What Are My Rights As A Tenant?

Here’s a situation I encounter frequently. Tenants renting a house or apartment say they’ve called the landlord repeatedly to repair something or clean up pests of some kind, and nothing gets done. What can they do?

Under California law, every residential tenancy, whether under a written lease or otherwise, is subject to a landlord’s warranty of habitability. This means that when you rent a house or apartment, the landlord has to maintain his/her guarantee that you can live on the premises free from safety and health concerns.

Subjective vs. Objective

Seems pretty clear-cut, doesn’t it? Not entirely, as what’s deemed a health or safety concern may be left open to interpretation using a subjective perspective.

Say, for example, you’re worried that the roof will cave in because of termites, which you believe are present due to a couple of small piles of wood shavings in the corner of the master bedroom. If you don’t know precisely what the extent of the damage is, your fear is considered a subjective concern. Until an investigation determines termites have attacked a weight-bearing support beam, there’s not much you can do, except report this concern to your landlord.

A burst pipe, on the other hand, is an unquestionable (and objective) safety and health concern. In this situation, you should immediately contact your landlord (in fact, that’s your obligation as tenant). It’s the first necessary step toward giving them adequate notice of the problem.

My advice is not to rely solely upon a telephone call. A text or email is helpful, but with any of these forms of communications, it can be hard to prove you provided adequate notice of a problem. A landlord can claim the phone call never happened or electronic communications failed.

Therefore, in addition to the means listed above, I recommend you send a letter to the landlord by certified mail (with return receipt requested), so there’s legally acceptable proof of notice to the landlord.

What if the landlord ignores your request?

In the event the landlord ignores your request to fix a broken toilet or replace a broken window, here are possible options.

Take matters into your own hands. You can repair the damage yourself and deduct the cost from your rent. This must be a “reasonable” repair, so be sure to use the most reasonable repair option (don’t go for expensive parts or labor without the landlord’s written pre-approval). Remember, it must be a serious defect in order to deduct payment from your rent. A bent screen on your window poses no genuine health concern, so if you hire someone to fix it, this would be an unreasonable deduction from your rent without the landlord’s approval.

In order to fix and deduct, neither you, a family member, friend, nor anyone else who is present with your consent can be the one(s) causing the damage. Also, you have to give the landlord notice and a reasonable amount of time to make the repairs (unless it’s an immediate threat, like a roof collapsing).

If you do pay for repairs, be sure to keep all receipts. That way, if you decide to deduct from your rent, you can provide copies of the receipts to the landlord, along with an explanation about why you’re not paying a full amount of rent for the month.

You can withhold rent. This is an option in cases where you determine that the rent you’re being charged isn’t reasonable for the place you inhabit—that is, conditions have made the house or apartment at least partially uninhabitable.

For example, a cracked window in the dead of winter makes a part of your dwelling unlivable, due to extreme cold. You calculate you can use only 75% of the house, so you’ll pay only 75% of the rent. Reminder: You must first give the landlord an opportunity to fix the damage.

According to the law, you can only withhold rent for one month per job. And you can’t use this remedy more than twice in a 12-month period.

Abandon the premises. If a condition is serious enough that you feel you and your family are at risk, you have the legal right to walk away. (Again, only after giving notice to the landlord of the need for repairs and a reasonable opportunity to fix the problem.) If your requests for repairs have gone unanswered, you are legally entitled to cancel the lease.

With each of the options listed, be sure to document everything! Take photographs. Make copies of notices. Keep receipts of out-of-pocket inspections to support your claim.

There are risks involved in either deducting or withholding rent. If the reason for your actions isn’t considered reasonable in the eyes of a judge, a landlord can evict you and hold you responsible for rents and other damages.

As a tenant, you have specific legal rights concerning the safety of your house or apartment. Before taking any action, you should always consult an attorney with experience and knowledge in this area.

Are you in a situation affecting your rights as a tenant? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

What Can A Restraining Order Do?

