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Bellmore, NY Estate Planning & Complex Litigation Blog

Monday, April 20, 2015

Importance of Credible Accident Reconstruction Testimony

If you have been injured in an automobile collision, your attorney may require the assistance of an experienced accident expert to help prove who is at fault for the accident. Generally, in order to recover any compensation for your injuries or property damage, you will have to prove that the other party was somehow negligent. Accident reconstruction experts are professionals who have obtained specialized training in order to analyze the physics of the accident scene, determine vehicle speeds and movements, and effectively communicate their findings to the court or insurance company representatives.

These professionals come from a variety of backgrounds, including science education, engineering, or law enforcement who have undertaken special training. These experts can evaluate the scene of the accident, develop calculations and assessments regarding how the accident occurred or how damages were sustained, and can testify to these facts and findings before a judge or jury. They do so by offering a variety of services, including site visits to the scene of the accident, taking photos, interviewing witnesses, applying the applicable scientific principles and preparing a final report. That report often forms basis for the expert’s testimony in court. Generally, the importance of the accident reconstructionist’s testimony is directly tied to the complexity or controversial nature of the accident in question.

Expert testimony regarding how an accident occurred is key to settlement negotiations. Using illustrations, simulations, models, animations and other methods, accident reconstructionists can show exactly what happened, how it happened, and how it could have been prevented.  Even if there are photographs of crash scenes and medical records, these can usually demonstrate the severity of the accident or damages sustained rather than proving who was at fault.

Usually, both sides hire their own reconstruction experts and, not surprisingly, those reports often conflict with one another. When this happens, the experts' credibility becomes a key issue. As in every case where there is conflicting testimony, the decision-makers must make a determination regarding which expert to believe.


Tuesday, April 14, 2015

Beware of “Simple” Estate Plans

“I just need a simple will.”  It’s a phrase estate planning attorneys hear practically every other day.   From the client’s perspective, there’s no reason to do anything complicated, especially if it might lead to higher legal fees.  Unfortunately, what may appear to be a “simple” estate is all too often rife with complications that, if not addressed during the planning process, can create a nightmare for you and your heirs at some point in the future.   Such complications may include:

Probate - Probate is the court process whereby property is transferred after death to individuals named in a will or specified by law if there is no will. Probate can be expensive, public and time consuming.  A revocable living trust is a great alternative that allows your estate to be managed more efficiently, at a lower cost and with more privacy than probating a will.  A living trust can be more expensive to establish, but will avoid a complex probate proceeding. Even in states where probate is relatively simple, you may wish to set up a living trust to hold out of state property or for other reasons.

Minor Children - If you have minor children, you not only need to nominate a guardian, but you also need to set up a trust to hold property for those children. If both parents pass away, and the child does not have a trust, the child’s inheritance could be held by the court until he or she turns 18, at which time the entire inheritance may be given to the child. By setting up a trust, which doesn’t have to come into existence until you pass away, you are ensuring that any money left to your child can be used for educational and living expenses and can be administered by someone you trust.  You can also protect the inheritance you leave your beneficiaries from a future divorce as well as creditors.

Second Marriages - Couples in which one or both of the spouses have children from a prior relationship should carefully consider whether a “simple” will is adequate. All too often, spouses execute simple wills in which they leave everything to each other, and then divide the property among their children. After the first spouse passes away, the second spouse inherits everything. That spouse may later get remarried and leave everything he or she received to the new spouse or to his or her own children, thereby depriving the former spouse’s children of any inheritance.  Couples in such situations should establish a special marital trust to ensure children of both spouses will be provided for.

Taxes - Although in 2011 and 2012, federal estate taxes only apply to estates over $5 million for individuals and $10 million for couples, that doesn’t mean that anyone with an estate under that amount should forget about tax planning. Many states still impose a state estate tax that should be planned around. Also, in 2013 the estate tax laws are slated to change, possibly with a much lower exemption amount.

Incapacity Planning – Estate planning is not only about death planning.  What happens if you become disabled?  You need to have proper documents to enable someone you trust to manage your affairs if you become incapacitated.  There are a myriad of options that you need to be aware of when authorizing someone to make decisions on your behalf, whether for your medical care or your financial affairs.  If you don’t establish these important documents while you have capacity, your loved ones may have to go through an expensive and time-consuming guardianship or conservatorship proceeding to petition a judge to allow him or her to make decisions on your behalf.  

