What is Divorce?

Divorce (also known as dissolution of marriage) is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. Divorce laws vary considerably around the world, but in most countries, divorce requires the sanction of a court or other authority in a legal process, which may involve issues of distribution of property, child custody, alimony (spousal support), child visitation / access, parenting time, child support, and division of debt. In most countries, monogamy is required by law, so divorce allows each former partner to marry another person.

Divorce is different from annulment, which declares the marriage null and void, with legal separation or de jure separation (a legal process by which a married couple may formalize a de facto separation while remaining legally married) or with de facto separation (a process where the spouses informally stop cohabiting). Reasons for divorce vary, from sexual incompatibility or lack of independence for one or both spouses to a personality clash to infidelity.

The only countries that do not allow divorce are the Philippines and the Vatican City. In the Philippines, divorce for non-Muslim Filipinos is not legal unless the husband or wife is an undocumented immigrant and satisfies certain conditions. The Vatican City is a state ruled by the head of the Catholic Church, a religion that does not allow for divorce. Countries that have relatively recently legalized divorce are Italy (1970), Portugal (1975, although from 1910 to 1940 it was possible both for the civil and religious marriage), Brazil (1977), Spain (1981), Argentina (1987), Paraguay (1991), Colombia (1991; from 1976 was allowed only for non-Catholics), Andorra (1995), Ireland (1996), Chile (2004) and Malta (2011).

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Divorce

BY THE PEOPLE can help with Uncontested Divorce or Legal Separation. For couples who can resolve their own asset and debt division and/or child issues, BY THE PEOPLE can prepare all of the necessary documents for you to obtain your divorce. We also do all of the filing and procedural work throughout the process.

Since we are a local company and file divorces every day, we can provide you with up to date information about filing fees and the local court systems. In California the minimum time period for a divorce is 6 months from the date of service.

1371-C Oliver Road

Fairfield, California 94534

By Phone: 707.428.9871

By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

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Living Trust and Wills - By the People

Living Trust or a will? Rene talks about some of the differences and what sets one apart from the other to help you make the best decision for your needs.

1371-C Oliver Road

Fairfield, California 94534

By Phone: 707.428.9871

By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

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Steps of Probate

If the decedent dies without a will, known as intestacy, with the exception of real properly located in another jurisdiction, the estate is distributed according to the laws of the jurisdiction where the decedent resided.

If the decedent died with a will, the will usually names an executor (personal representative), who carries out the instructions laid out in the will. The executor marshals the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an intestate estate is called an administrator. If the decedent died with a will, but only a copy of the will can be located, many states allow the copy to be probated, subject to the rebuttable presumption that the testator destroyed the will before death.

In some cases, where the person named as executor cannot administer the probate, or wishes to have someone else do so, another person is named administrator. An executor or an administrator may receive compensation for his service. Additionally, beneficiaries of an estate may be able to remove the appointed executor if he or she is not capable of properly fulfilling his or her duties.

The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator c.t.a. (from the Latin cum testamento annexo.) The generic term for executors or administrators is personal representative.

The probate court may require that the executor provide a fidelity bond, an insurance policy in favor of the estate to protect against possible abuse by the executor.

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1371-C Oliver Road

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By Phone: 707.428.9871

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Estates in the United States

Most estates in the United States include property that is subject to probate proceedings. If the property of an estate is not automatically devised to a surviving spouse or heir through principles of joint ownership or survivorship, or otherwise by operation of law, and was not transferred to a trust during the decedent's lifetime, it is generally necessary to "probate the estate", whether or not the decedent had a valid will. For example, life insurance and retirement accounts with properly completed beneficiary designations should avoid probate, as will most bank accounts titled jointly or made payable on death.

Some states have procedures that allow for the transfer of assets from small estates through affidavit or through a simplified probate process. For example, California has a "Small Estate Summary Procedure" to allow the summary transfer of a decedent's asset without a formal Probate proceeding. The dollar limit by which the Small Estate procedure can be effectuated is $150,000.

For estates that do not qualify for simplified proceedings, a court having jurisdiction of the decedent's estate (a probate court) supervises the probate process to ensure administration and disposition of the decedent's property is conducted in accord with the law of that jurisdiction, and in a manner consistent with decedent's intent as manifested in his will. Distribution of certain estate assets may require selling assets, including real estate.

