by Andy Chen | Dec 6, 2024 | California, Estate Planning
In 2013, I wrote a post that went over the basic requirements needed to create a Power of Attorney under Section 4121 of the California Probate Code. For clarity, I want to make clear that this is for a financial power of attorney or a non-medical power of attorney. Section 4121 requires that a Power of Attorney either be (1) notarized, or (2) witnessed by at least two witnesses. From a practical perspective, I always favor the notarization option because it is generally going to be very easy to quickly tell one way or the other if that Power of Attorney is notarized or not. In short, look for the notary’s stamp. On the other hand, if you use the witness option, you could potentially run into a whole host of problems. For instance, suppose there is a problem and the witnesses need to come in and testify about what they actually saw when the Power of Attorney was made. The witnesses might not want to get involved. They might have died already. If you can actually locate your witnesses, what’s going to happen if they simply do not remember what they saw because the Power of Attorney was created ages ago? From the perspective of certainty, speed, efficiency, cost, etc., the notarization option is, in my view, superior. One common question that arises with witnesses, though, is who can be a witness? More specifically, can the agent who is being appointed under a Power of Attorney also be one of the two witnesses? The answer to that is no. The governing law for this is Section 4122(b) of...
by Andy Chen | Dec 4, 2024 | California, Estate Planning, Philosophy
Many people are in the position where they are preparing an estate plan for the very first time. Typically, they hear that they should have one or that they see on the news that it’s a good thing to have. In my experience, interest in estate plans seems to pique whenever someone famous dies, such as Michael Jackson in 2009, Steve Jobs in 2011, or Prince in 2016. Prince, in particular, died without an estate plan of any kind. When this happens, it’s called “dying intestate” and a process called Intestate Succession applies. I went over California Intestate Succession in a prior post from 2017. Anyway, despite all of the interest and the publicity, when a person actually sits down to create an estate plan, they usually don’t know where to start besides, for instance, “find a lawyer”. The process gets too daunting and, human nature being what it is, the person usually puts it aside and promises to “get back to it soon” which, in real life, means never. Lawyers, after all, are expensive. Today’s post, therefore, is aimed at that person who wants to make an estate plan, but doesn’t know where to practically start. If that’s you, keep reading. First, let’s define the term “estate plan”. That refers to the set of documents that a person creates to specify what they want to have happen as they near death. This can include many concerns, including (1) what happens to the person’s property, (2) who cares for their minor children, if any, and (3) what medical care they want to receive in the event they cannot articulate...
by Andy Chen | Jul 22, 2024 | California, contracts
A question that many people involved in civil cases ask is whether they can get the other party to pay their attorney’s fees. As you might guess, many people who ask this question are defendants who have been sued for reasons that are frivolous, meritless, or some combination of the two. After all, the cost of hiring a lawyer is substantial. Why should a defendant who has done nothing wrong have to pay for an attorney when the plaintiff is the one truly at fault? In today’s post, I’m going to go over how California law answers this question. The short answer or rule of thumb to remember is that attorney’s fees and costs are generally recoverable in three scenarios: (1) when authorized by a contract signed by the parties, (2) when the law in questions itself authorizes attorney’s fees and costs to be awarded, or (3) if the judicial officer in your case awards attorney’s fees and costs for whatever reason. As you’ve perhaps seen or experienced, judges have significant discretion about how to handle the cases before them. If you’re looking for California authority on this, look at Section 1021 of the Code of Civil Procedure, which states: “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” Section 1021 also draws a distinction between fees paid to an attorney for their time and costs — for instance, court filing...
by Andy Chen | Jul 20, 2024 | California, Enterprise
Previously, I wrote about the Cost-Benefit Analysis that goes into form a Limited Liability Company (LLC) in California. My guess is that way back in the day, forming an LLC — or any kind of legal entity for a business, for that matter — was really involved. Lawyers were needed to fill out and file all sorts of forms. As a result, this was something only the rich could afford. Things have changed. Nowadays, a simple Google search will lead you to several companies that will help you form an LLC or any other kind of entity in whatever state you choose in a few minutes for a small fee. Like with many things in life, this is a mixed bag. On the one hand, starting a business using an LLC is now easier and available to more people. On the other hand, though, more and more people are starting entities like LLCs for the first-time and making all sorts of mistakes. One of these mistakes is believing incorrectly that an LLC can represent itself. In 2020, I wrote this post about how any sort of corporation can only be represented in California by an attorney. In today’s post, I’m going to go over another common mistake that people forming LLCs and other entities in California for the first-time often make, namely the Statement of Information form. In the recent past, the California Secretary of State put out an actual PDF form called a Statement of Information. That form is gone and the info instead has to be submitted via the California Secretary of State’s website. Regardless, though, the...
by Andy Chen | Apr 26, 2024 | California
This is my second post on the topic of Civil Discovery in legal matters. In my first post, I went over the scope of civil discovery under California law, New York law, as well as Federal law. I’m sticking with that format in this post and the topic of Response Times. A Response Time is, as the name might imply, the time period within which the party who has received a request for evidence or information has to provide that evidence or information. Again, the precise time period that applies to your particular situation is going to depend very much on the law that applies to your case. As you’ll hopefully see below, it’s extremely dangerous to make assumptions when it comes to any sort of discovery. I’ll illustrate this using a common form of written discovery called a Request for Admission. California Under California state law, the Response Time for a Request for Admission is described in Section 2033.250 of the California Code of Civil Procedure, which states: “Within 30 days after service of requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared, unless on motion of the requesting party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.” As the bolded and underlined part indicates, the Response Time is 30 days. Specifically, this is 30 calendar days. This is an extremely important distinction because...
