Don’t be like Prince: Get a Will.

prince died without a will, memphis estate probate lawyer

It’s been widely reported that Prince probably died without a Will. This has left many people wondering:

How could someone rich and famous like Prince die without a Will?

Unfortunately, it is not uncommon for people, even the super-wealthy, to to die without even the simplest form of an Estate Plan. While at least one source reports that Prince’s Estate may be worth less than what people think, this surprising omission of someone of Prince’s celebrity status should give us all cause to stop and think about what might happen to our own families and hard-earned assets in the event of an untimely death.

2 Simple Reasons to Have a Will or Estate Plan

When we meet with potential clients and give basic estate planning seminars, we stress the importance of having, at the very least, a basic estate plan in place. This is important because:

1. Your wishes will be known. Have you ever tried to guess what another person wants? This is why many of us find Christmas shopping very stressful. The only way you can be sure to “get what you want” is to properly (and legally) communicate your wishes and desires. Just telling someone won’t cut it. After all, neither a judge nor your family will be able to ask you after your death.

2. You can help prevent family feuds and division. You may think your family is so tightknit that they would never quarrel over your assets after you die. You may be right, but you may also be wrong. Why take the chance? Make your wishes so clear that your family members have nothing to fight about amongst themselves after your death.

An Estate Plan is important regardless of your financial status. You do not have to be “rich” to need a Will. Even if you think you don’t have enough assets to justify planning ahead, it is likely that your possessions have real meaning to family members or friends. It is also likely that you have a larger Estate than you may realize.

2 Simple Reasons People Don’t Have a Will or Estate Plan

1. Fear of Losing or Giving up Control. Like Prince, many people like to retain complete control over their assets and business affairs. There’s not a thing in the world wrong with this. However, having an Estate Plan does not mean that you lose control! In fact, Estate Planning is a way to extend the control over your affairs “beyond the grave.”

2. Death is an Unpleasant and Uncertain Event. People often put off any planning or do not want to think about their passing. It is easy to procrastinate and it always seems like planning can be left for another today. However, death is an unfortunate reality for us all. As Benjamin Franklin once said, “In this world nothing can be said to be certain, except death and taxes.”

What happens without a Will?

If you don’t have an Estate Plan or Will, in Memphis and Nashville Tennessee, your Estate, like Prince’s, may become subject to state law and Probate Court orders. This is likely to lead to familial dissension and excessive fees and costs for the Estate, which in the end reduces the amount of assets remaining for your Beneficiaries. Your money may also wind up going to the Government! For example, in Prince’s case, the Probate Court has appointed a Corporate Executor for his Estate, and many attorneys will be involved because of the number of potential Beneficiaries. There will be many questions as to how the royalties and future earnings from Prince’s music will be handled. Estate taxes will have to be paid. All of these factors will lead to a lot of money being spent (and some might even say “wasted”). All of the headaches and money spent, as well as the publicity involved, could have been avoided, or at least minimized, if Prince had planned ahead by having a Will or Estate Plan.

Moral of the Story:  Don’t be like Prince.

Don’t be like Prince. Plan ahead now! Having an Estate Plan is easy, and every person can and should have one in place. A basic plan can be relatively inexpensive, even if drafted by a licensed Tennessee estate planning attorney, like the ones at Wiseman Bray PLLC.  We have offices in Memphis and Nashville. In Tennessee, and some other states, it is also possible, although often not recommended, for a handwritten Will to be valid. To read our blog post about handwritten wills, CLICK HERE.

Need a Tennessee Estate Planning Lawyer?

Call Wiseman Bray PLLC if you’re in the Memphis or Nashville area at 901-372-5003 or email us here.

You can sign up for email notifications of our blog posts here.

Neck Injuries from Slip and Fall Accidents

memphis personal injury lawyer neck injuriesMost of us in our life have at some time slipped and fallen down with no long lasting effects, but a slip and fall accident can potentially result in a serious neck injury. When it can be proven that the cause of a slip and fall accident was due to someone’s negligence, that person or their company can be held liable. This includes the victim’s company if it can be determined that the slip and fall accident was caused by unsafe work conditions. Neck injuries can be serious.

The Costs of Slip and Fall Accidents

A “simple” slip and fall accident may not have simple consequences. Serious neck injuries can result and wreak havoc on the victim’s long term health and well-being. The associated damages can be high as a result of:

  1. Ambulance transportation from the accident scene to the emergency room.
  2. Examination and x-ray fees plus any additional diagnostic tests.
  3. Medical costs associated with immediate, short and long term treatments.
  4. Physical rehabilitation.
  5. Surgery
  6. Lost wages from the present into the future.
  7. Lost benefits as a result of not being able to work.

Symptoms of a Neck Injury

Immediately after experiencing a slip and fall accident, seek medical attention. There’s no substitute for qualified medical expertise to diagnose the extent of your injury. If you suspect you may have sustained a neck injury, any of the following symptoms may be present but their absence does not mean your neck isn’t injured:

  • A dull aching in the neck
  • Pain when turning your head or moving it in any direction
  • Shooting pains, tenderness, numbness, or tingling in the neck area
  • Difficulty swallowing
  • Headache
  • Facial pain
  • Shoulder pain
  • Numbness or tingling in the arm

Types of Neck Injuries

A neck injury may affect the nervous system as well as the spinal cord. In the worst case scenarios, neck injuries can cause paralysis or death.

