The Court Of Public Opinion

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, All Rights Reserved

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

** Attn Ezine editors / Site owners ** Feel free to reprint this article in its entirety in your ezine or on your site so long as you leave all links in place, do not modify the content and include our resource box as listed above.

If you do use the material please send us a note so we can take a look. Thanks.

More articles at www.articles-host.com

Your Durable Power of Attorney

For most people, the durable power of attorney is the most important estate-planning instrument available-even more useful than a will. A power of attorney allows a person you appoint your attorney in-fact to act in your place for financial purposes when and if you ever become incapacitated.

In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. The court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservator ship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.

A power of attorney may be limited or general. A limited power of attorney may give someone the right to sign a deed to property on a day when you are out of town. Or it may allow someone to sign checks for you. A general power is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself.

A power of attorney may also be either current or Springtime. Most powers of attorney take effect immediately upon their execution, even if understanding is that they will not be used until and unless the grantor becomes incapacitated. However, the document can also be written so that it does not become effective until such incapacity occurs. In the power of attorney be clearly laid out in the document itself.

While you should seriously consider executing a durable power of attorney, if you do not have someone you trust to appoint it may be more appropriate to have the probate court looking over the shoulder of the person who is handling your affairs through a guardianship or conservatorship. In that case, you may execute a limited durable power of attorney simply nominating the person you want to serve as your conservator or guardian.

Your Medical Directive

Any complete estate plan should include a medical directive. This term may encompass a number of different documents, including a durable power of attorney for health care and a living will. The exact document or documents will depend on the choices you make. This document designates someone you choose to make healthcare decisions for you if you are unable to do so yourself. A living will, discussed below, instructs your health care provider to withdraw life support if you are terminally ill or in a vegetative state.

Power of Attorney for Health Care The statutory power of attorney for health care, mentioned above, is one example of a medical directive. The power of attorney is a much more efficient and powerful tool than the living will, but the living will has the advantage that it is self-actuating and needs nothing else but to be available when needed. The delay in locating the agent under a health care power of attorney may mean that the health care provider must act without the limitations expressed in the power of attorney, at least initially. If you are traveling when health care is needed, the existence of the living will may be easier to confirm through your physician or family members. It should also be noted that there may be a conflict between the directions in one document and those contained in the other. In Illinois, the power of attorney takes precedence over the living will as long as an agent under the power is available to act. This issue is important if it is necessary to withdraw food and hydration, since doing so is prohibited in living wills in Illinois.

Living Will

Living wills, like many legal documents have certain strengths and certain weaknesses. It is often an advantage to have a self-actuating document that will allow the health care provider to withdraw or not commence artificial life support measures in the limited circumstances prescribed by the statutory language of the living will, especially when the agent named in a power of attorney for health care is unavailable on an emergency basis. However, the limitation imposed by the statutory language, which requires the maintenance of food and water, may frustrate the intent of the terminally ill person, and that limitation is not a factor with an agent under a power of attorney for health care unless the principal specifically imposes that restriction.

Mental Capacity Requirements

Proper execution of a legal instrument requires that the person signing have sufficient mental capacity to understand the implications of the document. While most people speak of legal capacity or competence as a rigid black lineeither the person has it or doesntin fact it can be quite variable depending on the persons abilities and the function for which capacity is required.

One side of the capacity equation involves the clients abilities, which may change from day to day (or even during the day), depending on the course of the illness, fatigue and the effects of medication. On the other side, greater understanding is required for some legal activities than for others. For instance, the capacity required for entering into a contract is higher than that required executing a will.

The standard definition of capacity for wills has been aptly summed up by one court as follows:

Testamentary capacity requires ability on the part of the testator to understand and carry in mind, a general way, the nature and situation of his property and his relations to those persons who would naturally have some claim to his remembrance. It requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. And it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.

That is a relatively low threshold, meaning that signing a will does not require a great deal of capacity. The fact that the next day the testator does not remember the will signing and is not sufficiently with it to execute a will then does not invalidate the will if he understood it when he signed it.

The standard of capacity with respect to durable powers of attorney varies from jurisdiction to jurisdiction. Some courts and practitioners argue that this threshold can be quite low. The client need only know that he trusts the attorney-in-fact to manage his financial affairs. Others argue that since the attorney-in-fact generally has the right to enter into contracts on behalf of the principal, the principal should have capacity to enter into contracts as well. The threshold for entering into the contracts is fairly high. The standards for entering into a contract are different because the individual must know not only the nature of her property and the person with whom she is dealing, but also the broader context of the market in which she is agreeing to buy or sell services or property.

