Law Offices of Ryan T. Campbell

Legal FAQ Table of Contents

Personal Injury Claims: When You Need a Lawyer

For certain personal injury claims -- such as those for severe injuries, malpractice, or toxic exposure -- you'll want to consult a lawyer.

Sometimes, the skills of an experienced personal injury lawyer -- or at least the threat to an insurance company that such a lawyer may present -- are worth the money you must pay that lawyer to represent you. You may need a lawyer because of complex legal rules involved in your particular claim, or because the severity of your injuries might cause your compensation to vary greatly from the norm -- or simply because an insurance company refuses to settle a matter in good faith. The following types of injuries and accidents almost certainly require a lawyer's help.

Long-Term or Permanently Disabling Injuries

Some accidents result in injuries that significantly affect your physical capabilities or appearance for a long time -- over a year -- or even permanently. Figuring out how much such a serious injury is worth can be a difficult business. You'll probably require some assistance from an experienced lawyer to get the most out of your claim.

Severe Injuries

The amount of your accident compensation is mostly determined by how severe your injuries were. And the severity of your injuries is measured by the amount of your medical bills, the type of injuries you have, and the length of time it takes for you to recover. As the amount of your potential compensation increases, the range within which that compensation may fall becomes wider. In such cases, it may be worth the expense to have a lawyer handle your claim and make sure you receive compensation at the highest end of the range.

Medical Malpractice

If you have suffered an injury or illness due to careless, unprofessional, or incompetent treatment at the hands of a doctor, nurse, hospital, clinic, laboratory, or other medical provider, both the medical questions and the legal rules involved are complex. They almost certainly require that you hire a lawyer experienced in medical malpractice cases.

Toxic Exposure

In the increasingly chemical world, we sometimes become ill because of exposure to contaminants in the air, soil, or water, in products, or in food. Claims based on such exposure are difficult to prove, however, and often require complex scientific data. And because the chemical and other industries have erected a huge wall to protect themselves from legal exposure while they continue to expose us to potentially harmful chemicals, the required evidence is very hard to come by. Get expert help.

When an Insurance Company Refuses to Pay

In some instances, regardless of the nature of your injury or the amount of your medical bills and lost income, you will want to hire a lawyer because an insurance company or government agency simply refuses to make any fair settlement offer at all. In these cases, something -- what the lawyer can get minus the fee charged to get it -- is better than nothing.

Finding a Good Personal Injury Lawyer

One good way to find a lawyer is to ask friends, acquaintances, or other lawyers for referrals -- and then interview the candidates. In addition, Nolo provides a personalized lawyer directory with information about each lawyer's experience, education, and fees, and perhaps most importantly, the lawyer's general philosophy of practicing law. By using Nolo's directory you can narrow down candidates before calling them for a phone or face-to-face interview.

Finding a Personal Injury Lawyer

How to find a good personal injury attorney to help you with your accident or injury claim.

If you're facing a particularly serious or complicated injury claim, you'll probably need a personal injury lawyer's advice. You shouldn't turn to just any lawyer for help; look for someone who has experience representing injured folks (called "plaintiffs") in personal injury claims -- and whom you feel that you can trust.

Finding Experienced Lawyers

There are several ways to get referrals to experienced plaintiffs' personal injury lawyers. Once you get referrals, be sure to comparison shop. Get the names of several lawyers and meet with each of them to discuss your claim before you decide to hire someone. And be prepared for rejection. Many lawyers do not take cases if they fall below a certain potential recovery amount, or if the claim is not crystal clear.

Here's where to look for referrals:

Friends and Acquaintances

Talk with friends or coworkers who have been represented by a lawyer in their own personal injury claims. If the friend or coworker says good things to you about a lawyer, put the lawyer on your list of people to consult. But do not make a decision about a lawyer solely on the basis of someone else's recommendation. Different people will have different responses to a lawyer's style and personality; don't make up your mind about hiring a lawyer until you've met the lawyer, discussed your case, and decided that you feel comfortable working with him or her.

