What if I don’t probate a will?

Probate Lawyer Sacramento, CA

When someone dies with a will, a person or professional entity should be named to serve as the executor. The executor has a duty to ensure all debts have been paid and any remaining assets are distributed to the beneficiaries as intended.

Many wills are written are years several years before the death of the testator. As soon as the testator dies, the executor should file the will in court, with the help of a lawyer, to begin the probate process. However, this is not always so easy. It is possible for the executor to have died first, and the will never changed, or for the executor to decide that they don’t want to role. In either situation, the will is left unfiled.

State Laws

The executor of a will is not legally required to perform their duties, even if they promise to do so. However, this does not mean that the executor can ignore a will by placing it in a drawer to forget about it. Nearly all states have laws that require a person who is in possession of an original will to deposit it at the county courthouse nearest to the place of which the deceased lived and died. This should be done between 30 days and 3 months, depending on the laws of the state.

Failure to File for Probate

If the executor fails to file the will for probate within the time limits, serious consequences can result. Although failure to file is not illegal, and will not result in criminal charges, most states do allow anyone affected by this decision to file a lawsuit against the executor.

It is possible for criminal charges to be filed when the executor fails to take a will to probate because they intended to conceal the will for their own financial gain. An example might be when a great aunt, with no family other than a grandson, decided to give her entire estate to a charity rather than her only family member, and he did not file the will. Under the laws of intestate, the grandon (assuming no will existed) would inherit his great aunt’s estate.However, because there actually was a will, the grandson could face charges.

Unpaid Bills and Debts

When someone dies, there is a good chance that they will have unpaid debts. By filing a fill for probate, the creditor has a limited time to make a claim against the estate. Usually this is four months from the date of which the executor is officially approved. If the creditor files a claim after the deadline, they will likely be unable to recover the debt. If probate is not opened, the creditor typically has one year to make a claim against the estate.

It it relatively common for a will to go unfiled when the estate is considered to be insolvent. This means that there is more debt than money or value in assets. Typically, no one will be legally obligated to pay the debts or maintain communication with creditors. Sometimes, in this situation, the best thing to do is to file the will and no open probate. You can talk with a probate lawyer about this during a free consultation.

A Will with No Value

Probate is not always necessary. In fact, if a will was left with nothing of value or because all valuable assets were put into a joint account or trust, probate may not be necessary. It is important to remember that filing a will and opening probate is different.

Administering an estate is time consuming, expensive, and often confusing. If you would like help, call a probate lawyer Sacramento, CA relies on at Yee Law Group today.

The Complicated and Sensitive Process of Estate Litigation

Sacramento Estate Planning Lawyer

Estate litigation can be a very complex and emotionally sensitive topic, especially for those who have to sort through the belongings of a loved one in the midst of loss. Those who have never heard about estate litigation before may have tons of questions about what to expect. During this time, a grieving family member may hire a Sacramento estate planning lawyer for assistance navigating such a complicated legal process. Here are a list of several questions that people may ask when it comes to estate litigation:

How can someone prevent disputes over an estate from happening?

The best way to lessen the likelihood of estate disputes is through creating a valid will with the assistance of an attorney at Yee Law Group, making the statements as clear as possible, and appointing someone you trust as the executor. But, sometimes even the most well-written and concise wills may be contested by an upset family member who did not receive the inheritance he or she thought was deserved.

What are some other reasons why a will may be contested?

There are many reasons why a will may be contested. There may have been evidence that the testator was not of mental capacity to write such a document, did not sign it properly, or was forced by another party to include certain statements.

Why should someone hire an attorney for guidance?

Many people who have never written or come across a will before, may have no idea what comes along with such a critical document. An attorney can offer guidance, advice, representation and support throughout the process of estate litigation. Having to prepare for estate litigation can be sensitive for family members, who are not only grieving a loss of a loved one but now must invest energy and money into a legal proceeding.

What if the executor of the will is not abiding by the deceased’s wishes?

