Factors to Consider Prior to Disinheriting a Child

In the United States, you are not able to disinherit your spouse unless your spouse has agreed to it in a prenuptial agreement or a postnuptial agreement. However, in every state, except for Louisiana, you are able to disinherit your children under some circumstances.

Louisiana law states that you are not able to disinherit a child that is under 23 year old, or any children no matter how old that are permanently unable to take care of themselves or manage their finances at the time of the decedent’s death, due to a physical infirmity or mental incapacity.

Movies and television shows have glorified the notion of disinheritance. A child under threat of, or having been cut off from their inheritance is a common plot used in entertainment. However, in real life, the act of disinheriting a loved one should be taken extremely seriously and thought about carefully.

Disinheritance is a financial and emotional decision. It could start when a grandparent or parent decides to end financial support to an adult child or grandchild. It could also be caused by a child or grandchild receiving a lifetime of financial support which caused a disadvantage to others.

There are a few things to consider when deciding to disinherit a child or relative:

 

  • A trust can be used to control the inheritance.
    If the reason you are considering disinheriting your child or loved one is because you believe they will spend all of your money quickly or will decide not to work anymore, you can leave them an inheritance that comes with requirements. This can be done by creating a lifetime trust for the benefit of the heir and then provide the trustee instructions on when and how the heir can receive distributions. These requirements could include not using drugs and alcohol, graduating from college, or working a full-time job. However, these requirements cannot include requirements that are against public policy, for instance, practicing a religion or divorcing their spouse.
  • If you choose to disinherit your child or relative, you can give your child, spouse, or another relative a power of appointment.
    By giving someone the power of appointment, you are allowing them to “re-inherit” the person you chose to disinherit. You would need to give the beneficiary of the lifetime trust a power of appointment that can be used for the process of re-inheriting the person you had chosen to disinherit.
  • Make it clear in your will or trust that you will be disinheriting someone.
    It could make sense to some to completely leave out someone from your will if you choose to disinherit them, however, you should specifically state in your will that you are disinheriting them. By having it written out clearly, it will discourage a will contest.
  • Make sure to be aware of your beneficiary designations and to update them if it is needed.
    Since disinheriting someone is often an emotional decision, the beneficiary designation for IRAs and 401(k)s are often overlooked. If you end up deciding to disinherit your child or relative, it is important to ensure your assets are properly titled and your beneficiary designations are updated.

 

 

Breach of Contract: Remedies

Contract lawThere are five main remedies to breach of contract. They are money damages, restitution, rescission, reformation, and specific performance. Each of these remedies will have different uses, outcomes, and benefits in a breach of contract case. Some will benefit certain cases more than others and cannot always be deployed equally. The remedy that is being sought must be demanded in the complaint.

Money damages means you are awarded some amount of money as compensation for losses due to the breach of contract. This means that if you paid someone to paint your fence and they stopped, you would be awarded damages on the lost fence payment due to the contract breach. You may be able to seek more money damages if you did things like advertise for more needed services to hire another painter or other replacement employee or service. There can also be an award of damages for a lost opportunity to enter another contract because of taking the current contract. Those damages are rarely obtained, but should always be pursued.

Restitution exists to place the plaintiff in the position of being as if they had never entered the contract. If someone had painted your fence poorly and you needed it repainted you could be entitled to restitution.

Rescission means a contract will either be terminated when someone is terminated or the contract is unmade between parties. The contract will be undone as far back as possible to bring the party into a state of being when they were not in the contract at all. Rescission can also be employed when contracts are fraudulently misrepresented or while under duress. If you entered into a contract for fence painting, only to find out the painter lied about the painter’s experience, you may be able to seek restitution. This makes both parties the closest they’ll be to the state they were before the contract, or status quo ante.

Reformation is a type of equitable remedy where the contract is rewritten or “reformed” so that the contract now better expresses the intentions of the parties. The reformation exists to remedy the breach and allow the parties to continue working together in the future under better conditions for all parties involved. This situation would be if you hired someone to paint your fence, but didn’t specify how long they should work per day or how many days a week they should work. You can seek to reform the contract to say, for example, that you need seven hours a day with at least 4 days a week. All parties involved can now move forward with a more clear understanding of the needs and demands of the contract and those involved.

Specific performance means that someone is ordered by the court to finish their service as promised. An example of specific performance would be if someone was hired to paint a fence and then stopped, they’d be court ordered to finish the fence. Other than in certain types of transactions (particularly real estate), specific performance is a more difficult remedy.

