Can I use a personal injury award to create a trust?

Being a victim of an accident makes a person aware that life sometimes throws hard curveballs, rather than softballs.  Once securing compensation, a person’s mind logically turns to preserving the money.  Clients who have received personal injury awards which are also concerned with asset protection will often ask, “Can I use a personal injury award to create a trust?”
Types of Trusts for Holding Personal Injury Awards
There are many different types of trusts, as a skilled estate planning lawyer can explain. Each is designed to address a particular concern. The right trust for you will depend on what issues you wish to address.

Revocable Trusts, To hold Personal Injury Awards.
A Revocable Trust is perfect if your concern is needing assistance with your money, but you are not concerned about creditors or lawsuits.  For example, if you wanted your child to help you manage your investments and help pay bills, but don’t want to subject your assets to your child’s creditors or potential divorce issues, a Revocable Trust is a perfect document.  In short, the Revocable Trust owns your accounts for your benefit, and the Trustees are free to act for your benefit. You can change the Revocable Trust at any time, and it replaces your Will at your death.

Irrevocable Trusts for Others, Giving Your Personal Injury Award Away.
An Irrevocable Trust for other people is the safest way to protect your award, but it also means that you are giving away direct access and control.  For example, you could form an Irrevocable Trust for your spouse or your children and transfer a portion of your award into the trust.  If properly drafted any future creditor you may acquire will have no claim to those transferred assets.  While your spouse and children can share these assets with you in the future, you cannot require them to return the money.  While this is a very safe option, you may find losing control and ownership difficult.

Self-Settled Irrevocable Trusts, Your Personal Injury Award Held for You.
While an Irrevocable Trust for other people is settled law in all states, only a few allow Self-Settled Trusts.  A Self-Settled Irrevocable Trust is an Irrevocable Trust that you form for your benefit.  You place some or all of your Personal Injury Award into the trust, and the Trustee holds it for your benefit. You are both the “settlor” and the beneficiary.  Understandably, if these trusts were easy to form and cheap to manage, everyone would put their money into one avoiding all creditors.  Some states, such as Delaware and Alaska have statutes explicitly creating these trusts.  To use those laws you have to hire an Alaska or Delaware Trust company.
The costs involved in setting up and maintaining a Self-Settled Trust require a substantial amount of money.  I would be happy to discuss the pros and cons of a Self-Settled Trust.
Can I Use a Personal Injury Award to Create a Trust?
Yes!  Depending on your needs and requirements, a trust can be set up to help.
In conclusion, a trust can be crafted to address your needs and concerns.

Thanks to our friends and contributors from Klenk Law for their insight into trusts and estate planning practice.

What’s the Difference Between Payable on Death and Transfer on Death?

When it comes to personal assets there are different types of ownership. After a person passes away, how those assets are distributed to their heirs depends entirely on the form of ownership. Unless certain arrangements are made beforehand, most assets will have to pass through the probate process before they can be distributed to the heirs. Probate can be a costly and lengthy process which can in large part, if not entirely, be avoided. This is often handled with payable-on-death (POD) and transfer-on-death (TOD) accounts.

  1. Payable on Death Accounts. A POD account is recognized by the court as a valid method to avoid going through probate. Most every type of bank account is allowed to be a POD account.
  2. The owner simply files the required forms with his bank to set up this account.
  3. The beneficiary simply receives the funds when you pass.
  4. This type of account can leave you in total control of your assets throughout your life.
  5. You can change your beneficiary at any time, and take as little or as much money from your account at any time. This means that for as long as you are alive, the person who you’ve designated as the beneficiary has absolutely no right to the assets in that particular account.

2. Transfer on Death Accounts. The rules are similar for a TOD account. You can bequeath stocks, brokerage accounts, or bonds without them having to pass through probate. This works like a POD account, where you register your ownership and then you designate a beneficiary.

  1. Once you’ve set up your ownership, your beneficiary has no rights to the assets as long as you are alive.
  2. After you have died, the beneficiary can claim their securities without going through probate by simply providing identification and proof of your death to the transfer agent. A transfer agent is a business authorized to complete the ownership transfer of the asset from one person to another.
  3. Your TOD beneficiary has no rights to the stock for as long as you are alive. You can give it away, sell it, name a different beneficiary or even close the account.

Sometimes people neglect to name a beneficiary, or they name someone who passes away before them and they hadn’t named a secondary beneficiary. In that scenario, those accounts are treated as if they did not have a beneficiary at all. When an account does not have a beneficiary, it will have to pass through probate.

