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Lawyer in Visalia, CA, Visalia, CA (2026)

08/03/2020

Who Is Capable of Making a Will?
The short answer - almost everyone over the age of 18 is capable of making a Will. The law states that you must be at least 18 years of age and of sound mind to make a valid Will. The age requirement is pretty straightforward. The question of “sound mind” is not always so clear-cut.

To be of sound mind means that you are capable of understanding in a general way 1) the nature and extent of your assets; 2) who your natural beneficiaries are (the natural objects of your bounty); 3) how your property is being distributed; and 4) forming an orderly desire regarding distribution of your property. This is a very low standard for establishing that someone is of sound mind, so almost everyone will meet this definition.

There are two primary considerations in determining if someone is of sound mind. The first is intellectual capacity. There is no IQ requirement or education requirement for creating a Will, nor any requirement to be responsible or logical. Is the individual intellectually capable of knowing his or her assets, identifying his or her relatives or other close individuals and deciding in a basic way how his or her assets should be distributed? The vast majority of adults are able to meet this standard, even if they have some intellectual restrictions.

The second consideration is whether a mental or physical condition is affecting the individual to the extent that he or she is not capable of meeting this “sound mind” standard. Many people are affected by mental or physical conditions that may limit their functioning in some way. However, those conditions do not disqualify individuals from executing valid Wills unless the effect is so profound that it renders them incapable of knowing their assets, identifying their relatives or other close individuals in their lives and deciding in a basic way how their assets should be distributed.

Think about the people in your life. Most likely, there are few, if any, who would not meet the test for being capable of executing a valid Will.

08/02/2020

Cybercrimes Involving The Elderly
People who have reached retirement age, having worked most of their lives and earned the opportunity to enjoy their golden years, should be able to breathe easy knowing that a lifetime of preparation has paid off and ensured that their remaining years are financially secure.

Unfortunately, all that hard work and preparation can be undone by a criminal seeking to cash in on the carefully planned nest egg.

Seniors are often the victims of cybercrimes, which are crimes that occur over the internet or by using a computer. Such crimes include hacking, phishing, fraud, identity theft, and monetary theft. Seniors are often targeted for these types of crimes due to common assumptions that older individuals are less tech savvy and more trusting
than other segments of the population. Particularly vulnerable are those who suffer from common types of cognitive decline often associated with aging. The possibility of a hefty retirement account makes this pool of potential victims especially attractive to criminals looking for a big score.

Costs of Cybercrimes

More than 62,000 fraud complaints by those aged 60 and over were reported in 2018, according to the FBI’s Internet Crime Complaint Center 2018 Internet Crime Report. The report indicated that the losses came to an annual total of nearly $650 million.

Much of the same advice given to seniors applies across the board, as people of all ages have the potential to be tricked by cyber criminals’ deceptions. It is worth noting, however, that the potential for this type of abuse becomes greater with age. The following are a few ways to protect yourself from cybercrime:

Guard your personal information: Never give out your personal or financial information to anyone you do not know and trust.

Be wary of unsolicited communications: Never give personal information to someone who contacted you randomly.

Be cautious of new friends: Online dating sites are a common tool criminals use to access potential victims, often posing as a love interest only to use that trust to steal by asking for help or seeking financial information.

Keep track of your finances: Check monthly statements for anything unusual.

Do not sign anything: Have a lawyer or someone else you trust look over any documents before you sign.

Be alert to scams: Reports of suspicious lottery, sweepstakes, or contest winnings may be too good to be true.

Be suspicious of misrepresentations: The person contacting you may claim to be a representative from the government or your bank. It is best to verify this before sharing anything.

08/02/2020

Probate Court Rules of Discovery in Connecticut
When permission of court is required:

A party shall obtain permission from the Probate Court before seeking discovery of information from another party by an interrogatory, request for production, inspection and examination, or by a request for admission.

When interrogatories, request for production and request for admission permitted:

A party may request permission to conduct discovery by submitting a summary describing the information sought. Unless otherwise directed by the court, the requesting party shall not file individual discovery documents. The court may hear a request for discovery at a hearing management conference.

