Four Main Requirements for a Valid Will

 A will is one of the most formal legal documents that exists in the modern legal system. The will represents the wishes of a person who is no longer living. The law requires a great deal of formalities in order for it to be valid. The will has standards that it needs to follow for the drafting, execution, and finalization of the instrument. If the will does not adhere to the standards then it would not be valid. Any person that is named in the will, or any intestate heir of the decedent can challenge the validity of the instrument that is presented in the probate court.

There are four main requirements for a valid will:
1) Legal Capacity (18 in CA)
2) Testamentary Capacity
3) Testamentary Intent
4) Formalities

Ways To Acquire Legal Capacity

• Age (18 in CA)
• Marital status (No effect in CA)
• Military service (No effect in CA)

 Four Elements of Testamentary Capacity

1. Testator comprehends the action that is  being taken is testamentary in nature and understands its effect
2. Testator knows nature and extent of his or her property
3. Testator recognizes natural objects of his or her bounty
4. And Testator has all three elements simultaneously in mind long enough to make reasoned judgment.

 Testamentary Intent or Animus Testandi
 Intent that an instrument serve as a testator's will.  The Intent to create a will is free of mistake, fraud, undue influence, duress (menace), or insanity.

Formalities
The Purpose of a Formal Execution:

• Cautionary Function - It assures instrument is what testator actually wants versus what he is speculating he might want
• Evidentiary function - reliable evidence of testamentary intent
• Protective function - Formality affords protection from evildoers and plotters
• Channeling function - Assures testator that her bounty will will be channeled to the object of his affection

The benefit of making a trust rather than an outright gift

There are several reasons why you would want to make a trust, here I have listed some reasons why creating a trust would be more beneficial rather than making an outright gift of the property to the beneficiary.

1) The beneficiary may not be able to manage the property either because of age or infirmity, and by having a trustee manage the assets, the trustor would be left assured that property will produce an income for the beneficiary.

2) The Trust can be multi-generational, The trust can make sure that the trust property still exist for several generations, and not spent by the first generation.

3) By placing a trust during a person's lifetime, that property is considered owned by the person at death and therefore is not taxable or subject to the claims of intestate heirs.

4) If the trustor normally provides support for a dependent, then by placing property in a trust that produces income that the trustor typically provides to the dependent, he will have shifted the income tax burden to the trust and the beneficiaries, which may have more advantages, tax-wise, than paying for taxes on the income.

Eight Grounds that are basis for a trustee to be removed

The beneficiaries have the right to go to court to have a trustee removed.  Generally there are eight grounds that can be the basis to have the trustee removed:

1) Lack of capacity - If the trustee lacks contractual capacity, then the trustee will be unable to administer the trust, and therefore should be removed.

2) Breach of trust - If the trustee violates any fiduciary obligations it is grounds for removal.

3)  Refusal to give bond when required - If the court and/or statues requires the trustee to post a bond, and he or she fails to do so, he or she may be removed.

4) Refusal to give accounts - The trustee has to keep accurate accounts of the trust property, and has to be given to the beneficiary. If the trustee refuses to give the accounts to the beneficiary, he or she may be removed.

5) Conviction of a crime - Any trustee that commits a crime, and that would appear that he or she is unsuitable to be a trustee or one that results in incarceration can be removed.

6) Showing favoritism to one beneficiary - The trustee must treat all beneficiaries equally, according to the terms of the trust. Favoring one beneficiary over the other is grounds for the trustee's removal.

7) Long absence - If the trustee is away for a long period of time, and it interfered with the administration of the trust property, than the trustee can be replaced.

8) Unreasonable failure to cooperate with co-trustees -  If one of the trustees is unreasonably failing to cooperate with the other co-trustees,then it would be impossible for the trust to be administered, therefore it would be grounds for removal.

Requirements for a Valid Trust

A trust is considered a legal entity in its own right, A trust is a fiduciary relationship in which property is transferred from the trustor,  to one or more persons, known as a trustee. The trustee holds legal title and the trustee is subject to fiduciary duties imposed by the trustor to hold and use the property for the benefit of the beneficiary. The beneficiary holds equitable title.

The purpose of the trust is to see that the property is appropriately managed and its income disbursed to persons whom the trustor wishes to benefit from the property. The trust is not limited to any one person, the trust property can be distributed through generations.

Requirements to make a valid Trust.

