Frequently Asked Questions

General

Q. How much is my case worth?
A. This one of the most difficult questions a plaintiff’s attorney will get asked. Cases have value based on five areas assuming the liability, i.e. who was at fault, issue is clear. Plaintiff’s in personal injury cases are entitled to five areas of damages. Those areas are as follows:
A. ….. Past Medical Bills
B. ….. Future Medical Bills
C. ….. Past Lost Wage
D. ….. Lost of Earning Capacity in the Future
E. ….. Pain and Suffering
There is no tried and proven formula to determine exactly how much a case is worth and it really depends on how the evidence comes in on a case. More specifically, whether or not there are any inconsistencies in testimony, medical records and other issues which would allow the insurance company’s lawyer to take away credibility from the injured party’s case. However, based on our track record of trying cases in the state of Florida, we are generally able to come up with at least a “range of value” of cases after the attorney who is working the case has been able to get all the medical records and bills in and see how the client has finally improved or basically gotten worse since the time of the injury. Even with all that information it is very difficult for Plaintiff’s counsel to come up with an exact figure but, typically, a range of value based on our vast experience in handling these types of cases can be determined.

Q. How long will it take to bring my case to a conclusion?
A. The answer to this questions also depends on the complexity of the case. In other words, the last thing we want to do is resolve a case while our client is still healing or does not have a good understanding on what their future medical condition will be. Every plaintiff’s lawyer’s fear is to allow the client to sign a release and then find out a short period of time after letting them execute the release, that they need future surgery or have massive medical bills still facing them. With that being said, typically the average premises liability/auto case or any other type of general negligence case is resolved within from 4 to 8 months after being signed up by the firm. Naturally, that time range is subject to fluctuation depending on the facts of the case.

Q. Why do I have to pay costs in the case?
A. This firm uses the Florida Bar approved Contingency Fee Contract. That contract allows for several options. In regard to fees, it allows for 33 1/3% recovery prior to the filing of a lawsuit and an answer being filed by the defendant as well as payment of costs by the client. Typically, we are able to keep costs down to a minimum in the presuit and early litigation stage, however, as the case moves forward to trial the costs can be very extreme. This not something done by design on our part, it is just a fact of life in litigation across this country that once the insurance company gets involved in a case against the consumer, the costs run rampant. Our firm does have the resources to keep up with the insurance corporations in regard to these costs, however, ultimately they are paid by our client in the event of a recovery pursuant to the contract.

Q. Why do we have to “file suit” and what does that mean?
A. Filing suit is the actual act of filing legal papers at the courthouse. This is done only with the client’s permission after all efforts have been made to resolve the case in presuit. Over the last 7 to 8 years the insurance industry has gotten extremely aggressive in defending these cases and we find ourselves in litigation more and more.
When a case is actually filed that does not mean that you will one day be walking up the courthouse steps with one of our lawyers. However, it does mean there is a possibility and although most cases resolve before trials, there is a possibility that once your case is filed it can go to trial. However, based on our experience we are able to keep the client educated as to their options during this entire process and although our firm tries more cases than any other firm, we still resolve a large percent of our client’s case pursuant to their wishes for a variety of reasons.

Q. Will a lawyer require fees up front?
A. Paying for a lawyer in a products liability case is dependent on the merit of the case. Some lawyers will take a case on full contingency, meaning they will only receive money if you win the case and receive a settlement. Some lawyers will still bill you for expenses during the preparation and the trial of the case depending on the merit of the case.

Q. Are dog owners liable if their dogs injure another person?
A. In the past, a dog owner was only held liable if their dog had already bitten or shown that it was likely to bite a person. Now, most states hold the owner responsible regardless of whether the dog had previously shown a predisposition to bite a person.

Q. Is an oral contract legally enforceable?
A. Generally speaking an oral contract is indeed legally enforceable (although for most complicated contracts such as those in complex commercial transactions, the contractual parties usually create agreements in writing in order to avoid any dispute regarding the terms). However, certain types of contracts, for example those creating rights and obligations in and over real property, must as a matter of law be in writing to be legally enforceable.

Auto Accidents

Q. Why do we have to use my insurance company if I did nothing wrong to cause this accident?
A. Even when our client is in an accident that is based on the negligence of another person we still are able to make a claim for personal injury protection benefits, more commonly known as PIP. This is the classic “no fault” insurance that legislature designated to pay 80% of a person’s medical bills and 60% of a person’s lost wages, up to $10,000, whether they are at fault or not.
This situation can also occur when a negligent person causes an accident, and they are uninsured or underinsured and then you can make a claim provided you have paid a premium for that coverage with your insurance company. The short answer is that the client pays premium dollars for coverage in those issues and that is what it is there for when you need it.

Q. What does a “letter of protection” mean in my case?
A. In many instances people do not have insurance coverage or their PIP benefits are exhausted. When that is the situation some medical facilities and physicians are willing to take a “letter of protection.” This is a document that gives the patient the ability to keep treating without paying for the medical bills at the time of treatment. These letters of protection typically, if accepted by the facility or physician, allow the patient to keep treating and once a recovery is made, the doctor or healthcare facility is reimbursed. However, it is always made clear to the client that even with a letter of protection in their medical file they are ultimately responsible for the medical bills in the event the case does not resolve as expected.

Q. I have full coverage, why am I not covered?
A. This statement is probably the most painful one that lawyers in our firm have to answer on a day to day basis. Typically, insurance agents will give a potential consumer a quote on whatever type of coverage the consumer asks for. Full coverage can mean a variety of things but, in regards to an automobile negligence case that would entail for purposes of recovering for injuries, PIP or no-fault, medical payment benefits and un/underinsured motorist coverage. The PIP coverage applies whether or not the consumer is at fault or not, the med pay benefits can make up what the PIP does not cover, i.e. 20% of the medicals, 40% of the lost wages, and beyond if extended coverage is there, and the uninsured or underinsured motorist coverage is probably the most important. Underinsured or uninsured motorist coverage allows you to collect from your own company in the event you are injured through the negligence of somebody who has little coverage or no coverage. Typically, we are asked this “full coverage” question in instance where a client of ours has been injured by someone who has no insurance and according their sales agent, our client thought they had “full coverage.” It is unfortunate and is something we deal with on a day to day basis.