By failing to properly address potential obstacles, over the long term, a “simple” will can turn out to be incredibly costly.   An experienced estate planning attorney can provide valuable insight and offer effective mechanisms to ensure your wishes are carried out in the most efficient manner possible while providing protection and comfort for you and your loved ones for years to come.


Monday, March 23, 2015

Traumatic Brain Injury

Out of all personal injury cases, those involving traumatic brain injuries can be some of the most difficult for the victim and their families.  These injuries can have a huge impact on an individual’s daily life and often times perfectly capable people end up in need of lifelong care after their occurrence.  Brain injuries occur all the time so it is important to understand what commonly causes them and how you can obtain compensation should you or your loved one be the victim.

A traumatic brain injury is damage to the brain from an outside force.  The outside force can be either a blunt trauma or come from a jolt or an object of some kind that penetrates the skull.  This force causes the brain to malfunction in some way.  Brain injuries vary in severity and can cause a wide range of symptoms ranging from a headache to complete paralysis.  Less serious injuries might cause mild symptoms and temporary physical, cognitive and psychological effects.  More serious injuries can cause permanent impairments and even death.  The effects of a brain injury can last a lifetime.

There are many causes of traumatic brain injury stemming from every day activities as well as freak accidents.  Motor vehicle accidents are one of the leading causes of these types of injuries.  The blunt traumas, jolts and penetration wounds that sometimes occur in these situations can easily cause a brain injury.  Crimes are also a leading cause of brain injury.  Crimes involving firearms and/or physical violence can cause serious injuries to the brain if the circumstances are right.  But, most brain injuries stem from falls.  Falls at home, on another’s property and from heights can easily translate into a serious injury.

Regardless of the situation, if traumatic brain injury was caused by another individual or entities negligent, reckless or willful behavior, you might have a claim for personal injuries.  One of our experienced personal injury attorneys can evaluate your case to determine whether you should pursue a claim.  Contact us for a consultation today.


Monday, March 9, 2015

Choosing a Guardian for Minor Children

If you are a parent and you are considering estate planning, one of the most difficult decisions you will have to make is choosing a guardian for your minor children.  It is not easy to think of anyone else, no matter how loving, raising your child. Yet, you can make a tremendous difference in your child’s life by planning ahead. 

The younger your child, the more crucial this choice is, because very young children cannot form or express their own preferences about caregivers. Yet young children are not the only ones who benefit from careful parental attention to guardianship. Children close to 18 years old will be legal adults soon, but, as you well know, may still need assistance of a parental figure after the fact.

By naming and talking about your choice of guardian, you can encourage a lifelong bond with a caring family. The nomination of guardians is a straightforward aspect of any family’s estate plan. It can be as basic or detailed as you want. You can simply name the guardian who would act if both you and your spouse were unable to or you can provide detailed guidance about your children and the sort of experiences and family environment you would like for them. Your state court, then, can give strong weight to your expressed wishes.

There are essentially four steps to this process. First, make a list of anyone you know that might be a candidate for guardian of your children.  It is important to think beyond your sisters and brothers and consider cousins, aunts and uncles, grandparents, child-care providers and business partners. You might also want to consider long-time friends and those you’ve gotten to know at parenting groups as they may share similar philosophies about child-rearing. Second, make a list of factors that are most important to you. Here are some to consider:

  • Maturity
  • Patience
  • Stamina
  • Age
  • Child-rearing philosophy
  • Presence of children in the home already
  • Interest in and relationship with your children
  • Integrity
  • Stability
  • Ability to meet the physical demands of child care
  • Presence of enough “free” time to raise children
  • Religion or spirituality
  • Marital or family status
  • Potential conflicts of interest with your children
  • Willingness to serve
  • Social and moral habits and values
  • Willingness to adopt your children

You might find that all or none of these factors are important to you or that there are others that make more sense in your particular situation.  The third step is to, match people with priorities. Use the factors you chose in step two to narrow your list of candidates to a handful.