1) A trustor - A trustor is the person who owns the property, and who is the creator of the trust relationship.

2) A trust property - Almost any type of transferable property can be the subject of a trust agreement. Transferable properties include, (1) real estate, (2) tangible property (3) intangible property. The only type of property that cannot be the subject of a trust would be such items as government pensions, tort claims, and any other interest or item to which attaches a restriction on transferability.   Additionally only property that is capable of producing income may be the subject of a trust. If a person places in the trust any property that is not income producing and does not indicate that the property may be sold to purchase income producing property, the "trust" , simply becomes a custodial arrangement.

3) A valid trust purpose - The trust has to be stated for any lawful purpose, a trust is not valid if it violates any civil or criminal laws. In order for the trust to have a valid purpose, the purpose must be specifically stated in the trust instrument itself. A trust cannot be enforced if its purpose is unclear. Also the trust purpose must impose certain duties the trustee has to perform.

4) A trustee - A trustee is a person given legal title, the trustee is also a fiduciary; that is a person who is held at a higher standard of care than ordinary care. He is a fiduciary because he has a very important duties and obligations to perform. The trustees duty is to carry out the wishes of the trustor. A trustee cannot benefit from the the trust property for his own enjoyment.  A trustee does get compensated for carrying out the duties, if it is not stated in the will, then the trustee will get paid based on the states statutes. The trustee must be loyal and ethical, and he/she cannot delegate from their duties.

5) Beneficiary - Every valid trust must have a beneficiary, and the beneficiary holds equitable title. The beneficiary is the person who the trust property will be receiving the trust property. If there are more than one person named as a beneficiary , the beneficiaries are considered to hold the property as tenants in common, meaning that each one has a divisible, but separate interest in the trust property.

You must have met each of these requirements in order to have a valid trust, And each of the above has requirements that have to be met as well.

Condominiums & Common Areas

A condominium is a type of ownership where the homeowner  holds title  to a specifically designated unit in a multi-story residential dwelling. Each Condominium owner has joint ownership and control of common areas. Common areas are any areas of the property that can be utilized by the condominium owners. Examples of common areas are: Stairs, hallways, pool, elevators, walls, etc...

Real Estate Law - Adverse Possession

I recently started Real Estate Law Class, and I have learned some interesting things so far. There are many ways to acquire property, one of the ways is through adverse possession. The legal definition of Adverse Possession is the legal taking of another person's property by meeting the requirements of the state statute, typically open and continuous use for a period of five to twenty years.

How adverse property works is a person unlawfully takes possession of a house, like a "squatter". They make their residence at the property for a certain amount of years. Depending on the laws of the state, that person could become the legal owner of the property when the statute of limitations has expired. At that time the "squatter" becomes legal title owner of the property, and the original owner loses  ownership of the property.

Some states have different laws on adverse possession, some require that the person that takes the property unlawfully to have continuous possession of the property for 5 - 20 years. If there is multiple periods of possession of the property in order to satisfy the requirement of the law, Tacking of periods of adverse possession may be allowed if there is evidence between the party to be contractual or blood relationship.

By Tacking periods of adverse possession, the party members would meet the requirements necessary to gain legal title to the property. By taking adverse possession of the property the party would not have any kind of paperwork, or deed to the property. So if the party member would ever want to sell the property, they would have to bring an action to court, known as a Quiet Title. By bringing a Quiet Title action, the person is challenging the whole world, to come forward if they want to challenge the party member's ownership of the property. The party that took adverse possession of the property would have to provide affidavits or witness accounts on how long the party member had continuous possession of the property. They would also have to provide the nature on how they acquired the property.  If no one comes forward, and the evidence determines that the adverse possessor should be deemed owner of the property, then the court will rule that the person become legal title owner of the property, and they will have legal ownership of the property.



Tacking: A term applied especially to the process of establishing title to land by adverse possession, when the present occupant and claimant has not been in possession for the full statutory period, but adds or "tacks" to his own possession that of previous occupants under whom he claims.

Quiet Title: A proceeding to establish the plaintiff's title to land by bringing into court an adverse claimant and there compelling him either to establish his claim or  be forever estopped from asserting it.

Different types of contracts

Hello, You guys.  There are several types of contracts, some that I probably do I not even know about.  There are some very interesting ones that I would like to share with you guys.

