May 2017

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Personal Injury Settlements and Estate Planning

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If you’ve won a personal injury settlement, this money could affect the value of your assets.

This money could be immensely beneficial for accident victims, as any experienced personal injury lawyer could attest, but it’s wise to understand how a settlement may affect your own estate.

What is estate planning?

Estate planning involves dividing your assets among your dependants. You have the ability to state which individuals should receive which assets, and when they should receive them. You can divide your assets between family members and close friends, or you could even leave your assets to a charity. Proper estate planning can help reduce (or even eliminate) certain state and/or federal taxes on your assets and income when you pass away.

Collecting Financial Documentation After an Accident

The typical personal injury settlement can account for many financial losses. An injured victim might end up collecting hundreds of thousands of dollars in a settlement, especially if he or she suffered disabling injuries. This can have a major impact on the individual’s personal income or assets. In order to document expenses and compensation, the individual may need to adjust certain documents to reflect their current state.These documents may include wills, documents pertaining to estate planning, and other paperwork that may be necessary in a legal setting.

It is important to be wary of over-reporting assets in this case. If expenses are not recognized accurately, the estate may be assessed at a higher value and therefore may receive higher federal estate taxes.

Federal and State Taxes and Estate Planning

Some federal estate taxes can be exempt, but there is a set limit for exemption. Once a settlement reaches the limit, the recipient may need to change their estate plans to comply with federal regulations. State estate taxes are not fixed — some states charges no property tax at all — so it’s important to know the laws in your own state. You could have to pay both types of taxes or only one.

Creating a Solid Investment Plan

After receiving a settlement, you may want to hire someone who can invest your money in a safe and effective fund. It’s important to work with someone who will make sure that you are able to pay for current expenses, while still keeping your award safe from unnecessary fees and taxes.

It may be very beneficial to your family and loved ones to plan out your estate thoroughly with an estate lawyer Sacramento trusts, especially if a personal injury award is involved. If you’re ready to take control of your assets, contact an estate planner today.

Thanks to our friends and contributors from Yee Law Group for their insight into estate planning after a personal injury.

“Does a Personal Injury Award Affect my Estate Planning?”

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If you’ve recently received a settlement or won a case with the help of a personal injury lawyer, it may be time to update your estate planning. Because a settlement will often increase your net worth, it can make your estate planning more important than ever.
When people think of hiring an estate planning lawyer, they usually are thinking about a simple will. However, limiting yourself to a will can be a mistake.
In some states, probate is an expensive, court-supervised process, and the more assets that are involved, the more expenses and delays occur. In those situations, it makes sense to have an estate planning attorney draft a revocable living trust. A revocable living trust is a tool that removes your assets from the probate process, saving your loved ones many expenses and delays.
Should your injuries worsen over time and you become incapacitated, a revocable living trust will make management of your assets much easier. If you are unable to care for yourself, the successor trustee you appoint in your revocable living trust can manage your settlement proceeds on your behalf, and use them as necessary to pay for your care.
An estate planning attorney will also likely want to draft a medical power of attorney for you. The person you appoint in your medical power of attorney will make your medical decisions for you in the event your injuries progress to the point where you are unable to make your own decisions. This can help prevent ugly family fights regarding your medical care.
If your award is very large and increases your net worth over $5 Million, your estate planning lawyer will likely want to discuss planning for the federal estate tax. If you don’t plan for this tax, up to 40% of your assets could be lost to the government rather than being passed down to your loved ones.
Lastly, since your award may need to finance your care for the rest of your life, you may need to find an investment advisor. This can be very tricky, as many investment advisors seek to maximize their own commissions rather than provide the best advice. It is important to look for an advisor bound to a fiduciary standard, such as a Certified Financial Planner or fee-only advisor. A trusted Central Jersey estate planning lawyer can make a referral to such an advisor to make sure your award lasts for a lifetime of care.

Thanks to our friend and contributor from Vandrew LLC, a Monmouth County, NJ estate planning law firm, for their insight into estate planning practice. He is licensed as an attorney, CPA, and CFP and assists clients in making sure their loved ones are protected.

Common Workers Compensation Claims for Construction Workers

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Workers compensation refers to a type of insurance that helps employees receive compensation for injuries they sustain at their workplaces. The laws regarding workers compensation vary from one state to another. In most states, employers must have workers compensation insurance.

According to a 2009 report by the Centers for Disease Control, 9% of non-fatal injuries and illnesses are experienced in the construction sector. Let us look at the most common workers compensation claims that result from construction site accidents.