Q. Why am I responsible for my PIP deductible?
A. Legislature has deemed that in the no-fault or PIP statute that up to a $2,000 deductible is allowed by the insurance companies for sale to consumers. Although this is the largest deductible allowed, it is not mandatory. In other words, when consumers go to insurance companies to buy insurance they can elect to not have a deductible or have a deductible much smaller than a $2,000 deductible. Again, this is something that we hear extensively and it is hard for consumers to understand that in the event of an accident that is no fault of their own, the person who caused the accident has benefit of our client’s insurance premium.

Q. Will a lawyer require fees up front?
A. Paying for a lawyer in a products liability case is dependent on the merit of the case. Some lawyers will take a case on full contingency, meaning they will only receive money if you win the case and receive a settlement. Some lawyers will still bill you for expenses during the preparation and the trial of the case depending on the merit of the case.

Contractual Law

Q. Is an oral contract legally enforceable?
A. Generally speaking an oral contract is indeed legally enforceable (although for most complicated contracts such as those in complex commercial transactions, the contractual parties usually create agreements in writing in order to avoid any dispute regarding the terms). However, certain types of contracts, for example those creating rights and obligations in and over real property, must as a matter of law be in writing to be legally enforceable.

Q. Does a contract need to be in writing?
A. Generally a contract for the sale of goods may be written or verbal, but certain contracts must be in writing.

  • Under the Law of Property (Miscellaneous Provisions) Act 1989 a contract for the sale or transfer of land must be made in writing. It must include all the terms that the parties have agreed in one document and be signed by, or on behalf of, each party.
  • Cheques, bills of exchange and promissory notes must be in writing, according to the Bills of Exchange Act 1882.
  • The transfer of shares in a limited company must be made in writing.
  • Employees should be given written contracts of employment within two months of starting work, under the Employment Rights Act 1996. Failure to provide a written statement does not affect the validity of a contract of employment, but it does entitle an employee to refer the matter to an industrial tribunal.
  • A contract of guarantee must also be given in writing (for example, if someone is acting as your guarantor when you borrow money). The absence of a written contract does not make the agreement invalid, but if one of the parties wants to enforce the contract in court, the written notes or memorandum must be produced.

Q. How are damages calculated for breach of contract?
A. When one party breaches a contract, the other party (the ‘aggrieved’ party) is entitled to bring an action for damages. The level of damages will depend on the effects of the breach. If the aggrieved party has not sustained a loss, he can only claim nominal damages.
However, if he has sustained a loss as a result of the breach of contract, he is entitled to substantial damages. The amount is calculated in accordance with a set of rules, including the following:

The person who has suffered the loss (the ‘injured’ party) should be placed in the same financial position as if the contract had not been breached. This is called damages for ‘loss of bargain’. This means that if the work specified in the contract has not been completed, the damages will be calculated to meet the cost of the work being completed. If the contract relates to the sale of goods, damages can be calculated according to the ‘difference in value’. This means that if your supplier fails to deliver goods, the damages will be calculated to match the difference in value between the contract price and the market price of the goods, on the day when delivery should have occurred. See the Sale of Goods Act 1979. Tax liability is taken into account when calculating damages. The amount of tax must be deducted from a claim for damages.

Q. How can a business deal with “late payment”?
A. Under the Late Payment Act 1998, businesses have a legal right to charge interest on late payment of business debt and can pursue any claim through the courts (although they are not obliged to do so if they choose not to take this path). Once a proper claim is made against buyer, the buyer must pay the debt and interest; courts act to enforce the law when payment is still not made.
The Department of Trade and Industry (DTI) advises that the Act is designed primarily as a deterrent against any late payment and as a way in which suppliers can reinforce on their customers their credit management regime. As part of this, it is recommended by the DTI that suppliers add the following to their credit application forms, order confirmations and bills:

We understand and will exercise our statutory right to interest under the Late Payment of Commercial Debts (Interest) Act 1998 if we are not paid according to agreed credit terms.

Q. Is the retailer or manufacturer held responsible for defective products?
A. The retailer is mainly responsible for compensating buyers if goods are defective. The retailer is liable whether it was at fault or not, because it entered into a contract with the buyer when the goods were purchased.
However, a retailer can sue its immediate supplier, with which it has a contract, for breach of the implied terms in the Sale of Goods Act 1979. Your supplier can sue the next company in the chain of contracts, ultimately ending with the manufacturer, which has to accept responsibility for its defective products.
But this chain can be broken where, for example, there are reasonable exemption clauses in the contract between the retailer and the wholesaler. If this is the case, the manufacturer will escape liability and the retailer is responsible for the cost of compensation.
There are also circumstances where the retailer can take direct action against the manufacturer; these include what is known as ‘collateral contract’. This is an implied contract between the manufacturer and the consumer from, for example, advertising or a manufacturer’s guarantee.
Direct action may also be taken under the law of tort (a wrongful act) and the Consumer Protection Act 1987.

Q. What remedies are available in a breach of contract action?
A. The remedies available in a breach of contract action include:

  1. Damages, i.e. monetary compensation;
  2. Specific Performance, i.e. an order of the court compelling a party to honor his promises; and
  3. Injunction, i.e. an order of the court prohibiting a party to do certain acts.

