Probate Process - What Is Probate? The Steps to Administering an Estate

Most people have heard the word probate before, but they might be wondering 'what is probate?' The probate process can refer to several things. The probate court determines whether or not a will is valid. If an executor is not named in the will, the court will assign an executor to perform those duties. However, the entire process of administering the estate of the deceased according to the will's instructions can also be referred to as probate. Many people think that an executor simply reads the will and hands out the bequests to the heirs. There is so much more involved in the duties of an executor during probate.

The actual court probate process is only a part of the responsibilities of the will's executor. The first duty is to file a petition to start probate in each of the states where the deceased owned property. Because each state has slightly varying probate laws, the answer to the 'what is probate?' question will change a little depending on a specific state's legal code. However, there are some common events between states when it comes to processing wills and other estate administration. Before the executor of the will can even be formally appointed or approved, a petition has to be filed, a notice of petition must be published with a certain amount of lead time (usually at least 15 days), the legal documents must be given to the judge for approval, and the concerned parties (such as beneficiaries) must be notified.

Following these notifications, the court hearing will formally begin the probate process and approve the named executor of the will. After the court hearing, the executor needs to inventory all of the deceased's assets. This information has to be filed with the probate court. Next, all creditor's claims are addressed and paid off. The IRS also has to be paid. It is the executor's responsibility to file all taxes, including income, estate, and others, by their respective deadlines. The timelines are not adjusted due to the death of the taxee. What is probate? It's probably a lot more than most people realize.

Once all debts and taxes are paid, the executor of the will files a petition for the judge's approval of the distribution of assets to the beneficiaries. The concerned parties are notified, and there is a court hearing where the judge approves the distribution of assets. Finally in the probate process, the executor transfers those assets to the beneficiaries. These steps are the main answer to the 'what is probate?' question.


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Defining Legal Terms - By The People Fairfield CA

Rene goes over what types of questions they can help answer at By The People.  A lega document preparation company.  See more at www.bythepeopleca.com

What to Consider When Creating Your Will

As the old saying goes, there are only two things that are certain in this life: death and taxes. While most people plan and think about their taxes on a regular basis, wills are not usually something that people like to plan. Perhaps the reason is that in order to prepare a will, a person must face his own mortality.

Creating a will can be a very complex process or not depending upon various factors. Basically, a will ensures that the wishes of the deceased are carried out after his or her death. This includes distributing the assets owned by the deceased. Wills are not just for the wealthy. In fact, anyone can create a will.

In addition to making a plan for distributing assets, a will also specifies an executor. The executor of the will is responsible to ensure that the assets are distributed as stated. In order to do this, the executor may enlist the services of a lawyer or other individual to ensure that everything is done properly.

Sometimes, parents with young children create wills in order to specify who will take care of their children should they die. These types of wills appoint a guardian of the children. The will may also specify if assets should be sold and used to pay for the children's expenses or education.

Wills may also include instructions about other assets including real estate, bonds, stocks, retirement funds, and even life insurance policies. A will may also provide for the care of any animals that may outlive the deceased. In some cases, a person may even specify that a specific charity or organization receive a portion of their assets.

In some cases, family can become very angry and upset over how the deceased wished to divide up assets. Becuase of this, it is important to make sure that a will is carefully and correctly drawn up. Any errors in the document can create huge problems further down the road. In order to fix the errors, it may be necessary for the heirs to go to court to make sure that things are done correctly. Of course, this will take time and money.

This is also true if a person died intestate, or without a will. In that case, the court will appoint an administrator to help with the process of distributing the assets.

The first step of the process is for the executor to file a petition with the local court. Outstanding debts will be paid and the assets will be totaled. The court will decide that the will is authentic and correct. At this point, the court may agree to divide up the assets to heirs.

Taxation laws vary depending upon a variety of factors. In some cases, estates may be taxed while in others, they may not be. For example, assets that have been left to a charity organization are usually not taxed. This is also true for assets that have been left to a spouse. Any assets that are valued at an amount greater than $5 million will be taxed.


