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Monday, October 16, 2017

What are Letters Testamentary?

An individual who has been named as a personal representative or executor in a will has a number of important duties. These include gathering the deceased person's property and transferring it to the beneficiaries through a court-supervised process known as probate. In order to initiate this proceeding, the executor must first obtain what are referred to as letters testamentary. This document gives the executor the legal authority to administer the deceased person's estate.


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Thursday, September 14, 2017

How to Negotiate a Commercial Real Estate Lease

There are number of considerations for business owners involved in negotiating a commercial lease, not the least of which is the fact that the main objective of landlords is to maximize profits. By understanding the following fundamental concepts, it is possible to make a good deal.


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Wednesday, August 16, 2017

The Benefits of Incorporating in Safe Haven States

Many business owners believe it's best to incorporate in their home state, but there are often business and tax advantages available in other states. In particular, Delaware and Nevada are attractive to those who are looking to form a corporation. These so-called corporate haven states are considered to be business friendly.


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Monday, July 17, 2017

Things to Consider Establishing a Charitable Giving Plan

For many individuals, leaving a legacy of charity is an important component of estate planning, but there are many factors involved in creating a charitable giving plan.

First, it is important to select causes that you believe in such as environmental, educational, religious or medical, or those dedicated to providing food and shelter to the poor. The number of charities you wish to give to depends on your available resources, as well as other beneficiaries of your estate. Many people opt to limit their selections to a handful of charities that are most important to them.

Once charities have been selected, it is crucial to do some homework to make sure the charities are legitimate, and that your gift will be used for the intended purpose, rather than to pay salaries or administrative costs. A good place to start is with the charity's website, and there are many publicly available resources that evaluate charities.

Further, it is important to be realistic about how much of our assets can be dedicated to gift giving, and how those donations should be allocated to the designated charities. Proceeds can either be divided equally, or more money can be provided to the charity you deem most worthy.

Lastly, it is important to avoid the common mistakes many make when planning charitable gifts. It is crucial to ensure that you are donating to a legitimate charity by thoroughly evaluating the agency. In addition, your gift should not be overly restricted since this could make it difficult for the charity to use.If your assets are in stocks, they should not be sold and the profits donated, rather the stocks should be gifted directly to the charity.  

In sum, your gift needs to be helpful to the charity, but also take advantage of tax benefits to which you may be entitled, and these objectives can be achieved by establishing a trust. For example, a charitable remainder trust is one into which property is transferred with a charity named as the final beneficiary. In this arrangement, another individual receives income from the trust for a set period of time and then the remainder is given to the charity. In the end, if your objective is to become a sophisticated donor, it is essential to engage the services of an experienced trusts and estates attorney.


Monday, June 12, 2017

What if more than one party is responsible for my injuries?

 

If you were injured in an accident, it may be possible to hold another individual accountable by pursuing a personal injury lawsuit. In some cases, however, more than one person may be responsible for your injuries. In these circumstances you may still be compensated under the doctrine of comparative fault: the allocation of responsibility under the theories of contributory and comparative negligence.

Contributory Negligence

In the few states that still rely on the contributory negligence approach, individuals have a duty to act reasonably and not put one's self at risk of injury. This means that if a plaintiff is even partially responsible for the accident, he or she may be barred from recovering damages. This often leads to unfair outcomes because plaintiffs are punished for having any degree of fault.

Comparative Negligence

Today, most states have adopted the comparative negligence approach which allows a plaintiff to recover damages even if he or she is partially at fault for the accident. There are three types of comparative negligence: pure, modified and slight/gross comparative negligence.

Under the pure comparative negligence approach, the plaintiff's damages are reduced by the percentage of his or her fault. A more common approach is modified comparative negligence in which the plaintiff cannot recover damages if he or she is equally or more responsible for the damages. This means that the plaintiff cannot be more than 50 percent (51 percent in some states) at fault in order to recover damages. Lastly, under the slight/gross comparative negligence approach, the plaintiff will only recover damages if he or she is slightly at fault.

