ESTATE PLANNING FOR THE LGBT COMMUNITY

Are you or someone you love a member of the Lesbian, Gay, Bisexual and Transgender (LGBT) Community?  Does your LGBT loved one or you, as a member of the LGBT Community, have an estate plan?  One of the biggest mistakes a member of the LGBT Community can make is failing to properly set up an estate plan – the results of which can be devastating.

Having no estate plan, or relying upon just holding property in joint tenancy as your estate plan, is the equivalent to giving up control of one's estate, as well as giving up management of one's health, finances and well-being in times of incapacity.

The need for an estate plan is most critical in cases of an accident or illness that renders the LGBT person incapable of making medical decisions or managing his or her financial affairs. Without a proper estate plan, the partner or significant other of an LGBT person could be legally precluded from having any role in the decision-making of his or her partner's care, management of his or her financial affairs, or even having physical access to the incapacitated partner.

Registered Domestic Partnership (RDP)

Many states, including California, offer domestic partnerships as a method of legal recognition for same-sex relationships. The rights and responsibilities of being a RDP are numerous, including community property rights between the partners.  Before registering, be sure to speak with a qualified estate planning attorney, who is familiar with the unique legal and personal needs of the LGBT Community. That attorney can counsel you on the implications of registration and the advisability of registering based on your unique situation.
The Problems Estate Planning Solves for the LGBT Community

A LGBT individual or couple can avoid numerous problems through proper estate planning, which includes:

• A Basic Will.  Everyone, whether gay or straight, should have a basic will.  But it is even more important for LGBT Community members to have a basic will because without one, the laws of intestate succession will dictate who will receive your assets when you die.  And that person may not be who you want.  A basic will ensures the LGBT person's assets are distributed to whom he or she wants, when and how he or she desires.

• A Revocable Living Trust.  A Revocable Living Trust can establish the LGBT person’s partner as the trustee.  The trustee is the manager of the person's affairs both when the LGBT person becomes incapacitated and when they pass away.  A Revocable Living Trust also gives the LGBT person more control over who will receive their property and allows them to provide gifts to family, friends and even charitable organizations. Not everyone needs a Revocable Living Trust, but if you have substantial assets, and own real property, a Revocable Living Trust may be right for you.  It is very important to talk to an experienced estate planning attorney who is knowledgeable about the rights and needs of the LGBT Community when considering a Revocable Living Trust.

• An Advance Health Care Directive.  An Advance Health Care Directive can avoid the potential problems of the LGBT person not maintaining control over his or her health care decisions and his or her partner not having access to the LGBT person during a period of incapacitation.  By preparing an Advance Health Care Directive, an LGBT person can make sure their partner (or the person they want) is making health care decisions for them, and they can make sure the health care decisions being made are the right ones for them.

• A Durable Power of Attorney.  A Durable Power of Attorney allows an LGBT person to designate who they want handling their financial affairs and property in the event that person is incapacitated.  By preparing a Durable Power of Attorney, an LGBT person will make sure their partner, or someone else they trust and rely upon, is handling the important job of managing their money.  Without a Durable Power of Attorney, someone in your family you may not trust could be declared your conservator and take control of your money.  Don’t let this happen!

Proper estate planning by members of the LGBT Community will ensure their assets will go to whom they want, their estate will be managed by who they want, and in the event they are incapacitated, their medical decision and financial matters will be handled by the person they want.  It is very important that every member of the LGBT Community, whether Registered Domestic Partners or not, creates a comprehensive estate plan so as to ensure the protection of their assets and their rights.


I’m attorney Eric Rudolph at (760) 702-4046 and at EARattorney@gmail.com with Your Legal Buzz.

Please join me on September 12th at 10:00am at http://toginet.com/shows/thecomingoutlounge for The Coming Out Lounge with more information on estate planning for the LGBT Community.

And please visit my website at www.RudolphLegal.com and my Facebook page at https://www.facebook.com/RudolphLegal.

IDENTITY THEFT - DON'T LET IT HAPPEN TO YOU

Have you been the victim of identity theft?  Do you know what identity theft really is and how it can affect you?  It happens to people just like you every day.  Don't let it happen to you!

Identity theft is the unauthorized use of someone’s personal data (like social security numbers, passports or driver’s license) for unlawful purposes, such as to obtain credit cards or credit loans.

Identity theft strikes 8.3 million Americans each year and costs businesses and consumers billions of dollars.

Identity theft can occur from your trash, stolen purses or wallets, or the “skimming” or taking of encoded information directly from your credit cards or your credit card receipts.

And watch out for "phishing"!  Phishing is the use of misleading e-mails and fraudulent websites to trick users into revealing personal financial data online.  Never give your personal financial information out on the web unless you know and trust the website.  This is the fastest growing area of identity theft.

If you fall victim to identity theft:

• Contact the credit 3 big credit agencies and put a fraud alert on your credit report
• File a police report immediately
• File a complaint with the federal trade commission and fill out an ID theft affidavit and send it by certified mail to all businesses where any new account was opened

Report fraud right away - don't wait!  And request a free copy of your credit report each year.


I’m attorney Eric Rudolph at (760) 702-4046 and at EARattorney@gmail.com with Your Legal Buzz.

And please visit my website at www.RudolphLegal.com and my Facebook page at https://www.facebook.com/RudolphLegal.

WHAT TO DO RIGHT AFTER A CAR ACCIDENT

Have you been injured in a car accident as a driver or passenger through no fault of your own? There are several important things you need to do right after a car accident to protect your rights.

• Take pictures at the scene! It is very important that you to take pictures at the scene of the accident.  These pictures can be very helpful to prove your case.  

• Report ALL your injuries to first-responders and emergency personnel.  It is extremely important that all injuries suffered as a result of the accident are well-documented.  Report all symptoms, such as: headaches, dizziness, blurred vision, loss of consciousness, or neck, back or shoulder pain.

• Seek medical treatment right away.  Even if you feel your injuries are only minor right after your accident, see your doctor right away.  Many injuries that at first appear to be minor can later cause significant long-lasting pain.  