A restraining order (also known as a “protective order”) can be as powerful as a court order or as flimsy as a piece of paper. You can’t hold it up in front of someone with a gun and expect it to protect you.

However, a protective order can serve a useful purpose, which I’ll get to in a minute. First, it’s important to know the five most common types of restraining orders a court can issue:

Workplace Violence Restraining Order

When an employer notices that an employee is being harassed, assaulted, stalked or otherwise threatened by a third party, that employer can request that the court issue an order restraining the perpetrator from coming anywhere near the place of business. The employee cannot ask for this
type of restraining order, though he or she has other options.

Civil Harassment Restraining Order

This is a legal option for a person being stalked or harassed by an individual with whom they do not have a close, personal relationship (such as a neighbor, roommate, acquaintance, etc…).

Elder or Dependent Adult Abuse Restraining Order

This option exists for people who are over the age of 65, or under 65 but subject to a conservatorship or some disability that makes them unable to care for themselves. It can be filed against a caretaker, family member, or other person in situations where the elder or adult dependent is experiencing physical or financial abuse; neglect; harmful physical or mental treatment; or deprivation of basic human services.

Criminal Restraining Order

This type of protective order is usually sought by a criminal prosecutor, sometimes at the victim’s request, during the course of a criminal proceeding. It’s designed to protect a victim from the perpetrator of domestic violence (or some other harassing actions), while an abuse, battery or assault case is underway.

Domestic Violence Restraining Order

This is the most commonly filed of these different types of protective orders. Typically, it involves an individual with whom the protected person has a close relationship (as in a current or prior marriage, live-in situation, or just dating). It can also be sought on behalf of children, even if they are not the children of the perpetrator. It can restrain an individual from doing certain things—such as making physical or verbal contact, stalking, threatening or otherwise disturbing the peace.

So is a restraining order effective?

The answer is yes, under certain conditions. In many cases, the threat of criminal prosecution for a violation of a restraining order is just enough deterrent to cease the abusive behavior. Additionally, if the restrained person isn’t a U.S. citizen, a restraining order against that person may affect his or her immigration status (and prosecution for a violation of the restraining order most likely will affect his or her legal status). Further, if law enforcement gets a 9-1-1 emergency call, they may jump a little faster if there’s a restraining order already filed against an alleged perpetrator.

Keep these tips in mind if you’re considering asking for a restraining order:

  • Details, Details, Details. Be very specific in relating the types of incidents involved—dates, times, locations, and a precise description of the action. Reporting that you were “hit on the left side of the face with his fist” is more effective than, simply, “he (or she) hit me.”
  • File Promptly. Ask for a restraining order promptly after an incident has occurred. If you
    delay and wait several weeks or months, the court may feel that the threat of abuse is no
    longer present, or wasn’t even there in the first place.

In my experience, a restraining order often serves as a good deterrent against future abuse or harassment. It’s not guaranteed to change the negative behavior, but can serve as a warning. But even with a restraining order in place, the person involved must remain alert and utilize the services of local law enforcement if they continue to be harassed.

If you believe you have grounds to request a restraining order, it’s a good idea to talk to an attorney and make sure such an action is in your best interests.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.


What Happens At A Mandatory Settlement Conference?

During the course of a family law matter, such as divorce, legal separation or dissolution of domestic partnership, many California courts offer the option of a scheduled “settlement conference.” In some counties, including San Diego, this is a mandatory proceeding, should the parties be unable to resolve their dispute among themselves. It is, in essence, a last-ditch effort to come to an agreement before proceeding to a formal trial.

If a case proceeds to this point, the parties or their attorneys are required to “meet and confer” prior to the settlement conference date. Attorneys may confer in person or by phone or email to narrow down what issues have already been settled and what issues remain unresolved. The goal is to frame the actual settlement conference, so everyone involved can focus on what’s truly in dispute at that time.

