Want To Challenge AWill In Court? Here’s How You Can Do It!

Challenging a Will isn’t easy because it is assumed that if someone went to the effort to make a Will, then the Will is valid. A probate lawyer will tell you that contesting a Willcan drain you mentally and emotionally, and the process can be costly.However, there are certain factors that may assistyou in achieving a successful challenge:

•    It is a do-it-yourself Will. When a person (called the Testator) writes a Will himself or herself, it is possible that certain legal formalities were overlooked. Another possible weakness is that the Will may not have addressed the “what ifs” that an estate planning law firm will make sure are included.      

•    The Testator has been isolated from family and friends by the primary beneficiary of the Will. In a case like this, your challenge might request invalidation based on undue influence.

•    The Testator’s mental capacity is in question. This requires evidence that the Testator did not have the mental capacity to make a Will at the time he or she signed it.

Contesting a Will requires that you meet certain guidelines. The first one is that you must have something called “standing.” To have standing, an individual or entity must be able to show that they would be personally or directly affected by the outcome. For instance, a person contesting a Will might be a close relative who was left out of the Will, or a beneficiary who had been named in a previous Will. An entity such as a bank must show they were a beneficiary or a fiduciary in a previous Will. If you don’t have standing, you cannot proceed with the challenge.

Also, you must file in a timely manner as defined by state law. Which state? The state in which the decedent resided at the time he or she passed away. The proscribed time period for contesting a Will ranges from a few weeks to a few years, so it’s important to hire an experienced estate attorney who knows the timeline that applies to your case.

You may wonder why time limits are set. This is to expedite the payment of final expenses and the transfer of assets to the beneficiaries of the Will. If no time limits were set, a challenge could be brought any time in the future. The Will could not be fully distributed in order to provide for a potential legal challenge. Make sure to move ahead in a timely manner so your case is not time-barred.

Let us assume that you have standing and are within the time limit set by state law. Now you must have sufficient grounds to contest the Will. There are four possible grounds:

1.    Lack of proper legal formalities;

2.    Mental incapacity of decedent at the time the Will was signed;

3.    Undue influence on the decedent;

4.    Procurement of the Will by fraud.

Proving any of these grounds requires more than suspicions, you must have evidence. That is why you should take any intentions to challenge a Will to be evaluated by an experienced probate law firm. Time is of the essence, so don’t delay this consultation.

This blog was originally posted on https://www.pa4law.com/want-to-challenge-awill-in-court-heres-how-you-can-do-it/

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What Is Medical Malpractice and How to Prove the Claim?

Medical malpractice is a very serious claim that goes well beyond being harmed by a medical professional. In medical malpractice, the harmed patient must demonstrate that the medical professional failed to perform his or her medical duties competently and correctly. Before accepting the case, a good malpractice attorney will establish these important facts:

1.    There was a doctor-patient relationship. What is a doctor-patient relationship? This is when a person (you) hires a medical professional to diagnose and treat an illness. For medical malpractice to exist, you must have this formal relationship. Your complaint may not be based on remarks a doctor made in a social setting or any casual conversation. Sometimes a true doctor-patient relationship is difficult to support when there is a consulting physician who did not directly treat you.

2.    The medical professional was negligent. The doctor may have made a mistake, but the law requires that he or she was negligent – which in the medical malpractice world means that his or her care fell below the standard of care for like medical professionals.  The medical profession has known standards of care, and doctors are obligated to meet these standards of care. You will be required to present a medical expert who can testify about the accepted standard of care and how the doctor did not follow it (or did not follow it completely).

3.    The negligence caused your injury. Sometimes it is difficult to prove this, as perhaps the original disease or accident that brought you to the doctor caused the harm you experienced. This is one of the strategies the doctor’s attorneys may adopt. Working on your behalf, a good injury lawyer will work to prove that it is more likely than not that the harm was caused directly by the doctor’s incompetent decision(s) or treatment. Once again, you will need to present a medical expert who will testify to this effect.

4.    Your injury led to certain damages. The case may indicate that the doctor performed below the standard of care, but you must also prove that the doctor’s performance caused you injuries which damaged you. These may include physical pain, mental anguish, medical bills in addition to those for the original illness or accident, and/or lost time at work or earning capacity.

Types of Medical Malpractice Cases

A variety of mistakes, misjudgements or failures to perform can lead to a medical malpractice lawsuit. They generally fall into the following categories:

Failure to diagnose asks “Is it likely that a competent doctor would have made the correct diagnosis, and would you have had a better outcome if the diagnosis was correctly made?”

Improper treatment goes to whether the correct treatment was chosen, and if the treatment was administered properly.