The court may grant a request for discovery, in whole or in part, if it finds
that the requested discovery appears reasonably calculated to lead to admissible evidence and would not be unduly burdensome or expensive.

Taking deposition:

A party may take the testimony of any person by deposition in accordance with Connecticut General Statute Sections (C.G.S.) 52-148a through 52-159. A party may compel another party to testify at a deposition by giving notice of the deposition. The notice may include a request for the other party to produce documents and tangible things at the deposition.

An attorney for a party may compel any person to testify at a deposition by issuing a subpoena. The subpoena may include a request for the person to produce documents and tangible things at the deposition. On motion of a self-represented party, the court may compel any person to testify at a deposition by issuing a subpoena. The cost of serving the subpoena shall be paid by the party requesting it. A party or attorney for the party shall send notice of a deposition to each party and attorney of record.

A person whose deposition is sought may move to quash or modify the notice or subpoena. C.G.S. section 52-148e and section 13-30 of the Connecticut Practice Book shall govern the conduct of a deposition and the procedure for resolution of a dispute related to the disposition. A party or attorney for the party may use a deposition in a proceeding in the manner provided under section 13-31 of the Connecticut Practice Book.

Interrogatories:

With permission of the Probate Court, and within the scope of the court’s order, a party may issue written interrogatories to another party. Unless otherwise permitted by the court, a party may not issue more than twenty-five (25) interrogatories, including each discrete sub-part. The court may hear a request to issue additional interrogatories at a case management conference. Answers to interrogatories may be used in a proceeding to the extent permitted by the rules of evidence.

Request for production, inspection and examination:

With permission of the Probate Court, and within the scope of the court’s order, a party may make a written request to another party to:

1. Inspect, copy, photograph or otherwise reproduce documents, including, but not limited to, writings, drawings, graphs, charts, electronic communications and photographs;

2. Inspect and copy or test a tangible thing in the possession, custody or control of the party to whom the request is made; and

3. Permit entry on property for the purpose of inspecting, measuring, surveying, photographing or testing the property.

Request for admission:

With permission of the Probate Court, and within the scope of the court’s order, a party may issue to another party a written request for the admission of the truth of a matter. The request shall relate to a statement of fact, opinion or the application of law to fact. If the request relates to a document, the requesting party shall provide a copy of the document unless it is otherwise available to the other party. Generally, an admission under this section conclusively establishes the matter admitted.

On motion of a party who made an admission, the court may permit the admitting party to withdraw or amend the admission if the withdrawal or amendment will facilitate the presentation of the merits of the matter, and the party who requested the admission fails to establish that the withdrawal or amendment will cause prejudice.

An admission of a party under this section does not waive the right of the party to object to the admission on the grounds of competency or relevancy. An admission of a party may be used only in the pending proceeding.

Answer to interrogatories, request for production and request for admission:

Unless otherwise directed by the Probate Court, a person responding to a discovery request shall not file the response with the court. The party to whom interrogatories are directed or a request for production or admission is made shall respond in writing and under oath. The party shall respond not later than thirty (30) days after issuance of the interrogatories or request unless:

1. On motion by the party, the court directs a shorter or longer time; or

2. The party files an objection to an interrogatory or request for production or admission.

If a party files an objection to an interrogatory or request for production or admission, the party shall respond to the interrogatories or the part of the request to which an objection is not made.

Continuing duty to disclose:

Until a matter is concluded, a party to whom a discovery request is made under this rule shall have a continuing duty to disclose new or additional information within the scope of the request, and that information previously disclosed is not true or is no longer true.

Objection to interrogatory or request for production or admission:

A party who objects to an interrogatory or request for production or admission shall file a written objection setting forth the grounds for the objection and the proposed remedy and describing the efforts made to resolve the differences between the parties concerning the discovery request. The party shall file the objection not later than thirty (30) days after issuance of the discovery request. The party shall also send a copy of the objection to each party and attorney of record and certify to the court that the copy has been sent.