Slip and Fall Accidents

A slip and fall claim most often results from an employee who slips on a wet surface at the workplace. Some of these cases arise when individuals slip and fall on snowy or icy surfaces at the workplaces. Construction zones at least partially open and vulnerable to the elements. In winter or in the rainy season, workers may be more susceptible to slip and fall accidents which can cause serious injuries.

Overexertion

Employees involved in lifting, pulling or pushing heavy objects are likely to suffer from overexertion. When your muscles are stretched beyond their limit, or when a joint extends beyond its usual range, you are likely to suffer from severe injury. In some cases, overexertion requires a lengthy recovery time.

Machinery Accidents

Machinery accidents often occur when heavy and large machinery injures a worker by mutilating or crushing them. The costs associated with these injuries are immense. Many states have laws requiring employees to be specially trained before permitting them to use equipment. Employees should be educated on the use and maintenance of equipment in an effort to protect them from a serious or fatal injury.

Falling to Lower Levels

Falling to a lower level occurs when a construction worker falls from a ladder or a roof, or when they fall down stairs. These accidents can result in broken limbs and other long term injuries.

Liability for Accidents at Construction Worksites

In a third-party construction injury, liability rests on the general contractor, subcontractor, site owner, the manufacturer of defective equipment, and other third parties who might have contributed to the accident or injury because of gross misconduct or negligence.

The level of control that contractors and construction site owners exercise over the premises and the work that is being done will determine to what extent they are responsible for a construction worker’s injury. If they are held even partially liable, they may be at least partly responsible in paying workers comp benefits such as death benefits, medical expenses, rehabilitation services, and lost wages.

According to the rules set out by the Occupational Safety and Health Administration, contractors must provide a safe work environment to construction workers. Furthermore, contractors are required to warn workers if there are any dangers inherent in a particular task. Equipment manufacturers also have a duty to provide machinery that is not defective and that has sufficient labeling instructions on how to operate or use equipment safely.

If you have been injured while working on a construction site, a qualified workers compensation lawyer Queens, NY trusts can help you determine who is liable for your damages. He or she can also help you obtain maximum compensation for your accident related losses.

Thanks to my friends and contributors from Polsky, Shouldice & Rosen, P.C. for their insight into personal injury and workers compensation claims.

Can a court mandate funds set aside in a Trust be used to pay a personal injury judgment or settlement?

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The short answer is MAYBE.

In most personal injury cases (i.e. – car accident cases), the person at fault often is insured, and any settlement or judgment in the case gets paid by the insurance company. But sometimes there is no insurance to pay a judgment or settlement, and other times the insurance policy has a maximum pay-out that doesn’t cover the entire amount owed. In those instances, it’s good to know what your options are for getting the money you’re entitled to.

Many people think getting a judgment or agreeing to a settlement is the same thing as getting money when that’s not the case. Both a judgment and an agreed settlement order in personal injury lawsuits (or most lawsuits) are enforceable court orders that often mandate that the Defendant pay a certain sum of money to the plaintiff, but Defendants aren’t always quick to pay the money they owe. In those cases, it’s important to understand what you can do to make sure you get the money you’re owed.

If you’re the victim of a personal injury and you find yourself with a settlement or judgment, collecting on that judgment or settlement can be tricky and it would be best if you consulted with a Chicago collection attorney for specific advice. An entire separate blog post (or several) can be written on the various methods of collecting on a judgment, but the most relevant ones for our purposes are as follows:

1) Citation to Discover Assets

This is a post-judgment proceeding in which the judgment debtor is ordered to appear in court, get sworn under oath, and answer very probing and personal questions about his/her finances, assets, and anything else that can lead to information on sources to pay the outstanding personal injury judgment. Ordinarily, judgment debtors are also required to bring in hard copies of requested documents to Citations to Discover Assets hearings as well – things such as tax returns, pay stubs, etc. It’s through this judgment collection method that you are likely to discover that the Defendant has a Trust that could potentially be used to satisfy the judgment.

2) Citation to Discover Assets to a Third Party

This is a proceeding you can use to discover whether a third party is in possession of property or money belonging to the judgment debtor, and then request the court to order that it be turned over to you. This is most commonly used against banks where the debtor is believed to have accounts.

Assuming that you learn that the Defendant from your personal injury lawsuit has a Trust with funds in it that can satisfy your outstanding judgment or settlement – can you get a court to order that such funds be turned over to you?  ANSWER: It depends on the type of trust.

Revocable Living Trusts are one of the most common types of trusts due to their ability to save families the expense and hassle of probate after a person’s death, but they are also a trust that creditors (such as people with personal injury judgments) can get to. The reason is that although revocable living trusts are considered legal entities, the person who owns the trust often names him/herself as the trustee, keeping complete control over the trust assets, and the trust is revocable – which means he/she can revoke it at any time (once again putting the trust’s assets in his/her name). In other words, the money or property in a revocable trust is always in the control of the trustee, so creditors are able to get to it.

