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The new offices are Great!
If you haven't stopped by yet, please do! We are settled
into the new offices. If you need a map to find us, click here to
see a detailed map of our location. While you're there, you can click on some of the text to see a
few pictures of the new offices.
Should you call TV Lawyers for a Personal Injury?
It's hard to miss all of the lawyer advertising from
personal injury lawyers. These ads seem to be all over television,
much less in print ads and in the phone book. So, if you or
someone you knows sustains a personal injury, should you call a
personal injury lawyer who advertises on TV?
In many cases, the goal is to get the case to settle as
quickly and effortlessly as possible, so that the lawyers involved
can receive as much of a fee as soon as possible for as little amount
of work as possible. If it sounds like the practice of some of these
advertising lawyers is run more like a business and less like a
professional practice, you get the gist of what they really are.
As many of the readers of this newsletter already know,
we intentionally do not handle a lot of personal injury matters.
Rather, we work with our clients and their friends who have
sustained personal injuries to figure out what their best course of
action is. In many cases, we consult with an attorney who is expert
in a particular field so that the injured party can make informed
decisions. If the injured person feels it is in their best interest to
continue the evaluation process, they are referred to an attorney who
is capable of handling their personal injury case. There is no
pressure, there are no shortcuts taken. The injured person gets the
legal counseling and representation best suited for their
situation. Finally, we do not charge for our consultation in personal
injury cases. If the net result of the representation is that the injured
party receives compensation for their injuries, the expert attorney
that handles the matter pays a referral fee to our office.
So, if you or someone you know sustains a personal injury
and it is the type that could lead to damages (or even if you're not
sure), call our office to discuss the situation. Just as we do with all
of the legal issues that come to us, we will give you the time
necessary to evaluate the situation and counsel you on the best
approach to resolving it.
Do I own half the house because I'm married?
The law can be confusing in a lot of ways, especially when
it comes to real estate. One of the most confounding is the concept
of "tenancy" in owning real property. Tenancy (in this context) is a
form of ownership, not leasing. There are basically three types:
tenants in common, joint tenants, and tenancy by the entireties. It is
the last one that is most misunderstood.
Tenancy by the entireties is how real property is owned
when the legal title owners are married to each other at the time
the property is titled. If we could change the name to more
accurately describe what it means, "Tenancy of the married couple"
would be a better choice.
When you bought a house with your spouse, you may have
noticed on the deed that your marital status was noted, usually by "husband
and wife" after your names, or "his wife" after the wife's name. This was
done to signify that the title was being held by tenants by the entireties.
However, if you were not married when you bought the house, then you
are not considered to own the property as husband and wife.
If you marry a person who is the title owner of the house,
you do not become a title owner by the fact that you are married to
the named title owner. If your name is not on the title, you are not
considered the legal owner. PERIOD.
This titling is similar to joint tenants with right of
survivorship ("JTWROS" for short). When the next to last joint
tenant dies, the surviving joint tenant owns the entire property that
started out as JTWROS. With entireties property, when one spouse
dies, the surviving spouse owns the property by his or herself,
usually irrespective of what a will may provide. The key difference
from JTWROS property is that with entireties property, so long as
the spouses are alive and married, neither spouse can sell or
transfer any of their individual rights in the property.
This came about because of an old legal fiction that the
two spouses are one "person" under the law. While the legal fiction
has almost disappeared, the concept of entireties still remains.
Unlike what many people think (and forget Hollywood's version in
movies like War of the Roses), each of the spouses do not own half
the house. Rather, it is owned by the entireties collectively, and not
half each.
This has also meant that if only one of the spouses owes
a debt to someone, a lien cannot attach to entireties property, since
it would adversely affect the property rights that the non debtor
spouse holds. However, the first erosion of this concept
happened recently.
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A case concerning a federal tax lien owed by a Grand
Rapids, Michigan man went all the way to the US Supreme Court.
In United States v Craft, the court held that a federal tax lien could
be attached to the house owned by the taxpayer and his wife. If the
couple got divorced or the wife died first, then the federal tax lien
could be levied on the proceeds from the sale of the house.
The Craft case came as a complete surprise, and it is difficult right
now to speculate what other entireties property rights may be
eroded in the future.
Word to the wise: it doesn't matter what you think your
rights are in your house, it matters what the title says. If you are
unsure, you should pull out your copy of the deed and make sure it
titled the way it should be. If it is not, we will be happy to help you
get it fixed properly.
WILL you ever do your WILL?
We've all heard that you should get your will done, and
some have. But for many others, it's been put off for various
reasons (never got around to it, too busy, still haven't decided,
don't have the money right now, don't want to think about it, etc.).
As some of you know, one of the areas of law that we have
become increasingly involved with is probate litigation. While we
also handle "probating an estate" (setting up and administering an
estate in probate court for a deceased person or guardian), probate
litigation is a little different. Once it's at the stage of litigation,
something has broken down in the probate process and now the
parties are ready to fight for what they believe (or sometimes
just want). By the time a client has come to see us, or another
attorney has referred his client to us, the battles lines are already
drawn, and everyone is choosing up sides. What are they fighting
over? Almost always, it over money, usually the money of a
deceased family member or friend. Sound horrible? Actually, it
usually is (the trials can be very unpleasant!). In almost all cases,
someone's greed has gotten the better of them. That leaves the
other beneficiaries having to choose between fighting for what they
deserve, or having to get the shaft. A lousy choice, either way.
Doing probate litigation has given us a unique perspective
on estate planning. In pursuing the litigation and doing these trials,
the thought has often come to us: The deceased person would not
have wanted it this way. So why does this happen? In most cases, it
is because the deceased person failed to write their will, or if they
did write a will or trust, it was not done right. As people
accumulate more wealth during their lifetime, their estates are increasingly
worth more. Unfortunately, money tends to bring out the worst in a lot of
people.
It usually happens to the people who think "This would never
happen to me". In the vast majority of cases that we handle, it becomes clear
that the decedent never thought this type of thing would happen after they died...
Well, it does, and much more often than most people think.
The only way to be sure that you will avoid this scenario is
to make sure that your estate planning is in order. If you have
never signed a will, you are overdue.
After our last jury trial between siblings fighting over
mom's money, we have become insistent that it not happen to our
clients. We are so adamant about this, we have started contacting
some clients to make sure that they are properly set up. Yes, it's that
important, even if you have not yet accumulated great wealth. (Do
you really want your crazy aunt to be the guardian of your minor
children? Did you really want your spouse's cousins to get half of
your furniture?).
If you have not got your house in order, call us to discuss
your estate planning. We will also discuss whether you need a trust
or not. As many clients have discovered over the years, we only
recommend a trust when you need it, not because somebody at a
seminar said everyone should have a trust. For some, it is an
unneeded expense. We have special rates for clients and referrals
from clients. If you can't afford it, we will figure it out with you.
Yes, it's that important.
REFERRALS
If you have been pleased with the service and professionalism
you have received from our office, it would be greatly appreciated if you
passed the good word along. Referrals are always appreciated and
encouraged, and we look forward to the opportunity of being of service
to your associates and friends. If we can not immediately service
their needs, we will be happy to refer them to the appropriate attorney
specializing in their specific area of need.
However, if you have not been pleased, contact
us directly!
David B. Forest, JD, MBA
Attorney and Counselor at Law
(586) 532-6100
www.forestlaw.com
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