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By The People Fairfield CA

Rene talks about how By The People in Fairfield can help people with legal matters in an inexpensive way. See more at http://www.bythepeopleca.com

What Is an Expungement?

As human beings, we are prone to making a mistake now and then. The vast majority of us get through the event with nothing worse than being taught a good lesson. Some, however, do not. In some cases, a poor decision can lead to a criminal record that can follow a person around for the rest of our life. This hardly seems fair. What is an expungement? It is a method for keeping this from happening.

Public Policy

In California, the state government invokes public policy positions that shape the law and conduct of people and businesses in the state. For example, a rather benign policy is to promote green energy production by forcing utility companies in the state to buy a certain percentage of their power from solar and wind energy generation companies.

California has a fairly forgiving public policy regarding criminal records. Specifically, there is a policy of giving the courts discretion to reconsider whether a person who has a single criminal blemish on their record should have that record swiped clean. This process is known as expunging one's record and there are a number of different methods for pursing an expungement in California.

Petition for Dismissal

A person with one blemish on their record can file a Petition for Dismissal in some situations in California. Upon filing, the court will reopen the past criminal matter. The judge will determine if all the conditions dictated to the defendant in that criminal action have been met. This can include tasks such as paying all restitution and fines handed down as well as completing any probation period successfully.

If the judge finds all these conditions have been met and it is in the interest of justice to expunge the criminal record, he or she will dismiss the past action. This allows the defendant to truthfully and legally answer that they have not been convicted of a criminal charge should such a question be answered in the future in, for example, a job interview.

It should be understood that the successful petition for dismissal is not entirely the end of the matter. Should the petitioner subsequently be convicted of another crime, the expunged matter can be revived and returned to the person's record. Juvenile Records

The old adage that boys will be boys has proven to be no less true in modern times. Of course, now we have to include the adage girls will be girls, but such is society. The question is should a poor decision made when a boy or girl is, for example, 13 haunt them for the rest of their life? In California, the answer is generally no. Once a minor turns 18 years of age, they are considered an adult and can petition to have their juvenile records sealed. This effectively vacates their past criminal record and gives them a fresh start as they head into their adult life. Certificate of Rehabilitation

The third process for dealing with a past criminal conviction is the Certificate of Rehabilitation. This process is applicable to a defendant who was convicted of a crime and actually served time in a state prison. The petition doesn't actually seek the expungement of the criminal record because state law does not allow for it. Instead, it places positive remarks on the person's record that are designed to show that while they committed a crime in the past, they have turned their life around after jail and are acting as a law abiding citizen.

A petition for a Certificate of Rehabilitation is filed with the Superior Court. To qualify for it, the petitioner has to show that they have been living in California for the previous five years. They then must also show that they have been crime free for the prior seven years. If the court finds these requirements are met, it will issue the Certificate and automatically send a request for pardon to the Governor of California. Pardons are rarely granted, but the small chance it will is more than worth sending it in.

What is an expungement? It represents a second chance at getting one's life in order from a legal perspective. It is the rare individual who hasn't made a serious error or two in their life. If this error was criminal in nature, California law provides the potential for relief in a number of ways as detailed above.


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How to Copyright or Trademark Your Business

In my business consulting, I have found that a lot of people do not know the difference between copyright and trademark. They do not know how to copyright a logo, website, blog or business name. Or in using the actual term, TRADEMARK their business. I used 'copyright' in the title because most people confuse the two. However, as I researched this subject I found out some interesting things...

Copyright is actually not the same as a trademark. According to the U.S. Copyright Office, a copyright provides protection for original works in the realms of music, poetry, movies, literature, etc. In fact, copyright exists as soon as the publication exists. It is just advised to register your publication with the U.S. Copyright Office for legal purposes. Some people also like to publish the copyright facts on their publications and make sure there is a public record. Registration fees vary from $35 to $80. It cost more money to renew, get copies, or search copyright records. Believe it or not, people steal ideas so you want to make sure you are protected. And for a mere $35 at least, I'd say it's a good idea to make sure your writings are safe, LEGALLY.