The court may order such relief as justice requires if it finds that the requested discovery:

1. Seeks information that is privileged or otherwise protected by law from discovery;

2. Does not appear to be reasonably calculated to lead to admissible evidence;

3. Would be unduly burdensome or expensive; or

4. Will cause annoyance, embarrassment or oppression.

If the court finds one or more of these grounds, the court may order such relief as justice requires, including that the requested discovery be:

1. Limited or denied;

2. Conducted on specified terms and conditions; or

3. Conducted by an alternative method.

If the court overrules the objection to the discovery request, the party shall respond to the interrogatory or request not later than twenty (20) days after the court’s ruling is mailed. On request of a party, the court may extend the response period.

Order for compliance:

If a person fails to comply with a request for discovery, the requesting party may file a motion seeking an order for compliance. The motion shall set forth the discovery request that is the subject of the motion and the reason why the response, if any, fails to comply. If the court finds that the person has failed to comply with the request for discovery and that the discovery is permitted under the Probate Court Rules of Procedure, the court may:

1. Award the discovering party the expenses of the motion under C.G.S. section 45a-109 and a reasonable attorney’s fee;

2. Order that the subject matter of the discovery request is established for the purposes of the proceeding;

3. Prohibit a party who failed to comply from introducing designated matters in evidence; and

4. Make any other order that justice requires.

Unless a timely written objection to an interrogatory or request for production or admission has been filed, the court may not excuse a failure to comply with a discovery request on the ground that the court would have granted relief.

Summons to testify:

An attorney for a party may issue a subpoena to summon a person to testify before the Probate Court. On motion of a self-represented party, the court may issue a subpoena to summon a person to testify before the court. The cost of serving the subpoena shall be paid by the party requesting it.

07/21/2020

When you pay in advance for a service, you expect to receive it. However, with businesses closing because of the COVID-19 pandemic, it is becoming more common for businesses not to provide a prepaid service. If you are not receiving a prepaid service because of a coronavirus-related business closing, there are certain steps that you should follow.

Understand Your Rights Under the Contract
The terms of the contract between you and the business will be of primary importance. These contract terms will characterize your prepayment in a certain manner. In most cases, the contract should reflect that your advance payment was made with the expectation that in exchange you would receive a service. Thus, if you are not receiving the service, the business is in breach of the contract. While less likely, it is possible that the contract treats your advance payment as not tied to future services (such as certain “signing bonuses”). In such a case, the failure to provide services is separate from the prepayment, and the business is not in breach of the contract. Contracts can be written or oral. It is generally easier to interpret and enforce a written than an oral contract.
Does the Business Have a Defense
While the business may appear to be in breach of the contract, it may assert a defense for such breach based on inability to provide the service because of the coronavirus pandemic. These defenses are described with such names as “force majeure”, “frustration of purpose”, and “impossibility”. Depending on the particular facts and circumstances, the business may be able to argue that the coronavirus pandemic prevents providing the service (such as if the government required the business to close). However, it would appear as a much tougher argument for the business to successfully assert that the coronavirus pandemic prevents refunding a prepayment.
Communications and Negotiations with the Business
It may be useful to communicate with the business. If the business only intends to close for a month, and you do not need its services for 90 days, there may be no issue. Communications can also lead to negotiations, and possibly at least the partial refunding of your advance payment.
Litigation
If you have enforceable rights under your contract, with no effective defense for the business, you can file a lawsuit against the business to recover your prepayment and possibly other damages (including lost profits). You may possibly also be able to sue the business for specific performance of the contract, which would require the business to provide the prepaid service to you.
Hire A Lawyer
A lawyer can best analyze if you have enforceable rights under the contract and if the business has any effective defenses, handle communications and negotiations with the business, and represent you in litigation against the business. You should hire a lawyer who has had prior experience and success with these matters in the specific jurisdiction where your dispute with the business has occurred.

07/20/2020

Employee Incentive Schemes in Switzerland
To succeed, an organization must attract and retain high-performing employees. Companies often therefore introduce employee incentive schemes which grant employees the right to participate in the success of the company’s business.

