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Asset Protection FAQ

  • What is a Will?

A Will is an instrument by which a person makes a disposition or gift of his or her property. The gifts do not take effect until the time of the testator’ s death. To be a valid Will, the Will must meet the requirements and formalities of state law.

  • What is a Testator?

The person who makes a Will is called the Testator, if a man, or the Testatrix, if a woman.

  • What is an Executor ?

The Executor is the person you name to carry out the directions in your Will after your death. After your death, the Executor must be appointed by the Court before he or she can act.

In your Will, you may designate the person you wish for the Court to appoint as Executor. You may wish to name one or two successor Executors, to act in the event your first choice does not or cannot serve.

  • Who should draft my will?

Only an attorney can legally draft a will for a person, unless a person drafts his own will. Personally drafted wills are often incomplete, and therefore invalid under state law. An invalid will is worthless.

Kits for writing a will are normally not state-specific. If your will fails to follow state law, it will be invalid.

  • What are the requirements for a will?

The specific requirements depend on state law. Commonly, the will must be in writing, signed by the person whose will it is (the "testator") and witnessed by (usually) two persons. The exact number depends on state law.

The testator normally must have attained the age of majority, and must be of "sound mind" at the time the will is executed. A married minor is usually capable of executing a will.

The witnesses normally MUST be "uninterested," meaning they're not beneficiaries of the will. Witnesses also must be competent persons.

A will normally doesn't need to be notarized, but a document called a "self-proving affidavit" might be created to provide further legal strength to the will.

"Holographic" (handwritten) wills are still recognized in many states. Such a will must be in the handwriting of the testator and signed by the testator. Witnesses aren't normally required for a holographic will. State law might impose other conditions on a holographic will.

  • What are the executor or personal representative's duties and obligations?

The representative is charged with following state law in wrapping-up the decedent's affairs. This includes:

Giving the proper notices to the proper parties 
Collecting all the decedent's property 
Receiving claims against the estate 
Paying just claims and disputing others 
Distributing the estate property according to the will or state law 
Along the way there may be other necessary actions, like selling estate property to cover debts or allow for proper distribution.

  • What if I want to cancel or change my Will after it is signed ?

Do not write on your will or mark through any words. Even small changes or markings could void the entire will. If you wish to change your will, we can help you implement the updates without invalidating your will. You also may revoke your Will. Like the creation of a Will, the revocation must strictly comply with state law. If you wish to cancel or change your Will, you should be as diligent in seeking legal advice as you were when you created your Will.

  • Who will take care of my pets after I die?

In your Will, you can name the person (and one or more alternates) you would want to have ownership and custody of your pets after you die. If you wish, you can direct your executor to set aside a sum of money to provide for life-long care of any pets that you own at the time of your death.

Before you sign your will, be sure to discuss your plan with the intended owners to make sure they agree with your wishes. If you do not have a will, your pets pass under the laws of intestacy as personal property.

  • Is there a way for me to bear the cost of a party or celebration for my friends and family after I die?

Generally, yes. Your will can include a directive to your executor to expend a reasonable sum from your estate for this purpose. You would want to include a clause to give your executor sole discretion to provide for the expenditure. Language should be included to make sure the cost is deemed a necessary expense incident to the administration of your estate.

Make sure your named executor knows of your wishes, as often a will is not read until after the memorial service or burial.

  • I recently divorced. My Will leaves everything to my former spouse. Do I need to change my Will?

Yes, but you have protection. If a person divorces after making a will, all provisions in the will in favor of the former spouse are null and void, unless the Will expressly states otherwise. However, now that your former spouse is not a beneficiary, you should review your Will to determine who will receive your property under your will.

There are at least five family changes where updating your Will is advisable:

Birth or adoption of a child or grandchild. 
Divorce (either your own or a family member's). 
Death or disability of a beneficiary under your will. 
Death or disability of your Executor. 
Is joint tenancy a substitute for a will?

A joint tenancy with right of survivorship is a method of owning property with another person. At the death of one owner, the other owner becomes the full owner of the property. The property isn't part of the decedent's estate, and doesn't go into probate.

There are tax implications and simple ownership issues for a joint tenancy.

A joint tenancy is not the equivalent of a will. A will can do a number of other things. A joint tenancy creates a situation where the other joint tenant will get the whole property at the decedent's death. But if you give your brother Bob an interest in a joint tenancy on your home, Bob could sell his interest or his creditors could go after his interest.

  • Why must an estate go though court?

So that the decedent's affairs can be legally concluded. The court oversees the probate. If there is real property, someone will need legal authority to transfer the property to the heirs. If the estate is producing income, taxes will have to be paid. The creditors are to be paid from the estate property.

