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Author Archives: Patrick Curry

Things to do in your Will

You should do these four things:

1.NAME THE RIGHT EXECUTOR

People can be convinced their siblings are stealing from an estate. Just as common are executors who drag their heels or who ghost the family entirely, refusing to deal with the necessary paperwork or even respond to emails and calls.

People often name executors based on family hierarchy (the oldest child, the only male) or personal relationships (the spouse, the best friend), rather than considering the skills needed for the job, estate planning attorneys say. The person tasked with settling an estate should be responsible, organized and scrupulously ethical.

If you can not name a trusted family member, then it is often recommend that clients consider appointing a corporate trustee or a professional fiduciary as their executor. Many banks have trust departments that provide trustees for larger estates, typically those worth over $500,000, while professional fiduciaries often serve smaller estates.

2. INCLUDE PERSONAL PROPERTY

Some of the littlest things — a childhood toy, a holiday decoration, a piece of costume jewelry — can trigger the biggest family fights. Anything with sentimental or emotional attachments can stir up old rivalries and lead to lifelong rifts.

“’It can be ‘Mom always wanted me to have that’ or ‘Mom always wanted you to have that, and it bugs the heck out of me,’”

Clients should ask their kids what they want and make decisions now about who gets what. They should make a list, update it as needed and keep it with their wills or other estate documents. If people avoid this discussion because they’re afraid of conflict, they should imagine the battles to come when the parents are no longer around to mediate.

As a final bid to keep the peace, or at least remind kids to value relationships over things, it is suggested adding a clause to the will that directs the executor to sell any disputed item if the heirs can’t agree on who gets it.

3. DON’T TIE UP THE MONEY FOR TOO LONG

People can, and should, make sure their surviving spouses are adequately provided for. It’s also unwise to dump a large amount of money on someone too young to handle it. But estate provisions that tie money up for decades may also be a mistake.

For example, people with larger estates often create trusts that allow the children to inherit only after the surviving spouse dies. But if Dad’s new wife is closer to the kids’ age than his own, that could be a long, resentment-filled wait.

Another common estate provision is to dole inheritance out over several years, for example with a chunk at 21 and another at 25, with the balance paid out at 30. But some people use such provisions to drag the distribution out over decades or try to restrict what middle-age children do with the money.

“Children often find these provisions to be an indictment by the parents and a statement that they do not trust them with their inheritance,”.

4. EXPLAIN ANY UNEQUAL BEQUESTS

Parents usually think they have good reasons for leaving one child more than others. Perhaps one child is not as financially successful, or was more attentive in the parents’ final years. But unequal bequests often feel unfair to those left behind.

Parents who aren’t planning to make equal distributions should schedule a family meeting and explain their thinking to their kids. Those discussions may not be comfortable, but hearing the explanations directly from the parents can help keep the kids from blaming one another later.

Don’t create family fights after you are gone.

Probate or Living Trust? Can Probate be Avoided?

Probate? The most estates go to probate. It doesn’t matter whether you have a will or skipped that important step in end-of-life planning. Either way, your heirs may need to go to court before your estate assets are disbursed.

The difference is that with a will, an executor you name will distribute assets according to your wishes. Without one, the court will designate an administrator who will divide your assets according to provisions of the law. You need a will or a living trust.

Avoiding probate. For those who want to avoid probate, there are several options to bypass the system. The first is to make heirs co-owners on bank accounts and other assets. In theory, this sounds good because heirs can simply remove the name of the deceased and then split the account balance without going to court. In reality, these setups can result in one heir legally running off with all the money. This can work if you only have one heir. But Beware.

Transfer on death provisions on deeds and accounts are another way people can avoid probate. The main risk with these provisions is someone dying out of order – such as a child preceding a parent. What’s more, if an asset is transferred to a minor, probate may have to be opened.

Rather than trying one of these options, One way to avoid probate is to set up a revocable trust(Living Trust) and transfer assets there. Upon death, the trust via successor trustee can then disburse assets to heirs without having to go to probate court first. This Living Trust is much more expensive than a will.

Probate litigation is the real problem. This is where family members sue in Probate Court because they don’t like the will or trust.

Don’t put your faith in a no-contest clause to the will. This language stipulates that anyone who legally challenges the will loses their bequest. This clause is easily sidestepped.

Communication from you may prevent family litigation from undoing all your hard work and your after death wishes. Tell the heirs what you want and why.

The Process of a Personal Injury Lawsuit

The Legal Process of a Lawsuit.

If you’ve been injured at no fault of your own, you may have already begun the process of negotiating a settlement of a personal injury lawsuit with the insurance company of the at-fault party. Ideally, you have the help of a skilled personal injury attorney – someone who understands the negotiating tactics of insurance companies and the personal injury claims process more broadly. Very often, insurance companies will try to low ball you at the outset, leading you to believe that their offer is fair.

The Benefits of Hiring a Personal Injury Attorney
It’s even better if you hire an attorney who has experience as a successful litigator. The insurance company will be more willing to offer a high settlement if the adjuster knows the case could be argued in court. They’ll usually try to keep away from litigation when possible because they don’t want to pay the associated fees.

Writing the Complaint
If your initial negotiations fail to produce adequate results, a skilled litigator will be filing a lawsuit, which can be a pretty complicated affair. First, your attorney will write up the initial complaint, which informs the involved parties of the time and place of the injury, the details of the injury and treatment, and the expected compensation for damages, which might include medical expenses, lost income or pain and suffering.

Filing the Complaint
Next, your attorney can file the complaint with the court. A seasoned attorney will understand the particularities of the filing process in your county, thus removing the burden of having to know the many deadlines and limitations.

Response
After your attorney has filed the complaint, the defendant usually has to respond to the allegations, either accepting or denying the various points enumerated in the document. In many cases, defendants refuse to accept liability.

Statute of Limitations
Remember, there may be a statute of limitations associated with your claim. Your attorney should be able to inform you of the time limits to file your case. For this reason, it’s generally a good idea to retain an attorney sooner rather than later, so you don’t miss the boat on your compensation.

Discovery
Once the complaint and summons have been served, both parties can initiate what is known as the discovery process, during which the defendant and plaintiff can gather pertinent evidence either supporting or refuting the claims. Evidence might include eyewitness and expert testimony, medical records, income statements, investigative reports, photos and any other documents that are relevant to the claims in question. Both parties may also have to submit depositions that narrate the events surrounding the injury.

Pretrial Settlement
In most cases, the claims are settled out-of-court. In fact, 95 percent of tort claims end in pretrial settlements, leaving a mere 5 percent to be argued in court. Settlements can occur in either mediated settings or by the attorney and the other side. Both the plaintiff and the defendant will most likely want to stay out of a proper trial due to the immense amount of resources that such an affair entails.

Arguing a Case
If your case does go to court, your lawyer will have to thoroughly prepare for trial, which is generally delivered before a jury. The defendant may choose to cut the trial short by offering a settlement. If not, the jury (or a trial judge) will issue a verdict, either in favor of the defendant or the plaintiff. If the jury finds in favor of the plaintiff, it will also determine the amount of compensation granted to the injured party. That compensation may or may not includes any court-related fees or costs such as jury fees, filing fees, etc.

It is always a good idea to have a knowledgeable attorney by your side. Without legal representation, it will be difficult to recover maximum compensation for your injuries, much less go through the rigmarole of filing a lawsuit.