Failure to provide informed consent goes to whether the doctor ensured that you knew and understood the risks associated with the treatment.

Many states have very specific rules about when and how medical malpractice cases must be filed. If you have been injured and believe it is due to negligence on the part of a medical professional, schedule a consultation as soon as possible with Perna & Abracht LLC.

This blog was originally posted on https://www.pa4law.com/what-is-medical-malpractice-and-how-to-prove-the-claim/

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Think You Understand Inheritance Rights? Here’s What You Should Know.

Many people believe they understand inheritance rights, but very few (outside of the legal and estate planning professions) actually do. This is because laws regarding inheritance are complex and vary from state to state. Below are the five common myths about inheritance rights that our Wills lawyers debunk:    

Myth 1: I can leave my property to whomever I choose.

It’s true that, in your Will, you can leave your property to anyone you choose. However, inheritance rights may override your wishes as stated in your Will. This is particularly true when it comes to a spouse who survives you. Depending on the state in which you reside, a surviving spouse is legally entitled to one third to one half of your property even if you have not provided for him or her in your Will. The spouse would have to contest the Will, but it is likely that a state court will award the percentage of the estate allowed by that state’s inheritance laws.

Myth 2: My surviving spouse will automatically inherit all of my property.

As you can see in the answer to Myth 1, the words “automatically” and “all” are problematic. A surviving spouse does have inheritance rights, but if the spouse is not named in the Will, he or she will have to contest the will to receive an inheritance. This is an important reason to make sure you have a Will. Moreover, if you wanted your surviving spouseto inherit your entire estate, you would need to specifically mention this in your will.

Myth 3: My ex-spouse cannot inherit my property.

This is not true if you have an outdated Will that leaves an inheritance to your now-ex-spouse. Be sure to meet with your estate planning attorney whenever you experience a major life event like a divorce, to make sure your will is entirely up-to-date and reflects your current wishes, not those of 10 or 20 years ago.

Myth 4: My children and grandchildren have a right to inherit my property.

The fact is that your children and grandchildren do not have a legal right to inherit your property. To ensure that they will inherit, you must name them as beneficiaries in your Will. Again, make sure your Will is up-to-date; a child or grandchild may have been born after your Will was originally written. Let us assume your will names your older children as beneficiaries but does not mention the younger one(s) who were born or adopted after the Will was written. Most states will allow a child to contest a Will if it appears the child was left out by accident. A probate lawyer will tell you this means the child must go to the expense of time and money to contest the Will.

Myth 5: To disinherit a child, I just leave him or her out of my Will.

Disinheritance is specifically addressed by state laws. Let us say that you have named two children as beneficiaries and do not name a third child. If that child contests the Will, the state will not assume the child is disinherited. To disinherit a child, you must state in your Will that you are not leaving assets to this child. Another method is to leave just a small amount to the disinherited child so it is clear the child was not left out by accident.

Clearly, you need the help of an experienced estate attorney to navigate your state’s inheritance laws. Set up a consultation today to create or review your estate plan.

This blog was originally posted on https://www.pa4law.com/think-you-understand-inheritance-rights-heres-what-you-should-know/

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Couples Without Children: 5 Estate Planning Tips.

Couples who are child-free sometimes think they don’t need an estate plan, but nothing could be further from the truth. An estate plan created by the best estate attorney ensures that your assets go where you want them to go after you pass away. Following are five estate planning tips of particular importance to couples without kids:

1.    Yes, you need a Will. If you don’t have a Will, you are not alone, as 64% of American adults don’t have a Will. It is time to put yourself among the very smart 36% who do have a Will. A Will ensures that your property goes to the persons and/or entities you choose; not having a Will leaves it up to the state to decide who receives your property.

Start your estate plan with a Will that addresses the following:

•    What happens if your spouse survives you? You may want him or her to have a portion, and also to make bequests to a favorite niece, your house of worship, your alma mater – whatever! A Will is the only way to make sure it happens as you wish.

•    What happens if both you and your spouse die at the same time? In this scenario, there is more property to go around, so you may give more generously to a few, or give to more people or organizations.

•    What happens if your spouse survives you, but then dies shortly thereafter? You should ask this question particularly if you are leaving everything to your spouse. When the spouse passes away, his or her Will determines what happens to the assets you left behind.

2.Establish power of attorney.  Most likely you would rely on your spouse to make decisions for you should you become incapacitated. But what happens if your spouse dies suddenly or becomes incapacitated? Give another trusted person (or persons) your power of attorney to pay your bills, manage your money, and sell property. You may also choose a separate individual to have your health care power of attorney and make medical decisions for you.