Many states have provisions for an "informal probate" which greatly reduces the requirements of interaction with the court, but doesn't eliminate the court entirely. Most every estate will have a piece of property that passes by title or deed, like a car or real property, and normally only someone with legal authority can legally transfer such property.

  • Can I dispose of my property in any way I wish?

Yes, for the most part. But if you indicated that all your property should be collected and burned, the law might not give effect to that part of your will.

You won't be able to avoid protections given to others by act of law, either. This can include your spouse's rights against the estate, community property protections, and special protections for children.

  • When should I make a will?

A person should make a will right now because no one knows what tomorrow holds. A person should review his estate plan occasionally, especially after certain events, such as marriage, divorce and winning the lottery.

Real Estate FAQ

Q. I have just been served with a Summons and Foreclosure Complaint. What do I do?
A. Respond in Writing and/or Serve and file an Answer and Affirmative Defenses within 20 days of service.

Q. If I do nothing, what will happen?
A. A Default and Default Judgment will be entered, and the Clerk of the Court will auction your property, usually within 25 to 30 days from entry of a Default Judgment.

Q. After the property is auctioned by the Court Clerk, do I have to get out?
A. Yes.

Q. How much time do I have?
A. As little as 12 days.

Q. If I don’t move out, what will happen?
A. The Sheriff’s office will physically evict you and remove you and your personal effects from the property.

Q. What can I do?
A. Unless you are familiar with legal proceedings and applicable law, it’s best to get an experienced and knowledgeable lawyer, without delay.

Q. What can an experienced and knowledgeable lawyer do?
A. File an answer containing Affirmative Defenses, if any.

Q. In the Answer, is a denial of the Plaintiff’s Complaint all I need to do?
A. Usually not. Your attorney must state all Affirmative Defenses, otherwise they may be waived.

Q. What are Affirmative Defenses?
A. They are special defenses which must be specifically alleged, such as truth-in-lending violations, usury, fraud and other specific types of improper conduct by the lender, which may defeat or partially defeat the lender’s claims.

BUT YOU MUST ACT IMMEDIATELY! An attorney only has 20 days from the date you received a foreclosure summons to stop your lender from applying for a "procedural default" will prevent you from asserting your rights in state court.

You have the right to require your lender to produce documents and information in their possession and control, which may benefit you. 

Corporate Law FAQ
  • What Are the Federal Securities Laws

In the chaotic securities markets of the 1920s, companies often sold stocks and bonds on the basis of glittering promises of fantastic profits - without disclosing any meaningful information to investors. These conditions contributed to the disastrous Stock Market Crash of 1929. In response, the U.S. Congress enacted the federal securities laws and created the Securities and Exchange Commission (SEC) to administer them.

There are two primary sets of federal laws that come into play when a company wants to offer and sell its securities to the public. They are:

· The Securities Act of 1933 (Securities Act), and 
· The Securities Exchange Act of 1934 (Exchange Act).

  • Securities Act

The Securities Act generally requires companies to give investors "full disclosure" of all "material facts," the facts investors would find important in making an investment decision. This Act also requires companies to file a registration statement with the SEC that includes information for investors. The SEC does not evaluate the merits of offerings, or determine if the securities offered are "good" investments. The SEC staff reviews registration statements and declares them "effective" if companies satisfy our disclosure rules.

  • Exchange Act

The Exchange Act requires publicly held companies to disclose information continually about their business operations, financial conditions, and managements. These companies, and in many cases their officers, directors and significant shareholders, must file periodic reports or other disclosure documents with the SEC. In some cases, the company must deliver the information directly to investors.

  • Exemptions

Your company may be exempt from these registration and reporting requirements. 
Are There State Law Requirements in Addition to Federal Laws? 
The federal government and state governments each have their own securities laws and regulations. If your company is selling securities, it must comply with federal and state securities laws. If a particular offering is exempt under the federal securities laws that do not necessarily mean that it is exempt from any of the state laws.

  • Can I Set Up A Corporation Without A Lawyer?

The most important decision revolves about the type of entity you should be setting up. That is what you really need a professional's advice for.

The specific contents of a Certificate of Incorporation vary with each state's incorporation laws, but key features are consistent: the corporation's name, the number of shares authorized, the names and addresses of the incorporator(s), and the address of a registered office and agent for service of process.

In terms of the actual filing, some people follow a "do it yourself" approach using 
(1) Interactive software programs that automate the process 
(2) Tear-out forms available in many published guides to incorporating, or 
(3) Fill-in-the blank forms that may be available from the State. Many use a corporate service company to create the corporation for them. Wise ones rely on an attorney to set up the corporation for them. 
Forming the corporation is just a small part of the total process of setting up a business and making sure what you are setting up makes sense for you.

