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The Milestones in Probate/Estate Administration
Understanding Terms.
“Probate” refers to the process of authenticating a deceased person’s will. “Estate administration” is the process of settling the affairs of a deceased person, whether the person died with a will or without. A “testate estate” is an estate with a will, but an “intestate estate” is an estate in which the person did not have a will. The “residuary” or residue” is what is left over after debts, taxes, and expenses are paid and specific gifts of property are distributed. So, a “residuary beneficiary” is one of the people entitled to the residue.
When estate administration is begun, the court appoints a person or a bank with a trust department as the decedent’s “personal representative.” The personal representative swears an oath as a court officer to execute the laws of the state in settling the decedent’s affairs. In a testate estate, this person is sometimes called the “executor,” and in an intestate estate, the person is sometimes called the “administrator.” A personal representative is sometimes also referred to as a “fiduciary,” which is a person who undertakes duties for and is responsible to others. In Iowa, when the court orders the appointment of the personal representative, the clerk of court then issues to that person “letters of appointment,” which is the personal representative's proof of authority.
Why do this?
The purpose of estate administration breaks down into three main objects and phases:
Collecting the decedent’s property (and making the appropriate reports to the court, taxing authorities and beneficiaries (or statutory heirs));
Paying the decedent’s debts and taxes and any estate or inheritance taxes owed; and
Distributing the net balance of the decedent’s property to the intended beneficiaries (or the statutory heirs).
We need a court-appointed personal representative mainly because of the the character (and sometimes the extent) of the decedent's property. For example, if the decedent was the sole owner of stock in a publicly traded company (whether it is Google or ABC Widgets, Inc.), the shares need to be liquidated or transferred in kind to the beneficiaries. The company whose stock the decedent owned and its transfer agent obviously are not in business to decide who has the power to sell or reregister the stock or who gets the stock from the decedent's estate. They want good documented authority of a person authorized to act for the decedent, and that comes in the form of a court-certified document (in Iowa called "Letters of Appointment") that shows who has that power. Similarly, the marketable title rules in Iowa dictate that an interest in land be conveyed by a personal representative if the decedent was the sole owner of an interest in that land. On the other hand, if these types of property are held by the decedent, for example, in joint tenancy, there may not be a need for a personal representative because the law dictates to whom the property goes and because there is only a need to present proof of death to complete the transfer.
Important Milestones.
In Iowa, estate administration has a number of important milestones and deadlines, all of which are typically accomplished through the cooperation and assistance of the estate’s attorney. Upon appointment, the executor must give notice by mail and by publication in the newspaper of the administration of the estate. The mailed notice must go to known beneficiaries and creditors, and a notice must be served upon the Iowa Department of Human Services. The claims of creditors and challenges to the will are cut off four months after the second publication of notice in the newspaper. Within 90 days of appointment, the personal representative is required to make report (frequently called the “probate inventory”) to the court. Within nine months of appointment, the personal representative must file Iowa inheritance tax and federal estate tax returns, if required. The estate's income tax year is also an important factor in administering an estate.
Income Taxes. An estate, like a person, is a taxpayer. While it can be on a calendar year, it typically has a fiscal year that ends on the last day of the month preceding the month of death (e.g., if the death is on the 15th of May, the fiscal year ends on April 30). The estate will have its own taxpayer identification number. The estate will file its own tax return, Form 1041 Fiduciary Income Tax Return. Typically, the income of the estate will flow through the estate to the residuary beneficiaries. In the final year, if expenses exceed income, as they often do in a first and final tax year, the “excess deductions” flow through to the residuary beneficiaries.
On the Matter of Fees.
Iowa probate fees tend to be somewhat modest when compared to those of other states. The court costs assessed are minimal, $30 for the first $25,000 of valuation and $25 for each additional $25,000 of valuation (a basic $300,000 estate will pay about $400 in court costs when costs for orders and certifications are included). The executor is entitled to a fee equal to approximately two percent of the gross value of the estate. Likewise, the Iowa Probate statute allows the attorney for the estate a reasonable fee on the same schedule as the executor. A shorthand calculation of the statutory fee is: (gross value of the estate - 5,000) x .02 + 220 = statutory fee. It should also be noted that the executor may have an itemized statement from the attorney for the estate, and the fees must be approved by the court. The time and effort involved for both the executor and the attorney in settling the affairs of a decedent generally is substantial and involves significant expertise on the part of the attorney to make things go smoothly. If the executor is also a beneficiary, it may not be in the executor's interest to take the fee because the fee is taxable income to the executor (often the executor is also a beneficiary entitled to all or a large portion of the same monies free of income tax.
How Long Must This Go On?
The time necessary to administer an estate varies greatly from estate to estate. So, before comparing any two estates, be sure that you are comparing apples to apples: Great Aunt Bessie might have had two certificates of deposit and a rocking chair and may have been over and done with in five months, which is an estate much different to administer than Grandpa Fred's 160 acres of farmland in two counties, crops in the ground, and shed full of implements, which might easily last a couple of years. Many estates can be fully administered in a matter of nine to twelve months. The things that have an impact on the length of estate administration include the following, for example: the type and location of the property; the difficulty of liquidating the decedent's assets, if necessary; whether there are claims for unpaid debts; whether there are challenges to the will; and the level of cooperation of the executor and beneficiaries. Lastly, an Iowa estate cannot be officially closed by the court until the Iowa Department of Revenue issues a statement to the estate certifying that all taxes owed the State of Iowa have been paid, which depends upon the filing of the final fiduciary income tax return and the department's internal review process.
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Angie Thomas took office as the 51st president of the Iowa Association for Justice on November 10, 2023, at the organization's annual meeting.
Q: What is a marriage? A: A marriage is a relationship between two individuals that is usually recognized by civil authority and/or bound by the religious beliefs of the participants. Each state has varying laws that effect the responsibilities and benefits of a marriage for these individuals. Q: What is a divorce? A: A divorce, or dissolution of marriage, is the ending of a marriage prior to the death of either spouse. A divorce must be certified by a court of law as a legal action is required to dissolve the prior legal act of marriage. Each state defines the types of divorce, depending on reasons and length of time before divorce papers may be filed. Q: What is common law marriage? A: Common law marriage is a marriage that results from the actions of a couple even though they have not obtained a marriage license or fulfilled the requirements of the state’s statutory marriage laws. This means the couple has lived together for a period of time and have presented themselves as husband and wife. However, not all states recognize common law marriages. Q: What is child support? A: Child support is court-ordered funds to be paid by one parent to the custodial parent of a minor child after a divorce or separation. Q: How is child support calculated? A: Every state has child support guidelines that apply a certain percentage of the non-custodial parent’s income. Q: How can I enforce the court order when my ex-spouse is delinquent on child support payments? A: You can bring a contempt of court proceeding and ask for a wage garnishment. Unfortunately, you may not legally withhold visitation rights if you are not receiving child support. Q: What is contempt of court? A: Contempt of court is when a person willfully and deliberately violates a court order without a legally sufficient excuse. Q: What is child custody? A: Child custody is the court’s determination of which parent, relative or other adult should have physical and/or legal control and responsibility for a minor child/children (under 18 years of age). Q: What is a paternity test (DNA)? A: It is a genetic test, performed to determine if a man is the biological father of a certain child. This test is generally 99.9% accurate. Q: What are visitation rights? A: If one parent has custody, the other parent has the right to have visitation with his child on a regular basis. Others, such as grandparents, may seek legal visitation under certain circumstances. The amount of time awarded for these rights may be determined by the child’s age as well as other conditions.
