Wednesday, June 19, 2019

Common Misconceptions about Wills and Probate

Estate planning can be a delicate subject to broach. Most people do not want to think about or discuss what will happen after they are gone. Clearing up some common misconceptions about wills and probate is a good place to start on your path to knowledge and empowerment when it comes to estate planning. Having an attorney explain the probate process and how wills and trusts work can give you and your family peace of mind and let them know what to expect.

If You Die Without a Will, the State Gets Your Assets

This is simply not true in most cases. Even if you or a family member passes without a will, assets are distributed according to the intestate succession laws of your state. This means that your assets go to your closest relatives, usually your spouse or children. The administrator of your estate, who is appointed by the Probate court, will go down the line and search for relatives, including grandchildren cousins, aunts, uncles, grandparents, etc. If they cannot find any beneficiaries who are related to you, then your assets may go to the state. All of this can be avoided by taking the time to create an estate plan with knowledgeable wills and trusts lawyers. This ensures that your estate is distributed and arrangements are made according to your wishes.

Probate Is a Long, Drawn-Out Process

It can be, especially if a person with a complex estate dies without a will in place. However, most estates can typically be probated from start to finish in a few months, and the vast majority are settled within one year. The contesting of a will can also lengthen the probate process, which is another reason why proper estate planning is so important. An experienced attorney can help you create estate planning documents that make your intentions crystal clear, which can help your family avoid painful and often costly conflict own the road. An attorney can also help you create trusts that may allow the majority of your assets to avoid the probate process.

You Can Omit Your Spouse from Your Will

State laws vary, but most states do not allow you to completely exclude a spouse from inheriting some of your assets. Even if you do leave your spouse out of your will, they have the right to take or “elect” against it and may receive at least one-third of your assets. The reasons for leaving a spouse out of a will are often practical. For example, if it is a second marriage and your spouse is financially secure in their own right, you may wish to leave all of your assets to your children and grandchildren. If this is the case, a divorce attorney can create a waiver or pre-or post-nuptial agreement for you and your spouse to sign to ensure they cannot elect against your will after your death.
Ready to learn more about how estate planning can protect your family’s financial future? Our knowledgeable attorneys at Carosella & Associates can help.

Wednesday, June 12, 2019

Filing a Judgment Lien to Collect a Debt: Is it worth it?

When a plaintiff wins a judgment in civil cases the court typically orders payment from the defendant, but how can you collect a debt if the debtor refuses to pay up? If someone owes you money and you have already filed a successful lawsuit, one way to try and get payment is to file a judgment lien on their property, which allows you to collect a certain amount of money from the sale of the debtor’s property. There are strict procedures for filing a judgment lien and a number of factors can affect whether you will be able to collect on it at all. Seeking the counsel of experienced business attorneys who can advise you on the most effective course of action to collect a debt can help you save time, money and a lot of headaches.

How Does a Judgment Lien Work?

In Pennsylvania, a judgment lien can only be attached to real estate, which may include land, a home, condo or other real property. It is recorded with the clerk of the court of common pleas in the county where the property is located. Once it is recorded, it will appear on any title search of the property.  A judgment lien can remain attached to the debtor’s property for five years. Generally, the lien must be removed or released before property can be transferred to another person or entity. In rare cases a lien may be transferred with ownership if the buyer is willing to accept it.

Is a Judgment Lien Worth it?

It depends. There are a few factors that can affect a creditor’s ability to collect on a judgment lien. If the property is a debtor’s primary residence, they may be able to claim a homestead exemption, which limits the amount of money a creditor can collect (if any). If a debtor has other liens on their property or is facing foreclosure, that can make it even more difficult to collect. In addition, a bankruptcy lawyer may advise a debtor who is financially underwater to file Chapter 7 bankruptcy, which may wipe out the lien altogether and make it impossible to collect at all.  Each situation is different and depending on the amount of the debt, the time and money you spend on trying to collect on a judgment lien may not be worth the cost.

Other Types of Liens

If you work in the construction business as a contractor or subcontractor, filing a mechanic’s lien is a more effective option to collect payment for work that has been completed. A mechanics lien that is properly filed on a PA property will significantly increase the chances of a debt being paid in a timely manner, and you do not have to obtain a judgment from the court in order to file a mechanic’s lien. Experienced real property lawyers can assess your specific circumstance and advise you on whether a mechanic’s lien would work or if you would be better off filing a lawsuit against the debtor.
Do you need assistance with collecting a debt? The experienced business lawyers at our West Chester law firm can help.