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1371-C Oliver Road

Fairfield, California 94534

By Phone: 707.428.9871

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By Email: btpfairfield@sbcglobal.net

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What Is Probate?

Probate is simply the process for proving to the appropriate court that a document is the deceased's last will and testament and that the deceased knew what it was and signed it under his person, under his own free will, at a time he was mentally competent, and the document was properly witnessed, getting authority from the court to gather the assets, pay the deceased's obligations, and the distribute the assets to the beneficiaries named in the will.

1371-C Oliver Road

Fairfield, California 94534

By Phone: 707.428.9871

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By Email: btpfairfield@sbcglobal.net

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Probate

Probate is a process of improvement that proves a will of a deceased person is valid, so their property can in due course be retitled (US terminology) or transferred to beneficiaries of the will. As with any legal proceeding, there are technical aspects to probate administration:

• Creditors must be notified and legal notices published.
• Executors of the will must be guided in how and when to distribute assets and how to take creditors' rights into account.
• A petition to appoint a personal representative may need to be filed and letters of administration (often referred to as "letters testamentary") issued. A Grant of Letters of Administration can be used as proof that the 'Administrator' is entitled to handle the assets.
• Homestead property, which follows its own set of unique rules in states like Florida, must be dealt with separately from other assets. In many common law jurisdictions such as Canada, parts of the US, the UK, Australia and India, any jointly-owned property passes automatically to the surviving joint owner separately from any will, unless the equitable title is held as tenants in common.
• There are time factors involved in filing and objecting to claims against the estate.
• There may be a lawsuit pending over the decedent's death or there may have been pending suits that are now continuing. There may be separate procedures required in contentious probate cases.
• Real estate or other property may need to be sold to effect the correct distribution of assets pursuant to the will, or merely to pay debts.
• Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds.
• Costs of the administration including ordinary taxation such as income tax on interest and property taxation are deducted from assets in the estate before distribution by the executors of the will.
• Other assets may simply need to be transferred from the deceased to his or her beneficiaries, such as life insurance. Other assets may have pay on death or transfer on death designations, which avoids probate.
• The rights of beneficiaries must be respected, in terms of providing proper and adequate notice, making timely distribution of estate assets, and otherwise administering the estate properly and efficiently.

Local laws governing the probate process often depend on the value and complexity of the estate. If the value of the estate is relatively small, the probate process may be avoided. In some jurisdictions and/or at a certain threshold, probate must be applied for by the executor/administrator or a probate lawyer filing on their behalf.

A probate lawyer offers services in probate court, and may be retained to open an estate or offer service during the course of probate proceedings on behalf of the administrator or executor of the estate. Probate lawyers may also represent heirs, creditors and other parties who have a legal interest in the outcome of the estate.

In common law jurisdictions, probate ("official proving of a will") is obtained by executors of a will while letters of administration are granted where there are no executors.

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1371-C Oliver Road

Fairfield, California 94534

By Phone: 707.428.9871

By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

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Advance Healthcare Directive : United States

Aggressive medical intervention leaves nearly two million Americans confined to nursing homes, and over 1.4 million Americans remain so medically frail as to survive only through the use of feeding tubes. Of U.S. deaths, about a third occur in health care facilities. As many as 30,000 persons are kept alive in comatose and permanently vegetative states.

Cost burdens to individuals and families are considerable. A national study found that: "In 20% of cases, a family member had to quit work", 31% lost "all or most savings" (even though 96% had insurance), and "20% reported loss of [their] major source of income". Yet, studies indicate that 70-95% of people would rather refuse aggressive medical treatment than have their lives medically prolonged in incompetent or other poor prognosis states.

As more and more Americans experienced the burdens and diminishing benefits of invasive and aggressive medical treatment in poor prognosis states – either directly (themselves) or through a loved one – pressure began to mount to devise ways to avoid the suffering and costs associated with treatments one did not want in personally untenable situations. The first formal response was the living will.

In the United States, all states recognize some form of living wills or the designation of a health care proxy. The term living will is not officially recognized under California law, but an advance health care directive or durable power of attorney may be used for the same purpose as a living will.

