Elkton, MD Personal Injury & Estate Planning Law Blog

Five Common Reasons a Will Might Be Invalid

There are several reasons that a will may prove invalid. It is important for testators to be aware of these pitfalls in order to avoid them.

Improper Execution

The requirements vary from state to state, but most states require a valid will to be witnessed by two people not named in the will. Some jurisdictions require the document to be notarized as well. Although these restrictions may be relaxed if the will is holographic (handwritten), it is best to satisfy these requirements to ensure that the testamentary document will be honored by the probate court.

Lack of Testamentary Capacity

Anyone over the age of 18 is presumed to understand what a will is. At the end of life, individuals are often not in the best state of mind. If court finds that an individual is suffering from dementia, is under the influence of drugs or alcohol, or is incapable of understanding the document being executed for some other reason, the court may invalidate the will on the grounds that the individual does  not have testamentary capacity.

Replacement by a Later Will

Whenever an individual writes a new will, it invalidates all wills made previously. This means that a will might be believed to be valid for months until a more recently executed document surfaces. The newest will always takes precedence, controlling how assets should be distributed.

Lack of Required Content

Every will is required to contain certain provisions to carry out its purpose. These provisions, ensure that the testator understands the reason for executing the document.  Although these provisions vary from state to  state, some are common to all jurisdictions. It should be clear that the document is intended to be a will. The document  should demonstrate an individual’s wishes in regard to what should happen to his or her property after death. A proper will should also include a provision to appoint an executor to act as an agent for the estate and enforce the terms of the will. If the document  lacks any of these provisions, the will may be declared invalid. 

Undue influence or fraud

A will that was executed under undue influence, coercion or fraud will be invalidated by a court. If a will has been presented to a testator for a signature as if it were any other document, like a power of attorney or a business contract, the court will find that the will was fraudulently obtained and will not honor it. If an individual providing end of life care with exclusive access to the testator threatens to stop care unless a will is modified, that modification is considered to be the result of undue influence and the court will not accept it.

Whiplash occurs when a person suffers a sudden impact that causes the head to snap forwards, backwards, or sideways. The violent force of this jerking motion causes the muscles, tendons, and ligaments to stretch or tear. Such injuries are sometimes classified as sprains or strains of the neck. Whiplash is most commonly the result of a car accident, but can also be the result of participation in contact sports like football, or from being the victim of an act of violence. Any time the neck is hyperextended or hyperflexed, a person is at risk for whiplash.

Symptoms of whiplash include muscle soreness, stiffness, and tenderness. Victims also typically suffer reduced range of motion. Other common maladies associated with whiplash include headaches, dizziness, fatigue, jaw pain, numbness and weakness in the extremities. Some people with whiplash experience ringing in their ears, blurred vision, and memory problems, though these symptoms are less common. Many people ignore whiplash symptoms which may prolong or worsen their consequences. Those who blame the soreness and stiffness of whiplash  on sleeping in an uncomfortable position and dismiss the pain as temporary often fail to seek treatment in a timely fashion. This can lead to more serious problems, including depression, anxiety, and sleep disturbances. It is important to seek medical attention and to treat whiplash symptoms as soon as possible after an accident in order to avoid complications. 

Doctors' opinions vary on the best way to treat whiplash symptoms. Different doctors may recommend icing the affected area, using painkillers or drugs to numb the pain, using a neck brace or collar to immobilize the neck, physical therapy and exercises to stretch the sore muscles, acupuncture, massage, or chiropractic manipulation. Many physicians may recommend a combination of strategies. Only a licensed medical professional is qualified to give advice on how to treat whiplash. 

An skilled attorney can handle the legal aspects of the accident to help ensure that the injured party can concentrate on the important work of physical recovery. The lawyer will obtain police reports, witness statements and other evidence to prepare a lawsuit against the individual responsible for the whiplash injury.  The lawyer will also document medical expenses, seek approval for required tests, and file a claim or a lawsuit on behalf of an injured party. The lawyer’s experience in dealing with insurance companies ensures that victims of whiplash-related injuries are reimbursed for their pain and suffering as well as for their medical expenses. 