A family member of the deceased can come forward with a dispute, if the executor is not protecting assets as he or she should be. If the executor lacks knowledge and fails to make decisions in the best interests of the deceased and beneficiaries, a dispute is likely to arise. Loved ones of the deceased want to see that their cherished family member’s legacy is being handled with care and respect. If they feel the executor is not doing his or her job correctly, they may quickly take legal action.

What does it mean if the testator was not of mental capacity?

A testator must be able to understand what he or she is doing in regards to the will, must be aware of what current assets he or she has, be able to identify beneficiaries, and overall understand the significance of signing a will. If the testator does not satisfy all of these requirements, the will may be contested and go through estate litigation. Testators that were of senior age or had a mental disability when the will was created and signed, may be more likely to have their will go through litigation after passing.

Should I write my own will?

Will Lawyer Roseville, CA

When you’re thinking about your last will and testament, you might consider writing it yourself. Afterall, how difficult could it be? In Hollywood films you may have seen a piece of paper with the draft’s last wishes and a signature. You can do that too, right? Well, writing a will is not so cut and dry. Today, something like that might not hold up too well in a court of law, or could be contested very easily.

If you’re thinking about writing your own will, you also need to think about many factors like, whether or not there are minor children involved. What laws will govern the will? Are there any special circumstances? These factors, and any other number of them, can make a DIY will challenging,  even with the assistance of an online program.

There is No One Size Fits All Solution to Estate Planning

You can find many online will creators, or purchase software that claims to get the job done for you. However, both of these generally cover the very basic of all estate planning needs. The forms you will find on these sites (or software) are purposely kept as simple as possible. This is done to comply with all state and federal laws. If your circumstances are anything by basic, which most people’s will be, your beneficiaries could have a lot of problems after your death.

Eac person’s estate planning needs will be different. What works for you won’t for your neighbor, best friend, or sibling. A generic will is not ideal for 99% of all people.

Online Programs and Software May Carry a Disclaimer

Review the small print of a will creator site or software program and you’ll almost certainly find a disclaimer that may read :

“The information in this program is not legal advice. It is not a substitute for legal advice. You should consult an estate planning lawyer for legal advice.”

State and Federal Laws

When it comes to estate planning and wills, there are countless state laws that vary by state. You will need to think about estate taxes, gift taxes, inheritance taxes, probate, and more. You also must consider any legal formalities that are absolutely necessary to make a will valid.

The laws that are applicable to your will may affect the entire estate plan. For example the definition of community property, homestead rights, common law marriages, disinherited spouses, and descendents all vary by state. It is not possible for online websites or software to cover these laws, which also change on a frequent basis. At the very least, you should as an estate planning lawyer to review the software to see if it is accurate and compliant with your state’s estate laws.

You Get What You Pay For

Like anything else, you get what you pay for. Yes, creating your own DIY will can save you time and money, but the result may not be what you had wished for. A will lawyer Roseville, CA relies on at Yee Law Group may be able to offer a broad range of flexible payment options that help you to create a will that covers your needs, is legally binding, and avoids litigation.

The Basics of Car Accident Injury Cases

Estate Planning Lawyer

Car accidents can be incredibly overwhelming for anyone involved: they can mean auto repair bills, medical bills, an increase in insurance coverage, and the emotional stress that happens after a traumatic experience. Typically, when you are involved in a car accident, the at-fault driver’s insurance will cover the injury claims stemming from the accident. Additionally, the at-fault driver will also pay a raised car insurance premium as punishment.

How to determine fault in a car accident

Most states are considered to be “fault states” (some of which include Alabama, California, Idaho, New Mexico, Ohio, Rhode Island, Tennessee, Virginia, Wisconsin, and others). If you live in one of these fault states, you must prove liability and fault for any of the injuries or damage resulting from the car accident. In some cases, proving fault is relatively straightforward. Everyone involved in the accident is aware of who broke the rules of the road and who will be held responsible. An obvious example is if a driver runs through a red light and hits a car driving through the intersection. Not only could this be caught on camera, but if other impartial witnesses were there to see what happened and willing to testify, it will be a relatively open and shut case.