Q: What's the first thing I should do if I am injured? A: The main thing to do is to write down details, including names, addresses, phone numbers and, in case of automobile accidents, insurance names and policy numbers from others involved, witnesses and police officers, including their report numbers. Keep records of where and how the accident happened, including the weather and time of day. Take pictures of the injuries, property damage, and several views where the accident happened. A crucial task will be to find a competent Personal Injury attorney. Q: Do I have a winnable Personal Injury case? A: Frankly, the best one to answer this question is a Personal Injury attorney. If you have suffered injuries due to another person’s actions or failure to act (such as not cleaning up a spill or not restraining an animal) you may have a Personal Injury case. If someone has attacked your reputation (verbally or in writing), and/or caused emotional distress, you may have a Personal Injury case. You must be able to prove your case, and a Personal Injury Attorney may be able to help you determine if your case is worth pursuing. Q: How long do I have to file a lawsuit? A: The statutes of limitations vary by state. These determine the amount of time allotted to file a Personal Injury lawsuit. The importance of contacting a competent Personal Injury attorney that has experience with your type of case as soon as possible after an injury or accident cannot be stressed enough. Missing the deadline my cause your claim to be dismissed. Q: What should I bring when I meet my lawyer? A: The more information you are able to give your Personal Injury attorney the better. Even if you do not have everything (such as medical bills), providing as much as possible will assist the Personal Injury lawyer to determine the validity of your claim in a courtroom and what additional information is needed. Anything you currently have that is relevant to your case, including police reports, photographs, newspaper articles regarding the incident, eyewitness information, details about the conditions surrounding the accident or injury, and any medical reports should be presented at your first meeting. If the other party’s insurance has contacted you, their contact information and any information they provided will assist your Personal Injury lawyer. Keep notes on everything-even small items may be important. Q: What award may I receive from my Personal Injury lawsuit? A: If the lawsuit is successful, a party or parties are liable for the damages from the injury and their liability insurance company must pay what the courts have determined. These items may include many variables related to the accident such as medical expenses, income lost, permanent physical disability or disfigurement, emotional damages (such as stress, embarrassment, depression and other conditions), damage to property, and possibly the loss of family, social and educational experiences and more. Damages, money intended to restore the victim to the position they were in before the injury, is not considered taxable income by the federal or state governments. Q: What is "negligence?" A: How an “ordinary reasonable person” should act in each situation in the case of a Personal Injury is the critical issue in Personal Injury cases. Negligent persons fail, for example, in driving safely, repairing property, restraining animals, or placing warnings. A jury often determines if “ordinary reasonable person" standards are met after presentation of evidence and argument at trial. Q: Is there any other possibility for Personal Injury liability if negligence can not be proven? A: Yes, there are cases where persons or companies may be "strictly liable" even if they have not acted with wrongful intent or acted negligently. In these cases, injuries may occur from accidents relating to defective or unpredictably dangerous products. Another instance is when the liable party participates in various actions, such as storing or using explosives and/or other dangerous substances, or by keeping dangerous animals. In these cases, responsible parties can be held strictly liable for harm caused to others due to such activities. Strict liability is imposed on those conducting such activities because the activities pose an undue risk of harm. This means that anyone responsible in conducting these activities does so at their own risk because they are liable if someone is harmed, making them accountable. Q: How will the person who caused my injury be punished? A: Defendants in civil actions, such as Personal Injury, are not fined nor do they receive jail terms as punishment in civil court. Those types of punishment are determined in criminal court. Punitive damages may be awarded by juries and courts that are designed to punish defendants who have intentionally harmed or behaved recklessly. Punitive damages are awarded to discourage such defendants from repeating their offenses in the future. Q: What if death occurs before the Personal Injury lawsuit is completed? A: In any case, if the person filing the Personal Injury lawsuit dies, the case may continue. Their Personal Injury attorney will assist in making the appropriate changes to complete the suit, as often it is the heirs or executor of the deceased’s estate that receive the amount awarded through a wrongful death action.
Marriage A marriage is a relationship between or among individuals, usually recognized by civil authority and/or bound by the religious beliefs of the participants. Because marriage often has the dual nature of a binding legal contract plus a moral promise, it is often difficult to characterize. Traditional In some form or another, marriage is found in virtually every society. Marriage has traditionally been understood as a monogamous union. In some parts of today’s world, polygamy is a common form of marriage. However, all states prohibit a marriage to more than one person. Marriage is also prohibited between close family members. A few of the more common restrictions are: A marriage between blood related siblings, parent and child, and aunt or uncle and niece and nephew. Generally the minimum age requirement for marriage is 18 years old, although some states permit marriage at a younger age if parents consent to the marriage. One or both parties must meet state residency requirements. It is mandatory in most states that a formal ceremony of some kind be performed with witnesses and a religious or licensed official. Federal and state laws give married couples many benefits. Such benefits include: Decision making powers about your spouse in case of disability Claimant rights for loss of consortium (loss of interest that one spouse is entitled to receive from the other, including companionship, cooperation, affection, aid and sexual relations) Certain tax advantages Inheritance rights under state intestate succession laws Federal benefit rights including disability, unemployment, social security, veterans’ pension and public assistance benefits Creating a marital estate fund Receive family rates on insurance Avoid deportation of a non-citizen spouse In some instances, many couples find it advantageous to consult an attorney about entering into a premarital or prenuptial agreement. This is useful as it allows them to work through financial issues and the potential disagreements that can be created prior to marriage. Common Law Common law marriage is a marriage that results from the actions of a couple despite the fact that they have not obtained a marriage license or fulfilled the requirements of a state’s statutory marriage laws. Typically this means that a couple has lived together for a significant period of time, while having an agreement to be married and presenting themselves to the public as husband and wife. No state stipulates the exact time period, but generally a ten year old relationship is required. The evidence to prove the necessary intent includes such things as sharing the same last name, filing of joint tax returns and referring to each other as husband or wife. Not every state permits common law marriages. As a result of the laws of different states, actions which can result in common law marriage in one state may not provide any legal rights or protections in another. There are few states that recognize common law marriages: Alabama Colorado Iowa Kansas Montana Oklahoma Rhode Island South Carolina Texas Utah District of Columbia States permitting certain common law marriages: Georgia (if the elements were met prior to January 1, 1997) Idaho (if the elements were met prior to January 1, 1996) New Hampshire (for inheritance only) Ohio (if the elements were met prior to October 10, 1991) Pennsylvania (if the elements were met prior to January 1, 2005) In states which recognize common law marriage, once the requirements are satisfied, the marriage is treated in the exact same manner as any other marriage. Therefore, a valid common law marriage must typically be ended through a formal divorce process. Premarital/Prenuptial Agreement A Premarital/Prenuptial Agreement (referred to as “prenup” for short) is a written contract between two people drawn up before marriage. It generally details any and all property either party owns (along with any debts) and what each person’s property rights will be after marriage and sometimes whether alimony will be paid if the couple should divorce. Also, a prenuptial agreement may state what is to be done about property distribution should one of them die. The Uniform Premarital Agreement Act provides for division of property due to separation, divorce and death, alimony, wills, ownership of property as well as management and control, and life insurance benefits. The states that have adopted the Uniform Premarital Agreement Act are: • Arizona • Illinois • Nevada • South Dakota • Arkansas • Indiana • New Jersey • Texas • California • Iowa • New Mexico • Virginia • Colorado • Kansas • North Carolina • Wisconsin • Connecticut • Maine • North Dakota • Dist. of Columbia • Delaware • Montana • Oregon • Hawaii • Nebraska • Rhode Island Divorce A divorce is the termination of a marriage by legal action, requiring a petition or complaint for divorce (or dissolution in some states) by one party. Some states still require at least a minimal showing of fault (grounds), but no-fault divorce is now the rule in which incompatibility is sufficient to grant a divorce. The major issues in divorces are division of property, child custody and support, alimony (spousal support), child visitation and attorney’s fees. Only state courts have jurisdiction over divorces so the petitioner/complainant can only file in the state in which he/she has been a resident for a period of time. In many states, the time period from original filing for divorce and final judgment (or decree) takes several months to allow for a chance to reconcile. From the legalities, divorce gives both parties the legal right to marry another. A divorce also legally divides the couple’s assets and debts as well as determines the care and custody of their children. Every state approaches these issues differently although most states use similar standards. The most relevant issues to be decided during divorce proceedings are alimony or spousal support, division of marital assets, and, if children are involved, child custody, visitation and child support. Grounds The grounds for divorce are set regulations in each state that specify under what circumstances can either party be granted a divorce. A fault divorce is a divorce that takes place on the grounds that one party can be considered at fault. In several states, the couple must live apart for several months before they are granted a divorce. Following is a brief explanation of a few of the many reasons for one party to be granted a fault divorce. Adultery is a consensual sexual relation when one of the participants is legally married to another person. In some states it is still a crime and is grounds for divorce for the spouse of the married adulterer. Extreme cruelty is an archaic requirement to show infliction of physical and/or mental abuse by one of the parties to his/her spouse to support a judgment of divorce or an unequal division of the couple’s marital assets. In some states, evidence of cruelty may result in division of property favoring the suffering spouse. Infertility is the inability to conceive a child or carry a pregnancy to full term. If infertility of the other party was not discussed prior to marriage, this can be grounds for divorce. Abandonment means willfully leaving one’s spouse and/or children, intending not to return, without the abandoned spouse’s consent. Fault or No-Fault A fault divorce traditionally requires one spouse to prove that the other spouse was legally at fault to obtain a divorce. The “innocent” spouse is then granted a divorce from the “guilty” spouse. Today, many states still allow a spouse to allege fault in obtaining a divorce. The traditional fault grounds for divorce are adultery, abandonment (desertion), cruelty, imprisonment, physical incapacity and incurable insanity. Some courts consider fault in determining the amount of spousal support. A no-fault divorce is a divorce in which the dissolution of a marriage does not require fault of either party to be shown. Either party may request, and receive, the dissolution of the marriage, despite the objection of the other party. The following list of states allows no-fault divorce as the sole grounds for divorce: • Arizona • Florida • Michigan • Washington • California • Hawaii • Minnesota • Wisconsin • Colorado • Indiana • Montana • Deleware • Iowa • Nebraska • District of Columbia • Kentucky • Oregon The following list of states indicates those that have added no-fault to traditional divorce: • Alabama • Maine • New York South Dakota • Alaska • Maryland • North Dakota Tennessee • Arkansas • Massachusetts • Ohio Texas • Connecticut • Mississippi • Oklahoma Utah • Georgia • Missouri •Pennsylvania •Vermont • Idaho • New Hampshire •Rhode Island •Virginia • Illinois • New Jersey • South Carolina • West Virginia • Louisiana • New Mexico The following list represents states that consider incompatibility as grounds for divorce: • Alabama • Mississippi • New Mexico • Wyoming • Alaska • Montana • Ohio • Kansas • Nevada • Oklahoma Many states have a “waiting period” before a couple can file for divorce. This is to enable them to possibly reconcile. The following list shows the prerequisite for couples residing apart and filing for divorce: • Alabama - 2 years • Nevada - 1 year • Tennessee - 2 years • Arkansas - 18 months • New Hampshire - 2 years • Texas - 3 years • Connecticut - 18 months • New Jersey - 18 months • Utah - 3 years • Hawaii - 2 years • New York - 1 year • Vermont - 6 months • Illinois - 2 years • North Carolina - 1 year • Virginia - 1 year • Louisiana - 6 months • Ohio - 1 year • West Virginia - 1 year • Maryland - 2 years • Pennsylvania - 2 years • District of Columbia - 1 year • Missouri - 1-2 years • Rhode Island - 3 years • Montana - 180 days • South Carolina - 1 year Annulment An annulment differs from a divorce as it is a judicial statement that there was never a marriage. An annulment means that the individuals were never united in marriage as husband and wife. Currently, most states have annulment statutes. An annulment declares that a marriage, which appears to be valid, is actually invalid. There are two kinds of invalid marriages. A void marriage is one that was invalid from the very beginning. The major grounds for a void marriage are incest, bigamy and lack of consent. A voidable marriage is one that can be declared illegal but continues as valid until an annulment is sought. Fraud is the most common ground for annulment. The misrepresentation, whether by lies or concealment of the truth, must encompass something directly pertinent to the marriage, such as religion, children or sex, which society considers the foundation of a relationship. Physical or emotional conditions may also be elements for an annulment, especially if they interfere with sexual relations or procreation. Other health conditions providing grounds for an annulment include, but not limited to, alcoholism, incurable insanity and epilepsy. Alienation of Affection Alienation of affection is a tort claim for willful or malicious interference in a marriage by a third party without excuse or justification. There are only nine states that consider alienation of affection a viable cause for action: • Hawaii • Missouri • North Carolina • Illinois • New Hampshire • South Dakota • Mississippi • New Mexico • Utah There are five states that have judicially eliminated alienation of affection: • Idaho • Kentucky • Washington • Iowa • South Carolina The following states have statutorily eliminated alienation of affection: • Alabama • Indiana • Nevada • Texas • Arizona • Kansas • New Jersey • Vermont • Arkansas • Maine • New York • Virginia • California • Maryland • North Dakota • West Virginia • Colorado • Massachusetts • Oklahoma • Wisconsin • Connecticut • Michigan • Oregon • Wyoming • Delaware • Minnesota • Pennsylvania • Dist. of Columbia • Florida • Montana • Rhode Island • Georgia • Nebraska • Tennessee Currently, Alaska does not have case law or statutes that clearly address this issue. Louisiana has never recognized alienation as a pliable cause for action and Ohio does not allow (by statute) monetary recovery for alienation of affection. Recently, North Carolina has extended the time frame in which one spouse can file an action for alienation of affection. Alimony, Spousal Support and Maintenance Alimony, also known as spousal support or maintenance, is an obligation of financial support paid by one spouse to the other. There are basically three types of alimony. Permanent alimony is an allowance for support and maintenance (for example clothing, shelter, food or other necessities) of a spouse. A marriage of over ten years is often a candidate for permanent alimony. If permanent alimony is requested, it must be proven that there is a need for support and the other spouse has adequate means and the ability to provide for part or all of the need. Permanent alimony is generally reserved for long-term marriages. Reimbursement alimony is intended for spouses who have supported their partners through years of advanced schooling. Rehabilitative alimony is designed for spouses in shorter marriages who need some assistance reestablishing themselves in the job market and who have a specific vocational plan. The factors the courts consider differ on a state to state basis. Some of the possible factors that weigh on the amount and length of the support are: Length of marriage Time separated while still married Age of the parties at the time of divorce Income of the parties Future financial prospects of the parties Health of the parties Fault in the marital breakdown If the parties fail to agree on the terms of their divorce, the court will make a fair determination based on the legal argument as well as the testimony submitted by both parties. Modification can occur at any future date depending on a change of circumstances by either party on appropriate notice to the other party as well as application to the court. The courts are generally reluctant to modify an existing agreement unless there are compelling reasons. Alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income. In order to qualify as alimony, the payments must meet the following five criteria: 1. Payment is in cash. 2. Payment is received by a divorce or separation instrument. 3. The instrument does not specify that the payments are not for alimony. 