  • Whiplash can be caused by the head forcibly and suddenly moving in one direction and then snapping backward.
  • Neck fracture. A slip and fall accident can result in a break of the cervical bone, resulting in a neck fracture. The elderly and those suffering from osteoporosis are at greater risk of this injury due to the brittleness of their bones.

Who can be held accountable for a slip and fall accident?

This will largely depend on where the accident occurred, the circumstances of the accident, and who owns the property on which the slip and fall occurred. Negligence must also be proven. The following are only general guidelines and are in no way a substitute for legal advice:

  • If on private property, was the owner aware of the dangerous conditions but did nothing to address them?
  • If at your workplace, did your employers ignore unsafe working conditions?
  • If on public property, were those responsible for its maintenance knowingly ignore dangerous conditions that led to your slip and fall injury?

Statute of Limitations

Most slip and fall accidents will fall under the statute of limitations which limits how long you can wait before you seek legal recourse. If the at-fault party is a government entity, the statute of limitations period may be even shorter. It’s important that if you have had a slip and fall accident and suffered a neck injury as a result that you immediately consider contacting a Washington DC slip and fall lawyer.

Need a Memphis Personal Injury Lawyer?

Call Wiseman Bray PLLC at 901-372-5003 or email us here.

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0 COHEN

Thanks to our friends and contributors at Cohen & Cohen, P.C. for their additional insight into neck injuries as a result of a slip and fall accident.

Could an Independent Presidential Candidate Throw the Election to the House of Representatives?

could an independent presidential candidate win the White HouseBy: Lang Wiseman

Let’s talk potential Independent Presidential Candidate, Electoral College, and throwing the election into the House of Representatives.

The short answer?  Even assuming the election gets thrown into the House, only persons who actually receive a vote in the Electoral College would be eligible for consideration by the House.

[Go “Like” Wiseman Bray PLLC on Facebook and “Follow” Wiseman Bray PLLC on Twitter for more free legal tips, news & updates.]

An Independent Candidate?

Many voters and commentators dislike both Clinton and Trump, and are actively seeking an independent candidate or candidates.  For example, last week a leading member of the #NeverTrump movement (Bill Kristol) suggested that David French, a good friend of mine from law school, would be his choice to run as an independent candidate. David is a great guy – smart, principled, patriotic, and down to earth.  And while you wouldn’t necessarily know it from looking at him or reading his work, he loves basketball and actually had a pretty good jumpshot back in law school.  Ultimately, though, David decided not to run.

The path to victory for an independent candidate would be extremely narrow, and shrinking every day, if not already closed as a practical matter.  The various windows for submitting petitions to qualify to appear on state ballots are closing rapidly, leading most of the Anti-Clinton/Trump forces to freely acknowledge that an independent presidential candidate would have little chance to win an election outright.

So what, then, could possibly be the goal?  At least one stated aim is to try to prevent either candidate from securing a majority of Electoral College votes, thus throwing the election into the House of Representatives where a “white knight” candidate could be selected for President.

But is it realistic to think Clinton and Trump could both be prevented from getting a majority of votes in the Electoral College? 

There are 538 total electoral votes, and 270 constitutes a majority.  While it is theoretically possible to have a 269-269 tie – indeed, there are 32 different tie scenarios if you assume 11 battleground states – it is highly unlikely.  Realistically, then, an independent presidential candidate would need to win at least one state in order to prevent both Clinton and Trump from getting to a 270 vote majority in the Electoral College.  However, that is more difficult than you might think.  In 1992, for example, Ross Perot garnered 19% of the vote nationally, but didn’t secure a single Electoral College vote because he failed to actually win a state.  Thus, without major funding or campaign infrastructure, an  independent candidate would likely need to focus almost exclusively on a small handful of states, and then hope for the best in the House of Representatives.

constitutional law memphis

But let’s assume that happens.  What’s next in the House?

The Twelfth Amendment to the United States Constitution spells out the process, and it actually works quite a bit differently than many voters and commentators apparently believe it does.  This has occurred only twice in history – the election of Thomas Jefferson in 1800 and Andrew Jackson in 1824.

First, the House doesn’t vote in a normal fashion where every representative gets to cast his/her separate vote.  The voting takes place by state, with each state getting one vote.  So a state with a majority of Democrat representatives would presumably vote one way, whereas a state with a majority of Republican representatives would presumably vote another way.  This possibly dilutes a Party’s voting strength.  Assume, for example, 3 states that each have 20 representatives.  States 1 and 2 each have 11 Democrats vs. 9 Republicans, compared to State 3 which has 20 Republicans and 0 Democrats.  If you totaled all those votes separately, then the vote of the Republican representatives would win easily: 38-22.  However, in state-by-state voting, the Democrats would lead 2-1.

