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WHO

Who are the players? Note: Some terms have a masculine and feminine form:

MALE FEMALE

testator testatrix

administrator administratrix

executor executrix

heir heiress

Testator, testatrix: The person making the will.

Decedent: A person who has died. The people inheriting property under a will or through intestacy are called by various terms:

Beneficiary: A person or organization entitled to receive property from a will (or from a trust or insurance policy).

Heir, heiress: A person or institution who will inherit – either because he is named in the will or because he is entitled to inherit from the decedent by law.

Issue: Descendants, children, grandchildren, et cetera.

Next of kin: The people closest to the decedent in blood relationship. Also, people who will receive property because of their relationship (under the laws of intestacy). The people who have various functions under a will or through intestacy include the following:

Administrator/administratrix: Someone named by a court to manage the estate of a decedent who dies without leaving a will.

Custodian: A general term. Anyone who has charge (custody) of property, papers, or persons (such as minor children). Sometimes called a conservator.

Executor/executrix: A person named in a will to manage the decedent’s estate. Also called a personal representative.

Guardian: A person named in the will or by the court to care for a minor child or a person who has been decreed by a court to be not competent to care for himself. Sometimes also manages property. These persons serve with or without bond.

Bond: A guarantee to pay money to persons damaged or hurt by the failure of the person in position of trust, such as a trustee, executor, administrator, or guardian, to carry out his legal and ethical duty. Bonds are written by bonding or surety companies. Their cost is based on the value of the estate.

WHAT

Will: The document, signed by the testator and witnessed according to law where the testator is domiciled, which explains how he wishes to have property distributed after death, who should care for minor children, et cetera. To be valid a will must be written and executed (signed/witnessed/completed) according to the law of the testator’s domicile. Also called the last will and testament, if you care to get fancy!

Estate: All property-real and personal-that a person owns when he dies.

Gift: Property given in a will. There are two types of gifts.

  • 1. Devise: Real property; that is, real estate, including land, house, the barn by the old millstream. It includes whatever is attached to the land.
  • 2. Legacy or bequest: Personal property. All property other than land, including money, cars, paintings, insurance policies, jewelry, et cetera. Thus, the furnace is a devise; but the space heater is a bequest or legacy.

Dower and curtesy: The common law right (by state or common law) that a surviving spouse has to receive or enjoy and use real property. This is the right to a “life estate.” The spouse gets (or has the right to use for life) a portion of the decedent’s estate if provisions were not made in the will or if the survivor chooses to take or elect against the will. Dower refers to the widow’s right, curtesy to the widower’s. Lovely old terms, aren’t they? These rights have been abolished or changed in most states.

Elect against the will: All states allow a surviving spouse to ignore the provisions made for him in the will (if any) and choose instead the financial allocation provided in the state’s statutes. Usually, these give him one half or one third of the estate.

Inherit: To receive property from a decedent either through a will or through intestacy.

Disinherit: A testator can intentionally omit a legal heir who would normally have a right to inherit, such as a child. Children can be disinherited in most states, but spouses cannot.

Legacy: general, specific, and residuary gifts of personal property (bequests) in a will. A general legacy gives a specified amount of money, but its source is unspecified. “I give one thousand dollars to Andrew.” A specific legacy gives a designated property. “I give the antique diamond to Kate”; or “all stock in Corporation X to Kenneth”; or “all moneys in First National Bank to Aaron.” A residuary legacy is all the bequests remaining after other legacies have been distributed. “I give all that remains to Jonah.”

WHERE

Domicile: The place where a person has his principal home. The will is probated where the person lived when he died. That’s where the will is written.

WHEN

There are two relevant time periods: before death and after death.

1.  Before death

  • Mental capacity: The will is written when the testator is of “sound mind”; that is, he knows what document he is signing and what he is giving away. His decisions are made without fraud or undue influence from someone who may inherit from him. All wills are revocable and changeable before the testator’s death. He may add to a will as often as he wishes, since a will does not become effective until death. However, following the proper procedures must make all changes. Again, check local law.
  • Codicil: An amendment to a will. It is a separate legal document that changes an existing will and must be signed and witnessed just like the original will.
  • Revocation: The cancellation of an instrument, such as a will, before it becomes effective.

2. After death

  • Probate: Establishing the validity of the will, either by witnesses or by a self-proving will. Also, probate is the process by which an executor or administrator is appointed, estate taxes and debts are paid, the estate is collected, heirs are identified, and, finally, the estate is distributed.
  • Proving a will: A legal action to determine if a will is valid and authentic and may be probated. Also may be called a “will contest.”
  • Self-proving will: A will that avoids the above contest. Having witnesses, at the time the will is written, sign affidavits before a notary attesting to the fact that they witnessed the will signing, does this. On this matter, as on all others in the field, each state has its own very specific statutes that must be followed. Common ways to avoid property going through probate: placing property in joint tenancy, giving gifts before death, and creating trusts. This book does not detail these terms.

