estate, not just now but in the anticipated future, you may only need a basic estate plan (Living Trust, Will, Power of Attorney, and Advance Health Care Directive (including a Living Will)).

When Was The Last Time You Looked Over Your Estate Plan?

For those of you who already have had an estate plan prepared, do not think you’re done. Many people take their estate planning documents, thank their attorney, and then stick it away, (hopefully in a fire safe, safe deposit box, or other secure container), and forget about it. Others may bring it out only when their financial advisor or other third party members need to see it.

Estate planning attorneys recommend that you review your estate plan at least every five to seven years but the reality is that there may be life events that may require updates sooner. These include:

-Additional child to the family

-Purchasing a property or other large asset

-Marriage or divorce

-When a child becomes an adult

-When you move to a different state

-When you want to update beneficiaries

-Family member passes away or is disabled

-Changes in your financial goals

-Changes in federal or state laws involving taxes or investments

-Update your medical needs

Check with an estate planning attorney to make sure that your estate is in order and your actual current wishes are documented. Take control of your estate rather than having your state control your assets when you pass away.

If you have any questions about a new estate plan or are in need of updating your existing estate plan, contact the Law Offices of Ian S. Topf, APC by calling (619) 546-9777 or by email: ian@topf-law.com. The Law Offices of Ian S. Topf, APC offer a free consultation on a variety of issues, including estate planning, family law/divorce, bankruptcy, criminal/DUI matters, and landlord/tenant disputes.

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Are You A Tenant Moving Out? What You Need To Know About Security Deposits

Lately, I have been getting requests regarding terminating a tenancy. What is a tenant to do when facing the end of their lease or if there’s a desire either by the landlord or tenant to terminate the lease early? More importantly, and the most frequently asked question on this matter:  what’s going to happen to the security deposit?

California Civil Code Section 1950.5 mandate that landlords have a hard 21 days after the tenant vacates the premises to return part or all of the security deposit and if the security deposit isn’t fully refunded, an itemized list of deductions.

So a tenant wishing to maximize the amount returned from his or her security deposit should follow some basic but important guidelines:

As soon as the landlord is aware that the tenant will be vacating the property, the landlord is required to give the tenant a written notice of the tenant’s options for a pre-move-out inspection of the premises, where the tenant has a right to be present at the time of the inspection, within a reasonable amount of time prior to the actual move-out date.

  • If the tenant agrees, the inspection needs to happen in the final two weeks with an agreed date and time.
  • If no agreement can be reached on a date and time, the landlord can schedule an inspection within 48 hours of the notice.

My advice to tenants is to try to schedule the pre-move-out inspection well in advance of the actual move-out date, just in case there are noted issues/damages. This will allow the tenant plenty of time to remedy the situation on their own rather than leaving it up to the landlord to take care of it after the tenant has left. In many situations, the damages are minor and can be fixed by the tenant themselves at little cost, while landlords generally hire people to make repairs and pass the costs along to their tenants out of their security deposit.

When conducting the inspection, the landlord usually uses a move-out inspection form, which is typically the same as the move-in form, to note any damage/concerns. So long as the tenant is present, both the landlord and the tenant can have input on the notations on the form. From the observations at the inspection, damages can be evaluated and resolved. It is important for tenants to document the condition of the property both at the inspection and when they actually move out – in other words, take photos.

After the inspection, the landlord may or may not provide the tenant with an itemized statement of the landlord’s intended deductions from the security deposit.   These can include professional cleaning, replacing the carpet, drywall repair, etc.  Tenants should not presume that such a list will be provided before move-out and should insist on promptly getting a copy of the form they completed with the landlord at the inspection.

If a move-out inspection takes place prior to the tenant leaving, the inspection form must include a complete evaluation of the condition of the premises and both the landlord and the tenant will be bound by the notations on same, with certain exceptions; a landlord can include anything that was not listed on the pre-move out inspection only if the damages were hidden by the tenant’s possessions. For example, if the tenant’s furniture blocks a cracked baseboard or a hole in the wall, as long as the landlord can show that they did not have access to the area, it can be added to the list after the tenant vacates to hold the tenant liable for any necessary repairs.   Tenants should compare the itemized deduction list, provided by the landlord with the return of their security deposit, with the move-out inspection report and the tenant’s own notes.