One court defined the competency required to execute a contract as follows:

Competency to enter into a contract presupposes something more than a transient surge of lucidity. It requires the ability to comprehend the nature and quality of the transaction; together with an understanding of what are going on, but an ability to comprehend the nature and quality of the transaction, together with an understanding of its significance and consequences.

As a practical matter, in assessing a clients capacity to execute a legal document, attorneys generally ask the question Is anyone going to challenge this transaction? If a client of questionable capacity executes a will giving her estate to her husband and then to her children if her husband does not survive her, its unlikely to be challenged. If, on the other hand, she executes a will giving her estate entirely to one daughter with nothing passing to her other children, the attorney must be more certain of being able to prove the clients capacity.

While the standards may seem clear, applying them to particular clients may be difficult. The fact that a client does not know the year or the name of the President may mean that she does not have capacity to enter into a contract, but not necessarily that she cant execute a will or durable power of attorney. The determination mixes medical, psychological and legal judgments. It must be made by the attorney (or a judge, in the case of guardianship and conservator ship determinations) based on information gleaned by the attorney in interactions with the client, from the other sources such as family members and social workers, and, if necessary, from medical personnel. Doctors and psychiatrist cannot themselves make a determination as to whether an individual has capacity to undertake a legal commitment. But they can provide a professional evaluation of the person that will help an attorney make this decision.

Because you need a third party to assess capacity and because you need to be certain that the formal legal requirements are followed, it can be risky to prepare and execute legal documents on your own without representation by an attorney.

Trusts

Trusts have one set of beneficiaries during their lives and another set often their children who begin to benefit only after the first group has died. The first are often called life beneficiaries and the second remaindermen.

Uses of Trusts

There can be several advantages to establishing a trust, depending on your situation. Best-known is the advantage of avoiding probate. In a trust that terminates at the death of the person who creates it (the grantor), any property in the trust prior to the grantors death passes immediately to the beneficiaries by the terms of the trust without requiring probate. Think of a trust much like a legally binding contract that the trustee must follow. By avoiding probate, trusts save time and money for the beneficiaries. Certain trusts can also result in tax advantages both for the grantor and the beneficiary. These are often referred to as credit shelter or life insurance trusts. Other trusts may be used to protect property from creditors or to help donor qualify for Medicaid. Unlike wills, trusts are private documents and only those individuals with a direct interest in the trust need know of the trust assets or then distributions. Provided they are well drafted, another advantage of trusts is their continuing effectiveness even if the grantor dies or becomes incapacitated.

Kinds of Trusts

Trusts fall into two basic categories: testamentary and inter vivos.

A testamentary trust is one created by your will, and it does not come into existence until you die. In contrast, an inter vivos trust starts during your lifetime. You create it now and it exists during your life.

There are two kinds of inter vivos trusts: revocable and irrevocable.

Revocable Trust

Revocable trusts are often referred to as living trusts. With a revocable trust, the grantor maintains complete control over the trust and may amend, revoke or terminate the trust at any time. This means that you, the grantor, can take back the funds you put in the trust or change the trusts terms. Thus, the grantor is able to reap the benefits of the trust arrangement while maintaining the ability to change the trust at any time prior to death or incapacity.

Revocable trusts are generally used for the following purposes:

Asset Management. 1. They permit the named trustee to administer and invest the trust property for the benefit of one or more beneficiaries.

Probate Avoidance. 2.At the death of the person who created the trust, the trust property passes to whoever is named in the trust. It does not come under the jurisdiction of the probate court and the probate process need not hold up its distribution or diminish its value by extra cost. However, the property of a revocable trust will be included in the grantors estate for estate purposes.

Tax Planning. 3.While the assets of a revocable trust will be included in the grantors taxable estate, the trust can be drafted so that the assets will not be included in the estates of the beneficiaries, thus avoiding taxes when the beneficiaries die.

Irrevocable Trust

An irrevocable trust cannot be changed or amended by the donor. The trustee as provided for in the trust document it may only distribute property placed into the trust according to the trust specific terms. For instance, the donor may set up a trust under which he or she will receive income earned on the trust property, but that bars access to the trust principal. This type of irrevocable trust is a popular tool for Medicaid planning and or estate tax planning.