• Never give any written or recorded statements to an insurance adjuster or sign anything from an insurance company, especially a release.  Never give any “statements” of any kind to an insurance adjuster or anyone besides the investigating officer at the scene until you have consulted with an attorney.  

• It is important to notify YOUR insurance company immediately of the accident.  It is ok to tell them you have been in an accident, but keep it short until you have talked to an attorney.

• Keep good records of your injuries, treatment, medication and out-of-pocket expenses.  

• Obtain a copy of your police report.

Recovering from a car accident can be a very upsetting and confusing experience. After you've been in a car accident, talk to an experienced personal injury attorney.


I’m attorney Eric Rudolph at (760) 702-4046 and at EARattorney@gmail.com with Your Legal Buzz.

And please visit my website at www.RudolphLegal.com and my Facebook page at https://www.facebook.com/RudolphLegal.

BICYCLE RIDING SAFETY

Do you enjoy riding your bicycle on the streets?  Does your child enjoy riding his or her bicycle, skateboard or scooter on the streets?  If so, there are traffic laws that must be followed just like if you’re driving a car.

Bicycle riders—adults and children alike—must abide by the traffic laws that apply to motorists. Bicyclists must stop at stop signs and red lights, ride on the proper side of the street and give the right-of-way to all pedestrians.  Also, some California communities have local ordinances that prohibit bike riding on sidewalks in certain areas, such as business districts. And bicycle riders under the age of 18 must wear bicycle helmets and must, if riding at night, have a bike equipped with a front light, red rear reflector, pedal reflectors and side reflectors or reflectorized tires. Wearing a radio headset is prohibited while riding a bike at all times. It is against the law to ride on someone’s bicycle handlebars or center frame bar, or over the bike’s rear tire.

There are also laws that apply to those who use skateboards, skates and scooters. Cities and counties have laws regulating the places where your child may skate and the equipment that must be worn by skaters within these designated areas. Helmets, elbow pads and knee pads must, by state law, be worn at skateboard parks.

It is against the law to hold onto a moving vehicle while on a bike, skates or a skateboard. If your child violates any of these laws, he or she may be stopped by a police officer, cited and sent to juvenile traffic court, so talk to your children about following these laws. In addition, children under age 18 must wear a bicycle helmet while riding a scooter (motorized or non-motorized). And minors must be at least 16 years old and have a valid driver’s license or instruction permit to legally operate a motorized scooter, and may not operate such scooters on sidewalks or on highways that have speed limits greater than 25 mph.

I’m attorney Eric Rudolph at (760) 702-4046 and at EARattorney@gmail.com with Your Legal Buzz.

And please visit my website at www.RudolphLegal.com and my Facebook page at https://www.facebook.com/RudolphLegal.

YOUR DURABLE POWER OF ATTORNEY – WHAT YOU NEED TO KNOW

What is a Durable Power of Attorney?

A durable power of attorney allows you to manage your property and financial affairs in the event that you become disabled or incapacitated. Unless you have a properly drafted power of attorney, when you become incapacitated or disabled, it may be necessary to go to court and have a guardian or conservator appointed to make decisions for you.  This conservatorship process is usually lengthy and expensive as well as being emotionally draining.

There are two types of durable powers of attorney you should know about: one, a "present" durable power of attorney in which the power is effective immediately; and two, a "springing" or future durable power of attorney that only comes into effect upon your subsequent disability or incapacity as determined by your doctor.  If you become incapacitated and are unable to make decisions, the person you have listed to act on your behalf would have the authority to deal directly with third-party financial institutions such as banks.

A durable power of attorney generally has to be signed and notarized and says that it shall be “durable,” which means it will continue in effect after you become incapacitated. It terminates at your death or at any time you specify. You can also cancel it at any time while you are competent. A durable power of attorney’s flexibility is one of its main advantages. You can limit the authority of the agent in the document, giving him or her as many or as few powers over your property and financial affairs as you wish.    

Who can establish a Durable Power of Attorney?

Generally, any individual over the age of majority and who is legally competent can establish a power of attorney.  Every person of legal age and competency should have one.

Who may act as your Attorney-in-Fact under your Durable Power of Attorney?

When you appoint another individual to make financial decisions on your behalf, that individual is called your "attorney-in-fact."  Most people chose their spouse, domestic partner or adult child as their attorney-in-fact, but a trusted family member, friend or professional colleague may also be a good choice.  The person you chose should be someone who is capable of handling your financial affairs and someone you trust.  Your attorney-in-fact may be anyone who is legally competent and over the age of majority.  You may also appoint more than one attorney-in-fact to serve either simultaneously or separately.  Appointing more than one attorney-in-fact to serve simultaneously can be problematic because if any one of them is unavailable, important financial action may be delayed.  Confusion and disagreement between co-attorneys-in-fact can also be another cause of problems.  Therefore, it is usually more sensible to appoint one individual as the primary attorney-in-fact and nominate additional individuals to serve as alternate attorney-in-fact  if your first choice is unwilling or unable to serve.

Creating a durable power of attorney assures that your wishes regarding your financial affairs are carried out exactly as you want them, allows you to decide who will make financial decisions for you, and can be effective immediately or upon your subsequent incapacity or disability.

For more information on preparing your Durable Power of Attorney, and  establishing your comprehensive estate plan, contact an experienced estate planning attorney.

I’m attorney Eric Rudolph at (760) 702-4046 and at EARattorney@gmail.com with Your Legal Buzz.

And please visit my website at www.RudolphLegal.com and my Facebook page at https://www.facebook.com/RudolphLegal.

ADVANCE HEALTH CARE DIRECTIVES - WHAT YOU NEED TO KNOW

An Advance Health Care Directive allows you to make health care decisions for yourself and let those wishes be known when and if you are incapacitated and unable to communicate your wishes.

A "Living Will" and "Power of Attorney for Health Care" are similar documents used in other states, but in California, the Advance Health Care Directive (“AHCD”) is the estate planning document that is used to let your wishes regarding medical decisions be known.