Allowable deductions:

  • Repairs for damages other than normal wear and tear.
  • Cleaning (the residence must be clean as it was when the tenant first moves in).
  • Replacing or repairing personal property, such as garage door remote or keys

What is not deducted:

  • Normal wear and tear, such as faded paint (lifetime of paint: 3-5 years), worn carpet (lifetime of carpet: 5-6 years), or loose grout on bathroom tiles (lifetime of tiles: 25 years).
  • If the residence is as clean moving out as when the tenant moved in, then cleaning costs may be objectionable.
  • Defects to the premises existing prior to the tenant moving in.
  • Any damages not noted by the landlord in the move-out inspection, unless the landlord was unable to ascertain the same due to the tenant’s possessions.

Possible deduction – additionally, unpaid rent may be taken out of a security deposit only if the lease specifically provides for such a deduction.

Additional Words of Advice:  During the move-out inspection, the tenant should give the landlord their forwarding address.  Without knowing where to send the security deposit and itemized list of deductions, the landlord will have a reasonable excuse as to why they could not comply with the 21 day time period for the return of the security deposit.  And that 21 day rule holds steep penalties for landlords:  failing to comply Civil Code Section 1950.5 can subject a landlord to penalties of up to two (2) times the amount withheld, effectively requiring payment to the tenant of a total of three (3) times the amount withheld, along with any fees and costs incurred for having to bring same to the Court’s attention.

Are you in a situation affecting your rights as a tenant? The Law Offices of Ian S. Topf, APC offer a free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

Questions To Ask At Your Free Legal Consultation

Many attorneys offer free legal consultation as part of their services to prospective clients. For the client, it’s an opportunity to get a feel for the attorney and see if they feel comfortable having this individual represent them in their legal matter. For attorneys, it’s a chance to get a sense of
the client’s legal needs and what actions should be taken to meet those needs. Usually these consultations last between a half-hour to an hour—just enough time for both parties to determine if there’s a “good fit.”

Of course, there are situations where one or both sides have an ulterior motive. The attorney may be chiefly interested in determining the value of the case to his or her firm, while some would-be clients make a circuit of law offices offering free consultations, trying to get as much free advice as possible while “price-shopping” different law firms.

I want to offer some guidelines for people genuinely interested in having a positive and informative legal consultation. First, here’s what the prospective client should bring to the table:

  • Be prepared. People often come to my office burdened with financial problems, but with no real understanding of what those problems are. It’s difficult to provide useful advice without a clear idea of the issues involved. For a bankruptcy situation, have a summary ready—what you make, what you spend, what you owe and what you own. In divorce cases, the attorney needs to know what you think the chief issues will be and where there are areas of possible agreement between spouses. Remember, many attorneys base their fees on the information they get from clients.
  • Be honest. Lying to the person you want to represent you, or even skimming over pertinent details, will cost you substantially more in the long run.

The following questions will help you decide if an attorney is right for you.

Experience

How long have you practiced in this field of law? Have you handled cases similar to mine before? Are you primarily a litigator, negotiator or mediator?

Managing the case

What are the possible or likely outcomes for my case? Do you recommend mediation or going to court? In a divorce case, how do state laws affect custody, support, alimony and the division of property? What’s your estimate about the length of time this case will take? What percentage of cases like mine get settled out of court? How will you keep me updated on the progress of this case?

Legal fees and costs

Obviously, this is a subject every potential client wants to know about. If an attorney is unwilling to provide a fairly detailed estimate of fees and costs, that’s a red flag and a warning to stay away. With this in mind, ask questions like these:

What is your hourly rate? Is a retainer required? Is this fee refundable in case we don’t move forward with litigation? How often will I be invoiced and will these invoices be broken down in detail? What other costs are involved for services like the use of associates, paralegals, experts, and/or other legal support staff? Can you give me a ballpark figure for the total bill (including fees and expenses)?

These are a lot of questions to ask in a short consultation time-frame, but the more you learn about what the attorney can offer, the easier your decision about hiring him or her will be. If you find an attorney you believe you can work with, my advice is to go for it. If after the consultation you have any concerns, getting a second or third opinion is completely acceptable.