In preparation for a settlement conference, the Court will appoint one or more “settlement conference judges” (attorneys who volunteer to assist in the process). After the “meet and confer” process is completed, both sides must prepare settlement conference briefs to give to the settlement judge and share with the opposing party. Generally, these briefs include an overall
summary of the case to date, including issues to be presented, each party’s position and/or proposals and, lastly, any documentation in support of the party’s position. As I tell my clients, while they’re called “briefs,” there’s nothing brief about them!

On the date of the settlement conference, the parties and attorneys show up in court, check in with the department where the case is being heard and listen to a few words offered by the courtroom Judge (not the same as the settlement judge). Then the parties, attorneys and settlement judge begin their meeting and attempt to work out a settlement of all disputed issues.
The settlement judge doesn’t have the power to render decisions; he or she is there solely to help facilitate an agreement. If by the end of the conference, parties can reach a settlement, in part or in whole, usually the Court will allow them to put everything on the record. If they’re unable to reach agreement, the Court then sets a trial date to resolve the dispute.

Mandatory Settlement Conferences generally have no costs beyond your attorney fees. It is certainly worth exploring as an alternative to going to trial. Speaking from experience, it’s almost always better to compromise to something you can accept, than to roll the dice and put your issues before a Judge, who may or may not know all of the factors when coming to a
decision on your substantive issues such as child custody and division of property, a decision that may affect the rest of your life.

Are you in need of legal counseling for divorce or dissolution of a domestic partnership? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

What Happens If You Get A Collection Notice

Getting a collection notice in the mail is never a fun thing. But it’s also not a reason to panic. In California and other states, there are very strict rules about the proper way to prepare and distribute a collection notice. So if you receive one, I recommend investigating the following factors before taking any action.

Is the debt valid?

There are certain factors which may render a debt uncollectible. For example, the debt might be very old and the time for collecting on it may have passed. Also, the individual who receives the notice might not be the actual account-holder. Cases of mistaken identity are not uncommon, especially when the supposed debtor has a name like “John Smith.” With all the John Smiths in
the world, the John Smith who gets the collection notice may very well not be the John Smith.

Does the collection agency have the authority to collect?

Don’t assume that the collection agency that sent the notice is authorized to collect on your debt. It may have improperly acquired the right to act as a collection agency from the original creditor. Also, the agency must be licensed to collect debts in the state in which the account holder lives.

Is the form of contact legal?

In California, the Rosenthal Fair Debt Collections Practices Act lays out specific guidelines for what a collection notice must contain: the name and address of the collection agency, adequate information identifying who the agency is collecting for, the precise amount of the debt and appropriate disclaimers and notices of the account holder’s rights.

What to do next…

First, and foremost, do not ignore the notice and just throw it away. In most cases, if you do not challenge the validity of the debt claim within thirty (30) days of the date of the notice, it is presumed valid, even if there is any issue (e.g. wrong person, severely aged debt, etc.). If there’s a problem with compliance regarding any of the above questions, the collection activity might be ruled invalid. In such cases, I advise clients to notify the creditor (either on their own or through an attorney) to inform them that they are challenging the validity of both the debt itself and of the collection agency’s practices.

Even if you DO owe a debt, it’s always good to make the collection agency demonstrate that the debt is genuine and that they have the authority to collect on it.

In your challenging notice, ask for the following:

  • Any documentation showing that the account being collected on was actually created and authorized by the account holder (in the form of a credit application, contract, promissory note, etc.)
  • A transaction history showing that the amount being collected on is actually the amount
    that is owed.
  • Any documentation showing that the collection agency has the authority to collect (as
    demonstrated by an assignment of rights signed by the creditor or a purchase contract
    between the agency and creditor).
  • Any judgment which have been tendered against the account holder, relating to the
    account, if any exist.

If the collection agency has been overly aggressive in its tactics—either through harassing telephone calls or in-person visits—the challenging notice can include a cease-and-desist demand, requesting that the collection agency stop all verbal or any non-written communication. There is no reason an account holder must submit to harassing collection procedures.

As I said, it’s never pleasant to receive a collection notice. But there are things you can do and
services an experienced attorney can provide. Don’t take action without fully investigating your
options.