4. The payer and the payee are not members of the same household when payments are made. 5. There is no liability to make payments for any period after the death or remarriage of the recipient. Division of Property Division of property between spouses is a difficult issue to resolve during a divorce. There are two different systems in place that each state uses for property division: Community Property or Equitable Distribution. No matter which system is used, each state has its own guidelines for dividing marital property. You should seek legal advice from one of our experienced attorneys as this is a complicated area of family law. Community Property Community property is a system of property division in which all property is divided equally, regardless of whose name it is in, that was acquired during the duration of the marriage, not including inheritances and gifts in some jurisdictions. There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In these states, property that was acquired prior to the marriage stays with the party who acquired it. Although some community property states permit equitable distribution where justice is served, rules vary state to state and are filled with exceptions. Equitable Distribution In equitable distribution states, all property, whenever or however acquired, regardless of legal title, is subject to equal or unequal division. “Equitable” does not mean equal. Courts strive for a fair division between the parties and take into consideration several factors to make that determination. There are 16 states in which all property of either spouse is subject to distribution on divorce, in the discretion of the court. These states include: • Alaska • Massachusetts • New Hampshire • Utah • Delaware • Michigan • North Dakota • Vermont • Hawaii • Mississippi • Oregon • Washington • Kansas • Montana • South Dakota • Wyoming Adoption Adoption is the practice in which an adult assumes the role of parent for a child who is not biologically their own and giving him or her all the rights and privileges of one’s own child. Most laws are designed with the best interests of the child in mind, not the best interests of the adult who intends to adopt. The adoption procedure varies depending on whether the child comes from an agency which handles adoptions or comes from a stranger or relative, along with the age of the child and the adoptive parent or parents. Adoption law is generally governed under state law. All 50 states have statutes governing adoption. Public adoption What you face in a public adoption are children who are wards of the state because their parents could not provide adequate care for them, or neglected or abused them. These children are of all ages and most have been in foster homes for a long period of time. Public adoptions are run by a government funded agency. Private adoption Private adoption is a legal method of building a family through adoption without using an adoption agency. The biological parents relinquish their parental rights directly to the adoptive parents. Private adoption is also governed by state laws. Transracial adoption A trans-racial adoption places children with an adoptive family of another race. Such adoptions may be through public and private agencies. However, most trans-racial adoptions take place through the public child welfare system. Intra-national and International adoption Due to a shortage of healthy, Caucasian infants, potential adoptive white parents started adopting children from other countries. International adoption has grown in popularity as more families recognize the need to provide homes for waiting children. International adoption is a wonderful option for people who have been trying unsuccessfully to adopt in the United States. Each country has policies regarding the age, income level and marital status of prospective parents. Single parent adoption As one-parent households become more common, single parent adoption increases. The issue of personal finances and single income families has become less important since adoption subsidies are available nationwide. Summary of Adoption Procedures The formal steps involved in adoption are generally the same in all states. Notice of adoption is given to all parties who have a legal interest in the case, except for the child. The parents seeking to adopt must file a petition in court that contains specific information such as the adoptive parents names as well as the child’s, the child’s gender and age, and the names of the natural parents, if known. Written consent of the agency or the natural parents must be attached with the petition. A hearing is then held so the court may review the qualifications of the potential parents and either grant or deny the petition. Most states require a period of probation during which time the child resides with the adoptive parents and a state agency monitors the development of such relationship. If the relationship is working well for all parties concerned, the agency will recommend to the court that a permanent decree of adoption be issued. However, if the agency feels the relationship in unsatisfactory, the child is either returned to his or her previous home or is taken care of by the state. Following the adoption proceedings, a certificate of adoption is issued for the adopted child which replaces the original birth certificate. The certificate of adoption lists the new family name, the date and place of the child’s birth along with ages of the adoptive parents at the time the child was born. The old birth certificate is sealed away and may only be opened with a court order. If you are considering adoption, please seek the advice of one of our experienced family law attorneys. Child Custody and Visitation Child custody and visitation is one of the most difficult aspects of getting divorced, especially if one parent wants sole legal custody. Couples frequently come to an agreement pertaining to this issue and sometimes the court decides for them. Courts have frequently given mothers physical custody in the past and have given fathers visitation. However, in today’s society, courts have begun to realize that in some instances it in the best interest of the children to live with their father. In order for a court to grant custody, the court must find that the custodian is a fit and proper person and that custody with that person is in the best interest of the children. Physical custody is the right and obligation of a parent to have his child live with him. Legal custody is the right and obligation to make decisions about a child’s upbringing, including school and medical care. Many states usually have parents sharing in legal custody of a child. Divorcing parents face many options pertaining to the division of these rights and responsibilities. Some solutions are: Sole custody: An arrangement in which one parent has both physical and legal custody of a child and the other parent has visitation. Split custody: This pertains to a custody arrangement with multiple children involved. One parent will be awarded sole custody of one child while the other parent is awarded sole custody of another child. The courts do not favor this resolution as they are usually reluctant to split up the children. Joint custody: A n arrangement in which parents who do not reside together share in the upbringing of the children. This can mean joint physical custody where the children spend a significant amount of time with each parent or joint legal custody where the parents share in the decision making pertaining to the children. If custody is contested, many courts make a decision on a custody arrangement by the best interest of the children, including their age and the closeness to the parent who has been their primary caretaker, the physical capability of the parent as well as their mental health, whether or not there is an issue of domestic violence and, depending on the children’s age, what the children’s wishes may be and the purpose for their wish. Visitation is the right to see a child on a regular basis, generally given to the parent who does not have physical custody of the child. Visitation plans should be specific so as to avoid any possible conflicts and avoid confusion. Supervised visitation is an alternative used when a child’s safety and well-being require visits with the other parent be supervised by you, another adult or a professional agency. No visitation is an option used in an extreme situation is which contact with the other parent would be detrimental to the child. Custody and visitation schedules are always subject to change when circumstances affecting the child’s best interests change significantly. Once the conflict of custody and a visitation schedule is settled, there are certain policies that must be followed in order to modify the arrangement. If custody and visitation were determined through a court, then the parties will have to return to court in order to modify said arrangement. If the agreement was reached through mediation, the couple may have to return to mediation to modify said arrangement. Ex parte custody refers to motions, hearings or orders granted on the request of and for the sole benefit of one party only. An ex parte motion mat be used in a case where one parent strongly believes a child is in extreme danger. Many jurisdictions require at least an attempt to contact the other party’s attorney of the time and place of an ex pate hearing. A visitation schedule depends on the child’s age and whether there is somewhere for the child to sleep during the overnight visits. A typical arrangement, depending on the child’s age, consists of every other weekend usually from Friday through Sunday, one evening each week and every other holiday. However, for a child younger than 6 years of age, it is generally recommended by child development experts that visitation may be scheduled for 2 or 3 days weekly of 2 to 8 hours each visit. In some instances, a third party seeks visitation with a child, being a step-parent or a grandparent. Laws vary from state to state regarding this issue. Although a grandparent may be a biological grandparent, the court does not always grant visitation. Several factors play a role in the decision making of the court such