Probate, Trusts, Wills & Estates

Someone said to me recently, "Death is a recession-proof business." Interesting thought. And one that brings to mind the two things that you can count on, "taxes and dying"....yep!

There are hundreds of versions of what we can expect with "death".

Many people have not prepared or planned properly for this inescapable event. Unfortunately, it isn't so much the person off to the pearly gates that has the issue, it is instead the family left behind.

Probate means to "Prove the will". It is simply the formal legal process one goes through to obtain approval from the responsible court, that a will is authentic and accurately represents the wishes, or "will," of the deceased.

If you prepare and create an estate plan, YOUR FAMILY can bypass this procedure. Today we have a few questions related to the subject.

Chris Johnson Esq. answered the following submissions:

My sister is the executor of my father's will. She and I are the only beneficiaries. We have been going thru the probate process. She received the letters from the Court to act as executor with full authority in April 2008. We have since completed and submitted all the appraisal paperwork and are coming up on the 1 year mark where the Court wants a status update. What does this paperwork entail? Also, my sister and I agreed to share all the expenses on the property in the estate, taxes etc so she went ahead and distributed the cash and stocks and other requests per the will last december. We didn't notify the court. Was this a mistake. Can I submit it now? If we decide to file a petition for final distribution, how do I let the court know that some of the assets were already distributed. I am totally confused as to whether this was a mistake and whether it can be rectified. Please help.

Answer:
The status update would give the court some detail regarding what has happened in the estate and when it's ready to be closed.

It is a violation to distribute the assets without a court order to do so, but it does happen--you can show the court what was distributed, along with a consent and waiver from both of you, and a petition for distribution of the rest of the assets. As you are the only beneficiaries who would be affected by the distribution, the court would likely view it as a "no harm, no foul" situation.

You'll want to get something filed in the right format, though, as courts often set "Order to Show Cause" hearings with subpoenas to appear if nothing's filed before the one-year deadline.

Next submission:
i have a document with my brother's property. He has 2 stores and writes owner Nick P.(my brother), but it has an owner name too of spouse, Maria P. (no children)

With no will........my brother died last week .......everything goes to spouse ??? or i can take something????????

how i will know if property is separate..??? i live in europe he died in california

Answer:
The answer depends on the agreements you have with your brother, along with the titling of the assets--an attorney can review the specific documents and give you a more specific answer. It's also possible you could have a creditor's claim against your brother's estate, but collecting on this also depends on how his assets were titled.

If you need help with estate planning or are in the midst of a probate process with legal questions, please contact us. We are experienced and can help you now. 626.683.8869 or cjohnson@rrjlaw.com

Yes to annulment?

Happy Smiling Faces...













We can keep you smiling and able to afford more than just the weekly trip to McDonald's as a night on the town!

Today's post covers annulment. Many people are confused as to what constitutes grounds for an annulment in the state of California, so we thought we'd clear the mystery up a bit for you.

A question was posed to two of our attorneys recently. The question was on annulment in California. Here is the question:

I got married in the County of San Diego less than a year ago. I just found out that my husband has not filed tax returns, or reported any income in at least the last 13 years and in order to protect myself from prosecution I will need to extricate myself from this marriage as soon as possible. Would this constitute fraud as it relates to the definition for an annulment in this state?

Colin T. Greene Esq. our resident family law expert and attorney answered: Probably not. The fraud looked for under Family Code § 2210(d) is fraud that goes to the basis of the marriage -- the intention to be married. Typically, fraud of a purely financial nature is insufficient. You'll need more.

And Mark Russakow Esq. also answered: This is not grounds for annulment according to case law on point. You also when getting divorce should make sure you have an innocent spouse exclusion on your settlement agreement for tax issues. Good luck. Also see Colin T Greene answer of our firm. (We even work as a team answering questions)

So, what constitutes an annulment in the state of California?