Breaches of contract can result in more than just monetary damages. The type of breach of contract remedy depends on the contract and the client objective, but the varying remedies provide an opportunity for creative lawyering to tailor the remedy to the situation.

Thanks to our friends and contributors from Patterson Law Firm for their insight into contract breaches.

Job Applicant Information in California

One big issue in hiring practices right now is exactly how much information an employer is legally permitted to request from a prospective employee, as a skilled Atlanta, GA employment discrimination lawyer can explain. As is the case with California, restricting this information can be based on the idea that the less information employers can have, the more employment opportunities people will have. In particular, this information includes things like criminal conviction histories and prior salaries.

In effect, by mandating that employers cannot ask about convictions, it makes it easier for those with convictions to not be disadvantaged solely for that reason when applying for jobs. Similarly, prior salaries can function as a proxy for gender or sex, such that when women are asked for prior salary information, this can lead to decreased salary offerings if hired. Ultimately, this is designed to protect potential employees from being disadvantaged in some way due to these forms of information about them, to decrease disparities in opportunities and increase inclusion across different groups.

First, more than 70 million Americans have a criminal record and this has huge implications when they go to apply for a job. “Ban the box” is a phrase that has recently grown in popularity; it is the idea that an applicant should not – at least at the beginning of the application screening process – have to say they have a conviction. Previously, once the applicant is deemed to be qualified, then the employer can look into those convictions, but only at that point, which meant that the employee had a chance for the employer to get to know them more before making a blanket decision just based on their prior conviction.

After a set of earlier legislative actions, in late 2017, California passed another bill that restricted what employers can ask regarding convictions, which now mandates that the employer cannot look at their convictions until after a conditional job offer. This makes it easier on employees who have convictions to get further in the hiring process, while making it harder on employers who want such information.

Second, similar to convictions, employers in California – under a law passed in 2017 – now must refrain from asking an applicant for information on salary history, as it pertains to hiring that person or deciding what salary to offer. This law is designed to address the wage gap between men and women, as women make 80.5 cents on the dollar that men make.

Altogether, these trends show that California – along with other states – are reducing the information employers can ask for up front, and thereby giving applicants and potential employees – especially disadvantaged applicants – some assistance when it comes to legal protections during the hiring process. Employers and employees should both look out for hiring practices that violate these recent changes.

 

Thanks to our friends and contributors from Barrett & Farahany, LLP for their insight into job applicant information.

 

What is the Difference Between a Trust and a Will?

Everyone has heard the estate planning terms “trust” and “will”, however, everyone might not be able to explain the difference between the two. Trusts and wills are both useful estate planning tools that are used for different purposes and both are able to work together with the help of an estate planning attorney Scottsdale, Arizona trusts to build a complete estate plan.

A last will is a legal document that does basically four things:

  1. It provides instructions and wishes about how your property and assets are to be distributed to your loved ones when you die.
  2. It designates your beneficiaries.
  3. You are able to choose an executor, who is the person who will manage your assets and ensure they are distributed correctly.
  4. You are able to name a guardian to take care of your children.

A living trust is a legal document which creates a legal relationship between one person, the trustee, holds property for the benefit of someone else, the beneficiary. This property can be real or personal property, including money, stocks, bonds, real estate, personal possessions, business interests, and automobiles. A trust involves at least two or more people: the person who creates the trust, the grantor; the person who manages the property in order to benefit the grantor and the beneficiaries, the trustee; and those who benefit from the trust, the beneficiaries.  A trust has two different types of beneficiaries; one group of beneficiaries receive income from the trust throughout their lives and the other group receives assets that are left over once the first group of beneficiaries dies.

A main difference between a trust and a will is that a will only comes into effect after you die, unlike a trust which is effective as soon as you have created it. While one aspect that both a will and a trust have in common is they can both name guardians for minor children.

A will will cover any property that is in your name at the time of your death. It will not cover any property that is held in a trust or in joint tenancy. A trust, however, only covers property that has been placed in the trust. For property to be placed in the trust, it needs to be put n the name of the trust.

Probate is another difference between a will and a trust. A will needs to go through probate. This means that a court will supervise the administration of the will, makes sure of the validity of the will, and that the property is distributed the way the owner would have wanted. A trust does not need to go through probate, so a court does not need to supervise the process, which in the end usually saves money and time. One of the most common reasons people decide to make a trust is to keep their property from the probate process once they die. A will also becomes part of the public record, while a trust is able to stay private.


Thank you to our contributing
Scottsdale, Arizona Estate Planning Attorneys for their insight into wills and trusts.

