Thursday, June 30, 2011

Revocable Vs Irrevocable Living Trusts

Trusts come in many different shapes and forms. A living trust is one type of trusts. That's right, there are many different types of trusts. Living trusts are ones created during lifetime. They are also called "inter-vivos", a Latin term meaning "among or between the living"

The phrase "revocable trust" does not refer to any one specific arrangement. It involves a range of various trusts. Each of them can be used to accomplish different objectives.

Such trusts can be revoked. In other words, they can be amended or terminated altogether. The ownership of property contributed to revocable trusts changes on paper. But, you are still in full control. You can continue to manage and enjoy such property same as before.

Regardless of what you may see or hear elsewhere, revocable trusts do not affect your income, estate and gift taxes. Any tax planning provisions in your revocable trust can be implemented without a trust.

Don't waste your time and resources on a revocable trust if your only intent is to achieve the tax savings. This can frequently be achieved by means that are less expensive and time-consuming.

Property transferred to a living trust during lifetime avoids probate. This alone is a compelling reason to set one up. But, keep in mind that your assets can be kept from the probate process by other means.

Even if you are still alive, both you and your property could be subjected to a legal process in the probate court if you become incapacitated. Remember, even young people may become physically or mentally disabled. In such cases, living trusts can be used to keep your property away from the probate system. Other documents should be also utilized to protect your body and soul from the system.

The term "irrevocable trust" also does not involve just one specific trust. Rather, it refers to a wide spectrum of different trusts. Irrevocable trusts mean a loss of control. Once your property is transferred, you can't take it back. You cannot amend or terminate an irrevocable trust.

Now, is it not foolish to voluntarily give away your property? Well, it all boils down to what your individual situation and goals are. Many good things in life come at a price. Transferring your property to an irrevocable trust can bring significant benefits.

Tax savings is one of them. A properly designed and drafted irrevocable trust can reduce income, gift and estate taxes. Such trusts can also provide an additional layer of protection from creditors.

Both revocable and irrevocable trusts remove your property from probate. This legal procedure can devour a significant portion of your estate. The physical costs are not necessarily the end of it. The surviving family members can be at the mercy of probate judges and court-appointed attorneys in many respects.

In many situations, living trusts are the most effective and flexible tools used to hold the title to your property. They should always be given a serious consideration in your estate plan.

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Tuesday, June 28, 2011

LLC Incorporation Myths

Business owners often struggle with whether or not they should form a limited liability company for a new entrepreneurial venture. And that maybe makes sense. Deciding to form a limited liability corporation requires thoughtful analysis.

Unfortunately, people often complicate the analysis of LLC incorporation because they believe several "urban myths" about the limited liability company. The good news in all this--at least from your perspective--is that you'll make your own entrepreneurial decision-making easier and more profitable by recognizing and then ignoring these myths. But let me explain...

Limited Liability Company Protection Weaker than a Regular Corporation

Commonly, you hear knowledge-able business people--sometimes even attorneys and accountants--suggest that a limited liability company provides its owners with weaker protection than a corporation. Often the person unhelpfully offering this bit of mythology pairs the advice with the statement, "Well, you know, the thing is, LLCs just haven't been as tested in litigation."

This myth is dead wrong--and for two big reasons. First, if you talk with attorneys knowledgeable in LLC law, you'll learn that a limited liability company offers better protection than a regular corporation because by design an LLC requires less legal maintenance in the form of meetings, minutes, boards and officers. Less required maintenance means in layman's terms that the LLC owner is less likely to "break" the legal protection.

The weaker legal protection myth misleads business people in a second way, too. In many states, an LLC provides protection that regular corporations do not. How? In many states, your personal creditors may in a worst-case scenario be able to gain ownership of your stock in a corporation but not of your interest in an LLC.

In other words, many times, the LLC doesn't just provide you, the owner, from bad stuff that happens inside the LLC. The limited liability company also self-protects business assets from bad stuff that happens to the LLC owners.

Limited Liability Company an Alternative to S Corporation

Another limited liability company myth concerns the "LLC versus S corporation" question.

People often assume (incorrectly) that one option you need to consider as an alternative to a limited liability company is the S corporation. After all, sure, LLCs may be great. But S corporations (so the rumors say) offer small businesses the opportunity to minimize payroll taxes that the owners pay.