Are you in need of legal counseling or have any questions about the above topic? 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.

What Are My Rights As A Tenant?

Here’s a situation I encounter frequently. Tenants renting a house or apartment say they’ve called the landlord repeatedly to repair something or clean up pests of some kind, and nothing gets done. What can they do?

Under California law, every residential tenancy, whether under a written lease or otherwise, is subject to a landlord’s warranty of habitability. This means that when you rent a house or apartment, the landlord has to maintain his/her guarantee that you can live on the premises free from safety and health concerns.

Subjective vs. Objective

Seems pretty clear-cut, doesn’t it? Not entirely, as what’s deemed a health or safety concern may be left open to interpretation using a subjective perspective.

Say, for example, you’re worried that the roof will cave in because of termites, which you believe are present due to a couple of small piles of wood shavings in the corner of the master bedroom. If you don’t know precisely what the extent of the damage is, your fear is considered a subjective concern. Until an investigation determines termites have attacked a weight-bearing support beam, there’s not much you can do, except report this concern to your landlord.

A burst pipe, on the other hand, is an unquestionable (and objective) safety and health concern. In this situation, you should immediately contact your landlord (in fact, that’s your obligation as tenant). It’s the first necessary step toward giving them adequate notice of the problem.

My advice is not to rely solely upon a telephone call. A text or email is helpful, but with any of these forms of communications, it can be hard to prove you provided adequate notice of a problem. A landlord can claim the phone call never happened or electronic communications failed.

Therefore, in addition to the means listed above, I recommend you send a letter to the landlord by certified mail (with return receipt requested), so there’s legally acceptable proof of notice to the landlord.

What if the landlord ignores your request?

In the event the landlord ignores your request to fix a broken toilet or replace a broken window, here are possible options.

Take matters into your own hands. You can repair the damage yourself and deduct the cost from your rent. This must be a “reasonable” repair, so be sure to use the most reasonable repair option (don’t go for expensive parts or labor without the landlord’s written pre-approval). Remember, it must be a serious defect in order to deduct payment from your rent. A bent screen on your window poses no genuine health concern, so if you hire someone to fix it, this would be an unreasonable deduction from your rent without the landlord’s approval.

In order to fix and deduct, neither you, a family member, friend, nor anyone else who is present with your consent can be the one(s) causing the damage. Also, you have to give the landlord notice and a reasonable amount of time to make the repairs (unless it’s an immediate threat, like a roof collapsing).

If you do pay for repairs, be sure to keep all receipts. That way, if you decide to deduct from your rent, you can provide copies of the receipts to the landlord, along with an explanation about why you’re not paying a full amount of rent for the month.

You can withhold rent. This is an option in cases where you determine that the rent you’re being charged isn’t reasonable for the place you inhabit—that is, conditions have made the house or apartment at least partially uninhabitable.

For example, a cracked window in the dead of winter makes a part of your dwelling unlivable, due to extreme cold. You calculate you can use only 75% of the house, so you’ll pay only 75% of the rent. Reminder: You must first give the landlord an opportunity to fix the damage.

According to the law, you can only withhold rent for one month per job. And you can’t use this remedy more than twice in a 12-month period.

Abandon the premises. If a condition is serious enough that you feel you and your family are at risk, you have the legal right to walk away. (Again, only after giving notice to the landlord of the need for repairs and a reasonable opportunity to fix the problem.) If your requests for repairs have gone unanswered, you are legally entitled to cancel the lease.

With each of the options listed, be sure to document everything! Take photographs. Make copies of notices. Keep receipts of out-of-pocket inspections to support your claim.

There are risks involved in either deducting or withholding rent. If the reason for your actions isn’t considered reasonable in the eyes of a judge, a landlord can evict you and hold you responsible for rents and other damages.

As a tenant, you have specific legal rights concerning the safety of your house or apartment. Before taking any action, you should always consult an attorney with experience and knowledge in this area.

Are you in a situation affecting your rights as a tenant? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

What Can A Restraining Order Do?

