On Apr 11, 7:22 am, "Daibhidh" <no.repl...@no.where> wrote:
> Section 1.3 (a) reads:
>
> A person convicted of violating a provision of the regulations * * * shall be punished by a fine as
> provided by law, or by imprisonment not exceeding 6 months, or both, and
> shall be adjudged to pay all costs of the proceedings.
>
> Adjudged to pay all costs of the proceedings? I always thought criminal
> prosecutions were financed by the government. Most defendants - however
> convinced of their innocence - would not dare to contest an offense with a
> modest fine when the result could be an obligation to pay unspecified
> prosecutorial expenditures by the NPS.
"Costs" does not include attorney fees, as usually interpreted in USA courts. It only includes the case filing fee, and other fees paid directly to the court in connection with trial of the case. Since a fine is an authorized punishment, this simply means the court can legally take into account the amount of court costs in determining a proper fine.
Here in MD and I suspect in many other locales, even a conviction of a simple traffic or parking offense will obligate the losing defendant to pay court costs in addition to a fine. The costs are usually much lower than whatever the fine would be so, for instance, instead of just imposing e.g. a $150.00 fine for a speeding ticket (the default amount shown on the ticket, if you just mail it in) and if the judge wants to give you the same deal you would have got if you didn't contest the ticket, he will say, "Guilty; fined $120 plus $30 in court costs." The only difference is that the $120 goes into the state treasury's general fund, and the $30 goes to help support the operation of the court.
Typically, if you have anything approaching a decent explanation, even if you are found guilty the judge will reduce the combined fine/costs from the default amount, so you are almost always better off going to court than not. However, if your facts show particularly egregious behavior (drag racing, e.g., even if all you got ticketed for was speeding) the judge can impose a fine _higher_ than the default amount, up to whatever the maximum is for that offense (in MD, for even the simplest traffic offense the maximum possible fine is $1000). But then, it is the fine itself, not the court costs (in MD dist. ct., still only $30!) that are going to hit you hard.
So, no, IMO it's not unconstitutional. Even if it was, lots of luck trying that argument on a magistrate hearing a crowded misdemeanor docket where you are accused of e.g. littering in a national park. Try another approach if your goal is to save yourself money and aggravation rather than to make a point. Abject humility and remorse, and throwing yourself on the mercy of the court has a better chance of succeeding in getting your fine reduced (and even that is pretty slim). Good luck,
--
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Friday, August 10, 2012
Airshow hold-harmless agreement = enforceable?
On Apr 11, 7:22 am, David Harmon <sou...@netcom.com> wrote:
> Quoted below is the agreement that Volunteers are being requested to
> sign in order to be allowed to donate their time and services in support
> of this civic event.
<quote snipped>
Sounds like an airshow. People do crash and burn at airshows occasionally. They also stub their toes on tiedown rings buried in the grass, get dirt blown into their eyes by prop blast, trip over spilled french fries in the bleachers, walk into propellers, etc. There is danger around, and there is only so much the promoters can do to make it safer without taking all the fun out of the event. ("Oh, look, let's go watch the aerial navigation contest and see which of the pilots sitting at a desk can calculate the correct wind drift correction angles first, using only an antique E-6B circular sliderule! What fun!!")
> My questions are: What does it really mean?
It means you promise not to sue the city, or any of the other listed people and groups, if you get hurt. And that you recite and acknowledge that, by your act of stepping onto the airport, you are going into this with your eyes open, that you accept all the risks involved and will look out for your OWN safety, not count on anyone else to do it for you.
> What would I be obligating
> myself to by signing it?
You would obligate yourself not to sue the city etc. This does NOT mean you would be on the hook for someone ELSE's damages if anyone ELSE got hurt; "hold harmless" means you won't sue THEM, not that they have a free ride to sue YOU. Also, you, as a "volunteer", are intended to be protected against being sued, by reason of everyone ELSE's signing simiilar hold harmless agreements listing "volunteers" in _their_ agreement as one of the protected groups of people.
> What is the worst that could possibly happen
> to me as a result?
You could get hurt or die, and not have anybody to sue for it.
> What question did I forget to ask?