Implied-in-Fact contract, is a contract that is implied through action, and there is alot of room for talk to determine if it is Enforceable. these are the elements that make an implied in fact contract:

1. The plaintiff provided property or services to the defendant
2. The plaintiff expected to be paid by the defendant for the property or services and did not provide the property or services gratuitously.
3. The defendant was given an opportunity to reject the property or services provided by the plaintiff but failed to do so

There was a case Wrench LLC v. Taco Bell Corp.  Rinks and Shields created the "psycho chihuahua" it was a cartoon character, whey they promoted, licensed, and marketed through their company, Wrench LLC.  In a  New York licensing convention two Taco Bell employees (a vice president, and a creative service manager.)  The taco bell employees were interested in the psycho chihuahua character, and took some material with them back to Taco Bell HQ. Taco Bell asked Rinks and Shields to create ads, and art boards. Taco Bel and Rinks and Shields presented to Taco Bell that to use a real dog, and manipulate the dogs mouth with computer graphics. They also presented Taco Bell with a scenario where the chihuahua dog passed by a female chihuahua dog to get to the tacos. Taco Bell did not enter into an express contract with Rinks and Shields or Wrench LLC.  Immediately after that Taco Bell hired an outside Advertisement agency, Chiat/Day and three months later a commercial that featured a live acting chihuahua dog that passes a female chihuahua dog to get to a man sitting on a bench who is eating Taco Bell.  Taco Bell never paid Wrench LLC, Rinks or Shields, for the chihuahua idea, So Wrench LLC sued Taco Bell  for recovery damages  for breach of implied in fact contract.   The decision of the court found a proper cause of action against defendant Taco Bell for breach of implied in fact contract.


So the moral of the story is, If you intend to get paid for a service that you provide, and you do not get paid, even if you did not sign any kind of contract, you can sue for Implied-in-Fact contract.

Express Contract: An oral or written words; an oral agreement.

Quasi Contract (Implied-in-Law Contract): The equitable doctrine  that allows a court to award monetary damages to a plaintiff for providing work or services to a defendant even though no actual contract existed between the parties.

Bilateral Contract: A contract entered into by way of exchange of promises of the parties, a "promise for a promise"  For example: Party A states to Party B "I promise to buy your bike, If you promise to buy my bike".

Unilateral Contract:  A promise for an act.  for example, Party A states: If you paint my wall by a specific date, I promise to pay you $3000.

The difference between Bilateral and Unilateral Contract is that Bilateral is a promise for a promise, and Unilateral is a promise for an act.

Portfolio

       Purchase & Price Agreement

Sarah Smith (seller) agrees to sell and deliver to Kelly Henry (Buyer) who agrees to purchase  a one-carat square diamond ring, the buyer also acknowledges that the ring has a slight flaw. Seller Agrees to accept and Buyer agrees to pay for the total sum of $800 (eight-hundred dollars) on this Day August 5, 2008 

AGREED AND ACCEPTED THIS 5TH DAY OF AUGUST, 2008 

By: Buyer _________ and Seller ___________

Wills Trust and Estates

     Hello, Today I am gonna be talking about What I've learned so far in Wills Trusts and Estates Class of situations in life that could arise, that I was not aware of. When someone passes away,  if they dont have a will or a trust, all of their property has to go through Probate Court, which could be very expensive, and stressful. Because the purpose of probate court, is to figure out who of the decedents family will get what?  Now Property is divided in to two categories, Real & Personal. Real Property is Buildings, fixtures, and rights to air and land.  Personal Property is Cars, Money, and so forth. Personal Property is broken further by Tangible and Intangible Property. Tangible Property is things that you can move physically like cash, cars, furniture.  Intangible Property are considered to be Bank Accounts, and Saving Accounts. Intangible Property is broken down Even more by Intellectual Property. Intellectual Property has three types, (1) Copyrights, (2) Patents, and (3) Marks. I will get into details about Intellectual Property in a later Blog.

      
      Now  before I continue, As a student that I am, I have enough information about Wills & Trust that could go on for Pages, and Pages. I will provide information about what I have learned in segments. Now there are many ways that you can make sure that your family gets the property that you want them to have. They are:  Gifts, Title Transfers, Wills, and Living Trusts, Trusts to name a few. The Gift method is the most common method of transferring property during life from a donor to a donee without consideration. There is a tax imposed on a Gift, and its tax free up to $675,000(back in 2001, which might be the current cut-off point).