A restraining order (also known as a “protective order”) can be as powerful as a court order or as flimsy as a piece of paper. You can’t hold it up in front of someone with a gun and expect it to protect you.

However, a protective order can serve a useful purpose, which I’ll get to in a minute. First, it’s important to know the five most common types of restraining orders a court can issue:

Workplace Violence Restraining Order

When an employer notices that an employee is being harassed, assaulted, stalked or otherwise threatened by a third party, that employer can request that the court issue an order restraining the perpetrator from coming anywhere near the place of business. The employee cannot ask for this
type of restraining order, though he or she has other options.

Civil Harassment Restraining Order

This is a legal option for a person being stalked or harassed by an individual with whom they do not have a close, personal relationship (such as a neighbor, roommate, acquaintance, etc…).

Elder or Dependent Adult Abuse Restraining Order

This option exists for people who are over the age of 65, or under 65 but subject to a conservatorship or some disability that makes them unable to care for themselves. It can be filed against a caretaker, family member, or other person in situations where the elder or adult dependent is experiencing physical or financial abuse; neglect; harmful physical or mental treatment; or deprivation of basic human services.

Criminal Restraining Order

This type of protective order is usually sought by a criminal prosecutor, sometimes at the victim’s request, during the course of a criminal proceeding. It’s designed to protect a victim from the perpetrator of domestic violence (or some other harassing actions), while an abuse, battery or assault case is underway.

Domestic Violence Restraining Order

This is the most commonly filed of these different types of protective orders. Typically, it involves an individual with whom the protected person has a close relationship (as in a current or prior marriage, live-in situation, or just dating). It can also be sought on behalf of children, even if they are not the children of the perpetrator. It can restrain an individual from doing certain things—such as making physical or verbal contact, stalking, threatening or otherwise disturbing the peace.

So is a restraining order effective?

The answer is yes, under certain conditions. In many cases, the threat of criminal prosecution for a violation of a restraining order is just enough deterrent to cease the abusive behavior. Additionally, if the restrained person isn’t a U.S. citizen, a restraining order against that person may affect his or her immigration status (and prosecution for a violation of the restraining order most likely will affect his or her legal status). Further, if law enforcement gets a 9-1-1 emergency call, they may jump a little faster if there’s a restraining order already filed against an alleged perpetrator.

Keep these tips in mind if you’re considering asking for a restraining order:

  • Details, Details, Details. Be very specific in relating the types of incidents involved—dates, times, locations, and a precise description of the action. Reporting that you were “hit on the left side of the face with his fist” is more effective than, simply, “he (or she) hit me.”
  • File Promptly. Ask for a restraining order promptly after an incident has occurred. If you
    delay and wait several weeks or months, the court may feel that the threat of abuse is no
    longer present, or wasn’t even there in the first place.

In my experience, a restraining order often serves as a good deterrent against future abuse or harassment. It’s not guaranteed to change the negative behavior, but can serve as a warning. But even with a restraining order in place, the person involved must remain alert and utilize the services of local law enforcement if they continue to be harassed.

If you believe you have grounds to request a restraining order, it’s a good idea to talk to an attorney and make sure such an action is in your best interests.

Are you in need of legal counseling or have any questions about the above topic? 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.


What Happens At A Mandatory Settlement Conference?

During the course of a family law matter, such as divorce, legal separation or dissolution of domestic partnership, many California courts offer the option of a scheduled “settlement conference.” In some counties, including San Diego, this is a mandatory proceeding, should the parties be unable to resolve their dispute among themselves. It is, in essence, a last-ditch effort to come to an agreement before proceeding to a formal trial.

If a case proceeds to this point, the parties or their attorneys are required to “meet and confer” prior to the settlement conference date. Attorneys may confer in person or by phone or email to narrow down what issues have already been settled and what issues remain unresolved. The goal is to frame the actual settlement conference, so everyone involved can focus on what’s truly in dispute at that time.

In preparation for a settlement conference, the Court will appoint one or more “settlement conference judges” (attorneys who volunteer to assist in the process). After the “meet and confer” process is completed, both sides must prepare settlement conference briefs to give to the settlement judge and share with the opposing party. Generally, these briefs include an overall
summary of the case to date, including issues to be presented, each party’s position and/or proposals and, lastly, any documentation in support of the party’s position. As I tell my clients, while they’re called “briefs,” there’s nothing brief about them!