What is soft tissue damage and how is it treated?

Soft tissue damage refers to damage done to the muscles, ligaments, and tendons throughout the body.  Often referred to as sprains, strains, contusions and tendonitis, soft tissue damage is usually caused by a traumatic event such as a slip and fall or a traffic accident.  It can result in swelling, bruising, and loss of function.   Immediately after an injury, the area affected by soft tissue damage should be protected, rested from any strenuous activity, kept cool with ice to regulate swelling, compressed and elevated.  If pain continues after 72 hours, it is likely that the injury is more than a simple sprain or strain.  When the soft tissue is inflamed for a long period of time it could result in serious, long-term damage.

When soft tissue damage exists in the back and the spinal column is compressed, it may result in what is commonly referred to as a pinched nerve.  Each vertebrae is separated by a gel filled sac that acts as a cushion between the bones.  When the muscles surrounding and supporting the spine are inflamed, it pushes the bones together, squeezing the sac and causing it to bulge, called a bulging disc.  In more serious cases, the sac actually ruptures.  This is called a herniated disc.  Besides being incredibly painful, these conditions can result in weakness or numbness in the extremities, known as radiculopathy.

MRI can confirm the existence of a bulging or herniated disc.  Treatment varies depending on the severity of the case.  For some, physical therapy and chiropractic manipulation will be enough to heal the damaged area.  This is considered conservative treatment.  There is the possibility that an epidural injection to the affected area could help reduce inflammation and give the injury an opportunity to heal.  If nothing else is successful, spinal fusion or decompression may be an option to reduce pain. A doctor should be consulted before engaging in any sort of treatment.  

Commercial Lease Disputes

Sometimes a business grows more rapidly than expected and its leased space is no longer large enough. Other times a business finds itself losing money and unable to pay rent. In those instances, it is the commercial tenant that desires to break its lease. There are times, however, when a commercial landlord seeks to break a lease and even threatens eviction for reasons that may lack merit.

A commercial lease is basically a contract that establishes a relationship between the parties and outlines the respective rights and obligations of each. These documents can be confusing and complex. Resolving a commercial lease dispute often involves business, contract and real estate laws.

Unlike residential leases, where the law heavily favors tenants, in the commercial world, the law tends to be more even-handed. The terms of the lease (even if all you have is an oral agreement) are most often going to be what governs the outcome of the dispute. This reflects the view that both parties involved in commercial lease agreements are sophisticated business entities that can protect their interests.

Since the terms of the lease are most likely going to govern if you file a lawsuit and take your dispute to court, it is essential that anyone evaluating your case examines your lease in depth. Even if an out-of-court settlement is negotiated, familiarity with your particular lease agreement is crucial for anyone advising you. Many commercial leases contain a dispute resolution clause that might require mediation or arbitration. These options can often lead to a resolution in less time and with less expense than traditional litigation.

Assessing damages and amassing the means to prove those damages is another important component to handling a commercial lease dispute. Typically, monetary damages are sought. There might be a clause in the lease regarding attorneys' fees. Again, it is vital that a competent and informed review of your particular lease is made to properly guide your case.

Contact an experienced business law attorney today to discuss your commercial lease dispute and learn what legal options are available.

10 Things to Bring to Your First Meeting With Your Attorney

Hiring an attorney is not something most people do every day, so being a little bit unsure of how things are going to go is perfectly normal. To help ease some of the stress and make the process go more smoothly, take time to compile and bring the following list of items with you to your first meeting.

1. A list of all your contact information. Your lawyer is going to need to know your full legal name and any other names you go by, your address, phone number(s), and email address.
   
   
2. The names and contact information of other people that might get involved with the case - people on the other side, people on your side, witnesses, doctors, police, insurance agents, etc.  If a case has already been filed against you, the name(s) and contact information of the lawyer(s) representing the other side will also be needed.
   
