* First, what is estate planning ?
Estate planning is a process to consider what you want if something happens to you or those you care about, such as injury, incapacity or death.
Good estate planning is more than just a simple Will. Estate planning also typically minimizes potential taxes and fees and sets up contingency planning to make sure your wishes regarding health care treatment are followed. In cases with estates of married couples, the spousal exemption may cover the first deceased properties, BUT the surviving spouse wants to make certain the remainder of the estate is processed according to their wishes.
On the financial side, a good estate plan coordinates what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401K plan), and other property in the event you became disabled or if you die.
On the personal side, a good estate plan includes directions to carry out your wishes regarding health care matters. If you ever become unable to give the directions yourself, someone you select would do that for you. Because they would be relying on your instructions, they would know when you would want them to authorize heroic measures and when you would prefer they pull the plug. The appointed person in this case is given specific instructions by YOU to follow.
* next, what is my estate?
The term "estate" consists of all the property a person owns or controls, that is the simple definition. This property may be in his or her sole name, held in a partnership, in a joint ownership arrangement, or through a Trust, and all other monies that would be generated on the person's death, such as through life insurance. So now it gets a little complicated..your estate includes:
(1) Real property and things attached to it (houses, buildings, barns, etc.);
(2) All personal property (including automobiles, bank accounts, stocks and bonds, mutual funds, stock options, cash, furniture, jewelry, art, collectibles, etc.);
(3) All businesses and business interests (sole proprietorship, partnerships, corporations, joint ventures, and the goodwill, inventory, tools and equipment, accounts receivable, and other business property, etc.); see it gets a little complicated pretty quickly
(4) Powers of appointment (the right to direct who gets property, both real and personal);
(5) Life insurance and annuity contracts, pension benefits, IRAs, 403(b)s, etc.;
(6) All debts and obligations owed to others;
(7) All debts and obligations owed to the person or estate; and
8) All other claims against others, such as for the pain and suffering from an auto accident.
An estate does not include assets a person has transferred to an irrevocable Trust during his or her lifetime. This is a legal instrument created during the estate planning process. A trust is legally a
separate'person'
If a Trust is irrevocable, it means the assets can’t be taken back. So once the transfer is made, the person no longer owns or controls those assets, even if the Trust continues to benefit that person.
. Property that the deceased has placed in a revocable Trust, such as a Living Trust, irrevocably belong to the Trust when the person who set up the Trust (Trustor) dies ( most like that is YOU or your spouse or Both of you ),
and all the assets of the Trust are no longer part of the deceased’s estate (though they may be considered for tax purposes).
Other property is also excluded from the estate when the property passes directly to another on the former owner’s death. contact us for details.
*When should I start my estate plan?
Well, the quick answer is NOW if you are reading this far into this site. You have to have the legal capacity to execute the prepared documents for the instruments to be enforceable. I know this sounds scary , but we can become mentally incapacitated at almost anytime, due to sudden sickness (a stroke), or through accidents. So now is the best time.
We all tend to think we don’t have to worry about this sort of thing until we’re old or sick, but we know from experience that isn’t true. If you drive a car, ride in a motor vehicle of any kind, fly, take medicinal drugs, or otherwise live a normal life, you could be in an accident, suffer a sudden drug reaction, or catch the latest epedemic,what will happen to your life and your affairs if you’re in a coma for 2 months?
One aspect of an estate plan will allow you to name the person to oversee your medical care and make health care decisions for you. If you don’t appoint someone and there is no family member to fill this role, the courts could appoint a stranger to decide what kind of care you should receive and whether you should receive life support or not.
We also don’t know when we’re going to die, another reason to make plans right away. Effective planning can save money in taxes and probate costs that can go to people you care about instead. If you die without planning, your property could go to people you don’t want to have it and property you wanted to pass on could be sold to pay taxes and costs.
The only time that you can prepare and implement an estate plan is while you are alive and have legal capacity to enter into a contract.
If you wait until you are unable to manage your own affairs or suffer from some other disability that affects your legal capacity, it will be too late to make an effective estate plan because the plans may be effectively challenged by those who assert that you lacked capacity at the time the documents were created or that you were subject to fraud, coercion or undue influence during the creation and implementation of your plan.
So, again, the best time to start an estate plan is now.
One more point before you contact us
*How can an estate plan prevent probate of my estate and why should I want to avoid probate? ( by the way , what is probate?)
Probate occurs when a court from gains jurisdiction over your estate in the event of your death.This happens when NO planning has been made.
