For a lot of people who visit an estate planning lawyer in the Northern California area, the concepts and ideas your attorney likely takes for granted may be entirely foreign to you. The reality is that most people rarely speak to an attorney, and few people have participated in lawsuits or been accused of crimes. If you are new to legal process, have never spoken to a lawyer before, or are feeling a little lost as you discuss estate planning topics, here are some essential legal issues you will need to be aware.
Concept 1: The difference between civil and criminal law.
One of the most important ideas you should understand when you speak to an estate planning lawyer is the difference between civil and criminal law. Estate planning cases are almost always entirely based on civil law, and criminal law rarely plays a part.
In a criminal case, a state, local, or federal prosecutor accuses someone of committing a crime. Only prosecutors can file criminal charges against a person, and once that happens, the person accused has certain rights. If you lose a criminal case you face the possibility of various punishments, such as prison or fines.
On the other hand, a civil case does not involve a prosecutor accusing someone of having committed a crime. Instead, civil cases revolve around the idea that you have the right to be compensated for the damages someone wrongfully causes you. For example, if you get injured in an accident because someone else was negligent, you have the right to sue that person to recover money to compensate you for the losses you incurred.
There are a few situations where criminal law does interact with estate planning and administration. One area is when a prospective beneficiary may be a convicted person who may be incarcerated or may be subject to a restitution order. Care planning is needed to deal with these situations. Another area is when a person who is a beneficiary or heir of someone’s estate is responsible for killing the person from whom they could inherit. California has enacted a so-called “killer statute” that prevents such a person from benefiting from their wrongful act.
Concept 2. Lawsuits.
The idea of suing someone because you have suffered damage is widely known, but the specifics are often a mystery to many people. In a civil lawsuit, one person accuses another person of committing a harm, known as a tort. In tort cases, the person who files a lawsuit is asking the court to award damages. Damages, in most cases, is money.
Estate planning is, though a part of civil law, usually not focused on the filing of lawsuits. In estate planning, all you are really doing is making decisions in a legally enforceable manner. These decisions might apply to you if you become incapacitated, or they might apply to the property leave behind after you die.
In very rare circumstances, the estate planning process can involve a civil lawsuit. However, most people who speak to an estate planning lawyer do not do so because they want to file a lawsuit, or need help in defending against one. Instead, they talk to the attorney because they’re concerned about their future and want to plan ahead.
However, protection of one’s assets from possible future lawsuits, commonly called asset protection planning, is certainly a worthwhile endeavor for those concerned about limiting their potential losses. The best place to start is with a consultation with an experienced and qualified estate planning attorney.