as: The grandparent was abusive to their own child; Interference with ordinary parental decision making; or Bad-mouthing one or both parents to the child, creating unnecessary conflict. Seek advice from one of our experienced family law attorneys to assist you with the best interests of both you and your children. Child Support Child support is court-ordered funds to be paid by one parent to the custodial parent of a minor child after a divorce or separation. Generally the amount of child support is based on each parents’ income, number and special needs of the children, and the expenses of the custodial parent. Child support may also include health insurance, school tuition or other expenses. Child support payments are due at a certain time every month. The paying parent can make the child support payments to a child support registry, which will then send the payments to the custodial parent, or can have their wages garnished meaning the child support payments may be withheld from their paycheck. Child support laws vary from state to state. Depending on the jurisdiction, a custodial parent might legally be required to account for how child support money is spent. In the United States, there are 11 states that demand an accounting from the custodial parent on how child support payments are spent: • Colorado • Indiana • Missouri • Oregon • Delaware • Kansas • Nebraska • Washington • Florida • Louisiana • Oklahoma Most generally, to obtain child support, you must request an order for support from a state family court. The court will use a set of guidelines to set the amount of child support paid if the parties are not in agreement of the amount. There are different worksheets used in the calculation depending on the custodial arrangement. The worksheets are available at the Clerk of Court. Either parent may seek a change (increase or decrease) in child support at any time if a substantial change in circumstances occurred after the court entered the order. To ask for an increase in child support, the receiving parent must be able to prove to the court that the paying parent’s income has increased, specifically if the current amount of child support does not meet the child’s immediate needs. Child support may also be increased due to such circumstances as medical treatment, therapy or special tutoring. The paying parent may seek to have child support decreased under such circumstances as a reduction in income, loss of a job or if the custodial parent has an increase in their income. Generally however, courts are disinclined to decrease child support payments. Non-custodial parents who refuse to pay their child support obligation are often termed as dead-beat parents. In 2003, the US Department of Health and Human Services estimated that 68% of child support cases had arrearages. Although a non-custodial parent is not paying court ordered child support, the custodial parent can not interfere in the visitation schedule. In the same sense, the paying parent (non-custodial) can not stop making child support payments because the custodial parent is not in compliance with court ordered visitation schedule. These are matters that need to be addressed in court and an experienced family law attorney can assist you with these matters. If a non-custodial parent does not pay court ordered child support, he/she can be held in contempt or prosecuted for failure to support, therefore being taken into custody and remanded to jail. Your driver’s license and other licenses can be suspended. Your tax refunds can be seized. The courts have numerous options to enforce child support orders. If the biological parents were never married, they both still owe the child financial support. In some cases, the person named as the father denies paternity and requests a DNA test. Once paternity of the child is determined, an order for child support will be entered. Child support generally terminates when a child turns 18 or 21 (depending on state law), or graduates from high school, or becomes self-supporting. Family Law is a very complex area of the law, covering many issues, which require careful, sensitive representation to obtain an outcome that is in your best interest. If you or a loved one are dealing with an issue in this area, contact one of our experienced attorneys for assistance with your situation.
Q. Can I be compensated even if the accident was my fault? A. Compensation if the accident was your fault depends on the laws of your state. In some states, who was at fault in the accident is not considered with regard to compensation. In those states, part or all of your economic damages may be paid by your no-fault insurance policy. In other states, which driver is responsible for the accident is important for compensation. However, you may still be able to recover the costs of your injuries, even if the accident was partially your fault. In that case, you will have to show that the other driver was more responsible for the accident than you were or you may have to reduce the amount of costs you can recover by the amount that you were responsible. Q. Who can I sue for compensation for my injuries? A. In some cases, a person who was injured in an accident may be able to sue other people than just the responsible driver. For example, if the responsible driver did not own the car he or she was driving, you may be able to sue the car’s owner. If the responsible driver was drunk, you may be able to sue the person who served him or her alcohol, if that person served the driver even though he or she was obviously drunk. In other cases, you might be able to sue a person who wasn’t involved in the accident, such as an automobile manufacturing company or a construction company, if there was a defect in the vehicle or the road that caused the accident. If the accident involved a semi-truck and the driver violated rules and regulations, you may be able to sue their employer. Q. How much compensation can I get? A. The amount of compensation in each case varies widely. Compensation can depend on many variables and the amount can’t be determined without analysis of the injury, medical costs, loss of wages, and the permanency of the injury. There is no set rule for compensation and each case is unique. Q. Will I have to go to court? A. Many motor vehicle accident cases do not result in a lawsuit. Most lawsuits are settled without a trial. Settlements avoid the cost and the huge time commitment of a trial and may result in a greater amount of compensation than a trial. However, if the case can’t be settled in a way that is acceptable to both sides, it might be necessary to go to court. Q. Where will the money to pay for my injuries come from? A. The responsible driver’s insurance company pays your compensation in many states. If you are in a no-fault insurance system state, your own insurance company may pay some of your compensation. If the responsible party doesn’t have enough insurance cover to compensate you for all of your injuries, your own insurance policy may have coverage for the remainder of your compensation. Q. When will I get my money? A. When you get the compensation from your motor vehicle accident case depends on several variables, including the severity of your injury and whether your case goes to court. If you have a serious injury, you want to wait until your doctor has released you or until your doctor can determine your future medical costs related to the accident with reasonable certainty. The time you need to heal from your injuries may be the determining factor in amount of time it takes to settle your claim. Additionally, if you have to go to court, it may take longer to get your money than if you settle your claim. Q. What do I do if I can’t afford a lawyer? A. Many law firms will take your personal injury case on a contingency fee basis. This means that your lawyer will get a percentage of the amount that the lawyer collects for you. If you don’t get anything, your lawyer won’t get anything either. However, you are generally responsible for any court costs, filing fees, and witness fees, no matter what the outcome of the case. Q. Do I have to go to the doctor? A. If you are injured in a motor vehicle accident, you should go to a doctor, both for your peace of mind and to document your injuries to support your case. Often, a car accident injury isn’t apparent right away. Go to your family doctor, an emergency room, or another trained medical professional as soon as any symptoms appear. Q. How soon must I file my claim? A. The time period within which a person has to bring a claim for injuries in a motor vehicle accident varies from state to state. The way that the time period is computed also varies. The time period may also vary within a state depending on the circumstances of the accident, including the injured person’s age, the type of claim, the particular facts of the injury, and when the injury is discovered. It is very important that you know the time limit for your situation, or you may not be able to get any compensation for your injury! Q. What if the responsible driver or his or her insurance company offers me a check? A. If you accept a check from the responsible driver or his or her insurance company, you may be barred from getting any additional compensation from the driver or the insurer. You shouldn’t accept a check or sign a release until you have spoken with a lawyer. Generally, your lawyer will advise you to wait until you have finished the treatment for your injury and have been released by you doctor, so that you know that you have enough compensation for all of your medical expenses. An insurance representative may encourage you to settle your case for the lowest amount of compensation possible and not to speak with a lawyer. You should consult with an experienced personal injury lawyer before accepting any payment, signing any release, or settling your claim so that you can make sure that you are receiving fair and full compensation.