Nolo's Lawyer Directory

Nolo offers a unique lawyer directory that provides a comprehensive profile for each attorney with information that will help you select the right attorney. The profiles tell you about the lawyer's experience, education, and fees, and perhaps most importantly, the lawyer's general philosophy of practicing law. Nolo has confirmed that every listed attorney has a valid license and is in good standing with their bar association. Every attorney has taken a pledge to communicate regularly with you, provide an estimate of the time and cost involved, and provide you with a clear, fair, written agreement that spells out how they will handle your legal matter and how you will be charged. For more information, see lawyers.nolo.com.

Other Lawyers

Another place to seek a referral to an experienced personal injury lawyer is through other lawyers you know. Lawyers commonly refer cases to one another, and most lawyers will know someone else who handles plaintiffs' personal injury cases. As with referrals from friends or coworkers, however, do not simply take another lawyer's referral as the final word.

Referral Services

Most local bar associations have referral services in which the names of lawyers are available, arranged by legal specialty. There is a wide variation in the quality of lawyer referral services, however, even though they are supposed to be approved by the state bar association. Some lawyer referral services carefully screen attorneys and list only those attorneys with particular qualifications and a certain amount of past experience, while other services will list any attorney in good standing with the state bar who maintains liability insurance. Before you choose a lawyer referral service, ask what its qualifications are for including an attorney and how carefully lawyers are screened.

What you may not get from any lawyer referral service, however, is insight into the lawyer's philosophy -- for instance, whether the lawyer is willing to spend a few hours to be your legal coach or how aggressive the lawyer's personality is. Don't make a decision about a bar referral lawyer until you have met and interviewed him or her.

Choosing the Best Lawyer for You

To find out whether a lawyer is right for you, sit down with the lawyer to discuss your claim and possible ways of handling it. Bring copies of all your documents: police report, medical records and bills, income loss information, and all correspondence with the insurance company. Most lawyers do not charge anything for an initial consultation. But before you meet with a lawyer, find out whether he or she will charge you for the first interview. If the lawyer wants to charge you just for discussing whether or not to take your case, go somewhere else.

General Experience

After you tell the lawyer generally what your case is about, there are a few basic things you'll want to find out from the lawyer:

• How long has the lawyer been in practice?
• Roughly what percentage of the lawyer's practice involves personal injury cases?
• Does the lawyer most often represent plaintiffs or defendants? You do not want to be represented by someone who has experience with personal injury cases but who has primarily been a lawyer for defendants. Their way of thinking may be too closely tied to the attitudes of insurance companies and they might not fight as hard -- consciously or unconsciously -- for your claim.
• Would the lawyer personally handle your case or pass it along to another -- perhaps less experienced -- lawyer in the office? It's normal for more than one attorney in an office to work on the same case, and to have less experienced attorneys handle routine tasks. Find out which lawyer would have responsibility for the case and which lawyer you would be dealing with directly. If there is to be another lawyer directly involved, ask to meet that lawyer, too.

Settlement Goal

After you have discussed the facts of your case and the history of your negotiations with the insurance company, you may be able to get some sense from the lawyer about how much he or she thinks your case is worth, and how difficult it may be to get the insurance company to pay that amount. This is when you should let the lawyer know which of the following you want him or her to do for you:

• Obtain a certain settlement amount for you with as few costs and as little hassle as possible.
• Obtain an amount higher than what the insurance company has offered as soon as possible.
• Obtain as much as possible, no matter how long it takes.

If you feel confident with the lawyer's experience, and comfortable with his or her idea of how to proceed with your case, chances are good that you've found a lawyer you can work with.

Information about Paying and Managing Your Lawyer

Once you've found a lawyer that you like, your job isn't entirely done. You'll need to create a clear, written fee agreement and then keep in contact with your lawyer to make sure your case is progressing as it should. For tips on working with the personal injury lawyer you choose, see How to Win Your Personal Injury Claim, by Joseph Matthews (Nolo). Also, the eBook The Lawsuit Survival Guide: A Client's Companion to Litigation, by Joseph Matthews (Nolo), has detailed information on choosing and working with a lawyer.

Car Accidents Caused by Negligence

Learn about negligence -- a legal theory for proving fault in car accident cases.

