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Monday, December 21, 2015

Five Common Reasons a Will Might Be Invalid

There are several reasons that a will may prove invalid. It is important for testators to be aware of these pitfalls in order to avoid them.

Improper Execution

The requirements vary from state to state, but most states require a valid will to be witnessed by two people not named in the will. Some jurisdictions require the document to be notarized as well. Although these restrictions may be relaxed if the will is holographic (handwritten), it is best to satisfy these requirements to ensure that the testamentary document will be honored by the probate court.

Lack of Testamentary Capacity

Anyone over the age of 18 is presumed to understand what a will is. At the end of life, individuals are often not in the best state of mind. If court finds that an individual is suffering from dementia, is under the influence of drugs or alcohol, or is incapable of understanding the document being executed for some other reason, the court may invalidate the will on the grounds that the individual does  not have testamentary capacity.

Replacement by a Later Will

Whenever an individual writes a new will, it invalidates all wills made previously. This means that a will might be believed to be valid for months until a more recently executed document surfaces. The newest will always takes precedence, controlling how assets should be distributed.

Lack of Required Content

Every will is required to contain certain provisions to carry out its purpose. These provisions, ensure that the testator understands the reason for executing the document.  Although these provisions vary from state to  state, some are common to all jurisdictions. It should be clear that the document is intended to be a will. The document  should demonstrate an individual’s wishes in regard to what should happen to his or her property after death. A proper will should also include a provision to appoint an executor to act as an agent for the estate and enforce the terms of the will. If the document  lacks any of these provisions, the will may be declared invalid. 

Undue influence or fraud

A will that was executed under undue influence, coercion or fraud will be invalidated by a court. If a will has been presented to a testator for a signature as if it were any other document, like a power of attorney or a business contract, the court will find that the will was fraudulently obtained and will not honor it. If an individual providing end of life care with exclusive access to the testator threatens to stop care unless a will is modified, that modification is considered to be the result of undue influence and the court will not accept it.


Monday, December 7, 2015

Own a Business With a Spouse? What Happens After a Divorce?

Given that this situation encompasses various areas of law, you should consult both a matrimonial and a business law attorney. Depending upon the type of business the division between you and your soon-to-be ex-wife may be straightforward. However, more than likely, it may take significant work to be able to divide the business. If you and your wife intend to continue to own and/or operate the business together, you could simply divide the ownership between the two of you.

Otherwise, the two of you have to continue to work together until the business is actually sold or dissolved. If the business is such that it has two distinct areas you could spin off one of those into a separate entity that can be owned by one of you.  If the business owns real estate, perhaps some of the real estate could be transferred into a new entity to be owned by one of you with the other of you retaining the ownership of the original entity. If the business is such that it is almost impossible to divide, then perhaps one of you becomes the sole owner of the business and has to pay the other over some period of time for the value of one half of that business. Instead of paying the other of you perhaps an outside loan from a bank or other lending institution could be obtained to provide the funding for the purchase price.

A final option may be that the business has to be sold to an outside third party and the proceeds would be divided between you and your wife in accordance with any agreement between the two of you that have been approved by the divorce court or pursuant to an order.


Monday, November 30, 2015

From Filing to Completion: The Anatomy of a Chapter 7 Bankruptcy

The process of filing a bankruptcy petition can be confusing for a layperson to understand.  There are time limits and deadlines to keep in mind and all filings must be made in accordance with court rules. 

Before any filing occurs, the Courts require a petitioner to complete a Court approved credit counseling course.  The course is easy to complete and is often available online or over the telephone.  The cost is about $25.00.  The certificate of completion must be attached to every Bankruptcy Petition filed.

To file a claim it is helpful to have an attorney.  Attorneys are familiar with the paperwork and terminology involved and can help a Petitioner understand his or her rights.  An attorney will file the petition electronically, and the Automatic Stay, which prohibits collection efforts on a debt that is in Bankruptcy, will go into effect.

At this point, a number will be assigned to the case along with a Bankruptcy Trustee.  The Trustee’s job is to administer the case and to look for and liquidate any unprotected property in order to pay back creditors.

