Thursday, September 29, 2011

How to Prove the Validity of a Will

The process of "proving" or showing the validity of someone's will involves multiple considerations beyond just the will's existence. In some cases, where there is ample evidence that the will isn't consistent with the decedent's intentions, the will may be thrown out entirely.

While the loss of a loved one is a trying time for any family, sometimes situations arise wherein the contents of a loved one's will become the source of controversy. Perhaps you've found a will that no one in the family knew existed, or one that was written in the last few weeks before your loved one's death. Maybe the contents of the will are not exactly what the family might have expected. How will the court determine whether or not that will is valid? 

Mental Capacity

When determining whether a will is valid, one of the most important considerations is the decedent's mental capacity at the time the will was written. For a will to be considered valid, the individual who wrote it must have been of sound mind at the time it was drafted. If you believe that your loved one was not "himself" when he wrote his will, as in the case of dementia or Alzheimer's disease, you may be in a position to contest his will. You will need to show proof of your loved one's mental capacity (as in the form of a letter from his doctor). Undiagnosed conditions and anecdotal evidence will be more difficult for the court to accept.

Undue Influence

While more difficult to prove than straightforward mental capacity concerns, undue influence is another valid reason to contest a will. Sometimes, wills are contested because it's believed that someone unduly influenced the decedent to write his will in a certain way. This situation is less common than mental capacity cases, but can sometimes go hand in hand with a mental capacity issue. A close friend or family member may be suspected of taking advantage of the decedent's diminished mental capacity in order to pressure him to distribute his assets in a certain way.

Proper Execution

The act of putting one's final wishes on paper, as in a handwritten will that's kept at home, for example, doesn't ensure that those wishes will be followed after one's death. There is a process that must be followed in order to properly execute a will. This is part of the problem with DIY wills and downloadable templates. While the contents may be fine, if the will isn't properly executed – including all required signatures and notarization – there is a good chance that the court won't honor it.

Will Contests

Will contests are not only emotionally difficult for everyone involved, they can also be quite complex. If you truly believe that the contents of your loved one's will are not consistent with his intentions, you will need to hire a probate attorney to help you file a contest. In most states, there is a time limit, so you'll want to take action quickly. You will also want to find an attorney with both the skill and experience to handle your case.

This article is for informational purposes only. You should not rely on this article as a legal opinion on any specific facts or circumstances, and you should not act upon this information without seeking professional counsel. Publication of this article and your receipt of this article does not create an attorney-client relationship.

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Thursday, September 22, 2011

What is Involved in the Probate Process

The death of a spouse, parent or other loved one is a difficult time that involves heightened emotions, complicated paperwork, and a seemingly endless task list. If you've been named as a loved one's executor, then it is wise to hire a probate attorney. Probate is the legal process that takes place after someone dies. It involves determining whether that person had a will, "proving" the will, securing and listing the person's assets, and then settling the person's outstanding financial affairs.

Identifying the Executor

The first step in the probate process is identifying someone to act as the decedent's personal representative. This will be the person responsible for "administering the estate," or handling the affairs of the estate, for the duration of the probate process. If the decedent had a will, he probably named an executor. Unless there is a compelling reason not to, the court will, in most cases, honor the decedent's wishes by allowing the executor to act as his personal representative. If there was not a will, the court is likely to select the deceased individual's spouse, adult child or close family member to act as his personal representative. In the event that no family can be identified, the court may give this responsibility to a bank, trust company or attorney.

Determining the Assets

You are going to have a lot of work ahead of you if you've been named as a loved one's executor. First, you will need to gather and inventory all of the decedent's assets, including bank and brokerage accounts, real estate, and personal property, and determine its value (which sometimes requires an appraisal). You'll also need to file for any life insurance benefits the decedent may have been entitled to and check with his employer to secure any unpaid salary or pension.

Settling the Debts

Once the assets have been gathered and their values determined, you'll begin the process of settling your loved one's outstanding debts. This involves notifying any known creditors of his death and, in most states, placing a notice in the local newspaper to inform any unknown creditors of his death. Creditors may then begin to file claims against the estate. As the executor, your role is to review these claims, determine their validity (or file an exception), and, assuming that assets are available, make payments to cover them.

