The period following a loved one’s death can be very painful and confusing. Often times, it also happens that family members have very different ideas about the deceased’s final wishes. The repercussions of this can be overwhelming; they also merit the obtaining of solid legal assistance. This is why there’s a category of law designed specifically to address these types of issues: probate law. Let’s discuss what probate law is… and isn’t.  

What is Probate Law?

Probate law and the probate process interpret the instructions of the deceased party — via their will — and administrate the distribution of the deceased person’s estate accordingly. The probate period typically takes several months and is subject to both court and attorney costs.  

Central to this formal, legal process is the procedure whereby the will of the deceased is “proved to be valid.” Once this critical requirement has been fulfilled, the deceased’s property and assets can then be retitled and transferred to the beneficiaries of the will.  

An obvious question is, “What if the deceased did not construct a will?” In this case, beneficiaries are designated by state law.

Technical Aspects of Probate Law

Below are a few of the more technical aspects which comprise probate law:  

  1. Requires publication of legal notices. All creditors be notified at time of death.

  2. Ensures creditors / remaining debts are paid (prior to distribution of deceased’s assets to individuals in will).

  3. Determines an executor of the deceased’s will.

  4. Institutes various regulations, including time constraints (i.e. time frames for filing and objecting to claims against the estate).

  5. Evaluates the estate’s remaining tax obligations.

 

Misconceptions of Probate Law

The probate process is already complex enough, so avoid complicating it further by making decisions based on falsely held assumptions. Here are some common ones balanced by realities:

“I have to go through the probate process, there’s no getting around it.”

False: This process can be avoided through mechanisms such as living trusts.

“Once the courts get involved, I have no control over what happens next.”

False: Parties may challenge any aspect of probate law, including the validity of the will, status of the person serving as the deceased’s personal representative (i.e. executor/ executrix.) or whether the personal representative is properly administering the estate. 

“Once the deceased determines their personal representative, that decision is final.”

False: Beneficiaries or heirs have the option of objecting to the personal representative named in the deceased’s will. When this occurs, a trial is usually held. During trial, objectors can offer evidence / testimony to convince the judge to overturn a will’s provisions.

The information above is intended as a brief primer on the often-times  obscure workings of probate law. For an in-depth consultation regarding your specific situation contact Peter Wittlin via PeterWittlin.com today.

Sources:

Probate Law – Probate | Laws.com

No one plans for bankruptcy… but unfortunately, that seems to be where you’re currently heading. We realize that this struggle is as much of a mental battle as it is a financial hardship. For that reason, you need to keep your head in the game! Avoid adding insult to injury, by making sure you’re not taken advantage of any further. Here’s some tips you can implement, in order to lessen the blow of a (potential) bankruptcy.

5 Tips to Lessen the Blow of Bankruptcy

  1. Get Over the Shame! Half the battle lies in overcoming the shame associated with declaring bankruptcy (or heading toward it). Not convinced you’re up to it? Realize that the stats are on your side. In fact, statistics show that most bankruptcies have zero to do with reckless spending and are instead caused by things like unmanageable medical costs and unanticipated job loss (i.e. layoffs). These figures prove that some things in life really are beyond a person’s control… so take it easy on yourself!
  1. Explore Non-Bankruptcy Options. Although you’re struggling financially, your situation doesn’t have to inevitably result in declaring bankruptcy. Instead, consider debt consolidation options such as: Debt Management Plans, Debt Consolidation Loans, and/or Debt Settlement Plans; these can serve as welcome alternatives to filing for bankruptcy.
  1. Know Which Chapter of Bankruptcy to File For. While Chapters 7 and 13 are the most well known, they’re not the only methods of filing for bankruptcy. Chapters 11 and 12— which are designed for specific debtors— may also be at your disposal. Our point? Perform your due diligence in order to determine which method most suits your needs. This will ensure that your current financial problems get solved as efficiently as possible.
  1. File for Bankruptcy Before Your Home Foreclosure. While we realize that this isn’t always an option, should you find yourself faced with the choice to declare bankruptcy before or after a home foreclosure, choose the former. While the reasons for doing so are technical in nature, this option basically allows you your mortgage debt to become discharged (i.e. relieving you of the burden of having to pay it).
  1. Use Consumer Info as a Resource. Don’t passively succumb to bankruptcy. Instead, empower yourself by becoming as informed as possible, by studying your available resources. While there are too many facts and considerations to be able to relate them all here, visiting the government’s official consumer information webpage on bankruptcy will ensure that you’re able to do all of the above.

Sources:

https://www.debt.org/bankruptcy/statistics/

http://www.alllaw.com/articles/nolo/bankruptcy/which-type-chapter-7-chapter-13.html

http://www.alllaw.com/articles/nolo/bankruptcy/file-before-after-foreclosure.html#

Beginning January 1, 2016, new laws regarding landlord-tenant rights will be put into place regarding termination of tenancy for domestic violence, the allowance of clotheslines or drying racks and the responsibility of mold.

Termination for domestic violence:

In order for a tenant (or household member residing on the property) to be terminated from the premises for domestic violence, the landlord was required to provide him/her with a 30-day written notice of termination. The notice was to be administered provided that a copy of a temporary restraining order or protective order or a copy of a peace officer’s report stating that a report alleging domestic violence or sexual assault has been filed. The law has been changed to require a notice of only 14 days for termination of tenancy with the above stated documentation.

Allowance of clothesline or drying rack:

Landlord approval of clotheslines or drying racks is now required provided that it (1) does not interfere with maintenance or the property, (2) does not create a health or safety hazard, (3) tenant seeks approval to attach to clothesline to a building prior to attachment, (4) clothesline or rack does not violate time/location restriction previously imposed by the landlord and (5) the tenant has received landlord’s approval for its use.

Mold:

The landlord is not obligated to repair mold dilapidation until he/she has received (actual) notice of dilapidation or if the condition exists due to the tenant interfering with the landlord’s attempt make necessary repairs prior to incident.

For further questions, concerns or clarification, please contact Peter C. Wittlin, esq.
Realtor Law Update- Landlords & Tenants