Wednesday, June 5, 2019

Dealing with Family Conflict: When a Will is Contested in Probate

The period following the death of a loved one is a difficult and emotional time. It can bring out the worst in even the closest families, especially when large sums of money are involved or someone feels slighted. An experienced probate attorney can help your family navigate the settlement of your loved one’s estate and provide a rational voice, which can help resolve conflict and get it settled in a timely manner.

Ways to Contest a Will

When a will is first submitted for probate in Pennsylvania, it goes to the Register of Wills in the county where the deceased person resided at the time of their death. A person who is contesting the will must submit a caveat, or written objection that includes legal reasons for contesting the will to the Register of Wills. If the Register of Wills has already recognized the validity of the will and has opened the estate, a contester can appeal this decision within a year of the date the will was filed with the Register of Wills. This can keep an estate tied up in probate for years, so it is important to seek the counsel of an attorney as soon as anyone contests a will.
There are several assertions that are commonly made by those challenging a will, including:
  • Undue influence
  • Incapacity
  • Fraud
  • Forgery
  • Procedural errors

What an Executor can do to Prevent Conflict

These common issues can often be avoided if an executor communicates with the family openly and often. These tips can help them understand the motivations behind the way the estate is set up and how the probate and estate settlement process works.
Have a family meeting. Let family members and other beneficiaries know that there are some decisions that will require collaboration, like dividing items with sentimental value such as family photos and other keepsakes. Listen to their input and try to look at things from their perspective, but make it clear that there are also decisions you will have to make on your own as an executor.
Bring in an objective third party. If you know from the beginning that family dynamics could cause problems in probate, consider bringing in a third party such as an estate law attorney to mediate, provide information about the process and help resolve issues with patience and detachment before any formal legal objections are made.
Proper Estate Planning Can Help Prevent Conflict
Consult your family wills and trusts attorney about including a no contest clause in your will. If you are intentionally omitting one or more heirs make sure it is clearly documented. Adding an informal memo along with your will that explains why you have set up your estate in a particular way can also help make things crystal clear. Once your estate plan is in place, having a family meeting to discuss these issues will also give your heirs an understanding of your intentions well before you’re gone.
Whether you are looking to create a solid estate plan or need assistance with a will that is being contested, our experienced attorneys At Carosella & Associates can help you resolve any legal issues you may encounter.

Monday, May 20, 2019

How Long-Term Care Planning Can Protect the Legacy You Leave Behind

It is never too early to plan for the future, which is especially true when it comes to long-term care planning. Americans are living longer than ever, but medical issues and the need for long-term nursing care can happen at any time. Considering how you will pay for long-term care should be an important element of any estate plan to ensure you get the care you need while shielding your hard-earned assets as much as possible. Skilled estate planning attorneys can help you protect your legacy and determine the best way to pay for long-term care if you should ever need it. Long-term care planning not only protects your assets, it can also make a difficult time easier for your family.

Medicare Planning

Although most people are eligible for Medicare when they turn 65 years of age, many are not aware that Medicare only pays for 100 days of nursing care. However, Medicaid does pay for long-term care, but it is a need-based program that is only available to those below certain income limits. There is also a five-year “look back” period in which any gifts or transfer of funds prior to the application for Medicaid are subject to reversal or financial penalties.
Seniors who need long-term care must often “spend down” their savings and assets to become eligible for Medicaid. By planning well in advance, you can legally protect your assets and qualify for Medicaid should you require long-term care. Applying and qualifying for Medicaid can be a complex process. Wills and trusts lawyers can advise you on the most effective ways to protect your assets through trusts, gifting, family limited partnerships (FLP) and other asset protection options. These advance planning strategies can serve your overall estate planning goals and protect your family’s financial future.