You will also need to ensure that the estate does not incur any additional costs by closing out all of your loved one's accounts, including credit cards, bank accounts and any subscription services. When all debts have been settled, you'll be responsible for distributing the remaining assets according to your loved one's will or, if he didn't have a will, according to your state's laws of descent and distribution.

Hiring a Probate Attorney

Losing a loved one is one of the hardest things you'll ever have to go through. Spending countless hours handling the affairs of his estate can make the mourning process even longer and more difficult. Therefore, it is a good idea to hire a probate attorney. Like most legal processes, probate is not a simple matter. It involves complex paperwork, deadlines, and serious consequences for missteps.

In fact, there is quite a lot of paperwork to keep track of. When you're already going through a difficult, emotional time, it's easy to become overwhelmed. If you hire a probate attorney, then your attorney will act as an advisor, guiding you through each step of the probate process to ensure that you are 1) aware of your responsibilities and 2) completing all paperwork properly and 3) according to deadlines.

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Monday, September 12, 2011

Filing for Chapter 7 Bankruptcy

When it comes to the concept of bankruptcy, most people associate it with having their debts permanently relieved. In reality, there is more than one type of bankruptcy. In a Chapter 13 bankruptcy, the debtor keeps his assets but agrees to a payment plan to eliminate his debt within a few years. When faced with a major financial setback, however, such as a job loss or costly illness, many people choose to file for a Chapter 7 bankruptcy.

Discharge of Most Debts

Also called a "straight" bankruptcy, a Chapter 7 bankruptcy will result in a discharge of most debts. When debts are discharged, you are no longer legally required to pay them and creditors are prohibited from taking any kind of collection action against you. Chapter 7 can eliminate credit card debt, medical bills, payday loans, judgments against you, deficiency debts, or repossessed motor vehicles. A Chapter 7 bankruptcy does not, however, relieve you from child support responsibility, taxes or student loans.

Because bankruptcy is a federal law, filing for Chapter 7 bankruptcy in Tennessee is not much different than filing for bankruptcy in any other state. However, state law does play an important role in one area. The state in which you file for bankruptcy will determine the amount of money and assets you will be left with after your bankruptcy filing is complete.

Exemptions for Personal Property and Real Property
A portion of your assets will be exempt from your creditors when you file for bankruptcy. The exemption amounts in a bankruptcy filing are the amounts of money and assets you will have that are exempt from creditors. These assets and money are intended to help you get a fresh start after your bankruptcy.

There are separate exemptions for personal property and real property. Your personal property includes money you have in a bank, your household goods, any equity you may have in an automobile, or anything else of value that you own. When you file for bankruptcy, the amount of personal property you will be allowed to keep is determined by your state's personal property exemption limits. In Tennessee, the personal property exemption for a single filer is $10,000. For a married couple, the personal property exemption is $20,000. The exempt amounts are for the equity in personal property after deducting any amount of debt on the property such as an automobile.

The real property exemption amounts in Tennessee are $5,000 for an individual and $7,500 for a married couple. Some exceptions to this rule allow for greater exemptions for those people over 62 and for single parents. The real property exemption (or homestead exemption) is intended to allow you to stay in your home after your bankruptcy. This exemption, however, only applies to your primary residence. So, if you're filing for Chapter 7 and happen to own more than one home, you will only be allowed to keep the home in which you live most of the time.

Remember, before filing for bankruptcy in Tennessee, it's essential that you contact an experienced attorney to help you determine whether Chapter 7 bankruptcy is the best course of action for you.

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Friday, September 9, 2011

Bankruptcy Does Not Mean You Don't Have Any Money

When it comes to bankruptcy, many people associate it with a total lack of money. However, contrary to popular belief, filing for bankruptcy does not necessarily mean that you don't have any money. Bankruptcy isn't associated with a complete lack of assets; it's associated with insolvency, which is an inability to meet your financial obligations.

Two Scenarios

Basically, two scenarios define bankruptcy according to the law. One is the scenario in which someone's liabilities exceed his assets. The other is one in which someone is simply unable to pay his debts. If either scenario applies to you, you could qualify to file for bankruptcy.

Bankruptcy itself either relieves you of your debt (as in a Chapter 7 Bankruptcy), or allows you to deal with your debt in a different way (as in a Chapter 13 bankruptcy). Whether you qualify for Chapter 7 or Chapter 13 bankruptcy will depend on the amount of your debt, your income (if any), and your potential ability to repay your debts. In neither case will you be completely without money or assets unless, of course, you had no money or assets to begin with.

