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I know that legal action can sometimes be overwhelming. I am dedicated to providing you help in language that you can understand. If you don't feel like you understand your options, just ask, and I will work to find an explanation that works for you.
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Through becoming familiarized with your situation, I will tailor a truly personalized plan to address your needs. There is no "one size fits all" when it comes down to protecting your life's work.
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Bay Area Attorney at Real Estate Law
Experienced in Contracts, Landlord/Tenant Issues, Easements, Covenants and Estate Planning through the creation of Wills & Trusts.
FAQs
1. Does having a will avoid probate?
While having a will is a good thing, it will not avoid probate. Estate Planning that includes the creation and funding of a trust will generally avoid probate.
2. Do I need an attorney to make a will?
There are certain formalities for the creation of a valid will; however, in California one of them includes a Holographic Will which is a will written out by hand by the maker, completely by hand, and signed by the maker. What the will should include and how it should be stated is another matter that would take a lot more explanation.
3. Are trusts only for the wealthy?
An estate with a gross value of less than $162,000 today would likely be exempt from probate proceedings. However, if you own a $200,000 condominium with a $195,000 mortgage it will likely require probate proceedings because the gross value is $200,000. The very small net value will not keep it out of probate. Such a small estate would likely cost between $7,000 and $10,000 to be probated, requiring about one year to complete. A trust would likely cost about 1/3 of the probate fees and be complete in one to two months.
4. Does having a trust protect assets from lawsuits?
Generally no, but a properly designed trust can protect beneficiaries if they have no control over the trust disbursements.
5. Are Special Warranty Deeds better than General Warranty Deeds?
It depends on which side of the deed you are on. It is better for the Seller because they are only warranting for the period they owned the property; but, this is less of a warranty to the Buyer. A General Warranty Deed is the Seller warranting against certain title defects that may have occurred even before the Seller owned the property, which provides better protection for the Buyer.
6. Shouldn't the Government pay me if they restrict the use of my property, resulting in greatly reduced value?
Generally, no. Our Fifth Amendment under the Constitution is supposed to prevent a "taking" for public use unless reasonable compensation is paid, but government agencies have found that restricting a property's use is often another way to affect a public good. Restrictions that still permit some beneficial use of the property by the owner are usually not compensated. However, there have been some recent Supreme Court cases that appear to show there are limits to such government action.
7. Can a creditor of the seller still place a lien on my property after I purchased it?
Sometimes, yes. This will likely depend up whether there was proper notice of your sale given to this creditor. For instance, was the property transfer deed properly filed with the county court house, called Record Notice? If this was a private sale that was not done through an escrow service like a title company where no Actual, Constructive or Record Notice was give to the creditor, then yes they can likely place a lien on your property.
8. Is buying a property located within an HOA regarded as pretty safe because they are regulated?
The answer is not that simple. When a Buyer buys a home in an HOA they take on whatever is going on at the time in the HOA. Although the HOA must follow regulations, most of the regulations deal with disclosure of information to the members. This is usually in the form of a stack of documents an inch or more thick, printed on both sides. This stack will include the Articles of Incorporation, Bylaws, newsletters, meeting minutes, the Covenants Codes & Restrictions (CCR's), financial data, insurance coverage, etc. It's not easy reading, but it is your risk if you don't read and understand it. HOA's can be underfunded, underinsured, plagued with deferred maintenance, lawsuits pending, or worse. The very nature of an HOA's existence does not ameliorate risk.
9. Does selling a home "As Is" protect a seller from lawsuits after the sale?
Definitely not. A Seller of a home has a duty to disclose all known significant problems. Be aware that the definition of "significant" will often be determined by a jury.
10. Is it a good strategy for Sellers to require Buyers to waive any inspection contingencies upfront?
Perhaps, but more often than not I consider it dangerous. Dangerous for the Seller because their duty to disclose all known issues with the house is exponentially increased since Buyers will have no opportunity to inspect the home beyond a very superficial inspection. Even if professional inspectors are used to provide reports, it is rare for them to warranty their report beyond a refund. They can be wrong, yet require the Seller to stand behind these erroneous reports. I would expect that such a scenario would give the Buyer a great courtroom advantage if it came to that.
11. What duties are real estate agents expected to owe their client?
They owe a Fiduciary Duty, defined in Black's Law Dictionary as: a duty to act for someone else's benefit, while subordinating one's personal interests to that of the other person.” This is the highest standard of care under the law.
It is expected that diligence, special expertise, effort, honesty & integrity will be found in the agent's selfless representation of their client. Unfortunately, this is not always the case. There is a difference between agents closing lots of deals because they are an expert at self-promotion, and great agents who close deals that are truly in the best interest of their clients. Serious failure of an agent's Fiduciary Duty can be redressed through the courts.