But here's where this myth loses touch with solid ground reality. An S corporation is not a real corporation. An S corporation is a tax accounting classification that the Internal Revenue Service and almost all state revenue agencies allow corporations and LLCs to make.

In other words, a business owner never has to choose between an LLC and an S corporation. A business owner can choose to have his or her LLC treated for tax accounting purposes as an S corporation.

Note: If an LLC doesn't make an election to be treated as an S corporation, the IRS uses default rules to determine how the LLC is taxed. Typically, the one-owner business operating as an LLC gets taxed as a sole proprietorship. And a business with more than one owner that is operating as a limited liability company gets taxed as a partnership.

Limited Liability Company the 'Fly-by-night' Option

One last, almost laughable, LLC myth needs busting: the notion that the LLC option is the one that 'fly-by-night' operators use.

One can guess where this notion comes from: All the big, old business entities like General Electric, 3M, and IBM operate as regular corporations. And so it sort of seems like new small businesses should, too.

But here's the problem: The corporation is not state-of-the-art legal technology. The corporation is, really, an old technology. You should think about a corporation as being like a steamship a skyscaper.

The limited liability company option, in comparison, is like a personal computer or the Internet. In a sense, the LLC amounts to a new legal technology with big benefits as compared to the old technology of the traditional corporation. Which is probably why newer big companies like Microsoft, and many of the cellular phone companies make extensive use of the LLC.

Note: Big benefit number one is the fact that the LLC requires less legal maintenance. Benefit number two comes from the fact that limited liability companies select the tax accounting treatment they want.

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Monday, June 27, 2011

How To Change Your Name

The decision to change your name may be for a number of valid reasons. Some people don't like the sound of their name, it may be too difficult for others to pronounce, or maybe you want a fresh start with a new identity for the heck of it. The courts are willing to grant a name change to any individual for any reason they specify, as long as the name change is not being used for fraud or criminal purposes.

The first step to change your name is to fill out a name change request at the county courthouse. There is a moderate filing fee attached and the short form document will ask you to list your current full name, any names you have used in the past, and what your new name will be.

Once the name change application is filled out, you will hand it in to the county clerk and the legal officials will do a background check for felonies or outstanding warrants for an arrest. If the application is free of any criminal wrong doing, the name change applicant will be issued a court date to stand before a judge.

The name change applicant will be require to buy a newspaper advertising block of four to six consecutive weeks declaring that so and so will now be known as this new name. The newspaper ads need not be in your living area, so try to get the best publication rates from a newspaper in a small town.

The judicial proceedings for a name change are fast as lightning, with the magistrate asking you to declare under oath in court that the new name is what you wish to be known as. In addition, the judge may ask you to certify that you do not intend to use the new name for fraudulent purposes. He or she may ask you your purpose for changing your name, however, your answer is simply a matter of responding to the judge's request, and he or she will make no comment or judgment as to why you wish to change your name. The court reporter takes down the transcripts, and at the bang of the gavel, you have a legally recognized new name.

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By The People can help with the paperwork to legally change your name. We are a Document Preparation Service located in Fairfield, California available to help you represent yourself in many uncontested legal matters.

Sunday, June 26, 2011

Why Does Probate Take So Long?

Probate is the legal process that validates a will, if there is one, and administers the estate of a deceased. You often hear about the length and expense of probate, and some aspects of estate planning are aimed at avoiding probate. But why does probate take months, even years, to complete?

There are several steps that are taken during the probate process, and they involve various tasks that are handled by the estate's Executor, also known as the Personal Representative. These tasks can be time consuming and detail-oriented, they include:

• Obtaining a federal tax identification number for the estate;

• Opening a bank account so bills can be paid;

• Identifying the deceased's creditors, locating them and notifying them of the death;

• Identifying heirs and beneficiaries, locating them and notifying them of the death;

• Identifying and inventorying the property that was owned by the deceased;

• Filing a final tax return for the estate and paying any estate taxes that may be owed;
• Paying off creditors;

• Distributing property to heirs according to the state law if there was no will or beneficiaries that are named within a will;

• Completing a final accounting of the estate for Probate Court;

• Closing the estate by submitting a sworn statement to the court.