Immediately after the accident: Stop! In most states, a person involved in a motor vehicle accident is required not to leave the scene, even if the accident is minor. You should stop and check for injuries or vehicle damage. If you do leave the scene, you may be criminally prosecuted. Check for injuries. Don’t move an injured person. Call the police and an ambulance, if necessary. If you can’t call, ask someone else to call the police to report the accident. Inform the police of the number of injured people, so that enough emergency personnel report to the scene of the accident. Even if there are no injuries, you should still call the police to get an accident report. While you wait for the police, if possible, turn on your hazard lights, raise the hood or trunk of your car, or set out road flares to alert other vehicles to proceed carefully around the accident. Exchange information with the other driver. Get his or her name, address, phone number, drivers license number, license plate number, insurance company, insurance policy number, and insurance agent’s name and telephone number. You should give the other driver the same information about yourself. If there are any witnesses to the accident, get their identifying information. Ask the police officer who is investigating the accident for his or her business card and the “incident number” so that you can obtain an accident report later. You may also want to take notes about where and how the accident occurred. Include details such as road conditions, speed limits, traffic signals, weather conditions, lighting, and what other cars were doing at the time of the accident. However, if you have to go to court because of your accident, you may have to share these notes with the other driver in the accident. Even if you think that the accident may be your fault, don’t say so. The other driver may have been partially responsible or there may have been other variables involved in the accident. An admission of fault may later be used against you. When the police get to the accident: Cooperate fully with the police when they get to the accident. Stay at the scene of the accident until the police say that you can leave. When you speak to the police, only tell them the facts of the accident. Don’t draw any conclusions. Inform the police of any injuries and of any witnesses. Do not admit that the accident may have been your fault to the police or to any passengers, witnesses, or other drivers. Responsibility for an accident is a matter of the laws of your state and it may not be clear right away. Soon after the accident: Go to a doctor as soon as possible. You may not realize the full extent of your injuries right away. If you don’t see a doctor, your treatment may be delayed and minor injuries could become serious. Even a minor ache can be an indication of a serious problem. If there is any chance that you may have been injured in the accident, see a doctor as soon as possible. An insurance company could argue that not going to see a doctor right away meant that your injury didn’t result from the accident, but from some other event. The longer you wait to see a doctor, the harder it will be to connect your injuries to the accident, and the lower your chances for compensation for your injuries. Be sure to tell your doctor about any memory loss, confusion, disorientation, headaches, dizziness, blood or fluid in your ear, ringing in your ear or nausea. Take pictures of your injuries and the damage to your vehicle. Collect all of your motor vehicle insurance policies for your lawyer to look at. Inform your insurance company of the accident. Talk to a lawyer before filling out any insurance forms, giving recorded statements to any insurance company, or meeting with any representative of any insurance company. It is very important to get legal advice before giving a statement to the other driver’s insurance company. Consult an experienced personal injury lawyer before signing any checks or documents from any insurance company. Later: Within a few days after the accident, write down all important information about the accident. Include information such as license numbers, the make, model and year of all vehicles involved. Also include details about the accident, such as the date, time, location, road conditions, traffic signals, and weather conditions. You will be surprised how quickly you may forget these details. If you haven’t spoken with a lawyer yet, contact a personal injury lawyer with the dedication, experience, and ability to help you maximize the amount of your compensation as well as to minimize the amount of frustration, delay, and confusion involved in your claim. Document all of your injuries and losses. Include medical expenses, transportation costs related to your injuries, expected future medical treatment, lost earnings, future loss of wages, the effect your injury has on your life, and the effect that your injury has on your family. Your lawyer will be able to help you identify all losses that may be connected to your accident. Theories of Liability Negligence Deciding whether a driver was negligent in a motor vehicle accident can be difficult. Sometimes you may feel that another driver, a cyclist, or a pedestrian didn’t use a reasonable amount of care, but you may not know exactly which rule or rules he or she broke. An experienced personal injury lawyer will be able to help you determine if another person was negligent. The attorney will consider many sources, including state traffic laws, police reports and the statements of witnesses to the accident. Courts consider many variables in making a determination that a driver or another person was negligent. These variables may include: Failing to follow traffic signs and signals Disobeying traffic laws Driving on the wrong side of the road Neglecting to signal a turn Driving faster or slower than the posted speed limit Ignoring traffic or weather conditions Driving while under the influence of alcohol or other drugs Recklessness A driver may also be held responsible for an accident if he or she acted recklessly. Reckless driving is driving unsafely, with “willful and wanton disregard” for the possibility that such action will cause an accident. Reckless drivers intentionally disregard the possible consequences of their actions while driving. For example, a driver may be found reckless if he or she threatens or harasses another person while driving out of “road rage” and causes an accident. Road rage is defined as “an assault with a motor vehicle or other dangerous weapon by the operator or passenger(s) of another motor vehicle or an assault precipitated by an incident that occurred on a roadway.” Criminal charges may also result. Between 1990 and 1997, almost 13,000 people were injured or killed in car accidents that were caused by aggressive driving, according to studies by the National Highway Traffic Safety Administration (NHTSA) and the American Automobile Association. Another NHTSA study shows that dangerous driving by others, including speeding, is considered a threat by 60 percent of drivers. Approximately 30 percent of these drivers felt that their personal safety, or the safety of their families, was threatened in the past month. Sixty-seven percent of these drivers felt that their safety was threatened during the past year. Aggressive drivers are those who speed, tailgate, move quickly from lane to lane, flash their headlights excessively and use other dangerous driving techniques. Police officers and traffic safety officers are increasing efforts to catch and punish these aggressive drivers. Aggressive driving is defined by the NHTSA as “a progression of unlawful driving actions,” such as: Speeding, which can be either going faster than the posted speed limit or driving too fast for current conditions Improper passing by either failing to signal, using an emergency lane to pass, or passing on the shoulder of the road Improper or excessive lane changing Failing to signal a turn Failure to yield to oncoming traffic The NHTSA offers the following tips on how to avoid an accident with aggressive drivers: Get out of their way; do everything in your power to get out of the way of an aggressive driver Don’t let your pride get the better of you; don’t challenge the aggressive driver by speeding up or trying to hold your place in your travel lane Avoid eye contact; sometimes looking at an aggressive driver can make them even angrier Avoid gestures; ignore any rude gestures made towards you and don’t make any gestures yourself Report seriously aggressive drivers to the police. Remember to pull over to the side of the road, however, if you use a cell phone. Third Parties Drunk Drivers In the past year, over one million people were injured in alcohol-related motor vehicle accidents and every 30 minutes, someone in the US dies in an alcohol-related accident. In a drunk driving accident, the drunk driver will be held responsible for the injuries and damages that he or she caused. In addition, in many states, a bar or a person who hosted a social event or party may also be responsible for these damages if they served alcohol to a patron or guest who was obviously intoxicated. However, holding the bar or host responsible doesn’t relieve the drunk driver from their obligation to pay for the damages. There are many laws covering liability and an experienced personal injury lawyer will use these laws to take into account everyone who may be held liable for your injuries, including