For more information about POD or TOD accounts, reach out to an experienced estate planning attorney Scottsdale AZ can count on.

Thanks to our friends and contributors from Arizona Estate Planning Attorneys for their insight into estate planning practice.

Negligent Slip and Fall Case at Your Apartment: Is this Grounds to Terminate a Lease?

Slip and fall accidents can happen anywhere, often including apartment buildings or the units themselves. In such instances, it’s important for landlords to understand the potential fallout. First off, negligence is almost always necessary for there to be any liability in a slip and fall case, but how do you determine if a landlord is negligent? For those who don’t already know, negligence is often defined as failing to take a reasonable amount of care. In the landlord and tenant context, this often means failing to fix a condition that the landlord knew or reasonably should have known was unsafe (i.e. – a broken stair, missing handrail, etc).

When the slip and fall is the result of a dangerous or defective condition in the apartment, negligence often comes to down to whether the landlord knew or should have known about it. Let’s use a slip and fall that occurs because of a leaky pipe as a hypothetical.

Obviously, if the tenant provided notice to the landlord of the leaky pipe, this is not an issue since the landlord knew about the problem and should have had it fixed before it caused an accident. Otherwise, you would have to show that a reasonable landlord would have known that the pipe was leaking in order to prove negligence. If the leak was inside an apartment unit, it’s very unlikely a reasonable landlord would know about it without a tenant telling him/her (unless the building’s plumbing was so old that a reasonable landlord would assume that leaks were occurring).

Assuming for the purposes of this blog that the landlord was negligent, and that his/her negligence caused a slip and fall injury in your apartment, can you break your lease?

First of all, anytime you wish to break your lease, the first step is always to check the lease itself. Many residential leases contain terms that govern what happens when injuries or crimes occur in the unit or apartment building. If you’re not sure, consult with a locallandlord tenant attorney Chicago trusts for a thorough review of your lease.

Absent a lease provision that allows you to break your lease, however, chances are still fairly good that whatever defective apartment/building condition led to the slip and fall could also get you out of it. That’s because such defective conditions could also be considered a violation of the implied warranty of habitability, which requires all landlords to provide apartments that are suitable for human habitation. A leaky pipe that led to a slip and fall injury not only presents a danger to tenants, but also could lead to toxic mold, water damage that compromises the integrity of the ceiling, and more – all of which touch on whether the apartment unit is habitable or not.

Much like with any apartment lease issue you’re having, it’s best to consult with a local landlord and tenant attorney for advice tailored to your individual circumstances. Attempting to break your lease on your own could result in an eviction case, and landlords are well-advised to take care of any defective conditions in their apartment units before they become even bigger problems.

Thanks to our friends and contributors from William Mazur Law for their insight into negligent slip and fall cases on a rental property.

Will a Personal Injury Settlement Be Considered a Marital Asset?

For most people, divorce is a difficult experience, emotionally and financially. In addition, dissolving a marriage can be more complicated when the couple has assets that are somewhat difficult to divide fairly. A personal injury settlement is a good example of this. Though personal injury settlements are not always considered marital property, there are some circumstances when they might be divided as a marital asset in a divorce.

The Argument Against Including Personal Injury Settlements as Marital Assets

There are several reasons why personal injury settlements are not generally considered marital assets. In most cases, they are awarded with a very specific purpose: to cover the expenses that come from an undeserved injury.
    • The person who receives the settlement often has expensive medical bills to pay, sometimes a lifetime of medical care and bills.
    • Some of the settlement money may be designated for the victim’s pain and suffering, which the victim’s spouse does not suffer.
However, not all of a typical personal injury settlement is for injuries or pain. There is often an amount included for lost wages and similar expenses. Because wages are considered marital assets, it stands to reason that reimbursement for lost wages also may be so.

Exceptions to the Rule

As with all legal principles, there are exceptions to the rule which may affect any one case. We can look at times when courts have included personal injury settlements as marital assets to see how they could apply to an individual’s situation. Courts have been known to give an estranged spouse part of a personal injury settlement in cases where:
    • Funds are placed in a joint account with the intent of using them to pay general household expenses.
    • The settlement primarily reimburses lost wages for a period during which the uninjured spouse supported the household.
    • The personal injury settlement is the primary source of income for the household.
    • The settlement is intended to cover damage to marital property, such as a car or house.
In these cases, the settlement funds are being used as marital assets so the courts sometimes decide to treat it as such in the case of a divorce. This is yet another reason that it is important to consult a personal injury attorney. A settlement should be protected so it can be used for the benefit of the victim of the injury.