Are you in need of legal assistance regarding a debt or receipt of a collection notice? The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from debt collection defense, bankruptcy, family law, estate planning, and DUIs and civil matters.

What Happens to Child and Spousal Support When an Ex-Spouse Remarries?

There’s a common misconception about how a person’s support obligation changes after an ex-spouse remarries. For purposes of this discussion, let’s say Joe is paying child support to his ex-wife, Traci, for their daughter Angela. After a year or so of being on her own, Traci meets, falls in love with and marries a plastic surgeon. Almost overnight, Traci’s lifestyle undergoes a transformation. From being a single, working mother on her own, she’s now a stay-at-home mom living in a multi-million-dollar home. 

Doesn’t it seem like Joe’s child support payments should end now that Traci and Angela are living the good life? Under California law—and with slight variations in most other states—the answer is: No.

The child support order made at the time of the divorce is generally based on the respective incomes of the two parties. This order can be modified for such reasons as a change in the supporting parent’s income. If that income decreases significantly (say, Joe loses his job as a forklift operator at Home Depot), he can petition the Court to change the amount of child support he’s required to pay. If his income increases (he’s named manager of forklift operators), he can alert Traci and offer to raise the amount of monthly payment, or Traci can petition the Court for increased support. 

But as far as seeking to terminate child support payments because Traci is now a plastic surgeon’s wife? This change has little to no effect on the original child support order. Traci’s new husband may voluntarily help support Angela, but because she’s not his biological child, he’s not legally obliged to do so.

Spousal support (formerly called “alimony”) is an altogether different story. 

According to California Family Code Section 4337, “Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.” In other words, unless an agreement had been made to the contrary, Traci’s remarriage automatically ends Joe’s obligation to pay spousal support. 

A Final Point:  there are cases where the supported spouse lives with a new partner for a substantial period of time, but isn’t officially married—in which case, spousal support payments have to continue as usual. For this reason, as part of any divorce agreement, a supporting spouse should request that “non-platonic cohabitation” with another person, with or without a duration period defined, will also terminate the supporting spouse’s spousal support obligation. This helps clarify the situation and may have a significant legal impact on the termination of a spousal support obligation.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

What Happens When You Marry Someone with Support or Debt Obligations?

These days, it’s not uncommon for a person to marry someone who comes with some financial “baggage”— that is, with debts or support obligations of some kind. Here’s a fairly typical scenario:

Jane comes to my office seeking information about getting a prenuptial agreement. Her fiancé, Frank, is saddled with several types of obligations. Her fiancé underwent a horrible divorce from his first wife and Jane believes the ex-wife will go to any lengths to get what she can from him — including having her attorney subpoena Frank’s financial institutions for information on his various accounts. Naturally, Jane wants to know, if she proceeds to marry Frank, is she exposed to similar legal actions? What is her risk with respect to his spousal support, child support and/or any debt Frank has incurred?

Let’s take a look at each type of obligation and see how Jane may or may not be involved:

Spousal Support

In California, a new spouse’s income or assets generally has no effect on the spousal support obligation of their new partner. In other words, what belongs to Jane in terms of property or income is not connected to Frank’s spousal support situation. The Court doesn’t use this new information to re-calculate or otherwise alter the amount of support Frank is obligated to pay his ex-wife. 

There is one notable exception: If, after remarrying, Frank were to quit his job or become a stay-at-home spouse (because his new wife has a well-paying position) and then attempt to either terminate or decrease the amount of spousal support he’s obligated to pay, the Court would likely see this as an intentional attempt to evade his legal responsibilities – and may not change his spousal support obligation.

Child Support

Again, in California, Jane’s assets generally do not come into play in a situation where Frank is paying child support related to his previous relationship(s). But, as noted above, it’s a different story if Frank decides to leave his job or otherwise decrease his income. Under California Family Code Section 4057.5, the income of a new spouse can be used “in an extraordinary case where excluding that income would lead to extreme hardship to any child subject to the child’s support award.”

The court will always be guided by what is deemed to be in the child’s best interests.

