Probate Check

“Prostate” and “Probate” are two words you do not want to get confused.  If you are going in for a Probate Check, nobody needs a rubber glove. Probate is the way the court verifies a will, makes sure certain debts are paid, and oversees the distribution of a decedent’s property.  Probate ensures that the court does not take shortcuts in asset distribution. My theory on probate is, get in, take care of it, get out.  Probate is not a dirty word and it does not have to be expensive. Probate can take time, though.  In some cases, depending on the size of the estate, tax implications, and desires of the testator, probate-avoidance methods, including trusts and pre-death distributions, are appropriate.  However, I am not a fan of a rubber chicken dinner served to you in a hotel ballroom where they scare you into getting a trust. Not everybody needs a trust and not everybody needs a will.  Seek competent legal counsel to discuss your circumstances to make a plan that best suits your intentions.   Read More

Probate Debate

“Probate” “Prostrate” “Prostate” “Prostitute” – Do NOT get these words mixed up, especially not in front of your wife. Probate is the way the court verifies a will, makes sure certain debts are paid, and oversees the distribution of a decedent’s property.  Probate ensures that the court does not take shortcuts in asset distribution. My theory on probate is, get in, take care of it, get out.  Probate is not a dirty word and it does not have to be expensive. Probate can take time, though.  In some cases, depending on the size of the estate, tax implications, and desires of the testator, probate-avoidance methods, including trusts and pre-death distributions, are appropriate.  However, I am not a fan of a rubber chicken dinner served to you in a hotel ballroom where they scare you into getting a trust. Not everybody needs a trust and not everybody needs a will.  Seek competent legal counsel to discuss your circumstances to make a plan that best suits your intentions.   Read More

Contract & Uniform Commercial Code

A contract consists of an offer, acceptance, considerations, and legality.  Uniform Commercial Code (UCC) tries to have a contract made without all those elements firmed up.  In business transactions involving real estate, UCC is not always applicable. In most cases you want a contract—a record of the deal agreed upon, what the terms of that deal are, and what happens if the deal does not go through by one side or the other or both.  UCC is a comprehensive code addressing most aspects of commercial law, and its purpose is to help commerce flow smoothly. In real estate, if the note is transferred properly, then the mortgage automatically follows the note according to the UCC.  However, the UCC was designed as a set of default provisions in the absence of a contract. Banks sometimes overlook the trust documents that govern what a trust can and cannot hold.  A trust document, a contract, trumps the UCC.  If the trust document says the trust cannot hold the note, then the trust cannot hold the note.  In the presence of such a contract, that contract overrides the UCC. Read More

Estate Planning Sans Rubber Chicken Dinner

There are advantages to wills and there are advantages to trusts—whether they are advantageous to you depends on your circumstances. I am not a big fan of the guys who go to the Ramada Inn, give you a rubber chicken dinner and then make you listen to a two-hour commercial to get a trust.  Those sales pitches have been sitting under a heat lamp and you may be better off with estate planning made to order. A Will is a written direction controlling the disposition of your property at death. A Trust can be part of a Will, but can handle only the property that is put into it. In some cases, depending on the size of the estate, tax implications, and your wishes, probate-avoidance methods (including Trusts and Pre-Death Distributions) are appropriate.  However, do not let anyone scare you to death into purchasing an estate-planning package at a hotel ballroom seminar. Not everybody needs a trust and not everybody needs a will.  Seek competent legal counsel to discuss your circumstances to make a plan that best suits your intentions.   Read More

Estate Planning in Mixed Company

Have you checked your probate lately?  Do you even know what that is?  My theory on probate is, get in, take care of it, get out.  Probate is not a dirty word and it does not have to be expensive. Probate is the way the court verifies the will, makes sure certain debts are paid, and oversees the distribution of a decedent’s property.  Probate ensures that the court does not take shortcuts in asset distribution. When someone dies, the ability to pay dies with him, not the debt.  The debt goes to the estate, and a personal representative takes care of estate taxes, bills, and the orderly distribution of property or cash.  A judge appoints the personal representative to assure that that person is qualified to act and not incompetent, incarcerated, or in-under-six-feet-of-dirt.  The personal representative has a duty to the heirs and the creditors.  He has an obligation to look for creditors and a duty to beneficiaries. Probate can take time, though.  In some cases, depending on the size of the estate, tax implications, and desires of the testator, probate-avoidance methods, including trusts and pre-death distributions, are appropriate.  However, do not let anyone scare you into purchasing an estate […] Read More

Osmosis & Uniform Commercial Code

Osmosis is the transfer of gas or fluids through a semi-permeable membrane—oxygen passes through capillary walls to mix with blood, thereby oxygenating the blood.  Our bodies depend on osmosis, and some business transactions follow that organic model with the Uniform Commercial Code. The Uniform Commercial Code (UCC) is a comprehensive code addressing most aspects of commercial law.  First published in 1952, its purpose is to help commerce flow smoothly.  In real estate, if the note is transferred properly, then the mortgage automatically follows the note according to the UCC.  However, the UCC was designed as a set of default provisions in the absence of a contract. In the survival of the fittest, banks sometimes overlook the trust documents that govern what a trust can and cannot hold.  A trust document, a contract, trumps the UCC.  If the trust document says the trust cannot hold the note, then the trust cannot hold the note.  In the presence of such a contract, that contract overrides the osmosis of UCC. Osmosis is vital to life, and a contract is a significant part of real estate transactions. Read More