Now to the good stuff. A trademark is what is used to protect patents, trademarks, and ideas. This is handled in the United States Patent and Trademark Office (USPTO). So, a business name, logo, or even business idea would fall under the trademark category. It is often confused with copyright but now you know the difference. The reason you would want to register for a trademark is to get legal use of a service mark (™, SM ,®) for your word, phrase, symbol, or design.

The benefits of getting the service mark is to protect your name. To keep people from stealing your ideas. Just like with copyright, if you claim ownership, you can use the ™ and SM symbols on your business name or logo at any time. But owning the federal trademark registration obviously has it's benefits legally. Some of which include, being able to defend your logo in federal courts, being listed in the USPTO database, and the use of the ® symbol. YES! You MUST be registered with the USPTO to use that symbol on your logos, etc. You cannot even use it if your application for registration is pending. So, there are great benefits to registering your business name and logo.

Now, keep in mind, the USPTO has the right to deny your registration application. Especially if there's a similar logo. So, you need to research and make sure your business name and logo are UNIQUE and fit federal regulations. When filing an application for trademark registration (or to get a service mark) you must file one application per category(class) you the need the service mark for. FOR EXAMPLE, if you need a service mark for a t-shirt logo AND for the store marquee, you must submit two applications. Application fees vary from $275-$325, depending on the type of application you submit.

I know it sounds a bit complex and confusing but registering your business name and logo are so worth the protection. Especially if you're an owner that offers services/goods, merchandiser, designer, or inventor that's about to BLOW UP! You can of course find out more and get an application at http://www.USPTO.gov

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Does a Widow Need to Probate After Her Spouse's Death?

A woman who's recently lost her husband is faced with many legal and financial issues. One such issue is whether or not she needs to Probate her husband's estate after his death. Here's how you know if you must start a Probate.

When do you need to file a Probate? If there are any assets in your husband's name only, those assets will have to be "probated" before they can be legally transferred into your name.

Here are some examples: if your name is on the asset with your husband, Probate is not necessary. If an asset passes by beneficiary designation, for example a life insurance policy, and at least one of the named beneficiaries is alive, Probate is not necessary. But if your husband holds stock in just his name, a Probate will be necessary.

What is Probate?
Probate is a court procedure that transfers ownership and title of the assets of a deceased person to his or her heirs. It involves filing the Will (if one exists), having the Will accepted by the court, listing the assets and the value of each asset, paying the deceased's debts, and distributing the remaining assets to the persons named in the Will. If there is no will, the assets will be distributed according to the laws of the state in which the probate takes place.

Determine if you have to Probate
Here's how the completed Inventory will tell you if you need to start a probate. You will notice on the Inventory Form that there is a space that asks how each particular asset is titled, i.e. your name; your husband's name; joint names (more than one name); or in the name of your husband's trust or your trust. If there is an asset or assets in your husband's name only, you will have to probate those assets.

Review the column entitled "How Asset is Titled." A probate will be necessary if:
o ANY asset listed on the Inventory is titled in your husband's name only; or
o The beneficiary of your husband's life insurance policy, annuity, retirement plan or IRA is listed as his "Estate"; or
o The primary beneficiary of your husband's life insurance policy, annuity, retirement plan or IRA is deceased and there is no secondary beneficiary named; or
o Both the primary and secondary beneficiaries of your husband's life insurance policy, annuity retirement plan or IRA are deceased.

It does not matter if your husband has a Will, a probate is necessary if any of the above situations exist.

Who Receives Assets if there is a Will?
If your husband left a Will, the assets will be transferred to the person or persons named in his Will. If you are that person the assets will be transferred to your name.

Who Receives Assets if there is no Will?
If your husband died without leaving a Will, the laws of your state will determine who receives his assets. In most states, the surviving spouse receives a portion if not all of the assets. Consult an experienced probate attorney.

Attorney Necessary?
In most states it is possible to probate an estate without an attorney. But if you live in a large metropolitan area with a busy and crowded probate court or if you don't want the frustration and the responsibility of probate, retain an attorney to probate the estate for you. If you decide to retain an attorney, find an experienced probate attorney.