One of the most important aspects of an AHCD includes the power to designate an agent to both enforce the decisions you have already made in your AHCD and to make decisions regarding health care options for anything you did not already decide.  Once you designate an agent in your AHCD it gives this person the power and ability to decide, on your behalf, various health care related choices. Your agent can be a spouse, child, a family member, or a friend.  To avoid conflict-of-interest issues, the agent you select cannot be a medical care provider, operator of a community or neighborhood care facility, operator of a care facility for the elderly, or in most cases, any employee of any of these facilities.

The agent you appoint, will have the legal authority to instruct medical providers about your medical care if you are unconscious or unable to give these instructions yourself. Your agent is legally bound to carry out your wishes, as put forth in your AHCD.  If you at some point become incapacitated, your agent's authority overrides others' and this person will decide on your behalf various treatment options, as spelled out in your AHCD. You may limit your agent's authority when you complete your AHCD or give him or her complete authority to make all healthcare decisions for you.

You should also designate one or two alternate agents for your healthcare decisions in the event your primary choice is unable or unwilling to act when the time comes that they need to instruct others on your help care decisions or make these difficult decisions for you.

It is important when choosing an agent for healthcare decisions that you discuss your designation with them before you select them in your AHCD.  You should make sure the person you selected is trustworthy.  They also need to be capable of handling the difficult task of enforcing your healthcare decisions or making them when necessary.  They should be someone who is geographically close enough to be there to make decisions under short notice if necessary.  And it is also important to discuss with alternate agents that they too have been selected to act in the event your primary choice cannot or will not act.

When you create an AHCD, you decide what you want, including use of life support equipment, donation of body parts, authorization for an autopsy if warranted, and what is to be done with your remains. Your agent simply makes sure your wishes are carried out.  You may also deny these powers of your agent. Health care decisions may also include selection and dismissal of health care providers and institutions, diagnostic test or surgical procedure approval or disapproval, medication programs, and directions to provide, withhold, or withdraw artificial hydration and nutrition and all health care of other forms, including cardiopulmonary resuscitation.

Your AHCD becomes operative when the doctor, or doctors, of your choice designate that you are incapacitated and unable to convey to medical personnel your healthcare decisions for yourself or understand the ramifications of those decisions.  Or an AHCD can become operative right away, giving your agent the immediate power to make your health care decisions.

And remember, your AHCD can be revoked by you at any time. If you do not revoke the AHCD, it will remain effective indefinitely except in the event that a termination date that predates your death was specified in the document.

It’s your body, your decision.  By creating an AHCD you decide what happens to you and you decide who enforces those decisions.  Without an AHCD someone you may not want making your healthcare decisions could be making them for you - and they could be making healthcare decisions about what happens to you that you do not agree with.  Don’t let that happen.  Create an AHCD today!

For more information on preparing Advance Health Care Directives, and your entire comprehensive estate plan, contact an experienced estate planning attorney.

I’m attorney Eric Rudolph at (760) 702-4046 or EARattorney@gmail.com with Your Legal Buzz.

NOISY NEIGHBORS - WHAT TO DO

Is your neighbor blasting his stereo at 3 a.m.? Does your neighbor's dog start barking five minutes after she pulls out of her driveway? Noisy neighbors can wreck your sleep and ruin your day. What can you legally do to make it stop?

When it comes to noisy neighbors, retaliation is not the answer. Revenge will only make the situation worse, and probably provoke your neighbor. Resist the temptation to turn your stereo up and fight back. Your neighbor may have no idea how loud her stereo or barking dog may seem to you. So talk to your neighbor about the noise level problem. You should make a specific suggestion for solving the problem. Maybe you and your neighbor can agree no loud stereos past 10 p.m. on weeknights. Or perhaps your neighbor's pet can be kept indoors while she is away, so barking won't disturb others.

If the noise continues, get a copy of your local noise ordinance. Most noise ordinances limit the level of noise and restrict the time when noise can occur. Check with other neighbors to see if they're also disturbed by the noise. If so, they might be happy to join forces to put a stop to the noise.

Put your complaint in writing.  Write a letter to your neighbor, describing the noise problem, and include information about your previous conversation(s) asking the noise be quieted or stopped. Suggest in the letter that if the noise doesn't stop, you'll be forced to call the police or start a lawsuit. Enclose a copy of the noise ordinance with the letter and the signatures of other neighbors who are also affected by the noise. If nothing else works, you should call the police while the noise is occurring. The police may simply warn your neighbor, but later if called again, they will issue a ticket or summons if the noise continues.

If all else fails, you can take your neighbor to small claims court. You'll likely have to prove that the noise is excessive and you'll also need to show the steps you've taken to try to stop the disturbances - here's where copies of your letter to the neighbor can come in handy.

Regardless of the approach you take, the more polite you are, the more likely you'll come to a livable solution to the problem and get along with your neighbor in the future.

I’m attorney Eric Rudolph with your Legal Buzz.

E-MAIL PRIVACY AT WORK

Are the e-mails you send from work private?  Are your internet searches from work private?  Does your employer have a right to look at your personal e-mails sent from work and to monitor the websites you visit?

Assume that you have no e-mail or internet privacy while at work.  Most employers have an "Electronic Media Policy" which gives the employer the right to monitor their employees' email and internet usage.  Do you really want your employer to know your weekend plans or what you did at your friend's party?  Even if your employer does not have the written policy in effect, most courts seem to hold that an employee who uses an employer provided computer or other electronic media device at work does not have the same "expectation of privacy" that they would have in their personal life.

Employees really don't want their employers looking into their personal lives uninvited.  If the employee makes a claim or complaint against their employer, the employer's electronic media policies often allow an employer to go back once they have been sued by an employee and look at the employees old emails and web surfing history to find evidence to use against the employee. This can include emails from the employee to their attorney or other communications that the employee might otherwise have kept private.  This type of "after acquired evidence" is admissible in lawsuits and can severely limit the damages a wrongfully treated employee will receive from their employer.

It is better to not conduct your personal life on the company computer or electronic devices, and do not communicate with your attorney on company email or the company computer, especially if that communication relates to a potential lawsuit against your employer.

I’m attorney Eric Rudolph with Your Legal Buzz.

WHAT TO DO WHEN PULLED OVER BY THE POLICE

How do you deal with a police officer during a routine traffic stop?