Within two weeks of filing, the trustee will formally request financial documents from the petitioner including pay stubs, bank statements, tax returns, and more.  The request will come through the mail and it is important to respond to the request quickly.

Ten days after the Bankruptcy Petition is filed, a Master List must be filed with the court including the names and addresses of all creditors included in the Bankruptcy.  Within days, another filing, called Statements and Schedules, must be submitted to the Court.  An error in either of these filings could compromise the Bankruptcy.

About a month and a half after the Bankruptcy filing, the Trustee will hold a meeting of creditors for which the Petitioner’s attendance is mandatory.  The meeting gives the Trustee and creditors an opportunity to ask questions about the documents filed with the Court.  If there are errors in the filed papers, they may be corrected at the meeting.  The meeting should not take more than 15 minutes, but can take a significant amount of time to begin.  At this point a Petitioner must take a second credit-counseling course.

If any creditors have a legal argument to prevent a debt included in the bankruptcy from being discharged, that creditor must file a lawsuit within 14 weeks of the filing.  If no objections are filed, the Court will usually issue a discharge within 4 to 6 months of the initial filing.


Monday, November 16, 2015

Avoiding Common Mistakes in Estate Planning

Estate planning is designed to fulfill the wishes of a person after his or her death. Problems can easily arise, however, if the estate plan contains unanswered questions that can no longer be resolved after the person's demise. This can, and frequently does, lead to costly litigation counter-productive to the goals of the estate. It is important that will be written in language that is clear and that the document has been well proofread because something as simple as a misplaced comma can significantly alter its meaning.

Planning for every possible contingency is a significant part of estate planning. Tragic scenarios in which an estate planner’s loved ones predecease him or her, though uncomfortable, must be considered during the preparation of a will to avoid otherwise unforeseen conflicts. 

Even trained professionals can make significant mistakes if they are not well versed in estate planning. An attorney who practices general law, while perfectly capable of preparing simple wills, may not understand the intricacies of trusts and guardianships. A great many attorneys, not aware of the tax consequences of bequests involving IRAs, may leave heirs with unnecessary financial obligations. If an attorney is not knowledgeable enough to ask the proper questions, he or she will be unable to prepare an estate plan that functions efficiently and ensures the proper distribution of the estate's assets.

In spite of the wealth of an individual, the estate may be cash deficient if that wealth is tied up in assets at the time of the individual's death. Problems can also result if an estate planner has distributed assets into joint bank accounts or accounts with pay on death provisions. If the executor of the estate does not have access to funds to pay the estate's bills or taxes, the heirs of the estate may run into trouble.

Even if estate planning is handled well from a logistical point of view, lack of communication with loved ones can interfere with a will's desired execution. A tragedy that incapacitates the testator can occur suddenly, so it is imperative that a savvy estate planner confers with loved ones as soon as possible, making them aware of any future obligations, such as life insurance premiums that must be paid and informing them of the location of any probate documents and inventories of assets. Such conversations ensure that the individual's wishes will be carried out without complications or delay in the event of an unexpected incapacity.

In addition to communicating logistical information, it is also essential to schedule a personal conversation with loved ones that makes clear any sentimental bequests or large gifts that require explanation. This avoids the shock or discomfort that may arise after one's death during which a well-thought-out decision is questioned as impulsive or irrational. Such direct communication of one's plans avoids unnecessary envy, arguments or rivalry among family and friends.

Consulting with attorneys who specialize in estate planning is the cornerstone of creating a plan to ensure that one's desires are carried out and that all the bases are covered. Estate planning attorneys serve as invaluable repositories of all information necessary to strategizing a plan that not only meets one's personal needs and desires, but is legally binding.


Monday, November 2, 2015

How do I become a citizen if I have a green card?

The most common path to citizenship for immigrants is to obtain a permanent resident green card.  The receipt of a green card, however, does not guarantee that citizenship will follow.  Before an individual who possesses a green card can become a citizen, a number of criteria must be met. Individuals desirous of U.S. citizenship should be aware that when their green cards have been obtained through marriage to U.S. citizens, these criteria are slightly different.