Q. Is there a Florida law that allows me to take back an item that I purchased or cancel an agreement or contract?
A. There is a Federal law, actually, that gives you three days to cancel purchases of $25 or more made in your home or at a location that is not the seller’s regular place of business. The three day right to cancel does NOT apply to sales that are under $25 that are made entirely by mail or phone that are needed to meet an emergency, such as the sudden appearance of insects in your home that involve real estate, insurance or securities that are of automobiles sold at temporary locations, provided the seller has at least one permanent place of business that involve arts and crafts sold at fairs or other locations To cancel a sale, sign and date one copy of the cancellation form that the salesman should have given you. Then mail it to the address given for cancellation so that the envelope is post-marked before midnight of the third business day after the contract date. Remember, Saturday IS considered a business day, but Sunday is not. If you are not given cancellation forms, you can write your own cancellation letter, but it must still be post-marked before midnight of the third business day after the contract date. And for proof of mailing in both cases, send your letter CERTIFIED.

Q. What is a trademark?
A. A trademark is a word, phrase, symbol, design, or a combination thereof, which identifies and distinguishes the source of the goods of one company or party from those of another. Famous examples of trademarks include the word “Nike,” the phrase “Just do it,” and the “Swoosh” logo, which are all trademarks of Nike Corporation.
A service mark is the same as a trademark, except that it identifies and distinguishes the source of the service rather than the product. Throughout this website, the terms “mark” and “trademark” refer to both trademarks and service marks.
Owning a trademark or service mark grants the owner the exclusive right to identify their goods and/or services with that mark.

Q. How is trademark protection different from copyright and patent protection?
A. As earlier discussed, a trademark is any word, symbol, device, logo or slogan that identifies and distinguishes one product or service from another.
A copyright is a bundle of rights granted to authors of creative works such as books, websites, computer software, music, architecture, paintings and many other creative works. A copyright owner has the exclusive right to copy and sell the work and additionally has the right to perform it and make variations on it.
A patent is a right provided by the government that allows inventors to prevent another from making, selling, or using another invention that is similar in nature. Patents may be used to protect inventions, machines, devices, processes and many other things. Registering A Trademark does not practice patent law.

Defective Products

Q. What is a defective product?
A. A defective product is one that causes damage or injury to a consumer by way of a defect in the product, its labeling or marketing, and the way the product is used.

Q. What is product liability based on?
A. A successful products liability case is based on a manufacturing defect, a design defect, or inadequate warning of danger known to the manufacturer or seller.

Q. When is a manufacturer liable for injury caused by a defective product?
A. A manufacturer is liable if the design allows for an unreasonable amount of danger to consumers.

Q. Is a store that sells a defective product liable?
A. A store can be liable if they don’t take proper steps to inspect the safety of the product.

Q. What are the requirements of a successful products liability claim?
A. This will vary from state to state and relies upon the determination of whether the product was unreasonably dangerous, using the product inflicted an injury, and the injury was caused by the defect in the product. Many states require both that the product is ruled unreasonably dangerous and that the defect caused the injury.

Q. What do I do if I’m injured?
A. Contact a good products liability lawyer as soon as possible. Evidence must be gathered and secured. Many times if too much time is taken, evidence can disappear or be altered.

Q. How is evidence secured?
A. Evidence is secured by storing it under lock and key so that it can’t be altered.

Q. What damages are recoverable in a product defect case?
A. A successful products liability case entitles the injured to compensatory damages, lost time from work, and property damage resulting from the usage of the defective product. Pain and suffering, consortium and punitive damages are also available for different reasons.

Q. Who else can be responsible besides the manufacturer?
A. In addition to either the manufacturer or seller having liability for a product, any repairer of a product can also maintain liability for the product.

Q. Will a lawyer require fees up front?
A. Paying for a lawyer in a products liability case is dependent on the merit of the case. Some lawyers will take a case on full contingency, meaning they will only receive money if you win the case and receive a settlement. Some lawyers will still bill you for expenses during the preparation and the trial of the case depending on the merit of the case.

Divorce

Q. How long must I have lived in Florida prior to filing for divorce in an Florida court?
A. To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.

Q. Are there any waiting periods associated with a divorce action?
A. Yes. A final judgment of dissolution of marriage may not be entered until at least 20 days have elapsed from the date of filing the original petition for dissolution of marriage; but the court, on a showing that injustice would result from this delay, may enter a final judgment of dissolution of marriage at an earlier date.

Q. May the party filing the divorce obtain attorney fees and termporary support from the other party in appropriate situations?
A. In every proceeding for dissolution of the marriage, a party may claim alimony and suit money in the petition or by motion, and if the petition is well founded, the court shall allow a reasonable sum therefor.

Q. What is meant by “grounds for divorce”?
A. A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Florida. You must use one or more of these reasons to justify your divorce.

Q. What are the recognized grounds for divorce in Florida?
A. No judgment of dissolution of marriage shall be granted unless one of the following grounds appear, which shall be pleaded generally:

  1. The marriage is irretrievably broken.
  2. Mental incapacity of one of the parties.

Q. What does the term “spousal support” (or, “alimony”) mean?
A. “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.

Q. Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A. The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.

Q. What factors will the court consider when determining how much alimony to award to a party?
A. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. In determining a proper award of alimony or maintenance, the court shall consider all relevant factors necessary to do equity and justice between the parties.

Q. On what basis does the court decide how marital property is divided?
A. Florida is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court begins with the assumption that property should be equally divided, unless there is a justification for unequal division.

Q. Is the “separate property” of one spouse subject to being divided up?
A. The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.

Q. What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A. The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.

Q. What is child custody and visitation?
A. “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non-custodial parent’s ability to visit/spend time with the child(ren).

Q. If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A. The court has wide discretion to determine what is best for the child(ren). The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. The court may order “sole parental responsibility,” with or without visitation rights, to one parent when it is in the best interests of the minor child. The court may order rotating custody if the court finds that rotating custody will be in the best interest of the child.