Protecting a Settlement

Even in a happy marriage, it is important to take steps to protect a settlement in the case of eventual divorce. For instance, a family lawyer Arizona relies on may recommend that you keep the settlement in a separate account from the joint account so it does not become communal property. It is also important to keep records of how the settlement money is spent. A person who can show that the money is earmarked for, and currently used for, specific needs resulting from the personal injury will stand a better chance of keeping it in the case of a divorce. A personal injury lawyer can advise you on how to set up your settlement so it is protected throughout your lifetime.

Personal injury cases are complex in every way. The companies and entities responsible for such an injury often have a team of lawyers on their side. It is important that you as an injured party also have legal assistance to effectively make your case. If a personal injury settlement is part of your or your estranged spouse’s assets, it is also important to talk to a lawyer immediately. The laws regarding these cases are simply too complex to handle alone.

Thanks to our friends and contributors from Hildebrand Law for their insight into protecting a personal injury settlement during a divorce.

Can a Doctor be Sued for Pain and Suffering?

Medical professionals are required by law to uphold an appropriate standard of care as outlined by the laws in the state in which they practice medicine. While the vast majority of doctors accomplish this goal, some fail to do so and a patient is seriously injured as a result. The following is an overview of how an injured patient can seek compensation from the negligent doctor who hurt them. If you have suffered an injury in this manner, contact a personal injury attorney today to learn what options you have under the law.
When Can a Doctor Be Sued?
Doctors treat many patients each week and not every mistake they make qualifies as medical malpractice. In order to receive compensation for your injuries through a personal injury lawsuit, you must prove your doctor was careless or negligent and seriously hurt you as a result. While this may seem like an easy task, it can be difficult in cases where several doctors worked together or a diagnosis was unclear. For these reasons, it is best to have a personal injury lawyer you trust working with you to prove your injuries were due to medical malpractice.
Common Medical Mistakes That Lead to Lawsuits
While there are a variety of scenarios that may lead to a patient’s injury, some are more likely to occur than others. Some of the most typical mistakes in these cases are:
  • Missed diagnosis
  • Delayed diagnosis
  • Documentation errors
  • Failure to communicate orders to nursing staff
  • Errors made during surgical procedures
  • Medication mistakes
What Damages May I Win?
Every medical malpractice case is different, so it is difficult to know exactly what kinds of damages you could be awarded if you win your case. However, some of the most common damages in these types of lawsuits often include:
  • Unpaid medical bills
  • Lost wages
  • Future lost wages if you are permanently or temporarily disabled
  • Therapy costs
  • Pain and suffering
  • Mental anguish
What a Lawyer Can Do For You
If you are considering filing a lawsuit against your doctor for medical malpractice, it may benefit you greatly to have experienced legal representation. Your doctor will certainly have lawyers working to protect his interests, so you should protect your own. A few things a lawyer may do to prove your case are:
  • Hire investigators
  • Obtain your medical records
  • Speak with experts about your prognosis
  • Negotiate a settlement before trial
  • File court documents
  • Represent you during trial
If you or someone you care about has been hurt due to the negligence of a medical professional, contact a personal injury lawyer today to learn if you have a valid claim. After reviewing the evidence in your case and your injuries, your attorney will let you know if a lawsuit is possible. While a monetary settlement cannot restore your health, it can give you the resources to move ahead after your recovery has ended.

Slip and Fall Homeowners Insurance

When looking for free legal advice online, it’s important to remember the laws on premises liability vary by state — even though each will hold a property owner responsible for the safety of their premises — so seeking the help of  an attorney is still very important. When certain criteria are met, property owners can be held liable for slip and fall accidents involving a person who comes to their property.

Let us look at how liability for slip and fall accidents is determined, and the type of accidents that may be covered by homeowner’s insurance. In addition we will consider the measures you may wish to take if you are a victim of such an accident.

Liability for Slip and Fall Accidents
Generally, a homeowner is responsible for any person visiting their property. Therefore, they should ensure that all areas that people are likely to visit are kept safe. A homeowner is considered liable for a slip and fall accident if:

  1. They are responsible for the hazardous condition.
  2. They are aware of the condition or should have been aware of the condition.
  3. They had sufficient time to rectify the condition.
In some states, homeowners are held responsible for injuries sustained by trespassers. One common scenario where homeowners are held liable for slip and fall injuries by trespassers is where there are features in their premises that tend to attract children like a trampoline, playground, or pool. These are known as attractive nuisances. Homeowners with these types of structures should make every possible effort to prevent unauthorized access to these facilities.