WHY

You write a will in order to be testate: to die with a valid will. In this way the testator/testatrix decides how the estate is to be distributed. Otherwise you die intestate.

To be intestate: To die without a valid will. In case of intestacy the estate is distributed according to state law, generally to close family members, next of kin. State officials appoint a guardian for young children. A sample common order of intestacy: spouse, children, parents, siblings, nieces and nephews, and other next of kin.

Escheat: If a person dies without a will and has no relatives who qualify to inherit, the property escheats to the state. It goes to the state! It does not go to a lifelong companion or best friend or favorite charity. Doesn’t this word sounds like what it means!

Death tax, inheritance tax, transfer tax, estate tax: All mean approximately the same thing; a tax levied by state and federal governments on the decedent’s property, above a certain amount. *UPDATE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!For example, after 1987 the federal estate tax exemption is six hundred thousand dollars. That is, no taxes are paid on the first six hundred thousand dollars of an estate. Taxes and exemption amounts differ from state to state, of course.

HOW

Intent: A very important legal concept in this area of the law as well as many others. If a dispute develops about the will, the court will attempt to determine the decedent’s intention when he wrote the will in order to carry out those wishes. The critical question will be: What did the decedent intend to do? As you can imagine, this is not easy to determine if a will is ambiguous.

 

 

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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I know how it must feel…you are drowning in debt and feel like you have nowhere to turn. You are struggling with how to pay your bills, put food on the table and just survive. You start looking into options to deal with your massive struggle and you whittle yourself down to a few options. One promises near perfect success with pennies on the dollar being paid to your creditors who are happy as can be to accept this deal. The other appears to be a scary and expensive court battle where you will be forced to publicly admit defeat and be shamed for struggling.

Well – only one of the above descriptions really fits the bill.

How Debt Settlement Really Works

Debt settlement by its very nature is a voluntary agreement between you and the creditor where they agree to accept less than is owed to satisfy your debt. Sounds great! The problem is it doesn’t generally work this way and to get any discount on a bill with a creditor varies widely and depends on many factors like how old the debt is, how much is owed, your income and expenses and even time of month.

Generally a debt settlement company works by telling you to stop paying all your debts and pay them instead. They will then keep your money safe in an account that they will later draw from to settle your debts with creditors. For the privilege of doing this these companies often charge high fees – the last agreement like this I reviewed charged their client $25,000 to settle the debts.

These companies can have some success and they are not all bad, but many are. The biggest factor to keep in mind about debt settlement is that it is a voluntary agreement. The creditor does not have to accept your settlement offer or even respond – fact is, many companies have policies against negotiating with debt settlement companies. The other factor to analyze carefully is that if a debt is settled, the creditor will most likely issue a Form 1099 for the balance of the debt forgiven or cancelled. This will be reported to the IRS as income to you and it could affect your tax liability—sometimes significantly.

How Bankruptcy Really Works

Bankruptcy is a legal proceeding where legal documents are filed with the bankruptcy court. The entire process is supervised by a federal judge and trustee – oh and of course your attorney. Your attorney will be with you the entire way to make sure nothing goes wrong, or to help you fix it if it does. At the end of the proceedings your debts are “discharged” which tells your creditors that you are no legally obligated to pay them. Your case is monitored by a bankruptcy judge and the court’s orders can be enforced through various means.

The cost of a bankruptcy is typically much cheaper than debt settlement. In southern California, Chapter 7 cases range from $1,200 to $2,000 (more if they are complex) and Chapter 13 cases typically cost $4,000 or less (more if they are complex) – definitely less than almost every debt settlement agreement.

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Law words can be obscure because lawyers often use common words in very specific ways. When a lawyer moves,” he doesn’t take his furniture. A judge who “renders a decision” is not rendering fat, as a cook does, or rendering a drawing, as an architect does. When a lawyer “examines” you, he’s not checking you out as a doctor would, and when a judge “charges the jury,” he’s not buying something with plastic! And even though quash sounds like squash, it’s not. So here goes: some common verbs as used by lawyers, judges, and you, when you’re involved with them in court.

The witness may:

Testify: In court (or administrative hearing or deposition or other judicial or quasi-judicial settings), you don’t “speak” or “answer”! You testify: that is, you answer questions under oath; you give testimony (evidence) to the court.

