California Estate Planning Attorney Blog

The July 2010 issue of the California Bar Journal discussed the continuing effort to protect the public from lawyers who take advantage of distressed homeowners. The State Bar prosecutor's office secured orders of involuntary inactive enrollment for three Southern California attorneys and obtained the resignations of 13 attorneys involved in foreclosure misconduct since creation of the Loan Modification Task Force in April 2009. Five loan modification trials and 2,000 related investigations are pending.

It is news like this that makes people think twice about hiring a lawyer to assist in foreclosures, bankruptcies, or estate planning. Lawyers are specially trained in the law and court system, but not all attorneys have the best interests of clients in mind when handling their estate planning, bankruptcy, or foreclosure concerns.

The State Bar of California web site provides tips on how a person in or about Fairfield, Sacramento, San Francisco, Oakland, Walnut Creek would go about hiring a lawyer. Some lawyers take on a volume of cases in hopes of profiting on legal fees with little care for the requests of clients, and when the clients disagree on settlement or case resolution, the lawyer may threaten to withdraw leaving the client at a critical moment with no attorney or the burden of having to find another attorney to come up to speed. Without knowing that this may be an ethics violation, the client may go along with the attorney's decision to earn trust or to have what little legal protection he can get.

In bankruptcy, foreclosure, or estate planning, it is easy for an attorney to take on a quantity of cases even when the attorney does not have offices where the client lives. These attorneys generate business through seminars on financial or estate planning topics. These attorneys may take their fees upfront and then leave their clients' phone calls unanswered or directed to a secretary or non-attorney for the remainder of the case. For court hearings, the attorney may send a special appearance attorney who does not have depth in the case, and can only take notes. Sometimes the trustee during a bankruptcy 341 hearing even asks why a debtor chooses an attorney that is so far away that the debtor cannot meet the lawyer in person.

Though many attorneys give free initial consultations for estate planning, bankruptcies, or foreclosures, few attorneys desire to give free legal advice for fear of malpractice. When thinking of hiring an attorney, a potential client may be more prepared to be informed at an initial consultation by first researching legal issues on his own through consumer books like Nolo Press publications or on the Internet so he is prepared on what he wants to accomplish and the facts to gather for his case.

While a lawyer can help people understand their rights, a lawyer is not a friend. Sometimes with the duty to protect confidential information, people mistake a lawyer to be a buddy, but the lawyer is a professional who sees a case as work to be done. The relationship might turn into a friendship, but attorneys look to close matters and move on to the next so do not expect an attorney to help much during an emotional breakdown. Call the police if there is potential violence or stalking from the opposing party, not the attorney. Most attorneys care about the representation they are paid to handle, but attorneys are human too, with other work on the plate and their own family and personal problems.

Continue reading "Hiring A Lawyer - Fairfield" »

Essential part of any estate planning effort is a diligent assessment of your legal relations. No matter if you are rich or not so well-off there are plenty of those. Every ordinary person has obvious ones, like employment contracts, family ties (married?) or partnerships in business enterprises. Each single legal relation comes with certain rights and/or obligations. There is also a relationship to assets, called ownership. Owners have also rights and obligations, e.g. the right to sell an asset or the obligation to pay property taxes on real estate.

Normally the owner knows that he or she actually owns something. Usually the owner is also aware of the respective rights and obligations that come with ownership of assets. Imagine now the unhappy event that you die from one day to the other. You would normally expect your heirs to take over, but heirs are not visionaries. The heirs would need to figure out what assets you have owned to know their rights and obligations.

Therefore, it is a good idea to create an inventory of all assets - tangible (like a car or a house) or intangible (like bank accounts, royalties or patents), so you heirs will get an overview of your estate. Often assets come with a document of title that expressly states your ownership (like the deed to a house). Inventory and documents of titles are essential when it comes to the distribution of an estate. Therefore those papers should always be held in an order and accessible in a way that somebody who is not familiar with your financial situation could get on overview if need arises.

The same applies to the usual instruments of estate planning, which are expressed in documents as well. Those essential documents encompass the last will, your living trust document, your health care directive and the durable power of attorney. Your heirs will need those documents to figure out who is entitled to your estate. It will avoid confusion if you keep those documents accessible. You should also let your intended heirs know where you keep your papers. In addition a safe backup - either digitally or hardcopy is advisable for worst-case scenarios (like a disastrous fire). Keeping your documents in order and safe will provide you with ultimate peace of mind.

Continue reading "Before You Die - Get Your Paperwork in Order" »

According to an Article on Forbes.com (see here) a recent survey showed alarming numbers when it comes to estate planning.

Roughly 65 % of 1,022 Adults asked do not have a will, that directs who inherits their assets in the worst case. 71 % lack an advance health care directive (living will), a legal instrument that is designed to direct critical health decisions if someone looses the mental capacity to decide on his own. No numbers were mentioned regarding the existence of a durable power of attorney but it can easily be assumed, that the results would have been similar terrifying.

Conductors of the survey also asked for the reasons, why people would not plan. Many individuals mentioned that estate planning were not their prime focus, especially in midst of recession. And 19 % thought, that estate planning was only important to the rich. These reasons are popular misconceptions of estate planning, which I have already highlighted (among others) in a post last year (see here).

I cannot stress enough that nearly all aspects of estate planning are of paramount importance to most people, even to those who struggle to cope with daily life. Information about estate planning are available for free, e.g. in our firm's learning center. If you're reading this post and you have not yet started your estate plan, it is time to do it now.

Continue reading "65 % of Americans Do Not Have a Will" »

New research shows that communication with patients who have fallen into 'vegetative state' has become possible. Researchers have used brain scans on patients with devastating brain damage to watch the reactions of the brain when they were asked questions. The scientists were able to distinguish a 'yes' from a 'no' on the picture of an MRI-machine. Those are the basics. If you are interested in the details, I recommend this article in the British Telegraph.

But does this medical breakthrough make living wills (aka advance health care directives) and durable powers of attorneys dispensable? The answer is clear-cut. The new science cannot substitute these very basic elements of estate planning. Both, living will (see here for further information) and durable power of attorney (see here for further information) are legal instruments that are set up for the sad moment a person becomes mentally incapacitated. It allows an agent to act on behalf of the principal or make medical decisions for him because he is no longer able to act or express himself. Despite the breakthrough, it is not clear yet, whether a person in vegetative state can make sound decisions. Furthermore the new technology doesn't enable the patient to look after his financial duties. Therefore the new technology does not substitute the aforementioned legal instruments.

It is thus still highly recommendable to have a durable power of attorney and a living will for the event that you become suddenly and unexpectedly incapacitated. If your estate plan contains the required documents, there is no need to worry, but if not it is time prepare the necessary documents. If you don' t like doing this yourself, ask your local estate planning attorney.

Continue reading "Communication With Coma-Patients - Are Living Wills Now Dispensable?" »