   
3. A typed up or written down account of the circumstances surrounding the situation that is causing you to seek legal help. Try to make your summary of events as detailed as possible. If writing or typing isn’t one of your strengths, try creating an audio recording.
   
   
4. A timeline of events. The best way to do this is to buy a calendar, write all the important events on it, and bring it to the meeting with you.
   
   
5. Any materials (including documents, digital files and photos) you have that relate to your legal matter. If possible, put the documents in an order that makes sense when paired with the summary of events and timeline you put together above.
   
   
6. A list of information (particularly documents) you wish you had or thought you had but can’t seem to find now.
   
   
7. The truth. You don’t have to swear to tell the truth, the whole truth, and nothing but the truth unless you are taking the witness stand in the courtroom, but lying to your attorney will not help your case. 
   
   
8. Bring a good idea of what you hope to get out of the case. Think about what winning looks like to you. It is difficult for your attorney to figure out how best to help you if they don’t know what you want. 
   
   
9. An open mind paired with a good sense of what your gut is telling you. Your lawyer may suggest a solution that you would never have imagined, or let you know that you don’t have a case. Listen to what they tell you, but don’t be afraid to share your thoughts on their suggestions.
   
   
10. A list of any questions you have. The meeting will be far more productive if you leave without nagging questions or lingering doubts.

During the estate planning process, your attorney will draft a number of legal documents such as a will, trust and power of attorney which will help you accomplish your goals. While these legal documents are required for effective planning, they may not sufficiently convey your thoughts and wishes to your loved ones in your own words. A letter of instruction is a great compliment to your “formal” estate plan, allowing you to outline your wishes with your own voice.

This letter of instruction is typically written by you, not your attorney. Some attorneys may, however, provide you with forms or other documents that can be helpful in composing your letter of instruction. Whether your call this a "letter of instruction" or something else, such a document is a non-binding document that will be helpful to your family or other loved ones.

There is no set format as to what to include in this document, though there are a number of common themes.

First, you may wish to explain, in your own words, the reasoning for your personal preferences for medical care especially near the end of life. For example, you might explain why you prefer to pass on at home, if that is possible. Although this could be included in a medical power of attorney, learning about these wishes in a personalized letter as opposed to a sterile legal document may give your loved ones greater peace of mind that they are doing the right thing when they are charged with making decisions on your behalf. You might also detail your preferences regarding a funeral, burial or cremation. These letters often include a list of friends to contact upon your death and may even have an outline of your own obituary.

You may also want to make note of the following in your letter to your loved ones:

• an updated list of your financial accounts with account numbers;
• a list of online accounts with passwords;
• a list of important legal documents and where to find them;
• a list of your life insurance and where the actual policies are located;
• where you have any safe deposit boxes and the location of any keys;
• where all car titles are located; the
• names of your CPA, attorney, banker, insurance advisor and financial advisor;
• your birth certificate, marriage license and military discharge papers;
• your social security number and card;
• any divorce papers; copies of real estate deeds and mortgages;
• names, addresses, and phone numbers of all children, grandchildren, or other named beneficiaries.

In drafting your letter, you simply need to think about what information might be important to those that would be in charge of your affairs upon your death. This document should be consistent with your legal documents and updated from time to time.

Just Discovering Your Injury:  Do You Still Have a Claim?

A person worked with certain chemicals for many years and has just been diagnosed with cancer as a result of this exposure.  Or a person went in for surgery a long time ago and has just been alerted to the fact that someone left a surgical sponge inside them.  The point is that some injuries can remain unknown for long periods of time before they begin to have an effect or the person becomes aware of their existence.  These are called latent injuries and they are quite common.  If you have suffered a latent injury and have just discovered it, you might be worried that it is too late to make a claim.  Luckily, this is usually not the case.