Negligence is a legal theory that is the basis for many car accident lawsuits. If you’ve been in a car accident and have been sued or are suing the other party, there’s a good chance you’ve heard the term “negligence” kicked around. But what exactly is negligence and how do you prove it? Here’s a primer on using negligence as a basis for recovery in car accident cases.

What Is Negligence?

When a person is negligent, it means that he or she has behaved in a thoughtless or careless manner, which has caused harm or injury to another person. A person can be negligent by doing something that he or she should not have done (for example, running a red light or speeding), or by failing to do something that he or she should have done (for example, failing to yield, stop for a pedestrian, or turn on lights when driving at night).

Negligence is a legal theory often used in car accident cases. A driver must use care to avoid injuring other motorists, passengers, or pedestrians -- basically, anyone that he or she encounters on the road. If a driver is not reasonably careful and injures someone as a result, the driver is liable for injuring the accident victim.

Elements of a Negligence Claim

The person who brings the lawsuit (called the plaintiff) must show that the defendant (the person being sued) was negligent. If you are the plaintiff, you must show all of the following:

The law required the defendant to be reasonably careful. In car accident cases, the law requires drivers to be careful when encountering anyone they meet on the road -- passengers, persons in other vehicles, and pedestrians -- so this one is a given. This is called the "duty of reasonable care." 

The defendant was not careful. This is called "breaching" (or violating) the duty of care. In determining whether a driver was sufficiently careful, the law compares the driver’s conduct with the conduct expected of a “reasonable person.” The law asks: How would a reasonable, prudent person have behaved in the same or similar circumstances?

If the defendant’s behavior falls short of how a reasonable person would have acted, the defendant has violated the duty of reasonable care. Examples of conduct expected of a reasonable driver include:

• stopping at a red light
• watching for crossing pedestrians, and
• following the vehicle in front at a safe distance.

The defendant’s conduct caused plaintiff's injuries. You must also show that the defendant's conduct caused your injuries.

For example, Paula is suing Dan, claiming that she suffered whiplash when Dan rear-ended her car. Paula must provide evidence that the whip lash was due to being rear-ended by Dan and not due to some other accident or event. If Paula suffered whiplash the day before the collision while playing golf, she’ll have difficulty establishing that Dan’s conduct --  rear-ending Paula’s car -- caused her injuries.

The plaintiff suffered losses and/or was injured.  Car accident victims are entitled to compensation for injuries, lost wages or earning capacity, pain and suffering, and property damage (for example, damage to a car). If there aren't any monetary losses or provable injuries, the plaintiff can't recover anything. For example, if Paula in the above example doesn’t suffer any physical injury, doesn’t miss any work time because of the accident, and her car sustains no damage, she cannot recover compensation from Dan because there has been no injury or damage.

The plaintiff must show evidence of his or her injuries and other monetary losses to be compensated. If you are the plaintiff, it’s important to keep complete and detailed records of all injuries, medical expenses, and property damage.

What Duties Does a Driver Have?

The law requires drivers to use reasonable care to avoid harming anyone encountered on the road. But what exactly does this entail? Here are some examples of specific requirements that the law has imposed. If a driver fails to meet these requirements, he or she may be found to have violated the driver duty of reasonable care.

Driving at a reasonable speed. Drivers have a duty to drive at a reasonable, prudent speed. A person who drives at a speed that is unreasonable in light of the existing traffic, road, visibility, and weather conditions may be negligent.  Even driving at the speed limit can be considered negligent if, for example, visibility is low, the weather is bad, or the circumstances warrant particular caution (driving by a school where you can expect children to be crossing, for example).

Vigilance and keeping a proper lookout. Drivers have a duty to be alert and to maintain a careful lookout for other vehicles, pedestrians, and road hazards. Drivers are expected to see the things that an ordinary, prudent person would see. A failure to keep a proper lookout -- by, for example, failing to take care when driving by a road construction site or a school crossing -- can constitute negligence.

Maintaining control of the car. Drivers are expected to keep their car under control by, for example, being able to stop quickly. Negligence may be inferred if a car loses control (such as overturning or leaving the road) for no apparent reason.