Ask your health/disability/life insurance broker whether you have enough coverage to take care of you and your family if something happens. Outfits that require participants to sign "hold harmless" agreements generally do so either because they DON'T have (or can't get, due to the danger involved) liability insurance to cover you; or, in order to keep their insurance rates DOWN by cutting down drastically on the number of claims that may be filed. Of those, almost none of them get filed _successfully_ because the hold harmless agreement gives legal grounds to deny any claims the signer may file anyway and to defend against such claims in court. Legally, such pre-injury releases generally ARE upheld by the courts, at least in the context of a dangerous, voluntary recreational activity such as any kind of motorsports, skiing, scuba, parachuting, rock climbing, bungee jumping etc. So only go into this if you feel capable of accepting responsibility for your own safety and not sitting back and counting on someone else to do it for you.
BTW I am a fellow EAA and Antique/Vintage Division member (assuming you may be one of those), and have represented parachute schools using such hold harmless forms. Good luck with your event,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Quoted below is the agreement that Volunteers are being requested to
> sign in order to be allowed to donate their time and services in support
> of this civic event.
<quote snipped>
Sounds like an airshow. People do crash and burn at airshows occasionally. They also stub their toes on tiedown rings buried in the grass, get dirt blown into their eyes by prop blast, trip over spilled french fries in the bleachers, walk into propellers, etc. There is danger around, and there is only so much the promoters can do to make it safer without taking all the fun out of the event. ("Oh, look, let's go watch the aerial navigation contest and see which of the pilots sitting at a desk can calculate the correct wind drift correction angles first, using only an antique E-6B circular sliderule! What fun!!")
> My questions are: What does it really mean?
It means you promise not to sue the city, or any of the other listed people and groups, if you get hurt. And that you recite and acknowledge that, by your act of stepping onto the airport, you are going into this with your eyes open, that you accept all the risks involved and will look out for your OWN safety, not count on anyone else to do it for you.
> What would I be obligating
> myself to by signing it?
You would obligate yourself not to sue the city etc. This does NOT mean you would be on the hook for someone ELSE's damages if anyone ELSE got hurt; "hold harmless" means you won't sue THEM, not that they have a free ride to sue YOU. Also, you, as a "volunteer", are intended to be protected against being sued, by reason of everyone ELSE's signing simiilar hold harmless agreements listing "volunteers" in _their_ agreement as one of the protected groups of people.
> What is the worst that could possibly happen
> to me as a result?
You could get hurt or die, and not have anybody to sue for it.
> What question did I forget to ask?
Ask your health/disability/life insurance broker whether you have enough coverage to take care of you and your family if something happens. Outfits that require participants to sign "hold harmless" agreements generally do so either because they DON'T have (or can't get, due to the danger involved) liability insurance to cover you; or, in order to keep their insurance rates DOWN by cutting down drastically on the number of claims that may be filed. Of those, almost none of them get filed _successfully_ because the hold harmless agreement gives legal grounds to deny any claims the signer may file anyway and to defend against such claims in court. Legally, such pre-injury releases generally ARE upheld by the courts, at least in the context of a dangerous, voluntary recreational activity such as any kind of motorsports, skiing, scuba, parachuting, rock climbing, bungee jumping etc. So only go into this if you feel capable of accepting responsibility for your own safety and not sitting back and counting on someone else to do it for you.
BTW I am a fellow EAA and Antique/Vintage Division member (assuming you may be one of those), and have represented parachute schools using such hold harmless forms. Good luck with your event,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Airline weather delays = compensation?
On Apr 8, 8:56 am, "JSmith" <ppost...@sympatico.ca> wrote:
> The point here is the bad weather did not affect the flight, the
> plane, the crew, the departure airport or the arrival airport. The
> flight left virtually on schedule. It was only US Airways inability to
> cope with a normal and expected problem that occurs frequently in
> airport operations that caused our problems.
OP asked whether there was any legal recourse against an airline which was understaffed for a ticket-line crunch during a weather crisis and therefore was unable to process his family's tickets in time to get them aboard their flight that was one of the few still leaving as scheduled. I understand and sympathize with your frustration at seeing your perfectly capable plane leave without you to a destination unaffected by the bad weather because the ticket agents couldn't take care of you in time to board you, but I respectfully disagree with your position that this is not a weather-related problem.
ISTM what you are asking USAirways to do is to "triage" the stranded passengers in their waiting lounge, taking care first of those whom they might still be able to get on a flight that is leaving soon, and leaving until later those whose flights have been cancelled due to weather who will have to stay several additional hours or overnight in any case. Why do you feel that this is necessarily fairer than the first-come, first-served method they apparently did employ?