Q. What is “child support”?
A. Child support is money paid by the non-custodial parent to the custodial parent in order to meet the needs of the child(ren).

Q. To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A. The Florida child support guideline amount presumptively establishes the amount the court shall order as child support in an initial proceeding for such support or in a proceeding for modification of an existing order for such support. The court may adjust the minimum child support award, or either or both parents’ share of the minimum child support award, based upon any consideration in order to achieve an equitable result.

Estate Planning

Q. What are the advantages and disadvantages of having a trust instead of a will?
A. Trusts enable the trustor to determine who receives the money, when they receive it, and what conditions must be met. The pros and cons of trusts depend on whether it is a living trust or a testamentary trust. A living trust is set up during the trustor’s life, while a testamentary trust takes effect upon the trustor’s death.
The most-touted advantage of a living trust is a substantial tax benefit to the trustor. Assets placed in an irrevocable living trust are not attributable to the trustor, although the trust itself may be taxed. Estate taxes also may be avoided. Other advantages cover both revocable and irrevocable living trusts. If a living trust covers all of the trustor’s assets, then he or she may not even need a will. Many people wish to spare their relatives from going through probate, and living trust assets are not subject to probate. Because there is no probate, survivors do not have to reveal the extent of the living trust’s assets through a public filing as happens with probate. If the trustor holds real estate in more than one state, a living trust covering that property may allow survivors to avoid probate in those states. Aside from the advantages for the survivors, a living trust can help a trustor manage his or her financial affairs because a trustee takes over the administration of the trust’s assets. Some people are particularly concerned about how their finances will be managed if they should fall ill. A living trust may provide peace of mind because a trustee can continue to manage the trust’s funds in the event the trustor becomes mentally or physically incapacitated.
The main disadvantage of a living trust is that the trustor loses some flexibility and control over his or her property and funds. Because a living trust becomes effective upon creation instead of at the trustor’s death, the assets covered by the trust start to be administered by the trustee at that time. If an individual prefers to have unrestricted control over his or her assets, or feels that he or she may want to modify an estate plan, a testamentary trust or will provides the flexibility to change terms for as long as the trustor is able.
The major advantage of a testamentary trust is that the trustor retains absolute control over his or her assets. Because a testamentary trust becomes effective only upon the trustor’s death, the trustor may make changes to its terms any time before death. For many people, retaining control of their property is an important goal that testamentary trusts help them achieve. Retaining control can have its disadvantages, though. If the trustor becomes incapacitated prior to death, the trustee cannot take charge of the trust assets in order to manage the trustor’s finances during that time. A guardianship may be required for such incapacitated trustors. Another drawback is that survivors must probate the testamentary trust.

Q. How can a person change a will?
A. If a will is valid, it is effective until it is changed, revoked, destroyed, or invalidated by the writing of a new will. Changes or additions to an otherwise acceptable will can be most easily accomplished by adding a codicil. A codicil is a document amending the original will, with equally binding effect. Therefore, a codicil must be executed in compliance with applicable law, using the same formality as the original will. Wills cannot be changed by simply crossing out existing language or adding new provisions, because those changes do not comply with the formal requirements of will execution.
Changes to an individual’s personal property may prompt a change to an existing will. To avoid frequent changes as property is acquired, a will can specify that personal property (property other than money and real estate) is to be distributed in accordance with instructions provided in a separate document. Many states provide for such a document, which can be updated as often as needed without requiring a formal codicil or revised will. A personal property instruction should be kept with the will to which it relates, and should describe each item in detail to avoid later confusion or hard feelings.
An outdated will may not achieve its original goals because its underlying assumptions have changed. Additionally, changes in probate and tax law may change the effectiveness of certain provisions. If a will is based on outmoded circumstances, for example if a chosen devisee has died or has alienated the testator, the probate period may be extended as the court determines how to construe the old provisions. Wills should be reviewed at least every two years, as well as upon major life changes such as births, deaths, marriages or divorces, and major shifts in a testator’s property. Because state law governs wills, if a testator moves to another state, the will should be reviewed for compliance with the new state’s laws.
As long as the testator is mentally competent, his or her will can be revoked entirely without replacement by a new document. A testator can revoke a will by intentionally destroying, obliterating, burning, or tearing the will. If the will was executed in multiple originals, or if additional copies exist, those should be treated in the same fashion. If a testator wants to minimize estate taxes and probate, he or she should make validly executed changes to a will or replace the will with a subsequent will, rather than completely revoking the will. If undertaken, however, the testator should have the revocation witnessed and recorded to avoid future contentions that the will is still valid, but has been lost.

Q. Is there any way a will would not be given effect after the testator’s death?
A. First, a testator should make certain his or her family and friends know that there is a will, and that it is kept in a safe, secure location known to the personal representative and other people close to the testator. If a will is not presented for probate, the estate will be distributed as intestate. There is no need to file a will with a governmental agency as long as these steps are taken (although some states allow for this procedure).
Assuming that a will is presented for probate, the testator’s survivors still may challenge it in court, although such challenges are relatively rare. Challenges cannot be founded on the will being unfair, or because a devisee did not get what he or she wanted; there must be a legal basis for the claim. Sometimes, a will challenge is based on the testator’s mental competence at the time he or she made the will. Generally, however, all the estate must show is that the testator was of sound mind and memory when the will was made, which often can be supported by testimony from the will’s witnesses. The will’s challenger bears the burden to prove otherwise. Another possible challenge asserts that the testator was subjected to fraud, coercion, or undue influence when he or she made the will; these claims usually follow the marriage of an elderly person to a much younger individual of strong personality. Ambiguities in the will’s text, and charges that the will presented for probate is a forgery or does not meet statutory requirements are other bases for will challenges.
If the court does find that the challenge is correct, it may choose either to disallow only those portions of the will that were at issue, or to throw out the entire document. If the entire will is disallowed, property either will be distributed as an intestate estate, or the court will revert to the testator’s last previous otherwise valid will, if one exists. This decision will be based on the relevant laws and the particular situation.
Certain provisions in an outdated will may be voided in probate. For example, many states provide that divorce automatically removes the ex-spouses from each other’s wills; in other states, divorce revokes the ex-spouses’ wills in their entirety. A law executed under the laws of one state may contain provisions that are not enforceable after a testator moves to another jurisdiction. Laws of this sort underline the importance of keeping wills updated and synchronized with current law.
In some cases, a person will try to make a will verbally or in his or her own handwriting. So-called oral and holographic wills have extremely limited validity in a few jurisdictions. An oral will is usually only valid if made by a person in the military or the merchant marine who is in active service at the time the will is made, and does not have time to make a written will. Therefore, an oral will should not be relied upon unless subsequently transferred into a valid written form. Holographic wills are only recognized in about twenty-five states, and many of these laws still require certain formalities such as a witnessed signature or inclusion of certain provisions. Therefore, oral and handwritten wills are to be avoided, and would-be testators should make reference to the formal statutory requirements for wills to ensure validity.