At any point along the way, the estate can hit a snag. For instance, if there is not enough cash on hand to pay creditors, property may need to be sold to satisfy creditor's claims.

Obviously, this is a detail-oriented, lengthy process, which takes place during the grieving process. Many families choose to hire a probate attorney to assist them in this process. Having a comprehensive estate plan in place can not only avoid certain types of property entering probate, but it can help make the process less burdensome on your loved ones.

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Thursday, June 23, 2011

Can I Get Full Child Custody In Uncontested Divorce?

Divorce is hard as it is; which is why many couples who are getting divorced choose to go the uncontested route because it is easier, simpler and less painful in many cases. An uncontested divorce means that both parties reach an agreement as to a divorce settlement involving division of assets and property, child custody, child support, spousal support, etc. without the assistance of the court. The minute that one of the parties objects to a certain issue or the couple is unable to reach an agreement, the divorce becomes contested and is no longer uncontested.

If the couple has children, an officer of the court may still be involved to help determine child custody and child support issues. This is where a lot of divorces become contested, as both parties are hoping for full custody of their children. When this happens, both parties should speak with their attorney and the court at this point may get involved in determining custody and support. Still, if there are no objections to one parent receiving full custody, the divorce may stay uncontested, so to answer the question posed in the title, yes it is possible.

Parents should be aware that full custody often refers to full physical custody, meaning that the child will live with them permanently. However, the non-custodial parent is often still granted visitation rights on weekends, holidays, etc. Physical custody may also be joint in which both parents share physical custody of the child. Even if one parent has full physical custody, joint legal custody is often granted. Legal custody refers to who is making decisions regarding the child's health, education, religion, etc. Many divorces end in full physical custody and joint legal custody, but it varies from one case to the next.

Uncontested divorce is a great way to avoid animosity that often arises when the couple is fighting over certain issues. When children are involved, animosity in the divorce may be very stressful on them, especially when they are being tugged in two directions. This is why some couples choose to keep the courts out of it as much as possible and reach an agreement on their own. This may not only help reduce the stress on the child, but may also help reduce the stress on the couple getting divorced. The uncontested divorce may also be less expensive than a contested divorce, adding to its appeal.

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Wednesday, June 22, 2011

When Is The Best Time For An Uncontested Divorce?

When a marriage fails, there a few different options for the couple. Some options include marriage counseling, legal separation, contested divorces or uncontested divorces. When going through a divorce, today's most popular way is an uncontested divorce. Uncontested divorces can bypass many expensive legal avenues while making the process quicker.

No matter how you look into a divorce, it's going to be expensive. Uncontested divorces allow the separating couple to save more money and time. Whatever the reasoning behind a divorce, it is not easy for anyone associated with either party. Having a contested divorce, will only make things more difficult on you and your pocketbook in the long run.

For obvious reasons, both parties of a divorce have disagreed on certain issues and will continue to do so in the future. If both parties understand that it won't work out, but can still rationally work out agreements, an uncontested divorce would work out best. If major issues can be solved during mediation and not have conflicts, it can save you thousands of dollars in the long run. Everyone knows that divorce will bring heartache to both sides, but choosing an uncontested divorce will make the process more understandable.

If however, there are issues where both parties are too far apart in a fair agreement, then a contested divorce may be more likely. Many issues that are become combative are child custody, child support, alimony, asset division, liability division and other financial obligations. Many couples fight over these items in a divorce due to the high financial or sentimental value that carries with them. Depending upon your location and laws, sometimes an uncontested divorce isn't even an option when children are involved.

Many divorce records are now made available to the public. If you choose to take the uncontested divorce route, subject matters will not be made public unless both parties decide upon it. However, if a contested divorce is your only option, all matters regarding a divorce a disagreements between spouses become public record. This privacy issue may not work with all couples going through a divorce. If both parties can't come to an agreement, then contested divorces must be implemented. Not only do uncontested divorces save everyone time and money, it may also keep your matters more private. Everyone has secrets, but no one needs to know about them.

By choosing an uncontested divorce will save you a lot of time and hassle through the legal system. If you cannot agree with your soon to be spouse, then a contested divorce may be more to your requirements. Usually both parties are in fumed with regret and remorse during the early part of a divorce. However, if both parties can think rationally and see eye to eye for a short amount of time to work out a few problems, with the help and mediation of divorce attorneys, then everyone will be able to save money.