Criteria for Application for Citizenship

In order to be eligible to apply for citizenship, an individual must meet the following criteria:

  • Be at least 18 years old;
  • Be in possession of a green card for at least 5 years, or 3 years if a spouse of a citizen;
  • Live in the same state for 3 months preceding application;
  • Maintain residence in the U.S. continually for the 5 years preceding application;
  • Be physically present in the U.S. for at least half of the 5 years preceding application; and
  • Remain in the U.S. while the application is processed.

Once these criteria have been met, United States Citizenship and Immigration Services (USCIS) will qualify the applicant to take the naturalization test. The test comes in two parts: English and civics (history and government). The English test may be waived if the applicant is over 50 years of age and has lived as a permanent resident in the U.S. for 20 years (the "50/20" exception) or is over 55 years of age and has lived as a permanent resident in the U.S. for 15 years (the "55/15" exemption).

The law also requires that an applicant for citizenship be of good moral character, show "attachment to the principles of the Constitution," and be "well-disposed to the good order and happiness of the United States." Having met all these qualifications successfully, the applicant is permitted to make an oath of allegiance to the United States and become a naturalized citizen.  


Monday, October 26, 2015

Deferred Action for Childhood Arrivals

For many people who were brought to this country as children, the United States is the only home they know but they are not citizens. Immigrants in this situation who meet certain eligibility requirements can apply for Deferred Action for Childhood Arrivals (DACA). This program began in 2012 and was expanded in 2014 when President Obama took executive actions on immigration.

Deferred action is not amnesty or immunity; it is a type of prosecutorial discretion that the government may choose to revoke at any time. It does not provide lawful immigration status or a path to a green card or citizenship. It does not extend to any family members of the person granted deferred action.

Despite these limitations, DACA is often an appealing option because individuals who receive deferred action are not considered unlawfully present for admissibility purposes. In addition, immigrants granted deferred action may be able to get an Employment Authorization Document (EAD) and are sometimes eligible for other government benefits such as drivers licenses or reduced tuition.

Individuals seeking DACA can be any age but must have entered the United States before the age of 16 and lived here continuously since January 1, 2010. Applicants for DACA must be physically present in the United States and have no lawful status. Anyone convicted of a felony, significant misdemeanor or three or more other misdemeanors, or who poses a threat to national security or public safety is not eligible for DACA. Applicants must currently be in school, have graduated (or obtained a GED) or be an honorably discharged veteran.

It is possible to collect the needed documents and fill out an application for DACA without the assistance of an attorney; however, you only get one chance to apply. If the government decides not to grant DACA in your case, you cannot appeal the decision or file a motion to reopen or reconsider. Furthermore, an incomplete application can delay the government’s decision, cost you unnecessary fees or even lead to removal proceedings (deportation). Therefore, it is in your best interests to hire an experienced attorney to assist you with your DACA application.


Monday, October 19, 2015

What should I do if my ex is filing bankruptcy?

Often times, in a divorce settlement, one party will agree to take responsibility for a particular debt that was incurred in both of the spouses names.  If that party subsequently declares bankruptcy, it can result in a confusing situation.

A divorce decree regulates the relationship between two parties who were formerly married.  The divorce agreement has no control over a third party creditor to whom a debt is owed unless they participated in the negotiations.  If a joint debt is made the responsibility of one party, and that party defaults, whether through bankruptcy or by simply failing to make payments, the other spouse may be held liable for the full amount of the debt and interest, even if the divorce decree says he or she should not be held responsible.  Besides the value of the debt, this will affect the innocent spouse’s credit.

If a person finds out that his or her former spouse is attempting to discharge a debt through bankruptcy, that was designated as his or her responsibility via a divorce decree, the innocent spouse can address the issue in a number of ways.  Defaulting on the loan is a violation of the divorce agreement and grounds to bring the defaulting party back to family court to explain why the default occurred.  The family court has broad discretion to resolve the issue and may modify the divorce decree in order to make sure the debt gets paid without great injustice to either party.  The court may allow the innocent spouse to take on the debt, provided that the defaulting party makes regular payments to compensate him or her.  Unfortunately, even if the court finds in favor of the innocent party, there is no guarantee that the defaulting party will make payments as required by the Court.