On the date of the settlement conference, the parties and attorneys show up in court, check in with the department where the case is being heard and listen to a few words offered by the courtroom Judge (not the same as the settlement judge). Then the parties, attorneys and settlement judge begin their meeting and attempt to work out a settlement of all disputed issues.
The settlement judge doesn’t have the power to render decisions; he or she is there solely to help facilitate an agreement. If by the end of the conference, parties can reach a settlement, in part or in whole, usually the Court will allow them to put everything on the record. If they’re unable to reach agreement, the Court then sets a trial date to resolve the dispute.

Mandatory Settlement Conferences generally have no costs beyond your attorney fees. It is certainly worth exploring as an alternative to going to trial. Speaking from experience, it’s almost always better to compromise to something you can accept, than to roll the dice and put your issues before a Judge, who may or may not know all of the factors when coming to a
decision on your substantive issues such as child custody and division of property, a decision that may affect the rest of your life.

Are you in need of legal counseling for divorce or dissolution of a domestic partnership? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

What Happens If You Get A Collection Notice

Getting a collection notice in the mail is never a fun thing. But it’s also not a reason to panic. In California and other states, there are very strict rules about the proper way to prepare and distribute a collection notice. So if you receive one, I recommend investigating the following factors before taking any action.

Is the debt valid?

There are certain factors which may render a debt uncollectible. For example, the debt might be very old and the time for collecting on it may have passed. Also, the individual who receives the notice might not be the actual account-holder. Cases of mistaken identity are not uncommon, especially when the supposed debtor has a name like “John Smith.” With all the John Smiths in
the world, the John Smith who gets the collection notice may very well not be the John Smith.

Does the collection agency have the authority to collect?

Don’t assume that the collection agency that sent the notice is authorized to collect on your debt. It may have improperly acquired the right to act as a collection agency from the original creditor. Also, the agency must be licensed to collect debts in the state in which the account holder lives.

Is the form of contact legal?

In California, the Rosenthal Fair Debt Collections Practices Act lays out specific guidelines for what a collection notice must contain: the name and address of the collection agency, adequate information identifying who the agency is collecting for, the precise amount of the debt and appropriate disclaimers and notices of the account holder’s rights.

What to do next…

First, and foremost, do not ignore the notice and just throw it away. In most cases, if you do not challenge the validity of the debt claim within thirty (30) days of the date of the notice, it is presumed valid, even if there is any issue (e.g. wrong person, severely aged debt, etc.). If there’s a problem with compliance regarding any of the above questions, the collection activity might be ruled invalid. In such cases, I advise clients to notify the creditor (either on their own or through an attorney) to inform them that they are challenging the validity of both the debt itself and of the collection agency’s practices.

Even if you DO owe a debt, it’s always good to make the collection agency demonstrate that the debt is genuine and that they have the authority to collect on it.

In your challenging notice, ask for the following:

  • Any documentation showing that the account being collected on was actually created and authorized by the account holder (in the form of a credit application, contract, promissory note, etc.)
  • A transaction history showing that the amount being collected on is actually the amount
    that is owed.
  • Any documentation showing that the collection agency has the authority to collect (as
    demonstrated by an assignment of rights signed by the creditor or a purchase contract
    between the agency and creditor).
  • Any judgment which have been tendered against the account holder, relating to the
    account, if any exist.

If the collection agency has been overly aggressive in its tactics—either through harassing telephone calls or in-person visits—the challenging notice can include a cease-and-desist demand, requesting that the collection agency stop all verbal or any non-written communication. There is no reason an account holder must submit to harassing collection procedures.

As I said, it’s never pleasant to receive a collection notice. But there are things you can do and
services an experienced attorney can provide. Don’t take action without fully investigating your
options.

Are you in need of legal assistance regarding a debt or receipt of a collection notice? The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from debt collection defense, bankruptcy, family law, estate planning, and DUIs and civil matters.

What Happens to Child and Spousal Support When an Ex-Spouse Remarries?