people or business that you might not have considered. Product Manufacturers Sometimes motor vehicle accidents aren’t caused by either driver involved, but by a defect or malfunction in one of their automobiles. If this type of accident occurs, the manufacturer or the supplier of the automobile or automobile part may be held responsible under the law of “products liability.” Products liability law governs lawsuits brought by consumers against sellers of a product for selling a defective product, which caused an injury to the consumer. Manufacturers that create a defective product, either in the designing, manufacturing or labeling stages, can be held responsible for the injuries caused by the product. Under the law of products liability, it doesn’t matter if manufacturers are negligent or not, they are still responsible for any injuries caused by their defective product. Automotive Technicians Another situation in which the drivers in a motor vehicle accident may not be held responsible for the accident is where an auto technicians didn’t correctly repair one of the vehicles and the improper repair caused the accident. If an incorrect repair job caused an accident, the auto mechanic may be found negligent. If the auto mechanic is negligent, the mechanic and his or her employer may be held responsible for the injuries and property damage that the accident caused. Government Bodies Variables unrelated to the drivers or vehicles involved in the accident may also contribute to an accident. These factors may include poorly designed or maintained roads, broken traffic signals, road construction, or obstructions that make it difficult to see the road properly, such as signs, bad lighting, trees or utility poles. If one of these variables causes an accident, government bodies that control these things may be held responsible for any damages. However, there are special rules involved in suing the government. An experienced personal injury lawyer will be aware of these rules and will be crucial in enabling you to win your lawsuit. General Conclusion No matter what the situation is with your accident, it is crucial to the eventual success of your lawsuit that you take steps to investigate your accident, protect evidence, and obtain the professional opinion of doctors or other experts about any injuries or damages that you have suffered. If you have been in a motor vehicle accident, a personal injury lawyer will be able to assist you with all of these things. An experienced personal injury lawyer will also be able to decide the best method to help you recover compensation for your injuries or property damage. Injuries and Compensation In general, a person who is injured in a car accident can be compensated for the actual costs of their medical expenses, property damage, economic damages (such as loss of income), as well as physical and emotional pain and suffering. Lawsuits over motor vehicles accidents can be very complex. In order to get the amount of compensation to which you are entitled, you should speak with a personal injury attorney who is experienced in motor vehicle accidents and compensation. Damages In all negligence cases, including car accidents, the injured person may be compensated for the costs of medical and rehabilitative services, physical and mental pain and suffering, lost income (both past and future), permanent injury or impairment and permanent scarring or disfigurement. Other damages that are typical in motor vehicle accident cases include physical property damage, reasonably foreseeable medical expenses, and loss of enjoyment of life. Just because you had a previous injury does not necessarily bar you from being compensated for new injuries. An injured party may still be compensated for worsening or exacerbating an old injury. A good way for a person injured in an accident to document how his or her injuries affect their life is to keep a diary or journal that describes how the injury affects him or her every day as well as his or her immediate family. This diary or journal will be helpful in determining the type and amount of compensation that is appropriate. Damages for Family Members In addition to compensation received by the person injured in the car accident, the injured person’s spouse may also be eligible for compensation. A spouse can recover for harm to the marital relationship, known as “loss of consortium.” Generally, both the husband and the wife ask for this type of compensation. Loss of consortium refers to any harm to the martial relationship that was caused by the accident. This harm may include loss of the spouse’s love, companionship, reassurance, affection, consolation, moral support, sexual relationship, ability to have children, as well as the spouse’s physical assistance in operation and maintenance of a home. Loss of consortium does not have to be permanent, it can also be temporary. Insurance Generally, the person injured in an accident will be compensated by the insurance company of the driver who was responsible for the accident. If that driver does not have insurance or if he or she does not have enough insurance coverage, the accident victim’s own insurance will cover his or injuries through an uninsured or under-insured motorist clause. Other insurance policies, such as the insurance policies of employers or family members, may supply additional benefits to the injured person. In some states, an injured person may receive some compensation for their injuries, even if the accident was partially his or her fault. If you have been in an accident, a personal injury lawyer experienced in motor vehicle accidents will help you review your insurance policies and determine the amount of compensation to which you are entitled. Amount of Compensation In a car accident case, the amount of compensation depends on several variables. Some of those factors are: if you are in a no-fault state, how easy it is to show that the accident was another person’s fault, the type and the severity of the injuries involved, the kind of medical treatment necessary, and the amount of insurance coverage available. Other issues that may be important include: how the accident occurred, how much vehicle damage is involved, the amount of past and future medical expenses, whether there is permanent injury or disfigurement, and how much income was lost as a result of the accident. Each motor vehicle accident case is unique, so it is important to contact an experienced personal injury lawyer to ascertain the amount of compensation in your case. Injuries and Compensation Conclusion Horrible injuries can result from a motor vehicle accident. Severe injuries can influence not only the accident victim, but also his or her family. Even relatively small injuries can stress a family, if those injuries require medical care and required time away from work. If you have been injured in a motor vehicle accident, a personal injury lawyer can answer your questions about the compensation you can expect for your injuries. Your lawyer will assist you by pursuing the person or the company that caused your injuries, verifying the amount of insurance coverage available and making sure you get the most compensation possible for your injuries. Insurance Claims Tips One thing you should do before you call your agent, is to make sure that you review your insurance policy. Be certain that you understand your policy, especially the “Coverage” and “Exclusion” sections. As soon as possible after an accident, call your agent. Call as soon as you get home and even before you see a doctor. Take detailed notes of all conversations with your insurance company. Be sure to get the names, phone numbers, and job titles of everyone you speak with. Get his or her supervisor’s name as well. Keep receipts of any expenses, such as meals or travel expenses, that you incur in connection with the time spent pursuing your insurance claim from the time of the accident until you reach a final settlement with your insurance company. Don’t allow any written or recorded statements with your insurance company until you are certain that you understand your insurance policy. The insurance company cannot require you to allow your telephone conversations to be recorded. If you have any questions about recorded statements, contact a lawyer. Is your accident covered by other insurance policies as well? Many times, more than one policy may cover your claim. Look over your homeowner’s policy, umbrella coverage policies, and any coverage you may have under your credit cards. If it’s possible, take pictures. Don’t go to extremes, but definitely take pictures of your vehicle damage and injuries. It’s important to be open and honest with your insurance agent. Even if something is personally embarrassing, it’s better that your insurer knows about it. Withholding facts or information from your insurer may cause them to deny coverage of your claim or invalidate your insurance policy. There is a difference between replacement coverage and actual cash value. If you have replacement coverage, it may cover the cost of a new vehicle. If you take the actual cash value of your destroyed vehicle instead, you may take a loss. However, if you have replacement coverage, you may be required to actually replace the destroyed vehicle before you can get reimbursed for the cost of replacement. Be careful when accepting the estimate or appraisal of your losses that is given to you by your insurer. Insurance companies will often try to get