In contrast, money that’s in irrevocable trusts, those that are not controlled by the judgment debtor and cannot be revoked, is generally unavailable to judgment creditors. Some people even go as far as to create complex trusts with a trustee located overseas or offshore, or set up limited liability companies for the purpose of protecting their trust assets.


Thanks to our friends and contributors from William Mazur Attorney at Law for their insights into collecting after an injury judgement or settlement.

How does my personal injury settlement affect my child support?

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Child support is taken very seriously in our country.  The obligor (the parent who is required to pay the child support) is required to pay child support to the obligee (the parent who is receiving the child support) until either the child attains the age of 18 or the child finishes high school.  Even if the obligor loses their job, the money remains owed and is not dischargeable.  If the obligor fails to pay child support as ordered by the court, the obligee may file a motion to enforce the obligor’s child obligation.  Allowing your arrears balance to build up could result in loss of your driver’s license, wage garnishment directly out of your paycheck, immediate garnishment of your tax return, and even garnishment of your bank account(s).  

 

In Pennsylvania the domestic relations section is granted the power to initiate judicial proceedings to obtain a settlement from the obligor in the best interest of the child support obligee via 23 Pa.C.S.A. 4305(a)(11).  “Overdue support shall be a lien by operation of law against the net proceeds of any monetary award…owed to an obligor, and distribution of any such award shall be stayed in an amount equal to the child support lien provided for…”  Pennsylvania goes as far as requiring a prevailing party of a monetary award to provide under 18 Pa.C.S. § 4904 a statement that includes that party’s full name, mailing address, date of birth and Social Security number.  The person is also required to provide written documentation of arrears from the Pennsylvania Child Support Enforcement System website or, if no arrears exist, written documentation from the website indicating no arrears.  The statute further provides that if there are arrears, the attorney shall make payment of any lien to the department’s state disbursement unit from the net proceeds of any monetary award.

However, a Circuit Court in Maryland in 2010 decided that money recovered from a personal injury lawsuit is exempt from garnishment.  This was then affirmed by the Special Appeals Court.

 

With regard to calculation of child support, a personal injury settlement could be viewed as either a reimbursement for damages sustained (pain and suffering) or a payment for future loss of income, or even both.  States have differing opinions on whether or not a personal injury settlement should be considered income.   Some states view settlements as reimbursement for damage to an individual’s body similar to how vehicles are damaged in accidents.  In that case, generally a lump sum, extraordinary and nonrecurring payment is made to an individual.  Many states would not consider that income when calculating income for child support purposes.  A structured settlement or annuity however may be viewed as income because it is generally for the purpose of replacing income that is not able to be earned as a result of an injury.  This would generally be calculated as income for support purposes.

 

You may want to contact a family law lawyer Pottstown, PA relies on or your personal injury attorney to discuss your settlement and the possibility of the your settlement proceeds being frozen and applied to your arrearage balance before accepting any settlement.   If you have any questions, please don’t hesitate to contact us at Rick Linn, LLC Attorneys at Law for a free consultation on your issue.


Thanks to our friends and contributors from Rick Linn Attorneys at Law for their insight into family law practice.

Five Things To Know About Premises Liability

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Premises Liability is a legal principle defining the responsibility a building or property owner bears should someone suffer an accident and sustain an injury on the premises. If you feel you were involved in an accident and sustained injuries due to the negligence of a property owner, an experienced personal injury attorney may be able to help. Here are five important things to consider about premises liability cases.

 

1. What Are The Premises Liability Case Basics?
Premises Liability cases fall under the category of personal injury law. Typically, such injuries occur due to accidents caused by dangerous conditions present inside a building or on a property. In order to win a premises liability case, you and your legal team will need to prove a property owner’s negligence caused your accident.