Differences between a Trust and a Will

A lot of people are somewhat familiar with what a last will and testament is, but may not be as familiar with what a trust is in regards to estate planning tools. Many people tend to thing wills and trusts are somewhat interchangeable, but the truth is that they both serve separate purposes. An estate planning attorney can discuss with you if your family would benefit from either of these tools. The following is a brief overview of how each work.

 

Last Will and Testament

A will is a document that a person stipulates how they want their property to be divided once they have died. The person who writes the will, referred to as the grantor decides who the beneficiaries will be and what they will receive.

 

Trust

A trust is a legal arrangement whereby the trustor (the person who sets up the trust) places assets and/or property in the trust and chooses a beneficiary who will receive the contents of the trust when the trustor passes away. The trustor will choose a trustee who will hold the assets in the trust on behalf of the beneficiary. In the majority of trusts, the trustor chooses themselves as the trustee. When the trust that is set up is a revocable trust, the trustor can change or dissolve the trust at any time.

 

Differences between Wills and Trusts

One of the biggest difference between a will and a trust is that a will is only executed when the person who wrote it dies. On the other hand, a trust can go into effect immediately.

Another difference is that assets that are passed to a beneficiary by contract, such as joint tenancy with rights of survivorship or life insurance policies, can be distributed through the trust since the trustor can place any property or assets in the trust that they choose. These types of contract assets cannot be handled through a will.

 

A significant difference between wills and trusts – and the one factor that often attracts people to trusts – is that wills are require to go through the probate process but trusts are not. Probate is the legal process in which the court declares whether a will is valid or not. The decedent names an executor in the will, the person who will oversee the probate process and distribution of all the assets, as well as pay any debts and other obligations the decedent had. Trusts are not required to go through the probate process.

 

Probate can take approximately 12 months, as long as no one contests the will. If someone who was not named in the will or believes the will is not valid, they can contest it. This often slows down the probate process, causing it to go longer than 12 months.

The court will decide whether or not the will is valid or if the party contesting the will has a valid claim. It is not uncommon for people to be successful in contesting wills and whatever the decedent’s wishes in the contested will were, will not be honored. A lawyer, like the Philadelphia, PA revocable living trust lawyers  residents can turn to, can provide any answers and questions to personal circumstances.

 

Thank you to Klenk Law for providing their insight and authoring this piece on the differences between a trust and a will.

 

Involved in a Business Legal Matter? Hire a Moving Company

If you or your firm is involved in a legal matter of some kind and you need to relocate for good or bad reasons, you may be best served by hiring a moving company. This is true for a wide range of possible scenarios.

  1. You have dissolved a partnership. Whether it was a company run by yourself and one other person, or many staff were involved, it may be best to not show up in person. If litigation is ongoing, you could say something that could be used against you. This can be difficult to avoid if the person you’re dealing with in court is abusive toward you in any way while you are on premises. Call a moving company rather than moving your possessions yourself. It can save you additional stress and reduce the likelihood of a confrontation. A public confrontation is what you want to avoid because it can be costly if it results in bad press or worse.
  2. Your company is expanding into a larger facility. Business is great and you’ve signed a lease for additional office or manufacturing space. Congratulations, but if you choose to save a few dollars by having your staff move everything and someone gets hurt, you’re looking at higher workers compensation insurance premiums. An additional advantage is that by hiring professional movers, the job will probably be done that much faster, which results in lower downtime and higher staff productivity.
  3. You’re closing shop and dissolving your business. . They can not only move your furniture and stock items to where you need them to go, they can also clean your office or shop after they’ve removed everything. And if you have anything you do not want to keep, they can haul it away to the junkyard, recycling center, or thrift shop for you.
  4. You’re moving across state or across the country because your company merged with another company. This is an exciting time, but much to do. If needed, they will partner with long distance fellow moving companies who are as trusted and reliable as they are.

If you’re involved in business litigation of some kind and need to move your physical assets, call professionals, like movers Waldorf, MD relies on.

Thank you to Suburban Solutions for providing insight on hiring a moving company.

Estate Planning

Have you considered what will happen to your assets when you die? Thinking about what happens after your death can be, admittedly, an uncomfortable topic that you may be avoiding. However, it is something that everyone should consider. Have you ever thought about writing a will but then said to yourself:

  • “I am not old enough.”
  • “I am not sick.”
  • “I do not have anything to leave behind.
  • “I just want everything to go to my spouse.”