My cynical side tells me the only reason you think it would be fairer is that you were on the losing end of the first-come method and would benefit personally if they had used a triage method. I'm guessing most of the people in the crowd would have disagreed and felt that first-come, first-served was a fairer way to handle it, especially if (as most of them were) they were sitting around trying to cope with cancelled flights anyway, and saw your party waltzing to the front of the line to be put on a flight that was still leaving. Wouldn't you feel that way too if the shoe was on the other foot?
Even if triage were a fairer method, how would they do it? How do they figure out, without making specific inquiries, whether a party is one that they still might be able to get on a soon-departing flight, or whether they will have to sit in the back of the room for a while anyway? Should they have set up a separate line only for those lucky passengers whose flights were _not_ cancelled? But wouldn't that then disadvantage those whose flights were cancelled, but who would still be able to be placed on an alternate flight if they acted quickly enough? Even if they were doing triage, couldn't they assume that those whose flights were still departing normally could take care of themselves and didn't need special service? Isn't that what the automated boarding-pass kiosks for e-ticket holders are for? And though ISTR your problem was also due to a malfunctioning e-ticket machine, which compounded your problem, the only sure way to avoid all kinds of boarding delays and hassles is to have an actual boarding pass in hand before you get to the airport, avoid checking any luggage, and go directly through security to your boarding gate, where as long as the plane is still there with the door open, you can get on it. About the only other way to avoid dealing with masses of hoi polloi all jockeying for favor vs. limited resources is to do what the rich do, and have your own private chartered flight waiting for you with a red carpet. Otherwise, the service providers have no principled reason to favor you over all the other people clamoring for attention and quick service.
Bottom line is, IMO you don't have much chance of successfully suing the airline for your missed flight. Even though you wound up on the short end of the stick, their response to the unexpected crunch of missed flights (first-come, first-served) was one reasonable way to do it. In the end, somebody always is going to be disadvantaged by whichever method they chose, and it seems they chose the method that would please the largest percentage of the waiting crowd.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> The point here is the bad weather did not affect the flight, the
> plane, the crew, the departure airport or the arrival airport. The
> flight left virtually on schedule. It was only US Airways inability to
> cope with a normal and expected problem that occurs frequently in
> airport operations that caused our problems.
OP asked whether there was any legal recourse against an airline which was understaffed for a ticket-line crunch during a weather crisis and therefore was unable to process his family's tickets in time to get them aboard their flight that was one of the few still leaving as scheduled. I understand and sympathize with your frustration at seeing your perfectly capable plane leave without you to a destination unaffected by the bad weather because the ticket agents couldn't take care of you in time to board you, but I respectfully disagree with your position that this is not a weather-related problem.
ISTM what you are asking USAirways to do is to "triage" the stranded passengers in their waiting lounge, taking care first of those whom they might still be able to get on a flight that is leaving soon, and leaving until later those whose flights have been cancelled due to weather who will have to stay several additional hours or overnight in any case. Why do you feel that this is necessarily fairer than the first-come, first-served method they apparently did employ?
My cynical side tells me the only reason you think it would be fairer is that you were on the losing end of the first-come method and would benefit personally if they had used a triage method. I'm guessing most of the people in the crowd would have disagreed and felt that first-come, first-served was a fairer way to handle it, especially if (as most of them were) they were sitting around trying to cope with cancelled flights anyway, and saw your party waltzing to the front of the line to be put on a flight that was still leaving. Wouldn't you feel that way too if the shoe was on the other foot?
Even if triage were a fairer method, how would they do it? How do they figure out, without making specific inquiries, whether a party is one that they still might be able to get on a soon-departing flight, or whether they will have to sit in the back of the room for a while anyway? Should they have set up a separate line only for those lucky passengers whose flights were _not_ cancelled? But wouldn't that then disadvantage those whose flights were cancelled, but who would still be able to be placed on an alternate flight if they acted quickly enough? Even if they were doing triage, couldn't they assume that those whose flights were still departing normally could take care of themselves and didn't need special service? Isn't that what the automated boarding-pass kiosks for e-ticket holders are for? And though ISTR your problem was also due to a malfunctioning e-ticket machine, which compounded your problem, the only sure way to avoid all kinds of boarding delays and hassles is to have an actual boarding pass in hand before you get to the airport, avoid checking any luggage, and go directly through security to your boarding gate, where as long as the plane is still there with the door open, you can get on it. About the only other way to avoid dealing with masses of hoi polloi all jockeying for favor vs. limited resources is to do what the rich do, and have your own private chartered flight waiting for you with a red carpet. Otherwise, the service providers have no principled reason to favor you over all the other people clamoring for attention and quick service.