Unfortunately, it is not always so simple. If you are the injured person, you must prove liability in a car accident case. To do so, there are three things to prove:

  1. There is a legal duty owed. This means that any driver who gets behind the wheel of a car owes this duty to every other driver on the road, including passengers, bicyclists, and pedestrians, to operate your vehicle with the reasonable standard of care expected by others.
  2. This duty was infringed upon. When this happens, it means the plaintiff must prove that the defendant (or the “hitter”) was acting in a way that was negligent and not fulfilling his duty of the standard care. In these scenarios, the behavior of the driver who is being called into question is measured against the behavior of a reasonable driver would have done in that situation.
  3. This breach of duty directly caused injuries. While proving the driver’s negligence is imperative, that does not necessarily mean they are at fault for your injuries. It must be proven that the driver directly caused the car accident, and without being in that accident, the plaintiff would not have sustained those injuries.

However, if you live in a “no fault” state (such as the District of Columbia, Hawaii, New York, Pennsylvania, and Utah), the person injured in the accident must first seek compensation from their own car insurance coverage, despite who caused the accident. Depending on the state, if the person was seriously injured or the case meets or exceeds the monetary threshold, then the injured victim can file a lawsuit against the negligent driver.

If you would like to know more about determining fault in a car accident, or if you or a loved one has been hurt in a car accident, please call an auto accident lawyer Memphis, TN trusts for more information.

 


 

Thank you to our friends and contributors at Wiseman Bray, PLLC for their insight into car accidents and personal injury.

Should I Accept a Plea Bargain or Go To Trial?

Elder Law Attorney

Being charged with a crime can be the most stressful event of a person’s life. Then, being faced with a decision to accept a plea bargain or go to trial can be one of the most difficult decisions of a person’s life to consider with their criminal lawyer Greenville, MI residents rely on. Here is some advice that might help you decide what is right for you:

  1.     Figure out if there is an actual benefit associated with taking the plea bargain.

If you’re going to take a plea bargain, it needs to be because there is a real, tangible benefit to the bargain. For example, if the prosecutor’s offer is to enter a plea to the charged crime, and they will give you a sentence bargain for no jail, that may or may not be an offer with a real benefit. If the judge is likely to put you in jail without the sentence bargain, then there is a real benefit there. If the judge likely wouldn’t put you in jail if you were convicted after a trial, there’s no benefit at all to that plea bargain. Your attorney is likely to have a pretty good idea of what the judge will do if they regularly practice in front of that judge. Talk to your attorney, and try to figure out if there really is a benefit to the bargain.

  1.     Think long-term.

The stress of having a criminal case hanging over your head can be excruciating. The longer the case drags on, the easier it is to feel like just taking the deal in order to get the case over with is a good idea. It’s not. Don’t accept a deal merely because you want the case over with. You’ll definitely regret that later. Ending short term anxiety is not a good reason to take a plea offer that could have an impact on you for a long, long time.

  1.     Examine your risk tolerance.

Plea bargains are often about the economics of risk. You have to balance factors like the consequences of taking the plea offer and the consequences of losing at trial with the amount of risk you are willing to tolerate. Some plea offers are no-brainers. For example, if you are charged with a life-offense felony, and the prosecutor offers a minor misdemeanor with probation, it’s tough to turn an offer like that down, because it eliminates such a high amount of risk. Most offers aren’t that simple to evaluate, however. Your attorney can guide you in explaining the risks of each choice – the consequences of the plea bargain and the consequences of a trial loss. You have to hold those things up against the benefit of winning at trial, as well as the chances that you will be able to win the trial. Only you can truly have an understanding of your tolerance for the risk, and only you get to decide whether you take the plea or go forward to trial. One good question to ask yourself is, “If I lose the trial, will I regret having not taken the plea?” If the answer is yes, then you probably need to strongly consider accepting the plea offer.