Maintaining and using the car’s equipment. Drivers are expected to maintain their vehicles in safe working order. For example, lights and brakes should be working properly.

Driver Duties Imposed by State Law

Each state has motor vehicle laws governing how drivers are expected to behave on the road. In certain circumstances, violating a motor vehicle law gives rise to a "presumption" of negligence -- meaning that the defendant must present evidence to prove that he or she was not negligent (rather than requiring the plaintiff to prove that the defendant was negligent).

Examples of conduct that may give rise to a presumption of negligence include:

• driving under the influence of drugs or alcohol
• violating right-of-way rules, including a pedestrian’s right of way, and
• driving on the wrong side of the road.

Car Accident Defenses

There are a number of defenses available to a defendant in a car accident case based on negligence. Using these defenses can lower or erase the defendant’s liability (that is, the amount of compensation the defendant must pay the plaintiff). For example, if a pedestrian runs into the middle of the road and is hit by a car, the driver may escape all liability or may only have to pay for a portion of the pedestrian’s injuries.

Getting Help

Some small car accident cases are straightforward and can be handled without a lawyer. If, however, your car accident case is complicated, involves severe or permanent disability, or involves large damages, consider hiring a personal injury attorney. If you decide to consult a lawyer, go straight to Nolo’s Lawyer Directory.

For more information on representing yourself in a personal injury case, such as a car accident case, get How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).

Limited Liability Company (LLC) FAQ

Answers to common questions about starting and running an LLC.

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What is a limited liability company?

How many people do I need to form an LLC?

Who should form an LLC?

How do I form an LLC?

Do I need a lawyer to form an LLC?

Does my LLC need an operating agreement?

How are LLCs taxed?

What are the differences between a limited liability company and a partnership?

Can I convert my existing business to an LLC?

Do I need to know about securities laws to set up an LLC?

What is a limited liability company?

A limited liability company, commonly called an "LLC," is a business structure that combines the pass-through taxation of a partnership or sole proprietorship with the limited liability of a corporation.

Like owners of partnerships or sole proprietorships, LLC owners report business profits or losses on their personal income tax returns; the LLC itself is not a separate taxable entity. Like owners of a corporation, however, all LLC owners are protected from personal liability for business debts and claims -- a feature known as "limited liability." This means that if the business owes money or faces a lawsuit, only the assets of the business itself are at risk. Creditors usually can't reach the personal assets of the LLC owners, such as a house or car. (Both LLC owners and corporate shareholders can lose this protection by acting illegally, unethically, or irresponsibly.)

For these reasons, many people say the LLC combines the best features of the partnership and corporate business structures.

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How many people do I need to form an LLC?

You can form an LLC in any state with just one owner.

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Who should form an LLC?

You should consider forming an LLC if you are concerned about personal exposure to lawsuits or debts arising from your business. For example, if you decide to open a store-front business that deals directly with the public, you may worry that your commercial liability insurance won't fully protect your personal assets from potential slip-and-fall lawsuits or claims by your suppliers for unpaid bills. Running your business as an LLC may help you sleep better, because it gives you personal protection against these and other potential claims against your business.

Not all businesses can operate as LLCs, however. Businesses in the banking, trust, and insurance industry, for example, are typically prohibited from forming LLCs. In addition, some states, including California, prohibit professionals such as architects, accountants, doctors, and licensed healthcare workers from forming LLCs.

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How do I form an LLC?

In most states, you create an LLC simply by filing "articles of organization" with your state's LLC filing office (which is usually part of the secretary of state's office) and paying a filing fee. A few states refer to this organizational document as a "certificate of organization" or a "certificate of formation." Most states provide a fill-in-the-blank form that takes just a few minutes to prepare. You can obtain the form by mail or download it from your state's website (check your state's secretary of state or corporations division home page).

A few states impose an additional requirement: Prior to filing your articles of organization, you must publish your intention to form an LLC in a local newspaper.

You'll also want to prepare an LLC operating agreement, though it isn't legally required in most states. Your operating agreement explicitly states the rights and responsibilities of the LLC owners. The main reasons to do this are to clarify your business arrangements and to decide how your LLC will be run. If you don't create a written operating agreement, the LLC laws of your state will govern the inner workings of your LLC.