A traffic stop can be stressful and scary. This is what you need to know to protect your rights and improve your odds of driving away safely.

The most important thing to remember when you are pulled over by a police officer is to remain calm and keep your cool.

If a police officer flags you down, pull over immediately, turn off your car, put your keys on the dashboard, and place your hands on the steering wheel. Police like to see your hands for their own safety -- so wait until they request your license and registration before reaching for them. If you’re pulled over at night, it’s also a good idea to turn on the car’s interior light, so the officer can see you're not armed and that you are calm.

Always greet policemen and policewomen as "Officer". For example, you may start off with "Good afternoon, Officer. How may I help you?" Under no circumstances should you ever talk back, raise your voice, or use profanity with a police officer. Being hostile with the police is stupid and dangerous. You can't win that game!  If the officer asks you questions, keep your responses short and speak slowly.  If the officer is all business and does not want to hear what you have to say, remain quiet.  When the officer requests your license and registration, slowly reach to the location where they are kept, slowly give them to the officer and place your hands back on the steering wheel.

If the officer writes you a ticket, accept it quietly and never complain. Listen to any instruction on paying the fine or contesting the ticket, and drive away slowly.

Being pulled over can be very scary, but if you play your cards right, you can keep it short and simple and not make matters worse than they already are.

I'm attorney Eric Rudolph with Your Legal Buzz!

JURY DUTY

We have all received that notice that we have to report for jury duty.  But we all want to get out of it.  If you are summoned to jury duty, do you have to respond?

If you are summoned for jury duty you have to respond. If you fail to respond to a jury summons, you can be held in contempt of court, you can be fined or imprisoned or both. If you cannot serve on the summons date, however, ask for a postponement to a more convenient time. You are entitled to one postponement. You might be excused from jury duty if such service would cause “undue hardship” for you. Also, if you do not meet the eligibility requirements for jury service or you are a peace officer or under a conservatorship, contact your local jury office - you might be disqualified or temporarily excused from service. Whatever your circumstances, however, do not ignore the jury summons.

Why would a judge excuse some people from jury duty and not others?

Judges have the right to excuse prospective jurors for a variety of reasons. The prospective juror may have:

• An immediate family members related to someone involved in the case.
• A financial interest in the case.
• A felony conviction, prejudice or bias or an opinion regarding the outcome of the case.
• The judge may also excuse a potential juror if service on the jury would cause undue hardship.

Judges may use their discretion.

And remember an employer is required to give an employee time off for jury duty. It is against the law for an employer to fire or harass you for reporting to jury duty as long as you have given the employer reasonable notice. If this occurs, notify your local jury office or the judge assigned to your trial. There are also laws allowing students to be excused from classes to fulfill their jury service.

I'm Attorney Eric Rudolph, with Your Legal Buzz!

SWIMMING POOL LIABILITY

Your swimming pool can offer fun and a welcome break from the desert heat. But your pool can be dangerous, too. You need to avoid tragedy—and liability—this season by keeping your pool safe.

Drowning leads to hundreds of deaths and many more injuries in California each year. Children under 10 accounted for many of these deaths and more than half of the injuries. Swimming pool accidents are tragic, but they are preventable if you take "reasonable precautions."

If you own or rent a home with a pool, you must carefully supervise swimmers, especially children.  Make sure you keep your pool equipment in good working condition.  And provide barriers to prevent unsupervised use of the pool. If you don't take such "reasonable" precautions, you may be sued for any deaths or injuries that result—even if the injured person didn't have permission to use your pool.
Supervision is vital. Watch your kids at all times—drowning can occur in a frighteningly short time. It's important to keep adults in line too. Don't allow your guests to run near the pool, make unsafe dives, or swim while intoxicated. Make sure no one, young or old, swims alone.

Maintaining your pool is also important. Uneven paving or unusually slippery surfaces, broken lifesaving equipment, damaged ladders and slides, or broken or ineffective fences or pool covers can all be dangerous. Contaminated water can lead to illness—make sure you are using the right amount of chemicals, and that you keep your pool clean. It's particularly important to take children on regular bathroom breaks and check diapers regularly.

Barriers such as fences and safety covers play an important role in preventing accidental drowning, especially in young children. Most children who drowned were last seen in the house, patio, or yard before finding their way into the pool. Effective barriers or alarms go a long way toward preventing these injuries and deaths. Because barriers are so helpful, the California Health & Safety Code requires that newly-built or remodeled private pools have certain safety features, such as a fences, door or pool alarms, or safety pool covers.

These are good guideline to what "reasonable" precautions may mean. Adding them can keep your family, guests and neighbors safe, and protect you from costly lawsuits.

TOP TEN REASONS TO CREATE AN ESTATE PLAN—AND HOW TO GET STARTED

With an estate plan, you can:

1.       Provide support and financial stability for your surviving spouse or partner, children, and grandchildren.

2.       Preserve your assets for later generations.

3.       Make sure your wishes are carried out when you can no longer manage your affairs. It's important to have both a power of attorney and an advance health care directive.

4.       Support a favorite charity or cause with a gift of money, securities, or other property.

5.       Distribute assets in a timely fashion, with a minimum of legal hassles.

6.       Minimize taxes and expenses that can go along with transferring assets.

7.       Meet expenses and prevent the forced sale of assets to do so.

8.       Avoid problems for your loved ones by ensuring that the beneficiaries named on your life insurance and retirement plans are the people you want as your beneficiaries.

9.       Protect your family's privacy with an estate plan designed to prevent your will from becoming public record.

10.   Set and meet expectations of your survivors so there is no confusion or misunderstanding.

So how do you begin? A good first step is to take an inventory of your assets and estimate their value. Give careful consideration to your potential beneficiaries and how you want them to benefit from real property or the other assets of your estate.

You may be a do-it-yourselfer when it comes to other aspects of your financial life, but estate planning is one area where it is smart to get professional help. Among other things, the process can entail preparing a will, creating trusts, naming beneficiaries for insurance policies and retirement accounts, and selecting guardians for minor children. In addition, you may need to plan to minimize estate taxes.