you to accept the estimate given by their estimator or contractor. These estimates may be slightly lower than actual repair or replacement costs. Do not sign any releases or waivers of any kind without advice from a lawyer. You may feel pressured to accept an early, insufficient settlement from your insurance company if your financial situation is dire after your accident. However, there may be other damages you could include in your claim that you didn’t think about at first. Consulting with a lawyer will help you make sure that you haven’t forgotten anything. Make sure that you read all the fine print on any payment from an insurance company. Be aware of the time limits set by your insurance policy. Most policies require a signed proof of loss within a set time period, unless you get a written waiver of this requirement from your insurance company. If your claim has not been adjusted to your satisfaction, most policies only allow you one year to bring a lawsuit. Contact a lawyer immediately if your claim has not been adjusted fairly by eleven months after your accident. If you do not, you might lose your right to sue. Don’t accept any check that says “final payment” unless you are ready to accept a final payment. Remember that you have a legal contract with your insurance company. Your insurer has a legal obligation to give you the coverage that was promised to you. Insist on enforcement of that obligation. Uninsured or Underinsured Drivers Drivers are required to carry a certain amount of insurance coverage in case of a motor vehicle accident. However, many drivers ignore this requirement, cannot afford insurance, or don’t carry enough insurance. Uninsured motorist coverage is a type of insurance that covers bodily injuries received in an accident with a driver who is legally responsible for the injuries, but who doesn’t have any insurance coverage. Underinsured motorist insurance covers bodily injuries from an accident with a driver who has liability insurance, but that insurance coverage is lower than the injured person’s underinsured motorist insurance coverage. It is important to contact a lawyer experienced in personal injury claims as soon as possible if you have been in an accident with an uninsured or underinsured driver so that you don’t waive any of your legal rights. Uninsured Drivers Generally, uninsured motorist insurance covers people injured in an accident with a driver who doesn’t have any insurance. Uninsured motorist insurance may also cover hit-and-run accidents where the other driver isn’t identified. A person who has uninsured motorist insurance and is an accident with an uninsured driver may be able to receive compensation for their injuries from their own insurance company. If you have been in an accident with an uninsured driver, contact an experienced personal injury attorney before you file your insurance claim to make sure that you obtain all of the available compensation. Underinsured Drivers Underinsured motorist insurance covers injured persons when the responsible driver does not have enough insurance to fully compensate the injured person for all of his or her injuries. If a person purchases the very minimum amount of insurance coverage required by law, they may be an underinsured driver. If compensation for your injuries is greater than the insurance coverage available from the responsible driver’s insurance policy, you may be able to obtain the difference from your own insurance company. Collecting Damages To be compensated under uninsured or underinsured motorist insurance, the injured party has to prove that (1) he or she endured significant injuries and (2) the other driver was responsible for the accident. If the accident was with an underinsured driver, the injured party must also collect the maximum amount allowed under the other driver’s insurance policy before the injured party can collect the rest of the injury compensation from his or her own insurance company. Uninsured or Underinsured Drivers Conclusion If you are injured in an accident with a driver who doesn’t have insurance or doesn’t have enough insurance, uninsured or underinsured motorists insurance may cover your injuries. Contact an experienced personal injury lawyer if you have been in an accident and do not settle with the other driver’s insurance company. Some insurance companies are not required to pay under your underinsured motorist insurance policy if you have already settled with the other driver’s insurance company. Your lawyer can provide you with all of the information and assistance you need to get the maximum amount of compensation for your injuries. No-Fault Insurance Assignment of responsiblity for compensation for injuries in a car accident depends on the laws of the state where the accident happens. In a no-fault insurance state, neither driver in an accident is considered responsible and each driver submits a claim to his or her own insurance company. Florida, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, Pennsylvania and some other states all have some form of no-fault insurance laws. No-fault insurance is difficult to understand and the law is different in each state that offers this insurance. If you have been in an accident, it is important that you consult a personal injury lawyer with experience in motor vehicle accidents to discuss your state’s laws and how they may affect your right to be compensated for your injuries and vehicle damage. A No-Fault Insurance System Any vehicle insurance system that requires all drivers to purchase insurance for their own injuries and limits a driver’s ability to sue another driver is a “no-fault” insurance system. If you are involved in an accident under a no-fault insurance system, it doesn’t matter who was responsible for the accident, your insurance company will compensate you for you injuries, up to your coverage limit. Other drivers involved in the accident will be compensated by their own insurance companies. Under a one-hundred percent no-fault insurance system, drivers would be completely compensated for injuries by their own insurance companies and no driver could ever sue another driver. Currently, however, no states use a 100% no-fault system. States that use no-fault insurance policy systems use a blend of no-fault systems and standard systems, where the responsible person pays for compensation for injuries. All of these states permit lawsuits in some situations. The requirements for the type and amount of no-fault insurance vary from state to state. Some states allow an injured person to sue if their injuries are severe, while lawsuits depend on the total dollar amount of the injuries in other states. In many modified no-fault systems, insurance companies compensate the injured person for economic damages to the insurance policy limit, but the injured person can sue for non-economic damages greater than a certain amount. Economic damages are tangible costs, such as medical costs and wages lost because of time away from work. Non-economic damages are more intangible and may include consequences such as loss of enjoyment of life and serious, permanent scarring or disfigurement. The amount of non-economic damage that must be suffered before an injured person can sue differs from state to state. If you have been in an accident in any no-fault state, it is important to consult with a personal injury lawyer experienced in motor vehicle accidents to examine your state law. Choice No-Fault Some states, such as Pennsylvania and New Jersey have a choice no-fault insurance system. Under this system, drivers choose whether they want to be insured under a no-fault plan or whether they want to keep some of the standard responsibility rights to sue under a modified no-fault plan. If drivers choose the no-fault plan, they cannot sue other drivers for non-economic damages, but they also cannot be sued. If drivers choose the modified no-fault plan, then they can sue other drivers, but they can be sued as well. A personal injury lawyer experienced in no-fault insurance motor vehicle accidents can help you sort through these complicated issues, whether or not you are in a no-fault state. A No-Fault Insurance Policy If you are insured in a no-fault state, that part of your motor vehicle insurance is usually called Personal Injury Protection. The items covered under a Personal Injury Protection package varies from state to state, but generally, compensation is available for most costs related to an injury, including medical costs, lost wages, loss of services, funeral expenses, and death benefits. Other types of compensation are usually not covered by no-fault insurance, including pain and suffering, emotional distress, and inconvenience. Additionally, medical expenses or lost income above established maximum is usually not covered. Other insurance may be needed to cover physical damage to vehicles. No-Fault Insurance Conclusion A one-hundred percent no-fault insurance system may simplify compensation for motor vehicle accident injuries, although no states currently have 100% no-fault systems. Instead, no-fault systems vary greatly from state to state and these systems can be very confusing. An experienced personal injury lawyer can help you make decisions in order to get the appropriate amount of compensation.
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8:30 A.M. to 5:00 P.M.
(Central Time U.S.A.)
Other times available by special appointment.
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