Bottom line is, IMO you don't have much chance of successfully suing the airline for your missed flight. Even though you wound up on the short end of the stick, their response to the unexpected crunch of missed flights (first-come, first-served) was one reasonable way to do it. In the end, somebody always is going to be disadvantaged by whichever method they chose, and it seems they chose the method that would please the largest percentage of the waiting crowd.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
How can my Will account for a cash gift to one heir?
On Apr 6, 7:31 am, "Fred" <fredhan...@att.net> wrote:
> I made a cash gift to one of my sons a few years ago, and want to take
> this into account in the new will. I am going to include the following
> in my new will. "The remainder of my estate shall be distributed as
> follows. 'Jim' shall receive $20,000.00 plus one-half of the estate
> minus $20,000.00. 'Tom' shall receive one-half of the estate minus
> $20,000.00."
Alhough you don't say, I will assume from context that Tom is the son who got the inter vivos gift of $20k that you want to include in calculating each son's fair share of the probate estate. There may be as many math mavens as lawyers on a computer-based legal group, who are both likely to find your proposed language ambiguous and/or leading to absurd results as far as accomplishing your stated purpose.
Although your phrasing is ambiguous, 20000 + (e - 20000)/2 is what I _think_ you really meant Jim to get. So, even though Tom's stated share is pefectly unambiguous, Tom's share is wrongly stated by your language too, and would leave some of the estate remainder unaccounted for. IMO what you really intended Tom to get is the solution for t to the equation t = e - j so that, where j = 20000 + (e - 20000)/2, then t = e/2 - 10000, NOT -20000.
I _think_ that's what you want Tom to get, since that would always be $20k less than what Jim gets FROM THE ESTATE and, when the $20k inter vivos gift to Tom is taken into account, would mean that both sons get the same total amount from all sources. But your actual statement would give Tom half the estate minus 20k, which is FORTY thousand less than Jim, not twenty less.
Why not just recite, in your Will, the fact of the $20k inter vivos gift to Tom, and mandate that this amount be taken into account in making the final distribution _as_if_ it had been an early distribution from the estate? Or, as another poster suggested, make a $20k special bequest to Jim, then in the residuary bequest, divide the remainder evenly? Then you wouldn't have to recite the math, with the chance you could get your calculations wrong (as you did in your post) and then be stuck with the absurd result. There was a post just a few days ago by someone here on MLM quoting from a trust document that tried to accomplish a similar purpose. I suggest you look it up on your favorite search engine: IIRC it was the only recent thread on MLM that contained the phrase "per stirpes" which should make it very easy to find.
> Flame away you attorneys if you must, but this is not brain surgery.
No, it's not brain surgery, but that's why "lawyer language" often sounds funny to lay people. When a legal sentence strings together a long list of very similar almost-synonyms, it's to avoid confusion, not create it. Lawyers, despite our reputations, usually like to come right out and say what we want to accomplish and then let common sense figure out how to get there, rather than setting up a Rube Goldbergian mechanism that, if someone ever figures it out right, MAY yield the desired result if we can even tell what it is. In general, lawyers like to draft documents so there's no way someone can argue, far down the line when it's too late to change the wording, that e.g. "to have" or "to hold" both mean something different than "to have and to hold" and therefore a clause which only contains one of those words means something different than a clause which contains both.
The IRS code, and adhesion contracts drafted for companies that try to purposely obfuscate clauses that are favorable to the drafter in hopes they will pull the wool over the other party's eyes, are notable exceptions, but they are both roundabout in their language for a reason: the adhesion contract to gain an unfair advantage, and the IRS for social engineering, e.g. to promote sales of hybrid cars by giving incentives but still giving people free choice, without coming right out and mandating "the law requires you to buy a hybrid car.").
IMO it's better to be overly verbose and seemingly repetitive than to be short and cryptic at the expense of unambiguous clarity of meaning. It may not be neurosurgery, but it's not poetry either: deep metaphor and multiple meaning have no place in legal writing. Whatever you write in a Will is what you're almost certainly going to get, even if that's not what you want, so you need to be careful what you write.