Given the complexities, you'll want to work with a qualified estate planning attorney. Depending on your situation, you may also find it helpful to work with other professionals, including a financial planner or investment manager, a trust officer, an insurance agent, or an accountant. Keep in mind, the attorney must be the one who drafts your estate planning documents.

To find qualified estate planning professionals, ask friends, financial and legal advisors, and colleagues for recommendations. Before hiring anyone, it's a good idea to interview candidates and check their credentials. They should provide you with an explanation of their fees and an estimate of how much their services will cost.

Estate planning involves some of your most personal information, so it's important that you and your family are comfortable with the estate planning professionals assisting you.

For more information contact us at (760) 702-4046 or go to www.RudolphLegal.com

GRANDMA’S CHINA

Grandma had the most amazing china. Her three adult grand-children continued to fight over who would get grandma’s china when she passed away. It wasn’t the house, the car or the money that her three grand-children bickered about, but rather the source of the commotion was Grandma’s fine china, routinely used to serve dinner on the most special of occasions.

Unlike financial assets, which can generally be divided easily among your heirs, tangible personal property is unique. And the complications associated with distributing a lifetime’s worth of possessions is something that many people overlook. Families have been torn apart over everything from ownership of a valuable painting, to the grandfather clock, to the gun collection, to who gets Mom’s recipe box. Sometimes the object in question is an item of substantial material value, but just as often the appeal is purely sentimental. People get emotionally attached to objects that symbolize the person who has passed away.

Discussing these issues while parents and grand-parents are still alive is preferable to letting children duke it out for themselves later. Some people address this subject before they die, by giving away possessions as they downsize, by asking which things have special meaning to particular family members, or by leaving directions about how personal property should be divided. Others have had adult children and grand-children express their preferences by putting their names on the bottom of things while the older generation is still alive.

If there are only one or two valuable possessions, your estate plan might direct the executor of your will or the trustee of your revocable living trust to sell the diamond or the painting, for example, and divide the proceeds among your heirs. If one of them really wants a particular item (like Grandma’s china) and has the funds, he or she could buy it from the estate for fair market value. Another approach, if only one person asks for certain expensive pieces, is to honor those wishes and reduce that heir’s share of other assets. To steer clear of conflicts, designate an independent third party to divide the assets.

For sentimental items that you want to go to specific people, it’s best to say so in your estate planning documents. For instance, in her will, Jacqueline Kennedy Onassis directed that most of her personal property go to her children, but she gave a handful of personal items to other people. She left her longtime companion, Maurice Tempelsman, a Greek alabaster head of a woman; her lawyer a copy of John F. Kennedy’s inaugural address signed by Robert Frost; and a close friend a couple of Indian miniatures.

The question is what to do about those sentimental personal items. One possibility is to direct your heirs to divide belongings in substantially equal shares and if they sell anything, to use the cash to equalize things. Another is to map out a very specific rotation of choice – for instance, by birth order – so that everyone gets a turn at having dibs on an item.

No matter what you decide, make sure you make these decisions in your estate plan.  By designating who will receive the china before she dies, Grandma can make sure that her grand-children won’t come to blows and that the china will peaceably pass to the next generation.

RESTRAINING ORDERS

There are any number reasons why you may need a restraining order. Your spouse or partner is abusing you or your child, someone you once dated is stalking you or an ex-friend keeps harassing you for money. In cases like these, and hundreds just like them, a restraining order is the best way to protect your safety and give you peace of mind.

Once you've made the decision that you need to obtain a restraining order, it's time to act. Knowing how to get a restraining order and how it will be enforced is the only way to get the protection you need.

·         Getting a Restraining Order

First, you need to do the paperwork. You can get the forms at your local courthouse, or you can find them online. Many shelters and domestic abuse prevention organizations also have them.  Once you have the forms, the process goes like this:

Complete the forms, describing the abusive or harassing behavior in as much detail as possible.

Take your forms, your ID and any identifying information about the person you seek protection from to your local courthouse and file them with the court clerk.

The court clerk takes your forms and information you provide to a judge, who will decide if a temporary restraining order is needed until a hearing on your application can be heard.

A hearing date for the permanent restraining order is set.

Important: Arrange for service of process on the person you are seeking to have “restrained” by the order. It gives that person notice of the hearing so they can appear at the hearing.  They have the right to be there, so you have to make sure you have them properly served.

At the hearing, you must show the judge the abuse or harassment, and your need for protection. The judge decides whether to issue the permanent restraining order, usually that same day.

·         Enforcing a Restraining Order

Once a restraining order is granted, you should make several copies of the order and keep one with you at all times. Also leave a copy of the order at work and at your children's school or daycare. An abuser or harasser breaks the law when they don't follow the restraining order's terms, which usually means they come within a certain distance of your child or you.

Important: But it's up to you to make sure the order is enforced! Call the police immediately if the person violates the order. The police should make a report of the incident, and if necessary, enforce the order by ordering the person to leave you alone or, if necessary, by arresting that person. In cases where the police refuse to act, usually you can:

File a civil lawsuit for contempt of the order against the person.

Talk to your local prosecutor about pressing criminal charges.

The person will most likely face jail time, a fine or both for violating the restraining order.

People do not want to find themselves needing to seek a restraining order. But when it happens, you must act to protect yourself.  Stand up for your protection, your property and your loved ones by using the law to get a restraining order when you need it.

PET TRUSTS IN CALIFORNIA

Do you love your pet?  Do you consider your pet to be part of your family?  Are you concerned about what will happen to Fluffy or Fido if anything happens to you?  If your answer to any of these questions is "yes," please read this blog and learn more about how you can create a pet trust to insure that the people you want will care for your pet when you can no longer do so.

·         What is a pet trust?

It is a legally enforceable document that insures your pet receives the care you would have provided had you not passed away or become incapacitated.

·         How does it work?

You name one or more persons to act as a trustee, the person who will use the money or property you put in the trust for your pet's benefit.  The caregiver you chose will care for your pet with a portion of your assets paid by the trustee.  The trustee will check periodically on your pet to make sure he or she is receiving the level of care specified in the trust instrument and that the monetary allowance left to the pet’s caregiver is being used for the care and feeding of your pet.