The Durable Power of Attorney for Property ( an instrument YOU create with our supervision) enables your attorney-in-fact to handle your financial affairs and make last minute arrangements should your death be imminent.
A common technique used by your attorney-in-fact, who is often your Successor Trustee (The trustee who takes over when the initial trustee can no longer function) is to transfer property which is not currently held in your Trust into your Trust prior to you death so legal title to the property is held by the Trust at the time of your death.
Still with me here ? good
Both the use of trusts and Family Limited Partnership are legal entities which survive you after your death. Property held by a Trust or a Family Limited Partnership in legal title is held by that entity, and is thus not part of your estate at the time of your death. The instructions for the management of your property are set forth by you in these documents. This is the type of planning that needs to be NOW, so that all your assets are protected from probate.
Since you no longer own the property, it is not part of your estate at the time of your death. Only property you own at your death is subject to probate, so the assets owned by these entities would not have to go through that process.
The instructions for the management of your property are set forth in the Trust and Partnership documents by YOU, and the Trust or Partnership assets are managed by Successor Trustees or other Partners in the event of your incapacity or death.
In probate, the court oversees the transfer of assets from the deceased to others, but since the assets already belong to these entities there is no need to have the court involved, and the Trust or Partnership operates outside the court’s supervision. By getting a Trust or Family Limited Partnership in place and transferring ownership of particular properties to it, you avoid the need to get a court involved either with a Conservatorship (Conservatorship is a legal concept in the United States of America, where an entity or organization is subjected to the legal control of an external entity or organization, known as a conservator. Conservatorship is established either by court order (with regards to individuals) in the event of your incapacity, or probate in the event of your death. That means that should you die with an estate and NO plans, your life works are immediately under the supervision of the courts..it is too late. The courts normally appoint a conservator ( a person or a legal firm) to ascertain the proper disposition of your assets.
see why you want to avoid probate?
A Durable Power of Attorney for Property can help your representative deal with property that has not been transferred to a Trust. This document enables your attorney-in-fact to handle your financial affairs and make last minute arrangements should your death be in the near future.
Property can also pass outside of probate if it goes directly to a beneficiary on the death of the deceased. This is true for example of insurance policies, pension plans, and bonds that have a named beneficiary.
It’s true of property that is jointly owned with a right of Survivorship ..that means you own property together. On the death of one owner, the other owner(s) own that person’s interest automatically. Bank accounts can also be set up to pass directly to a beneficiary when the person who set up the account dies.
A well coordinated estate plan can not only avoid probate but help you maintain a semblance of control over your property even after your death.
To put all of this in simpler terms, the assets you have now can be compared to different jars...jars full of 'stuff'. IF you keep all your jars together with no directions about how the jars are to be distributed upon your death , then the state steps in and makes those decisions.
If on the other hand, you take your jars, and put them into different boxes, with labels on the boxes, directions about who gets what and when, then the 'stuff' in the jars is preserved.
contact us for a free consultation.
Saturday, January 23, 2010
Medical Malpractice...7 questions
what exactly is malpractice?
Malpractice may arise from a professional's misconduct or failure to use adequate levels of care, skill or diligence in the performance of the professional's duties that causes harm to another. Malpractice typically occurs if a professional fails to exercise his or her professional skills at the level of care, skill and learning applied in similar circumstances by the average reputable member of the profession. Comparison of performance is based upon the standard of care for the professional in the "community" - what other professionals in the same field do for their clients who are located in the same geographic area.
In order for malpractice to be actionable, injury, loss or damage must be suffered by the person who retained the professional's services, or those otherwise entitled to benefit from or rely upon the professional's services. If you have sustained losses due to the negligence of a professional, you should seek the advice of a malpractice attorney, and do so quickly to ensure your rights are preserved.
Can Doctors be the only professional to sue for malpractice?
In theory, any professional who renders services upon which you and others rely can commit malpractice. Often, the professional is licensed or regulated by the state.
Accountants, attorneys, actuaries, hospital, chiropractors, dentists, physicians, psychologists and therapists are typically the persons named in a "malpractice action." When others engage in malpractice, the action is usually not specifically called malpractice, but negligence.
Only those who hold themselves out as having special skills or abilities are held accountable in malpractice litigation. If you have sustained losses due to the negligence of a professional, you should seek the advice of a malpractice attorney, and do so quickly to ensure your rights are preserved.
What is medical malpractice?