Second, and perhaps more importantly, the Twelfth Amendment specifically prohibits a true “white knight” outsider scenario, because the House can only vote for a candidate who finishes in the top 3 in the Electoral College votes.  The pertinent part of the Twelfth Amendment states as follows:

“If no person have a majority [in the Electoral College], then from the persons having the highest numbers not exceeding three on the list of those voted for president, the House of Representatives shall choose immediately, by ballot, the president.”

Thus, a “white knight” candidate must have received at least 1 electoral vote in order to be eligible for consideration by the House.  That presumably means no Paul Ryan, no Bernie Sanders, no Mitt Romney, nor any other outsider who failed to participate in the general election process and win at least one state (or portion thereof, since 2 states — Nebraska and Maine — are technically not winner-take-all when it comes to their 3 electoral votes each).

election law lang wiseman

The Faithless Elector — the Last Possible Hail Mary?

The Electoral College technically meets and votes in December following the November election.  Based on the Twelfth Amendment, the only other way to trigger a “white knight” scenario would be for one or more of the electors to disregard the popular vote in his/her particular state and become what is referred to as a “Faithless elector” by casting his/her ballot for an outsider.   Twenty-nine states have laws or political party restrictions that technically require an Elector to conform his/her vote to the popular vote in the state; however, no one has ever actually been prosecuted for becoming a Faithless Elector.  Twenty-one states have no laws at all to require Electors to vote for a pledged candidate.

Barring a situation where an independent candidate actually won an electoral vote, the Anti-Clinton/Trump forces would be hoping for an election night that produced a tie in the Electoral College vote.  They would then hope to peel off one or more Faithless electors to cast votes for a “white knight” candidate in December, thus making him/her eligible for a miracle in the House of Representatives.

election law attorney in memphis

About Lang Wiseman: Lang is the former Chairman of the Shelby County Republican Party and attended the 2012 Republican National Convention.

Lang has substantial experience in the areas of business and commercial litigation; bank litigation and workouts; advising small and closely held businesses; insurance coverage disputes; personal injury; professional, medical and legal malpractice; wrongful death; construction litigation and lien disputes; election law; and government relations/public policy. Lang is also a Tennessee Supreme Court Rule 31 Listed Civil Mediator.

Prior to founding Wiseman Bray PLLC, Lang served as Counsel to the United  States  Senate Governmental Affairs Committee. He previously served as Law Clerk to Judge Harry Wellford of the Sixth Circuit Court of Appeals.  Lang graduated with honors from the Harvard Law School after attending the University of Tennessee on a basketball scholarship, where he finished as the 24th leading scorer in UT history (1,156 points). He also graduated with a perfect 4.0 GPA and was the Top Graduate in the College of Business.

Will I have to pay taxes on my settlement?

personal injury settlementMany of our Memphis and Tennessee injury clients ask – will I have to pay taxes on my settlement for personal injuries?  The general answer is NO.

Will the IRS make me pay taxes on my settlement?

Here is what the IRS currently says about Settlements and Taxability:

If you receive a settlement for personal physical injuries or physical sickness and did not take an itemized deduction for medical expenses related to the injury or sickness in prior years, the full amount is non-taxable. Do not include the settlement proceeds in your income.

What if I did take an itemized deduction for related medical bills in prior years?

Will I have to pay taxes on my settlement if I did?  You must include in income the part of the settlement that is for medical expenses you deducted in any prior year to the extent the deduction provided a tax benefit. For detailed information on how to report this, we recommend that you speak with your accountant or tax professional.

What about settlements for Emotional Distress or Mental Anguish?

If you receive a settlement for emotional distress or mental anguish stemming from a personal physical injury or sickness, then the settlement is treated the same as a personal injury, as noted above above. However, if the settlement for emotional distress or anguish does not arise out of a personal injury or sickness, then you must include the proceeds in your income. Here is what the IRS states on this issue:

If the proceeds you receive for emotional distress or mental anguish do not originate from a personal physical injury or physical sickness, you must include them in your income. However, the amount you must include is reduced by: (1) amounts paid for medical expenses attributable to emotional distress or mental anguish not previously deducted and (2) previously deducted medical expenses for such distress and anguish that did not provide a tax benefit. Attach to your return a statement showing the entire settlement amount less related medical costs not previously deducted and medical costs deducted for which there was no tax benefit. The net taxable amount should be reported as “Other Income.”

Punitive Damages are Taxable

If you receive an actual court award of punitive damages, those proceeds are taxable and should be reported as “Other Income.”  This is true even if the award stems from personal injury or sickness.

Recovery of Lost Wages is Taxable

If your personal injury settlement is itemized to include recovery for lost wages, then that portion of the settlement is taxable and should be reported as income.  During the negotiation phase, most attorneys are careful to clarify and/or minimize, if not eliminate, any apportionment of the settlement to wages.  You would likely also receive a Form 1099 for any recovery attributable to lost wages.  [Note: Wages and/or settlements paid in connection with work comp are not taxable.]

Interest on a Settlement is Taxable

What if the other side doesn’t pay my settlement all at once? Will I have to pay taxes on my settlement if they pay me interest? Yes. Interest you are paid on any settlement is taxable as “Interest Income.”

Do I have to tell my CPA or Tax Preparer about my settlement?