Types of Slip and Fall Injuries Covered by Homeowners’ Insurance
Tripping or Slipping on Stairs
Many stair accidents are caused by the homeowner’s negligence; however, some may be unavoidable, such as when someone trips. The following factors can contribute to the risk of someone sustaining injuries on a flight of stairs:

  • Stairs without handrails or with poorly fixed handrails
  • Steps that are shallow or not up to building codes
  • Foreign substances or debris on the stairs
  • Poorly installed rugs or carpets on the stairs
  • Steps with varying heights
Slipping on the Floor, Rugs, or Carpets
A homeowner’s flooring, rugs, or carpets can make them liable for a slip and fall injury.

  • Freshly waxed or wet floors can be very slippery.
  • Rugs that do not have a good grip pad below them can also cause serious slipping accidents.
  • Carpets with holes or frayed edges are also a tripping menace.
A Broken Sidewalk
Homeowners are required to keep their internal walkways and paths reasonably maintained. When a person trips over a property owner’s broken sidewalk, they can hold the owner liable for the accident on the grounds of negligence.

Slipping on Snow or Ice
Slipping on ice on a person’s property can lead to serious injuries. Homeowners are charged with the responsibility of removing snow and ice to make their walking paths or sidewalks reasonably safe. However, in most cases, the jurors presiding over these cases tend to consider snow and ice a well known hazard for people living around such areas. This makes receiving damages for a slip and fall caused by snow or ice very difficult. Settlements for these cases are usually low because of the high probability that the homeowner will win.

Measures to Take After a Slip and Fall Accident
The moment you are involved in a personal injury at another person’s residence, document the scene if possible. Take photos and video of what caused the slip and fall accident. Also document your injuries, before and after treatment. The next step is to contact a slip and fall or personal injury lawyer. Be prepared to offer copies of your documentation about the accident and resulting injuries to the attorney. Most personal injury attorneys offer a free consult so do not delay in arranging an appointment.

Thanks to our friends and contributors from Hot Legal Tips for their insight into slip and fall cases.

Will My Children’s Trusts Be Affected By My Divorce

A living trust is used to avoid probate and guardianship, as a living trust attorney Las Vegas relies on can explain.  If children are the desired beneficiaries then provisions can be made to direct the assets to them upon your death.  Because these trusts are tightly integrated with your spouse, a divorce normally necessitates a change in your living trust and other estate planning documents.
When a person gets divorced, the beneficiaries of the living trust are not automatically changed to exclude the ex-spouse.  If you want your child to receive the inheritance instead of your ex-spouse, you must make an amendment to the living trust.  Otherwise, your ex-spouse is likely to receive the inheritance instead of your child.
The living trust normally appoints the ex-spouse as the successor trustee in the event of your death.  So while the trust may be amended to distribute the assets to the child, the ex-spouse may be the person controlling the child’s inherited money.  In some divorces, this may be the desire of the client, but normally you’re going to want to appoint a friend or family member to control your child’s finances if you’ve died.
Additionally, the living trust appoints the ex-spouse as the person who will have the authority to remove and appoint trustees for the child’s trust if you are unable to do so.  This provision should be identified and amended so the ex-spouse cannot manipulate the management of the child’s funds by removing your chosen successor trustee.
If you live in one of the nine community property states, you probably created a “joint” trust, which means the grantors, those who started the trust, are co-mingled with each spouse.  These types of trusts are not amendable if you get a divorce and you should revoke the joint trust entirely.  These trusts are so integrated with your ex-spouse, both legally and for tax purposes, that nothing short of a full revocation will suffice.
Whether a joint trust or separate trusts is used, the trust appoints trustees to manage your finances in the event you become mentally incapacitated.  Once again, this is normally your ex-spouse and the living trust needs to be amended to appoint a new person.
Basic estate plans should include a will , powers of attorney and health care directives.  Some states provide that if you divorce your ex-spouse has been deemed to have predeceased you.  That means that if you have named a successor executor or agent under the power of attorney then that successor becomes the first successor.  However, do you want to have a legal document giving your ex-spouse the power to fraudulently use a power of attorney, for example, to gain access to your finances?  Prudence would dictate that you update all your estate planning documents soon after a divorce.
GaryLFalesThanks to our friends and contributors from The Law Offices of Gary L. Fales & Associates for their insight into estate planning and trusts.

