A will is what is called a “testamentary” document.
This means that it has no effect while you are alive, but if written
correctly, it becomes a valid, binding legal document after you pass
away. Many people believe that if you have a will, you will avoid
Probate, but this is not true. Only the Probate Court can legally
and finally interpret a will. Wills must be written in very specific
ways or they will not be honored by the Probate Court. These specific
requirements are detailed and vary for each State. Some people believe
they can prepare a will without the assistance of a lawyer, or that,
on their own, they can change the will they got from a lawyer. In
general, this leads to a determination that the person passed away
without a will, and it means the estate will not be probated the
way the person thought it would.
A trust is an alternative way of providing for your care while you are
alive, and for the transfer of your assets after you are gone. A trust
can be included in your will, but that means that some of the most important
advantages will be lost. The better approach, generally, is to create a
Revocable Living Trust. This is a document that takes effect while you
are alive. It plans for when you are sick and also for after you have passed
away. It is “revocable”, which means you can continue to modify
it as your life changes. Because a Revocable Living Trust is a creation
of contract law, it can be written any way you need it to be written in
order to accomplish your goals. In other words, it can give you maximum
flexibility, which can be helpful if you have a special situation such
as a second family or a need to take care of special people. It also can
take care of you while you are alive, as well as after you are gone. One
of the nicest things about a trust is that it can allow you to separate
responsibilities so that, for example, the person who is good with children
need not also be good with money. The job of caretaker and the job of trustee
can be separated. Of course, one of the best aspects of a trust is that
it avoids the expense and complications of probate. If done right, it all
unfolds in the lawyer’s office.
The Probate process exists to wrap up loose ends after someone dies. This
process includes transfer of title to property owned by the deceased, and
payment of debts owed. Once someone dies, the family has one year to start
the probate process. If there is a will, it is filed with the Probate Court
at the start of the process. The Court determines if the will is valid
under the law. If it isn’t, then it will not be followed and the
estate may be handled as though the person died without a will.
Probate lasts for some time longer than six months. It will go on for as
long as necessary to get all the loose ends taken care of. A personal representative
is appointed to handle the affairs of the estate. The opening of Probate
is published and creditors have an opportunity to file a claim. Once all
monies owed have been paid, taxes have been paid, and all the other affairs
of the estate have been taken care of, all the property of the deceased
will be distributed in accordance with the terms of the will, or if there
is no valid will, in accordance with State law.
Note that since Probate exists in part for the benefit of creditors, if
the family or others don’t open the Probate estate, the creditors
have the right to do so.
Probate is a public process, and all records, such as the inventory of
the estate and the contents of the will are open for examination by the
public. Depending upon the wording of the will, the Court will monitor
and be involved in all steps of the process. Fees and costs are involved.
Many people know that a power of attorney is part of an estate plan, but
they mistakenly think that it will give them powers to handle the estate.
This is not true. A power of attorney that is not durable, is only valid
while the person giving the power is alive and mentally competent. A durable
power of attorney continues to be effective after the person who signed
it loses mental competence, but even that still terminates upon the death
of the signor. Accordingly, a power of attorney is not a substitute for
a will or trust. Nevertheless, it is an essential document. This is because
a financial power of attorney gives someone you trust, the ability to handle
your finances while you are alive, if you are unable to do so.
These two documents are the other documents that make up a good Estate
Plan. Just as a durable power of attorney give someone you trust the ability
to handle your finances if you can’t, a power of attorney for health
care empowers someone you trust to talk to the doctors taking care of you
if you can’t. It also relieves your representative of liability for
doing his or her best to help you. A Living Will is another important document.
It states what you want to happen if you are found to be terminal and there
is no hope. This document allows your loved ones to know your wishes so
that they do not feel they are making hard decisions for you. Rather, they
can know that they are simply doing what you would want them to do. This
is something that you do not so much for yourself, but you do it for them.
Small business owners often have legal issues and problems involving contracts,
employees, plans for expansion, liability, and other concerns that simply
cannot be anticipated. But even though they know that calling a lawyer
is the best way to deal with the problem, they simply cannot afford to
call a lawyer every time a problem arises. Unfortunately, this means that
sometimes a problem that could have been handled simply and cheaply turns
into a big, expensive one because it wasn’t taken care of early.
To address this problem and make it easy for small business owners to get
the help they need, The Law Offices of David A. Rubin, L.L.C. offers a
retainer program that allows the small business owner to call a lawyer
for free for all new matters throughout the year. Many clients feel that
even if they do not make a call, the fact they know they have someone who
knows their business, who they can call whenever they need, gives them
the peace of mind they seek from an attorney-client relationship, and that
in itself justifies participation in the program. And many other clients
use the service often and feel they have saved large amounts of money by
taking care of problems when they first appear on the horizon.
Many people know that when they do business, they need a contract. But
they don’t know why or how to do it. They think the words they can
get off the computer or a borrowed form are the most important part of
the legal aspect of the deal, even though they don’t know what the
words mean or why they are there. In reality, the most important part of
the contract, is for the parties to explore all the issues, including things
they may not have considered, and to determine how they intend to deal
with these issues all before any of the issues actually come up. The contract
then must memorialize what the parties decide, and it must do so in terms
that are clear and unambiguous and will hold up in court. Obviously, an
experienced lawyer can add much to this process.
Many small business owners often wonder if their business should take on
an alternate form, and if so, which is best. C corporations, S corporations,
and LLC’s often offer tax advantages and liability protection for
businesses. For both these reasons, it is generally to the advantage of
the business to create an entity that is separate from the individual.
However, the determination of the need and of the best form must be the
product of a consultation with the lawyer and the accountant. Certainly,
every business owner owes it to himself or herself to talk to a lawyer
to determine the best approach.
Additionally, note that to get the benefits the business owner seeks, the
proper creation of the separate entity and the proper maintenance of the
entity and its documentation is essential. Again, it is important that
the business owner speak with an attorney to find out exactly how to do
this. Failure to do so may result in the new alternate entity being disregarded
by the IRS or by the court.
As a former Vice President and Assistant General Counsel of one of the
world’s leading insurance companies, Mr. Rubin has insights into
the handling of insurance issues that many other attorneys do not have.
Often, if the right person can be located at the insurance company, the
matter can be resolved quickly and efficiently. Many lawyers will charge
33% or more to settle an insurance claim. In most cases, the Law Offices
of David A. Rubin, L.L.C. will simply charge an hourly rate, saving clients
thousands of dollars per claim.