We advise that you do, so that he or she can advise you on the most up-to-date reporting requirements applying to your specific settlement.

Injured and seeking legal representation?

Call us at 901-372-5003 or email us here. We handle a wide range of personal injury cases.  Our approach to handling cases is what sets our firm apart. While some injury lawyers and firms take on hundreds of cases, and may seem more interested in quickly settling the case than seeking full and fair compensation for their client, we focus on identifying great clients and great relationships.

Victims need a lawyer with the experience, drive, and knowledge necessary to compete with the insurance companies who are handling your claim. Otherwise, you’ll end up being a victim twice, and you might not even realize it until it’s already too late. Our personal injury practice is led by Harvard-educated attorney Lang Wiseman. We know how to get fair and just results.

Click here to learn more about the work we do.

 

Property Damage by Tree Limbs and Roots

property damage by trees, property damage lawyerHave you ever wondered about property damage caused by tree limbs or roots?

First, let’s talk for a moment about your neighbor’s tree limbs.  Suppose the tree itself is on your neighbor’s property, but the limbs are hanging over your fence, casting unwanted shade or shedding leaves you don’t want to pick up.  This really bothers you. Can you trim the limbs even though the tree belongs to your neighbor and is on his property?

The quick answer is yes. But don’t ask your neighbor to pay for it. And don’t trim the limbs beyond the property line. If it’s a more serious matter, you might have a nuisance action for property damage.

Option 1: Self-Help—Trim the Branches Yourself

Under Tennessee law, you may, at your own expense, cut away intruding vegetation to the property line whether or not it constitutes a nuisance or is otherwise causing harm to your property.

Option 2: Nuisance Action—Bring Suit to Make Your Neighbor Pay Damages and Fix the Problem

In some cases, you may have a cause of action for nuisance. A nuisance lawsuit may be brought when tree branches or roots from the adjacent property encroach upon and damage your property. Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 356-57 (Tenn. 2002).

What is a Nuisance?

In Tennessee, a private nuisance is anything which disturbs the free use of your property, or which renders its ordinary use or physical occupation uncomfortable. This extends to problems that endanger life or health, give offense to the senses, violate the laws of decency, or obstruct the reasonable and comfortable use of property.

Encroaching trees and plants are not nuisances just because they cast shade, drop leaves, flowers, or fruit, or just because they intrude upon your property either above or below the ground. However, the problem may be a nuisance if it causes actual harm or poses an imminent danger of actual harm to your property.

Example of a Nuisance Case

The Lane case represents a pretty extreme case of nuisance. In that case, the trees at issue caused a hole in the plaintiff’s roof and water from that hole ruined her ceilings and stove. In addition, the plaintiff had severe plumbing problems as a result of encroaching tree roots. She was not able to use her bathroom sink or tub for two years. Nor could she flush her toilet. Even worse, raw sewage bubbled up into her bathtub and the floor had to be replaced because the toilet continually backed up. The Court stated:

Clearly, the defendant’s encroaching trees have adversely affected the plaintiff’s reasonable and ordinary use and occupation of her home, not to mention posing hazards to the plaintiff’s health and safety. Accordingly, we reject the defendant’s assertion that its trees do not constitute a nuisance.

What’s the end result of a nuisance lawsuit?

The owner of the offending tree may be held responsible for harm caused and may also be required to cut back the encroaching branches or roots if a court finds that the encroaching vegetation is a nuisance.

If you are successful in a private nuisance action, you may be entitled to several types of remedies. A court might order that the nuisance be stopped (injunctive relief). You may also be entitled to money damages for the cost of restoring your property to its pre-nuisance condition, as well as damages for inconvenience, emotional distress, and injury to the use and enjoyment of your property.

Read more about tree limbs and the law in Tennessee by clicking here and reading our previous blog post titled, “Law FAQ: My Neighbor’s Tree Hangs Over the Property Line. Do I have the right to cut back the branches?” 

Need a Property Damage Lawyer?

Disputes between neighbors can be very uncomfortable. We can help, whether that means facilitating communication, fashioning an amicable resolution, or, if all else fails, filing a lawsuit. We’re here to help you find a solution that works for YOU!  Call us at 901-372-5003 or email us here if you need a property damage lawyer.

Meet the Wiseman Bray PLLC team by clicking here.

 

How to Dissolve a Tennessee LLC

dissolve tennessee llcNeed to dissolve your Tennessee LLC? The method for dissolving a business entity depends on the type of entity and its structure.  This post will focus on the termination of a Tennessee Limited Liability Company (LLC).  In addition, while LLCs can be dissolved both judicially and administratively, we will focus on dissolution by the person or persons associated with the LLC.

Disclaimer: This information is intended to be a general overview of the LLC termination process in Tennessee.  The termination process may be different depending on the LLC, its makeup, or a client’s specific circumstances. This information should not be used as a substitute for consulting an attorney about terminating your LLC.