With all that money at stake, wouldn't you rather just pay your lawyer a couple hundred bucks at most (he's already drafted your will, so he won't have a steep learning curve on your case) and be sure it gets done right (or else, you will have somebody with malpractice insurance you can sue for screwing it up)?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I made a cash gift to one of my sons a few years ago, and want to take
> this into account in the new will. I am going to include the following
> in my new will. "The remainder of my estate shall be distributed as
> follows. 'Jim' shall receive $20,000.00 plus one-half of the estate
> minus $20,000.00. 'Tom' shall receive one-half of the estate minus
> $20,000.00."
Alhough you don't say, I will assume from context that Tom is the son who got the inter vivos gift of $20k that you want to include in calculating each son's fair share of the probate estate. There may be as many math mavens as lawyers on a computer-based legal group, who are both likely to find your proposed language ambiguous and/or leading to absurd results as far as accomplishing your stated purpose.
Although your phrasing is ambiguous, 20000 + (e - 20000)/2 is what I _think_ you really meant Jim to get. So, even though Tom's stated share is pefectly unambiguous, Tom's share is wrongly stated by your language too, and would leave some of the estate remainder unaccounted for. IMO what you really intended Tom to get is the solution for t to the equation t = e - j so that, where j = 20000 + (e - 20000)/2, then t = e/2 - 10000, NOT -20000.
I _think_ that's what you want Tom to get, since that would always be $20k less than what Jim gets FROM THE ESTATE and, when the $20k inter vivos gift to Tom is taken into account, would mean that both sons get the same total amount from all sources. But your actual statement would give Tom half the estate minus 20k, which is FORTY thousand less than Jim, not twenty less.
Why not just recite, in your Will, the fact of the $20k inter vivos gift to Tom, and mandate that this amount be taken into account in making the final distribution _as_if_ it had been an early distribution from the estate? Or, as another poster suggested, make a $20k special bequest to Jim, then in the residuary bequest, divide the remainder evenly? Then you wouldn't have to recite the math, with the chance you could get your calculations wrong (as you did in your post) and then be stuck with the absurd result. There was a post just a few days ago by someone here on MLM quoting from a trust document that tried to accomplish a similar purpose. I suggest you look it up on your favorite search engine: IIRC it was the only recent thread on MLM that contained the phrase "per stirpes" which should make it very easy to find.
> Flame away you attorneys if you must, but this is not brain surgery.
No, it's not brain surgery, but that's why "lawyer language" often sounds funny to lay people. When a legal sentence strings together a long list of very similar almost-synonyms, it's to avoid confusion, not create it. Lawyers, despite our reputations, usually like to come right out and say what we want to accomplish and then let common sense figure out how to get there, rather than setting up a Rube Goldbergian mechanism that, if someone ever figures it out right, MAY yield the desired result if we can even tell what it is. In general, lawyers like to draft documents so there's no way someone can argue, far down the line when it's too late to change the wording, that e.g. "to have" or "to hold" both mean something different than "to have and to hold" and therefore a clause which only contains one of those words means something different than a clause which contains both.
The IRS code, and adhesion contracts drafted for companies that try to purposely obfuscate clauses that are favorable to the drafter in hopes they will pull the wool over the other party's eyes, are notable exceptions, but they are both roundabout in their language for a reason: the adhesion contract to gain an unfair advantage, and the IRS for social engineering, e.g. to promote sales of hybrid cars by giving incentives but still giving people free choice, without coming right out and mandating "the law requires you to buy a hybrid car.").
IMO it's better to be overly verbose and seemingly repetitive than to be short and cryptic at the expense of unambiguous clarity of meaning. It may not be neurosurgery, but it's not poetry either: deep metaphor and multiple meaning have no place in legal writing. Whatever you write in a Will is what you're almost certainly going to get, even if that's not what you want, so you need to be careful what you write.
With all that money at stake, wouldn't you rather just pay your lawyer a couple hundred bucks at most (he's already drafted your will, so he won't have a steep learning curve on your case) and be sure it gets done right (or else, you will have somebody with malpractice insurance you can sue for screwing it up)?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Proof of date-rape claim
On Apr 4, 7:38 am, "truckinusa" <kieran2...@yahoo.com> wrote:
> My wife was raped here a few months ago in Texas by a friend. What
> does it take to prove rape(sexual assault) if this goes to trial? The
> accused is claiming the sex was consensual. Can someone give me
> examples of what gets a conviction. I know she had the sane nurse
> exam immediately after the incident but didn't know how much this
> helps.