Remember though, that the choice is always in your hands. Don’t let anyone – your attorney, your spouse, your parents – pressure you into accepting a plea offer that you don’t want. This is your life, and you get to make this call.

 

 

Thank you to our friends and contributors at Blanchard Law for their insight into trials and criminal defense.

What Constitutes Breach of Contract?

 

 

You finish a job contracted to you but you never receive a check. The customer did not follow through on his end of the contract, leaving you without payment for a job or service that you performed.

 

You hired someone to perform a job, their work is substandard, yet they demand payment. One of the most common court cases heard are that of breach of contract. There are many situations that can justifiably be referred to as breach of contract. It can happen when an employee fails to perform a required portion of his job. An employer may be in a breach of contract when he does something that is not permitted due to a contract he may have signed as a condition for his employment. If you entered into a contract and you believe that contract was not completed or have questions concerning the validity of the contract, a business contracts lawyer Folsom, CA relies on can assist you in determining the legitimacy of the document.  

 

Breach of contract is defined as a failure to perform a specified term in a contract without a lawful, justifiable reason. Small businesses are especially affected by a breach of contract suit as it costs them money and time to pursue or defend.

 

There are four basic scenarios that may constitute breach of contract.  They are:

 

  1. A fundamental breach allows the affected individual to void the contract and move forward to sue for damages. An example of a fundamental breach would the purchaser of a car receives the car in a totally different condition than was specified in the contract.   The purchaser can terminate the agreement because of non-performance by the seller.
  2. A material breach is one of the most serious beaches as it permits the injured individual or business to pursue damages in court. A contractor completes his job yet the client refuses to pay him.  
  3. An anticipatory breach states that one person believes a contract has been broken when it is evident that the other party will not be able to fulfill his end of the contract in the time specified in the contract.
  4. A minor breach is when a contract is completed, however the performance is less than expected.  

 

In any case, in order to create a legitimate court case, you must be able to confirm that:

 

  1. A contract did, indeed, exist;
  2. The contract was broken;
  3. Money was lost because of the broken contract;
  4. The person or business you are bringing the charge against was responsible.

 

Before deciding if you would like to pursue legal action for breach of contract, contact an attorney. They will examine the original contract and look for any restrictions or specifications to avoid inadvertently waiving any contract remedies.

 

At Yee Law Group, we’re here to help you with your business law and contracts needs.

Do I Need an Attorney for a Breach of Contract?

Finding that someone you entered into a business deal or contract with has broken the agreement can be a bit frustrating. For many, there can be a lot riding on a business deal. With a contract to back the agreement, it may be much easier to address the problem, enforce the contract and prove the existence of the contract should you need to take legal action. Being able to identify when a contract has been broken may be vital in ensuring that you take proper action. Depending on the severity of the situation at hand, you may require the help of an attorney when faced with a breach of contract.

 

Breach of Contract

A breach of contract may occur when one party does not uphold the terms that were originally put in place within the contract. There are a number of ways in which a breach may occur. Types of contract breaches may include:

 

  • Minor Breach: is when someone only partially fulfills their obligation or eventually upholds the terms of their contract.
  • Material Breach: this is when the obligated party provides materials that are completely different than the original contractual agreement outlined. In cases such as this, the party who suffered from a total breach may seek damages in court.
  • Anticipatory Breach: is when someone gives notice to the other party that they will not be able to fulfill their contractual obligations.
  • Actual Breach: is when someone does not uphold their end of the deal. They may not fulfill the contract at all or only partially fulfill their obligation.

 

Based on the type of breach that has been identified, you can make a determination regarding the best court of action to take. In some cases, you may find it helpful to consult with a contracts attorney.