You can use a self-help book or software program to guide you through the process of creating personalized articles of organization and writing an LLC operating agreement.

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Do I need a lawyer to form an LLC?

No. All states allow business owners to form their own LLC by filing articles of organization. In most states, the information you must provide for the articles of organization is very basic -- typically, you have to supply the name of the LLC, the location of its principal office, the names and addresses of the LLC's owners, and the name and address of the LLC's registered agent (a person or company that agrees to accept legal papers on behalf of the LLC).

Now that most states provide downloadable fill-in-the-blank forms and instructions, the process is even easier. And LLC filing offices are becoming more accustomed to dealing directly with business owners; they often allow business owners to email questions to them directly.

Of course, if you're trying to decide whether the LLC is the right structure for your business, you may want to consult an expert. You may also want an expert to review your operating agreement or set up your bookkeeping and accounting systems.

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Does my LLC need an operating agreement?

Although most states' LLC laws don't require a written operating agreement, you shouldn't consider starting business without one. Here's why an operating agreement is necessary:

• It helps to ensure that courts will respect your personal liability protection by showing that you have been conscientious about organizing your LLC as a legitimate business.
• It sets out rules that govern how profits will be split up, how major business decisions will be made, and the procedures for handling the departure and addition of members.
• It helps to avert misunderstandings among the owners over finances and management.
• It allows you to create your own operating rules rather than being governed by the default rules in your state's LLC laws, which might not be to your benefit.

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How are LLCs taxed?

Like sole proprietorships (one-owner businesses) and partnerships, an LLC is not considered a separate entity from its owners for tax purposes. This means that the LLC does not generally pay any income taxes itself; instead, the LLC owners pay taxes on their allocated share of profits (or deduct their share of business losses) on their personal tax returns.

LLC owners can elect to have their LLC taxed like a corporation. This may reduce taxes for LLC owners who need to retain a significant amount of profits in the company.

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What are the differences between a limited liability company and a partnership?

The main difference between an LLC and a partnership is that LLC owners are not personally liable for the company's debts and liabilities. This means that creditors of the LLC usually cannot go after the owners' personal assets to pay off LLC debts. Partners, on the other hand, do not receive this limited liability protection unless they are designated "limited" partners in their partnership agreement.

Also, owners of limited liability companies must file formal articles of organization with their state's LLC filing office, pay a filing fee, and comply with certain other state filing requirements before they open for business. By contrast, people who form a partnership don't need to file any formal paperwork or pay any special fees.

LLCs and partnerships are almost identical when it comes to taxation, however. In both types of businesses, the owners report business income or losses on their personal tax returns; the business itself does not pay tax on this money. In fact, LLC and partnerships file the same informational tax return with the IRS (Form 1065) and distribute the same schedules to the business's owners (Schedule K-1, which lists each owner's share of income).

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Can I convert my existing business to an LLC?

Yes. Converting a sole proprietorship or a partnership to an LLC is an easy way for sole proprietors and partners to protect their personal assets without changing the way their business income is taxed.

Some states provide a simple form for converting a partnership to an LLC (often called a "certificate of conversion"). Sole proprietors and partners in states that don't provide a conversion form must file regular articles of organization to create an LLC.

In some states, before a partnership can officially convert to an LLC, it must publish a notice in a local newspaper that the partnership is being terminated. And in all states, you'll have to transfer all identification numbers, licenses, and permits to the name of your new LLC, including:

• your federal employer identification number
• your state employer identification number
• your sales tax permit
• your business license (or tax registration), and
• any professional licenses or permits.

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Do I need to know about securities laws to set up an LLC?

If you'll be the sole owner of your LLC and you don't plan to take investments from outsiders, your ownership interest in the LLC will not be considered a "security," and you don't have to concern yourself with these laws.

For co-owned LLCs, however, the answer to this question is not so clear. A security is an investment in a profit-making enterprise that is not run by the investor. If a person invests in a business with the expectation of making money from the efforts of others, that person's investment is generally considered a "security" under federal and state law. Conversely, when a person will rely on his or her own efforts to make a profit (that is, he or she will be an active owner of an LLC), that person's ownership interest in the company will not usually be treated as a security.