For many families, it is as easy as it looks. For others, however, these three steps are fraught with conflict. One common source of difficulty is disagreement between spouses. But, consensus is important. Explore the disagreements to see what information about values and people is important to one another and use all of your strongest communications skills to understand each other’s position before you try to find a solution that you can both feel good about. Step four is to make it positive. For some parents, getting past this decision quickly is the best way to achieve peace of mind and happiness. For others, choosing a guardian can be the start of an intensive relationship-building process. An attorney who understands where you and your spouse fall on that spectrum can counsel you appropriately. 


Monday, March 9, 2015

Does Willful Conduct Automatically Lead to Higher Recoveries?

Personal injuries usually arise from accidents.  Whether the circumstances include a motor vehicle, slip, trip and fall or a variety of other situations, it is a rare occasion that the conduct that caused the injury is intentional.  But sometimes this is the case and the law makes special provisions for these situations.

Personal injury actions can be based on a number of theories including negligence, recklessness or willful conduct.  Each theory requires the plaintiff to prove something different.  A finding of negligence requires that the plaintiff prove that the defendant failed to act as a reasonably prudent person would under similar circumstances.  Recklessness requires that it be proven that the defendant knew or should have know of the risk of harm but proceeded with the course of conduct anyway.  To find that the defendant acted willfully, there must be enough evidence to show that the defendant intended to cause harm.  While there is a fine line between negligence and recklessness, causing the two to usually be alleged in conjunction with one another, willful conduct is a different allegation completely.  A good example of willful conduct is in the case of battery, where one person makes contact with another person without consent and with the intent of causing them physical harm.

While it is not automatic or guaranteed that someone will recover more if they can prove willful, as opposed to negligent or reckless conduct, it is a distinct possibility.  First, the ordinary damages awarded in these cases might be increased due to the finding that the defendant acted intentionally.  Second, punitive damages may be awarded.  Punitive damages are those awarded with the purpose of punishing the defendant for their conduct as opposed to compensating the plaintiff for their loss.  Punitive damages are often times awarded with the purpose of making an example out of the defendant to deter others from future conduct.  These damages are rare but are awarded in certain situations, especially when the conduct that caused the harm was found to be intentional.  The conduct usually has to be outrageously bad for a judge to award this type of compensation.  Punitive damages are governed by state law and therefore awards of this nature vary across the county. 

If you suffered personal injuries as a result of another individual or entities willful conduct, you may be entitled to a significant amount of compensation.  Contact our experienced personal injury attorneys for a consultation today. 


Monday, February 23, 2015

Paying for Your Grandchildren’s Education

The bond between a grandparent and grandchild is a very special one based on respect, trust and unconditional love. When preparing one’s estate plan, it’s not at all uncommon to find grandparents who want to leave much or all of their fortune to their grandchildren. With college tuition costs on the rise, many seniors are looking to ways to help their grandchildren with these costs long before they pass away. Fortunately, there are ways to “gift” an education with minimal consequences for your estate and your loved ones.

The options for your financial support of your heirs’ education may vary depending upon the age of the grandchild and how close they are to actually entering college. If your grandchild is still quite young, one of the best methods to save for college may be to make a gift into a 529 college savings plan. This type of plan was approved by the IRS in Section 529 of the Internal Revenue Code. It functions much like an IRA in that the appreciation of the investments grows tax deferred within the 529 account. In fact, it is likely to be "tax free" if the money is eventually used to pay for the college expenses. Another possible bonus is that you may get a tax deduction or tax credit on your state income tax return for making such an investment. You should consult your own tax advisor and your state's rules and restrictions.

If your granddaughter or grandson is already in college, the best way to cover their expenses would be to make a payment directly to the college or university that your grandchild attends. Such a "gift" would not be subject to the annual gift tax exemption limits of $14,000 which would otherwise apply if you gave the money directly to the grandchild. Thus, as long as the gift is for education expenses such as tuition, and if the payment is made directly to the college or university, the annual gift tax limits will not apply.

As with all financial gifts, it’s important to consult with your estate planning attorney who can help you look at the big picture and identify strategies which will best serve your loved ones now and well into the future.