Q. What is a community property state and how does it affect estate planning?
A. Some states use a community property model to attribute ownership of the property of married individuals. The community property system of ownership segregates property an individual owned before marriage, as well as property received individually as an inheritance or gift, as that individual’s separate property. Other property gathered during the marriage, such as wages and items purchased jointly or by either spouse individually, is community property considered to be half-owned by each spouse. The important distinction of the system is that each spouse is considered to own half of the community property regardless of his or her contribution to the marital assets. Neither spouse can sell or give away part of the community property during the marriage unless the other spouse agrees. Each community property state uses certain variations on the concept, but the basics are the same. Upon death without a will, community property either goes to the surviving spouse, or in some states, the late spouse’s share is given to his or her descendants. If one spouse dies with a will, that document can dispose of separate property and his or her half of the community property, but not the surviving spouse’s half of the community property.
Nine states have a community property system: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. The remaining states and the District of Columbia use a common property system, which allows a surviving spouse to make a legal marital share claim on a portion of the late spouse’s estate, regardless of whether that property was gained prior to or during the marriage, or by what means.

Q. What are some common issues connected with nursing home care?
A. Nursing home care raises many understandable emotions and concerns. Many elderly persons worry that they will be forced to go into a nursing home. Except in emergency situations, no one can be involuntarily committed to an institution unless a court authorizes the action after a hearing. At the hearing, the court must determine whether an individual is mentally ill, unable to care for himself or herself, or a danger to himself or herself or others. A person subject to a hearing has the right to be represented by an attorney.
Another concern is how to finance a nursing home stay. Medicare only covers skilled nursing home care ordered by a doctor, involving daily skilled nursing activities or rehabilitation services that can only be provided in a residential setting. Medicare does not cover custodial care to assist with daily living tasks and needs if no skilled services are necessary. Medicaid may cover nursing home custodial care if income and asset requirements are met, but would-be residents cannot transfer their assets simply in order to qualify for this assistance. Other financing options such as state programs and reverse mortgages may be available. If a child or other relative pays for nursing home care, that person may be able to deduct the expenses on his or her taxes.
Once a person moves to a nursing home, he or she may have concerns about the level of care and the maintenance of his or her personal rights. Relatives may worry about whether their elderly family member will be comfortable and stable in the new setting. Violations of a nursing home resident’s rights are a form of elder abuse, which all states prohibit. Definitions of elder abuse most commonly include physical, psychological, and financial abuse, as well as neglect. Many states have adult protective services agencies that enforce compliance with their elder abuse laws. Violators of elder abuse laws generally are subject to criminal and financial penalties.
Once a resident has settled in, he or she cannot be moved legally without proper consent unless the resident endangers the safety or health of other residents, develops medical needs that can no longer be met by the home, recovers to the point that residential care is no longer necessary, fails to pay for services, or must leave because the facility is closing. Other rare situations may prompt a move, including a staff strike or loss of license, but in these cases alternative housing is usually provided. When a transfer is imminent, a resident must receive a thirty-day written notice citing the reason for the transfer and how to challenge the proposed change. A resident may have a right to a hearing regarding the change.
Nursing homes are highly regulated by both the state and federal governments, which require licenses, inspections, complaint procedures, and penalties for non-compliance. Residents and their families have many mechanisms for resolving disputes. The complaint procedure at the facility is a resident’s first recourse, followed by governmental watchdog organizations and regulatory agencies. Residents also can sue their nursing homes on a large number of legal grounds.

Q. What is probate and how does it work?
A. When an individual dies owning property in his or her name, that property generally must go through probate. Probate is a legal procedure that establishes ownership of property in others. The probate system is designed to ensure the validity of a will, to give notice to all possible claimants of property and to resolve ownership disputes and rights. Probate courts also distribute property not covered by a will (intestate estates) according to legal defaults. Some property does not require probate to change hands: joint tenancy property and contractual arrangements such as insurance policies and retirement accounts generally go directly to the surviving joint tenant or named beneficiary without probate oversight. Probate also is not required for assets held in trust.
The probate court first establishes whether the deceased left a valid will. If so, the probate process guides the division of property in accordance with the will’s provisions. If the estate is intestate or if a will is found to be invalid, the probate division applies state laws to divide up the estate. The probate court signs off on the final accounting of the distribution, thereby finalizing the transfers of ownership.
There are two levels of probate:

  • Informal probate covers estates that require no court supervision or adjudication due to their clear, undisputed nature and simplicity. This procedure allows the personal representative to accept full responsibility for promptly, completely, and legally probating the estate with only minimal court oversight. Typically, the personal representative can act more quickly to divide the property under this process, with the probate court giving final approval once the estate is fully distributed. Personal representatives may apply for informal probate, but should be aware of the possible legal liability for mistakes that their acceptance of the procedure involves.
  • Formal probate applies to more complex or contested estates, and involves court supervision of distribution. The probate court supervises the personal representative on each legal step he or she takes to administer the estate, adding substantial time to the process. The personal representative may post a bond to guarantee his or her performance and to protect the estate’s creditors. The court may need to hear and resolve conflicting claims to the estate assets, or even find heirs when they are not apparent. The court scrutinizes each distribution. While this procedure takes far more time, it is indispensable when disputes and complex issues are involved. Most personal representatives hire a lawyer to help them with at least some of their duties, even in informal probates. While making a will does not prevent the need for probate, a carefully drafted will minimizes the time a personal representative spends in court and speeds up the distribution of property to survivors.

