Trust in The Legal Doc to Prepare Your Estate Planning Documents

Estate Planning is not a priority on anyone's list.  It should be.  The Legal Doc provides the information below to better acquaint you with estate planning as to trusts.

A trust is not probated by the court as a will requires.  Also, in that regard, your information remains private and is not a matter of public record.  You remain in charge of your assets, not the court.   If you die, and leave behind minor children, a trust can be used to avoid court intervention.  Beneficiaries do not have to wait through a long court process to inherit assets and a trust is not easy to contest should anyone find fault with the administration or direction of the trust. 

 Many people, as they age, believe they should just add their children to their real property deeds as joint tenants.  This form of transfer is replete with disadvantages and if this is the vehicle you wish to transfer property upon death, then it is The Legal Doc’s recommendation that you first consult with a licensed attorney.

Here are some of the more common types of trusts:

A Revocable Trust is the most common trust.  It allows the trustee to remain in control of assets and the trust provisions.  A Revocable Trust also avoids probate and is the “Manual” upon incapacity or death. 

An Irrevocable Trust is less common, but you do not act as your own trustee and all changes or amendments must be approved by the beneficiaries. 

Special Needs Trusts are commonly used to provide income and principal for the care of mentally challenged individuals or for those who reside in a hospital facility. 

Setting up a trust can be an expensive headache and can be complex.  The Legal Doc makes it simple to avoid probate of your estate, care and/or distribute to your beneficiaries, and protect your assets in the form of a trust. 

The Legal Doc simplifies the process via use of a questionnaire and the estate package you receive is the same as the law firms sell.

Our package includes:

Trust, Medical Information Disclosure Authorization, Schedule of Assets, Statement of Wishes (optional), Pour-Over Will, Living Will, Durable General Power of Attorney, Advance Health Care Directive, Durable Power of Attorney for Health Care, Asset Transfer Information Guidelines, and optional asset transfer documents including Assignment of Certificate of Deposit, Bank Letter, Bill of Sale to Trust (General), Bill of Sale to Trust (Personal Property), Grant Deed, Preliminary Change of Ownership Report, Insurance, Securities Transfer Stocks/Bonds/Other.

The Legal Doc’s rates are affordable.  At present, we offer trust packages for couples at $350; single person $250.  Let us help you achieve peace of mind by bringing your “house” in order.

What is a Probate and Where Do I Start?

Filing and managing a probate case can be a long and arduous task.  Or, it can be simple.  The difference lies in the circumstances. 

Immediately after the death, a thorough search should be made to locate any “end of life” documents, as well as insurance policies, annuities, outstanding bills, deeds, and other associated documents. 

A search of records might be lacking and a deceased might pass away without a will, or “intestate.”  When this occurs, the court determines who will receive an inheritance by the laws of consanguinity (or succession).  This means that estate will be divided among the next of kin in accordance with the law.

In order to probate an estate, the personal representative (or executor) will have to select the proper form of probate. 

For instance, the personal representative might be able to use a simplified version of probate, or no probate at all.   

Sometimes a deceased’s real property passes directly to the beneficiaries without a court proceeding because of how the property is owned.  If real property was owned in joint tenancy, if it was community property with the right of survivorship, if it was a bank account owned by several people, or a bank account that is transferred to someone when the owner dies, then, in general, when the owner of the property dies, the property goes to the survivor. Keep in mind that even in these cases, the survivor may have to take legal steps to prove his or her ownership of the property.

Sometimes, assets (primarily financial) pass to beneficiaries because the deceased expressed a desire to leave those assets to a named beneficiary (commonly known as “pay on death beneficiary”). Examples of this are life insurance that pays benefits to someone else other than the deceased’s estate, retirement benefits, death benefits, and trusts.

If the total value of the estate is less than $150,000, If you have the legal right to inherit personal property, like money in a bank account or stocks, and the estate is worth $150,000 or less, you may NOT have to go to court. There is a simplified process you can use to transfer the property to your name. The value of the property is based on what it was worth on the date of death —not on what the property is worth now.

First, figure out if the value of the property (the estate) is worth $150,000 or less. To value the estate you should include:

All real and personal property.

All life insurance or retirement benefits that will be paid to the estate (but not any insurance or retirement benefits designated to be paid to some other person).

You do not have to include:

Cars, boats or mobile homes.

Real property outside of California.

Property held in trust, including a living trust.

Real or personal property that the person who died owned with someone else (joint tenancy).

Property (community, quasi-community, or separate) that passed directly to the surviving spouse or domestic partner.