As an attorney's advice is typically needed in connection with many other aspects of business start-up, relying on a lawyer to set up the corporation will make it far more likely the whole job is done right. Further, once the corporation is set up, it becomes necessary to adopt By-Laws and resolutions and a whole long paper trail to assure you the protections and benefits you are seeking by operating in corporate form.

  • In what circumstances is a company in 'breach of duty'?

A company is in breach of duty if it has failed to do what it reasonably should be expected to do or does what it reasonably should be expected not to do. If a company is in 'breach of duty' then it has met one of the criterion for being negligent. In working out 'reasonableness' a court takes into account a number of factors, including the likelihood of damage being caused by a company's action or inaction, the extent of damage caused, how cheap and easy it is for a company to take precautions against damage, and the need for the action by the company. A plaintiff must prove 'breach of duty', unless the 'facts speak for themselves', meaning the damage is taken to be obviously the result of a company's negligence and clearly an incident within the sole control of the company.

  • What is the difference between civil and criminal liability in business?

Civil liability in business arises out of the relations between a business and the people it deals with, and is governed by the laws of contract and tort. Cases against a business, for example, for breach of contract or negligence have to be taken by the people directly concerned. 
Criminal liability in business, on the other hand, involves a business committing a crime against the state, and public officials on behalf of society as a whole bring cases against a business. Criminal law applies across many business activities, and is especially important in areas such as the proper description and pricing of goods and services, and the safety of goods and services, particularly food.

  • How does tort relate to business activities?

Tort is an area of the law concerned with injuries to people or property that come about because of a breach of a duty imposed by the law rather than by some contractual arrangement between people. Individual torts include trespass, defamation, nuisance, negligence and passing off. Each tort has its own rules. 
Business activities, therefore, that involves, for example, negligence such as not properly caring for a customer or selling defective goods, involve a tort. Another example of a tort would be a business passing off another company's product as its own.

  • How does 'negligence' relate to business activity?

Negligence is a tort, meaning it is a kind of wrongful act giving rise to a civil court action, usually for damages. Business activity can give rise to negligence in many different ways, for example, through selling defective goods or defective services. To show there has been negligence a plaintiff (someone bringing a case of negligence against a company) must prove the company had a legal duty of care, was in breach of its duty, and that there was damage caused by the negligence. Damage can be death, injury, nervous shock, damage to property, or financial loss.

Elder Law FAQ
  • My parent is about to enter a nursing home. How can an attorney help me?

A Elder Law attorney is there to hold your hand and walk you through the process of having a loved one enter a nursing home. At Kaba Law Group, P.L.L.C., we are very experienced with all types of nursing home issues. The laws are always changing, and we keep abreast of all the changes. The primary benefit, in addition to having an experienced and knowledgeable attorney to answer all your questions, is that we can help you and your family do the proper planning to protect and preserve assets so that all of your loved one's money is not spent on the nursing home. There is a better way to pay for the nursing home, and we can show you what it is. Caring for a loved one should not cost the savings of a lifetime.

  • Will doing this planning effect the level of care my loved one will receive?

In nursing homes that accept Medicaid patients and private-pay patients, the level of care is identical regardless if your loved one pays for it out of his or her own money, or if Medicaid pays for it. The only difference is, how much it is going to cost you. By doing the proper planning with Kaba Law Group, P.L.L.C., Law Office, you can save your money from being depleted on nursing home costs.

  • This sounds to good to be true. Will it really work?

The government has issued a very complex set of laws, rules, regulations and procedures that specifically allow for this type of planning, but only if it is done correctly. These laws are constantly changing, and we keep abreast of every change in the law as soon as it happens. We have successfully qualified several hundreds of people for Medicaid benefits, while protecting their life savings, and the list of clients we have helped grows every day. In fact, we have never had a Medicaid application for benefits denied for any client who followed our instructions. We know how to save you and your family money. It will work for you, if you work with us.

  • How soon should I contact you for help?

The earlier we can start the planning, the more money we can save. Remember, Noah built the arc before it started raining. We see all the time where our clients will put their head in the sand and think their problems will go away. If you plan now, before your loved one has to enter the nursing home, then you not only give yourself peace of mind so that you are ready for when the time comes that a nursing home is needed, but you also can maximize your savings. Above all, do not put off dealing with the issue until it is too late. Procrastination is the greatest threat to our future and security and our loved ones.

  • My parent is already in a nursing home. Is it too late for us?

Not at all. It is almost never to late to plan, even for those already in a home. However, the earlier you begin planning with us, the better.