A statute of limitations is the time period in which a claim can be filed.  After the statute of limitations has expired, no case can be brought as it is considered time barred.  Each type of claim has its own proscribed time limit and these vary from state to state and on the Federal level. Although most personal injury claims are subject to a statute of limitations, the law provides an exception for latent injuries

Usually, the statute of limitations begins to run at the time that the injury occurred.  This could cause a problem for someone who was unaware of his or her injury and is just discovering it now.  Some people do not become aware of their injuries until years after the statute of limitations has expired.  This is where the exception comes into play.  The law tolls or delays the start of the statute of limitations until the person knew or should have known of the injury.  This is an objective standard so the courts will consider what is reasonable under the circumstances in each case.  If reasonable, this exception allows a person who has just discovered his or her injury to make a claim even if they are well past the statute of limitations period. 

If you have been injured or suffered some type of harm and are just discovering it now, and you want to determine if you can make a claim, it is your best interest to contact a qualified personal injury attorney today.

“We Don’t Get Paid Unless We Win” – What does it all mean?

Each day, thousands of advertisements for personal injury lawyers can be found in local newspapers, on television stations and even on social networks like Facebook and LinkedIn. Most of these ads explain that the firm doesn’t collect any fees unless they win. Of course, there’s usually a catch with this statement and it centers around what the advertising firm means by “fees” and what other costs you might be expected to pay regardless of whether or not you win your case.

Attorney fees usually involve the time and labor of the attorneys and their staff. These fees do not include the out-of-pocket case costs that are inevitable in any court proceeding. So while you may not be required to pay any attorney fees upfront or at all (unless you win), you may be required to pay all related case costs. Case costs are usually expenses charged by third parties for work on your case. These may include court filing fees, expert witness fees, cost of obtaining medical records, court reporter fees, etc. Depending on the scope of your case and the duration of these proceedings, these fees can easily be thousands of dollars.

While some firms will require you to pay case costs as they are incurred, others won’t require upfront payment (especially, if you have a very strong case) and will instead deduct these expenses from the final settlement. Combined with legal fees, these costs may add up to 50% or even more of the settlement. In selecting an attorney for your personal injury matter, it’s important that you take time to understand what expenses, in addition to attorney fees, you will incur.

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. 

How Much of Your Estate Will Be Left Out of Your Will? (It’s Probably More Than You Think)

You’ve hired an attorney to draft your will, inventoried all of your assets, and have given copies of important documents to your loved ones. But your estate planning shouldn’t stop there. Regardless of how well your will is drafted, if you do not take certain steps regarding your non-probate assets, you run the risk of unintentionally disinheriting your chosen beneficiaries from a significant portion of your estate.

A will has no effect on the distribution of certain types of property after your death. Such assets, known as “non-probate” assets are typically transferred upon your death either as a beneficiary designation or automatically, by operation of law.

For example, if your 401(k) plan indicates your spouse as a designated beneficiary, he or she automatically inherits the account upon you passing.  In fact, by law, your spouse is entitled to inherit the funds in your 401(k) account.  If you wish to leave your 401(k) retirement account to someone other than a surviving spouse, you must obtain a signed waiver from your spouse indicating her agreement to waive her rights to the assets in that account.

Other types of retirement accounts also transfer to your beneficiaries outside of a probate proceeding, and therefore are not subject to the provisions of your will.  An Individual Retirement Account (IRA) does not automatically transfer to your spouse by operation of law as is the case with 401(k) plans, so you  must complete the IRA’s beneficiary designation form, naming the heirs you want to inherit the account upon your death. Your will has no effect on who inherits your IRA; the beneficiary designation on file with the financial institution controls who will receive your property.

Similarly, you must name a beneficiary on your life insurance policy. Upon your death, the insurance proceeds are not subject to the terms of a will and will be paid directly to your named beneficiary.

