Monthly Archives

October 2016

Writing a Living Will With a Gift Explanation Letter

Writing a Living Will With a Gift Explanation Letter

Many times when you are writing and preparing your living will, you will be disposing of certain personal property and heirlooms to your heirs. Based upon their interests and your desires, property can go to specific persons. By definition, that living will can exclude other beneficiaries. But you do not want to offend anyone in preparing your living will so the logical way to proceed is to attach a gift explanation letter when writing that living will. That gift explanation letter might be in the following form:

To my executor/personal representative, family, and friends:
Greetings. I write this letter to let you know some of the reasons for making gifts in my living will. Please understand this is not my will or an extension of it. Nor should it be used for a legal interpretation of my living will. My will executed (Date), is the sole and exclusive expression of my intentions as to the distribution of my estate, and other related matters.
If I have said anything in the past, or write anything in this letter that conflicts with the provisions of my will, the last will I have signed should control and take precedence.
You also have my permission to give a copy of this letter to any beneficiaries, guardians, trustees, executors, or personal representatives.
(State the reason for a particular gift. For example: “I give all my automotive tools to John Parsons, my good friend, because of the many happy hours we spent working on and racing cars together”. )
(State the reason for giving an unequal share to someone. For example: “I would normally not hesitate giving an equal 1/3 share to my three children. However, during my lifetime, I gave Adam $30,000 to start his own carpentry business and therefore, with love and affection, I have given him a 20% interest, to compensate for the others.”)

That way when writing your living will, you will accomplish two purposes: properly dispose of your property at the same time not offend anyone’s feelings.


Can Someone Sign My Living Will Form For Me?

This is a common question for adult children of parents who may find it difficult to sign their living will form. As time goes on, their physical infirmity may prevent them from actually signing the living will. As an adult son or daughter, can you sign a will for them?

This is can be done if the testator (person signing the living will) cannot otherwise sign. This is usually because of infirmity of age. As stated above, this is typically done by an adult family member. There is no requirement of having signed for your parents before, although that certainly helps.

testator must clearly direct the other person to sign the living will formThe key is the testator must clearly direct the other person to sign the living will form. There can be absolutely no doubt in this situation.

Many states have amended their probate codes 1) to make this available. There must be an express and clear direction by the testator to have this done. Further, the signing must be in the “conscious presence” of the testator. This typically means in the physical proximity of the testator, who can readily be aware the signature is being properly placed on the living will. But, this does not mean it has to be in the testator’s direct line of sight.

Example: Joy has been relying upon her daughter for some time to sign paperwork. On the occasion of her signing the living will form, Joy was sitting upright in bed, but has trouble moving her head from side to side. It would have been easy for her to turn completely to the left and see the signing on a table nearby, but this was not possible. So, with the table as close to the bed as possible, the daughter instructed her mother that she was now signing it. Her mother could not see the actual signing of the living will. But her mother could easily hear and understand what was going on. This will be sufficient.

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Utah State Statute 30-3-35. Minimal Schedule For Parenting Time

In Utah, there is a specific statute laying out the guidelines for parenting time, or the time in which the parents can visit or have custody of the children. This applies to children between ages five and 18 years.

utahThis is laid out in Utah State Statute 30-3-35. The court always prefers the parties to come to an agreement, but in the absence of a stipulation, there are certain rules. For example, one weekday evening, or Wednesday evening if not specified, from 5:30 PM to 8:30 PM will usually be required for the noncustodial parent. Also, the noncustodial parent should get one weekday from 9:00 AM until 8:30 PM while school is no longer in session.

The court also prefers alternating weekends from 6:00 PM on Friday until 7:00 PM on Sunday, continuing each year.

Also, a step-parent, grandparent, or other responsible adult designated by the noncustodial parent, may pick up the child.

parenting-timeThere is also provision for holidays, including Mother’s Day, Father’s Day, and the birthday of the child. If a holiday falls on a regular scheduled school day, the noncustodial parent will be responsible for the child’s attendance at school for that school day.