Testamentary Trusts

As noted above, a testamentary trust is a trust created by a will. Such a trust has no power or effect until the will of the grantor is probated. Although a testamentary trust will not avoid the need for probate and will become a public document, as it is a part of the will, it can be useful in accomplishing other estate planning goals. For instance, the testamentary trust can be used to reduce estate taxes on the death of a spouse or provide the care of a disabled or minor child.

Supplemental Needs Trusts

The purpose of a supplemental needs trust is to enable the donor to provide the continuing care of a disabled spouse, child, relative or friend. The beneficiary of a well-drafted supplemental needs trust will have access to the trust assets for purposes other than those provided by public benefits programs. In this way, the beneficiary will not lose eligibility for benefits such as Supplemental Security Income, Medicaid and low-income housing. A supplemental needs trust can be created by the donor during life or be part of a will.

Estate Taxation

Under the tax law enacted in 2001, whatever you own is subject to the federal estate tax upon your death, until 2010. For the year 2010, estates will be entirely free from federal taxation. However, the law that includes these provisions expires at the end of 2010. Thus, unless Congress acts in the interim, the estate tax rules will then revert to those prevailing in 2001.

For 2001, the tax rate on estates begins at 37 percent and rises to a maximum of 55 percent. depending on how much is being passed to your heirs. Between 2002 and 2009, the top tax rate will gradually be lowered to 45 percent (see box below).

That said, not all estates will be taxed while the estate tax is in effect. First, spouses can leave any amount of property to their spouses free of federal estate taxes so long as their spouse is a U.S. citizen. Second, the federal tax applies only to estates valued at more than $1,000,000 in 2002. This amount will rise to $1.5 million in 2004 and then increase incrementally until it reaches $3.5 million in 2009 (see box). The federal government allows you this tax credit for gifts made during your life or for your estate upon your death. Third, gifts to charities are not taxed.

Illinois has an estate tax. But this is a so-called sponge tax, which ultimately doesnt cost your estate. The way this works is that Illinois takes advantage of a provision in the federal estate tax permitting a deduction for taxes paid to the state up to certain limits. Illinois simply takes the full amount of what you are allowed to deduct off the federal taxes.

Federal Estate Taxes: Top Tax Rate Unified Exemption Equivalent 200155g5,000 200250%1,000,000 200349%1,000,000 200448%1,500,000 200547%1,500,000 200646%2,000,000 200745%2,000,000 200845%2,000,000 200945%3,500,000 2010N/AN/A

Making Gifts: The $10,000 Annual Rule

One simple way you can reduce estate taxes or shelter assets in order to achieve Medicaid eligibility is to give some or all of your estate to your children (or anyone else) during their lives in the form of gifts. Certain rules apply, however. There is no actual limit on how much you may give during your lifetime. But if you give any individual more than $10,000 during a calendar year, you must file a gift tax return reporting the gift to the IRS. Also the amount above $10,000 will be counted against the unified exempt equivalent that you may give tax-free during your life or upon your death.

The $10,000 figure is an exclusion from the gift tax-reporting requirement. You may give $10,000 to each of your children, their spouses, and your grandchildren (or to anyone else you choose) each year without reporting these gifts to the IRS. In addition, if youre married, your spouse can duplicate these gifts. For example, a married couple with four children can give away up to $80,000 a year with no gift tax implications. In addition, the gifts will not count as taxable income to your children.

Nicolosi & Associates - Attorneys at Law Since 1948. Skilled in the law. Experienced in business. http://www.nicolosilaw.com

More articles at articles host

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, All Rights Reserved

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

** Attn Ezine editors / Site owners ** Feel free to reprint this article in its entirety in your ezine or on your site so long as you leave all links in place, do not modify the content and include our resource box as listed above.

If you do use the material please send us a note so we can take a look. Thanks.

More articles at www.articles-host.com

As with anything in life, when looking for legal assistance to claim compensation for asbestos injury you want to get the best legal advice available. This is particularly true with legal cases involving an injury such as mesothelioma, where millions of dollars in compensation could be at stake. Selecting the right mesothelioma lawyer could make a big difference to the success of your lawsuit, and also the amount of compensation you receive as settlement for your injury.

The first thing you need to look for in a mesothelioma lawyer is experience. The rise in mesothelioma cases coming to light has seen a boom in the number of specialist mesothelioma lawyers in operation, and these skilled professionals have built up established links to help with many aspects of your mesothelioma lawsuit. An experienced mesothelioma lawyer will have the necessary knowledge, experience, contacts and resources to put together a solid case and increase your chances of success.