Discuss fees and court costs with the attorney at your first meeting. If you are satisfied with the proposed fees, request that the attorney prepare a written" Fee Agreement" that documents your verbal agreement. You and the attorney should sign two copies of the Fee Agreement with each of you retaining a signed copy.

When to Start Probate
It takes many months to probate an estate; so the sooner you start the sooner you'll be done. Do not ignore the problem if a probate is necessary. If there are assets in your husband's name only, you will not be able to transfer them to your name nor will you be able to sell them without a probate. Act now if you determine that a probate is necessary.


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7 Things to Consider When Making a Will

Nobody likes to think about dying. But death, like taxation, is unavoidable. If you care about what will happen to your assets when you die, and you wish to make proper provision for your loved ones, then you should ensure that you have a valid and up to date will.

Before making a will, however, you will need to consider the following:

1. Your property - make a list of everything you own and how much it is worth. Include your home and any buy-to-let or holiday property you may have, money in bank or building society accounts, shares, pensions, insurance policies, any personal valuables and any business interests you own.

2. Providing for your loved ones - who you would like to bequeath your property to? Make sure that you make proper provision for your spouse or partner, children, extended or previous family members and friends. Do you want to leave some money to a particular charity? Do you want to put any conditions on any of your legacies? A common condition is that children must reach a particular age, say 21, before being entitled to the money that you leave them.

3. Guardians - do you have any minor children? If so, who would you want to care for them if you were to die before they reach the age of 18?

4. Your business interests - what would you like to happen to any business interests you may own after you die?

5. Any other wishes? Are there particular arrangements you wish for your funeral? In particular, would you prefer to be buried or cremated - or do you have some other preference? How do you feel about organ donation?

6. Appointing Executors - executors are people you appoint to administer your estate i.e. carry out your wishes under the will when you die. This could be a family member or close friend, or an experienced professional such as a solicitor. A common and often sensible combination is to appoint both a family member and a solicitor. Make sure that you appoint someone who understands financial issues and don't forget to make sure that they are prepared to take on the role of executorships should you die. This is vital, as if you have not checked with them first, they could refuse to act as an executor, thus leaving the estate without someone you trust to take care of it. Bear in mind that there can be quite long term responsibilities under the will - especially if your will involves the creation of a trust, for example with regard to your children.

7. Finally don't forget to make sure you are aware of the tax implications, particularly with regard to inheritance tax, of your will.

It is good advice to review your will at least every 5 years and especially on any major life changes such as marriage, divorce, or having a child. Although nowadays it is possible to draw up your own will, this is very risky - the number of badly drafted wills being contested is on the increase - at vast financial and emotional cost to the estate of the deceased. You should think about getting some professional advice from an experienced wills and probate solicitor - they should be able to draw up a simple will for you for a reasonable fixed cost.


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Should You Go For An Uncontested Divorce?

An uncontested divorce takes place when two parties come to an agreement on all terms. All the negotiations are done between the two parties outside of the court. Lawyers are present, but are not representatives of either party and primarily serve as advisors and to fill out paperwork. Hiring a lawyer in this case is not necessary, but generally they are not very expensive and help ease the burden. How long an uncontested divorce process lasts depends on how quickly the two parties are able to agree to all terms. Going this route however does have its pros and cons.

One benefit of uncontested divorces is that it's a far less expensive than being in court. You will save even more money however if you and the other party can do all the negotiations without the assistance of a lawyer. This is especially true if you are paying the divorce lawyer by the hour. Another advantage is the time that is saved. Divorce cases that go to court can take on average one year to be completed, sometimes even two years. An uncontested divorce generally will only last a few months, though this does vary based on the area you live in. But saving money is what makes this route so attractive, especially when your living expenses are going to change without your partner in the picture.

Uncontested divorces generally are far less emotional and dramatic than contested ones. This of course is because the two parties are working together and ultimately reaching an agreement. The relationship is able to at least become mutual, which is especially beneficial if children are involved. Plus, children won't have to suffer through a drawn-out divorce case.