3.Beneficiaries.You would designate who receives the assets in retirement accounts or a life insurance payout by naming beneficiaries. Once you have named beneficiaries, it is important to keep these current. We all know that life changes, and sometimes very quickly. Plan a periodic review of your estate plan with your estate planning attorney.

4. Start giving now. You may name individuals or charities as recipients of your generosity right nowand enjoy the thanks while you are alive. There are trusts you may establish that will allow you to live off of the assets of the trust, and then when you pass away, the remaining balance goes to the individuals and/or chariies you have chosen. There are other ways to structure giving through trusts, so it is very important to consult with an experienced estate attorney.

5. Plan for your pets. Did you know that 500,000 pets are euthanized each year because their owners did not provide a plan for them? Make sure your beloved pets are cared for in the way that you wish. You must designate someone to be the pets’ guardian, but make sure the person agrees to this role. It’s also best to leave funds for the care of your pets. If no one comes to mind, there are nonprofit organizations that will take-on this responsibility (again, you should designate funds for the care).

Don’t wait any longer to become part of the smart 36% who already have estate plans. You (and your spouse if applicable) should meet with an experienced estate attorney at Perna & Abracht LLC.

This blog was originally posted on https://www.pa4law.com/couples-without-children-5-estate-planning-tips/

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Considering Filing A Medical Malpractice Lawsuit? Here Are The Things You Should Know

Medical malpractice is difficult to prove because it is not based simply on whether or not your doctor (or another health care professional) made a mistake. You need the help of experienced medical malpractice law firm to establish some very important things – and establish them as facts – before a medical malpractice claim can be made.

Duty of Care

Duty of care is a key underlying principle on which any medical malpractice claim is based. Duty of care is what the doctor-patient relationship is all about. If you are under the care of a health care professional, he or she owes you the same duty of care that another professional would owe you if he or she had the same educational background and practiced in the same state. The question here is whether the doctor did what would have been expected of him or her when compared to colleagues in your area.

Breach of Duty

After you have established that the doctor owed you a duty of care, your malpractice attorney will investigate whether there was a breach of duty. In other words, was there something that should have been done that was not done or something that was done that should not have been done? We’ve all heard of cases in which a medical implement was left inside a patient after surgery. This is an example of a surgeon not taking the care that was expected in the performance of the surgery. This is more of a clear-cut breach of duty than, say, a misdiagnosis. Perhaps in your case, the doctor misdiagnosed your illness and then treated you for the wrong illness.  Although this is an unfortunate mistake, if the doctor performed the expected tests to reach the diagnosis, the case may not be considered a breach of duty. A good injury lawyer will understand the complexities of this determination.

Injury

If you have been able to establish a duty of care and a breach of duty, now you will determine whether an injury occurred because of the breach of duty. Let us suppose your doctor failed to order a certain test that he or she would have been expected to order, and because that test data was not available, the doctor did not treat your illness appropriately, and you became more seriously ill. Are you now impaired as a result of the serious illness? Impairment is often defined as an inability to carry-on the tasks of daily living and/or an inability to perform a job you had at the time you became ill.

Evidence

Before bringing a claim of medical malpractice, your attorney will collect evidence that supports your claim. This is critical because you are not a medical expert. You may think a mistake has been made and believe the doctor should have known better or should have acted differently, but your opinion doesn’t count. Most plaintiffs must produce medical experts who will testify to support your claim, as well as medical records that back-up your claim. Your attorney will know what kind of evidence is required, and this is another important reason to hire an experienced injury lawyer.

Correct Person or Entity

Another technicality is who you should be making the claim against. There may be an individual health care provider, or there may be a medical facility or system that is at fault (or both). This is another very important determination that your attorney will make.

Bringing a claim of medical malpractice is a complex action. If you believe you have been injured by a health care professional or entity, schedule a consultation now with an experienced medical malpractice attorney.

This blog was originally posted on https://www.pa4law.com/considering-filing-a-medical-malpractice-lawsuit-here-are-the-things-you-should-know/

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Planning To Hire An Estate Planning Attorney? Here’s What You Should Know

A very important step in creating your estate plan is hiring the estate planning attorney who will work with you. Estate planning is much more complex than simply drawing-up a Will, so you want to be sure you have the help of an attorney experienced in managing more complex estates. As you create the plan, you are likely to confront personal issues, so it’s equally important to have a positive personal rapport with your estate attorney.

Here are some questions to help you sort-out estate planning attorneys:

How much estate planning do you do?

You want to hear that the attorney does a lot of estate planning work because it means the attorney is up-to-date on laws and regulations in this complex area of law.

How long have you practiced this specialty?

An experienced estate planning lawyer will be able to provide strategic guidance for the benefit of you and your heirs. He or she also will have experience with difficult challenges presented by the courts or the IRS.