Most personal representatives hire a lawyer to help them with at least some of their duties, even in informal probates. While making a will does not prevent the need for probate, a carefully drafted will minimizes the time a personal representative spends in court and speeds up the distribution of property to survivors.

Q. What are some of the tax consequences of estate planning?
A. Many state and federal tax regulations impact estate planning, but a carefully crafted estate plan can reduce the tax burden on an estate and survivors. Both state and federal rules and regulations are extremely complex, and the advice of an estate planning attorney to maximize tax savings is highly recommended, particularly if an estate is likely to be substantial.
Some states have inheritance taxes that devisees to a will must pay; recipients under a will or trust also may face state and federal income tax consequences. In 2001 Congress enacted a law that raises the exemption amount for federal estate taxes with the intent of eliminating all estate taxes by the year 2010. Until then, if an Estate’s worth exceeds the exemption amount, (which begins at $1 million in 2002 and rises to $3.5 million in the law’s last year) it must file federal tax returns, and state tax returns in most states, and may be subject to federal and state estate taxes. The federal gift tax augments estate and inheritance taxes by regulating gifts to individuals while living; gifts exceeding $11,000 per recipient per year are taxable. This provision prevents people from giving away their assets in order to avoid estate or inheritance tax.
Some gifts from a will do not require tax payments. Current federal tax laws allow testators to leave up to $1,000,000 tax-free to one or more individuals other than a surviving spouse. The surviving spouse may receive an unlimited amount without taxes; however, if the estate is quite large and the entire estate is left to the surviving spouse, that surviving spouse may lose the option of subsequently leaving the same amount to his or her chosen devisees without taxes. Estate planning specialists can assist people with potentially large estates to create trusts that may allow transfers without any or limited tax consequences.
None of these taxes form a substantial source of revenue for state or federal government. Most estates are not affected substantially by the various tax rules because they do not exceed taxable minimums.

Q. How does a trustor choose a trustee?
A. The choice of a trustee is extremely important. The trustee owes beneficiaries a fiduciary duty to act in their best interests and usually receives compensation for trust management activities, so the trustor usually wants to make this decision personally. Many trustors choose family members or close friends due to personal confidence in those individuals, but others prefer professional trustee institutions because of staff expertise. A trustor should consider the burden posed by the trust’s administration, the compensation required by a trustee, and the particular needs of the trust. If a trustee is not specified in the trust document, then a court will appoint one, possibly choosing a trustee the trustor would not have chosen freely.
A trustee can be any person or institution capable of taking legal title to property. In order to make the trustee fully effective, however, the trustee also should be able to convey property. For example, minors and certain corporate entities can receive ownership but may not pass it on. Conveying ownership is necessary when distributing the trust property.
Legally, it is not necessary to notify the trustee prior to creating a trust, but a trustee may decline his or her appointment. Therefore, the trustor should choose someone who is willing to take on the required responsibilities. It is advisable to choose an alternate trustee in the event the original choice is unable or unwilling to accept the trust obligations when the trust commences. Successor trustees are also a good idea in case a trustee resigns or is removed by court action.
Trustors may choose multiple trustees to act together in managing trusts. Co-trustees must act unanimously unless the trust expressly allows division of responsibilities. Even when responsibilities are divided, each trustee retains complete individual legal liability for the entire trust.
A trustor should avoid possible conflicts of interest when choosing a trustee. The trustee’s fiduciary responsibilities prohibit actions not in the beneficiary’s best interests under the terms of the trust. A conflict of interests may raise a concern over whether the trustee is performing up to this standard, or may make a breach of fiduciary duties more likely.
A trustor may name himself or herself as trustee during his or her life. Additionally, a trustor may name one of the trust’s beneficiaries as a trustee. The only impermissible combination is naming the same person as sole trustee and sole beneficiary, because this arrangement merges the legal ownership with the property benefits as in regular property ownership.

Q. How can a person leave property to minor children?
A. Generally, the law requires that adults manage children’s inheritances until the children turn eighteen. If a testator wants to leave property to children, it makes sense to name an adult to manage that property. Otherwise, a court will name someone to safeguard the property, a procedure that may delay speedy transfer of assets. There are several ways a will can provide for property management while heirs are underage:

  • Trusts: A will can establish a trust to handle property left to children. A trustee is named to manage the property for the children’s benefit, and distribute trust property according to the testator’s instructions. A will can either set up an individual trust for each individual child, or a pot trust that covers multiple children. The trustee usually follows instructions to spend trust funds to meet children’s needs until they come of age. When the child or youngest child covered by the trust reaches eighteen or another given age, the trust funds usually are distributed amongst the beneficiaries and the trust ends.
  • Uniform Transfers to Minors Act (UTMA) custodians: The UTMA is a law that exists in almost every state, and gives a testator the ability to choose a custodian to manage property left to a child. If at the testator’s death, the child is under eighteen, twenty-one, or twenty-five (depending on the specific version of the state UTMA law), the custodian will manage the property until the child reaches the statutory age. At that age, the child receives whatever is left of the property outright. Unlike a trust, the testator cannot change the age at which the child receives this distribution.
  • Property guardians: A will can name a property guardian for a child. At the testator’s death, if the child is still underage, the probate court will appoint the chosen guardian to manage property for the child. This option is available when a trust or UTMA custodian is not specified.