Probate avoidance is a noble goal, saving your loved ones both time and money as they close your estate. In addition to the assets listed above, which must be handled through beneficiary designations, there are other types of assets that may be disposed of using a similar procedure.   These include assets such as bank accounts and brokerage accounts, including stocks and bonds, in which you have named a pay-on-death (POD) or transfer-on-death (TOD) beneficiary; upon your passing, the asset will be transferred directly to the named beneficiary, regardless of what provisions are in your will. Depending on the state, vehicles may also be titled with a TOD beneficiary.

To make these arrangements, submit a beneficiary designation form to the applicable financial institution or motor vehicle department. Be sure to keep the beneficiary designations current, and provide instructions to your executor listing which assets are to be transferred in this manner.  Most such designations also allow for listing of alternate beneficiaries in case they predecease you.

Another common non-probate asset is real estate that is co-owned with someone else where the deed has a survivorship provision in it.  For example, many deeds to real property owned by married couples are owned jointly by both husband and wife, with right of survivorship.  Upon the passing of either spouse, the interest of the passing spouse immediately passes to the surviving spouse by operation of law, irrespective of any conflicting instructions in your will.  Keep in mind that you need not be married for such a provision to be in effect; joint ownership of real property with right of survivorship can exist among any group of co-owners.  If you want your will to be controlling with regard to disposition of such property, you need to have a new deed prepared (and recorded) that does not have a right of survivorship provision among the co-owners.

You’ve spent a lifetime of hard work to accumulate your assets and it’s important that you take all necessary steps to ensure that your wishes regarding who will get your assets will be honored as you intend. Carve a few hours out of your busy schedule, several times a year, to review all of your deeds and beneficiary designations to make certain that they remain consistent with your objectives.
 

Seven Tips for Negotiating Your Divorce Settlement

Regardless of how long you have been married, negotiating a settlement is the most important part of the divorce process. Although it is no easy task, working with your spouse to arrive at mutually agreed terms of your marital dissolution is easier on your wallet and your psyche. Whatever conditions caused the breakdown in the marriage are likely still present throughout the divorce negotiation, exacerbated by emotions such as anger and fear as you each transition into the next stage of your lives.

However, staying focused on what’s best for your future will serve you well as you navigate these tumultuous waters. Taking your divorce case to trial and letting the court decide what will become of your property or children is rarely in your best interest. Although you may not get everything you hoped for during a settlement negotiation, you will save a tremendous amount of money, time and emotional anguish.

Divorce settlement negotiations involve a degree of both skill and art, both of which can be attained by following a few simple tips. Even if your attorney is doing the negotiating on your behalf, it is important that you are clear regarding your priorities, so you can make decisions that are truly in your own best interest for the future life you are establishing post-divorce.

Negotiating a settlement agreement necessarily involves a certain amount of give and take, on both sides, so keep in mind that you most likely won’t get everything you want. But following the tips below can help ensure you get what’s most important to you.

• Establish clear priorities.
• Know what you can give up completely, where you can be flexible and those critical items where you are unable to budge.
• Be realistic about your options and the bigger picture, so you can be reasonable when you must “give” something in order to “take” something.
• Stay focused on the negotiation itself, and your future; avoid recalling past resentments or re-opening past wounds. Your divorce settlement negotiation is no place for “revenge” which can ultimately delay your case and cost you thousands in unnecessary legal expenses.
• If your soon-to-be-ex-spouse becomes emotional or subjects you to personal attacks, don’t take it personally. This may be easier said than done, but it is important to stay focused on your priorities and realize that such “noise” does not get you any closer to a settlement agreement.
• If you spouse presents you with a settlement offer, consider it carefully and discuss it with your attorney. It may not include everything you want, but that may be a fair trade off in order to finalize your divorce and move on with your new life.
• If you are negotiating your own settlement agreement, consult with an attorney before you make an offer to your spouse or sign any proposed agreement.

By keeping the focus on your priorities, and avoiding the emotionally-charged aspects of your failed marriage, you can ensure you negotiate a divorce settlement agreement that you can live with.