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Michael Austin Hackard

Michael Hackard’s Answers

85 total

  • Is there a release of liability document that a renter could sign so they cant sue the owners & their business on the same land?

    My in laws own the house and land we are on and we signed a notorized document of financial obligation until it is paid off which in turn we will be given the deed , however we will never own the land ( can't be split ) they own and opperate a ...

    Michael’s Answer

    You should see a lawyer familiar with both estate planning and real estate issues. You have a number of issues which need to be explored further.

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  • What can I do with my father's property after he has moved into a senior care facility for dementia and term. cancer?

    My father owns a home and a new vehicle - both have not been paid off . The house has 2 mortgages and the car was refinanced in November . He cannot afford to continue paying on either as his retirement funds need to be used to pay for the seni...

    Michael’s Answer

    I am sorry that you and your family are facing such struggles.
    It is probably better to address this in two stages - first the security of your father's retirement funds and then the obligations on his home and car..
    You have indicated that your father's retirement funds are needed to pay for the senior care facility. Retirement funds in assorted accounts are generally exempt from execution by creditors. Mere savings accounts are not. You have knowledge of how your father's retirement accounts are held and this is a consideration in dealing with creditors.
    If your family decides that it would like to sell your father's home you should secure a knowledgeable real estate broker who can assess the market and advise you on the sale. If the home is over-encumbered a short sale can be used that would require a waiver of any deficiency against your father by the lenders. You could also consider renting the home as a way to pay the mortgage (obviously depends on whether the rent could pay the mortgage and associated expenses of home ownership (taxes, maintenance and insurance).
    The car is a different issue. You will need to assess whether the car has equity and whether it can be sold for enough funds so that the lien against it is paid off.
    Lawyers familiar with estate planning issues should be able to guide you in all of this.

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    I am the successor in interest of my father's living trust and his will. My father is obviously now deceased and I want to file a law suit against a bank that foreclosed on one of his properties. Can I file this lawsuit as successor in interest to...

    Michael’s Answer

    A Trustee right to prosecute litigation requires counsel to look at three major elements.
    First - The Trust itself should be examined. Does the trust provid explicit authority for the trustee to pursue litigation. How broad or expansive is the authority. If this is unclear the Trustee can petition the Probate Court for instructions.
    Second - The California Probate Code has a number or provisions that relate to the power of Trustees to prosecute or defend actions for the protection of trust property. Your local counsel should look at these provisions.
    Third - The nature of the action that the Trustee would like to prosecute should be looked at carefully. Litigation is expensive and attorneys fees can be assessed (depends upon contractual or statutory provisions) in the event of a loss. Consider the liquidity of the estate can be enormously impaired by litigation.
    Seek the advice of local counsel conversant with trust and estate law.

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  • Do I have any legal recourse to the action below?

    My former employer has notified me that they made a mistake in calculating my retirement annuity and I have been overpaid for 104 months. They will immediately reduce my monthly pay and will be seeking repayment of ~$14K. My first retirement ch...

    Michael’s Answer

    See a lawyer familiar with labor law and ERISA in your geographic area immediately. Your employer could be wrong, or if right, you could seek repayment over a protracted period of time.

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    Michael’s Answer

    California law provides that a Private Professional Conservator (A person not related by blood or marriage or an entity appointed as conservator of two or more conservatees) must be licensed by the State Board of Licensing, effective July 1, 2008. (Prob. Code §2340, et seq.) I assume that the conservator appointed in the case that you reference was a Professional Conservator and was licensed.
    In addition California law provides for Surety Bonds protect the estate of the conservatee from losses in the event of mishandling by the conservator. If a bond is required, the court will determine the appropriate amount in the order appointing probate conservator. Bond must be filed prior to the issuance of letters. In cases where there are multiple conservators, there may be separate bonds for each. (Prob. Code §2300, 2320).
    In short Private Professional Conservators must be licensed and must post bond. This is the manner (including others) that the Courts of our state protect the conservatee.

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  • What if one spouse refuses to sign a living trust that is drawn up by an attorney and 50-50 so it's fair.

    Father (79) step mom (80) disagree about estate planning. He wanted 1/4 to go to each child. Step mother has a son, my father had three kids (one died) so two are left. I plan to help my Dad find an attorney and gather his information, but I am co...

    Michael’s Answer

    Your father can engage an attorney for his own estate plan. He has testamentary control over one-half of his community property assets and 100% over his separate property assets. A local estate planning attorney can explain this to you and your father.

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  • I have a judgment against me in the state of Ca. Can this judgment be transferred to the state of NC where I live? and if so

    can I fight it?

    Michael’s Answer

    Under the United States Constitution, a judgment obtained in one state is to be given full faith
    and credit in other states of the United States.
    Article 4, Section 1 of the Constitution states:
    “...full faith and credit shall be given in each State of the public acts, records, and judicial
    proceedings of every other State. And the Congress may by general laws prescribe that manner
    in which such acts, records, and proceedings shall be proved, and the effect thereof.”

    North Carolina has adopted the Uniform Enforcement of Foreign Judgments Act whcih provides in part that a foreign judgment (defined as a judgment of any state or federal
    court) may be registered by filing an exemplified copy of the foreign judgment with the
    appropriate office of the Court and notifying the debtor of the filing.

    North Carolina law also provides that

    § 1C-1705. Defenses; procedure; stay.
    (a) The judgment debtor may file a motion for relief from, or notice of defense to, the
    foreign judgment on the grounds that the foreign judgment has been appealed from, or
    enforcement has been stayed by, the court which rendered it, or on any other ground for which
    relief from a judgment of this State would be allowed.

    You should seek North Carolina counsel to assist you in any defenses.

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  • I want to evict my son from my house in sweet home oregon.

    My son (37yrs old) lost his job 2 and a half years ago, I offered my house in sweet home ore till he got on his feet. He now has money and I want to evict him from my house. He is letting 5 others stay on the property with out my permission. ...

    Michael’s Answer

    You should seek local counsel in Oregon as each state has particular rules as to unlawful detainers and the eviction process.

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  • Adding spouse to deed, Los Angeles Co. ,CA.: I was told that it is a gift when adding spouse to title.

    I was told there is no gift tax and no gift tax return needed; but someone else said probably not. The house value is approximately $280k-$300k. Thank you.

    Michael’s Answer

    Gift tax does not apply to interspousal transfers (unless one spouse is not a U.S. citizen). There is not limit as to the amount of assets that can be transferred between husbands and wives. You should seek local counsel.

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  • What happens to a revocable trust made by one parent during a divorce in California

    My parent made me the trustee in the revocable trust, due to incompetency i became the grantee of the estate (home, autos etc.) and doing a divorce with the spouse who is not my biological parent, how is the estate handled in the divorce proceedings.

    Michael’s Answer

    Given the facts as stated this is a difficult to answer. I'll start with assumptions. You are the trustee of a revocable trust of a living parent. I do not understand the "incompetency" issue or the reference to "grantee" of the estate. You might be the beneficiary or contingent beneficiary of the estate. "Grantee" might mean that title has already passed to you. As to the divorce, your parent cannot give away that which he or she does not have. The Court will ultimately order a property division and that property division would preempt the terms of a living trust (assuming that the death of the trustor/settlor has not taken place.
    You should seek counsel in your local area who can ask questions and better determine what issues you want to address.

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