How does this apply to you? Generally, if all of the owners will actively manage the LLC -- which is typical in most small start-up LLCs -- the LLC ownership interests will not be considered securities. But if one or more of your co-owners will not work for the company or play an active role in managing the company -- as may be true for LLCs that accept investments from friends and family or that are run by a special management group -- your LLC's ownership interests may be treated as securities by your state and by the federal Securities and Exchange Commission (SEC).

If your ownership interests are considered securities, you must qualify for an exemption from the state and federal securities laws before the initial owners of your LLC invest their money. If you don't fall within an exemption to the securities laws, you must register the sale of your LLC's ownership interests with the SEC and your state.

Fortunately, smaller LLCs, even those that plan to sell memberships to passive investors, usually qualify for securities law exemptions. For example, SEC rules exempt the private sale of securities if all owners reside in one state and all sales are made within the state; this is called the "intrastate offering" exemption. Another federal exemption covers "private offerings." A private offering is an unadvertised sale that is limited to a small number of people (35 or fewer) or to those who, because of their net worth or income earning capacity, can reasonably be expected to be able to take care of themselves in the investment process. Most states have enacted their own versions of these popular federal exemptions.

For more information about SEC exemptions, visit the SEC website at www.sec.gov. A quick way to research your state's exemption rules is to go to the home page of your state's securities agency, which typically posts the state's exemptions rules and procedures. To find your state securities agency, go to your secretary of state's website.

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Wills FAQ

What you need to know about wills -- the most basic estate planning document.

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What happens if I die without a will?

What makes a will legal? Do I need a lawyer to make my will?

I don't have much property. Can't I just make a handwritten will?

Can I use my will to name a guardian to care for my young children and manage their property?

Must I leave something to my spouse and children?

Can someone challenge my will after I die?

How do I choose the right product to help me make a will?

What happens if I die without a will?

If you don't make a will or use some other legal method to transfer your property when you die, state law will determine what happens to your property. Generally, it will go to your spouse and children or, if you have neither, to your other closest relatives. If no relatives can be found to inherit your property, it will go to the state.

In addition, in the absence of a will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit to do so.

If you are part of an unmarried same-sex couple, your surviving partner will not inherit anything unless you live in one of the few states that allows registered domestic partners to inherit like spouses: California, Connecticut, Maine, New Jersey, and Vermont.

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What makes a will legal? Do I need a lawyer to make my will?

Any adult of sound mind is entitled to make a will. Beyond that, there are just a few technical requirements a will must fulfill:

• The will must be signed by at least two witnesses. The witnesses must watch you sign the will, though they don't need to read it. Your witnesses, in most states, must be people who won't inherit anything under the will. (If your state allows "holographic" wills, you don't need witnesses.)
• You must date and sign the will.

You don't have to have your will notarized. In many states, though, if you and your witnesses sign an affidavit (sworn statement) before a notary public, you can help simplify the court procedures required to prove the validity of the will after you die.

You do not have to record or file your will with any government agency, although it can be recorded or filed in a few states. Just keep your will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is.

A lawyer does not have to write a will, and most people do not need a lawyer's help to make a basic will -- one that leaves a home, investments, and personal items to your loved ones, and, if you have young children, that names a guardian to take care of them. Creating a basic will rarely involves complicated legal rules, and most people can create their own will with the aid of a good software program or book. But if you have questions that aren't answered by the resource you're relying on, or your situation is unusual, it may be worth it to see a good lawyer. For more information, see Nolo's article Making a Will: Are Lawyers Optional?

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I don't have much property. Can't I just make a handwritten will?

Handwritten, unwitnessed wills, called "holographic" wills, are legal in about 25 states. To be valid, a holographic will must be written and signed in the handwriting of the person making the will; in some states it must also be dated. Some states allow you to use a fill-in-the-blanks form if the rest of the will is handwritten and the will is properly dated and signed.