 

2. What Are the Types of Premises Liability Cases?
Premises Liability accidents come in a wide array and can take place in many different locations. Such mishaps can include, but are not limited to:

 

  • Slip and fall incidents.
  • Failure of a property owner to warn a visitor about a potentially hazardous situation.
  • Failure of a property owner to provide adequate security.
  • Animal attacks resulting in bites or other injuries.
  • Flooding.
  • A visitor to a property being exposed to poisonous chemicals or inhaling toxic fumes.
  • Fire.
  • Accidents involving a property owner’s failure to remove snow and ice from structures such as parking lots and steps.
  • Accidents occurring in and around swimming pools.
  • Injuries sustained on amusement park rides.
3. What Was Your Individual Status at the Time of the Accident?
The law mandates property owners maintain as safe and comfortable an environment as possible. However, in certain states, a property visitor’s “status” could significantly determine how much responsibility a property owner may bear in a premises liability case. Status is broken down into three categories:

 

  1. Invitee.
  2. Licensee.
  3. Trespasser.

 

An invitee is someone the property owner invites into his or her establishment, such as a consumer with whom they hope to do business. A licensee is an individual the property owner has permitted into his or her establishment. Typically, licensees are on the premises for a specific purpose, often to perform work such as a plumber or electrical contractor. A trespasser is considered to have no business on a specific premises and is often there for sinister or criminal reasons. Invitees typically have the best chance of prevailing in premises liability case, while trespassers rarely prevail.

 

4. What Will You and Your Attorney Need to Prove?
In certain instances, premises liability can be technical and complicated. In addition, laws can vary from state to state. However, in most cases, the plaintiff, aside from negligence on the part of the defendant will also need to show:

 

  • The defendant was the actual owner of the property where his or her accident occurred and injuries were sustained.
  • The plaintiff’s injuries are clearly related to the accident in question.

 

5. Could Both Parties Be Considered at Fault?

 

In a number of states, premises liability law falls under what is known as the “Comparative Fault System.” This means a court of law could render a decision determining the plaintiff was found to be somewhat responsible for the accident. A simple example would be if a plaintiff is held 10 percent responsible and awarded $10,000 in damages. In this case, the defendant would only be responsible to cover $9,000 or 90 percent of the damages. Getting free legal advice from the internet is a preliminary step, but a personal injury attorney can assess your case and offer a legal opinion as to whether or not it has merit and suggest how to move forward.

 

Thanks to our friends and contributors from Hot Legal Tips for their insight into premises liability.

Depositions in Personal Injury Lawsuits

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If you are involved in a personal injury lawsuit as a plaintiff, a defendant, or a witness, it is likely you will be participating in an oral deposition at some point. In advance of being called for a deposition, it may be helpful for you to have a basic understanding of the process.

 

What is an Oral Deposition?

 

An oral deposition is a standard pretrial procedure conducted in conjunction with a court case.
  • Depositions are used to establish what a witness or party knows about the suit and to preserve that information in a formal manner.
  • Written notice of the time and place of the deposition is given ahead of time.
  • A witness who is not one of the parties to the case may be subpoenaed to attend.

 

What Happens at a Deposition?

 

At the deposition, the person who is being examined is put under oath, usually by a court reporter, and the attorneys for each side will then ask questions.
  • The questions and answers are recorded in writing by the New York court reporter. Sometimes, a tape recording or video of the deposition will be made.
  • The lawyers for each side are given a chance to ask questions, including cross-examination questions.
  • The questioning is done formally, just as it would be done in a courtroom during a trial.
  • If the witness refuses to answer a question, the court might, at a later time, order the witness to answer.
  • In addition, there may be objections or conversations between the lawyers.
  • Everything spoken is recorded unless the attorneys agree to have a conference off the record.

 

What Kinds of Questions Are Asked During a Deposition?

 

During the deposition, a witness who is not a party to the case will probably be asked about what was seen and heard before, during or after the event which led to the personal injury claim. Such a witness may have seen, for example, the underlying traffic accident or slip and fall incident. Or, a witness may have relevant knowledge about how the injury has affected the plaintiff or what the plaintiff went through while recovering from the injury.

 

Who Might be Asked to Attend a Deposition?

 

  • Doctors who have treated the plaintiff, or doctors hired by the insurance company to examine the plaintiff, can be questioned at a pretrial deposition. These doctors may be asked about any diagnosis or prognosis, about the type and cost of the treatment for the injury, and about any limitation or permanent injury suffered by the plaintiff.
  • The plaintiff in a personal injury case will almost certainly have to submit to questioning at a pretrial deposition.

 

What Questions Will the Plaintiff Be Asked?

 

The plaintiff will not only be asked specifically about the injury suffered in the incident but also about any prior accidents or injuries. The defendant’s lawyer will also go into everything relevant to the victim’s damages such as medical expenses, wage loss, pain and suffering, permanent injuries, limitations, and loss of enjoyment of life.
If you are the plaintiff or defendant who must testify at a deposition, you should do so in the presence of your attorney. A personal injury case can be won, lost or irreparably harmed on the strength of a single deposition. Choose an experienced and qualified personal injury attorney who can protect your rights during a deposition.

 

Thanks to our friends and contributors from Veritext for their insight into court reporting and depositions.