BANKRUPTCY

A fundamental goal of bankruptcy is to provide the person filing with a "FRESH START", a new opportunity in life and a clear path for future effort without the pressure of preexisting debt.

We handle only chapter 7 and chapter 13 cases.  Bankruptcy may be used to resolve credit card, medical and tax debt, lawsuits, repossessions, foreclosures,  wage garnishments, and other collection procedures.

Chapter 7 is the most common bankruptcy and provides for the discharge or cancellation of the debt.  However, there are certain debts that are not discharged and others where creditor rights will depend on the nature of the debt.  The law allows a person in bankruptcy to protect or exempt their property but the protection is not unlimited.  Property that is not exempt can be sold by a chapter 7 trustee.

A chapter 13 bankruptcy involves a payment plan through which certain debts can be paid and other debts paid less than in full over a period not to exceed five years.  Many chapter 13 plans provide for payment of delinquent first home loan payments which may involve foreclosure, removing ("stripping") second loans and income tax liability.

Significant changes to the Bankruptcy Code became effective October 2005.

There seems to be a belief among many that the changes eliminated debt relief under chapter 7 and chapter 13.  Although there are stricter and more complicated qualification tests, most people appear to remain eligible for help under either chapter depending on the type of relief they need.

So, at this time, it is even more important to consult with an attorney who is experienced in bankruptcy law to assist you.  The attorney will work with you directly through each phase of your case from start to completion.

PROBATE

Probate is the legal process by which ownership of property, both real and personal, is transferred from the estate of a deceased person to those entitled by way of a will or by statute in the event there is not a will.

A person in a probate situation faces two sets of tasks: Those related to the administration of the estate and Those related to the grief process. The tasks of estate administration generally follow a set order and, except when complicated property or business matters or litigation delay the process, can often be completed within one year. As important as the estate administration duties are, for the individuals suffering from the loss, they are secondary with aspects of working through the grief.

The threshold issue is whether a probate is necessary. Probate is not necessary to transfer some types of assets such as joint tenancy assets, assets in a trust, life insurance and retirement benefits with a named beneficiary, or where property values do not exceed a statutory amount.

The three main functions of Probate Administration are:

• Collection of Assets
• Payment of Debts and Taxes
• Distribution of the estate accomplished through the applicable county Superior Court sitting as a probate court.

Some proceedings will require a court appearance. There are filing fees and costs due to the probate court upon the filing of the probate documents. Attorney's fees and personal representative commissions are regulated by the probate code.

In summary, the first question is whether a probate proceeding is necessary. This question should be presented as soon as possible to an attorney experienced in the probate process.

Danny L. Moore was the manager of the Probate Unit of Jacoby & Meyers Law Offices in the Greater Sacramento Area for 11 years up to 1994 and in his own practice since then.

You are invited to telephone the office to set a consultation appointment to discuss your probate questions.