Life insurance, death benefits or other assets not subject to probate that pass directly to the beneficiaries.

Unpaid salary or other compensation up to $5,000 owed to the person who died.

The debts or mortgages of the person who died. (You are not allowed to subtract the debts of the person who died.)

Bank accounts that are owned by multiple persons, including the person who died.

If the total value of these assets is $150,000 or less and 40 days have passed since the death, you can transfer personal property by writing a declaration of facts.

If the deceased left $150,000 or less in real property, including some personal property, you may be able to use a simplified probate action instead of the formal probate which is briefly described below.

If there is no will and you are the surviving spouse or domestic partner you may also be qualified to use a simpler probate action by filing a Spousal or Domestic Partner Property Petition to obtain an order from the judge that sets forth what your share of the jointly owned or community property is and what part of the deceased’s separate and community property share goes to the surviving spouse or domestic partner.  If the surviving spouse/partner is legally entitled to all of the property, this may be the type of probate action the spouse/partner may use.

A formal probate is more complicated and requires that deadlines be met and that certain tasks be accomplished to the satisfaction of the court.

After a probate case is filed a hearing date is scheduled.  At the hearing, the judge will determine whether an Order for Probate and Letters should issue.  

Notice of the hearing must be provided to beneficiaries and surviving family members even if there is a will and they are not named in it.

The personal representative must also arrange for notice to be published in a newspaper of general circulation prior to the hearing.  Publication must be completed by the time of hearing. 

Creditors must be formally noticed and provided an opportunity to make claims against the estate. 

The personal representative then handles all the business of the estate, including selling and dividing the assets of the estate between beneficiaries or family members depending on whether there is a will or not, and what the court orders say.

The personal representative reports to the court on how the estate was handled This report is a final plan and an accounting so the judge can be satisfied that everything has been properly taken care of.

Whichever type of probate is needed, The Legal Doc can help you line up tasks and complete court filings in a timely and appropriate fashion.  Our rates are affordable and we provide you with step-by-step instructions so you are knowledgeable as to the processes.

Do you need to file for a conservatorship?

The Legal Doc has prepared and processed conservatorship and guardianship filings for many years.  Below we have provided information concerning Conservatorships.  There we have provided information concerning various types of conservatorships depending on the conservatee’s needs. 

Probate conservatorships are the most common type of conservatorship. Probate conservatorships can be:

• General Conservatorships — conservatorships of adults who cannot take care of themselves or their finances. 

• Limited Conservatorships — conservatorships of adults with developmental disabilities who cannot fully care for themselves or their finances. Conservatees in limited conservatorships do not require a higher level of care than conservatees in general conservatorships may require. 

• A conservator of the person cares for and protects a person. The conservator is responsible for making sure that the conservatee has proper food, clothing, shelter, and health care. Depending on the conservatee’s ability to understand and make decisions, the conservator may need to make important medical decision for the conservatee.

• A conservator of the estate handles the conservatee’s financial matters — like paying bills and collecting a person’s income. 

When a conservatorship is needed right away, the court may appoint a temporary conservator until a general conservator can be appointed. The main duties of a temporary conservator are arranging for the temporary care, protection, and support of the conservatee, and protecting the conservatee’s finances and property.

Lanterman-Petris conservatorships are used to care for adults with serious mental health illnesses who suffer disabilities and require special care. These conservatorships are used for people who usually need very restrictive living arrangements (for instance, they live in a facility) and require extensive mental health treatment. Conservatees in LPS conservatorships cannot or will not agree to the special living arrangements or treatment on their own.  The most common filings under this act are those associated with minors who are unable to make their own decisions and who are turning 18.  A conservator is appointed in these cases, to make personal, medical, and educational decisions for an adult child.

The probate court can appoint a conservator of the person, a conservator of the estate, or both, depending on the needs of the conservatee.

The duties of a conservator of the person are to: 

• Arrange for the conservatee’s care and protection.
• Decide where the conservatee will live.
• Make arrangements for the conservatee’s: 

• Meals,
• Health care,
• Clothing,
• Personal care,
• Housekeeping,
• Transportation,
• Shelter,
• Recreation, and
• Well-being.
• Report to the court on the conservatee’s current status.

The duties of a conservator of the estate are to: 

• Manage the conservatee’s finances.
• Locate and take control of all assets.
• Collect the conservatee’s income.
• Make a budget to show what the conservatee can afford.
• Pay the conservatee’s bills.
• Responsibly invest the conservatee’s money.
• Protect the conservatee’s assets.
• Account to the court and to the conservatee for the management of the conservatee’s assets.