·         What are the main types of pet trusts?

There are two basic types:

1.      The first is the testamentary trust which takes effect on your death.  It is created during your lifetime with the assistance of an experienced estate planning attorney and is found in your Will.  Like the statutory pet trust described below, it details your pet's likes, dislikes, routines, medical history and anything else you believe a caregiver must know in order to give your pet the quality of life you provided.   The trustee pays for your pet’s expenses and the caregiver continues in that capacity as long as your pet is alive.

2.      The second type, a statutory pet trust, is also created during your lifetime with help from an experienced estate planning attorney.  It is called a statutory pet trust because its existence is expressly sanctioned by the California Probate Code.  This code section was recently amended to require your trustee honor all the terms of trust.  It also gives third parties the right to initiate court proceedings to further the interests of the pet trust.  And it gives the court the authority to appoint a new trustee and to ". . . make all other orders and determinations as it shall deem advisable to carry out [your] intent."  

Most pet owners are best served by choosing a statutory trust in which they act as the original trustee with someone else named as the successor trustee.  The trust instrument can anticipate and deal with all the situations that may arise during their pet's life and, even more importantly, it will provide detailed information to insure that the likes, dislikes and routines of your pet are made known and respected.  

·         When can I create a trust?

A pet trust can be created during your lifetime.  A statutory trust is effective once it is created while a "testamentary trust" goes into effect on your death.   A statutory trust can be funded as needed and can be supplemented by a gift in your will. The major drawback to a testamentary trust is that it cannot be funded until your will is probated, which is often a lengthy period during which your caregiver will have to bear all your pet's expenses.  However, if you set up a testamentary trust in your revocable living trust, this problem can be minimized (see an experienced estate planning attorney to prepare your revocable living trust that includes a testamentary trust for your pet).

·         How do I fund the trust?

If it is a testamentary trust, through assets designated in your will or trust.  If it is a statutory trust, the best approach is to open a bank account in the trust's name over which you, as the original trustee, have control during your lifetime and which you can supplement as your financial situation allows.  Either type of trust can be funded with virtually any asset you may own.  Popular approaches include naming the trust as a full or partial beneficiary of a life insurance policy, annuities or retirement accounts or pay on death bank accounts.  You can also transfer real estate to the trust through your will or revocable living trust.

·         How much should I put in my pet’s trust?

That depends on many factors.  Is the trust for the benefit of one pet or multiple pets?  What is the age of the pet and what are the anticipated veterinarian needs?  What is the standard of living for your pet?  Will the trustee and/or the caregiver be paid and, if so, how much?  Will the trust pay for sitters or other temporary caretakers if the caregiver is unavailable?

·         What happens if I put too much money in the trust?

You may recall the case where a court reduced the amount that Leona Helmsley left for the care of her Maltese, Trouble, from $12 million to a more "modest" $2 million.   The court has no express power under the Probate Code to reduce the amount placed in the trust; however, if it is an excessive amount, family members may try to undermine your intentions.  The best approach is to put no more than twice the amount you believe will be needed.

·         What happens to any money left in the trust on the death of my pet?

You can and should designate in the trust the persons or organizations you want to receive the surplus money after your pet passes away.  Many leave the remainder to relatives, friends or to organizations like the Humane Society, the SPCA or local animal rescue groups.  You should be very careful about leaving the surplus to the caregiver as that person may be tempted to put his or her financial interests ahead of the welfare of your pet.

·         Who should I select to act as a trustee?

It should be someone who cares about your pet and who will devote the time necessary to handling the trust's finances and periodically monitoring your pet's care.  Most importantly, it must be someone who has agreed to and can meet these responsibilities throughout your pet's lifetime.  Because this is not always possible, it is important to name successor or replacement trustees.

·         Who should I select to act as a caregiver?

Ideally, you want to select someone you believe will provide a good home for your pet.  Relatives, friends and neighbors are all good candidates but if none are available there are organizations that will take on this responsibility.  Successor caregivers should be named to give the trustee the option to place your pet elsewhere should circumstances warrant a change. 

·         What happens if the trust runs out of funds before my pet dies?

If this occurs you are dependent upon the good will and financial circumstances of your caregiver.  It is for this reason that you should use great care in choosing this person and his or her successors.  The trust instrument should contain a provision naming a person or organization you want your pet to go when all else fails. 

·         How do I create a pet trust for my pet?

Contact the Law Offices of Eric A. Rudolph for more information on pet trusts.  The initial consultation is always free.

HOW TO FILE YOUR BANKRUPTCY CASE

• Gather Your Records

The first thing you do in order to file your bankruptcy case is gather up all of your bills, including credit cards to mortgage and car payment slips. Include medical bills, parking tickets, tax records and other documents that show what you owe a creditor. It doesn't matter if you don't know the exact amount. As a matter of fact, even if you might owe somebody money, and even if it is disputed, your bankruptcy lawyer will want to know about it. Also include your bank accounts, your insurance policies and anything else which has value or entitles you to money. Don't forget to include any pending lawsuits brought by you, including personal injury claims or civil rights lawsuits as these are considered assets of your estate.

• Find A Good Bankruptcy Attorney

Check out recommendations from satisfied clients and peers. Consider whether the attorney files a lot of consumer bankruptcy cases. You should check whether the attorney has suffered disciplinary sanctions (check with the CA State Bar). You'll want to discuss attorney’s fees and costs in advance. Your attorney should give you detailed bankruptcy disclosures as well as a proposed fee agreement, in writing, at your first meeting.3

• Credit Counseling

You can't file a consumer bankruptcy case without first taking a consumer credit counseling course. It takes about an hour or two. If you don't take the consumer credit counseling course, your case will be dismissed.

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• The Means Test - Are you eligible for Chapter 7 or Chapter 13?