 Statute on how to dissolve a Tennessee LLC

LLCs formed on or after January 1, 2006, are governed by the Tennessee Revised Limited Liability Company Act.  Tenn. Code Ann. 48-249-601  provides the various methods for dissolving a Tennessee LLC and provides that an LLC is dissolved upon the first of the following to occur:

  • Expiration of the period fixed in the Articles of Organization, if any:
  • The occurrence of an event specified in the LLC documents;
  • Action of the members in accordance with Tenn. Code Ann. § 48-249-603;
  • Action of the organizers under Tenn. Code Ann. § 48-249-602 if not contributions have been accepted by the LLC;
  • An order of the court under Tenn. Code Ann. § 48-249-616 or § 48-249-617, also known as judicial dissolution;
  • An action of the Secretary of State under Tenn. Code Ann. § 48-249-605; also known as administrative dissolution; or
  • If there are no LLC members and a notice of dissolution is filed within 90 days of the occurrence of the event terminating the interest of the last remaining member and the LLC documents specify that the termination of the interest of the last member dissolves the LLC.

The statute specifically provides that the “termination, dissociation, death, incapacity, withdrawal, retirement, resignation, expulsion, bankruptcy or dissolution of any member, or the occurrence of any other event that terminates the membership interest of any member, shall not cause the LLC to be dissolved.”  If any LLC is to be dissolved in any of these instances, it must be stated in the LLC documents.

What to Do Before Termination

Before terminating your entity with the Tennessee Secretary of State, the entity must file a Final Tax Return with the Tennessee Department of Revenue and obtain a Tax Clearance Letter to submit with its termination documents.

Submitting Termination Documents

If a Tennessee LLC is terminated by the organizers, Articles of Termination by the organizers must be filed with the Tennessee Secretary of State. If the LLC is terminated after a designated period, under the LLC documents, if there are no members left, or if by consent of the members, Notice of Dissolution must also be filed with the Secretary of State.    Be sure to have appropriate documentation filed with your LLC documents showing any action that was taken to effect this decision, if necessary.

What to Do After Termination

Once an entity is terminated with the State, the LLC must stop doing business and wind up its affairs.  To wind up the business, management must collect and pay all debts, sell assets, and distribute any remaining funds to the members of the LLC.

You Still Need to Consult a Business Lawyer

This information is only a general overview of the LLC termination process in Tennessee.  The process may be different depending on the LLC, its makeup or a client’s specific circumstances.  For this reason, it is important that you consult an attorney before taking steps to terminate your LLC.

If you need help terminating your LLC, we would be honored to assist you.  Please call us at 901-372-5003 or email us here.

 

Have Divorce Questions? Guest Blog by Family Law Attorney, Lucie Brackin

divorce attorney memphisWe hope you never need a divorce. But just in case you have questions about what a divorce in Tennessee involves, we’ve invited Guest Blogger and Family Law Attorney Lucie Brackin to fill you in. Lucie is a partner with The Landers Firm PLC. Here’s what Lucie has to say about getting a divorce in Tennessee:

Filing a Divorce Case

The first step is to file a Complaint for Divorce and pay the filing fee to the Court Clerk’s office.

How Long Does it Take to Get Divorced?

If you have minor children, there’s a 90 day waiting period before the Court can grant a divorce.  If you don’t have minor children, the waiting period is 60 days.

Discovery in a Divorce Case

The first formal phase of a divorce is called “discovery” because that’s what the lawyers are doing – discovering everything they need to know about the parties, the finances, the children, etc.  This usually involves answering a list of questions under oath, producing documents to the other side, and depositions.

Child Custody in Tennessee

In Tennessee, the Court will not use the word “custody” in your case.  The terms now used under Tennessee law are Primary Residential Parent and Alternate Residential Parent.  However, these titles don’t hold the significance you might think.  Regardless of who holds these titles, each parent’s specific rights to make major decisions regarding the children’s education, health, religion, and extra-curricular activities will have to be determined and specifically stated in the Permanent Parenting Plan that must be either agreed upon or ordered by the Court.

Parenting Time (or Visitation)

Courts in Tennessee do not use the term “visitation.”’  The legal term in Tennessee is “parenting time.”’  The Permanent Parenting Plan form outlines the day-to-day and holiday schedules.  This must all be completed before a Court will approve a Permanent Parenting Plan.

Child Support in Tennessee

If minor children are involved, there must be a Child Support Worksheet attached to the Permanent Parenting Plan.

In order to calculate child support, you must include:

  • number of days per year each parent has the children (which is basically the number of overnights the children spend with each parent per year),
  • each parent’s gross monthly income,
  • cost that each parent pays for the children’s insurance,
  • cost of work-related child-care.

After the “guideline support” is determined by the worksheet, there may be deviations (upward or downward) that may be allowable, such as recurring medical expenses, extra-curricular activities, or special lessons.

“Minor children” are defined as children who have not yet turned 18 years of age and graduated from high school. So, child support sometimes has to be paid after a child has turned 18 but has not yet graduated or after a child has graduated but has not yet turned 18.

College Expenses as Child Support

Courts in Tennessee cannot order parents to pay college expenses, although parents can enter into a contractual agreement to pay college expenses for their children.  It is very important to talk to a lawyer before you enter into a contract to pay college expenses for your children.