Monday, February 16, 2015

3 Steps to Follow When You Are Injured or in an Accident

The legal process involved in filing a personal injury lawsuit may deter some people from seeking damages regardless of the severity of their injury, but, having an idea of what you can expect at each stage of the process can help you determine if legal action is the appropriate route to take in your particular situation. An experienced personal injury attorney can counsel you as your case develops, and fight for your rights in the courtroom if necessary in order to achieve the outcome that's most favorable to you.

Regardless of how you were injured, there are certain steps that everyone who is in an accident or has been injured in some other way should take if they think they may have a personal injury lawsuit. The tips below provide an outline of what to keep in mind in the days, weeks and even months following your injury to ensure your potential personal injury claim is on solid legal ground.

A variety of situations can lead to injury, such as a slip/trip and fall, a car accident, a defective product, or a dog bite, among many others things. Following the suggestions below can help protect your right to file a claim for your injury in the near future, and will likely allow the filing process to run more smoothly than if you don't take these early preparations.

Put everything in writing.

Take notes on all the details of your injury. These don't have to be formal statements, just jotting down everything you can remember about the circumstances immediately before, during and after your injury can be a big help when it comes to filing your claim and jogging your memory. This sort of anticipatory preparation could mean the difference between your claim being invalid and you collecting all of the benefits to which you are entitled. It's even important to write down the conversations you had with others who may have been involved in the accident or injury claim, even if they were just a witness. Make sure that your physician or the hospital you visit for your injury notes the circumstances surrounding your injury in their records.

Take photographs.

If possible, take pictures of your injuries and the scene of the accident as soon as you can following an accident or injury. Focus on any visible cuts, bruises, burns, swelling or other marks on your body. Don't just take one picture, make sure you capture the injury and the scene from a variety of angles. This approach will hopefully result in some detailed pictures you can later present to the insurance company as evidence supporting your claim.

Obtain copies of your medical records.

Medical records can be an integral part of your claim, and have the power to make or break your case. Whether your medical records just serve to help you seek medical treatment from a specialist or if you need them to support your claim that your injuries were in fact caused by this accident and not a pre-existing condition, it's important to contact your physician and get copies of all records that may be pertinent to your case.


Monday, February 9, 2015

Refusing a Bequest

Most people develop an estate plan as a way to transfer wealth, property and their legacies on to loved ones upon their passing. This transfer, however, isn’t always as seamless as one may assume, even with all of the correct documents in place. What happens if your eldest son doesn’t want the family vacation home that you’ve gifted to him? Or your daughter decides that the classic car that was left to her isn’t worth the headache?

When a beneficiary rejects a bequest it is technically, or legally, referred to as a "disclaimer." This is the legal equivalent of simply saying "I don't want it." The person who rejects the bequest cannot direct where the bequest goes. Legally, it will pass as if the named beneficiary died before you. Thus, who it passes to depends upon what your estate planning documents, such as a will, trust, or beneficiary form, say will happen if the primary named beneficiary is not living.

Now you may be thinking why on earth would someone reject a generous sum of money or piece of real estate? There could be several reasons why a beneficiary might not want to accept such a bequest. Perhaps the beneficiary has a large and valuable estate of their own and they do not need the money. By rejecting or disclaiming the bequest it will not increase the size of their estate and thus, it may lessen the estate taxes due upon their later death.

Another reason may be that the beneficiary would prefer that the asset that was bequeathed pass to the next named beneficiary. Perhaps that is their own child and they decide they do not really need the asset but their child could make better use of it. Another possible reason might be that the asset needs a lot of upkeep or maintenance, as with a vacation home or classic car, and the person may decide taking on that responsibility is simply not something they want to do. By rejecting or disclaiming the asset, the named beneficiary will not inherit the "headache" of caring for, and being liable for, the property.

To avoid this scenario, you might consider sitting down with each one of your beneficiaries and discussing what you have in mind. This gives your loved ones the chance to voice their concerns and allows you to plan your gifts accordingly.


Monday, January 26, 2015

Problems with Using Joint Accounts as a Vehicle for Inheritance

When deciding who will inherit your assets after you die, it is important to consider that you might outlive the beneficiary you choose.  If you have added someone to your financial accounts to ensure that he or she receives this asset after you die, you might be concerned about what will happen should you outlive this person.