Planning what will happen to your assets in the event of your death is something that everyone should consider regardless of their age, health, size of their estate, or to whom they wish to leave their assets. Estate planning includes many different tools and strategies that can benefit almost everyone.For example, if you have minor children, taking time to plan your estate, even if you yourself are very young, can avoid stressful and time-consuming guardianship proceedings in the event of your untimely death. In another example, even if you have what you consider to be a small estate, using estate planning strategies to avoid having your will go through the probate process may save your loved ones time and money.

One of the most basic estate planning strategies is writing a will. Most people have heard of a will, which is a document that you write that designates who will receive your assets in the event of your death. Typically, it must meet several requirements prescribed by the law in the state where you live to be valid. You may have thought about writing a will, but then thought:

  • “I don’t even know where to start.”

If this sounds like you, you should consider reaching out to the competent and experienced estate attorney in O’Fallon MO. Even if you have already written a will, you should consider reaching out to make sure that it meets the legal requirements in your state, that all of your assets are covered, and to find out if there is another estate planning strategy, such as a living trust, that may better suit your needs. The attorneys have combined experience helping people just like you plan for the distribution of their assets at the time of their death. The attorneys have seen many different types of estates and families and will be able to advise you about the best way to preserve your wishes and save your loved ones time and money after you pass.

Maybe you have considered estate planning and think that it may be right for you, but then stopped yourself thinking:

  • “I have heard it can be expensive.”

Yes, there will likely be some upfront costs if you hire an attorney to help you plan your estate, or even if you decide to talk some steps on your own. However, you can look at this upfront cost as an investment: some money spent now to get your affairs in order will likely save your loved ones more money in the future, and will also almost definitely save them time and stress,during what will already be a difficult time in the event of your death.

Thank you the authors at Legacy Law Center for providing their insight on estate planning.

IT’S ALWAYS TAX TIME WHEN NEGOTIATING DIVORCE SETTLEMENTS

Taxes affect and control every aspect of our lives.  Everyone knows April 15‌th is the deadline for filing Income Tax Returns but, when negotiating divorce settlement agreements, there are several issues which may arise which have significant tax implications for clients, regardless of the date.  An individual who is not properly counseled on these issues may believe a proposed agreement is fair when, in reality, the proposal is mostly one-sided. A few examples of areas in which these issues arise involve the child dependency exemption,  division of retirement accounts, capital gains, sale of the marital home, deduction of mortgage interest, whether to file jointly or separately, etc. Other pertinent concerns are the fact that alimony payments are deductible, while child support payments are not.  Similarly, the spouse who receives alimony must report that as income on his or her Income Tax Returns. Not so for child support received. Some legal fees are deductible, but most are not, unless the fees were incurred as a result of your attorney giving you tax advice.   If you have to hire someone such as an appraiser, an accountant, or other expert to evaluate a marital asset, that is or may be deductible. All of this is highly specialized and complicated, but it doesn’t mean that your divorce attorney has to be a tax expert. A good and resourceful attorney, like a top divorce lawyer Baltimore has to offer, should be knowledgeable and experienced enough to know what the tax issues are so that he or she can seek the appropriate help and guidance from other experts when necessary.  Many clients have their own accountants or tax preparers but, when couples go through a divorce, that individual may have a conflict of interest and not be entirely impartial. A divorce attorney needs to recognize this and have a qualified tax expert review a proposed settlement agreement to provide an unbiased opinion to the client its potential tax effects.  Clearly, this must be done before any agreement is signed, as part of the negotiation process.

When people are going through a divorce, they are often under extreme emotional and, oftentimes, financial stress.  This may lead to making hasty and uninformed decisions, which can lead to critical and costly errors. Remember, once that settlement agreement is signed, it becomes a binding contract and you cannot later change your mind.  More importantly, many of the examples cited above are going to change in 2019 as a result of changes in the tax law. This will make negotiating divorce settlements more complicated and specialized than ever. For this reason, advice from an experienced divorce or family law attorney is critical.  Making a tax mistake in a divorce proceeding can be very serious, as are all tax issues. This may result not only in an inequitable divorce settlement, but IRS fines and/or penalties as well.

If you are in the process of or thinking about a separation or divorce, the time to get the advice you need is now, at the very beginning of the process, before it’s too late.

 

Thanks to our friends and contributors from Greenberg Law Offices for their insight into negotiating divorce settlements.

Business Owners’ Guide to Workers Compensation Insurance

Workers’ compensation is a form of insurance that employers purchase to cover illnesses and injuries related to employment. Even if some employers see this as a burdensome expense, providing workers’ compensation protects an employer in case an employee get injured or develops an illness on the job. Texas is the only state that doesn’t require workers’ compensation insurance. Insurance could cover:

  • Medical treatment
  • Lost wages
  • Illnesses such as emphysema
  • Death
  • Injuries arising at work

Let’s examine the myths related to workers’ compensation insurance and the facts dispelling those notions.