Another benefit that you get with uncontested divorces is privacy. The negotiations are done behind closed doors just between the two parties, and only a limited amount of information will be released in the documents. All that will be public is the records.

Patience will be necessary however in uncontested cases. It's not often that both parties will agree on everything in the beginning. There will be some back and forth, so it's important that both are willing to work together and have an open mind. Just because there are some disagreements doesn't mean you should go running off to a judge.

So what are the downsides? Well, depending on the relationship, an uncontested divorce may not even be possible. If one party for instance was abused or under the control of the other, then it would be difficult for both sides to cooperate with each other. Each side should get a good deal, but this requires both to put aside differences.


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What is a Notary Public - The Short & the Long of It

Notary Public: The Short Answer

A notary public is a certified official that is capable of acting as a reliable, impartial witness for the signing of important documents. A notary public is also able to administer oaths and may have other official capacities depending on the jurisdiction.

In the United States, most notary publics charge a nominal fee for their services. Notary publics dispense their official duties by marking documents with their signatures and a distinctive embossed stamp or inked seal. A document which has been witnessed by a notary public has been notarized.

Notary Public: Benefits

The benefits of using a notary public are simple. By certifying the veracity of the signing parties, the notary provides an inexpensive way for organizations and individuals to enter into contracts and conduct business with a reasonable assurance that the notarized documents will be recognized in court.

Using a notary public is a way to protect against fraud, as the notary is responsible for requiring the signer of a legal document to establish his or her identity. Although this is not conclusive proof of identity, it provides reasonable evidence of identity so that every day business can be conducted. A notary also acts as a disinterested third party for parties entering into a legally binding agreement.

Notary Public: More Info, Please

HISTORY

The concept of a notary is as old as the Western concept of civil law, which has its beginnings in the courts of Rome. As the Roman legal system became more codified, the law courts became more and more reliant on the use of scribes for maintaining the court records. These scribes developed a system of legal shorthand, called notae. In time, a legal scribe earned the name notarius.

The name has been handed down through the centuries, living on past the fall of the Roman Empire. During the Middle Ages, the role of the notary public was often taken by the clergy, who were charged with recording private and public transactions, as well as drawing up official documents.

ROLE

Today, a notary public's duties are somewhat different than the duties of a notarius. In the United States, a notary public has been authorized by a specific body, usually a state government, to perform the services of a notary. These duties are usually confined to the witnessing of documents and the administration of oaths. Some states also allow notary publics to certify copies of official documents

Two of the most common documents that a notary public will witness have to do with the sale or transfer of real property and the granting of power of attorney. A few examples of the documents that a notary public can officially witness include the following:
§ Acknowledgements
§ Affidavits
§ Jurats
§ Oaths
§ Formal protests

Some states give notary publics significantly more duties. For example notary publics in Louisiana are able to perform most of the duties that a lawyer can provide with the exception of representing another person before a court. Three states--Florida, Maine and South Carolina--allow notary publics to solemnize a marriage ceremony.

Some states will require the notary public to maintain a record of official acts. Although keeping a journal of official acts performed is not mandated by all states, many professional notary organizations recommend that all notaries keep records of their actions.

SIDEBAR: Legal Language

Ever wonder why legal documents are about as clear as mud?

The wording of legal document has to abide by certain customs and restrictions in order to have any binding effect in a court of law. This wording is called acceptable language.

SIDEBAR: Documents and Definitions

Know your jurat from your acknowledgement? Here are the definitions of some of the common documents handled by a notary public.

Acknowledgement: A legal declaration of an act.
Affidavit: A sworn statement of fact
Jurat: A part of an affidavit containing the oath or affirmation.

Becoming a Notary Public

In the United States, each state is responsible for commissioning notary publics to practice within its jurisdiction. In general, the requirements for becoming a notary public are relatively easy to meet. In most states, an applicant must be at least 18 years of age. Most states charge a small fee as part of the application process. Some states require satisfactory performance on an exam before commissioning the notary officer. In some states, the notary is required to hold a bond as insurance in case of a lawsuit leveled against the notary public.

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