Debt

When it comes to debt obligations, Jane’s potential risk is a different matter entirely. With a new marriage in California, what both parties own together is automatically subject to community property law (e.g. anything acquired during the marriage is presumed to be split 50-50 between the spouses). If Jane puts Frank’s name on any of her assets – for example, adding his name to her savings account or on the deed to the house – creditors can now pursue what Jane considers her property for repayment of Frank’s debts. Her assets should remain untouched if her name is the only one connected to those assets. Most creditors won’t go to the trouble of going after assets in the non-debtor spouse’s name.

Of course, where a house or similar large property is concerned and a lender or other entity requires the signing of a Interspousal Transfer Deed in the course of a refinance (placing title solely in Jane’s name), Frank essentially gives up his legal rights to ownership by signing such documentation. Should this second marriage end in divorce, Frank may have no claim on the house and the property will be awarded to Jane as her sole and separate property.

A prenuptial agreement is an effective way to fully clarify both spouses’ debts and support obligations before marriage takes place and provide the parties with clear guidelines on how to handle their property and obligations throughout their marriage. That’s what I recommended to Jane and what I generally tell all of my clients facing this relatively common situation.

Getting married or just have any questions regarding the above topic? The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from family law, bankruptcy, debt collection defense, estate planning, criminal defense, DUIs, and general civil matters.

What to Do When a Family Member Dies

In recent weeks, it’s been my sad misfortune to lose two close relatives in my family. After the initial shock of the loss of each beloved family member, I have been swamped with questions from other family members and friends about what to do (in terms of legal obligations) when a loss like this occurs.

My response? It’s always a good idea to reach out to an attorney to get helpful advice on the right actions to take.

As we all know, the death of a loved one is an extremely stressful experience, charged with a variety of emotions. But if you’re in some way responsible for what this person has left behind, you must be able to promptly take a step back and figure out—Where do we go from here? 

While it’s not always clear who should take charge in these situations, the “default person” is usually a deceased person’s spouse or another close family member. This can be altered if an estate plan designates some other individual. 

Here are some essential things that need to happen:

Make arrangements to obtain your loved one’s death certificate. Numerous governmental and financial entities will likely require proof of death. That’s why I suggest obtaining multiple (at least 6-8) certified copies of the death certificate. Hospital staff or funeral home representatives can assist in getting these documents.

Determine if the deceased left behind a will and/or trust. These documents will help guide you through the legal process required to properly handle the deceased person’s estate. In California, a proper living trust will generally allow you to accomplish this without court involvement, whereas if there is only a will or if the deceased failed to leave behind any estate planning documents, you may have to open probate, a court procedure for obtaining orders related to the administration of the estate.

Locate advanced healthcare directive. Did the deceased person have an advanced healthcare directive or any other document identifying his or her wishes regarding organ donation and burial instructions? This can help determine what to do with their remains.

In the event of a death, other small but important tasks include:

  • Notifying the deceased’s employer, Social Security Administration, any government agency benefits programs (such as Veterans Affairs)
  • Contacting creditors (a person’s debt is still enforceable after his or her death) 
  • Locating insurance policies, claims forms, etc.
  • Caring for a pet
  • Collecting mail
  • Canceling newspaper, magazine, and digital subscriptions
  • Disposing of clothing and personal items

As you can see, your death can create a great deal of work for those you leave behind.  A proper estate plan will definitely relieve your loved ones of what can be an overwhelming burden to wrap up your affairs. In addition to the proper documents (e.g. trust, will, power of attorney, advance healthcare directive, etc.), I also advise people to create two lists to help their survivors know what to do following their death:

Contact list. This includes a set of addresses (with all pertinent contact information) for those people named in any of the documents as well as anyone who should be contacted and notified of your death. 

Informal inventory. With a comprehensive listing of all of your assets, survivors can avoid an emotionally-draining and time-consuming “scavenger hunt” through your possessions. The inventory tells them what they need to know about your estate. 