Division of Assets and Liabilities in a Divorce

The first determination that the Court will make is whether the asset or debt in question is “marital” or “separate.”  Generally, separate assets are those that one of you had before the marriage, that you inherited, or that was given to you as a gift, and which you continued to hold separately.  With the exception of some kinds of retirement funds, increases in value to those separate items will also be separate unless marital efforts have been used to cause the increase in value.  Separate assets are typically retained by their original owner and the other spouse cannot make a claim to those items.  There are, of course, special exceptions that apply to special circumstances.  Marital assets are nearly everything else, including things like closely held businesses or professional practices.

The division of marital assets occurs without considering the fault of a party (“grounds for divorce”), and the guiding principal of division is that the Court is to achieve “equity” with the division, but “equity” does not necessarily mean “equal.”

Alimony (or Spousal Support)

There is no formula to calculate alimony in Tennessee.  To calculate alimony, the Court considers many factors, the most important of which are “need” and “ability to pay.”  While there are no hard and fast rules, you can typically assume that the longer the length of the marriage and the greater the disparity in the parties’ earning capacities, the greater and longer the alimony award.  Conversely, the shorter the marriage and the closer the parties’ earning capacities are, the less likely it is that there will be a significant alimony award or any at all.

The types of alimony available in Tennessee are as follows and they are applied based upon which type best fits the facts, circumstances, and needs in your case:

  • In Futuro Alimony:  This is typically “lifetime” alimony and is reserved for very unusual cases or long-term marriages where one spouse will never be able to fully support himself or herself.  It is typically taxable to the recipient, deductible by the payor, and modifiable by both parties under the right circumstances.
  • Rehabilitative Alimony:  This is typically used in circumstances where one spouse needs support to allow him or her to get to a financial place where support is no longer needed – perhaps to complete an education or to allow a minor child to begin school.  It is typically taxable to the recipient, deductible by the payor, and modifiable by both parties under the right circumstances.
  • In Solido Alimony:  This type of alimony is also known as “lump sum alimony” and it is typically used to balance out an unequal division of property or to ensure the transfer of a certain sum of money to a spouse without creating tax consequences and without allowing modifiability.
  • Transitional Alimony:  This form of alimony is typically used in circumstances that don’t fit other types of alimony and “rehabilitation” is either not possible or not needed.  It is typically of short duration, and it may be taxable or non-taxable, and it may also be modifiable or non-modifiable, depending on what is trying to be achieved.

Resolution of a Divorce Case in Tennessee

Most divorce cases will be settled through mediation, which the Courts often order if the parties do not voluntarily attend.  If you are unable to resolve your case, your divorce will be set for trial.

Need a lawyer in Memphis?

We would be honored to help you with your legal issue. View our practice areas here.

In addition to Memphis, we also represent clients in Arlington, Bartlett, Collierville, Cordova, Eads, Germantown, Lakeland, Nashville, Ashland City, Belmont, Hillsboro, Brentwood, Belle Meade, Forest Hills, Franklin, Greenhill, Hendersonville, Nolensville, Nolan’s Park, Oak Hill, and surrounding areas. We also work in Mississippi.

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38103

(901) 372-5003

EMAIL US HERE.

divorce attorney in Memphis

Lucie Brackin, Guest Blogger

 

 

 

Wyoming Close LLCs Protect Assets

Wyoming Close LLC Asset Protection Memphis TNA popular asset protection tool we use at Wiseman Bray PLLC is the Wyoming Close Limited Liability Company.  One or more people can establish and own this type of entity and may also manage the LLC.   

Anyone can establish a Wyoming Close LLC, even if you do not live in Wyoming or conduct your business there.

Protection from Lawsuits

Under current law, assets inside a Wyoming Close LLC are protected from “outside” lawsuits and creditors, such as those resulting from a car accident or malpractice action.  In a few states, like Wyoming, the sole remedy for a creditor of an LLC member against that member’s LLC interest is a “charging order.”  A charging order only allows the creditor access to the debtor’s LLC interest to the extent distributions are made to the member.

Estate and Gift Tax Benefits

Under current law, the value of a membership interest in a Wyoming Close LLC may be subject to valuation discounts for estate and gift tax purposes. We anticipate in the future that the IRS will institute regulations limiting tax benefits.

Separation of  “Hot” and “Cool” Assets 

A “hot” asset is something like a rental property.  A “cool” asset is something like a brokerage account. Separate LLCs should be formed to keep “hot” and “cool” assets separate.  “Cool” assets should be isolated from “hot” assets because any “inside” lawsuits, such as those resulting from accidents occurring on property inside the LLC, will subject “cool” assets to claims of creditors of the “hot” assets.

Is a Wyoming Close LLC right for you?

If you have questions about whether a Wyoming Close LLC might be right for you, or if you’re curious about other forms of asset protection and business organizations, please call us at 901-372-5003 or email us here. We will examine your personal situation and work to develop the asset protection strategy that is right for you.

Larry Bray

Larry Bray

Lindsay Jones

Lindsay Jones

Carlisle Dale

Carlisle Dale

Who is the best lawyer near me?

best lawyer in memphis

By:  Lang Wiseman

You may have been hurt in an auto accident or truck accident and wondering:

  • Who is the best injury lawyer or best accident lawyer in Memphis, or Nashville?
  • Who is the best injury attorney near me?
  • Who is the best car wreck lawyer in Cordova, or Bartlett, or Germantown?
  • Who is the best car wreck attorney near me?