Such employee incentive schemes can be structured in a variety of ways. However, employee incentive schemes are typically set up as employee share plans/employee share option plans or phantom share plans/phantom share option plans.

Employee Share (Option) Plans

In case of employee share (option) plans, the company (i.e. the employer) grants its employees actual shares in the company or options to buy such shares. The employee, therefore, has the chance to become a shareholder in the company at once, or later on when he/she exercises the options pursuant to the terms of the employee share option plan. As a shareholder, the employee receives dividend payments and may participate with voting rights in the general meetings of shareholders. Further, depending on the canton of residence and the time of any eventual sale of shares in the company, the employee may realize, to a certain extent, a taxfree capital gain on the shares acquired under the employee share (option) plan; which is not the case with phantom share (option) plans (see below).

Phantom Share (Option) Plans

In case of phantom share (option) plans, the company (i.e. the employer) does not grant a right to acquire actual shares in the company. Instead, the employee receives “virtual” or “phantom” shares, which only mirror the value of the actual shares, i.e. the increase in value of the actual shares. In other words, with virtual shares the employee receives the right to a cash/bonus payment. The amount of such bonus payment, however, depends on the value of the actual shares (i.e. on their increase in value). The pay-outs to the beneficiary (i.e. the employee) under phantom share (option) plans are usually triggered by a so-called “exit event”. An exit event is most commonly defined as an initial public offering or a trade sale.

The beneficiary of a phantom share (option) plan is treated as a shareholder from an economic point of view, but never becomes formally a shareholder. Hence, phantom share (options) plans may help founders to keep the shareholder base small and manageable. From a tax perspective, it needs to be noted that the bonus payments made to an employee under a phantom share (option) plan always qualify in their entirety as salary payments and, as a consequence, are subject to income tax and social security contributions.

Vesting Scheme

Employee share (option) plans as well as phantom share (option) plans regularly contain so-called vesting clauses or vesting periods. Vesting periods are time intervals during which the employee has to earn his/her options, shares or bonus entitlements, e.g. by not terminating his/her employment contract. If the employee leaves the company or is terminated before the end of the applicable vesting period, he or she loses and/or has to give back – depending on the structure of the employee participation plan – some or all his/her shares, options, or virtual participation rights for no consideration or for a pre-defined consideration.

Conclusion

Employee incentive schemes are useful and effective tools to attract and motivate employees. Since companies have a great deal of leeway in designing such incentive plans, the plans may be tailored to the respective needs of each company. It is important always to keep taxes and social security contributions in mind, however, as the qualification of employee participations for tax and social contributions purposes may vary depending on the structure of the employee incentive scheme. For instance, companies regularly overlook the fact that participations (shares, virtual shares etc.) granted to an employee need to be stated on the employee’s salary statement. The Company is, therefore, in case of employee share (option) plans, regularly well advised to obtain a tax ruling from the competent tax authorities.

07/18/2020

Industry guidance: Re-opening the Home Moving Market Safely

Coronavirus (COVID-19) is having an impact on industry professionals whose work involves direct contact with clients, occupiers, tenants and home movers whether in an office or through visits to a private residential property.

This is causing significant uncertainty for many, especially as government guidance continues to evolve.

The purpose of this pan-industry guidance is to provide professionals with information to enable them to complete moves while maintaining safety as social distancing measures are eased in line with government guidelines.

This document has been developed collaboratively by the residential sector and professional organisation’s representatives.

It’s relevant to:

property agents
lenders
mortgage advisers
property lawyers/conveyancers
surveyors
energy assessors
property managers
home removal and associated professionals such as contractors involved in property development, management and the home moving process

The guidance will focus on physical contact points in the home moving process whereby professionals delivering services will need to come into contact with people and/or enter private residential properties.

It’s followed by consumer guidance on safe home moving to ensure clarity, transparency and a smooth process for all parties.

As the situation and guidance in this area is constantly evolving, we intend for this information to be updated regularly.

Sector-specific guidance is being finalised and links will be added.

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