Every new year brings new laws or changes to existing laws. This year is no different. On January 1, 2016 Senate Bill No. 383 went into effect. The new law made significant changes to the procedures used during the pleading stage of civil lawsuits.
Under previous law a party was allowed to object to a complaint, cross-complaint, or answer by demurrer. A party also had the right to amend its pleading once without leave of court at any time before an answer or demurrer was filed, or after a demurrer was filed and before the hearing on the demurrer. Although a demurrer remains to be an available response, the new law requires parties to engage in a meet and confer process before filing any demurrer, and also provides limits on the ability and timing of filing amended pleadings. Not surprisingly, these new laws are designed to promote efficiency in the litigation process by eliminating the backlog of demurrers that could be resolved by the parties without the court's involvement.
The new law, Code of Civil Procedure section 430.41, along with amended Code of Civil Procedure sections 472 and 472a, can be found here.
Look through any news source and you can probably find a story about companies fighting over product ideas, customers, or employees. Competition is fierce. It stands to get only more fierce as information becomes more easily transferable, customers more demanding, and employees more mobile. To protect themselves from increasing competition, businesses often use non-competition agreements to prevent former employees from taking information and customers to their competitors. Many business owners may be surprised to find, however, that non-competition agreements - otherwise known as "covenants not to compete" - are generally illegal in California. But like most general rules, this one has limited exceptions.
Jame P. Mascaro recently authored an article which summarizes the current state of the law regarding the enforceability of non-competition agreements in California. The salient points of the article are that: (1) absent certain limited exceptions, employment contracts designed to prevent former employees from working in competition with their former employers are generally illegal and will not be enforced; (2) narrowly tailored covenants not to compete given in conjunction with the sale of the goodwill of a business are enforceable; and (3) courts will enjoin current and former employees from misappropriating trade secrets from their employers, whether or not the conduct is prohibited by contract.
That article, which appears in the January issued of Orange County Lawyer, can be found here.
Attorneys and other experienced professionals know that estate planning should be part of any overall personal financial plan. But for many - and even for some of those experienced professionals - estate planning is a confusing and difficult to understand concept. In fact, many of my clients who have obviously done their own internet research on the subject often misunderstand the basic components of even the simplest estate plan. The purpose of this brief article is to provide an overview of basic estate planning.
Estate planning involves both planning for the possibility of incapacity and planning for certain death. And the fact is that almost everyone, at one point or another, can save thousands of dollars - and plenty of headaches - by having an estate plan in place.
If you become mentally or physically disabled, then you will need to have a two part estate plan in place – one that will take care of your healthcare decisions and one that will take care of your financial decisions. Otherwise, you - and your money - will end up in a costly and unpredictable court-supervised guardianship or conservatorship.
An Advance Healthcare Directive is a legal document that can delegate your personal healthcare decisions. It will allow you to give to the person of your choice the right to take care of your personal needs and make your medical decisions if you are unable to do so yourself.
A Power of Attorney for Finances is the legal document necessary to delegate your financial decisions. It will allow you to choose someone to manage your assets on your behalf if you're unable to do so for yourself.
Of course, an estate plan also involves planning for death. Everyone should have a two part estate plan ready in the event of death. One part ensures that all your debts will be paid, and the other part ensures that your property goes to the people you want it to go to.
A Will is a document that instructs a person you choose to distribute your property the way you want. But using a will has a major drawback - it must go through a time consuming and costly court process called probate. Using a trust can avoid probate.
A Trust is a legal document that can avoid the drawbacks of using a will. Using a trust will allow you to control your property while you are alive and well, designate the person of your choice to manage your affairs if you become disabled, and then direct the person you choose to distribute your property when you die.
Too often people ignore their estate planning needs and leave their loved ones to grapple with the courts and other family members over issues that could have been resolved with basic estate planning.
The process of planning your estate begins with considering your current situation and identifying your goals. Before you consult with an estate planning attorney, you should answer these key questions:
✔ Who do I want to inherit my assets?
✔ Who will manage my affairs if I cannot manage them myself?
✔ Who will take care of my children if something happened to me?
Without an estate plan, the courts will decide these answers for you. Having an estate plan in place will allow you decide for yourself the answers to these questions. Once you answer these questions, you can consult with an estate planning attorney to discuss ways to ensure that your wishes are met.
Are you the successor trustee of a recently deceased parent’s trust? Your relatives are asking for their inheritances. Well aware that you must distribute the trust assets, you also know that doing so involves more than passing out some heirlooms and writing some checks. So, you ask yourself, “now what?”
Although hardly exhaustive and no substitute for a discussion with a qualified estate planning attorney this article provides a brief guide to administering a relatively simple trust. Moreover, this article should not be construed as legal advice. It is not meant to apply to any specific situation, and constitutes a brief summary of a complicated subject. Please consult with a qualified estate planning attorney or other professional for questions concerning a particular situation.
Essentially, trust administration is a three step process that requires the successor trustee to: (1) identify trust assets; (2) pay the decedent’s debts and taxes; and (3) distribute trust assets. Not surprisingly, trust administration requires a great deal of organization and responsibility. Throughout the process of trust administration the successor trustee must comply with numerous deadlines and procedural requirements that may be overwhelming for even the most organized and diligent trustee. Therefore, the successor trustee should seriously consider seeking guidance from a trusted estate planning attorney.