Estate Planning FAQ

If you suffer from an incurable disease or are involved in a debilitating accident and are unable to manage your own affairs, state law might require someone to go to court to have a conservator appointed by the court. The conservator is given the authority to make financial decisions and handle your financial affairs, under court supervision, when you lack the capacity to manage them on your own.

The conservator has to make periodic reports to the court and petition the court for additional authority under certain circumstances. Typically, the conservator may be paid for services rendered on your behalf and there will be attorney fees as well. In addition, the court will often require your conservator to purchase a "surety bond" which is a type of insurance policy, to protect the conservatorship estate. The costs and expenses of a conservatorship are paid by your estate.


Everyone gets a credit against Federal estate and gift taxes of $220,550, in 2000 and 2001, which is equivalent to transferring $675,000 tax free to your heirs. (The estate tax exemption amount increases slowly to $3.5 million in 2009; the estate tax is totally eliminated in 2010 and reinstated in 2011 at an exemption level of $1,000,000.) Those with an estate of less than $1,060,000 (in 2001) should have no fear of the generation skipping transfer tax (the GST drops back to $1,000,000 in 2002 and thereafter matches the gradual increases in estate tax exemptions in effect for the calendar year. The GST is repealed in 2010, but reinstated in 2011).

For those who are married, there is an unlimited marital deduction. All estate taxes can be avoided upon the death of the first spouse to die. But the surviving spouse would have to remarry and give his/her entire estate to the new spouse in order to get another unlimited marital deduction. Most people would rather their children or other relatives benefit from the estate, rather than a new spouse and his/her family.

An estate plan can take advantage of certain tax avoidance techniques for those who have accumulated some wealth; this gives more of your property to your intended beneficiaries, instead of giving it to the federal government. Some of these techniques include:

(1) a tax by-pass trust to hold property for your children, while still providing for your surviving spouse during his/her lifetime

(2) distribution of share in a Family Limited Partnership to take advantage of minority and lack of marketability valuation discounts

(3) a gift program to take advantage of the current $11,000 per year per person gift tax exclusion so as to prevent a greater tax in the future in the form of an estate tax

(4) an irrevocable trust to handle and manage property outside of your estate, so that the property is not part of your estate at the time of death.

Tax planning as part of estate planning can, depending on the size of one's estate, save hundreds of thousands to millions dollars - if it is done right.


In general, if you are married, your spouse is entitled to a portion of your pension if you die first. There is some cost to that, however, that usually serves to reduce the monthly retirement payments you would have received if the benefits were to be paid just during your lifetime. If you and your spouse agree, you can waive this survivor benefit protection, and/or sometimes name some other person(s) (such as a child) as your beneficiary. Consult with your plan administrator and review the plan summary carefully to find out your rights and responsibilities in this area.


Several of the following documents are typically used as part of the estate planning process:

(1) A Will, sometimes called a "Last Will and Testament" , to transfer property you hold in your name to the person(s) and/or organization(s) you want to have it. A Will also typically names someone you select to be your Personal Representative (or "Executor") to carry out your instructions and names a Guardian if you have minor children. A Will only becomes effective upon your death, and after it is admitted to probate.

(2) A "Durable Power of Attorney for Health Care" or Health Care Proxy appoints a person you designate to make decisions regarding your health care treatment in the event that you are unable to provide "informed consent".

(3) A "Living Will" or "Directive to Physicians" is an advance directive which gives doctors and hospitals your instructions regarding the nature and extent of the care you want should you suffer permanent incapacity, such as an irreversible coma.

(4) A "Durable Power of Attorney for Property" appoints a person you designate to act for you and handle financial matters should you be unable or perhaps unavailable to do so.

(5) A "Living Trust" can be used to hold legal title to and provide a mechanism to manage your property. You can select the person or persons you want -- often even yourself -- as the Trustee(s) to carry out the instructions you want in the Trust and name one or more Successor Trustees to take over if you cannot. Unlike a Will, a Trust usually becomes effective immediately, continues in force during your lifetime even in the event of your incapacity, and continues after your death. Most Trusts are "revocable" which allows the person who creates the Trust to make future changes, modifications and even to terminate it. (If the Trust is "irrevocable", changes, modifications and termination are very difficult (and sometime impossible), although such Trusts often carry some tax benefits.) Trusts also help you avoid or minimize the expenses, delays and publicity of probate.

(6) A "Family Limited Partnership" can be used to own and manage your property, in a similar manner to a Trust, but allowing additional tax planning techniques to be employed. Family Limited Partnerships are typically used for those who have large estates and thus have a need for specialized estate planning in order to minimize federal and state estate/death/inheritance taxes as well as provide elements of asset protection.