A holographic will is better than nothing if it's valid in your state. But a will signed in front of witnesses is better. If a holographic will goes before a probate court, the court may be unusually strict when examining it to be sure it's legitimate. And if you don't have guidance -- from a good self-help resource or a good lawyer -- it's easy to write something that turns out to be ambiguous or even contrary to what you intended.

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Can I use my will to name a guardian to care for my young children and manage their property?

Yes. If both parents of a child die or become otherwise unable to care for a minor child, another adult -- called a "personal guardian" -- must step in. The personal guardian will be responsible for raising your children until they become legal adults. You and the child's other parent can use your wills to nominate someone to fill this position. To avert conflicts, you should both name the same person.

You can choose that same guardian to manage property that you leave to your minor children or you can name someone different. You can name a "property guardian," a "custodian", or a "trustee" to manage the property:

• Name a property guardian. You can simply name a property guardian to manage whatever property the child inherits, if there's no other mechanism (a trust, for example) to handle it. The guardian will manage the property until the child reaches the age of 18.
• Name a custodian under the Uniform Transfers to Minors Act (UTMA). In every state, except South Carolina and Vermont, you can choose a custodian to manage property you are leaving to a child. The custodian will step in to manage the property until the child reaches the age specified by your state's law -- 18 in a few states, 21 in most, and 25 in several others.
• Set up a trust for each child. You can use your will to create a trust for any property the child inherits and to name a trustee to handle the trust property until the child reaches the age you specify.
• Set up a "pot trust." If you have more than one child, you may want to set up just one trust for all of them. This arrangement is usually called a pot trust. You name a trustee to decide what each child needs and to spend money accordingly.

For more information, see Leaving an Inheritance for Children.

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Must I leave something to my spouse and children?

Disinheriting spouses. The law protects surviving spouses from being left with nothing. If you live in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or Wisconsin -- or Alaska if you have made a written community property agreement), your spouse automatically owns half of all the property and earnings (with a few exceptions) acquired by either of you during your marriage. You can leave your half of the community property, and your separate property, to anyone you choose.

In all other states, a surviving spouse has a legal right to claim a portion of your estate, no matter what your will provides. But these provisions kick in only if your spouse goes to court and claims that share.

If you don't plan to leave at least half of your property to your spouse, either through your will or outside it, you should consult a lawyer -- unless your spouse willingly consents in writing to your plan.

Disinheriting children. Generally, it's perfectly legal to disinherit a child. If, however, it appears that you didn't mean to disinherit a child -- the most common example is a child born after you made your will -- then the child has the right to claim part of your property.

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Can someone challenge my will after I die?

Very few wills are ever challenged in court. When they are, it's usually by a close relative who feels somehow cheated out of a share of the deceased person's property. To get an entire will invalidated, someone must go to court and prove that it suffers from a fatal flaw: the signature was forged, you weren't of sound mind when you made the will, or you were unduly influenced by someone.

For more information on how a will can be challenged in court, see Grounds for Challenging a Will .

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How do I choose the right product to help me make a will?

Nolo offers several products to help you make your will. Which one you should use depends on the size of your estate, how you want to leave your property, and whether you prefer to use software or a good old-fashioned book.

Quicken WillMaker Plus is ideal for nearly any size estate and almost any estate plan. Use this product if you are comfortable using computer software and if you also need other estate planning documents, such as trusts, health care directives, or powers of attorney -- Willmaker comes with all of those as well as many other useful forms.

Nolo's Online Will allows you to make your will online, now or anytime. Just log in, answer questions about yourself and your property, and print! Nolo provides expert guidence and help along the way.

Nolo's Simple Will Book is better for those who prefer to use a book with word-processing documents on CD-ROM. Nolo's Simple Will Book allows you to customize a will to your circumstances and is appropriate for those with small to moderately sized estates and simple estate planning goals.

The Quick and Legal Will Book is best if you have a small estate, simple estate planning goals, and prefer to use a book with word processing documents on CD-ROM. The Quick and Legal Will Book offers a choice of five basic will forms.

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Living Trust FAQ

An introduction to living trusts -- a popular way to avoid probate.

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What is a living trust?

Why should I make a living trust?

How does a living trust avoid probate?

Is it expensive to create a living trust?

Is it a hassle to hold property in a living trust?