 There are a number of people who can file for a conservatorship:In appointing a conservator, the court is seeks the best interests of the conservatee. If the proposed conservatee has nominated someone (and the proposed conservatee has the mental and physical ability to express his or her preference), the court will appoint that person as conservator unless it is notT in the proposed conservatee’s best interests.

If the proposed conservatee has not or cannot nominate anyone, then the following people may request to serve as the person nominating a conservator:

The order of preference is:  Spouse or domestic partner, Adult child, Parent, Sibling, Any other person the law says is okay, Public Guardian.

If the person closest to the top of the list does not want to be conservator, he or she can nominate someone else.  If you believe you must file for a conservatorship, you should take steps to be certain that establishing a conservatorship is the only way to meet the person’s needs. If there is an alternative to the conservatorship, the court may not grant your petition.

You may not need a conservatorship if the person who needs help:

1.   Can cooperate with a plan to meet his or her basic needs.

2.   Has the capacity and willingness to sign a power of attorney naming someone to help with his or her finances or health-care decisions.

3.   Has only social security or welfare income every month and the Social Security Administration can appoint you Representative Payee. The Representative Payee is the person the beneficiary allows to receive social security checks in his or her name on behalf of the beneficiary.

4.   Is married or is in a domestic partnership and the spouse or partner can handle financial transactions. The property must be community property or in joint accounts.

There are other documents which may serve as alternatives to conservatorships.

For Medical and Personal Care Decisions:

• Advance health care directive
• Court authorization for medical treatment
• Informal personal care arrangements
• Restraining orders to protect against harassment

• Power of attorney
• A substitute payee for public benefits (like veterans’ benefits or social security benefits)
• Informal arrangements
• Joint title on bank accounts or other property
• Living trusts 

Setting up a conservatorship is a long and complex process. The Legal Doc has years of experience preparing and processing documents for conservatorships and guardianships.

  

Cost Cutting Unbundling

Attorneys can charge $350 or more an hour for their time and let me tell you – they do and they charge clients in fractions of a minute.  Attorneys also charge for paralegal hours at various rates, pretty much starting out at $125/hr., again in fractions of minutes.  The legal billing machine is primed to turn over those hours and hit the bank before close of business for the day.

The State of California allows court users to determine for themselves which tasks they wish to pay a law firm to accomplish.  Court users can appear at court, do their own legal research, prepare, and process their own paperwork, or alternatively, retain the flat fee services of a legal document assistant to prepare and process court documents on their behalf.

A legal document assistant can court coach a client, provide published procedural, rules of court, and “how-to” information, prepare documents, and provide many other non-attorney legal services.  A legal document preparer cannot provide legal advice directly related to a client’s case or situation, review paperwork, and customarily does not appear at hearings or other court scheduled matters.

With Unbundling, a court user can use the services of an attorney for consultations, answer, and explain legal questions, review paperwork, appear at hearings or other court matters, stand-by at court if needed, and perform valuable legal coaching.

 “Unbundling” or Limited Scope Representation is not new, although it is rarely publicized.  Attorneys are slow to the gate and LSR is a relatively new concept (if you go by attorney years).   And, let’s be honest, an attorney prefers a $15,000 retainer fee rather than a small retainer to cover a few hours of legal assistance.

Limited Scope Representation (“Unbundling”) is an alternative that helps people keep legal costs down while taking ownership of their own cases and their finances.

Uncontested Dissolution of Marriage (Divorce): An Overview

Save a bundle on legal fees if your divorce is uncontested!

What does "uncontested" mean?
A dissolution of marriage (divorce) is uncontested if both spouses agree on the division of assets and debts, child custody arrangements and payment of child or spousal support. Most divorce cases are resolved in this manner, where the terms of property division, support and custody are addressed in a written Marital Settlement Agreement (MSA), and no trial is necessary. If your case is contested, please contact an attorney or certified family law mediator to ensure your rights are protected.

There are many advantages:

• Save a bundle on legal fees


• Quick, efficient court processes, requiring minimal, if any, court appearances (often no court appearance is necessary)


• The MSA becomes part of your judgment; you essential get to write your own court orders


• You maintain control of your entire case

Types of Uncontested Divorces

Uncontested Dissolution of Marriage
This is the typical uncontested divorce case. One spouse, the "Petitioner" files the Petition; the other spouse, the "Respondent" files a Response, or an Appearance, Stipulations, and Waivers form. Both spouses must pay a court filing fee (unless a fee waiver is granted due to financial hardship). Both spouses must exchange financial disclosures with each other, and both parties must sign the Marital Settlement Agreement. All required documents can be completed very quickly, so you get your judgment back as soon as possible.

