When you go to open a bank account or take title to real estate, people often suggest joint tenancy as a simple solution which avoids probate.

What is joint tenancy?

Joint tenancy is the co-ownership of property during the lives of two or more joint tenants. Upon the death of one of the joint tenants, the remaining joint tenant(s) immediately succeed to the ownership of the property. If there is only one surviving joint tenant, he or she becomes the sole owner, thus avoiding the probate process.

What is tenancy-in-common?

Tenancy-in-common is also the co-ownership of property. However, unlike joint tenancy, upon the death of a one of the tenants in common, the other tenants in common do not succeed to the deceased tenant's interest.

What are the risks of joint tenancy?

Simply adding someone to title as a joint tenant in realty is a gift that could trigger a gift tax. More importantly, the creditors of the joint tenants can go after the property. Let's look at an example for illustration:


Mom adds son as a joint tenant on their vacation home. She trusts her son completely. However, her son has an accident which causes injuries. The injured party is able to collect against the son's half of the home. Mom who was home watching TV when the accident occurred has lost half her home's value.

The addition of a joint tenant may have other unintended consequences. When Mom added son to the title, she made a gift which may make her ineligible for Medicaid to pay for her nursing home care for a substantial period of time.

A parent will often add one of his or her children as joint tenant to a bank accounts in order to give the child access to the account in the event of the parent's disability. By adding the child as joint tenant there is danger that a child will make unauthorized withdrawals from the account. Furthermore, title to the bank account will vest with the joint tenant child after the death of the parent, which may be contrary to how the parent wishes his or her estate to be divided at death.

Rather than face these and other unintended consequences, it is often best to avoid joint tenancy and form a revocable trust to avoid probate. A revocable trust is a simple vehicle which holds title to assets for you. A revocable trust designates how the assets are to be distributed at death and provides emergency access to funds in the event of disability, but it protects the assets from the creditors of beneficiaries and prevents unauthorized withdrawals during lifetime. At your death, the revocable trust continues on. Thus, there is no need for a probate court to be involved to re-title the assets which are owned by the revocable trust.

A revocable trust is a simple, straight-forward method of avoiding probate and the risks of joint ownership. Before titling anything in joint tenancy, consult a qualified estate planning attorney who knows the risks of joint tenancy and the advantages of revocable trusts.

By: Joel Loquvam
Mr. Loquvam is a member of the American Academy of Estate Planning Attorneys and has been engaged in the practice of law for the last 22 years. For more information or to attend an upcoming seminar, call (310) 724-7377. You can also visit his website at http://www.LegacyWealthPlan.com for up to date Estate Planning information, FREE Reports and test your knowledge of Estate Planning by taking the online quiz.

Legal malpractice is probably less well-known by most people than is another type of malpractice issue: medical malpractice. However, legal malpractice cases can be just as serious as are their medical counterparts. They have potentially far-reaching impact upon the lives of people who have been involved in a legal battle that ended unfavorably due to incompetency or intentional misrepresentation on behalf of the attorney(s) who represented them.

What constitutes legal malpractice and how do you determine whether you may have cause for a legitimate case?

Here are 7 guidelines for discerning whether you may have grounds for a case. Note, however, that it is essential that you consult with a licensed attorney to help you determine if there are grounds for a legitimate case in your particular situation:

Guideline 1: A legal malpractice cases is really a case within a case: Such cases must by definition come about after the close of another case whereby the would-be plaintiff has experienced an unfavorable decision - either a loss or an inadequate settlement. In this sense, a legal malpractice case is really a case within a case. If all of the qualifying conditions for are met, such a case may be brought against the attorney representing the client in the underlying (i.e., original) case. If the first attorney is found to have been negligent or misleading, he or she may be liable for damages to the original plaintiff.

Guideline 2: The concept rests upon the assumption that attorneys are obligated to act competently: Legal malpractice cases are built upon the premise that attorneys, when representing clients in legal cases, are expected to conduct themselves in a professional and competent manner. Like other professionals, attorneys are implicitly trusted by their clients to do everything reasonable within their power to act on behalf of their clients. The failure to do so, especially if a particular legal case ends in an unfavorable decision for the client, may represent grounds for a legitimate case.

Guideline 3: Legal malpractice proceedings may be called for when any of at least three types of conditions are met: There are three primary situations whereby a client may have grounds for a case: if the attorney in the case missed an important court-related deadline (e.g., a filing deadline), if the attorney intentionally misrepresented material facts to the client, or if the settlement resulting from a case was inadequate. Meeting one or more of these conditions does not automatically qualify as grounds for a legitimate case, but they are necessary for the case to move forward at all.

Guideline 4: The plaintiff must prove that the underlying case had merit: Before bringing a case against the attorney in the initial case, the would-be plaintiff of the new case must first prove that the underlying (i.e., original) case had merit. If it cannot be shown that the underlying case had sufficient merit such that it could have otherwise potentially won in court, then any statements made about the incompetency or misrepresentation by the attorney in that case become moot.

Guideline 5: The second attorney must thoroughly investigate the underlying case: If one approaches a second attorney about the possibility of representing them in a legal malpractice case, this second attorney is obligated to thoroughly investigate the underlying case to verify whether it indeed had merit. In fact, if the second attorney fails to do so before initiating a case, they themselves could potentially in turn be held liable.