You'll need to gather more records for this. You need pay stubs from work for the last six months. You'll need records showing how much you pay on your mortgage and car loans. You'll need proof as to how much you spend per month. You must be very careful to be accurate about this. If you don't "pass" the means test, your chapter 7 case might be dismissed. Work carefully with your attorney. The means test is how we determine whether you are eligible to file a case under chapter 7 or whether you must file under chapter 13.
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• Your petition and schedules

You'll need to work with your attorney to develop a budget of your current income and expenses. So keep in mind how much you spend on housing, food, medical expenses, insurance, and other similar expenses in your household. This budget is important in developing a plan to pay your debts in chapter 13. It is also important to see whether you must file a chapter 7 or a chapter 13 case. In chapter 13, you'll spend 3-5 years paying your disposable income to a trustee. This money will be used to pay some or all of your debts. Once this is done, you'll work with your attorney to prepare your bankruptcy petition - the paper which takes you into court - and schedules which show all your assets and liabilities. You'll also complete a Statement of Financial Affairs. Tell the truth in all respects. Don't hide anything. Otherwise, you could lose your right to a discharge and may even be committing a bankruptcy crime.6

• The "341 Meeting of Creditors"

After you file your bankruptcy petition, you'll attend a meeting with your attorney. There, you will meet a trustee, whether you file a case under chapter 7 or chapter 13. The chapter 7 trustee will want to know if you have assets he can sell to pay creditors. The chapter 13 trustee will want to know if your plan is acceptable and can be confirmed. So answer all questions completely and carefully. Always bring your social security card and a government issued photo identification card to this meeting. You will be sworn as a witness and must answer all questions truthfully.7

• Take the financial management course

After you file your bankruptcy case, you must take another course - the financial management course - in order to receive your discharge in bankruptcy. Don't forget to do this or your case will be closed without a discharge. Then creditors will have the right to continue to collect from you even though you filed a bankruptcy case. You'll have to pay a fee of at least $250 to reopen your case, just to file the certificate of financial management course and you may have to pay additional attorney fee as well.8

• Reaffirm Debts if Advisable

If you have a debt secured by property, it may be advisable to reaffirm that debt, either on the original terms or better terms negotiated for you or by your attorney. You'll have to sign an agreement to do so. You'll have to be able to afford to pay the reaffirmed debt. If it looks as if you won't be able to pay, you'll go to court where you will have to explain to the judge how you can afford to continue to pay. It may or may not be to your advantage to reaffirm any given debt. Discuss this with your attorney.9

• Your Discharge - Your Credit

Keep your discharge and treat it as an important document. Send it to all of the credit reporting agencies. These are Experian, Equifax and Trans-Union. Start rebuilding your good credit by paying your obligations on time. Check your credit report 6 months after bankruptcy to be sure that old debts are no longer listed. Challenge anything that's wrong. And if need be, call your attorney and ask him to take steps to correct any errors. You will be solicited for credit card offers after bankruptcy. Accept them sparingly and never accept a credit card or other offer which you absolutely positively can afford to honor. Soon, you will be on your road to financial recovery and a fresh start.

REVOCABLE LIVING TRUSTS IN CALIFORNIA

Revocable Living Trusts are used by individuals and couples in California to avoid having their estates subject to probate. In California, if your estate’s market value is over $150,000, it will most likely be subject to probate.  A Revocable Living Trust can help you avoid probate.

• What is a Living Trust?

Revocable Living Trusts allow you to retain full control over trust property while you are still alive. After your death, the property in the trust is transferred quickly to your beneficiaries without the complications of probate. Revocable Living Trusts are very flexible estate planning devices because they allow you to transfer some or all of your property by trust. Also, Revocable Living Trusts are not made public upon your death, unlike a will that becomes part of the public record after going through probate. A living trust is called “living” because you make it while you are alive. A revocable trust is one that you can revoke (cancel) or change at any time, for any reason, before you die. Because you may change it at any time, you effectively own all the property you have transferred to your Revocable Living Trust and can do what you want with that property, including sell it, spend it or give it away.

You create a living trust by transferring assets to be held for your benefit or the benefit of your loved ones during your lifetime. A trust can either be revocable or irrevocable, depending on your needs. The living trust can be created with a legal document that includes instructions setting forth to whom you want to leave your assets, in addition to who will manage your assets and how they will be managed if you become unable to manage them. A living trust allows you to maintain control of your assets while making sure the assets are managed according to your wishes upon your death or incapacity.

When you establish a living trust, the next step will involve transferring assets into the trust, such as real property and personal property. After the transfer, these assets still remain in your control. Furthermore, transferring assets to your living trust will not trigger federal gift, estate, or income tax consequences because, although the assets are held in the name of you as the trustee of your living trust, you are still considered the owner for tax purposes.

• What is the Purpose of a Living Trust?

The revocable living trust is typically used instead of a will. The primary reason to have a trust is to avoid or minimize court costs and legal fees associated with probate and estate administration. Probate fees can range anywhere from 3%-7% of your total estate. The assets placed in the living trust are not subject to probate or estate administration.

• What Happens When I Die? 

When you die your co-trustee or successor trustee will carry out the instructions set forth in your trust and distribute your assets to your named beneficiaries. The beneficiaries of the living trust can be people or organizations, such as family members, friends, or charitable organizations. But remember, the assets held in your living trust will be subject to federal and state taxation. However, your attorney can add provisions in your living trust to help reduce and possibly or even eliminate taxes, depending on the size of your estate. If your primary concern is to avoid burdensome federal estate taxes, you should consult with an experienced estate planning attorney to consider alternative options.

• Conclusion

A revocable living trust can be a valuable estate planning tool to help you maintain control over your assets during your lifetime and at death. A living trust may be used as a will substitute, allowing flexibility for lifetime changes such as marriage, partnership, divorce and children. A living trust can also help you reduce or eliminate probate and administrative expenses when your estate is settled. By creating a living trust, with the assistance of an experienced estate planning attorney, you can lower estate costs and fees and avoid unnecessary taxation at the federal and state levels.

ELDER ABUSE - WHAT YOU NEED TO KNOW

A great majority of people give their aging parents and grandparents the love and care they need and deserve. Unfortunately, that's not always the case. In fact, millions of our senior citizens suffer from abuse or neglect each year.

Senior citizens are not unprotected. The law is there to keep our seniors safe and healthy and to punish abusive or neglectful caregivers.

Who are "Elders?"