Filing for Chapter 7 Bankruptcy

When filing for Chapter 7, you will be asking for a portion of your debt to be discharged completely. In exchange, you agree to give up most of the money and assets you have at your disposal. Any assets will likely be sold, and the proceeds distributed to your creditors as partial repayment. You do, however, get to keep a small amount of personal property and possibly your home, which are called "exemptions."

The amount of personal and real property you are allowed to keep depends on the state in which you live. While some states allow large exemptions, others only allow a few thousand dollars. Because the rules vary so widely from state to state, many people who file for bankruptcy choose to do so in a state that has relatively high exemption amounts.

Most Chapter 7 cases are "no asset" cases. That is, usually no assets are available above the debtor's exemption amounts. In the few cases where some nonexempt assets are left, those assets will be distributed according to the priorities defined by the Bankruptcy Code. Domestic support and back taxes are paid first, then credit cards, medical bills and other debts. Most creditors will not receive 100% of what they're owed. Instead, they will receive only a portion of that amount. The exact distribution will be determined by the court.

Filing for Chapter 13 Bankruptcy
When filing for a Chapter 13, your money and your assets remain largely under your own control. In fact, you can only qualify for Chapter 13 bankruptcy if you have a steady income. A Chapter 13 can result in a discharge of some debts that are not fully paid in the repayment plan. The payment plan is designed to repay your creditors within a specified time frame, up to five years. This is accomplished by consolidating your debts and allowing you to make a single monthly payment.

Sometimes, the payment will come in the form of a payroll deduction. The amount of the payroll deduction will be determined based on your income and the state in which you live. In exchange for being allowed to retain control of your property, you are required to repay your creditors at least as much as the total value of all of your nonexempt personal property.

If you're considering filing for bankruptcy, an attorney can help you better understand what your financial picture will look like after your bankruptcy. While you certainly won't be wealthy after a bankruptcy, in most cases, you won't be completely broke either. Understanding your obligations under each type of bankruptcy and your state's exemption amounts can help you decide whether bankruptcy is the right choice for you.

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Thursday, September 8, 2011

Legal Options of Debt Relief

Debt relief is anything that can help someone cope better with a bad financial situation. With the economy still on shaky ground and unemployment in some states at all-time highs, many people are finding themselves faced with sky-high debt and piles of bills. When it comes to debt relief, it can come in several forms. Most commonly, however, the term "debt relief" refers to either a Chapter 7 or a Chapter 13 bankruptcy.

Chapter 7 Bankruptcy
Chapter 7 bankruptcy is what many people call a "straight" bankruptcy. In a Chapter 7 Bankruptcy, most of your debts are discharged. For individuals who are struggling with late credit card payments, medical bills or impending foreclosure, this means relief from threatening phone calls, harassing letters and the fear of losing their home. While a Chapter 7 bankruptcy may not leave you completely without debt (you are still responsible for domestic support obligations, taxes and student loans), it does end the stress and anxiety that accompanies seemingly insurmountable debt.

Chapter 7 is not without disadvantages, though. When you file for Chapter 7 bankruptcy, the bankruptcy trustee can sell any of your nonexempt assets in order to help satisfy your creditors. In extreme cases, however, when an individual is faced with a large amount of debt and no means to repay it within a reasonable timeframe, Chapter 7 bankruptcy may be the only option that makes sense.

Chapter 13 Bankruptcy

On the other hand, debt relief comes in a slightly different form in a Chapter 13 bankruptcy. Chapter 13 is most appropriate for someone who is earning an income but, for some reason, has amassed a large amount of personal debt and has fallen behind on payments. When you file for a Chapter 13 bankruptcy, your debt is consolidated and you're given a payment plan.

Your Chapter 13 payment plan is advantageous for a number of reasons. First, the plan makes your debt more affordable on a month to month basis. Because your debt is consolidated, you're no longer responsible for paying several bills each month. Instead, you will make a single payment, the amount of which will be determined by your income and necessary living expenses. Second, your payment plan spreads your debt out over a longer period of time, usually from three to five years. This lowers your monthly obligation substantially and allows you to keep more of your income. Having more income to pay for your living expenses helps prevent you from incurring additional debt while you're paying off your existing creditors, thereby "stopping the cycle" so you can get back on your feet.