An annulment (or "nullity of marriage" or "nullity of domestic partnership") is when a court says your marriage or domestic partnership is NOT legally valid. A marriage or domestic partnership that is incestuous or bigamous is never valid. Other marriages and partnerships can be declared "void" because:

• of force, fraud, or physical or mental incapacity;
• one of the spouses or partners was too young to legally marry or enter into a domestic partnership; or
• one of the spouses or partners was already married or in a registered domestic partnership.

Annulments are very rare. If you ask to have your marriage or domestic partnership annulled, you will have to go to hearing with a judge.

You can find out what you need to consider when filing for an annulment or a divorce, please do so by calling us here at RRJ 626.683.8869 or email cgreene@rrjlaw.com. And to do some research on your own, please also consider this website: http://www.courtinfo.ca.gov/selfhelp/family/divorce/divlinks.htm

Business Law: Q&A

Welcome back!

Legal Questions?!

Please feel free to submit it here

Today's questions have been answered by Mark Russakow Esq.

The topic of this post is Business Law. Please feel free to leave comments on this post and we will try to answer them in a timely manner.

Question:
I work for a manufacturing subsidiary of a larger distribution company. I was given access to the distributor's customer database to assist my work. I have printed their customer list with contact names and numbers and parts list and have given this info to a friend who is starting a competing company. Is this a crime? They knowingly gave me access. What if I take the info and use it myself?

Answer:
You have some issues that may be a problem. The customer lists may be called a "trade secret" and you also may be sued under the uniform trade secret act or Business and Professions code section 17200 for unfair competition. You and your friend should NOT use this list. You do not go to jail, but you can be sued in civil court for lots of money. Not a good idea to use this list.

Question:
I have sued a defendant in small claims for colliding with my car while it was parked and causing damage to it. Her insurance co. has refused to pay my damages.

Can her insurance co. defend her at the small claims trial? Or must she defend herself?

Answer:
No. She must show herself as lawyers are not allowed in small claims court unless they are representing a corporation. She is not a corporation, and the insurance company is just paying the coverage, and is not the defendant.

Question:
we have an employee that was since fired. we want to file a claim for misappropriation of funds. he was with us for 5 months and took 4 weeks of vacation and overpaid himself $3500. he was an interim president so signed his own checks.

how much can we sue him for? just the value of the amount stolen or damages as well? jail time? this is in response to a frivolous claim he is filing against me.

Answer:
You can sue him for breach of fiduciary duty as the president of the company. As an officer, he must not take funds from the company and he breached his duty.

Question:
We just discovered that One vendor that we are about to sign a contract with is a CA corporation and his corporation status is Suspended. What does it mean if we sign a contract with such a vendor. Do we the client corporation, land in any trouble?

Answer:
It means the corporation is not entitled to be afforded the protections of California Law. You will not get in trouble, but I would have the officer of the corporation sign as an individual. Usually suspension happens when corps fail to pay the yearly fee. It can easily be fixed by paying the state the fee.

Question:
We filed a lawsuit for breach of contract. It's been 30 days and the defendant has not responded. I was told that in CA, as a courtesy, we wait another 15 days before asking a default judgment because otherwise, judges are not inclined to accept the default. Is it true? thanks

Answer:
Well you can request a default at 30 days, but usually the defendant will answer a few days later and make your request moot. Most courts do give a little slack. So I guess there is no rule about 15 days, but generally a good idea if you do not want to waste time and money.

Question:
I am starting a general partnership with two friends, one of whom has a history of debt. Could debt collectors come after me if I am linked to this person through our business? Could money be taken from our business to pay his debt?

Answer:
It depends. If the judgment debtor attaches an asset in his name and it is being used by the business yes. Also they can try and get his part of the partnership. So, you need to be careful how you take ownership of assets and the bank accounts. It is risky.

Question:
Wife owns a business with a partner. We are obtaining a divorce. She won't give me any info of profit and loss except a loss to our income tax person. Am I liable for this & how do I get released from liability?

Answer:
Once you file for divorce each side must turn over documents as part of the process or the court will order her to do so. You are responsible for actions she took during your marriage and any liabilities unless you had a pren-up or the liabilities are backed by her separate property during marriage. You absolutely should be entitled to this information.