Default Case with Written Agreement
This type of divorce is similar to the Uncontested Dissolution of Marriage, above. However, in this type of uncontested divorce case, the Respondent does not file any response with the court (thereby saving the Respondent's filing fee, which varies by jurisdiction but is typically around $400). A Default may take a bit longer than the above type of case, because the Petitioner must wait until at least 30 days after the Respondent is served with the Petition before filing the Default paperwork and submitting the final judgment packet and MSA to the court. Even though the Respondent makes no appearance, he or she still must exchange financial information with the Petitioner, and must sign the Marital Settlement Agreement.

True Default Case
In a true default case, the Respondent files no documents, makes no appearance in court, and does not sign a Marital Settlement Agreement. The Petitioner must prove to the court that the Petition and financial disclosures were served on the other spouse, and must file several other forms with the court. A hearing may be necessary with this type of divorce; but you can still proceed with the dissolution of your marriage, even if your spouse is totally non-responsive.

Factors Common to All Uncontested Divorce Cases

• The earliest you can be legally deemed an "unmarried" person is six months plus one day from the date the Petition was served on the Respondent


• If your documents are processed and the court judgment entered before that date, you may proceed with dividing assets, changing your name, and enforcing other provisions in your MSA; however, your marital status will not change from "married" to "unmarried" until the expiration of six months plus one day, or another later date as determined by both spouses or the court

Don’t be Fooled by Solicitations from Companies that Will “File” Your Annual Corporate Minutes (for a fee, of course)

After receiving a suspicious-looking solicitation on “official” letterhead bearing a Sacramento address, clients often ask:

“I got a form in the mail entitled “Disclosure Statement: Department of Annual Business Minutes (DOBM)” or “Annual Disclosure Statement” (or something similar), from a Sacramento address. It says I must fill it out and return it with a check for $125. Is this a scam? Do I need to do anything with my minutes on a yearly basis?”

Generally speaking, these are scams. I, myself, receive these solicitations several times a year. There are many companies out there that get an address somewhere in Sacramento (sometimes it’s just a mailbox store), and send envelopes with logos that somewhat resemble the official seal of the State of California, or they may look like they are from the Secretary of State’s office or the Department of Corporations. They generally tell you of some ill that will befall you and your business of you do not immediately sign the form and send it back with anywhere from $115 to $150 for annual minutes. You may receive such a solicitation within a few of weeks of filing your Articles of Incorporation.

Articles of Incorporation are public records, and these companies simply purchase lists of newly formed corporations. With so many small businesses incorporating every day, it’s like shooting fish in a barrel for them, and unfortunately their scare tactics work on a lot of people.

Here’s the real deal: Your corporation must have an annual meeting of the shareholders and an annual meeting of the directors. Meeting requirements are set forth in the Corporations Code and also in your corporation’s bylaws. These “meetings” do not have to be at a fancy conference location, and if your board of directors consists of just one person, you won’t exactly be “meeting” with yourself. But the meetings do have to be documented with minutes in your corporate record book. The bylaws further specify the requirements for the date and time of both the annual meeting of shareholders and the annual meeting of directors. In small corporations, these are usually handled as “paper meetings,” that is, minutes are generated documenting major decisions made that affect the corporation, but there is no actual “meeting” where folks sit down and conduct a discussion, etc. Failure to maintain an up to date corporate binder with all of the documents required in the Corporations Code and your bylaws (including minutes of these annual meetings) could potentially cause you to lose your corporate liability protection, and you may also be required to produce such documentation in the event you are ever audited by the tax authorities.

You can find an attorney or legal document assistant to prepare the necessary documents. However, these are all things you can do yourself, too. There are some easy-to-understand self-help books out there, like Nolo’s book on corporate resolutions. The Secretary of State will mail you a blank SOI form you can fill out and send back. But if you don’t want to hassle with it, we’re here to help.

Above all else, please understand that any solicitation you receive is likely a scam. Minutes do not get filed with the Secretary of State’s office; the only thing filed with the Secretary is the annual Statement of Information. Odds are, you will receive these bulk-mailed solicitations at various times of the year, often when you are nowhere near the annual meeting date established in your bylaws. Whatever services they are trying to sell you most likely won’t include the SOI, may not include the necessary notice waivers, and may not include the minutes of both meetings (shareholders and directors) as required in your bylaws.

Bottom line…buyer beware!

What is a Lis Pendens, and How Can I Record One if I am Not Represented by an Attorney?