Using an experienced mesothelioma lawyer will also enable you to check the law firms’ track record when it comes to success rate with mesothelioma cases. Before you make any commitment to a lawyer or law firm, you should check how many mesothelioma cases the firm or lawyer has dealt with in the past, and how many of these have been successful. A good, experienced mesothelioma lawyer will be happy to answer these questions for you. Some lawyers will even be able to give you an idea for the figures involved with their successful cases, although they won’t be able to divulge information about the plaintiff for confidentiality reasons.

When looking for the right mesothelioma lawyer, you should also look into the firm’s fee structure. Many mesothelioma lawyers now operate on a contingency fee basis, which means that you will only pay a fee for legal assistance if and when you are awarded compensation. This payment structure offers peace of mind, enabling you to pursue legal action without the worry of ending up with huge legal bills even if you do not get compensation for your illness.

Make sure that you feel comfortable with the lawyer that you select, as you will need to be completely honest and frank with your mesothelioma lawyer in order to maximize the chances of a successful lawsuit. Even if you choose a law firm that states that they specialize in mesothelioma cases, make sure that you also check on the experience of the specific lawyer assigned to your case, as this will ensure that you get someone that has the skills and knowledge necessary to help you get compensation.

By taking the time to find the right mesothelioma lawyer to deal with your case, you can benefit from assistance from a specialist that has the connections and knowledge to maximize your chances of success. You can also benefit from a no-win no-fee payment structure, which means that you won’t have to pay for the legal service if the mesothelioma lawyer is unsuccessful in securing you compensation. However, if you opt for a mesothelioma lawyer that has plenty of experience within this particular field, you can reduce the chances of your lawsuit failing and increase the chances of getting a substantial sum of compensation for your injury.

More articles at article database

Mesothelioma is a deadly cancer that is caused by exposure to asbestos fibers, and this cancer can reduce lifespan to a matter of months from the onset of symptoms. Over recent years, the number of mesothelioma cases coming to light has risen quite dramatically, and in line with this, the number of mesothelioma lawsuits being filed has also increased. Because mesothelioma lawsuits have become such big business, many law firms and lawyers now specialize in this area, making it easier for those affected by this disease to get the legal assistance they need to file a mesothelioma lawsuit.

The first thing to remember about filing a mesothelioma lawsuit is that you have to act quickly. Each state operates within a statute of limitation, which means that those affected by this disease have a certain time within which to act. These statutes of limitation apply to both affected parties and to relations that may be filing a mesothelioma lawsuit in the event that the affected party has already passed away. The faster you act with regards to getting legal assistance the better. Filing your mesothelioma lawsuit as early as possible could make the difference between a successful and unsuccessful compensation claim.

Many people worry about the cost of filing a mesothelioma lawsuit, but the majority of mesothelioma lawyers and law firms now operate on a contingency fee basis. This means that clients do not have to pay any money up front, and the lawyer takes his fee from any compensation awarded as a result of the mesothelioma lawsuit. If no compensation is awarded, then you do not have to pay any fees for the legal action that has been taken.

An experienced mesothelioma lawyer will be able to offer advice on the likely success of your mesothelioma lawsuit based upon your own individual circumstances. Although it is impossible to predict how much will be awarded as part of the mesothelioma lawsuit, an experienced lawyer will be able to draw on experience from past cases to give you an idea of how much you might get. The compensation received as a result of filing a mesothelioma lawsuit is designed to cover a range of costs. Compensation often runs into six figures for claimants, and this is to cover medical expenses, pain and suffering, and also to secure a financially stable future for their families. Although the exact compensation awarded can vary from one lawsuit to another, a mesothelioma lawyer will aim to get as much compensation as possible for an affected client.

Taking early action when filing a mesothelioma lawsuit could really benefit you, and will enable your mesothelioma lawyer to collate all the necessary facts and information in order to put together a watertight case. This can make a big difference to the success of your mesothelioma lawsuit, and acting quickly will help to ensure that your case is actioned within the time limitations set by the state. Although thinking about legal action can be difficult when you have been diagnosed with a cancer such as mesothelioma, it is important to seek legal assistance as soon as possible following diagnosis. This is to ensure that you and your loved ones stand as high a chance as possible of getting the compensation to which you are entitled.