Call or email us, we are here to help! mrussakow@rrjlaw.com or 626.683.8869

Fashions of the Law

When you think of a law firm, what comes to mind?

Maybe Words like: Stuffy? Stodgy? Sharks? Sleazy? Slimy? The "S" list goes on.

Many people prepare for their visit to a law firm with some nervousness, trepidation and a sense of impending doom or dread. You figure you are about to get screwed by a guy in a rather expensive suit.

The eat em' alive and corporate mentality may exist, but not at RRJ. Well... first off, we prefer most of our food cooked and secondly, who the hell wants to sit in an office meeting after meeting in a suit?! Not us.

We aren't shy or bashful, so let's just state the obvious: We're pretty damn cool, we ain't your Daddy's law firm and we have a great ratio of winning and/or settling many of our cases.

Plus believe it or not, people like working here. Yup, were all that and a lobster dinner too!

Let's take a moment though and talk about fashion. You may enter our offices and see many fashions you see on the street,t-shirts, jeans, fake eyelashes, maybe a fetish or two, brightly-colored mini skirts and copious amounts of bracelets, rings and necklaces.

The New York Times recently said, "The combination of black and white is one of fashion’s most stunning effects, and is easily put together." We agree! And of course we take it one step further...a lot further, crushed purple velvet anyone? Isn't that all eco-friendly?!

Check us out on our FaceBook Page at http://twurl.nl/tqlwer , we are apparently ONE BIG fashion statement. Post pictures of fashion where you work, no matter where it is or what you do! We'd love to see it!

If you want to make a statement or have interest in checking out more than our fashion, contact us at mrussakow@rrjlaw.com or 626.683.8869

Questions and Answers on Bankruptcy

Today, we are posting Questions with Answers on Bankruptcy by Chris Johnson. Please continue to ask questions about this topic here on our blog. You can also check Chris out at: http://blog.probate-litigators.com

Question:
Can you filed bankruptcy on items that have been charged off?

Answer:
Yes

Question:
If my contractor filed bankruptcy in the last week, will the court
hold my insurance money, which is to rebuild and is in both our
names? And what if my contractor uses a different construction
name than he did to file bankruptcy, does that make a difference
since it is in fact the same personal name at the end.

Answer:
It's difficult to say without seeing the specifics of your situation, but if the contractor was holding money that didn't belong to him (your insurance money), you may be able to claim that as being outside the bankruptcy estate. If the amount is significant, I'd recommend using an attorney experienced in these matters, as deadlines in bankruptcy court are short and the rules are many.

Question:
My boyfriend is currently in jail and I've been paying for his car expenses (the monthly loan, insurance, and DMV registration). The car loan is in his name only. We've only had the car for a year and the payoff amount is around $30,000. So there is still 4 years left to pay on the loan. We don't know yet how long he will be incarcerated (case is pending), but obviously he isn't working and isn't paying his credit card debt or his personal loans (which total about $25,000). First question is should he file bankruptcy now, or wait? Second question is if he does file for bankruptcy, will I be able to keep the car if I continue making payments on it? Thank you.

Answer:
You'd have to negotiate a transfer of the loan to yourself if you wanted to pay off and keep the car, or a new loan to pay off the lender and put the car in your name--it may be easier to get a different car.

Regarding bankruptcy, it may be a good idea in his situation--the bankruptcy can go through even if he's incarcerated. It will require some extra coordination with the trustee assigned to the case, but it can be done. It would be worth a bankruptcy attorney's review of his circumstances to discuss the pros and cons of filing a bankruptcy case.

Question:
I am a 79 year old Grandmother who has accumulated 50K+ of CC debt over the past 20 years because of medical expenses and loss of job. I receive about $1,000.00 per month in SSI and can no longer afford the CC payments. I don't have any savings or retirement, own a home, car, or anything of substantial value. A Credit Counselor/Consolidator that was referred by one of her Credit Card Company's has advised me to file bankruptcy. Should I file bankruptcy?

