2008 August 21 | The Court Of Public Opinion

Living Trust… Living Will… What’s The Difference?

My mom told me she has a living will. That way she’s going to avoid probate

I can’t tell you how many times I’ve heard this when a new person finds out I was a living trust lawyer.

They go on to say, She got one of those forms at the seniors’ center. You know, the one she can fill out herself. They even witnessed it for her.

I hate it when this comes up, because I have to set the record straight, I have to let the person know that a living will and a living trust are two different instruments that serve two different purposes.

One, the living will, is your statement that If I am terminally ill or mortally injured (I’m using simple language here to get the point across), then don’t hook me up to life support that will never return me to life. It’s the issue that’s currently being fought in Florida, with Governor Bush signing a law to keep a woman alive over her family’s wishes and a court ruling.

Her living will has nothing to do with avoiding probate. It is a health care document. Really it should be called a death desire, but our society can’t handle that bluntness.

A living trust, on the other hand, IS a probate avoiding document.

Basically, probate is used to transfer property you own when you die. If you have a will, your executor uses the probate court to carry out the terms of your will. If you die without a will, the laws of your state has statutes that describe where your property goes and who is in charge of getting it there.

So, if you don’t own any property when you die, then (generally…there are always exceptions) there is no need for probate.

This is where the living trust steps in. It called a living trust because it is created while you are living.

When you create a trust, you transfer title to your property to the trustee of the trust. You, as an individual, no longer own the property.

So, if you die, no probate is needed (remember, there are always exceptions), since YOU don’t own the property. The property is owned by the trustee of the trust. The trust instrument instructs him/her on what to do with the property upon your death.

A living trust is a LOT more complicated to set up and maintain than a living will. They accomplish different tasks.

So, when you hear that a loved one has a living will to avoid probate, it might be smart to ask a few questions.

Good luck and until next time,

Phil Craig

P.S. Feel free to forward this on to any friends.

Phil Craig is a licensed attorney and entreprenuer. He started practicing law at age 25 in 1979. He does not take on any more clients, but is advisor to some of the biggest names in the internet world. He shares his knowledge gained over the last 25 years at his Living Trust Secrets newsletter site: click here=========>http://www.LivingTrustSecrets.com

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Finding Experienced Appeals Lawyers

In the United States court of law, if a person or party is involved in litigation or legal action, and is dissatisfied with the verdict or result from that litigation, they have the right to ‘appeal’ that decision to a higher court. An appeal is a challenge, or dispute, of the original verdict. Because an appeal case is very different than a typical court case, and because the appeals process needs to follow a very specific protocol, finding experienced appeals lawyers to handle the case is very important.

If a person does decide to appeal his/her case, it must be done immediately after the conviction takes place. The appeal itself is a written document that lets the higher court know that the defendant will be appealing his/her conviction. If an appeal is not entered immediately, or if the notice is not filed, the defendant may not be able to file an appeal at a later date. And this is why appeals lawyers are so important.

The appeals process differs from a normal trial in several ways. In the appeals trial, referred to as a hearing, there is no jury, and the appeal is focused on an appellate brief which is filed by the defendant’s lawyer. The appellate brief presents the defendant’s argument on why the verdict in the original trial was incorrect, and also the other party’s argument on why the verdict was okay. The judge will question each of the appeals lawyers about the brief, and may allow a short time for oral arguments. In an appeal hearing, there are typically many referrals to precedents set in other trials and court cases.

Because of the strict steps and protocol that are demanded in an appeals case, having experienced appeals lawyers who have dealt with them before can increase your chance of success. These lawyers have experience with appeals and finding problems or mistakes with the original trial that can be used as the basis for an appeal. They are familiar with arguing on precedents set in other cases. The appeals process is very lengthy, so both parties should be prepared in terms of time and cost.

Finding appeals lawyers with experience is often done by referrals and word of mouth. Ask friends, co-workers, business professionals, or other lawyers. Public interest groups and non-profit groups may also give suggestions. Most State Bar Associations provide lawyer referral services that can give a list of appeals lawyers in your area who are available for consultation. Appeals lawyers usually charge a small amount of money for initial consultations, although some may provide a free consultation. If you can’t afford a lawyer, check with a local free Legal Aid agency to find out what your options are.

If a party feels they have been wrongfully sentenced during a court trial, or if he or she doesn’t agree with the outcome, then he or she should talk to an appeals lawyer immediately so that the lawyer can determine if there is a basis for appeal, and file the appeal notice immediately. Having experienced appeals lawyers on your side can make the difference in the outcome of the appeals hearing.

Cathy Seiler writes Appeals Lawyers articles for her http://www.appealslawyers.info website.