In Pennsylvania on November 30, 2006, Governor Edward Rendell signed into law Act 169, that provides a comprehensive statutory framework governing advance health care directives and health care decision-making for incompetent patients. As a result, health care organizations make available a "Combined Living Will & Health Care Power of Attorney Example Form from Pennsylvania Act 169 of 2006."

Several states offer living will "registries" where citizens can file their living will so that they are more easily and readily accessible by doctors and other health care providers. However, in recent years some of these registries, such as the one run by the Washington State Department of Health, have been shuttered by the state government because of low enrollment, lack of funds, or both.

On July 28, 2009, Barack Obama became the first United States President to announce publicly that he had a living will, and to encourage others to do the same. He told an AARP town meeting, "So I actually think it's a good idea to have a living will. I'd encourage everybody to get one. I have one; Michelle has one. And we hope we don't have to use it for a long time, but I think it's something that is sensible." The announcement followed controversy surrounding proposed health care legislation that included language that would permit the payment of doctors under Medicare to counsel patients regarding living wills, sometimes referred to as the "infamous" page 425. Shortly afterwards, bioethicist Jacob Appel issued a call to make living wills mandatory.

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1371-C Oliver Road

Fairfield, California 94534

By Phone: 707.428.9871

By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Website

Over 100 Legal Document Services at By the People

Rene of By the People in Fairfield CA gives a short overview of their services and the number of legal documents they can help with.

1371-C Oliver Road

Fairfield, California 94534

By Phone: 707.428.9871

By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Website

Living Will

The living will is the oldest form of advance directive. It was first proposed by an Illinois attorney, Luis Kutner, in a speech to the Euthanasia Society of America in 1967 and published in a law journal in 1969. Kutner drew from existing estate law, by which an individual can control property affairs after death (i.e., when no longer available to speak for himself or herself) and devised a way for an individual to express their health care desires when no longer able to express current healthcare wishes. Because this form of "will" was to be used while an individual was still alive (but no longer able to make decisions) it was dubbed the "living will". In the U.S., The Patient Self-Determination Act (PSDA) went into effect in December 1991, and required healthcare providers (primarily hospitals, nursing homes and home health agencies) to give patients information about their rights to make advance directives under state law.

A living will usually provides specific directives about the course of treatment healthcare providers and caregivers are to follow. In some cases a living will may forbid the use of various kinds of burdensome medical treatment. It may also be used to express wishes about the use or foregoing of food and water, if supplied via tubes or other medical devices. The living will is used only if the individual has become unable to give informed consent or refusal due to incapacity. A living will can be very specific or very general. An example of a statement sometimes found in a living will is: "If I suffer an incurable, irreversible illness, disease, or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued."

More specific living wills may include information regarding an individual's desire for such services such as analgesia (pain relief), antibiotics, hydration, feeding, and the use of ventilators or cardiopulmonary resuscitation. However, studies have also shown that adults are more likely to complete these documents if they are written in everyday language and less focused on technical treatments.

However, by the late 1980s, public advocacy groups became aware that many people remained unaware of advance directives and even fewer actually completed them. In part, this was seen as a failure of health care providers and medical organizations to promote and support the use of these documents. The public's response was to press for further legislative support. The most recent result was the Patient Self-Determination Act of 1990, which attempted to address this awareness problem by requiring health care institutions to better promote and support the use of advance directives.

Living wills proved to be very popular, and by 2007, 41% of Americans had completed a living will. In response to public needs, state legislatures soon passed laws in support of living wills in virtually every state in the union.

However, as living wills began to be better recognized, key deficits were soon discovered. Most living wills tended to be limited in scope and often failed to fully address presenting problems and needs. Further, many individuals wrote out their wishes in ways that might conflict with quality medical practice. Ultimately, it was determined that a living will alone might be insufficient to address many important health care decisions. This led to the development of what some have called "second generation" advance directives – the "health care proxy appointment" or "medical power of attorney."

Living wills also reflect a moment in time, and may therefore need regular updating to ensure that the correct course of action can be chosen.

Read more, here.

1371-C Oliver Road

Fairfield, California 94534

By Phone: 707.428.9871

By Fax: 707.428.9873

By Email: btpfairfield@sbcglobal.net

Website