Oath: A pledge to tell the truth. For those who refuse to take an oath, an affirmation will do. It affirms (states) that the person will tell the truth. Perjury, the crime of lying under oath, is taken very seriously by judges and is a felony.

Depose: Answer questions under oath before a trial, transcribed by a court reporter. This testimony creates a document, called the deposition; the witness is the deponent.

  • “The witness was deposed a month before trial at the lawyer’s office.” Depositions are part of pretrial discovery. Watch this! If you are a deponent, be sure your testimony at trial is consistent with your testimony at the deposition. If it’s not, it raises many troubling questions: Might it be perjury? An honest mistake? Is the witness believable (credible)? When was he telling the truth?–now? then? never?

Remain silent: Refuse to testify. A witness who may incriminate himself has the right to remain silent. This usually means the defendant (D) in a criminal proceeding or someone who may be charged with a crime because of the testimony.

  • The theory is: The D is innocent till proven guilty, and it is the government’s job to convict him. He cannot be forced to help the government’s case against him, i.e., incriminate himself.
  • Note: Only a witness who may incriminate himself has this privilege. Others, such as those with immunity (an exemption from prosecution in exchange for the witness’s testimony) may not assert the privilege against self-incrimination. If such a witness refuses to testify, he may be cited for contempt. The court may punish a witness for disobeying the court or impairing the dignity of the court.

Other verbs. The lawyer(s) or litigant pro se (representing himself without a lawyer) may:

Move: Ask the court for something through a motion. The lawyer (for his client) then is called the movant, the moving party. “I move that∑”. There are many types of motions. For example, a motion to change venue, a motion to quash, a motion to suppress evidence. Lawyers will tell you that the way these motions are dealt with by the court before the trial even begins often make or break their case. Motions are a vital part of what goes on in courts. Lots of motions keep lots of lawyers very busy!

Object: Protest: The lawyer may argue against specific testimony or procedures. “I object!”

Depose: Same word as above. Here, the lawyer takes the deposition from the witness. “The lawyer deposed the witness.”

Examine: Ask questions. There are two forms of examination: direct examination and cross-examination.

Direct examine: Ask questions of his own witness. The purpose is to present evidence favorable to the lawyer’s client.

Cross-examine: Ask questions of a witness brought to court (“called”) by the other side. The purpose is to discredit or clarify evidence to make it more favorable to the lawyer’s client.

Impeach the witness: During cross-examination a lawyer may attempt to prove that the witness is not credible (a liar?) and should not be believed. This is called impeaching the witness.

Rest his case: Tell the court (the judge) that he’s presented all his evidence and wants to end his presentation. He’s finished…

Rebut: Surprise! You thought it was all over, didn’t you? Not so fast! The lawyer may present evidence to disprove facts presented by the other side in some situations even after she rests. This happens especially if the other side presents facts that could not have been anticipated–surprises.

During the trial, the judge may:

Quash: Vacate, annul, make void. A motion to quash testimony, if approved, gets rid of it. “Motion to quash is granted.” So the testimony is excluded or removed from the record.

Sustain: Approve, grant. “The judge granted – sustained – the plaintiff’s (P’s) motion.” Yeah!

Deny: Refuse to grant. For example, “The judge denied the motion to quash.” So the (damaging?) evidence comes in.

Order: Direct, tell a party or the parties to do something during the course of the trial. For example, an order to show cause or a temporary restraining orders (TRO).

  • There are lots of orders, which generally are not part of the final judgment. They are interlocutory: i.e., provisional, temporary, et cetera.

Rule: Make a decision on a legal question during the trial.

Overrule: Another word for deny.

Adjourn: Say good night, Judge! The judge may postpone the trial till the next day, next week, whenever.

At the end of a trial by jury the judge may:

Charge the jury: This occurs at the end of a jury trial. The charge is the judge’s instructions to the jury, telling the members of the jury which laws to apply to their verdict, which burden of proof must be met, and so on.

Sequester the jury: (Actually, a judge can do this both during and after the trial.) Separate the jury members from their normal routines, often by having them stay in a hotel during the trial or during their deliberations.

The jury may:

Deliberate: In the jury room. Discuss, consider, argue, and ponder among them. Decide which witness to believe; which, if any, is not credible.

Request clarification: Ask the judge for more information, to see documents, to get clarification, et cetera.

Return a verdict: Make a decision. In criminal cases the verdict must be unanimous. In civil cases it depends on the state, the law that applies, the court, and so on.

Not reach a verdict: Become deadlocked, unable to decide for one side or the other. This is called a “hung jury.” in such a case often a new trial may begin, and we go back to square one!