You may have been injured and Googled those questions, or perhaps others:

  • Who is the best personal injury attorney or wrongful death lawyer in Memphis?
  • Who is the best spinal cord injury lawyer, or brain injury lawyer near me, or in Memphis, or in Tennessee?
  • Who is the best lawyer to negotiate with an insurance company for damages for your injury?

Right question. Wrong answer.

You won’t ever hear any lawyer or attorney at Wiseman Bray PLLC claim that we are the “best” in Memphis – for a couple of different reasons. First, because there are plenty of fine lawyers and attorneys in the Memphis and Nashville, Tennessee area, including in Cordova, Bartlett, Germantown, Arlington, Millington, Collierville, and Lakeland.  We would seriously question any injury lawyer with the temerity to proclaim himself “the best.”

Second, based on Rule 7 of the Rules of Professional Conduct, the Tennessee Board of Professional Responsibility back in 2004 specifically prohibited such self-serving, subjective statements by attorneys, including statements that a lawyer is “most qualified,” “excellent,” “top,” “most experienced,” “preferred”, or an “expert” in a particular field of law, such as personal injury, auto accident, or wrongful death.  The Board’s opinion was based on provisions of Rule 7 that have since been revised, and thus it is not entirely clear whether an outright prohibition is still technically enforceable. However, most reputable lawyers still find such statements to be highly questionable, and certainly in poor taste.

So, the next time you hear an attorney refer to herself or himself as an expert, or say that he or she is the best lawyer in a Tennessee town – whether on TV or on a website or in marketing materials – you should know that that lawyer is not only humility-challenged, but also possibly in violation of the basic Rules governing attorney conduct.

The right answer?

At Wiseman Bray PLLC, you’ll only hear us talk about our experience in Memphis and Nashville, Tennessee injury claims, and about our unique and selective approach to personal injury and wrongful death claims. When it comes to injury cases, we’re not a high-volume, low-dollar settlement firm. We only take serious claims involving serious injuries or death, and we purposefully keep our caseload small so we can give our clients the attention they deserve.

You can check out our qualifications here, and you can click here to find out more about some of the actual results we’ve achieved in various types of cases, including car wrecks, truck accidents, slip and fall cases, and wrongful death claims. At the end of the day, we’ll allow our client ratings and peer reviews from such public resources as AVVO or Findlaw do the talking for us. Click on those links to see what others have to say about us.

Search our blog or  website for more helpful resources and information, and please call or email about a free consultation. We’ll respond in less than 24 hours to let you know whether we can help. Here’s our contact information.

Swimming Pool Injury and Drowning Cases in TN

pool injury lawyer, pool injury attorney, drowning victim attorneySwimming pool injury cases are serious. One of the most heartbreaking cases I have ever handled involved the accidental drowning death of a teenage boy. The parents of the young drowning victim grappled with death of their son at what started out as a fun swimming party with friends.  The owner of the pool and the other party guests felt enormous grief, but at the same time, they did not know what they could have done differently. While the case was eventually settled, everyone involved was devastated, and the effects of the young man’s death were far-reaching.  I will never forget the emotions of all of the parties and witnesses involved in that case.

Most people have no idea just how dangerous a swimming pool can be. Drowning and other swimming pool injuries happen quickly and quietly.  Look at these statistics from the CDC:

Drowning Statistics

  • Every day, about 10 people die from drowning.
  • About 1 in 5 of those are kids 14 and under.
  • Nearly 80% of drowning victims are male.
  • Children ages 1-4 have the highest drowning rates. Among children ages 1-4, most drownings occur in home swimming pools.
  • The drowning rate for African Americans is significantly higher across all ages. The disparity is widest among children ages 5-14.

swimming pool lawyer, drowning victim lawyerPool Drains Can Be Deadly

Drowning isn’t the only swimming pool safety concern. Pool drains can also cause significant injuries and death.  In fact, there is federal legislation governing public pool drains because of the serious risk of harm and death.  The legislation is known as the Virginia Graeme Baker Pool & Spa Safety Act  and it is named after a young girl who drowned after she was trapped under water by suction from a hot tub drain.  The suction from the drain was so strong that her mother tried to pull her from the drain but could not. The two men who eventually freed the girl pulled so hard that the drain cover broke from the force. The little girl died from drowning, but the real cause of her death was suction entrapment due to a faulty drain cover.  To watch a short video explaining the danger of pool drains, click here.

For additional drowning death and swimming pool injury statistics and supporting graphics, click here.

What to Do After a Swimming Pool Injury or Drowning

If you or a loved one has been injured in a swimming pool or hot tub, you may be entitled to compensation for your damages.   Here are some pointers about what to do:

  • Take photos of the scene. Include the pool, equipment, fencing, gates, toys, surrounding area, etc. It is extremely important to document the scene of the injury or death before the pool owners make any changes.
  • Write down names, phone numbers, and addresses of any witnesses. If you decide to pursue a claim, your attorney will need to be able to contact and interview witnesses.
  • Talk with a Swimming Pool Injury Lawyer. An experienced lawyer can examine the facts of a case and advise you of your legal rights and options.