The option chosen for gifts to children will depend on the testator’s goals, the size of the intended gift, and the age and character of the children.

Q. What are some of the fiduciary responsibilities owed by a trustee to the beneficiaries?
A. The trustee has several major duties:

  • Loyalty: The greatest duty is for the trustee to be loyal to the beneficiaries. The trustee must administer the trust solely for the benefit of the beneficiaries, and provide full disclosure of his or her dealings. The trustee must deal fairly with the beneficiaries, and not manage the trust to profit his or her own financial interests (i.e., by buying stock in a company the trustee owns).
  • Administration: The trustee has a positive obligation to do what is necessary for the good of the trust.
  • Productivity: If the purpose of the trust is to maximize assets over time, the trustee owes a duty to make productive investments.
  • Earmark: The trustee must keep trust assets separate from all other assets, including those of the trustee, and must clearly identify those assets belonging to the trust in all dealings.
  • Account: The trustee must provide financial statements regarding the state of the trust.
  • Nondelegation: Because the trustee holds legal title, only the trustee may manage the trust.
  • Diversification: If the trust involves investment of assets, the trustee must diversify the trust’s holdings as a prudent investor would do with his or her own money.
  • Impartiality: The trustee must act for the benefit of the trust as a whole, and not favor one beneficiary’s interests over another’s.

If a trustee breaches his or her duties under the trust, the beneficiaries may sue him or her for any damages to their interests.

Q. LEARN MORE: ESTATE PLANNING
A. Planning for the future raises complicated worries and even fears about the unknown. Often, emotions run high when people contemplate the distribution of their possessions after death. However, estate planning includes more than deciding “who gets what.” A good estate plan provides a sense of security and comfort that one’s desires about many future contingencies will be met. Estate planning not only defines a person’s wishes to be carried out after death regarding his or her estate (all the property owned), but also sets out the means for personal well being far into the future. To reach this goal, estate planning encompasses several connected legal areas and techniques.
Elder law is defined by the client rather than by specific legal distinctions. Elder law attorneys specialize in the legal issues facing older people, which may include issues almost as diverse as the entire legal spectrum. The main issues addressed, however, involve advance planning. As they age, many people become concerned about distributing their estates, establishing alternative decision makers in case of mental or physical incapacity, investigating possible long-term care needs (including the type of care and how to finance it), and otherwise ensuring a comfortable retirement. Often, people seek legal techniques for achieving these goals.
Guardianships and conservatorships are established for people who need representatives to oversee their own personal affairs or finances. A child or a person incapacitated by health problems may come under the care of a legal guardian or conservator. This relationship is often established by court order when a child loses a caregiver or an adult becomes unable to deal with personal affairs, but in some instances a guardian may be elected in a will or by the individual directly concerned. Often an individual has both a guardian and a conservator, and the two must coordinate their efforts to give the protected person the best result.
Living will is the popular name for a document providing advance directives on an individual’s health care preferences in case of terminal illness or permanent unconsciousness. Many people hold strong opinions about heroic measures and life-support machines, and living wills offer an opportunity to formalize their wishes. Laws on living wills vary widely from state to state, so it is important to comply with local laws to ensure one’s preferences will be honored.
A power of attorney and a power of appointment allow someone to select an individual for responsibilities or benefits. A power of attorney allows a person to appoint another (called the attorney-in-fact, although the person is not required to be an attorney at law) to act as his or her agent in specified situations. For example, an elderly person may delegate all the powers and responsibilities of a guardian and conservator to a designated individual, using a power of attorney, so that if the person becomes incapacitated the attorney-in-fact quickly can begin making decisions. In contrast, a power of appointment is an individual’s ability to designate an owner or recipient of property. For example, in a will or trust, the owner of property can appoint another to manage or distribute property; the designated person has a power of appointment to choose who receives what property from the will or trust.
Trusts include a variety of arrangements in which a property owner (the grantor or trustor) separates the benefits from the burdens of ownership and gives them to different people. The owner of a vacation cabin enjoys the ready get-away, but must pay for its upkeep; if the cabin is put in trust, the trustee manages any repairs and financial obligations for the property, while the beneficiary receives the benefit of its use. A grantor may choose a trust in order to ensure a continuing benefit to the beneficiary as opposed to making a one-time gift. Additionally, a trust may provide tax benefits to the grantor or to his or her estate.
A will is a legal document specifying how a person’s property and assets should be handled after death. A testator (the person making the will) can give instructions on how the property should be divided, who should receive what portions or specific items, and even who will take care of any surviving minor children. A will can establish a trust or make gifts to charity. Without a will, the government determines how property will be distributed, and may impose a substantial tax burden on the estate. Wills must meet state legal requirements to be effective, so professional guidance is important.

Insurance Disputes

Q. I have full coverage, why am I not covered?
A. This statement is probably the most painful one that lawyers in our firm have to answer on a day to day basis. Typically, insurance agents will give a potential consumer a quote on whatever type of coverage the consumer asks for. Full coverage can mean a variety of things but, in regards to an automobile negligence case that would entail for purposes of recovering for injuries, PIP or no-fault, medical payment benefits and un/underinsured motorist coverage. The PIP coverage applies whether or not the consumer is at fault or not, the med pay benefits can make up what the PIP does not cover, i.e. 20% of the medicals, 40% of the lost wages, and beyond if extended coverage is there, and the uninsured or underinsured motorist coverage is probably the most important. Underinsured or uninsured motorist coverage allows you to collect from your own company in the event you are injured through the negligence of somebody who has little coverage or no coverage. Typically, we are asked this “full coverage” question in instance where a client of ours has been injured by someone who has no insurance and according their sales agent, our client thought they had “full coverage.” It is unfortunate and is something we deal with on a day to day basis.