Long-Term Care Insurance

Long-term care insurance covers you when you are in need of nursing care, but the older you are, the more difficult it is to qualify. Premiums also increase as you age, and pre-existing health conditions can prevent you from qualifying. If you purchase this type of insurance when you are young and healthy it can be a worthwhile investment, as the payout grows over time. However, before purchasing long-term care insurance, it is vital to shop around and seek the counsel of an experienced attorney who can help you understand what a good long-term care policy should include, and whether or not it fits into your overall estate plan. If you own a business, it is critical to consult an experienced business lawyer to ensure your business interests and investments are protected in your estate plan as well.
At Carosella & Associates, our experienced estate planning and wills and trusts attorneys can help you create an effective asset protection plan that allows you to plan for long-term care and protect the legacy you leave behind.

Monday, May 13, 2019

Litigation, Mediation and Arbitration : What’s the Difference?

Although many people think of legal disputes as issues that play out in front of a judge or jury, most cases are resolved outside of the courtroom, using alternative dispute resolutions such as mediation or arbitration. If you are facing a difficult legal problem, it is vital to fully understand your options and how each type of dispute resolution works. Whether you’re dealing with a contract dispute or need help with a divorce, an experienced attorney can explain the benefits and drawbacks of litigation, mediation and arbitration and advise you on the best course of action to get your legal matter successfully resolved.

Litigation

In litigation, an action is brought by before a court of law by the involved parties to find resolution from a judge or jury. The court process can be time consuming, stressful and costly, so most individuals and businesses prefer to avoid litigation and settle matters through alternative dispute resolution methods. However, it is important to keep in mind that ADR methods like arbitration and mediation are often used in conjunction with litigation. In fact, some states require that certain types of lawsuits go through mediation or arbitration before putting them on the trial calendar to avoid clogging the court system.

Arbitration vs. Mediation

Arbitration and mediation both use neutral third parties to manage the legal process. Binding arbitration is similar to the trial process, but is more informal and takes less time. An arbitrator’s role is similar to the role of a judge. Typically, each side gets to select an arbitrator. These two arbitrators choose a third arbitrator, and the dispute is presented to all three. They review and make determinations based on evidence and present written opinions, which may be binding or non-binding. Final decisions are reached by majority vote.
Mediation usually involves one mediator who helps facilitate discussion and negotiations to achieve resolution of a dispute. Mediation is quite popular and because it is a faster, more affordable option than litigation. Its success rate is high because the parties are brought together in a confidential, relaxed environment where they can openly present their positions in front of an impartial third party. It is a human thing to want to “get things off your chest” and mediation allows both parties to do this, which can help provide a more balanced perspective and lead to less hostility.
A mediator does not make a judgment or final decision. When the parties reach an agreement, they put the terms in writing and sign the document, creating a binding contract. Contract attorneys also recommend that before entering mediation to resolve a dispute, both parties sign a pre-mediation contract that addresses confidentiality, cost of the mediator, length of time and other issues. Divorce lawyers often use mediation to help clients avoid costly, contentious court battles, which can help them resolve issues quickly and put less stress on the family.
Interested in learning more about which option may be right for you?  Our law firm in West Chester can help.

Monday, May 6, 2019

How to Contest a Protection from Abuse Order

Sometimes known as a restraining order, a Protection from Abuse Order (PFA) is a civil court order that provides protection from harm by family or household members, intimate partners or a parent of a child you share. A PFA can have devastating consequences for the defendant, including loss of child custody, employment, education options, professional licensing and firearm rights, not to mention the damage it can do to your reputation in the community. Unfortunately these orders are sometimes filed by those seeking revenge or retribution, and are based on false allegations. If you are involved in a Protection from Abuse case, seeking the counsel of an experienced defense attorneyis essential to ensure your rights are protected.

Temporary PFAs

Physical abuse does not have to occur for a judge to order a temporary or emergency PFA. Attempting or threatening to cause bodily injury; sexual assault, rape, incest and other sexual offenses; false imprisonment and stalking all place the plaintiff in reasonable fear of bodily injury, and can be considered a basis for a temporary PFA. After a temporary PFA is granted by a judge, a formal hearing must be scheduled within 10 business days.
If you receive notice that a PFA has been filed against you, stay away from the plaintiff and refrain from contacting them via text, phone or in any other manner. Rules and processes vary from county to county, so it is important to contact a local criminal defense attorney who can help you understand your rights and the processes of the local court. Although a Protection from Abuse order is a civil matter, keep in mind that in many cases, a plaintiff may file criminal charges as well so having an attorney by your side is vital. To contest the PFA, you must appear at the scheduled formal hearing. Failing to show up for your formal hearing can lead to a permanent a PFA being entered by default, which is much more difficult to contest and cannot be expunged from the court record.