The issue may also be resolved in bankruptcy court.  If the second spouse also files for bankruptcy protection, the loan in question may be discharged from his or her credit as well.  This method will affect the second spouse’s credit but might be worth looking into depending upon the size of the debt in question.  The spouse may also petition the bankruptcy court to prevent the debt from being discharged if the bankruptcy proceedings are still pending.


Monday, October 12, 2015

Glossary of Estate Planning Terms

Will - a written document specifying a person’s wishes concerning his or her property distribution upon his or her death.

In order to be enforced by a court of law, a will must be signed in accordance with the applicable wills act.

Testator/Testatrix - the person who signs the will.

Heirs - beneficiaries of an estate.

Executor/Executrix - the individual given authority by the testator to make decisions to put the testator’s written directions into effect.

Once the will is entered into probate, the executor’s signature is equivalent to the testator’s. The executor has a legal duty to the heirs of the estate to act in the best interest of the estate, and may collect a fee for performing such service.

Administrator/Administratrix - the person who assumes the role of the executor when a person dies without a will (intestate).

The Administrator must apply with the local probate office and may be required to provide a bond to be held in escrow as collateral for control over the assets of the estate.

Codicil - an amendment to a will.

In order to be valid, a codicil must comply with all the requirements of the applicable wills act.

Holographic Will- a handwritten will. 

Holographic wills are often exempt from requirements of the applicable wills act.

Bequest - a gift given by the testator to his or her heirs through a will.

Residual Estate - the balance of a testator’s belongings after debts have been paid and specific bequests have been distributed. 

Intestate - not having signed a will before one dies; a person who dies without having signed a will.

Life Estate - a bequest that gives an heir the right to have exclusive use of a property for the remainder of his or her life, but without the power to transfer such property upon the death of that heir.

The property will transfer to the heirs of the residual estate after the death of the beneficiary of the life estate.

Per stirpes - a Latin phrase precisely translated as “by the branch” meaning that, if an heir named in the will dies before the testator, that heir’s share will be divided equally among that beneficiary’s own heirs.

 An alternative to per capita, described below.

Per capita - a Latin phrase precisely translated as “by the head” meaning that, if an heir named in the will dies before the testator, that heir’s share will be divided among the testator’s remaining heirs.

 An alternative to per stirpes, described above.

While it is a good idea to have a basic understanding of fundamental estate planning vocabulary, this cannot serve as a substitute for the services of an experienced attorney.


Monday, September 28, 2015

Driving Privileges for Undocumented Immigrants

For undocumented immigrants, one of the biggest obstacles to living a mainstream life in the United States is the inability to obtain a driver’s license. This is troublesome for a number of reasons. In most parts of the country, it is nearly impossible to travel any distance without driving since public transportation is often unreliable and time-consuming. Other alternatives, such as walking and biking are only viable in good weather and for relatively short distances. Relying on others for transportation is not only undependable but requires a degree of indebtedness many travelers want to avoid.

A study by Temple University shows that laws preventing undocumented immigrants from holding a driver's licenses interferes with basic human rights. Without the ability to drive themselves to interviews or employment, most potential jobs are hopelessly out of reach. Moreover, children’s education is often compromised, and it becomes difficult to deal with medical emergencies. Inability to travel by car negatively impacts economic mobility, safety, and self-worth, and exacerbates the ever-present fear of deportation.

Immigrants who drive are, in some locations, pulled over more frequently than other drivers due of ethnic profiling, and are often forced to pay heavy fines. Not only do the fines have a negative economic impact on those already struggling financially, but such drivers, if found guilty, may have their licenses suspended indefinitely. This creates far-reaching problems for these individuals if and when they do obtain green cards and apply for driver's licenses. Repeat offenses can result in jail time which will adversely affect any attempt to obtain documentation through the legal process.