 

If a Breach has Occurred

If you entered into a contractual agreement with a business partner who did not uphold their end of the deal, you will want to sort out the best course of action. A breach of contract can have a significant impact on a person’s business and overall livelihood. If you have identified that a breach has taken place, it may be helpful to take the following steps in order to remedy the situation:

 

  • Contact the person who is in breach of the contract to determine if there is a possible remedy to upholding their end of the deal.
  • With the help of your attorney, you may be able to enforce the contract they have broken.
  • You may be able to seek monetary damages from the other party for direct or indirect losses that resulted from the contractual breach.
  • In some contracts, those who are non compliant may be required to pay a specific amount of money to the party who is not in breach. This is often referred to as a liquidation breach.

 

There will be a lot riding on the line if you discover someone you are working with has not upheld their end of the deal. A business contracts lawyer Sacramento, CA trusts may be a vital element to helping reach a resolution in a timely manner.

 

You will not be able to force someone to uphold their end of the deal. However, you may be able to work with an attorney when it comes to taking action. They may be able to help enforce the contract and make attempts to salvage the deal you had originally agreed upon. If that is unable to work, or the other party is unresponsive, taking legal action may be a necessary next step.

Thank you to our friends and contributors at Yee Law Group for their insight into business law and contracts.

Consequences of a Trustee Committing Fraud

Being the beneficiary of a trust, you are not always kept abreast of all the day-to-day responsibilities of the trustee. You do just that — trust the trustee. The trustee is given the responsibility to handle the assets in the trust, usually without much supervision. What happens if the trustee commits improprieties or even fraud when handling the trust?

When a trust is formed, the intent of the grantor, or creator, is that the contents of the trust be taken care of and appropriated per their request. The intents of the grantor should be directly reflected by the terms of the trust. The priority of the trustee is to adhere to the terms of the trust for the benefit of the beneficiaries. The trustee’s interests are secondary to the beneficiaries interests.

The trustee is a guardian of the contents of  the trust. The contents of the trust will be dispersed to the beneficiaries upon the death or deaths of the holders of the trust.

Duties of the Trustee

  • The assets of the trust must not be commingled with the trustees own assets.
  • Keep accurate records showing payments and income activity within the trust.
  • Costs to administer the trust should be justifiable
  • Do not use Federal Tax returns to account for trust payments and income as the tax filing requirements differ from the recordkeeping requirements for the trust.
  • If legitimate records are not kept by the trustee, chances are the courts will decide against the trustee.

How a Trustee Can Fail

A trustee may be unable to manage the trust effectively for a number of reasons, including not performing the duties required to maintain the trust. They may not property account for distributions or assets. It may not be intentional, just ineffective and inefficient.

On the other hand, a trustee may also behave with their own best interests at heart. This can sometimes happen if the trustee is also a beneficiary.

In another situation, a trustee may withdraw funds from the trust for themselves. The trustee possibly is having financial difficulties and takes money from the trust with the intention of paying the fund back, but never does.

The absolute worst situation would be for the trustee to intentionally take money from the trust not intending to ever return it.

What Happens if you Suspect Fraud?

If you are a beneficiary and you suspect the trustee is committing fraud or mishandling the funds of the trust, first ask for the accounting records of the trust. The trustee is obligated to keep accurate records. If the trustee cannot provide this to you, or does not give a legal reason why they cannot do so, it is time to look to the courts for help.

Is there a statute of limitations If the fraud has been happening for years and is just now being discovered? Not necessarily, especially if the fraud was intentionally committed. In addition if there was not fraud but it can be shown that the trustee used the money for their own benefit, the court could mandate that the trustee return the money.

Legal Terms Used in Creating a Will

Having a will prepared is one of the best ‘adulting’ things you can do for your family. But you are not sure where to begin and haven’t a clue what all the legal jargon means. That should not deter you from the task. Selecting a qualified attorney who can explain all the details will allow you to make intelligent decisions on behalf of yourself and your family.

You can get a jump on the meeting with you attorney by browsing through the basic definitions of terms that will be used in the preparation of your will.