Is a living trust document ever made public, like a will?

Does a living trust protect property from creditors?

If I make a living trust, do I still need a will?

Can a living trust reduce estate taxes?

What is a living trust?

A trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. You can be the trustee of your own living trust, keeping full control over all property held in trust.

A "living trust" (also called an "inter vivos" trust) is simply a trust you create while you're alive, rather than one that is created at your death.

Different kinds of living trusts can help you avoid probate, reduce estate taxes, or set up long-term property management.

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Why should I make a living trust?

The big advantage to making a living trust is that property left through the trust doesn't have to go through through probate court. In a nutshell, probate is the court-supervised process of paying your debts and distributing your property to the people who inherit it.

The average probate drags on for months before the inheritors get anything. And by that time, there's less for them to get: In many cases, about 5% of the property has been eaten up by lawyer and court fees.

Still, not everyone has to worry about probate, and some people don't need a living trust at all.

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How does a living trust avoid probate?

Property you transfer into a living trust before your death doesn't go through probate. The successor trustee -- the person you appoint to handle the trust after your death -- simply transfers ownership to the beneficiaries you named in the trust. In many cases, the whole process takes only a few weeks, and there are no lawyer or court fees to pay. When all of the property has been transferred to the beneficiaries, the living trust ceases to exist.

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Is it expensive to create a living trust?

A basic living trust isn't much more complicated than a will, and you probably won't need to hire a lawyer. With a good self-help book or software program, you can create a valid Declaration of Trust (the document that creates a trust) yourself. If you run into questions that a self-help publication doesn't answer, you may need to consult a lawyer, but you probably won't need to turn the whole job over to an expensive expert.

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Is it a hassle to hold property in a living trust?

Making a living trust work for you does require some crucial paperwork. For example, if you want to leave your house through the trust, you must sign a new deed, showing that you now own the house as trustee of your living trust. This paperwork can be tedious, but the hassles are fewer these days because living trusts have become so common.

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Is a living trust document ever made public, like a will?

No. A will becomes a matter of public record when it is submitted to a probate court, as do all the other documents associated with probate -- inventories of the deceased person's assets and debts, for example. The terms of a living trust, however, need not be made public.

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Does a living trust protect property from creditors?

No. A creditor who wins a lawsuit against you can go after the trust property just as if you still owned it in your own name.

Generally, after your death, all property you owned -- including assets held in a living trust -- is subject to your lawful debts. For example, if your house is held in trust and passes to your children at your death, a creditor could demand that they pay the debt, up to the value of the house. Ownership of real estate is always a matter of public record, so creditors can always find out who inherited real estate. It can be more difficult for creditors to know who inherits other property, however (because a trust document, unlike a will, is not a matter of public record), and they may not bother tracking it down.

On the other hand, probate can also offer a kind of protection from creditors. During probate, known creditors must be notified of the death and given a chance to file claims. If they miss the deadline to file, they're out of luck forever.

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If I make a living trust, do I still need a will?

Yes, you do -- and here's why:

A will is an essential back-up device for property that you don't transfer to yourself as trustee. For example, if you acquire property shortly before you die, you may not think to transfer ownership of it to your trust -- which means that it won't pass under the terms of the trust document. But in your will, you can include a clause that names someone to get all of the property that you haven't left to a specific beneficiary.

If you don't have a will, any property that isn't transferred by your living trust or other probate-avoidance device (such as joint tenancy) will go to your closest relatives in an order determined by state law. These laws may not distribute property in the way you would have chosen.

For more on wills, see Wills FAQ.

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Can a living trust reduce estate taxes?

A simple probate-avoidance living trust has no effect on taxes. More complicated living trusts, however, can greatly reduce the federal estate tax bill for people who own a lot of valuable assets.

One tax-saving living trust is designed primarily for married couples with children. It's commonly called an AB trust, though it goes by many other names, including "credit shelter trust," "exemption trust," "marital life estate trust," and "marital bypass trust." Each spouse leaves property, in trust, to the other for life, and then to the children. This type of trust can save up to hundreds of thousands of dollars in estate taxes, money that will be passed on to the couple's final inheritors.

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