On the plus side, a valid driver’s license issued in the driver’s home country can be used legally in the United States. Some states require an International Driver’s Permit, a multi-language document. This permit should be issued by the applicant’s home country. Scam artists who sell false permits in the United States, however, are all too common. Immigrants need to be cautioned to be aware of such costly and dangerous swindles. 

Once the driver's license from a driver’s home country expires, the individual is expected to either apply for a driver’s license in his or her state of residence or stop driving altogether. Currently, only 11 states and Washington DC allow undocumented immigrants to apply for a license.  These states are California, Washington, Nevada, Utah, Colorado, New Mexico, Illinois, Maryland, Delaware, Connecticut, and Vermont. Each of these states has its own rules and regulations for individuals obtaining licenses without a social security number. Local attorneys are in the best position to provide guidance about current regulations and should always be consulted for up-to-date helpful advice. 


Monday, September 21, 2015

What happens to a debt after it is discharged bankruptcy?

After a debt is discharged, it is eliminated completely. The debtor is no longer legally required to make payments on the debt. The discharge is a court order that requires that all collection efforts on the debt cease. This is an extension of the automatic stay issued at the beginning of the bankruptcy. The creditor will likely write off this loss in tax filings, so some monies will be saved in this regard.  If the creditor attempts to collect on a debt in bankruptcy, or after it has already been discharged, the court may issue sanctions against the creditor. This is enforced whether the creditor attempts collection by letter, phone call or lawsuit. Not every debt is discharged in a chapter 7 bankruptcy, so it is important to confirm which debts are eligible before asking the court for assistance.

A discharge is typically issued automatically by the bankruptcy court four months after a bankruptcy petition is filed unless a timely objection is filed by a creditor. Once issued, a discharge can only be revoked if a creditor appeals to the bankruptcy court alleging that the petitioner obtained the discharge through fraud or that the petitioner failed to disclose pertinent information to the court, committed one of several acts of impropriety listed in the bankruptcy code or failed to provide adequate explanation of a misstatement in an audit of the case. 

There is nothing in the law preventing a debtor from making payments on a debt that has been discharged, even though there is no legal obligation to do so. If a discharged debt was owed to a friend or family member, however, there is no prohibition on repaying that debt. There are 19 categories of debt that must be paid even after a chapter 7 bankruptcy, including debts secured by collateral, such as homes or cars, most student loans, some tax debts and child support arrears. Individuals should speak to an attorney before declaring bankruptcy to determine if any debts are non-dischargeable in their individual cases.  


Monday, September 7, 2015

Would transferring your home to your children help avoid estate taxes?

Before transferring your home to your children, there are several issues that should be considered. Some are tax-related issues and some are none-tax issues that can have grave consequences on your livelihood. 

The first thing to keep in mind is that the current federal estate tax exemption is currently over $5 million and thus it is likely that you may not have an estate tax issue anyway. If you are married you and your spouse can double that exemption to over $10 million. So, make sure the federal estate tax is truly an issue for you before proceeding.

Second, if you gift the home to your kids now they will legally be the owners. If they get sued or divorced, a creditor or an ex- in-law may end up with an interest in the house and could evict you. Also, if a child dies before you, that child’s interest may pass to his or her spouse or child who may want the house sold so they can simply get their money.

Third, if you give the kids the house now, their income tax basis will be the same as yours is (the value at which you purchased it) and thus when the house is later sold they may have to pay a significant capital gains tax on the difference. On the other hand if you pass it to them at death their basis gets stepped-up to the value of the home at your death, which will reduce or eliminate the capital gains tax the children will pay.

Fourth, if you gift the house now you likely will lose some property tax exemptions such as the homestead exemption because that exemption is normally only available for owner-occupied homes.

Fifth, you will still have to report the gift on a gift tax return and the value of the home will reduce your estate tax exemption available at death, though any future appreciation will be removed from your taxable estate. 

Finally, there may be more efficient ways to do this through the use of a special qualified personal residence trust.  Given the multitude of tax and practical issues involved, it would be best to seek the advice of an estate planning attorney before making any transfers of your property.


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