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Bakersfield Law Blog

Understanding how trusts can help when incapacitated

Drafting estate planning documents is an important part of having the proper plans in place for the future, especially in the event of becoming incapacitated. Many people harbor a fear of what will happen to them and their assets without the protection of certain types of trusts. A living trust is useful in such a circumstance. Knowing its intricacies is integral to deciding if it is the right alternative. A person who is his or her own trustee should have a successor trustee in the event of incapacitation. If there is no living trust, another person would have to manage the assets.

How the assets are allocated would determine who manages the assets. If the assets were separate or community property and if there was a durable power of attorney will be essential to this process. A person who is married will have the assets that were acquired during the marriage viewed as community property. However, property that was owned before the marriage or items that were a gift or inheritance will be separate property. Community property can be managed by the spouse if he or she is deemed competent. A person who is not married or has separate property would be managed by an attorney-in-fact with a durable power of attorney. Failure to plan for this potential eventuality will leave the assets in the hands of the probate court, otherwise known as a conservatorship.

What responses might a tenant give to an unlawful detainer?

Landlords in Bakersfield and throughout California are often painted as the villain when they are well within their rights to remove a tenant from a property. This is an ingrained notion within society that the landlord who seeks an eviction is simply greedy and wants to treat a vulnerable tenant unfairly. This is not the case. The reality is that a landlord has numerous justifications to remove a tenant from a property. What is key to one of these cases is when there is an unlawful detainer filing and the tenant issues a response.

When the tenant has been issued the unlawful detainer, there will be a limit of five days to give a response. A legal document must be filed within those five days and it must be in the Clerk of Court where the unlawful detainer was filed by the landlord. If the fifth day happens to fall on a holiday or a weekend, then the following Monday or workday will be sufficient.

Vigilant planning could help avoid estate issues

Though you undoubtedly know that having some sort of estate plan benefits you more than having no plan at all, you may also want to ensure that the decisions made relating to your plan work best for your circumstances. Exploring the various documents, tools and other helpful aspects of planning can allow you to understand the different choices you could make to tailor your plan to your specific needs and desires. Of course, you may also want to understand potential mistakes that could impact your plan.

Some planning mistakes could have only minor impacts while others could cause considerable upset among your surviving family. Therefore, remaining vigilant about creating and updating your plans could prevent such problems.

Can an estate avoid probate court?

With a California estate plan, there are often questions as to whether it is necessary to go to probate court or if the case can be settled using simplified procedures. This is true when during the estate planning process and after the testator has died. As with most legal issues, this depends on the situation. There are certain factors that will determine the need to head to court. The amount of money that is in the estate, what kind of property there is, and the person or persons who are claiming the property will all factor in.

It is possible that the way the property is owned will be the deciding factor in the need or absence of need to go to probate court. The type of title ownership is important. The decedent's property might go straight to the beneficiaries based on the way it is owned. If there was a joint tenancy, was community property with a right of survivorship, if there was a bank account that several people had ownership of, or if there was a transferring of a back account to another when the owner died, then the survivor will receive the property. There are legal steps to take when a person is taking over a property in this manner.

Estate planning and living trusts

A frequent estate plan question centers around the difference between wills and trusts. Understanding what a living trust is can help to determine whether this is a document of value to an individual or not.

The living trust can be used in place of a will. The assets of the person who takes out the trust -- properties, bank accounts, etc. -- will be placed in the trust and administered to that person's benefit while he or she is alive. When the person dies, these assets will transfer to the beneficiaries of the trust. Most people will name themselves as the trustee to manage its assets. This is useful to maintain control. There is also the alternative of naming a successor trustee. This can be an individual or an institution who will oversee the assets if the person cannot or does not want to oversee it themselves.

Understanding eviction and bankruptcy

Some might think that filing for bankruptcy is a method to protect themselves from being evicted. In some instances, this is the case. However, it is not always so. When there is an eviction threat from the property owner, a tenant who is considering bankruptcy must be aware of the consequences for such an action.

In 2005, the bankruptcy laws were changed to reduce the incidence of fraud and abuse. If a tenant filed for bankruptcy after October 17, 2005 - the date in which the new laws went into effect - he or she will get an automatic stay of an eviction, also known as unlawful detainer. Once there is an automatic stay through the bankruptcy filing, the landlord cannot serve a three-day notice or file to evict. The landlord has the right to file a petition with the bankruptcy court to move forward with the eviction. This is known as relief from the automatic stay.

Experienced attorneys for help with real estate and construction

In Bakersfield and throughout California, there seems to be an endless number of construction projects that are being planned, are in their initial stages, are beginning to look like more than an exoskeleton of steel, wood or concrete, or are close to being completed. With that, there is no doubt that permits were acquired for real estate land use, contracts were formulated, and the construction project was planned from long before it got underway. So too were there attorneys who helped the contractor and the developer to prepare for the long road ahead.

Construction and real estate is not a simple matter of buying the property for personal or business use and starting to build. There are a great many factors that must be taken into account and, if they are missed, will stick out like the failure to dot an "I" or cross a "T" on the written page. Only with a construction project, it is not a simple matter of correcting the mistake with the slash of a pen or pencil. Real estate and construction mistakes can cost money and time.

You need a contingency plan for your future health care

It is not easy to think about what kind of health care you would want if you are ever incapacitated, but it is a worthwhile effort to make these plans. Failure to have such plans in place could result in others making important, life-altering decisions on your behalf.

Through a living will and a health care power of attorney, you can control what happens to you in case you are unable to express your wishes due to physical or mental incapacitation. You will find it both beneficial and practical to include these documents as part of your estate plan.

Understanding legal responsibilities of landlords in California

There are basic laws that landlords and tenants in Bakersfield and throughout California must adhere to. If there is a violation of any kind by either the landlord or the tenant, it can result in a problem and escalate to a lawsuit. Knowing the responsibilities of both based on the lease is the key to adhering to these requirements and settling any issue that arises between the parties.

The landlord is responsible for the following: making certain that the outside doors, walls and windows are sufficient to protect tenants against weather and water; having plumbing and gas that works as it is supposed to; that there is hot and cold water, the fixtures are appropriate, there is a sewage system that is up to code, and there is no contamination in the water; there must be a working heater; there should be sufficient lighting and wiring that are up to safety requirements; the property and its common areas must be clean and devoid of pests; there are sufficient garbage receptacles; and the railings, floors and stairways are in good shape and not broken.

How do I protect heirs from the inheritance tax?

California residents must be particularly cognizant of certain rules that are integral to a well-crafted estate plan. Part of that is knowing about the tax implications and certain exemptions that are available for those whose estates go beyond a set amount. The current estate-tax - also referred to as the inheritance tax or the "death" tax - is $5.49 million for an individual and just below $11 million for a couple. Receiving an amount beneath these figures protects the recipient from the inheritance tax. Even with that, those who are formulating an estate plan should determine if they should use the exempt amount for the heirs or if a trust is preferable.

California does not have a state inheritance tax, but there are other issues that must be kept in mind. A time-tested manner to pass assets to relatives and other heirs is to have a credit-shelter trust. Alternatively known as a bypass trust, this is a protective device against federal estate taxes with a subtraction of gifts made to the spouse while the testator was alive. There is also a relatively new option known as portability. This lets people transfer wealth to a surviving spouse without using a trust. There are limitations with this strategy.