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.

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.

 

 

What is a Will?

A well-drafted Will is a vital part of every estate plan. A Will is how you ensure that your wishes are respected, and to help avoid taxes.  

What is a Will?

A Will is a legal document that can address many important issues at your death.  Common issues addressed in a Will include:

  • Selecting who will oversee your estate.  This person is called an Executor in some states and Personal representative in others.  The Will is also where you can pick the backup person, should your first choice be unable or unwilling to serve.
  • Payment of your debts.  When you die, your creditors are paid before any heir can receive an inheritance. In the Will, though, you can determine what assets are used to pay these debts.
  • Payment of Taxes.  If there are inheritance or estate taxes due, the Will is where you decide if the taxes are paid from the estate’s residue, or if each recipient pays their share.
  • Will Contest Defense.  If you believe someone will challenge your Will, the Will itself can set up various defenses.
  • Protective Trusts.  Wills can create protective trusts providing shelter an inheritance from a beneficiary’s divorce and creditors.
  • Guardians for your minor children.  In your Will, you nominate who you wish to serve as guardian until your children turn 18.
  • Burial Arrangements.  The Will is also where you name the person who has the legal responsibility and power to arrange your funeral and your final resting place.

What if I Die Without a Will?

If you die without a Will, your assets are then divided up according to state law. Many people mistakenly believe that this means everything passes to a spouse. In some states, such as Pennsylvania, if a married person dies without children but has living parents, a portion of the estate passes to the parents.  In other states, if a married person dies with children, then the estate is divided between the surviving spouse and the children.

Having a well-designed Will can avoid all these default rules and make sure your wishes are respected.

Where do I Keep My Will?

Typically, the estate planning lawyer stores the original Will.  This way it is not lost. It is not uncommon that when someone gets ill and has to move to a nursing facility that their documents are misplaced.  Sometimes this is by accident, other times by design. By leaving your records with your estate planning lawyer and informing your executor of the location, you can rest assured your documents are safe.

Who Should I Name as My Executor?

Your Executor files your Will, gathers your assets, pays your bills and then distributes the assets as you have instructed.  Not everyone is cut out to serve as an Executor. Your Executor should be a responsible, diligent person who follows through on this challenging task.  He or she should also feel comfortable hiring professionals to guide them when they are unfamiliar with the job. For example, executors often hire accountants, realtors and probate attorneys to help bring the estate to completion as quickly as possible.

In conclusion, this post is a short introduction to a critical and complex issue.  Contact an experienced attorney, like an estate lawyer Allentown, PA trusts, in your area to find out what plan best fits your needs.

Thanks to our friends and contributors from Klenk Law for their insight into wills and estate planning.

 

Estate Planning Simplified

For those thinking about the future of their family, can benefit from consulting with an estate planning attorney at Yee Law Group for advice. At some point, people may consider what will happen to their belongings and assets after they pass. We understand estate planning can feel a little odd and be a sensitive task. We can help you make decisions about what kinds of paperwork to include in your estate plan or will.

We have been dedicated to helping clients feel confident about how their treasures will be handled after they pass on for more than 40 combined years being in business. We have created a list of steps entailed in creating an estate plan, so the task does not feel quite as daunting or intimidating.

You may have heard the term “estate planning” but are not exactly sure that means. By following the list below, and with some help from an estate planning attorney at Yee Law Group, you are on the road to protecting the future of your legacy.

 

  • Draft a Will

 

When writing your will, you want to list who shall inherit your property, belongings and other items in the event of your passing. It can be beneficial to also list a guardian to care for your children (if underage at the time), in case something unfortunate happens to the other parent as well.

 

  • Consider a Living Trust

 

If you establish a living trust, it can help prevent your surviving family members from having to attend probate court, which can be a very time-consuming and potentially expensive process.

 

  • Health Care

 

If you are ever unable to make medical choices for yourself, decisions can be made by the person you appoint as power of attorney for health care purposes.