For years ending in an odd number, the noncustodial parent is usually entitled to visitation for the child’s birthday, Martin Luther King Day, Spring break, Fourth of July, Labor Day, Fall school break and Veterans Day.  For Christmas, the first portion of the Christmas school vacation including Christmas Eve and Christmas Day continuing until 1 PM on the day halfway through the holiday.

There is also provisions for even-numbered years for the other parent.

Of course, Mother’s Day should be spent with the mother and Father’s day with the father, beginning 9:00 AM until 7:00 PM on the holiday.

telephone-contact-at-reasonable-hours-and-for-reasonable-durationsThe noncustodial parent shall also have up to four consecutive weeks of summer vacation.

And, there will always be telephone contact at reasonable hours and for reasonable durations. This could also be augmented by Skype visitations.

All in all, Utah State Statute 30-3-35 has very specific provisions all aimed at preventing disputes in divorce court.





TCA 36-6-108. Relocation in Tennessee Divorce

TCA 36-6-108. Relocation in Tennessee Divorce

In a divorce proceeding, it is not uncommon for the custodial spouse, namely the spouse who has primary care of the children, to relocate. This is typically because of a new job opportunity. Other factors also include better schools, healthcare, or joining other family members.

The real question is how this affects the other spouse who simply has visitation rights. Tennessee Statute 36-6-108 sets forth the rules to be followed.

tennessee-divorce-lawThe statute applies if you are moving out of state or moving more than 100 miles within Tennessee. The moving spouse must give at least 60 days notice by certified mail describing the intent to move, the new location, the reason for the move, and the statement that the other parent can file a petition in opposition.

Because the nonmoving parent typically is not able to visit the child as much, this will be considered by the court under TCA 36-6-108. The court can also impose the costs of transportation for the nonmoving parent to exercise visitation rights in the new location. This also may include the requirement of the child being transported back to the home location for the visitation, from time to time.

nonmoving-parent-to-exercise-visitation-rights-in-the-new-locationIf the nonmoving parent spends about as much time with the child as the moving parent, that person can file a petition in opposition. There is no presumption in favor of the relocation, and it is based upon the best interest of the child.

One of the factors is both parents should have as much time as possible with the child and visitation should be frequent. If the effect of the relocation is to in essence deny visitation to them nonmoving spouse, this may be grounds for denying the move.

that-boy-or-girl-can-express-their-preferences-which-will-be-considered-by-the-courtAlso, if the child is 12 years of age or older, that boy or girl can express their preferences which will be considered by the court.

If there is any showing of physical or mental abuse of the child, the other parent usually wins out in such motions.

Court will also see if there is a reasonable and bona fide 1) reason for the move. If the reason for the move is simply to deny visitation rights, that move will be denied.

So as seen above, TCA 36-6-108 has very set rules that need to apply in such motions. This eliminates all the guesswork.


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Female judge with wooden gavel.

ORS 107.095 and Provisions Before Judgment in Divorce Cases

ORS 107.095In Oregon, a divorce proceeding eventually culminates in a final judgment. At that point, property is distributed, custody and visitation rights of the children are determined, child support and spousal support is ordered, and there is a general distribution of rights and obligations. But what about before the final judgment? ORS 107.095 provides for temporary orders before that final judgment in an Oregon divorce proceeding.

For example, if one of the parties does not have sufficient funds, there can be an order requiring the other party to pay a fund for attorney’s fees, including the cost of expert witnesses.

There is also the ability to receive temporary allowances for spousal and child support.

visitation-rights-to-the-other-spouseAs is also typical, the court can award custody to the children along with reasonable visitation rights to the other spouse. This is described as parenting time and usually has detailed provisions as to how, what, and where the visitation custody will be exercised.

Along the way, there can also be temporary restraining orders to prevent one party from interfering or molesting the other.