   Title Transfer is another way to transfer property with minimal estate taxation, there are five types of  ownerships which I will get into another time. Another method is by having a Trust or a Living Trust. A trust is when you transfer your property to a trust and upon death, the Trust takes ownership of the property. A living trust is a trust established by a person that takes effect during his or her life. This is another way to avoid estate taxation, but a trust may have its own tax consequences.  Remember Consult with an Attorney when wanting to make a Will or a Trust.  This is just the basics, and it only gets deeper from here.  Thank You for reading my blog, I will be sure to update periodically.  Bye
   

Contracts & Property Law

    Hello Everyone, Its been a while since I last blogged, but since my first day of Paralegal School, Our class has gone through four Quizzes, and I lost count of how many homework assignments I have completed. Out of all the classes I have, I have to admit that my interest is drawn more towards Contracts & Property Law. Don't get me wrong I like all my classes that I have, Its just that I find that Contracts Law has so many factors that grabs my attention. What I have learned about that class is that, everyone will sue for just about anything and everything.

     What I have learned from the Contracts Law  Class is that in order for you to get into a contract with someone you need to have the following conditions:  (1) Agreement, (2) Consideration, (3) Contractual Capacity, and (4) Lawful object.  What those four things mean is that the Offerer needs to present the Offer to the Offeree. The Offeree now has the option to either make the contract by either Agreeing or Rejecting the contract. If the Offeree wants to make adjustments to the contract that is considered to be a Counter-Offer, and now the Offerer has the power to either Accept it, or Reject it. All of the parties have to have what is called Contractual Capacity, which means that the person has to be able to recognize the situation they are getting themselves into, and that they cannot be Adjuged Insane, Intoxicated, a Minor, Insane- but not Adjuged and so forth and so on.  The list of people that cannot enter a contract, does not mean that they will not enter into a contract. Those kind of contracts cannot be enforced or is an unenforceable contract.


    Furthermore on the unenforceable contracts, what that means is that those kind of contracts can be void,  even if the contract was breached,or if the contractual duty was not fulfilled, they cannot be sued.  I will continue speaking about Contractual Capacity in my later blogs.  The contract has to have a Lawful Object, meaning that the object or the duty that is to be performed has to be legal, if the object is illegal, it cannot be enforced in the courts.  This is just 1% of what I have learned from the classes so far. There are so many things to consider before getting into a contract, and so many things to protect yourself while in the contract, but the thing is you gotta read the contract carefully before agreeing to it.  Good Night Everyone, and Be Safe.

The First Day at Paralegal Studies

  The date is October 18, 2011. I've been having dreams and anxieties about this day. I first registered a month and a half prior to this day. It felt like it took forever to get here, and as the days got closer, it felt like it was farther away. The time finally was upon me, and as I drove to my first day of classes, I was eager on how the experience was gonna be like. How was the teachers gonna be like, and what about the students that I would be privileged to be learning aside with? As I walked through the doors, I was greeted by my counselor, And I was given my Books and my schedule that I would be following.


So The first day of school we had orientation, and we got to meet the administrators of the school. They gave a speech about the history of the school and the staff, and they also gave a motivational speech about our road to a better tomorrow. After the Orientation we got to meet our first instructor. My first class was Contracts & Property Law, and right from the get-go we had to define what the words right and wrong is to us. We each had to define it, and we had a class debate about our definition of right and wrong, and how it relates to law. That discussion went on for a good half an hour. By the way that the other newbie students were talking, I felt like if they took the class before. A couple of them did, two of them came from another school, (I wont mention any names) and felt like they wasted that whole year on nothing, so after that year at that school, they transferred over to this current school. Another interesting fact is that, I felt like I was the only male in the whole building. I know for sure that every new student that appeared that day, I was the only male in the crowd.

       So Just as I expected, from the very first day, we had homework for the Contracts class, two weeks worth of homework. During Class time we went over Law & Ethics, and a brief summary on how the law was created, and about the Common  Law. By the time we got over that brief introduction into contracts, the time was now over and it was time to go home.  I was very eager to learn more about contracts, that when I got home I started reading into the chapter. On that first day I got through the first chapter, but was unable to do any of the homework because it was around three in the morning, and I just got knocked out.  Ill be sure to post more entries about my experience in paralegal studies.  Take Care everyone, and thank you for reading this.