The Legal Insider

June 2016

Who Needs a Will?

Who Needs a Will? People who are young and healthy often overlook the need to allocate their assets in the case of untimely death. For most people, death is an unpleasant topic, and they don't want to think about the time in which they will no longer be here, so they avoid the task of drafting and executing a will.

What many people don't realize, however, is how much harder the distribution of their assets will be if they die without executing a legal will. Each state has laws regarding how much spouses, children, and issue must receive when an individual dies intestate (without a legal will). These distributions may not be in accordance with the wishes of the deceased.

Why Should I Write a Will?

Put simply, a will ensures that your wishes are carried out when it comes to distribution of property after death. Family members sometimes have conflicting expectations of their entitlement to assets. They may expect to inherit something that the law will give to someone else in the case of an intestate dispersal of assets, or they may feel entitled to property or liquid assets that are intended for other family members. A will makes it very clear who should inherit what.

Death is a very difficult time for immediate family members. Confusion often reigns. With all the emotional turmoil that family member feels, it is unnecessary to burden them with more confusion regarding distributing assets. A will makes the intentions of the deceased clear, which provides relief for those left behind.

Is a Will Better Than a Trust?

Wills are subject to probate. This can often be a lengthy and expensive process, especially if the will is contested. Sometimes there are multiple wills and a court has to figure out which will most accurately represents the wishes of the deceased.

For this reason, many people elect to transfer the assets to their loved ones in legal avenues other than a will. A trust is that is legally set up prior to death may be easier to execute than a will, but this depends on a number of factors such as the nature of the relationship, the assets being transferred, and the conditions of the trust.

Spouses can pass property to each other through many different avenues other than wills and trusts. Lifetime gifts and joint tenancy rights are ways for spouses to pass assets and property to each other without paying estate taxes or relying on a will. A financial advisor will work with an estate attorney to ensure the best ways to transfer your wealth to your loved ones in the case of death, and will advise you of the best options for your particular assets and desired heirs.

Do I Need a Personal Injury Lawyer?

Do I Need a Personal Injury Lawyer? Many people decide to hire a personal injury lawyer after they have been involved in an accident or car crash that has resulted in injury or monetary loss of some kind. You can also file a personal injury lawsuit against the insurance company. Many choose this route when they have suffered only mild injuries and don't have the time to research the legal claim process themselves.

Can I Afford a Personal Injury Lawyer?

Whenever people think of a hiring a lawyer, the first thing they fear is the amount of legal fees they have to pay to hire the lawyer. However, almost all personal injury lawyers work on a contingency fee basis. This means that your lawyer will not be paid any money or legal fees unless you win or settle your case outside of court.

Unless you have lots of experience handling personal injury cases and have had the chance to take similar cases to a jury, you wouldn't have the experience required to know whether you are hitting a home run or if the insurance company is taking advantage of you. Insurance companies are more likely to offer you much less compensation and settle your case for a lower amount when you represent yourself because they know you are not experienced and do not know the value of your case.

Where Can I Find A Lawyer?

You can find personal injury lawyers from a selection of sources such as LegalMatch. You may seek advice from relatives, friends, your doctor or other health care professionals. You may also try contacting a State Bar lawyer referral service. There are many ways to find a personal injury lawyer, but there is no direct answer on how to find a good lawyer.

When Can I Be Charged With Assault and Battery?

When Can I Be Charged With Assault and Battery? If you are like most people, you have heard the terms assault and battery used interchangeably, so it would be difficult to know what each term means. Assault and battery are two separate crimes and a person can be charged with each of them separately. In short, an assault is an attempt to threaten or injure another person, while battery is actually contacting another person in a harmful or offensive manner.

When Can I Be Charged With Assault?

A person can be charged with assault even if they do not actually hurt or contact another person. Assault is defined as an "attempt" to injure a person. This attempt of injuring another can come in forms of threats or threatening behavior. No contact is necessary for someone to be charged with assault. However, even though actual contact is not necessary for an assault offense, a conviction for an assault requires the person committing the act to have a general intent. This means that the assault cannot be accidental and the offender must have intended to actually scare or frighten the victim.

For example, if Person A states to Person B "I am going to kill you" and this causes Person B to fear that Person A was actually going to kill them, an assault has been committed. However, if your friend teasingly says to you that they are going to "kill you" and you know they are joking, there is no assault.

When Can I Be Charged With Battery?

You can be charged with battery when you intentionally touch, contact, or strike another person without that person's consent. Words or threats alone would not constitute a battery charge. The defendant would need to physically make contact on the other person to commit battery. The touch or contact can be as simple as a slight push. As long as the other person did not consent to the touch, the defendant can be charged with battery.

However, intent is still required. That means you cannot be charged with battery if the touch or contact was accidental. For example, you would not be charged with battery if you accidently bumped into someone while rushing to work.

Real Estate Information for Newlyweds

Real Estate Information for Newlyweds As a newlywed, the excitement of getting married can wear off as soon as you come back from the honeymoon. Questions like where to live, whose health insurance to use, and whether to have a joint bank account consume you and bring you down from your initial married bliss. The reality is there are several things all newlyweds should consider.

Community Property vs. Common Law

Currently, there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Additionally, Alaska is the only opt-in community property state. It gives both parties the option to make their property community property.

In community property states, the money that is earned by either spouse during marriage plus all property bought with those earnings are community property. In other words, the property is owned equally by husband and wife. By that same token, all debts incurred during the marriage are considered debts of the couple. In general, at the death of one spouse, that spouse's half of the community property is passed to the surviving spouse.

Separate property can still be owned by a spouse in a community property state. Any property inherited before the spouse was married is considered separate property. Likewise, property given as a gift to one spouse or inherited by one spouse is separate property. A person is entitled to leave his or her separate property to anyone and is not required to give it to the surviving spouse.

Those states which are not community property states use the "common law" system. In these states, ownership is determined by the deed, registration document, or other title paper. It doesn't matter if you used earnings during your marriage as the documentation prevails. Common law states also allows the owner of any property, real or personal, to leave your property to whomever you choose.

Home Ownership

When you buy a new home and you're close to closing, you'll need to think about how you want to hold title. A couple can hold title as tenants in common. Each tenant in common owns a specified interest in the property and it need not be equal. Each tenant can will his or her share to whomever he or she wishes.

The most common way for married couples to hold title is as joint tenants with the right of survivorship. When title is held in this manner, all co-owners must take title at the same time. All co-owners own equal shares and the survivor co-owner winds up owning the entire property. In other words, after a joint tenant dies, the survivor joint tenant(s) receives the deceased's share. In some states, when husband and wife use this method, it is called tenancy by the entireties.

If you live in a common law state, home ownership is dictated by whether both spouses hold title or only one spouse is listed on title.

How Are Debts Allocated?

Whether you are liable for your spouse's debt depends on whether you live in a community property state versus common law state. Debts incurred during marriage in community property states are owed by both spouses. It is important to note that this only applies to debt incurred during marriage. If you or your spouse incurs a debt like a student loan before you're married, it does not automatically become a joint debt at marriage. On the other hand, debts incurred by one spouse in common law states are generally owed by that spouse alone, unless the debt was for a family necessity such as food or shelter.