There’s a common misconception about how a person’s support obligation changes after an ex-spouse remarries. For purposes of this discussion, let’s say Joe is paying child support to his ex-wife, Traci, for their daughter Angela. After a year or so of being on her own, Traci meets, falls in love with and marries a plastic surgeon. Almost overnight, Traci’s lifestyle undergoes a transformation. From being a single, working mother on her own, she’s now a stay-at-home mom living in a multi-million-dollar home. 

Doesn’t it seem like Joe’s child support payments should end now that Traci and Angela are living the good life? Under California law—and with slight variations in most other states—the answer is: No.

The child support order made at the time of the divorce is generally based on the respective incomes of the two parties. This order can be modified for such reasons as a change in the supporting parent’s income. If that income decreases significantly (say, Joe loses his job as a forklift operator at Home Depot), he can petition the Court to change the amount of child support he’s required to pay. If his income increases (he’s named manager of forklift operators), he can alert Traci and offer to raise the amount of monthly payment, or Traci can petition the Court for increased support. 

But as far as seeking to terminate child support payments because Traci is now a plastic surgeon’s wife? This change has little to no effect on the original child support order. Traci’s new husband may voluntarily help support Angela, but because she’s not his biological child, he’s not legally obliged to do so.

Spousal support (formerly called “alimony”) is an altogether different story. 

According to California Family Code Section 4337, “Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.” In other words, unless an agreement had been made to the contrary, Traci’s remarriage automatically ends Joe’s obligation to pay spousal support. 

A Final Point:  there are cases where the supported spouse lives with a new partner for a substantial period of time, but isn’t officially married—in which case, spousal support payments have to continue as usual. For this reason, as part of any divorce agreement, a supporting spouse should request that “non-platonic cohabitation” with another person, with or without a duration period defined, will also terminate the supporting spouse’s spousal support obligation. This helps clarify the situation and may have a significant legal impact on the termination of a spousal support obligation.

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

What Happens When You Marry Someone with Support or Debt Obligations?

These days, it’s not uncommon for a person to marry someone who comes with some financial “baggage”— that is, with debts or support obligations of some kind. Here’s a fairly typical scenario:

Jane comes to my office seeking information about getting a prenuptial agreement. Her fiancé, Frank, is saddled with several types of obligations. Her fiancé underwent a horrible divorce from his first wife and Jane believes the ex-wife will go to any lengths to get what she can from him — including having her attorney subpoena Frank’s financial institutions for information on his various accounts. Naturally, Jane wants to know, if she proceeds to marry Frank, is she exposed to similar legal actions? What is her risk with respect to his spousal support, child support and/or any debt Frank has incurred?

Let’s take a look at each type of obligation and see how Jane may or may not be involved:

Spousal Support

In California, a new spouse’s income or assets generally has no effect on the spousal support obligation of their new partner. In other words, what belongs to Jane in terms of property or income is not connected to Frank’s spousal support situation. The Court doesn’t use this new information to re-calculate or otherwise alter the amount of support Frank is obligated to pay his ex-wife. 

There is one notable exception: If, after remarrying, Frank were to quit his job or become a stay-at-home spouse (because his new wife has a well-paying position) and then attempt to either terminate or decrease the amount of spousal support he’s obligated to pay, the Court would likely see this as an intentional attempt to evade his legal responsibilities – and may not change his spousal support obligation.

Child Support

Again, in California, Jane’s assets generally do not come into play in a situation where Frank is paying child support related to his previous relationship(s). But, as noted above, it’s a different story if Frank decides to leave his job or otherwise decrease his income. Under California Family Code Section 4057.5, the income of a new spouse can be used “in an extraordinary case where excluding that income would lead to extreme hardship to any child subject to the child’s support award.”

The court will always be guided by what is deemed to be in the child’s best interests.

Debt

When it comes to debt obligations, Jane’s potential risk is a different matter entirely. With a new marriage in California, what both parties own together is automatically subject to community property law (e.g. anything acquired during the marriage is presumed to be split 50-50 between the spouses). If Jane puts Frank’s name on any of her assets – for example, adding his name to her savings account or on the deed to the house – creditors can now pursue what Jane considers her property for repayment of Frank’s debts. Her assets should remain untouched if her name is the only one connected to those assets. Most creditors won’t go to the trouble of going after assets in the non-debtor spouse’s name.