Answer:
You are probably judgment-proof, meaning that if you just stop paying your credit cards and do nothing, there's probably nothing they can take from you and it will stop the creditors' collection attempts/ This would be the main benefit to your filing a bankruptcy. If your assets were to increase later, you'd also be protected.

Question:
I filed bankruptcy back in 2003 my common law partner was not in the paper work. Now creditors are after him and they are going to take him to court does he have to file separately? And can he still fill even though creditors have filled a law suit?

Answer:
First, although it wouldn't make a difference in this case, California does not have common law marriage or common law domestic partnerships. Certain obligations may arise after a long time together, but not under any "common law marriage." Thus, you may want to get legal advice concerning this issue sometime, as you may not have the rights and responsibilities you think you have.

That said, if your partner had co-signed for the debts, he will still be responsible for them even if you filed bankruptcy. So, he'll either have to pay them, file bankruptcy or negotiate a lower payoff with the creditors. First, though, you'll want to see proof from the creditors that he actually was a co-signer at some point and that he is legally responsible.

You can contact Chris directly at cjohnson@rrjlaw.com or 626.683.8869

Questions and Answers on Real Estate and Real Property

We are going to re-post questions and answers by our firm here on our blog, please feel free to submit your questions on this blog too. Below are recent questions asked of Mark Russakow Esq. on Real Estate and Real Property.

Question:
The home we purchased in CA apparently has no drainage in the backyard. With heavy rain the entire back patio floods several inches each time over a 20' x 15' area against the house. The seller of the property was also the listing agent, so not only did she fail to disclose as the seller, she also failed to disclose as the broker/agent.

The sellers lived here for several years and they had to of known... what kind of recourse do I have... I purchased the house in May 2008.

Answer:
You may be able to recover against the seller and agent for failure to disclose known defect. As an agent, the seller has a much higher duty to advise of any defects. You need to take action before the time limit on the case runs out. Good luck.

Question:
Hi. We submitted an offer on a townhome which included a pre-approval letter from our lender. The seller's realtor phoned our lender and asked personal questions including ''what is the full amount [the buyer] could be qualified for'' and ''will you (the lender) provide a loan with 10% down terms to these people?''

We gave no authorization for this realtor to contact our lender. Speaking emotionally, we feel this is a tremendous invasion of privacy; speaking factually, we wonder: is the behavior potentially a breach of any civil statue?

Many thanks in advance for your thoughts.

Answer:
You can complain to the department of real estate, but I do not believe you have a civil action.

Question:
My Mother is living in the State of California, What else do i need to simplify the process in the event of her death beside ''Living Trust''...I am speaking about probate,Where i can have legal means to obtain ownership?

Answer: A trust is the best way.

Question:
My friend wants to buy a house in Vegas but he is an illegal immigrant. What could be the consequences of my husband and I lending ourselves to be legal owners of this house (costs $60,000.00). Would it affect our eligibility to buy our own home in the future?

Answer:
DO NOT DO IT!!!! LET ME REPEAT, DO NOT DO IT!!!!!! I have seen this exact situation about 20 times in the last year. Bad idea. 1. If they default on the loan, it is your credit that goes in the toilet. 2. Unpaid property taxes are your problem. 3. It will show up in your credit report and count as an obligation against you if you are trying to get a loan. 4. If they do not pay rent or you have a financial issue with the people living in "your house" you would have to evict them which will than cause them to sue you for unjust enrichment. I hate to be cynical, but in this case no good deed will go unpunished. I also think having people that can be deported as paying for a loan you are responsible for paying is also a bad idea. Good luck, and again do not do it. I do not know how to be more clear. Mark.

