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April 2014 Archives

Why Should An Attorney Prepare a Will and Living Trust?

Why should a Carlsbad Estate Planning Attorney prepare your will and trust rather than simply go on line and prepare it yourself?  Many commentators suggest that legal services are becoming a commodity and, while this may  be an emerging trend, the San Diego County estate planning attorneys at The Loftin Firm P.C. never advise clients to rely on a document preparation service for their vital estate planning documents. Like a recent Florida Supreme Court case highlighted, the omission of a pertinent clause in an individual's Last Will and Testament can drastically affect the distribution of the assets after death. See Aldrich v. Basile, Case No. SC11-2147 (Fla. S.Ct. Mar. 27, 2014). In contrast, the experienced estate planning attorneys at The Loftin Firm can specifically tailor your estate planning documents to help you proactively plan for the future. An online document preparation service cannot provide this service. As Florida Supreme Court Justice Piente noted in Aldrich, when a testator's will is ill-prepared, the ultimate cost will far exceed the cost of a personalized, comprehensive estate plan prepared by a skilled estate planning attorney. Id. at 18 (emphasis added).

What is the difference between mediation and arbitration, and between non-binding arbitration and binding arbitration?

Mediation and arbitration are two separate and distinctly different strategies to resolve a dispute.  The role of a mediator is to provide a forum in which two parties can discuss and negotiate a settlement between themselves. The mediator does not provide a decision on the merits of the case. At the end of mediation if there is an agreement, then the agreement is prepared in writing and signed by the parties and their attorneys. The important aspect of mediation agreement which is often overlooked is that the terms of the agreement must be specific, with timelines and other criteria such that the mediation agreement can be enforced by either party. The role of an arbitrator is to listen to each sides case and to make a decision on the merits of the case. The parties must present evidence in the form of documents and witnesses to support their case. When the arbitrator makes the decision, it may be non-binding, which means the party who does not like the decision may still go to court; or, it may be binding, which means the decision is final and the right to appeal is limited.

We hear clients in despair stating "I want my day in the San Diego Courts; what do you mean I signed away the right to go to the San Diego Courts?"

Many real estate sales contracts, leasing agreements, medical agreements, and many other types of contracts have a provision which mandates that in the event of a dispute, you agree to "Binding Arbitration" and waive your right to go to court and have a jury trial. Binding Arbitration means that within the procedure set forth in your agreement or contract, you and the other party, alone or with your attorneys, select an arbitrator to hear your matter rather than a judge and/or jury. The decision of the arbitrator is final, with very limited rights to appeal the arbitrators decision. The procedures for handling the arbitration may be spelled out in your agreement or contract, or may be by reference only to a specific group that provides arbitration services with set procedures for handling the arbitration. The procedures may limit additional rights such as the right to demand documents, take depositions, and other discovery rights that are available when the matter is handle through the courts. Therefore, it is important to review and understand the full terms and conditions related to a "Binding Arbitration" provision contained in any agreement or contract.

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The Loftin Firm, P.C.

The Loftin Firm, P.C.
5760 Fleet Street
Suite 110
Carlsbad, California 92008-4713

Toll Free: 866-933-2340
Phone: 760-814-9649
Fax: 760-431-2003
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