For example, one important procedures requires notifying certain interested parties of the settlor’s death. The notice, which is required by the California Probate Code, protects the successor trustee and the named beneficiaries from lingering legal disputes. Because proper notice requires several technical and timing requirements, failing to make the notice - or making it wrong - can expose the trustee to unwelcome liability. A qualified estate planning attorney can help prepare and serve the notice to ensure it complies with the law. This notice requirement is just one of many strict procedural requirements a successor trustee must meet.
In addition to ensuring compliance with a variety of deadlines and notice requirements, the first step in the trust administration process involves identifying and gathering trust assets. Certain assets owned by the decedent must be appraised to determine whether estate taxes may be owed, and to determine the basis for assets that will be transferred to beneficiaries. If the trust owns real property, the successor trustee should take steps to transfer title so the property can be managed, sold, or distributed to trust beneficiaries. The successor trustee should then identify other trust assets, including bank accounts, retirement or investment accounts, and insurance proceeds to ensure those assets can be distributed according to the trust instructions.
Another step in the trust administration process involves paying debts and taxes owed by the decedent. The successor trustee is obligated to pay the settlor’s debts, including any income or estate taxes that may be owed. This begins with determining the nature and amount of any outstanding liabilities and the creditors who might be entitled to receive payment from the decedent’s estate. With the appraisals conducted during the initial phase, the trustee and his or her professional advisors will determine whether income or estate tax returns should be filed.
After all of the assets have been collected, the debts paid, and necessary tax returns filed, the successor trustee will begin the process of distributing the remaining trust assets. As with all other aspects of trust administration, the terms of the trust document will dictate how the trust assets are to be distributed among the trust beneficiaries.
Although the distribution process may seem straightforward, the successor trustee should keep careful records of everything distributed, to whom assets were distributed, and the timing of all distributions. Moreover, this process could require the trustee to prepare any number of transfer documents, from assignment agreements to letters instructing financial institutions to transfer accounts.
In summary, trust administration requires careful consideration and attention to many timing and procedural requirements. In addition to drafting estate planning documents such as wills and trusts, The Mascaro Law Firm helps guide successor trustees through the process of trust administration. If you or your clients need assistance with trust administration, please call The Mascaro Law Firm at 714-544-0700.
When most people think of estate planning they think of the silver spoons that get passed along by people who spend their days playing tennis at the country club, sipping cocktails, and cruising their yachts. While it is true that estate planning involves the distribution of assets from one generation to the next, estate planning is much more than that. In fact, almost anyone can benefit from estate planning. This article briefly highlights ten of the most common benefits of basic estate planning.
1. Save time and money for your loved ones. If you become incapacitated or die without proper estate planning, your children, grandchildren, and other loved ones could be forced to spend significant amounts of time and money managing your healthcare and distributing your assets through the courts. Proper estate planning can allow you to make your own decisions in advance of incapacity or death, and could save thousands of dollars for your family and other loved ones.
2. Plan for incapacity. Estate planning is important because it enables you to decide how you will be cared for if you cannot care for yourself and how your assets will be managed if you cannot manage them yourself. For instance, an advance healthcare directive allows you to delegate a particular person to make healthcare decisions for you in the event you cannot make those decisions yourself. Similarly, a power of attorney for finances allows you to choose someone to manage your finances for you if you are unable to manage them yourself. If you become mentally incapacitated without proper estate planning in place, the courts will decide how to care for you and your money.
3. Protect your minor children. Minor children can also benefit from your estate planning. A properly drafted plan can determine, in advance of a tragedy, who will care for your children until they become adults, and how their expenses for food, shelter, and education will be paid. Without proper estate planning, a judge may make those decisions in a way you would never intend.
4. Reduce taxes. Properly drafted trusts can help reduce the estate tax your heirs will be required to pay in the event the value of your estate exceeds the federal estate tax exemption.
5. Provide for a disabled child. A special needs trust can help you plan for the care of a disable child after you are gone. Without proper planning, a disable child can lose government benefits that could be preserved with a properly drafted estate plan.
6. Ensure your assets get passed to the right person. Estate planning also allows you to decide how your assets will be distributed upon your death, and allows you to control who will receive those assets. Without proper estate planning, those decisions will be made by the courts, instead of your family.
7. Protect your children from their creditors. Do you have a son who likes, “fast women and slow horses?” Or, do you have a daughter with a substance abuse problem? Your own estate plan can allow you to control how and when your children will receive their inheritances, and can protect their inheritances from their creditors.
8. Prevent family fighting. When combined with open and honest communication among family members, a clearly drafted estate plan can avoid everything from hurt feelings to full blown probate litigation by disgruntled family members.
9. Contribute to your favorite charity. Giving to your favorite church, college, or other charity can help reduce your potential estate taxes will contributing to a good cause.
10. Protect your assets. Are you about to enter a new business relationship? Does your existing business face the risk of lawsuits? A properly timed estate plan can help protect your assets from creditors.
These are just several of the many benefits that can be derived from proper estate planning and asset protection planning. The Mascaro Law Firm offers a variety of estate planning solutions at reasonable prices, including wills, trusts, advance healthcare directives, and powers of attorney.
For more information, or to discuss your estate plan, please contact The Mascaro Law Firm at 714-544-0700 or firstname.lastname@example.org.