 

  • Financial Power of Attorney

 

The person you list to handle your finances is referred to as your attorney-in-fact or agent, but does not have to be an actual attorney. You will be giving this person a durable power of attorney for finances, so they can make decisions if you become disabled or incapacitated.

 

  • Protecting Property of Children

 

An adult should be named in your estate plan who will manage any money or property that your underage children may inherit.

 

  • Beneficiaries

 

Name a beneficiary for your retirement plans and bank accounts in order to skip the probate process. By doing so, the account becomes “payable on death” to the beneficiary and permits funds to be handled by him or her.

 

  • Funeral Expenses

 

You can create a payable upon death account with your bank to pay for funeral expenses. This method can be preferred over a funeral repayment plan, which can be unreliable.

 

  • Organizing Documents

 

Your attorney-in-fact or executor may need easy access to the following kinds of documents. Keep these in a safe place that is quick to obtain.

  • Will
  • Trust
  • Real Estate Deeds
  • Insurance Policy
  • Certificates for Bonds, Stocks
  • Bank Account, Mutual Fund Information
  • Retirement Plan, 401K or IRA Information
  • List of Debts: Credit Cards, Mortgages, Unpaid Taxes
  • Final Arrangements
  • Funeral Repayment Plan

By hiring an estate planning attorney at Yee Law Group, we can help answer any questions or concerns related to your last will and testament. Please call us today at 916-927-9001 to schedule your first free consultation.

Wills and Probate: Questions to Ask

Everyone should have a will. You may say, “I am too young for a will,” or “I am not sick.” You may say, “I do not have anything to leave behind,” or “I am just going to leave everything to my spouse.” While these things may all be true, life can throw unexpected curveballs your way. For example, what happens if you die in a car accident? What happens if your spouse dies with you? Though you may have relatively few assets, what happens to your minor children in the event of your death? What happens to your house? What happens to your pets? These questions are hard to ask yourself because they require you to think about very sad and unlikely events. However, they highlight the importance of drafting a will now. Not only is drafting a will just a good idea to make sure that your wishes are carried out in the event of your untimely death, but it will also help your family make difficult decisions during a time when they are already suffering a great deal of emotional and possibly financial pain.

 

So, what do you need to know about wills. First, what is a will? A will is a legal document that lays out what happens to your assets, such as your car, furniture, jewelry, and other belongings, what happens to any real property that you own, such as your house or land, and what happens to any savings accounts or investment accounts that you maintain. A will can also specify who you would like to become the guardian of your minor children, pets, or of any incapacitated adult in your care.

 

Second, how do you write a will? You can write a will on your own, though you should conduct research to determine what your state requires to make valid will. Each state has its own requirements for a valid will and may specify things like who must sign the will, whether the will must be witnessed and by how many people, and even if notarization will help validate the will. It is always a good idea to consult a competent attorney to help you with these questions.

 

Third, what is probate? Probate is a court process in which a judge will review the will to check for a few things including, an analysis of whether the will is valid, a review of the decedent’s debts to make sure that all necessary debts are paid from the estate before the assets are distributed, and then to ensure that the terms of the will are followed in accordance with state law. This process can take time, and can be costly. Most wills go through probate, though some small estates are exempt from the process.

 

Fourth, so what should I do? You should write a will. You should do your research to make sure your will is valid and will stand up in court. You should anticipate probate. Know that in the event of your death there may be a significant delay before your loved ones receive any funds from your estate. You can reduce the amount of time it takes for your will to go through probate if you make sure it is appropriately drafted. Consider consulting an attorney. They can help make sure your will meets all the criteria prescribed by state law and may recommend ways to structure your will to reduce time in probate. If you need any legal help regarding wills or probates contact Wills and Trusts Lawyer Scottsdale AZ and locals turn to for any information.


Thank you to Hildebrand Law for providing the answers to these key questions.