While all 50 states have laws addressing the problem of elder abuse and neglect, the laws aren't uniform. Under the Federal Older Americans Act (OAA), anyone at least 60 years old is an elder or senior citizen. Many states use the same age as the federal law, but some states use the age of 65.

What is "Abuse?"

Each state law specifically defines elder abuse. Typically, state law definitions include physical abuse, neglect or a deprivation of care that causes an elder physical harm, pain or mental suffering. Neglect may be:

·         Passive, such as where a caregiver's illness, disability, stress, ignorance, lack of maturity or lack of financial resources causes the caregiver's neglect;

·         Active, such as when a caregiver intentionally harms the elder or withholds care from an elder, or when there is hostility and tension between the elder and the caregiver;

·         Also, many states include any form of non-consensual sexual touching as abuse. Some states even include self-neglect, such as when elders can't or refuse to take proper care of themselves. State agencies usually step-in and provide care in these situations.

Abuse May Be a Criminal or Civil Offense

There's a growing trend to treat elder abuse as a criminal offense with enhanced penalties and sentences. Elder abuse statutes provide a range of criminal punishments, such as fines, jail or both. Sentences for crimes like assault and battery, sexual abuse, theft and fraud are usually tougher when elders are the victims.

Some states let elder-victims or their families to sue abusive or neglectful caregivers and recover compensatory and punitive damages, court costs and attorney's fees. This is on top of any criminal charges the caregivers may face.

Penalties for Care Facilities

Usually, there's a separate penalty scheme for facilities and workers who abuse the elderly in institutional settings. In some states, nursing homes and other institutional caregivers and their works are subject to penalties including loss of license, censure and fines. Again, abusive or neglectful staff members and workers may face criminal charges, too.

Reporting Requirements

Most states require elder abuse to be reported to an agency. Several states require anyone who witnesses it to file a report. Most states, however, require reporting by health and human services professionals, long-term care facilities employees and law enforcement personnel.

In a handful of states, financial professionals, such as bankers, and clergy members are required to report abuse as well.

As a general rule, anyone with the responsibility of reporting elder abuse must make a report if they have a "reasonable belief" that an elderly person has been the victim of abuse.

Penalties for Not Reporting

Most states make the failure to report elder abuse a misdemeanor punishable by a fine, jail time or both. In a few states, anyone who is required to report and fails to do so may be sued by the elder or the elder's family members.

In practically all states, the name of the person who makes a report or files a complaint is kept confidential.

Investigation Procedures

State agencies, such as local adult protective services agencies, are usually in charge of investigating complaints of elder abuse. Local police departments may also start an investigation after receiving a compliant and then turn the matter over to the agency.

Also, each state has an ombudsman to investigate complaints of elder abuse in institutional settings, but ombudsmen may investigate some cases of domestic abuse involving elders - abuse that takes place in a private home.

We have these laws and civil and criminal penalties because elder abuse cannot and should not be tolerated. Like our children, many of our senior citizens are incapable of defending themselves against abuse and neglect. It's up to us to properly care for and protect them.

If you suspect someone you know or love is the victim of elder abuse, contact the proper authorities.  If you believe someone in California is or was a victim of elder abuse and you want to take civil action against that person or facility, contact our offices at 760-702-4046 for more information.

PERSONAL INJURY IN CALIFORNIA – WHAT YOU NEED TO KNOW

What Should I Do Right After My Accident or Injury?

Have you been injured as a result of someone else’s carelessness or negligence?  If so, here are some very important steps to take when you've been injured to help make sure your claim is settled fairly and quickly:

·         Seek medical treatment as soon as possible for your injuries; even if you are taken to the emergency room from the scene of the accident, see your primary care physician right away to be referred for tests, obtain required prescriptions for pain and any referrals for additional treatment, including physical therapy or chiropractic treatment;

·         Take photographs at the scene of the car accident or injury scene and any damaged personal belongings; take photographs of any visible injuries such as bruises or cuts;

·         As soon as possible, write down everything you remember about the accident, including when and where the accident occurred, the names, addresses and phone numbers all parties involved and any witnesses; and all insurance information for other parties;

·         Talk to a California personal injury lawyer before making any statements, written or verbal, to insurance company adjusters or representatives;  you may talk to your own insurance company (and you should always report an accident to your own insurance company), but never talk to the other parties’ insurance company representatives until you have talked to a California personal injury attorney;

·         Get a copy of the police report when it is available – this report is very important to your attorney.

How Do I Figure Out Who Is at Fault?

In most cases, you must prove the person who caused the injury was negligent and that he or she did not use reasonable care. In California, you must prove:

·         The person who caused your injury owed you a duty of care;

·         The other person broke or breached that duty of care;

·         The other person's failure caused your injury;

·         You suffered damages (you must have damages!).

Under California's comparative negligence law, if your carelessness or negligence in some way helped cause your injuries, the amount you may recover could be reduced by your degree of fault; but this is not always the case so talk to an attorney first even if you think you may have contributed to your injuries.

Under California's joint and several liability rules, all parties responsible for your injuries are responsible for all of your economic damages. These include medical expenses and lost wages. Each person may be forced to pay all of your damages regardless of their degree of fault.

The law is different for noneconomic damages. These include pain and suffering and emotional distress. These damages are split between those who caused your injuries according to their degree of fault.

What Is My Claim Worth?

Under California law, the person who caused your injury is responsible for:

·         Past, current and future estimated medical expenses

·         Time lost from work, including time spent going to medical appointments or therapy

·         Any property that was damaged, such as your vehicle or personal items in your vehicle

·         The cost of hiring someone to do household chores when you couldn't do them

·         Any permanent disfigurement or disability

·         Your emotional distress, including anxiety, depression and any interference with your family relationships

·         Any other costs that are a direct result of your injury

How Long Do I Have to File a Legal Claim?

In most California personal injury cases, you only have two years to file a lawsuit against the person or persons who caused your injuries. If your attorney has not been able to come to a settlement agreement with the responsible parties’ insurance companies or the parties themselves, you definitely want to file a lawsuit before the two-year statute of limitations runs out.

For more information on your personal injury claim, visit our website at RudolphLegal.com and contact us.