Will a personal injury award affect my child support payments?

The purpose of child support payments is to ensure that children are provided for financially when the parents were not or are no longer married to one another. Generally, the non-custodial parent pays child support to the custodial parent. Child support in most states is calculated using a percentage of the income of the parent paying child support. When determining income, the issue of personal injury awards may arise as to whether those monies are included in the income of the parent ordered to pay child support. While there is a variety of laws in different states about personal injury awards and child support, a general rule is that personal injury awards are not income for purposes of child support. How the personal injury award is paid may affect whether a court includes that money in calculating available income or child support.

Child support calculations are based on the income of the parent ordered to pay child support.

When a court determines that one parent must pay child support the court reviews the income of that parent and apply the state guideline percentage for the number of children and assign the monthly amount of income to be withheld from that parent’s paycheck which is collected and disbursed to the parent receiving child support.

Every state has statutes and caselaw guiding the courts on what money is to be considered income for purposes of child support. Whether money received in a personal injury award is included as income for child support depends on the nature of the personal injury award and how the money is received.

Different states may treat personal injury awards as income, depending on how it is received.

In many cases, a personal injury award paid in one lump sum. Other times, especially when the injury award is a significant amount of money, the plaintiff may be awarded a structured settlement and receive monthly payments. When the amount and method of payment is ordered, there is usually a breakdown of what the personal injury award represents. For example, an award of $100,000 could represent $5,000 of lost wages, $25,000 in medical bills and $70,000 for past, present and future pain and suffering.

Some states will include the $5,000 in lost wages as income for determining child support. If that amount is to be paid in a structured monthly settlement, the court could include it in a monthly child support calculation. If, however, the $5,000 is included in a lump sum payment a court may not consider that as child support income. One of the reasons money received in a structured monthly settlement may be included in the child support calculation is the ability to enter a withholding order. The withholding order would require the insurance company paying the settlement to send a portion of the monthly payment to be collected and disbursed to the parent receiving child support.

While all states have their general rules for determining, collecting and disbursing child support, there can be exceptions and circumstances where the general rules are not applied. Another thing to consider is whether there has already been a child support amount and withholding order in place before the parent paying child support receives a personal injury award. Every situation is unique and an experienced divorce and Divorce attorney Collin County TX relies on can advise a client as to whether it makes sense to ask the court to modify the child support order to include additional income from a personal injury award in a new child support order.

ScrogginsFamilyThanks to our friends and contributors from Scroggins Family Law for their insight into  the effects of a personal injury award on child support.

Tow Truck Driver Shot at Eden at Watersedge Apartments and Townhomes in Memphis, TN

apartment crime lawyer memphis tnCrime at Memphis apartment complexes continues.

Just this morning, a tow truck driver was shot in the head through the window of his truck at the Eden at Watersedge Apartments and Townhomes near Fox Meadows on South Mendenhall Road. According to the news we’re reading, witnesses heard four gunshots ring out before calling 911. When police arrived, they found the driver inside of the tow truck unconscious. Officers had to break out a window of the truck to get inside. According to WMC Action News 5 in Memphis, the victim was identified as 28-year-old Darrell Adams and he was checking for parking violations at the apartment complex when he was shot.

Does the Victim (Tow Truck Driver, Darrell Adams) have a claim against the apartment complex where he got shot?

Maybe. There are many factors to consider. In Tennessee, apartment complex owners and managers must take reasonable measures to protect tenants and guests from foreseeable criminal attacks. Whether Mr. Adams would be able to recover against the Edens at Watersedge depends on a number of factors, including, but not limited to, the facts of how the incident occurred, security measures provided at the apartment complex, and crime levels for the apartment complex and surrounding neighborhood.

Are you the victim of an apartment crime or apartment shooting? If so, call the apartment crime lawyer Memphis,TN knows and respects.

If you are the victim of a serious injury due to apartment crime, please call Wiseman Bray PLLC today at 901-372-5003. We’ve helped other crime victims like you, and we can help YOU recover your damages if apartment management failed to take reasonable measures to protect against foreseeable criminal attacks. Wiseman Bray PLLC is an apartment crime lawyer Memphis, TN  knows and trusts. We will meet or speak with you and discuss whether you might have a case at no charge.  Call us today.