Guideline 6: The second attorney must make sure there are no other legal options available: Another prerequisite for the secondary attorney taking on a malpractice case is that they make sure that their client has exhausted all other legal options for the underlying case. In other words, it must be shown that the case would be the only justifiable way for the client in the original case to have the chance of receiving justice.

Guideline 7: To be successful, the initial attorney must be proven to have acted incompetently: Acting incompetently and being proven to have acted incompetently are of course two different things. Even if the second attorney is convinced that the original case acted incompetently, the second attorney must still be prepared to prove that this was indeed true. Ultimately, to win a case, there needs to be substantial evidence that the first attorney did indeed act in a manner that is not commensurate with the duties and obligations of a professional, practicing attorney.

Initiating a legal malpractice suit may be the best path to justice for those who have met with unfavorable outcomes in past legal cases whereby there is strong reason to believe that their representing counsel was acting incompetently or that they intentionally misrepresented the potential success of the case. The guidelines shared above can help you preliminarily determine whether you might have grounds for a case. Please consult with a seasoned attorney to confirm whether you may have a case.

By: Daniel B. Ross
You can contact Daniel B. Ross through his Web site: http://www.myrosslaw.com. Mr. Ross is licensed as an attorney by the Supreme Court of the State of Texas and has years of experience fighting for the rights of clients.

If you are stopped by a police officer and asked to submit to a breathalyzer test, you have the legal right to refuse to take the test, however, refusing to take the test carries several consequences. When you first received your license, you signed several forms. Signing these forms also meant that you agreed to show your license and proof of insurance when asked by a police officer, perform field sobriety tests, and agreed to complete blood, urine, and breath tests if asked to by a police officer. This is known as "implied consent" and means that if you refuse to take the tests, your license will be automatically suspended whether or not you are convicted of DUI charges. Also, if you refuse to take the breath test, a police officer may arrest you for probable cause. Although it is your right to refuse to take the breath test, it is important to know that charges may still be brought against you in a court of law.

When the breath test is administered the office will ask you to blow into a small machine. The machine then uses an infrared light to determine your blood-alcohol content (BAC) level. The legal BAC limit in Wisconsin is 0.8; however, other states may accept BACs as high as 0.10.

There are several situations in which the breath test machine may not accurately read your breath's BAC level. If the test is not administered as police training regulates, your BAC results may be inaccurate, leading to false accusations of DUI charges. Also, various sugar-free products contain sugar alcohols, leading breath tests to be inaccurate depending on what was in your mouth just before the test was administered. Although these types of alcohols do not compare to the effect that drinking alcohol has on the body, they may cause the breath test machine to show an inaccurate BAC number. Finally, if the machine is not correctly calibrated and maintained, your BAC reading may be inaccurate. An experienced and skilled DUI defense lawyer will inquire about the calibration of the breath test machines to discover whether any charges of DUI are valid.

While it is your decision whether or not to submit to the breath test, it is in your best interest to comply with the demands of the law enforcement officer in a calm manner. If you refuse to take the test, do so politely since everything that you do or say can be used against you in a court of law. Speaking with an experienced DUI defense attorney is vital to the protection of your rights. If you have been falsely accused of driving under the influence, a knowledgeable DUI attorney will be able to guide you through the complicated legal process and ensure that your rights are protected.

By: Joseph Devine

Paternity tests are conducted to establish whether a child is really a man's child or if the man is the person that should be responsible for some of the child's upbringing. It is not a new concept but it has progressed as technology has progressed.

As paternity tests have evolved, they have made it more difficult to commit paternity fraud. Paternity fraud is the charge when a woman falsely claims that a man is the father of her child in order to gain child support or other financial benefits.

Laws which influence paternity tests vary by jurisdiction. Some jurisdictions require a court order or the consent of the mother in order to go through with the test. Other areas have set time frames within which the father can challenge his status as father. This sort of statute has made it somewhat easier to commit paternity fraud.

Paternity tests may be required to prove whether a man has a paternal obligation to a child. There are two main types of tests. The first is an ABO blood type test which is based on the way blood types are passed from generation to generation. The second type is DNA testing. This is based on a comparison of two strands of DNA from two people. Both of these are scientific tests to determine paternity.

DNA Testing

DNA testing, the more recently developed form of paternity testing, generally utilizes one of two possibly tests; restriction fragment length polymorphism (RFLP) or polymerase chain reaction (PCR). These two tests both allow an individual to be determined as another individual's father.

The RFLP test cuts DNA into specific fragments using restriction enzymes. These fragments are then sorted by size using a special gel with an electric charge at one end. The longer fragments are sorted out of the tube because they don't move through the gel as well as the short fragments. The shorter fragments can be compared for similarities in their patterns.

PCR testing uses a DNA polymerase essentially to replicate a portion of DNA many times over. This creates an amplified section of DNA for analysis. Scientists select a limited section which allows them to develop a genetic fingerprint for people.

ABO Blood Type Testing

ABO blood type testing is more useful for disproving paternity than proving it. It works by analyzing the blood types of the parents and the child. It banks on the fact that some blood types, like genes, are dominant and others are recessive.

By: Joseph Devine
If you would like more information concerning options for paternity tests, contact the Denton child support lawyers at http://denton-divorce-lawyers.com/dento ... awyer.aspx