The Takeaway

Ultimately, comparative negligence claims lead to more just results since all of the parties involved are allocated a percentage of fault, allowing the plaintiff to be made whole for his or her injuries. Although most states have adopted this approach, proving negligence can still be complicated, and it is crucial to know which theory applies in your state. For this reason, if you are injured in an accident, you should speak to an experienced personal injury attorney today.

 


Monday, May 15, 2017

Common Types of Will Contests

The most basic estate planning tool is a will which establishes how an individual's property will be distributed and names beneficiaries to receive those assets. Unfortunately, there are circumstances when disputes arise among surviving family members that can lead to a will contest. This is a court proceeding in which the validity of the will is challenged.

In order to have standing to bring a will contest, a party must have a legitimate interest in the estate. Although the law in this regard varies from state to state, the proceeding can be brought by heirs, beneficiaries, and others who stand to inherit. While these disputes are often the result of changes to the distribution plan from a prior will, some common types of will contests are as follows.

Lack of testamentary capacity

The testator, that is the person making the will, must have the mental capacity and be of sound mind at the time the will is executed , modified or revoked. Further, being of sound mind means that the testator knows what property he or she owns and understands the effect of executing the will. Although these are considered to be low standards, claims that the deceased lacked the mental capacity when the will was executed are common.

Undue influence

If the deceased was coerced into executing the will, it may be considered invalid. In order to ensure that the testator is not subjected to undue influence, the will should be prepared by an attorney. Moreover, heirs and beneficiaries should not take part in meetings and discussions between the testator and his or her attorney.

Will improperly executed

There are certain formalities that must be followed in order for a will to be considered validly executed. While some states require a notarized signature, others insist on a certain number of witnesses being present when the will is executed. If these formalities are not strictly followed, the will may be found to be improperly executed.

Fraud

A will can also be considered invalid if a person is intentionally deceived when preparing and executing the document.

The Takeaway

If a will is successfully contested, it can be declared invalid by the court. This means that the assets will be distributed either according to the terms of a prior will or if no such will exists, the state's intestacy rules. Ultimately, engaging the services of an experienced estate planning an attorney can minimize the risk of a will contest.


Monday, April 17, 2017

Why Your Business Needs an Email Policy

In the contemporary workplace, email is an essential and efficient form of communication. Whether it's used internally among staff members, or for exchanges with vendors and customers, email is a necessary business tool. At the same time, misuse of this technology can expose an organization to legal and reputational risks as well as security breaches. For this reason, it is crucial to put a formal email policy in place.

First, an email policy should clarify whether you intend to monitor email usage. It is also necessary to establish what is acceptable use of the system, whether personal emails are permissible, and the type of content that is appropriate. In this regard, the policy should prohibit any communication that may be  considered harassment or discrimination such as lewd or racist jokes. In addition, the email policy should expressly state how confidential information should be shared in order to protect the business' intellectual property.

By having employees read and sign the email policy, a business can protect itself from liability if a message with inappropriate content is transmitted. Further, it personal emails are not permitted, employees are more likely to conduct themselves in a professional manner. Because personal emails tend to be more informal and unprofessional, these messages pose a risk to the company's image if they are accidentally sent to customers. Lastly, email that is used for non-business reasons is a distraction that can adversely affect productivity.

The Takeaway

In order for a policy to be effective, it is necessary to provide training to all the employees, enforce it consistently and implement a monitoring system to detect misuse of the email system. Ultimately, establishing formal email policy and providing it to all employees will ensure a business remains productive and efficient. If an employee violates the policy, a company will also have the ability to take disciplinary action. Lastly, a well designed policy will ensure the company's image and brand is protected.


Monday, March 13, 2017

Can You Sue City Hall?

Many individuals mistakenly believe that they cannot sue city hall, but this is not the case. Under the doctrine of sovereign immunity, town, city, county and state governments were once protected from most lawsuits. Today, those rules have been scaled back to some extent, and the government can be held responsible for personal injuries and property damage or unlawful conduct. Let's take a look at personal injury and other lawsuits that can be brought against government entities.