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Sunday, June 19, 2011

What Kind Of Deed Do I Want To Receive When Buying Or Selling A Property?

What kind of Deed do I want to receive when buying property?

What kind of deed do I want to give when selling property?

A deed is a legal document which conveys ownership to real property. To transfer ownership of the real property to another, the owner/Grantor must execute a new deed identifying the property and the Grantee/buyer of the property. To be valid between the Grantor and the Grantee, the deed is not required to be recorded. To be valid against the world, and to protect the Grantee, a deed must be recorded in the records of the County where the property is located. Hence, you should always record the deed. One condition of a valid transfer often ignored is that the deed must actually be delivered to the Grantee to be a valid conveyance. There are many different types of deeds all of which convey different legal rights. Some of the more common are:

Warranty Deed

A Warranty Deed is a deed that transfers all of the Grantor's rights in the property to a Grantee. In granting a Warranty Deed the Grantor is warranting that they have good title free and clear of all encumbrances. The warranty also requires the Grantor to defend the Grantee against all claims made by third parties claiming an interest in the property. A Warranty Deed is the most common deed used in the purchase and sale of real property between unrelated parties. If you are buying real estate, you should insist on receiving a Warranty Deed.

Limited Warranty Deed

A Limited Warranty deed is deed that only warrants the title for the limited time in which the seller owned the property. In other words, a Limited Warranty Deed is a deed in which the property transferred is warranted to be free of all liens and encumbrances made by or through the Grantor, but not otherwise. In some states, a Limited Warranty Deed is referred to as a Special Warranty Deed. The warranty provided with a Limited Warranty Deed is much more limited in scope than the warranty provided in a Warranty Deed. Therefore, if you are selling property you should try to only provide a Limited Warranty Deed to limit your potential liability.

Quitclaim Deed

A Quitclaim Deed is a deed that transfers to a Grantee whatever claim or interest in the property that may be held by the Grantor. The Grantor of the deed makes no warranties regarding the quality of their interest in the property or even if they have any interest at all. Specifically, in a Quit Claim deed, no warranty is provided regarding liens, encumbrances or other claims against the property. A Quitclaim Deed is most often used in gift transactions, transfers to as spouse, or transfers to an entity owned by the Grantor. But they are also very common as part of a divorce settlement. Often a Quitclaim Deed is referred to by the misnomer "Quickclaim deed".

Types of interests within a deed:

Tenants in Common

To own property as Tenants in Common means that multiple owners have concurrent ownership with no right of survivorship. The individual tenant in common owner can transfer their interest in the property by deed or by Will. Each Tenant in Common is entitled to possession of the whole estate. If the deed conveying property to multiple owners does not state otherwise, the owners are presumed to own the property as Tenants in Common.

Joint Tenants with Rights of Survivorship

To own property as Joint Tenants means that multiple owners have concurrent ownership with the right of survivorship. Right of Survivorship means that when one of the joint tenants die, the decedent's interest in the property is gone. The survivors retain an undivided interest in the property free from the deceased party's former interest. A joint tenant cannot transfer his or her interest in the property by Will.

Example: Alan, Bob, and Carl own an investment property as joint tenants, each owning a 1/3 interest in the property. Subsequently Carl dies. In Carl's Will he purported to give his interest in the investment property to his wife Donna. However, at Carl's death, Alan and Bob each immediately own an undivided ½ interest in the investment property. Even though Carl may have thought he was leaving his interest in the property to his wife, Donna has no interest in the property because the property was held with rights of survivorship.

Tenants in the Entirety

This is an estate in land created in a Husband and Wife. It is similar to joint tenants because it has the right of survivorship. The distinction is that a tenancy by the entirety can only be terminated by death, divorce, mutual agreement, or execution by a joint creditor. Unlike a joint tenancy, a tenancy by the entirety is not destroyed by one party unilaterally conveying his or her interest to a third party. This method of owning property is rarely used anymore.

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Monday, June 13, 2011

Durable Power Of Attorney

What is durable power of attorney?

At By The People of Fairfield CA, we can help make the process of the legal paperwork of creating a durable power of attorney as easy and inexpensive as possible. Call Rene or Tammy at 707-428-9871 and they will answer any questions you may have about this important decision and process.