What happens to a joint asset in this situation depends upon the specific circumstances. For example, if a co-owner that was meant to inherit dies first, the account will automatically become the property of the other co-owners and will not be included in the decedent’s estate.  However, whether it is somehow included in this person’s taxable estate, and is therefore subject to state death tax, also depends on state law. Assuming the other co-owners were the only ones to contribute to this account, and that the decedent did not put any of his or her money into the account, there may be state laws that provide that these funds are not taxed.  The other co-owners might have to sign an affidavit to that effect and submit it to the state department of revenue with the tax return. Also, if the decedent’s estate was large enough to require the filing of a federal estate tax return ($5,340,000 in 2014) the same thing may be needed in order to exclude this money from his or her taxable estate. You would generally state that this person’s name was placed on the account for convenience, and that the money was contributed by the other co-owners.

If you are considering adding someone to your financial accounts so that they inherit it when you die, you should contact an experienced estate planning attorney to discuss your options. 


Monday, January 12, 2015

Injured By A Product: Do You Have A Claim?

Most of the items we use on a daily basis are manufactured by a business operating somewhere in the world.  Think about it:  the vacuum cleaner, water heater, cell phone, the things we take for granted every day.  What if the water heater malfunctioned and you were burned or the vacuum cleaner exploded while you were using it.  If these accidents were due to a defect in the product, you might be entitled to compensation.

The elements for a products liability claim are relatively simple but can be difficult to prove.  Generally, in order to have a successful claim based on a defective product, the product must be faulty in one of three ways: manufacturing, design or marketing.  A manufacturing defect is one that occurs during production of the product.  A defect in design is one that exists in all of the products.  That is, something about the product makes it inherently dangerous.  A marketing defect exists when the product is dangerous in some way and a party involved in the manufacturing or sale failed to provide sufficient instructions or warnings to prevent people from being injured.  It takes research and often experts to discover a defect and an experienced personal injury attorney should be utilized in this process.

The second element in a products liability case is injury.  Someone must have been injured or sustained a loss in order to bring a products liability action.  They must also prove that the defect was the cause of the injury.   Proving that the defect was the cause of the injury can be difficult in products liability cases and it takes someone knowledgeable in the field to be successful.

In addition, in order to have a valid products liability claim the product must have been being used in the way it was intended used or in a manner that was foreseeable.  For example, a person cannot use the clothing iron to flat iron their hair and then claim that they were burned.  The clothing iron was not intended to be used this way and this would cause the products liability action to fail.

In the event that a person is injured and they have satisfied all of the other requirements for a products liability action, they have a valid claim.  Bear in mind that it is often difficult to determine if all of the elements were met until you consult with a seasoned attorney.  Contact us for a free consultation to discuss the specifics of your case. 


Monday, January 5, 2015

Leaving a Timeshare to a Loved One

Many of us have been lucky enough to acquire timeshares for the purposes of vacationing on our time off.  Some of us would like to leave these assets to our loved ones.  If you have a time share, you might be able to leave it to your heirs in a number of different ways. 

One way of leaving your timeshare to a beneficiary after your death is to modify your will or revocable trust.  The modification should include a specific section in the document that describes the time share and makes a specific bequest to the designated heir or heirs. After your death, the executor or trustee will be the one that handles the documents needed to transfer title to your heir. If the time share is outside your state of residence and is an actual real estate interest, meaning that you have a deed giving you title to a certain number of weeks, a probate in the state where the time share is located, called ancillary probate, may be necessary. Whether ancillary probate is needed will depend upon the value of the time share and the state law.

Another way you could accomplish this goal is to execute what is called a "transfer on death" deed. However, not all states have legislation that permits this so it is imperative that you check state law or consult with an attorney in the state where the time share is located. A transfer on death deed is basically like a beneficiary designation for a piece of real estate. Your beneficiary would submit a survivorship affidavit after your death to prove that you have died. Once this document is recorded the beneficiary would become the title owner.

It is also important to investigate what documents the time share company requires in order to leave your interest to a third party. They may require that additional forms be completed so that they can bill the beneficiary for the annual maintenance fees or other charges once you have died.

If you want to do your best to ensure that your loved ones inherit your time share, you should consult with an experienced estate planning attorney today. 

 


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