Contesting a PFA at Your Court Hearing

Formal court proceedings may involve witnesses, evidence, testimony, and cross-examination. A family law or divorce attorney will help you properly prepare for court by gathering evidence, speaking to witnesses and collecting any relevant information and proof such as text messages, emails and phone messages from the person seeking the PFA.  Although a PFA doesn’t prohibit an alleged victim from contacting you, if they do, these communications are crucial evidence that can help you fight the order. Do not respond to any communications from the person seeking the PFA. Turn over all communications to your attorney to help them prepare for your case.
At the final PFA hearing, both the plaintiff and defendant have an opportunity to testify. Your attorney and the plaintiff’s attorney may also cross-examine the opposing party and any witnesses. The judge will then make a determination based on the testimony and evidence presented. The judge may order a final PFA for up to a period of three years.

Can You Appeal a Final PFA?

A final PFA order can be appealed to the Pennsylvania Superior Court within 30 days. Copies of court transcripts and other evidence may be required. Appealing a PFA determination can be difficult and complex, especially if you have not retained the services of an experienced attorney before your initial hearing.
Have you been wrongly accused of domestic violence? Carosella & Associates can help.

Monday, April 22, 2019

Can Business Owners Receive Compensation For Eminent Domain?

Local, state and the federal government have the authority of eminent domain, which means that they can take private land for “public use” and in exchange for just compensation. Some private companies or individuals may also be granted the power to condemn private property for redevelopment, oil and gas pipelines and other utilities. If the government has contacted you about taking your property through eminent domain, seeking the counsel of skilled Pennsylvania real estate lawyers who are also well-versed in business law is vital to ensure your rights are protected and you receive the compensation to which you are entitled.

Just Compensation for Your Property and Expenses

So what exactly does “just compensation” mean if you’re a business or property owner who relies on income that involves your property? According to Pennsylvania Eminent Domain Code, ‘just’ is “the difference between the fair market value of the property owner’s entire property interest immediately before the condemnation and the fair market value of the property interest immediately after the condemnation.”
The legal issues surrounding compensation for eminent domain are complex. You may challenge the valuation of your property; however, it is not a good idea to attempt negotiations without experienced business lawyers by your side. An attorney will guide you through the procedures required to challenge the valuation and fight to ensure you receive fair and reasonable compensation not only for your property, but for relocation and business expenses as well.

Damages for Relocation and Actual Reasonable Expenses

Under Pennsylvania law, all acquiring agencies must pay damages for relocation “in a manner which is fair and reasonable, and as uniform as practicable.” Certain types of small businesses, farms and non-profit organizations are also entitled to recover actual reasonable expenses of reestablishing their enterprise at a new location.
Although this law may seem straightforward, disputes between the business owner and acquiring agency often arise. Relocation costs vary widely, depending on the type of business. For example, a law firm may only need to move furniture, files and office equipment and supplies, so most of their expenses may result from reestablishment. Businesses are also entitled to receive compensation for items such as business cards, stationery and marketing materials that require a new address.
However, a manufacturing company may have large machines made specifically for a particular type of operations. Moving large machinery is difficult, expensive and may not be possible in some situations. If a business has to purchase new equipment or cease operation, they deserve to receive just compensation for their losses.

Calculating Relocation Expenses

Calculating all of your relocation expenses can be extremely difficult. Many property and business owners underestimate all of the expenses that they will incur if they are forced to move. Regardless of how big your business is, consulting knowledgeable lawyers for real estate transactions involving eminent domain is a must. An attorney will understand how to properly calculate your losses and can help you identify all of the possible avenues for compensation. Your legal team may also employ appraisal experts who specialize in eminent domain cases. Their assessments can aid in negotiations or in court. Many construction contract lawyers are quite adept at handling these types of contentious cases as well.
Are you facing loss of your property or business due to eminent domain? Our experienced legal team at Carosella & Associates can help you recover full compensation for your property and business expenses.