Walnut Creek Estate Planning & Elder Law FAQ
Why Choose a Special Needs Support Attorney?
The creation of a Special Needs Trust requires the use of properly crafted language to ensure the protection of the family and the disabled individual. At a minimum, the trust document should state that it:
- Provides “supplemental and extra care” over and above government assistance.
- Is not intended to be used as a basic support trust.
- Does not contain the language of a provision called the “Crummey Clause”.
- Contains required language regarding Medi-Cal payback.
- Appropriately references portions of the Social Security Operations Manual that authorize trust creation.
- Includes language explaining exceptions to the provision of the Omnibus Budget and Reconciliation Act (OBRA-93) authorizing the creation of the trust.
- Includes a copy of relevant provisions from the United States Code (USC).
Understanding Special Needs Estate Planning
Special Needs Estate Planning is a specialty area of law that helps to preserve and enhance the quality of life and quality of care for disabled individuals who also qualify for Supplemental Security Income (SSI) or Medi-cal, California’s version of Medicaid.
Trust language must cover these points:
- Funds are not used to cover needs already covered by government assistance.
- Necessary language is included to ensure eligibility for government benefits (for example, paying back government benefits upon the disabled person’s death.)
- Funds are managed properly to ensure government benefits are not jeopardized.
A complex developmental disability appearing around age 3, autism is believed to be the result of a neurological disorder affecting normal brain functioning that causes difficulty in communicating, socially interacting and participating in leisure or play activities.
Autism is the most common of five different developmental disorders described as Pervasive Developmental Disorders (PDD), neurological disorders affecting every ethnicity.
According to the U.S. Department of Education, the number of individuals affected by autism continues to grow each year
Some Title Defects
A title defect is a complex issue that requires investigation and evaluation by an experienced real estate litigation attorney. Without the assistance of a knowledgeable attorney, you face the possibility of losing significant money on your real estate investment or perhaps even the loss of important property rights.
Title defect and other title issues are varied, but include:
- Title insurance.
- Quiet title actions.
- Easement issues.
- Tax liens.
- Land use.
- Land zoning.
- Land permits.
Why Property Liens Occur
Unpaid debt on the part of the property owner can also cause a lien on the property. Examples of this type of debt include:
- Unpaid income tax or other taxes.
- Unpaid child support (not in all states).
Additionally, a divorce can bring about a property lien. One spouse is awarded the marital home, while the other spouse is allowed to place a lien on the property to ensure that, if the home is sold, they will receive their share.
In the majority of real estate transactions, the mortgage lender will not approve mortgage financing if an active lien exists on the property. The lien must first be removed before financing can be approved.
Another type of lien is the mechanic’s lien. This type of property lien occurs when a construction worker or construction business is not paid by the property owner for work completed, or for the cost of building materials.
Generally speaking, the unpaid contractor files a form known as a lien claim or notice of lien with the local courts. The claim becomes an encumbrance on the property. Some states require the contractor to automatically file a notice of lien before beginning any work on a property or supplying any materials, just in case there is a dispute about payment.
Contingencies are a regular part of real estate contracts for a wide variety of reasons. They are generally limited to a set number of days so that, if the individual who has asked for the contingency cannot fulfill it, the contract can be made legally null and void. For a home seller, this is important, as it allows the seller to place the home back on the market for sale.
A contingency in a real estate contract may occur when a buyer wishes to purchase a home, but something else must occur first.
For example, a buyer must first sell their own home before they can purchase the seller’s home. In this case, the buyer would provide the seller with a deposit and a “contingency” to purchase as soon as the buyer’s house is sold.
Other contingencies may include an action on the seller’s part. For example, a buyer will purchase the home contingent upon the seller replacing the water heater.
When a contingency clause is part of the real estate purchase contract, and the responsible party does not fulfill their obligation, this is known as an unfulfilled contingency. In many cases, where the sale cannot be completed by the date specified, the real estate contract is canceled and this is considered an unfulfilled contingency.
Some Reasons for Changing Zoning Laws
Many reasons may exist for wanting to change zoning laws, including:
- Converting a property from single- to multi-family use.
- Converting a vacant property to an empty lot.
- Converting a residential or private home to a business.
- Ensuring a commercial venture can be built near a school or other building.
Our professional team understands post-acquisition disputes and has assisted with resolving these issues as they relate to:
- Allowance for doubtful accounts receivable.
- Obsolete inventory.
- Unrecorded liabilities.
- Impairing goodwill and other assets.
- Eliminating intercompany balances.
- Recognition of revenues.
- Earn-out payment calculations.
- Working capital adjustment calculations.
- GAAP compliance.
- Purchase price allocation determinations.
- Inventory Accounting/Inventory Valuation.
What is Mediation?
Mediation is a formal process where an independent third party –the mediator–helps disputing parties discuss, isolate and understand the issues causing the dispute with the goal of developing potential settlement options. The mediator cannot force the disputing parties to agree on a resolution, but his or her role as mediator is to find and pursue areas of agreement so the issue can be resolved without a formal court hearing.
When parties disagree over the terms of a contract; the proper performance of a service, the exchange of goods or other disputes; binding arbitration offers a smart, cost-effective and stress-saving alternative to settling the dispute outside the formal courtroom.
Binding arbitration offers greater privacy than a court trial, which could result in bad publicity for a business. Parties entering into binding arbitration are not bound to the same legal requirements as might be necessary in a court trial, such as the discovery process. This is a benefit for businesses who do not wish private information to be made public.
In addition, a judge and jury trial could take a great deal of time and money, binding arbitration offers the opportunity to resolve the dispute in a less formal atmosphere, for a quicker, less costly resolution.
Mandatory vs. Voluntary Arbitration
In voluntary arbitration, both parties can agree to allow third-party intervention to resolve the dispute.
However, in mandatory arbitration:
- The borrower or consumer must agree to the use of an arbitrator instead of the court system to resolve their issues.
- The consumer may not have originally wanted to resolve the issue through arbitration, but the other party is making it clear this is the only way to resolve the dispute.
- Beware of the independent arbitrator who has a financial interest in the corporation, as he or she and may not be able to be entirely neutral.
- The consumer who signs a mandatory arbitration clause is basically waiving their right to sue, either as an individual or as part of a class action lawsuit. Many individuals are not aware they are signing their rights away when they agree to mandatory arbitration.