This is a broad description of what should take place after a loved one’s death, but it is by no means comprehensive. If you’ve recently suffered a loss and feel bewildered by all the obligations thrust upon you, contact an attorney as soon as possible. This attorney can help you navigate the emotional journey that lies ahead.

Representing Yourself in Court and Other Low Cost Options

For many people facing a legal issue, the first thought that generally comes to mind is how much will this cost in attorney’s fees? The good news is that there are numerous types of cases in California where being represented by an attorney is not a necessity. 

As a general rule, you may not need to be represented by an attorney when:

  • Your case is clear-cut and there’s no opposing side (e.g. as in a request to change your name).
  • You and all other parties involved agree about everything (such as an uncontested guardianship of a child).
  • You’re confident that you are fully aware of your legal options and can make informed choices about your case on your own.
  • You have the time and willingness to learn the law and the relevant rules and procedures applicable to your case.

A person’s Constitutional right to be represented by an attorney only comes up in a very few types of cases (e.g. criminal). In all other legal situations—civil litigation, family law, bankruptcy, small claims, traffic court, etc.—you do not have an absolute right to legal representation. In these circumstances, a person wishing to have an attorney advise and/or represent them must seek out legal assistance on their own.

If you’re thinking of representing yourself, keep these considerations in mind:

How Complex is Your Case. You may not need an attorney for an uncontested divorce. However, if difficult issues are involved – such as being allowed to move out of state with children of your marriage, spousal support, extensive property divisions—it’s best to at least get some legal advice, if not active legal representation. 

Your Ability to Handle a Legal Matter. Be honest about your personal strengths and weaknesses. Some cases require extensive appearances before a judge, which can be an intimidating experience. Someone who’s shy or fearful of speaking in public might be best served by having an attorney speak for them.

You Have Trouble Expressing Yourself Succinctly. An attorney can help you avoid rambling and focus instead of the key points of your case.

You’re Held to the Same Standards as a Practicing Attorney. Whether or not you’ve passed the bar, when you’re in court, you’re held to the same standards as a full-fledged attorney. If you don’t feel competent in mastering those standards, you may need an attorney.

You Lack Time to Handle Legal Matters on Your Own. People who work full-time or have a family to care for aren’t necessarily able to devote the time required to handle a legal matter on their own. Keep in mind that it’s not uncommon to spend hours to a full day at the courthouse simply to get a legal form successfully filed.

Fortunately, there are many great resources available to assist people who wish to represent themselves. In California, each court offers online and in-person self-help centers for certain legal matters such as family law, small claims and sometimes even probate. 

Some courts offer facilitator offices to assist in the “grunt work” needed to resolve your legal issue. It’s important to note what facilitators can’t do. In divorces, for example, a facilitator can’t offer advice on whether you’re seeking all that you’re entitled to nor on the methods you need to utilize to discover things to which you may be entitled – which means there’s a real possibility you can leave critical issues unresolved.  

While facilitators and self-help centers are very useful, it’s always a good idea to get expert legal advice. Attorneys, after all, are paid to zealously represent their clients and get the best possible resolution in court. Some attorneys, including myself, offer reasonable rates and even discounted services with respect to some types of legal matters.  

In conclusion, before striking out on your own, speak to an attorney who is knowledgeable in your case’s area of law so you can make an informed decision on whether or not your attempt to save money will cost you more in the end.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf, APC offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

When Should You Get a Trust?

A trust is a document created to manage your assets – property, financial holdings, personal belongings, not only during your lifetime, but after you’re gone. There are generally three kinds of trusts to consider in your estate planning:

  • Living trust—A document concerning the management of your assets which can be amended or revoked at any time during your life.
  • Testamentary trust—A document based on language in a will, covering the management and distribution of your assets. 
  • Irrevocable trust—A document with specific distribution provisions that cannot be revoked later on.

The primary reason for a living trust is so you can manage and administer your assets both in life and death, without the intervention or supervision of a court of law. While a living trust in and of itself won’t eliminate estate taxes, it’s the best way to avoid the expensive, time-consuming (and often emotionally traumatic) process of probate.

