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Q: Do I need a Will or Living Trust?

A: In California, if you die without a Will or Living Trust, you are considered to have died “intestate” and depending on the value of your estate, your estate may be subject to Probate Administration. Your estate would then be distributed to your statutory heirs in accordance with California law; which might not be in accordance with your wishes.

Q: What is the difference between a Will and a Living Trust?

A: In summary, Wills are subject to probate administration while generally, a Living Trust is not.

Q: Why should a healthy person have a Durable Power of Attorney for Financial Affairs and an Advance Health Care Directive?

A: If a person becomes incapacitated and does not have a Durable Power of Attorney for Financial Affairs and / or an Advance Health Care Directive, their loved ones lack legal authority to assist them should the need arise. Instead, in order to obtain such authority, a petition for conservatorship would have to be filed with the probate court. The court would then oversee the actions of the person appointed as “conservator.”

Q: What should you do if your parents do not have a Will or a Living Trust and they refuse to talk about such?

A: You should encourage your parents to make an appointment to speak directly with an estate planning attorney or attend a local estate planning seminar. The estate planning attorney could then explain the legal and financial consequences of their dying without a will or a living trust.

Q: What are the legal and / or tax consequences of a Short Sale or a Foreclosure?

A: In California, the consequences of a Short Sale and / or Foreclosure depend on whether the homeowner’s mortgage is a recourse or nonrecourse loan (i.e., whether the home is the borrower’s primary residence, whether the mortgage loan was used to purchase the property, whether the mortgage loan was refinanced, etc.). Therefore, homeowners are strongly encouraged to consult with a real estate attorney prior to proceeding with a short sale or foreclosure.

Q: What should I do if I cannot afford to pay my tax liability?

A: There are a number of options available to taxpayers who cannot afford to pay their tax liability (i.e., prove financial hardship, submit an Offer in Compromise; file bankruptcy to discharge older tax liabilities, etc.).

Q: Should I file for Chapter 7 Bankruptcy?

A: Bankruptcy is designed to give people and businesses a second chance. More specifically, bankruptcy is a way that people and businesses who cannot afford to pay their debt right now “debtors” can wipe out “discharge” the majority of their debt (Chapter 7). Therefore, if you are financially over your head and feel like you need a second chance, you should consult with a bankruptcy attorney.

Q: How long do I have to wait to buy a house after Bankruptcy?

A: According to the FHA website, a debtor who files for Chapter 7 Bankruptcy could potentially qualify for a FHA loan two years after their bankruptcy, and three years after foreclosure (which includes surrendering a property in bankruptcy);  However, the bankruptcy debtor could not have any late payments during the three years immediately following their bankruptcy.

Q: Can the “other parent” take our child?

A: Without a valid court order, neither parent has “legal custody” of a child. Therefore, in general, the parents have the same rights concerning the child.

Q: What should you do if the “other parent” will not pay child support?

A: You can retain an attorney to represent you in filing for child support or you can contact your local child support agency for assistance.

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