Chapter 13 bankruptcy provides relief by allowing you to pay off your debts and improve your credit. It simply changes your situation from one in which you can't meet your monthly obligations into one in which you can. This also means that the whole of your debt will be paid from your income, not from the sale of any of your assets. Chapter 13 also allows you to keep real property, even if it is not your primary residence, so long as you continue to meet your obligations under your Chapter13 payment plan.

Before deciding to file for bankruptcy, it is always advisable to speak with an attorney to determine which debt relief option may be available to you. In some cases, you can even achieve debt relief without filing for bankruptcy at all. By re-negotiating your agreements with creditors or working out a mutually agreeable discounted payment schedule, an attorney may be able to help you through a difficult financial time while minimizing the impact on your future credit.

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Tuesday, September 6, 2011

Consulting an Attorney about Your Debt Early

When it comes to mounting debts, early intervention makes for a better overall solution. For this reason, The Nevin Law Firm in Nashville, Tennessee, recommends you consult with an attorney as soon as you realize that your debt is becoming a problem.

Dealing with excessive amounts of debt can be both financially and emotionally devastating. Harassing calls and letters from creditors, threatened foreclosure or repossession, and the loss of your good credit are enough to make you feel as though there's no way out. Fortunately, help is available for families who are struggling with debt.

However, most people who consult attorneys for help with their debt wait too long to do so. Often they allow themselves to fall so behind on payments that catching up doesn't seem like an option anymore. While debt relief is certainly possible at this late stage, addressing financial problems earlier allows us to minimize the potential for major consequences and to put a plan in place to get out from underneath oppressive debt in the most expeditious way possible.

Why to Ask an Attorney for Help
Rather than waiting until you've fallen behind on payments, it's important to seek help as soon as it becomes clear that falling behind is likely to happen. For example, if you're living paycheck to paycheck and are barely able to pay your bills each month, losing your job will likely be the straw that breaks the camel's back. By consulting with an attorney as soon as you've lost your job, you may be able to avoid falling into a particularly dire situation.

Likewise, if you don't have health insurance, a major illness or injury can create a serious debt problem quickly. All too frequently, medical bills, minimal savings and an inability to work are a recipe for financial ruin. An attorney may be able to help you find a way to deal with your mounting medical bills without jeopardizing your credit.

How Your Attorney Will Help You
Once you can see that you're going to have difficulty making payments on time, you should consider seeking legal advice. An attorney can help you find relief from oppressive debt in a number of ways.

Renegotiation: First, after talking with you about your financial situation, your attorney will help you determine the best course of action, represent you in hearings, and work with your creditors to re-negotiate your interest rates and payment terms. This will make it easier for you to meet your financial obligations on a month-to-month basis and to keep your credit intact.

Chapter 13 Bankruptcy: If negotiating with your creditors is not an option and you have a steady income, your attorney may advise you to file for Chapter 13 bankruptcy. Chapter 13 bankruptcy allows you to repay your debts in a way that will be more manageable for you and helps you to restore your credit. When you file for Chapter 13, your debts are consolidated into a single monthly payment, the amount of which is determined by your income and amount of debt. Chapter 13 bankruptcy not only lowers your monthly financial obligation, it also stops creditor actions against you and allows you up to five years to repay your debts.

Chapter 7 Bankruptcy: When all other options have been exhausted or if you don't have a steady source of income, your attorney may advise you to file for Chapter 7 bankruptcy. Chapter 7 bankruptcy provides you with permanent relief from the majority of your debts and stops creditor actions against you. In a Chapter 7 bankruptcy, your debts are discharged and your assets, with a few exceptions, are distributed among your creditors. You are allowed to retain certain exempt assets. Your attorney will help you understand which assets you'll be allowed to keep after filing for Chapter 7 bankruptcy.

Mounting bills and pressure from creditors can make anyone feel uneasy. Whether or not you ultimately choose to file for bankruptcy, getting an attorney involved as early as possible when debt becomes a problem offers you the best chance at a positive outcome. Remember, meeting with an attorney is the first step toward finding relief from debt and getting back on the right financial path.

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