Who executes the plan?

Attorneys who specialize in Wills will tell you not all estate planning attorneys execute the plans they create. It’s best to have an attorney who will create and execute the plan so you can feel assured your wishes will be realized.

How often do you recommend periodic plan reviews?

There are a number of mistakes that can happen long after a plan is created just because life  “happened,” and the owner of the estate did not update the plan. There are cases where an ex-spouse has inherited because the current spouse wasn’t made a beneficiary or a child is unintentionally disinherited because he or she was born years after the plan was created. It’s important for your lawyer to call you in for periodic reviews as well as after you experience any major life event.

Flat fee or hourly billing?

Find out how your estate planning attorney will charge. Sometimes attorneys charge both ways, such as a flat rate for some services, and an hourly rate for other tasks. Inquiring about costs ahead of time can prevent unpleasant surprises.

What is your view on trusts?

Some attorneys recommend a revocable trust to nearly every client, and this type of trust does avoid the probate process according to most probate lawyers. However, this type of trust may not be right for you, as it does not avoid inheritance or income taxes.

How do you prepare clients for health issues that may arise years down the line?

Longer life expectancy means we all must prepare for disability and dementia. Make sure your attorney will help you to complete powers of attorney and health care directives.

Along with assessing whether your estate planning attorney has the right credentials and experience, it is important to gauge how well you connect with him or her as a person. You should ask yourself these questions about each attorney-candidate:

●    How comfortable do you feel talking with this attorney?

●    Does it seem like the attorney communicates clearly?

●    Do you feel a rapport that would allow you to discuss personal and emotional issues?

Hiring the right estate planning attorney for you is critical to the success of your plan. Reach-out as soon as possible to meet with qualified estate planning attorneys in your community.

This blog was originally posted on  https://www.pa4law.com/planning-to-hire-an-estate-planning-attorney-heres-what-you-should-know/

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Six Ways In Which A Lawyer Can Help You Avoid Estate Planning Mistakes

Every estate plan is unique in some ways, but they are similar in others. Unfortunately, the similarities sometimes are the mistakes that seem to get repeated over and over. A powerful reason to hire an estate planning attorney is to obtain the expertise that will help you avoid errors in estate planning.

1.    Comprehension

Pure and simple, it is often a matter of comprehension. Even very smart people may not understand their estate plan. Often, people feel embarrassed to ask questions that may reveal their lack of knowledge, or they feel the language in the documents is “over their head.” Attorneys who specialize in wills know how to walk you through your plan and make sure you understand:

●    how the plan works;

●    what steps you need to take to maintain the plan;

●    how it works for your heirs.

As your attorney walks you through the plan, take notes that you can refer to later. It may all seem clear now, but over time, the details may escape you.

2.    Beneficiaries

Top probate lawyers tell horror stories in which an ex-spouse inherits and the current spouse doesn’t, or a child or stepchild is excluded from a will because he or she became part of the family long after the documents were created. All of this can happen if your estate planning documents are not worded properly and reviewed periodically to reflect your current wishes and family configuration. Your estate planning attorney will schedule these meetings to ensure there are no unintended and unpleasant surprises for your heirs.

3.    Asset ownership

This is an area that also needs review over the years and as your life changes. You may own assets jointly with someone else, or the assets are in entities like limited partnerships or trusts.  Your estate planning attorney will review with you the assets named in your plan to determine if the structure still reflects your wishes and purposes. You may have long ago liquidated an asset, and its inclusion in your plan just adds unneeded complexity.

4.    Revocable or living trusts

This type of trust is often created for some specific purpose. The estate attorney prepares the agreement and all parties sign it. Then, titles to the assets must be transferred to the trust. This is not necessarily complex, but it must be completed for the trust to serve its purpose. You can count on an experienced estate attorney to follow up with you and make sure these details are taken care of.

5.    Coordination of trusts and retirement plans

Sometimes people name their living trusts as beneficiaries of their retirement plans. However, if it is not handled correctly, IRS rules that apply may result in increased taxes. Your attorney will make sure the correct language is used to qualify the trust as a see-through trust that retains tax deferral.

6.    Powers of attorney

Everyone should name at least two powers of attorney (one for finances, and one for medical decisions) because many of us will need this before the will and estate plan are called into play. Your estate attorney will make sure you have named powers of attorney and will review them with you periodically to make sure they reflect your current wishes.

There is no substitute for the guidance of an experienced estate planning attorney. Be sure to schedule your estate planning consultation with Perna&Abracht, LLC.

This blog was originally posted on https://www.pa4law.com/six-ways-in-which-a-lawyer-can-help-you-avoid-estate-planning-mistakes/

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