Q. Will a lawyer require fees up front?
A. Paying for a lawyer in a products liability case is dependent on the merit of the case. Some lawyers will take a case on full contingency, meaning they will only receive money if you win the case and receive a settlement. Some lawyers will still bill you for expenses during the preparation and the trial of the case depending on the merit of the case.

Q. How long will a lawsuit against my insurance company take?
A. The time involved varies greatly from case to case. Very often, the insurance carrier offers to pay the benefits owed shortly after they receive the lawsuit. Other times, they hire an attorney to defend them which usually results in delays as the case proceeds through the litigation process. Generally speaking, a lawsuit of this type can take anywhere from 90 days to several years to resolve. We try whenever possible to obtain a trial date for our clients within 12 months of the date the suit is filed.

Q. How does Gallese Law, P.A. get paid?
A. Our legal fee usually amounts to 40% of the total amount of benefits we recover from your insurance company on your behalf. In most cases, however, we are able to require the insurance company to pay our legal fee in addition to also paying your benefits. If the amount of the court ordered fee equals or exceeds the contingency fee, than you receive all of your benefits without any portion being deducted for legal expenses.

Q. My insurance company keeps asking for more information. Should I give it to them?
A. Virtually all insurance policies contain a “cooperation clause”. This means that you must comply with all reasonable requests made by your insurance carrier. This does not mean, however, that you should endlessly continue to forward information to the company. We strongly recommend that you consult with an attorney at the first indication you receive that your claim is not being paid in a timely manner by the company. The initial consultation with our firm is always free.

Q. If I can’t find a copy of my insurance policy do I still have a claim?
A. Yes. Although reviewing your policy is a very important part of our evaluation process, we can get a copy of the policy directly from the company if you cannot locate your copy. If you were never provided with a copy of your policy, please let us know as that is relevant in determining what defenses an insurance company may be able to assert in litigation.

Q. Should I continue to pay my insurance premium even after the company has denied my claim?
A. It really depends on the type of policy you have and the reason the carrier has denied your claim. Although it appears unjust to require you to continue to pay premiums to a company who has refused to honor your claim, sometimes it is in your best interest to do so. Our attorneys will review your policy at the initial consultation and advise you as to whether to continue payment of the premiums.

Personal Injury

 

Q.What does a “letter of protection” mean in my case?

A.In many instances people do not have insurance coverage or their PIP benefits are exhausted. When that is the situation some medical facilities and physicians are willing to take a “letter of protection.” This is a document that gives the patient the ability to keep treating without paying for the medical bills at the time of treatment. These letters of protection typically, if accepted by the facility or physician, allow the patient to keep treating and once a recovery is made, the doctor or healthcare facility is reimbursed. However, it is always made clear to the client that even with a letter of protection in their medical file they are ultimately responsible for the medical bills in the event the case does not resolve as expected.

Q.What is MMI and a permanent impairment rating?

A.When treating with a doctor eventually we request a final narrative at the conclusion of your treatment. When we speak of conclusion of treatment, it means that when the treating physician has decided you are at MMI. This is an acronym for maximum medical improvement and simply means you are as good as you are going to get. That is not to say you are as good as you were before the accident, but your condition is stabilized and you have a loss. It is at that point that some doctors assign, and insurance companies request, a permanent impairment rating. This is generally done pursuant to AMA guidelines. Although it is technically not called for as a basis at trial in an automobile case, many automobile issuance companies like to have the impairment rating so they can evaluate the case.

Q.Will a lawyer require fees up front?

A.Paying for a lawyer in a products liability case is dependent on the merit of the case. Some lawyers will take a case on full contingency, meaning they will only receive money if you win the case and receive a settlement. Some lawyers will still bill you for expenses during the preparation and the trial of the case depending on the merit of the case.

Q.Are dog owners liable if their dogs injure another person?

A.In the past, a dog owner was only held liable if their dog had already bitten or shown that it was likely to bite a person. Now, most states hold the owner responsible regardless of whether the dog had previously shown a predisposition to bite a person.

 

Q. What does a “letter of protection” mean in my case?
A. In many instances people do not have insurance coverage or their PIP benefits are exhausted. When that is the situation some medical facilities and physicians are willing to take a “letter of protection.” This is a document that gives the patient the ability to keep treating without paying for the medical bills at the time of treatment. These letters of protection typically, if accepted by the facility or physician, allow the patient to keep treating and once a recovery is made, the doctor or healthcare facility is reimbursed. However, it is always made clear to the client that even with a letter of protection in their medical file they are ultimately responsible for the medical bills in the event the case does not resolve as expected.

Q. What is MMI and a permanent impairment rating?
A. When treating with a doctor eventually we request a final narrative at the conclusion of your treatment. When we speak of conclusion of treatment, it means that when the treating physician has decided you are at MMI. This is an acronym for maximum medical improvement and simply means you are as good as you are going to get. That is not to say you are as good as you were before the accident, but your condition is stabilized and you have a loss. It is at that point that some doctors assign, and insurance companies request, a permanent impairment rating. This is generally done pursuant to AMA guidelines. Although it is technically not called for as a basis at trial in an automobile case, many automobile issuance companies like to have the impairment rating so they can evaluate the case.

Q. Will a lawyer require fees up front?
A. Paying for a lawyer in a products liability case is dependent on the merit of the case. Some lawyers will take a case on full contingency, meaning they will only receive money if you win the case and receive a settlement. Some lawyers will still bill you for expenses during the preparation and the trial of the case depending on the merit of the case.

Q. Are dog owners liable if their dogs injure another person?
A. In the past, a dog owner was only held liable if their dog had already bitten or shown that it was likely to bite a person. Now, most states hold the owner responsible regardless of whether the dog had previously shown a predisposition to bite a person.

 

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