Question:
A person has an easement by prescription over my property to allow access to his property. I'm learning he is conducting large scale criminal activity (gigantic pot growing enterprise, 1 of largest in area)on his place. If I know this, do I become liable party to his activity? do I have legal obligation to report this to law enforcement? Do I have a responsibility or option to revoke his easement

Answer:
You have not duty to report the activity, but if you do will solve your easement issue. If they are in jail, no chance of keeping the easement. Also, you cannot revoke a prescriptive easement as it is granted by use not my agreement.

Please contact Mark at mrussakow@rrjlaw.com or 626.683.8869

Businesses sink or swim

This is definitely a challenging time for many businesses. Although, all is not doom and gloom!

There are several unknown factors in what will happen with the economy in the United States. Many people do not know if they will have a job and businesses are trying to figure out how to keep their doors open.

Individuals wanting to start a business in this climate struggle with should I or shouldn't I? What will happen tomorrow?

Existing businesses have started to tighten the reins on spending, this is not necessarily ideal in certain aspects of your business.

We can never predict the future, try as we might. Businesses still need to continue prospering and new companies are needed so new technologies, products and services are made available.

Whether you are starting a business or have an existing one, here are a few things to keep in mind:

• Companies need to spend time doing research. Look into current industry trends and then determine what opportunities have the most potential to create long term success.
• Ask...what is needed right now? How can I fill that need for potential and existing clients?
  
• Check out existing companies who are NOT doing very well and DO well, where they fail.
• Customer service by actual live and breathing human beings will go far, the personal touch can always take you farther in cementing relationships with your clients.
• Keep your company in the news, PR is inexpensive and a great strategy for getting a message out to your demographic.
  
• Look at highly creative marketing during this time. What is going to appeal to your demographic? Remember the minute you stop marketing is the minute you can look at your business slowing down. If people don't know you exist, how can they find you?

See this as a time of opportunity, not as the END. It is really only the beginning, we are on the ground floor of a new era. Think BIG and think FUTURE, don't think in a microcosm.

Everything rebounds and so will business, so be on the forefront of success and keep growing! You can also contact Russakow, Ryan and Johnson to help you set up agreements, retain legal business advice, HR issues, etc... we are always happy to help out!

Today is a new day

We are watching as the world descends into a panic of sorts over the economic crisis and how it affects almost everyone on a global scale. This is a given.

It is good to remember that the future know matter how you paint it in your mind: fantastic or horrible; never quite comes out the way you think it will. Therefore, I propose, let's start talking about topics that enhance, expand, create, and give a broader more positive perspective as to what businesses and individuals can do to gain control of some aspects of life.

The following is a slight twist on the reality portrayed in the media, take some of these unpleasant "life adjustments", NOT becoming powerless and creating a more positive life each day:

• Losing a job can be a blessing, it may be a second chance to do something you really want to do.
• If you do have a job consider the following: Prices tend to drop, the cost of living goes down, and most salaries usually stay the same.
• There’s less pressure to keep up with the Joneses, lifestyles of the rich and almost famous and to appreciate the simpler things in life.
• The housing market crash is a good thing for first-time buyers who now are looking at a more realistic mortgage payment.
• It is an opportunity to go back to school.
• Time for being with friends and family, placing values with people rather than amassing materials goods.

Stop blaming whomever and whatever is outside of yourself for the reason the world is in this situation. Re-claim your ability to control certain aspects of your life; remember...Whatever you resist tends to persist.

In our next post we'll cover how businesses may use this time to gain prosperity or at least keep your head above water!

Welcome

Just wanted to post a note about our new company blog. Please check here on a regular basis to find the news, views, fashions and entertainment that go on inside of our law firm RRJ Law.

Each month we will highlight a different area, department or person at RRJ in this blog. We will also address different areas of law, new laws and the areas of specialty here at Russakow, Ryan and Johnson.

There will be some surprises along the way, we will be introducing the newest member of our staff here at RRJ within the next week. We were so thrilled to have come into contact with this individual and believe he will be one of our greatest assets to Russakow, Ryan and Johnson.

Learn more about the people at our firm, what we do in the office, in court and around town. Check our page for current information on our cases, legal information and fun tidbits!

So stay tuned....