Myth 1: After you pay workers’ comp, you don’t have any other responsibility

If an employer stays in contact with an employee during recovery, they can monitor for signs that the employee is ready to come back to work. Business owners can promote a “return to work program” which helps reduce the number of days lost to illness/injury and heightens productivity. It can also reduce increases in insurance premiums. When less wages are lost, claims and premiums drop.

Myth 2: Small businesses don’t have to provide workers’ comp

Workers’ compensation varies by state but many jurisdictions require businesses with one or more employees to carry the insurance. Coverage also is determined by the type of business. Most organizations in MIssouri must have a minimum of five employees for workers’ comp to be mandatory. There are a class of workers that are not included for worker’s compensation insurance. They are:

  • Volunteers
  • Private home employees
  • Casual workers
  • Business owners
  • Independent contractors
  • Maritime employees
  • Farmers or farm hands
  • Railroad employees

Federal employees are also not covered by state’s workers’ compensation because they are covered by a federal plan.

Fact 1: Workers’ compensation for injuries sustained at the workplace or while working for your employer

An employee may not be compensated for a purposefully sustained injury, but usually an injury that happens during your employment will be covered regardless if it is an injury caused by their own negligence. However, an injury caused by intoxication from drugs or alcohol do not get coverage.

Injuries sustained while on the job but not necessarily in the office are also covered by workers’ compensation. For example, a person who travels for work and experiences an injury during a business trip or business errand, that is covered by insurance. However, if the employee is on a break, they are not covered, even if they are still on the property.  

Fact 2: Workers Comp Does Not Mean Immunity Against Litigation

Business owners are not immune from further litigation by an employee through their insurance. Some exceptions, varying from state to state, include a scenario where the injury was caused by an employer’s negligence. In this case, an employee can bypass workers’ comp and move forward with a personal injury suit for damages. Further, an employer can be sued for not providing workers’ compensation insurance.

Any business owner who wants to protect themselves from work-related claims should be safe and get worker’s compensation. Be sure to familiarize yourself with any legislation regarding such insurance claims depending on your state. Contact a business lawyer Memphis, TN, can recommend for help with any questions.

Thanks to our friends and contributors from Wiseman Bray for their insight into business law.

Contesting a Will

A probate attorney understands that even in the happiest of families, disputes arise. Sometimes relatives are able to work through and move past those disputes, but other times, the issue can cause a fissure within the family. This often happens when a loved one dies and relatives begin fighting over the estate. We have been assisting clients in estate plan and probate disputes for more than and know how emotional these situations can be.

Reasons to Contest a Will

If you suspect a loved one’s will is not valid, whether because of manipulation, coercions, or the will has been altered in some way, you have every right to challenge that will in the probate process. Some of the more common grounds that a probate attorney has handled include:

  •  The will was executed improperly: This can often happen when there was no attorney involved in drafting the will. All state laws must have been followed in executing the will or it is invalid.
  •  The decedent was not mentally competent when they signed the will: This can happen if the decedent was suffering from dementia or some other mental condition.
  •  There was fraud perpetrated on the decedent: If the decedent was tricked into signing the will, then it is not valid. For example, if he or she thought they were signing some other type of paperwork and had no idea it was a will, then the will is invalid.
  •  Another individual or individuals put undue pressure or influence on the decedent: If a party was threatening or blackmailing the decedent to change their will, it would invalidate it. This can be difficult to prove, but not impossible.

In order to prove that the will that has been filed with the probate court is invalid, you should consider consulting with a probate attorney to represent your best interest. It can be difficult proving that a will is invalid according to the rules of the probate court without an attorney. This can be especially true if the will that has been filed is the only will that was ever executed. A probate attorney has extensive experience in contesting wills and will be able to advise you on what is the best direction to proceed in.

In order to contest a will, it is critical to notify the probate court in writing as soon as possible. There is only a limited amount of time to contest a will and once that time has expired, the opportunity to contest expires, as well.

Your probate attorney will then prepare an argument to prove that the will you are contesting is invalid. The more evidence that can be provided, the stronger your case will be. This can include copies of any other wills, as well as bank statements, credit card statements, and any other evidence which can prove your claim.

Let a Probate Attorney Help You

If you think a loved one’s will is invalid, contact an expert and professional wills lawyer O’Fallon MO has to offer to help your case.

Thank you to the Legacy Law Center for providing their expertise and insight on contesting a will.