Areas of Practice
What is a Will?
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. Note that a will is the place to name the guardian for your minor children. The court retains jurisdiction over the children until they reach 18.
What is a Trust?
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 guardian and the job of trustee can be separated. Additionally, we can use a trust to take care of all the kids until the youngest is an adult, and then we can use the trust to make sure their inheritance is protected. Of course, another great aspect of a trust is that it avoids the expense and complications of probate. If done right, it all unfolds in private and confidentially in the lawyer's office.
Probate can cost a lot of money and the more disorganized your estate is, the more it is likely to cost. The trust can help you organize everything so it is well planned out. As a result, even though it costs a little more now, ultimately you are saving money and helping the people who will be helping you.
What is Probate?
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.
Power of Attorney
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.
Living Will and Power of Attorney
for Health Care
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.
If you pass away, someone will still need to take care of the kids. The court will appoint a guardian who will report back periodically, to ensure the minor children are properly raised. There is also another kind of guardianship, if a special needs child reaches adulthood (age 18) then parents or someone else needs to take responsibility for their care. Also, if someone reaches an older age and because of alzheimer's or senility, they may not be able to care for themselves. Again someone else must be appointed to look after them. Guardianship confers legal authority on that court appointee. Notice and hearing is required. The court appoints a guardian ad litem --another lawyer -- to represent the "protectee". As an adult, that person has rights that are about to be taken away. The court wants someone neutral to advise it and agree it's a good idea.
Special Needs Trusts
Reference is made to the discussion on trusts above. If you have a child with special needs, it becomes that much more important that money be set aside for that child and that specific provisions be included in your estate plan to make sure the money is used properly for the child's care and to enhance his or her quality of life. It is also essential that those arrangements not interfere with your child's ability to get government assistance. And it is important that all those arrangements be adaptable as your child develops skills or perhaps gains some level of independence. Since a trust continues to "live" long after you -- in contrast to a will and a probate -- it is the best tool for making sure your special needs child is properly cared for throughout his or her lifetime.
Gay Estate Planning
Advice to Small Business
Since Missouri does not recognize Gay marriage, that means that whereas married couples have certain rights that are implied in Missouri, no rights are implied into Gay relationships. But there is an answer. Every person always has the right to write papers conferring rights on any person they choose. This means it is imperative for Gay people to write good papers, empowering their partners to make healthcare decisions for them and to manage their finances for them, just as a spouse would. Note that a trust is usually the best way to accomplish quality estate planning, since it is private and avoids most outside interference.
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.
Corporations and LLC's
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.
Injuries and Accidents
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. Mr. Rubin can help you with personal injury claims and car accidents, so that your recovery is maximized with the minimum amount of time and effort quality work requires.
Many people don't know that our government provides aid and attendance benefits for many qualifying veterans and their spouses. Under the right circumstances, veterans may qualify for more than $2000 per month to help them with their daily needs. Spouses may qualify for more than $1000 per month. Every veteran or spouse of a veteran should understand these benefits and make inquiries to make sure they take advantage of them if appropriate.
Couples in their middle years, and certainly seniors, need to consider how they will pay for their increasing needs as they age. We all need additional help as we grow older. The key is to use the assets we have to maximize the quality of our lives and those of our loved ones as we age. Good planning means we lay out all the assets available, preferably while both spouses are still alive and well, and we figure out if we can use long term care insurance, annuities, investments, or government benefits, to make the best plan we can. In most cases, a combination of all these things is best. What to do and how to do it, is extremely complex and should not be attempted without the help of a professional.
Pet Estate Planning
No, we will not draft a will for your hamster. (How would he sign it? He can't hold a pen!) but what we can do, is draft good documents to ensure that your beloved pet has a good life after you are gone. We can insert language into your estate plan to set aside a small amount of money to be used for food and vet bills. If you prefer, we can go one better and include trust language that appoints someone to handle the money for your pet's care and use it in the ways you prescribe, and then go on to pay the remainder to the caretaker, to your descendants, or to your favorite pet charity. If you have a pet, don't forget to ask us about these options. The failure to do so can mean the difference between a quality life for your pet and a nightmare. Senior pets are difficult to adopt. Many pets with futures that were left up to chance, have not fared well. Cats are simply released into the wild. Dogs are released by the side of the road. Parrots and other intelligent birds have been locked in the basement or in a closet. Don't let this happen to your pet. Be sure to make a plan.
Everybody gets a ticket now and then. If you simply pay the ticket, that's a guilty plea and that means you've got a black mark on your driving record.
At the Law Offices of David A. Rubin, we can "fix" your ticket online. In Missouri, we are allowed to appear on your behalf, so that you don't have to go to court or be inconvenienced more than you already have been. We can usually talk to the prosecutor and work something out that will keep the violation and points off your record. This is very important for your insurance and credit rating.
Sometimes, people pay the ticket and then are sorry they did, when they find they can't get any insurance or there are other consequences. Sometimes we can even talk to the Court and get the guilty plea "undone". We can also sometimes work out arrangements in Illinois, depending on the jurisdiction.
For more information, please go to our ticket page: www.MissouriTicketLaw.com!
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