There are a number of ways the government can be held liable for accidents and injuries. For example an individual who is injured in a slip and fall accident at a government office or facility may have grounds for a premises liability lawsuit. Similarly, a motorist or passenger who is injured in an accident with a government owned truck or car, or a motor vehicle being driven by a government employee or contractor while conducting official business, can bring a personal injury lawsuit.

In an addition, an employment lawsuit can be brought by a government employee for harassment, discrimination or wrongful termination against his or her government employer. Finally, law enforcement agencies can be sued for a wide range of civil rights violations.

In short, there are a number of legal claims that can be brought against the government. It is important to note that there are differences between suing the government and suing a private person or business.

For example, the time period to bring a personal injury claim against the government , referred to as the statute of limitations, is typically much shorter.  Further, before filing a lawsuit, it is also necessary to provide a Notice of Claim to the government, agency, or employee within a set time period notifying them that a lawsuit will be brought. Lastly, many states require individuals to file an administrative claim with a government agency before filing a civil case in court.

In the end, it is possible to sue city hall, so to speak, but there are a number of hurdles that need to be crossed. Moreover, some governments may still be immune from certain injury claims, depending on the state in which you live. If you were injured due to the negligent or illegal conduct of a government entity or employee, you should speak to an experienced attorney.


Monday, February 13, 2017

Responsibilities and Obligations of the Executor/ Administrator

When a person dies with a will in place, an executor is named as the responsible individual for winding down the decedent's affairs. In situations in which a will has not been prepared, the probate court will appoint an administrator. Whether you have been named  as an executor or administrator, the role comes with certain responsibilities including taking charge of the decedent's assets, notifying beneficiaries and creditors, paying the estate's debts and distributing the property to the beneficiaries.

In some cases, an executor may also be a beneficiary of the will, however he or she must act fairly and in accordance with the provisions of the will. An executor is specifically responsible for:

  • Finding a copy of the will and filing it with the appropriate state court

  • Informing third parties, such as banks and other account holders, of the person’s death

  • Locating assets and identifying debts

  • Providing the court with an inventory of these assets and debts

  • Maintaining any assets until they are disposed of

  • Disposing of assets either through distribution or sale

  • Satisfying any debts

  • Appearing in court on behalf of the estate

Depending on the size of the estate and the way in which the decedent's assets were titled, the will may need to be probated. If the estate must go through s probate proceeding, the executor must file with the court to probate the will and be appointed as the estate's legal representative.

By doing so, the executor can then pay all of the decedent's outstanding debts and distribute the property to the beneficiaries according to the terms of the will. The executor is also is also responsible for filing all federal and state tax returns for the deceased person as well as estate taxes, if any. Lastly, an executor may be entitled to compensation for the time he or she served the estate. If the court names an administrator, this individual will have similar responsibilities.

In the end, being name an executor or appointed as an administrator ultimately means supporting the overall goal of distributing the estate assets according to wishes of the deceased or state law. In either case, an experienced probate or estate planning attorney can help you carry out these duties.


Monday, January 16, 2017

Insurance Bad Faith


If you or a loved one is injured in an accident you may be entitled to compensation which usually means dealing with an insurance company. Although insurers have an advantage because they have teams of attorneys and experts, the law requires insurance companies to treat claimants and policyholders fairly. While there may be legitimate reasons to deny a claim, an insurer that fails to engage in good faith and fair dealing may be held liable for bad faith.

What is bad faith?

Bad faith is a legal term for an insurer denying a claim without a reasonable basis. In first party insurance situations, bad faith arises when an insurance company denies a claim without a valid reason.
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Monday, December 12, 2016

How to calculate estate tax


In order to predict how much your estate will have to pay in taxes, one must first determine the value of the estate. To determine this, many assets might have to be appraised at fair market value. The estate includes all assets including real estate, cash, securities, stocks, bonds, business interests, loans receivable, furnishings, jewelry, and other valuables.

Once your net worth is established, you can subtract liabilities like mortgages, credit cards, other legitimate debts, funeral expenses, medical bills, and the administrative cost to settle your estate including attorney, accounting and appraisal fees, storage and shipping fees, insurances, and court fees. The administrative expenses will likely total roughly 5% of the total estate.
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