Of course, where a house or similar large property is concerned and a lender or other entity requires the signing of a Interspousal Transfer Deed in the course of a refinance (placing title solely in Jane’s name), Frank essentially gives up his legal rights to ownership by signing such documentation. Should this second marriage end in divorce, Frank may have no claim on the house and the property will be awarded to Jane as her sole and separate property.

A prenuptial agreement is an effective way to fully clarify both spouses’ debts and support obligations before marriage takes place and provide the parties with clear guidelines on how to handle their property and obligations throughout their marriage. That’s what I recommended to Jane and what I generally tell all of my clients facing this relatively common situation.

Getting married or just 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 family law, bankruptcy, debt collection defense, estate planning, criminal defense, DUIs, and general civil matters.

What to Do When 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 to 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 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
  • Canceling newspaper, magazine, and digital 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.

Representing Yourself in Court and Other Low Cost Options

For many people facing a legal issue, the first thought that generally comes to mind is how much will this cost in attorney’s fees? The good news is that there are numerous types of cases in California where being represented by an attorney is not a necessity. 

As a general rule, you may not need to be represented by an attorney when:

  • Your case is clear-cut and there’s no opposing side (e.g. as in a request to change your name).
  • You and all other parties involved agree about everything (such as an uncontested guardianship of a child).
  • You’re confident that you are fully aware of your legal options and can make informed choices about your case on your own.
  • You have the time and willingness to learn the law and the relevant rules and procedures applicable to your case.

A person’s Constitutional right to be represented by an attorney only comes up in a very few types of cases (e.g. criminal). In all other legal situations—civil litigation, family law, bankruptcy, small claims, traffic court, etc.—you do not have an absolute right to legal representation. In these circumstances, a person wishing to have an attorney advise and/or represent them must seek out legal assistance on their own.

If you’re thinking of representing yourself, keep these considerations in mind:

How Complex is Your Case. You may not need an attorney for an uncontested divorce. However, if difficult issues are involved – such as being allowed to move out of state with children of your marriage, spousal support, extensive property divisions—it’s best to at least get some legal advice, if not active legal representation. 

Your Ability to Handle a Legal Matter. Be honest about your personal strengths and weaknesses. Some cases require extensive appearances before a judge, which can be an intimidating experience. Someone who’s shy or fearful of speaking in public might be best served by having an attorney speak for them.

You Have Trouble Expressing Yourself Succinctly. An attorney can help you avoid rambling and focus instead of the key points of your case.

You’re Held to the Same Standards as a Practicing Attorney. Whether or not you’ve passed the bar, when you’re in court, you’re held to the same standards as a full-fledged attorney. If you don’t feel competent in mastering those standards, you may need an attorney.

You Lack Time to Handle Legal Matters on Your Own. People who work full-time or have a family to care for aren’t necessarily able to devote the time required to handle a legal matter on their own. Keep in mind that it’s not uncommon to spend hours to a full day at the courthouse simply to get a legal form successfully filed.

Fortunately, there are many great resources available to assist people who wish to represent themselves. In California, each court offers online and in-person self-help centers for certain legal matters such as family law, small claims and sometimes even probate. 

Some courts offer facilitator offices to assist in the “grunt work” needed to resolve your legal issue. It’s important to note what facilitators can’t do. In divorces, for example, a facilitator can’t offer advice on whether you’re seeking all that you’re entitled to nor on the methods you need to utilize to discover things to which you may be entitled – which means there’s a real possibility you can leave critical issues unresolved.  

While facilitators and self-help centers are very useful, it’s always a good idea to get expert legal advice. Attorneys, after all, are paid to zealously represent their clients and get the best possible resolution in court. Some attorneys, including myself, offer reasonable rates and even discounted services with respect to some types of legal matters.  

In conclusion, before striking out on your own, speak to an attorney who is knowledgeable in your case’s area of law so you can make an informed decision on whether or not your attempt to save money will cost you more in the end.

Are you in need of legal counseling or have any questions about the above topic? 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.