  • Note: To hold a new trial in the case of a hung jury, even in a criminal case, is not double jeopardy.

After the trial without a jury the court (one or more judges) may:

Render an opinion: Write, deliver the judgment (decision).

Affirm: Decide – by an appellate court – that the lower court’s decision in a particular case is right and should stand.

Reverse: Opposite of affirm. Set aside the lower court’s decision. The appellate court’s decisions to vacate, annul, or change the lower court’s decision in the same case. In this way our laws change; new laws and precedents are created.

Vacate: Cancel, annul. Another word for reverse.

Remand: Send back. An appellate court’s decision to send a case back to the lower court where it was heard first, either for a new trial or for changes, as ordered by the appellate court.

Hold: Decide, declare, state. The important sentence or sentences in a decision that decide the case and can be used as precedent for other cases. Remember the Declaration of Independence? “We hold these truths . . .” Same word. “We hold that…” Lawyers read cases for the holdings.

Overrule: Annul, reverse, reject. An appellate court’s ruling in a case that is directly opposite an earlier decision by a lower court in that jurisdiction. The second case may involve different parties, but the question of law may be the same as in the earlier case. Once a case is overruled, it no longer serves as precedence in that jurisdiction. Thus, too, do our laws evolve and change. A famous overruling was Brown v. Board of Education, a 1954 case that found “separate but equal” schools inherently unequal (and a violation of the Constitution). This case overruled the 1896 case, Plessy v. Ferguson, which upheld laws permitting separate but equal facilities. Those laws were called “Jim Crow” laws.

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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What’s what: Documents in the court

September 25th, 2014 | Posted by admin in Uncategorized - (0 Comments)

Lawyers can, and often do, bury you in paper.

  • Eek – Here’s a summons!
  • Oh – Here’s a contract, a subpoena!

Now what?

What are all these papers?

Since law is a profession of words, it is vital to understand the type of document with which you are dealing. A document is a paper with legal significance.

  • Are you signing away your fortune or proving that you have one? Are you asking the court to move the trial or is the court forcing you to move?

Here are some common and basic types of documents, each with its own purpose, limits, and significance.

Affidavit: A written statement of facts sworn to under oath and signed in front of a person authorized to administer an oath, such as a notary public.

The person writing it is called the affiant. The part signed by the notary is called the jurat, and says something like:

  • Sworn before me this______day of _______________20_____at______ .

Bill: This little word has many legal meanings. Among these are:

  • It may be a law in draft form; that is, before it is passed by the legislature, while it is debated before enactment (when a bill becomes a law).
  • It is the Bill of Rights that sets out many basic rights and freedoms.
  • It may be something we all know very well, a statement of money owed. Too often, the mailbox is full of bills!

Certificate: A document stating a fact, qualification, promise, et cetera. For example: A teaching certificate permits a person to teach in the state jurisdiction of the certificate; a marriage certificate states the person is married (in all jurisdictions). Note: In some places these are called “licenses.” See below.

Charter: An act of the legislature that sets up a corporation. Called “certificate of incorporation.” A city charter, which creates a city, is also set up by the legislature. A charter school is set up through the state laws (created by the legislature).

Contract: An agreement between people, corporations, or other entities (not the court, but) which can be enforced by a court. It is usually written, but not always.

Deed: A writing that transfers ownership of land and buildings from one person to another (the grantor to the grantee).

Decree: A judgment of a court. An order. For example: A divorce decree ends a marriage.

Indictment: A written accusation by a grand jury, stating that there is enough evidence against a person to charge him/her with a crime.

Interrogatories: A pretrial discovery tool used in civil cases. It is a set of written questions that one party serves – don’t you love that word! – on the other. The questions are answered under oath.

License: A document giving official permission to do something. For example: A driver’s license permits a person to drive; a license to practice medicine in the jurisdiction covered by the license lets a person be a doctor there. (Note: As with certificates, some licenses are limited to specific jurisdictions.)

Motion: An application to a court for a ruling or an order. For example: A motion to change the trial location is a change of venue motion. A motion to strike asks judge to remove specific testimony from the record.

Order: A command or decision by a judge.

Ordinance: A municipal (city) law.

Record: The history of a court action. All the testimony, documents, and other evidence presented.

Statute: A law passed by state or federal legislatures.

Subpoena: A written order or writ requiring the person to whom it is addressed to appear in court to give testimony (called a subpoena ad testificandum) and/or to bring specific documents or other evidence (called a subpoena duces tecum).

Summons: Written notice to a person or persons or corporation or other entity that there is a lawsuit against him/her/them/it. The document that starts an action when served upon the D.