Legal liability in most medical malpractice cases revolves around the concept of “negligence.” To win a medical malpractice case, you must prove:
1) the doctor had a duty to you (in other words, there was a doctor-patient relationship; e.g., if you call a new doctor on the telephone and talk to a nurse, a doctor-patient relationship has probably not yet been established);
2) the doctor did something in diagnosing or treating you that no reasonable doctor would have done in similar circumstances;
3) the doctor injured you; or
4) the doctor’s treatment errors caused your injury.
Although we refer to “doctors” in this material, a medical malpractice lawsuit can include all types of health care professionals: doctors, nurses, psychologists, and hospitals.
If you have sustained losses due to the negligence of a medical professional, you should seek the advice of a medical malpractice attorney, and do so quickly to ensure your rights are preserved.
If a surgery or procedure performed by doctor is NOT successful, is that malpractice?
Not every medical injury is the result of medical malpractice. Operations and treatments are not always successful; doctors don’t perform miracles. An unfortunate outcome or injury - even death – may occur, but unexpected circumstances do not mean that the doctor botched your surgery or treatment or committed medical malpractice. The law recognizes that medicine is not a precise science and that doctors cannot guarantee results. However, the doctor is liable if he or she does not live up to the appropriate professional standards.
For example, a doctor may commit medical malpractice if he or she fails to diagnose an illness, fails to do tests, makes surgical errors, delays treatment, or makes a medication error.
Medical malpractice litigation is usually highly contested, expensive, and strongly defended. It requires detailed knowledge of medical procedures and the use of expert testimony from other doctors. Medical malpractice cases require skilled legal advice. You are better served by having an experienced medical malpractice attorney weigh the pros and cons of filing suit and determining whether you should pursue the matter. Contact us immediately for experienced help.
Ok, what alternatives do I have instead of suing for malpractice?
Your first step could be to contact the profession who rendered the service. The professional may not be aware that there is a problem and that something needs to be done.
Most professionals are honest and diligent, although as they are still human they can make mistakes. Where the mistake can be corrected, many professionals who become aware of a problem take the necessary steps to provide a remedy -- without the need for any further action.
Most professionals welcome the opportunity to make things right when given the chance -- this helps you obtain immediate relief and lets the professional correct the problem before any others are hurt.
State regulatory boards and licensing authorities also often regulate the practice of professionals rendering service within the state. As part of the regulation of professional practices, these state agencies or organizations typically have review and disciplinary functions. Penalties and fines -- as well as the suspension or revocation of authority to render services in the state -- can be imposed by state agencies and organizations
If you feel that a professional has committed malpractice, and you have been damaged, you should consult with an attorney. That can set the wheels in motion both to enable you to recover for the harm you were caused and to stop offending behavior by that and other professionals. contact us
How to recover any damages due to malpractice?
Malpractice does not depend on "how nice" the professional was. What matters is what the professional did or failed to do. Would a similar professional in the community have done the same act or omission? Is there an injury, loss or damage as a result of the act or omission? Depending on your response to these (and similar) basic inquiries, there may have been actionable malpractice (i.e., malpractice that you can base a lawsuit on).
You yourself are rarely in a position to know whether or not there was malpractice, and the professional who performed the service may be unwilling to tell you he or she was at fault. Often an attorney has to hire an expert or consultant to help assess whether or not there was malpractice. Unless the facts are very clear, you generally would be asked to pay for the cost of that initial assessment.
If you have sustained losses due to the negligence of a professional, you should seek the advice of a malpractice attorney, and do so quickly to ensure your rights are preserved. contact us
Are emergency response teams , like EMR, firemen, even physicians exempt from Malpractice when they respond to an emergency situation?
Yes. Most states have enacted laws that protect medical and fire professionals from liability if they stop to assist at the scene of an accident.
Malpractice may arise from a professional's misconduct or failure to use adequate levels of care, skill or diligence in the performance of the professional's duties that causes harm to another. Malpractice typically occurs if a professional fails to exercise his or her professional skills at the level of care, skill and learning applied in similar circumstances by the average reputable member of the profession. Comparison of performance is based upon the standard of care for the professional in the "community" - what other professionals in the same field do for their clients who are located in the same geographic area.
In order for malpractice to be actionable, injury, loss or damage must be suffered by the person who retained the professional's services, or those otherwise entitled to benefit from or rely upon the professional's services. If you have sustained losses due to the negligence of a professional, you should seek the advice of a malpractice attorney, and do so quickly to ensure your rights are preserved.