Beneficiary

A beneficiary is someone specified in any legal document such as a will, trust, insurance policy, bank accounts that will benefit (inherit) property or money upon the death of the owner of the document

Bequeath

Means ‘to give’. To bequeath someone is to leave property to something when someone dies.

Bequest

Giving an item as a gift (not real estate) at the time of death.

Bond

A type of policy that insures the inheritors in case there are issues with the admins or executors of the estate.

Custodian

If one of the inheritors are a minor, a custodian is named to handle the property, in accordance with the Uniform Transfers to Minors Act.

Devise

Real estate given at death. A Devisee is the person who inherits the real estate property by virtue of a will.

Executor

The individual selected to handle the affairs of the deceased person. This person is appointed after the will’s creator dies by the probate court.

Estate Tax/Gift Tax

The federal government and some states impose taxes on very large estates either while the individual is alive or after their death.

Grantor

The creator of a trust.

Heir

If there is not a will in place, this person inherits the property under laws specified in their particular state..

Inheritance Tax

There are only a few states where a tax is levied on individuals who inherit property. Even then, in most states, close family members do not have to pay this tax. The federal government does not charge an inheritance tax.

Real Property

Houses, land and anything attached permanently to the land

Revocable Trust

The owner or maker of this type of trust can make changes at any time during the individual’s lifetime.

Tangible Property

Things that can be physically touched – as opposed to ‘intangible’ items such as stock certificates.

Testator

The originator and singer of the will.

Trustee

An individual selected to have authority (legally) to oversee the trust’s assets.

Do not be intimidated by the legalese use by many attorneys. If you do not completely understand a term or concept, ask for further explanations. It is important that you comprehend all the legal implications of creating a will and what happens when it has be be executed. Your wishes need to be clearly conveyed so that when the time comes, your family is taken care of exactly as you have instructed. Having a properly prepared will can offer piece of mind and answer a lot of the ‘what ifs’ we often contemplate.

The Difference Between a Will & Trust

The majority of people have heard the terms “will” and “trust” being used in conversation. However, sometimes people do not realize there are actual differences between these two terms. Both are useful when creating a complete estate plan and can serve many purposes. In the article here, we have explained how these are not the same, and tips for writing your very own trust. At attorney can help you get started establishing a trust if you are unsure where to begin.

The Main Difference

The single factor that differentiates a trust from a will, is that a will comes into effect after you pass on, while a trust becomes effective as soon as it is created. Those who write a will are typically including who shall receive their property after passing, along with naming a representative to handle their wishes. On the other hand, when a trust is established it can be used to transfer property before the person passes away, at the time of passing or afterwards.

Which Avoids Probate

During probate, the court evaluates the validity of a will, and permits the executor to handle the estate based on the decedent’s preferences. A trust does not have to be overseen by the courts, which can save substantial amount of time and money. Probate can take a few months up to a year, or even longer. It is possible for a will to be tied up in court if there was an error in the probate paperwork, or a family member files a dispute. A trust also remains private, while a will can become part of public record due to being part of a court process.

Tips for Creating a Trust

Before writing a trust, there are a few tasks you should complete. As this is likely one of the most important pieces of documentation you will create in your lifetime, do ensure it reflects your true wishes. A brief list of tasks to perform when getting starting establish a trust can include:

  1. Making a list of all your assets, belongings & treasures
  2. Gathering paperwork regarding your assets (including titles, deeds, life insurance policies, stock certificates, etc.)
  3. Choosing beneficiaries to receive a part of your legacy
  4. Appointing a successor trustee (a person who will handle finances & distribute assets after you pass away)
  5. Appointing a guardian for minor children

How an Attorney Can Help

A wills lawyer St. Peters, Missouri residents trust can offer advice and guidance as you write your trust. Having the support of a legal professional can help you feel more at ease about this very important process. It may seem easy enough to create a document listing your desires, but many people find it is more challenging than they originally thought.

 

Thank you to our friends and contributors from Legacy Law Center for their insight into estate planning, wills, and trusts.