More articles at article database

Asbestos is a material that was widely used in a range of everyday items up until the late 1970s and early 1980s. Millions of people were exposed to this material on a daily basis, but those exposed to the highest levels were people that worked with asbestos in one form or another. The risks concerning asbestos related injury are now more widely recognized; however, in the past people that worked with asbestos were oblivious to the dangers of this substance. It is thought, however, that many of the companies and manufacturers linked to asbestos were aware of the dangers from as early as the 1920s, and that they continued to let people suffer asbestos related injuries by allowing them to work with asbestos without the necessary protection or warnings.

Asbestos is now linked with a range of injuries and diseases. Some asbestos related injuries that can be sustained through unprotected exposure to this material include: pleural effusion, pleural plaques, rounded atelectasis, asbestosis, and pleural thickening. But perhaps the most worrying - and deadliest - effect of exposure to asbestos is mesothelioma. Malignant mesothelioma is a form of cancer that can start in the lungs, abdomen, or the cavities around the heart. This cancer can reduce the victim’s lifespan to a matter of months, and can result directly from exposure to asbestos.

One unique thing about this particular asbestos related injury is that it can take a very long time for the sufferer to realize that he or she has been affected. Mesothelioma has a latency period of several decades, which means that it could take thirty years or more for symptoms to manifest. Those suffering from asbestos related injury are entitled to claim for compensation. However, because of the long latency period associated with mesothelioma, some people assume that they will not be able to get compensation because, after all these years, they have no idea where or when they may have been exposed to asbestos.

A good and experience mesothelioma lawyer will be accustomed to dealing with asbestos related injuries, and will be able to investigate the matter of your behalf. Many specialist mesothelioma lawyers will employ the services of an investigator - at their own cost - to determine where and when your asbestos related injuries were sustained. All you need to do is be as frank and honest with the lawyer as possible, and he or she can then work towards obtaining the information required in relation to your asbestos related injury, enabling you to file a lawsuit against the appropriate parties.

In order to determine where and when your asbestos related injury was sustained, your lawyer will need time. This is one of the reasons why it is so important to seek legal assistance at the earliest opportunity. Taking early action with regards to getting a mesothelioma lawyer will buy you and your lawyer valuable time, and will increase the chances of your lawyer being able to investigate your asbestos related injury quickly and efficiently.

More articles at articles database

According to criminal law, crimes are offences against the social order. In common law jurisdictions, there is a legal fiction that crimes disturb the peace of the sovereign. Government officials, as agents of the sovereign, are responsible for the prosecution of offenders. Hence, the criminal law plaintiff is the sovereign, which in practical terms translates into the monarch or the people.

The major objective of criminal law is deterrence and punishment, while that of civil law is individual compensation. Criminal offences consist of two distinct elements; the physical act (the actus reus, guilty act) and the requisite mental state with which the act is done (the mens rea, guilty mind). For example, in murder the ‘actus reus is the unlawful killing of a person, while the ‘mens rea is malice aforethought (the intention to kill or cause grievous injury). The criminal law also details the defenses that defendants may bring to lessen or negate their liability (criminal responsibility) and specifies the punishment which may be inflicted. Criminal law neither requires a victim, nor a victim’s consent, to prosecute an offender. Furthermore, a criminal prosecution can occur over the objections of the victim and the consent of the victim is not a defense in most crimes.

Criminal law in most jurisdictions both in the common and civil law traditions is divided into two fields:

* Criminal procedure regulates the process for addressing violations of criminal law

* Substantive criminal law details the definition of, and punishments for, various crimes.

Criminal law distinguishes crimes from civil wrongs such as tort or breach of contract. Criminal law has been seen as a system of regulating the behavior of individuals and groups in relation to societal norms at large whereas civil law is aimed primarily at the relationship between private individuals and their rights and obligations under the law. Although many ancient legal systems did not clearly define a distinction between criminal and civil law, in England there was little difference until the codification of criminal law occurred in the late nineteenth century. In most U.S. law schools, the basic course in criminal law is based upon the English common criminal law of 1750 (with some minor American modifications like the clarification of mens rea in the Model Penal Code).

Types of criminal law are: Arrests and Searches, Drug Crimes, Juvenile Law, Drunk Driving / DUI / DWI , Parole, Probation, Pardons, Violent Crimes, White Collar Crimes and Military Law.

More articles at article database

In a criminal case, the government generally brings charges in one of two ways: either by accusing a suspect directly in a bill of information or other similar document, or by bringing evidence before a grand jury to allow that body to determine whether the case should proceed. If there is, then the defendant is indicted. In the federal system, a case must be brought before a grand jury for indictment if it is to proceed; some states, however, do not require indictment.