If the minor children live in the family home, the court can decide which parent stays in possession of that home and which one has to move out.

effective-distribution-of-property-prior-to-the-final-judgmentSo there can be an effective distribution of property, prior to the final judgment, there are orders restraining one party from selling or taking loans out against real or personal property.

Fortunately, there can be a waiver of an actual trial if the parties stipulate or if there has been a default by one of the parties. In that case, the relief in the divorce proceeding can be done by submitting a declaration under penalty of perjury 1)

All in all, under ORS 107.095, the court has quite a bit of leeway to make temporary orders to preserve the property and for the best interest of the children.

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Indiana Code 29-1-2-1. Probate Procedures.

indiana-lawEach state has statutory provisions as to how your estate will be distributed upon your death if you do not have a will. Dying without a will is considered intestate. The state of Indiana1) then determines which of your heirs receive your property. The Indiana code is no different in sets forth those procedures.

If you are married, your surviving spouse will receive one-half of your net estate if you are also survived by least one child or grandchild. The same rule in Indiana applies regardless how many children or grandchildren you have.

If you are not survived by a child or grandchildren, then your surviving spouse receives three quarters of your net estate, with the other one quarter going to your parents.

On the other hand, as would be most logical, if you die without surviving children, grandchildren, or apparent, the entire estate in Indiana would go to your surviving spouse.

Indiana Code 29-1-2-1. Probate Procedures.There is a very special provision if you have a second marriage and in that second spouse have no children from that union. In that case, your surviving spouse only receives 25% of the market value of your real estate, less mortgages. So if you have a house worth $300,000 and a mortgage of $200,000, that second childless spouse would only receive $100,000.

The rule is different as to your personal property. In that case your second childless wife receives the same share as described above. For example, if you are survived by that spouse and children, she would receive one half of your personal property.

But what if you are nits survived by your wife or husband? In that case, logically your children would receive equal shares of the estate. And if one of them has predeceased and you have grandchildren, they would, by right of representation, receive that share. So in other words, if you have three children and one of them has predeceased you, then the one-third share would go to the grandchildren of that deceased child.

If there is no surviving spouse or children, who then it will go equally to your brothers and sisters.

As you can see, these Indiana rules are very technical. But you can also see the definite benefits of having a will2) In that case, you can decide exactly who gets what and will not be forced to comply with the Indiana intestate laws.

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How to Start Home Business Without Investment

We hear stories about successful businesses that started in someone’s home. For example, Hewlett-Packard1) started in the garage of two individuals in Silicon Valley. The stories usually involve little or no investment where the individuals are capitalizing on their energy, creativity and experience, as opposed to large investments in material, equipment, machinery or advertising. Can you really start a home business without much of an investment? You certainly can, but it is becoming increasingly more difficult.

Prior to the Internet, almost any business was started brick-and-mortar by the renting of space, finding the geographical location and walk-in traffic from patrons. You had to go to time and effort of paying rent, building out the leasehold space, buying counters, furniture, inventory, advertising, and hiring a number of employees. And then hoping the customers would notice you in that pre-arranged location.

Man in home office using computer and smilingThen the Internet came and allowed virtual businesses to spring up literally anywhere. For example, assume you want to sell neckties. You do not have to spend hundreds of thousands of dollars building out a store in an upscale shopping center, a large advertising budget, and the inventory of all the ties. You can simply do all the ordering on the Internet, have a procuring company do the shipping, and even manufacture overseas.

Equally important is what you do not have to do before the orders come in. Literally have the supplier ready to ship before actually entering into an order. You then wait for the customers to purchase and then procure the merchandise to be shipped.

But there are some problems. For high interest items such as shoes and close, if you  are not on the first couple of pages of Google, there is little likelihood you will be noticed. So you have to go to the time and after of having SEO performed and/or Google adwords 2)

If you have the patience to wait, you can slowly watch the site move-up on the rankings, and do so for little or no investment. So in summary, you can start a home business with little investment, but you have to be sagacious enough to know how to do it properly.


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