Can Doctors be the only professional to sue for malpractice?
In theory, any professional who renders services upon which you and others rely can commit malpractice. Often, the professional is licensed or regulated by the state.
Accountants, attorneys, actuaries, hospital, chiropractors, dentists, physicians, psychologists and therapists are typically the persons named in a "malpractice action." When others engage in malpractice, the action is usually not specifically called malpractice, but negligence.
Only those who hold themselves out as having special skills or abilities are held accountable in malpractice litigation. If you have sustained losses due to the negligence of a professional, you should seek the advice of a malpractice attorney, and do so quickly to ensure your rights are preserved.
What is medical malpractice?
Legal liability in most medical malpractice cases revolves around the concept of “negligence.” To win a medical malpractice case, you must prove:
1) the doctor had a duty to you (in other words, there was a doctor-patient relationship; e.g., if you call a new doctor on the telephone and talk to a nurse, a doctor-patient relationship has probably not yet been established);
2) the doctor did something in diagnosing or treating you that no reasonable doctor would have done in similar circumstances;
3) the doctor injured you; or
4) the doctor’s treatment errors caused your injury.
Although we refer to “doctors” in this material, a medical malpractice lawsuit can include all types of health care professionals: doctors, nurses, psychologists, and hospitals.
If you have sustained losses due to the negligence of a medical professional, you should seek the advice of a medical malpractice attorney, and do so quickly to ensure your rights are preserved.
If a surgery or procedure performed by doctor is NOT successful, is that malpractice?
Not every medical injury is the result of medical malpractice. Operations and treatments are not always successful; doctors don’t perform miracles. An unfortunate outcome or injury - even death – may occur, but unexpected circumstances do not mean that the doctor botched your surgery or treatment or committed medical malpractice. The law recognizes that medicine is not a precise science and that doctors cannot guarantee results. However, the doctor is liable if he or she does not live up to the appropriate professional standards.
For example, a doctor may commit medical malpractice if he or she fails to diagnose an illness, fails to do tests, makes surgical errors, delays treatment, or makes a medication error.
Medical malpractice litigation is usually highly contested, expensive, and strongly defended. It requires detailed knowledge of medical procedures and the use of expert testimony from other doctors. Medical malpractice cases require skilled legal advice. You are better served by having an experienced medical malpractice attorney weigh the pros and cons of filing suit and determining whether you should pursue the matter. Contact us immediately for experienced help.
Ok, what alternatives do I have instead of suing for malpractice?
Your first step could be to contact the profession who rendered the service. The professional may not be aware that there is a problem and that something needs to be done.
Most professionals are honest and diligent, although as they are still human they can make mistakes. Where the mistake can be corrected, many professionals who become aware of a problem take the necessary steps to provide a remedy -- without the need for any further action.
Most professionals welcome the opportunity to make things right when given the chance -- this helps you obtain immediate relief and lets the professional correct the problem before any others are hurt.
State regulatory boards and licensing authorities also often regulate the practice of professionals rendering service within the state. As part of the regulation of professional practices, these state agencies or organizations typically have review and disciplinary functions. Penalties and fines -- as well as the suspension or revocation of authority to render services in the state -- can be imposed by state agencies and organizations
If you feel that a professional has committed malpractice, and you have been damaged, you should consult with an attorney. That can set the wheels in motion both to enable you to recover for the harm you were caused and to stop offending behavior by that and other professionals. contact us
How to recover any damages due to malpractice?
Malpractice does not depend on "how nice" the professional was. What matters is what the professional did or failed to do. Would a similar professional in the community have done the same act or omission? Is there an injury, loss or damage as a result of the act or omission? Depending on your response to these (and similar) basic inquiries, there may have been actionable malpractice (i.e., malpractice that you can base a lawsuit on).
You yourself are rarely in a position to know whether or not there was malpractice, and the professional who performed the service may be unwilling to tell you he or she was at fault. Often an attorney has to hire an expert or consultant to help assess whether or not there was malpractice. Unless the facts are very clear, you generally would be asked to pay for the cost of that initial assessment.
If you have sustained losses due to the negligence of a professional, you should seek the advice of a malpractice attorney, and do so quickly to ensure your rights are preserved. contact us
Are emergency response teams , like EMR, firemen, even physicians exempt from Malpractice when they respond to an emergency situation?
Yes. Most states have enacted laws that protect medical and fire professionals from liability if they stop to assist at the scene of an accident.
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