Testament: Any proof that serves as evidence of something. For example, a last will and testament proves how the decedent (person who died) wanted his property (called “estate”) distributed after his death.

Warrant: A writ or order authorizing an officer to make an arrest, conduct a search of a person or premises or seize property belonging to a D, or perform another task. Examples are bench warrants, search warrants, arrest warrants.

Will: A document that states how a person wants to dispose of (divide, give away) his property (“estate”) after death.

Writ: A formal document ordering an action. Usually, it orders an officer of the state to do something. For example, writ of habeas corpus, writ of certiorari, writ of execution.

Writ of habeas corpus: The Great Writ. An order that a person appear in court to determine if he is held in custody legally.

Writ of certiorari: An order by a higher court to a lower court to get the record of proceedings so that the higher court can review the lower court’s decision for error.

Writ of execution: A court order to enforce a judgment granted to the P by authorizing the sheriff to impose a levy on property, in the court’s jurisdiction, that belongs to the judgment debtor (D).
from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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Who’s who in the courtroom

September 18th, 2014 | Posted by admin in Uncategorized - (0 Comments)

And who says/does what to whom

 

A courtroom can be an overwhelming place, with its formality, its procedures, and its people. Lots of people do different jobs there. The court employs some of them; others play a role in the specific proceeding. Here’s a who’s who that may help.

Prosecution: In a criminal case, the government (state, local, or federal) that brings a defendant (D) to trial for a crime.

Plaintiff (P): The person who sues a D.

Defendant (D): In a criminal case the person charged with a crime. In a civil case the person sued by the P.

Parties: In a civil case, the P and D. Each is a party. Also called litigants. There may be more than one P or D. There may be a large group ofP’s orD’s who don’t even know each other, as in a class action suit.

Witness: A person called by either party in a civil case or by either side in a criminal case to give evidence, through testimony, to the court. The witness testifies (answers questions) under oath.

There are many types of witnesses, including:

  • Character witness: A witness who vouches for the character and standing in the community of a party orD, but who does not know about the specific case before the court.
  • Expert witness: A witness with special knowledge, experience, or training in the field about which he testifies. An expert witness is permitted to give his opinion in court, unlike a lay witness who generally does not give an opinion.
  • Lay witness: A witness generally called to testify about what he knows or saw first-hand or to impart other firsthand knowledge he may have.
  • Material witness: In a criminal case, the witness whose testimony is vital to prove the guilt or innocence of the D.
  • Hostile witness: A witness who is biased against the party or side questioning him.

 

Others in the courtroom include:

Judge: A public officer with authority to hear and decide cases in court.

Bailiff: A court attendant who maintains order in court. He’s the one who shouts, “Order in the court!”

Clerk: A court officer who files documents with the court (such as motions and pleadings), keeps records of all legal proceedings, and generally knows what’s going on. If you have questions about the court’s procedures, ask the clerk!

Law clerk: A person, often a young lawyer, who helps the judge with research and writing decisions and other documents.

Jury: In a jury trial, a group of laypersons who decide the facts in a case at trial. A jury may have six or twelve members, depending on the court and state involved. Called a petit jury.

Grand jury: In a criminal matter, the group of persons convened by the court to hear evidence from the prosecution and decide if there is enough to bring the accused to trial.

Lawyer: Also called attorney, counsel, advocate, and possibly other names, as well…. The person-hired to represent his/her client’s interests to-achieve a specific legal goal. Remember that the client is the employer-not the other way around!

A lawyer is also considered an “officer of the court,” with an obligation to do justice. As you can imagine, these roles may sometimes be challenging and can create conflicts for lawyers.

Prosecuting Attorney: Also called district attorney, assistant district attorney, and government’s lawyer. The lawyer prosecuting a criminal case for the government (The People) or representing the government in any other matter.

Bar: The railing separating the participants in a trial from the observers. Lawyers are called “members of the bar.” To disbar a lawyer is to revoke his license to practice law.

Magistrate: A judge (sometimes called a judicial officer) of a lower court, dealing with misdemeanor cases for example, a justice of the peace.

Sheriff: A law officer of a county who serves summonses, subpoenas, and other legal documents and carries out judgments of the court. A sheriff also calls jurors.

Deputy sheriff: A person appointed by the sheriff to assist him.

 

The following officials may function in administrative agencies, not courts.

Hearing officer: Also called hearing examiner or administrative law judge. A public officer with authority to hear and decide cases in an administrative agency. Examples of these agencies include the tax agencies, labor boards, real estate boards, social security, special education, et cetera.

 

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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