Legal Info on Drowning and Pool Injury Lawsuits

In Tennessee, swimming pool owners have a duty to exercise reasonable care for the safety of persons using or accessing a swimming pool, hot tub, or spa.  If a swimming pool owner is negligent, or fails to act with reasonable care, and a person drowns or is injured as a result, the pool owner will be liable for damages.

Every case is unique.  Outcomes and liability assessments depend on the specific facts involved. A swimming pool injury lawyer will be able to talk with you about the circumstances under which the injury or drowning occurred and can give you the appropriate legal advice.   Some of the factors that will influence the outcome of a Swimming Pool Injury or drowning case are:

  • Age of the victim
  • Swimming experience of the victim
  • How the victim entered the property
  • How the victim entered the pool
  • Time frames
  • Fencing around the property and/or pool
  • Condition of the pool water, i.e., was it murky or cloudy?
  • Gates and access mechanisms for entry to backyard or pool area
  • Characteristics of property, i.e., visibility from public areas, presence of toys.
  • Safety equipment available
  • Type of supervision provided
  • Involvement of alcohol
  • Type of pool drain and other maintenance equipment
  • Whether the pool was public or privately owned
  • Training of lifeguards and other staff
  • Notice to pool owners of dangers, access problems, or prior trespassing
  • Local ordinances and codes that apply to swimming pools

pool injury lawyer memphis - drowning victim lawyer

Examples of Tennessee Court Cases on Drowning

Case outcomes are dependent on the facts and the proof or lack thereof that is presented in Court by the trial lawyers for the parties.  Below are just a couple of examples of Tennessee drowning cases, either one of which might have turned out another way had the facts been slightly different:

Harper v. Elliott (1999).  Four year-old boy wandered onto the pool owners’ property and drowned in their pool.  The owners had a 46 inch high wrought iron fence with vertical bars surrounding the pool and access was through 2 gates with simple latches. The pool had a diving board and a slide and there were colorful inflatable toys in and around the pool. The subject street was a busy four lane and the child lived a few doors down. He had left his home while his father was away on a job interview and his mother was asleep. There was no evidence of the route the child took, or how he entered the pool area. A police officer speculated that he squeezed between the bars of the fence, took off his clothes, and slid down the slide into the pool. There was no evidence of what the child could have seen from public spaces. The judge said that it was too much to say that the pool owners knew or should have known that children were likely to trespass on their property. In all the years since they built the pool, they had never known of a child coming onto their property uninvited. Also, the street at issue was a busy, four-lane street, making it highly improbable that a child small enough to fail to appreciate the danger of a swimming pool would be wandering alone in the neighborhood. The judge granted summary judgment in favor of the pool owners and the jury never heard the case. Harper v. Elliott, No. 01-A-01-9809-CV00503, 1999 WL 499737, at *1 (Tenn. Ct. App. July 16, 1999).

Toney v. Cunningham (1999).  A 19 month-old baby girl drowned while attending a Memorial Day celebration. The child’s grandmother agreed to watch her while the mother worked and took her over to the home of the defendants for a party.  The grandmother took the child to one of the bedrooms in the home for a nap and then went outside to watch some other guests play tennis. On 2-3 occasions, the grandmother checked on the child, each time finding that she was asleep. During the tennis match, a ball was hit over the fence. A party guest attempted to retrieve the ball and saw the child floating face down in the swimming pool.  The child’s mother filed a wrongful death suit against the pool owners. The court granted summary judgment to the pool owners because it did not think that, under the facts of the case, that the particular injury experienced by the baby was foreseeable to the pool owners. This was because at the time of the accident, the baby was under the supervision of her grandmother. Additionally, the pool owners and several guests were on or near the tennis court when the accident occurred. From the tennis court, the swimming pool is easily visible. It was unlikely that the baby would open the back door, walk to the swimming pool, and fall in without being seen or heard.  Also, the pool owners knew that the baby was in the care of her grandmother and had every right to believe and expect that the grandmother would supervise the child. Balancing the factors, the court granted summary judgment in favor of the owners, meaning the case was never heard by a jury. Toney v. Cunningham, No. 02A01-9801-CV-00005, 1999 WL 188291, at *5-6 (Tenn. Ct. App. Apr. 6, 1999).

Other Helpful Info

Stay Safe In and Around Swimming Pools 

Safety Barrier Guidelines For Residential Pools 

 

We Handle Swimming Pool Injury and Drowning Lawsuits

We represent pool injury victims and the families of those who have lost loved ones due to accidental drowning. If you need a Swimming Pool Injury Lawyer or an Accidental Drowning Lawyer in the Memphis or Nashville area, please call us at 901-372-5003 or email us here.  Our work is personal. Our clients become family. Either I or one of our other experienced attorneys will meet with you and provide a free consultation.  We will examine the facts of your case and advise you on your legal rights and options.

 

By: Erin Melton Shea

 

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

(901) 383-6599 Fax

www.WisemanBray.com