As noted by the State Bar of California, a living trust:

  • Gives the trustee (an individual, spouse or domestic partner named by you) the legal right to manage and control assets in the trust
  • Names beneficiaries who receive the trust’s assets per your instructions
  • Provides guidance to the trustee in charge of managing and distributing your assets. This individual is held to strict responsibilities and high legal standards, and “cannot use your trust’s assets for his or her own personal benefit without your explicit permission.” 


What’s the difference between a will and a trust? A will is the document that’s prepared for use in case of any probate action. It also serves to nominate a guardian for any minor children. When you have a will without a trust, your instructions on how to settle your estate have to be approved by a court. The executor of your estate must submit the will to the court and have it officially recognized, before your last wishes can be carried out.

I assist clients in a range of issues related to estate planning, including living trusts and wills.  These documents can complement each other, such as when a living trust is drafted together with  what’s commonly called a “pour-over will.” Such a will is designed to protect any assets which were either forgotten when creating a living trust or left out for some reason. The pour-over will ensure that these assets become part of the living trust upon the individual’s death. It “pours over” all assets that failed to be originally placed in the trust and which now can be distributed as originally intended in the trust.

In California, people who want to pass real estate on to their beneficiaries should look into getting a living trust. If the value of all the property of your estate is less than $150,000, simplified probate procedures and/or affidavits to collect your assets without any court proceedings may be available to your beneficiaries.  However, if you believe your estate will be more than that threshold at your death, or if you want to try to ensure your estate passes to your beneficiaries as smoothly as possible, you should contact an estate planning attorney about obtaining a trust.

As your assets grow, so does the need to create an estate planning team. This group of professionals—a financial planner, tax advisor and estate planning attorney—help make sure your instructions for distribution of your assets are followed both during your lifetime and in the event of your death. Contact the Law Offices of Ian S. Topf to learn more.

Who Gets the Family Pet After a Divorce?

Disputes over personal property are common in most divorce proceedings. Any family law attorney can likely tell you about clients who argued endlessly over who should get possession of a treadmill that’s been sitting in the basement for years (unused). Ironically, purchasing a new treadmill would often be less expensive than the legal fees incurred by haggling over the old one in court. 

When a beloved family pet is involved, this kind of dispute takes on another dimension entirely.  Many people consider their furry cat or sweet-tempered mutt as members of the family and sometimes these animals get treated better than a child. When both parties feel the pet they share is irreplaceable, the issue can become highly contentious.

Most courts in California treat the family pet as a piece of personal property with specific monetary value. How is a pet’s value determined? Both parties can submit “documentation of valuation” (for example, a Craigslist pet-for-sale listing) or they can agree to an objective third-party appraisal. As an alternative, many courts will accept an agreement regarding a pet’s custody and support, as long as both individuals agree on the specific arrangements. Courts generally will not make pet custody and support orders without such an agreement, even if both parties request the Court to do so. 

Ultimately, if the two parties cannot agree on who gets the pet and/or its value, the Judge reviews the evidence, makes a determination and awards it to one party or the other at what the Judge feels is the pet’s fair market value. This determination will be offset by some other piece of property, or equalization payment, given to the individual who does not get the pet. 

One of my first divorce cases involved a dispute over a horse. Both parties cared deeply about the horse. Everything else in their case had been easily resolved, including custodial provisions of the couple’s two children, but neither side would budge over possession of the horse—nor would they accept a joint custody agreement similar to what was in place for the children. Finally, the other party’s attorney and I convinced our clients that the respective costs to each of them if the case went to trial would be exorbitant—and that the final decision rested with a judge who probably never had taken care of a horse, never forged an emotional bond with a horse and might not even own a pet in the first place. This persuaded the warring parties to come back to the table and work out a joint custody plan. 

As I regularly tell my clients, digging your heels in over a piece of personal property (including a pet) generally ends up costing you more money in legal fees and costs than the personal property actually is worth.

Are you in need of legal counseling for divorce or dissolution of a domestic partnership? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.