A “notice of pendency of action,” also known as a “lis pendens” (Latin for “a suit pending”), is a written notice that a lawsuit has been filed that may affect either the title to, possession of, or a claimed ownership interest in real property. The notice is usually filed in the county Recorder’s office. Recording the notice alerts a potential purchaser or lender that the property’s title is in question, which can make the property less attractive to a buyer or lender.

For the purposes of this article, all code sections refer to the California Code of Civil Procedure, unless otherwise indicated.

The Underlying Action
A notice of pendency of action is available in actions involving “real property claims,” which are defined in California Code of Civil Procedure § 405.04 as “the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.”

In addition, some types of cases require that a notice of pendency of action be filed:

• At the time of filing a complaint in an action to reestablish lost land records. (§ 751.13.)


• Immediately upon commencement of a quiet title action. (§ 761.010(b).)


• Within 10 days after filing the complaint in an action concerning real property titles affected by public improvement assessments (§ 801.5.)


• Immediately upon filing a complaint for partition of real property; if, thereafter, partition of other real property is sought in the same action, a supplemental notice is also required. (§ 872.250.)


• At the time of the commencement of an eminent domain proceeding. (§ 1250.150.)


• To give constructive notice of the pendency of an action involving a claim against the state for escheated property (§ 1355.)


• In an actions involving the accession to real property, by the improver of such property, who acted in good faith, against the owner and encumbrances of record. (Civil Code § 1013.5(b).)


• With the clerk of the probate court in an action to enforce a claim rejected by an executor or administrator of a decedent’s estate (Probate Code § 9354.)


• Within 10 days of bringing an action by a purchaser to determine adverse claims to or clouds upon the title to tax deeded property (Revenue and Taxation Code § 3956.)


• With the city or county treasurer in an action for recovery on an improvement bond (Streets and Highways Code § 6619.)

Recording Requirements
Unless otherwise specified, the notice must be recorded in the office of the Recorder of each county in which all or part of the property is situated. The notice must contain the names of all parties to the action and a description of the property affected by the action.

An attorney of record in an action may sign a notice of pendency of action. Alternatively, a judge of the court in which an action that includes a real property claim is pending may, on request of a party, approve a notice of pendency of action.

A notice of pendency of action may not be recorded unless: (a) it has been signed by the attorney of record, (b) it is signed by a party acting in propria persona and approved by a judge as provided in this section, or (c) the action is subject to § 405.6 (eminent domain).
Except in eminent domain actions under § 405.6, the claimant shall, prior to recording the notice, cause a copy to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll.

Immediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending. Service shall also be made immediately and in the same manner upon any adverse party later joined in the action.

Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the above requirements are met for that party or owner and a proof of service in the form and content specified in § 1013a has been recorded with the notice of pendency of action.

Undertaking
Generally, at any time after a notice of pendency of action has been recorded, the court may, upon motion by any person with an interest in the property, require the claimant to give the moving party an undertaking as a condition of maintaining the notice in the record title.

However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the person moves to require an undertaking.

The court may permit evidence to be received in the form of oral testimony and may make any orders it deems just to provide for discovery by any affected party.

An undertaking required pursuant to this section shall be of such nature and in such amount as the court may determine to be just. In its order requiring an undertaking, the court shall set a return date for the claimant to show compliance and if the claimant fails to show compliance on the return date, the court shall order the notice of pendency of action expunged without further notice or hearing.

Expunging a Notice of Pendency of Action
At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property, may apply to the court to expunge the notice.

However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice.

Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under §§ 405.31 and 405.32.

The court must order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim, or the claimant has not established the probable validity of the real property claim (e.g. it is more likely than not that the claimant will obtain a judgment against the defendant).

The court may not order an undertaking to be given as a condition of expunging the notice where the court finds the pleading does not contain a real property claim, or finds that the claimant has not established the probable validity of the claim.

In expungement proceedings, the court shall order that the notice be expunged if the court finds that the real property claim has probable validity, but adequate relief can be secured to the claimant by the giving of an undertaking.

The expungement order must be conditioned on the giving of the undertaking of a nature and in an amount as will indemnify the claimant for all damages proximately resulting from the expungement that the claimant may incur if the claimant prevails on the real property claim.

In an expungement proceeding, the court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney's fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney's fees and costs unjust.

Withdrawing the Notice of Pendency of Action
At any time after notice of pendency of an action has been recorded, the notice may be withdrawn by recording, in the office of the Recorder in which the notice of pendency was recorded, a notice of withdrawal executed by the party who recorded the notice or by the party’s successor in interest. This notice of withdrawal must be acknowledged.