Once charges have been brought, the case is then brought before a petit jury, or is tried by a judge if the defense requests it. The jury is selected from a pool by the prosecution and defense.

The burden of proof is on the prosecution in a criminal trial, which must prove beyond a reasonable doubt that the defendant is guilty of the crime charged. The prosecution presents its case first, and may call witnesses and present other evidence against the defendant. After the prosecution rests, the defense may move to dismiss the case if there is insufficient evidence, or present its case and call witnesses. All witnesses may be cross-examined by the opposing side. The defendant is not required to testify under the Fifth Amendment to the United States Constitution, but must answer the prosecution’s questions if he or she takes the stand. After both sides have presented their cases and made closing arguments, the judge gives the jury legal instructions and they adjourn to deliberate in private. The jury must unanimously agree on a verdict of guilty or not guilty.

If a defendant is found guilty, sentencing follows, often at a separate hearing after the prosecution, defense, and court have developed information based on which the judge will craft a sentence. In capital cases, a separate penalty phase occurs, in which the jury determines whether to recommend that the death penalty should be imposed. As with the guilt phase, the burden is on the prosecution to prove its case, and the defendant is entitled to take the stand in his or her own defense, and may call witnesses and present evidence.

After sentencing, the defendant may appeal the ruling to a higher court. American appellate courts do not retry the case; they only examine the record of the proceedings in the lower court to determine if errors were made that require a new trial, re-sentencing, or a complete discharge of the defendant, as is mandated by the circumstances. The prosecution may not appeal after an acquittal, although it may appeal under limited circumstances before verdict is rendered, and may also appeal from the sentence itself.

More articles at articles database

What is a Guarantee?
A guarantee is a written promise by you (the guarantor) that the person who is obtaining credit (the debtor or borrower) will keep to all the terms and conditions of their contract (the credit contract, or loan agreement). The guarantee means that if the person borrowing the money is unable to repay the loan then you, as the guarantor, will become legally liable to pay whatever is owed. Your guarantee may either be oral or written. A written guarantee is best because it will withstand any attacks, whereas an oral one is difficult to prove.

Who is a Guarantor?
The guarantor is the party who agrees to be responsible for the payment of someone else’s debts. That is, you are the guarantor if you promise to repay a loan that the borrower of the money does not repay. The lender will usually ask for a guarantee when lending money especially if they think the borrower will have difficulty repaying the loan.

The guarantor makes the promise or guarantee to a creditor or lender so that the lender will have a certain amount of confidence in the deal because he/she will know that should the borrower not be in a position to repay the amount taken, the guarantor will take responsibility for it.

Most guarantees provide that the lender or creditor can call on the guarantor to pay the debt in full without requiring any payments from the borrower and without seeking any other normal remedies against the borrower.

Why ask for Guarantees?
People on low incomes and many young people, often find it hard to get a loan without having someone guarantee it. The lender may have doubts about the person’s ability to repay the loan, especially if they are not in a good job or if they are not earning sufficient income to provide for the loan as well as their living costs. So the lender seeks a guarantor.

The lender will be happier arranging a loan if there is an adult guarantor with the means to meet the repayments should the borrower default. When you, as the guarantor, sign the contract of guarantee you will be agreeing to meet all the terms and conditions of the borrower’s loan if the borrower stops paying.

It’s a Legal Contract
Guaranteeing a loan is a contract and is therefore a legally binding arrangement between the parties. It is what as known as a contract to perform a promise or discharge liability (of the third person who is the borrower) in case of his/her default.

There are basically 3 parties involved:

1. The surety or guarantor.
2. The principle debtor or borrower.
3. The creditor or lender.

If you are guaranteeing a loan for a purpose, you can withdraw any time before the credit is approved. If you are called on to honour a guarantee you have given, the first thing you need to do is see a lawyer straight away. In any event you should not enter into any guarantee without getting advice, preferably from a lawyer or your accountant.

Guarantee in Writing
To be enforceable against you, the guarantee of another person’s debt has to be in writing and must be signed by you.

More articles at article database

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, All Rights Reserved

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

** Attn Ezine editors / Site owners ** Feel free to reprint this article in its entirety in your ezine or on your site so long as you leave all links in place, do not modify the content and include our resource box as listed above.

If you do use the material please send us a note so we can take a look. Thanks.

More articles at articles database