Mr. Truckinusa, you got some very good replies to your query about this alleged acquaintance rape of your wife when you first posted here at MLM on this topic back on January 25, 2007. Google those.
BTW, what's a "sane nurse exam?" One would hope the nurse is sane when she does the exam. Or was that a misspelling I can't figure out?
If you are referring to the standard hospital rape investigation procedure, it won't help much if all they found out was that the alleged perp's sperm was DNA-matched to swabbings from your wife, since the issue here IIRC isn't whether the sex in fact occurred, but whether it was consensual. Rape is defined as _non_-consensual (forced) sex. It will be up to the jury whether they believe the defendant, who IIRC is saying that your wife willingly had sex with him, or if they believe the (apparently) quite different story being told by your wife. Sometimes the hospital exam also finds evidence of physical force, such as bruises or cuts, torn clothing, etc. and that could help support the charge of rape and cast doubt on a consensual sex claim, but it's also common for a defendant in that situation to argue that all this means is, "she liked it rough". The absence of physical bruising doesn't prove that it _wasn't_ rape, but does mean that the prosecution will have to allege that the defendant used something other than raw physical force to compel your wife to have sex (which could include blackmail, or mere threats of physical harm to her or someone else, or surreptitiously rendering her unconscious or insensible with alcohol or drugs, among other ways to negate consent). Almost anything the prosecution can use to prove rape, the defense can counter with an argument that things are not as they seem and that the evidence actually shows something else entirely than what the prosecution says it does. It's impossible for any of us who don't have more than a bare-bones sketch of the possibly relevant facts to judge credibility of either party, or to predict the outcome. Obviously, the prosecutor feels he has a potentially winnable case or it wouldn't have come this far. More than that we cannot say.
Whatever is going to happen, at this stage (I assume the case is in trial, or almost ready to go to trial) it is in the hands of the prosecutors, the defense, and the judge and jury, and anything you could do right now other than support your wife, tell the truth as you know it and trust in the system to work as it should, is likely to be counterproductive. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> My wife was raped here a few months ago in Texas by a friend. What
> does it take to prove rape(sexual assault) if this goes to trial? The
> accused is claiming the sex was consensual. Can someone give me
> examples of what gets a conviction. I know she had the sane nurse
> exam immediately after the incident but didn't know how much this
> helps.
Mr. Truckinusa, you got some very good replies to your query about this alleged acquaintance rape of your wife when you first posted here at MLM on this topic back on January 25, 2007. Google those.
BTW, what's a "sane nurse exam?" One would hope the nurse is sane when she does the exam. Or was that a misspelling I can't figure out?
If you are referring to the standard hospital rape investigation procedure, it won't help much if all they found out was that the alleged perp's sperm was DNA-matched to swabbings from your wife, since the issue here IIRC isn't whether the sex in fact occurred, but whether it was consensual. Rape is defined as _non_-consensual (forced) sex. It will be up to the jury whether they believe the defendant, who IIRC is saying that your wife willingly had sex with him, or if they believe the (apparently) quite different story being told by your wife. Sometimes the hospital exam also finds evidence of physical force, such as bruises or cuts, torn clothing, etc. and that could help support the charge of rape and cast doubt on a consensual sex claim, but it's also common for a defendant in that situation to argue that all this means is, "she liked it rough". The absence of physical bruising doesn't prove that it _wasn't_ rape, but does mean that the prosecution will have to allege that the defendant used something other than raw physical force to compel your wife to have sex (which could include blackmail, or mere threats of physical harm to her or someone else, or surreptitiously rendering her unconscious or insensible with alcohol or drugs, among other ways to negate consent). Almost anything the prosecution can use to prove rape, the defense can counter with an argument that things are not as they seem and that the evidence actually shows something else entirely than what the prosecution says it does. It's impossible for any of us who don't have more than a bare-bones sketch of the possibly relevant facts to judge credibility of either party, or to predict the outcome. Obviously, the prosecutor feels he has a potentially winnable case or it wouldn't have come this far. More than that we cannot say.
Whatever is going to happen, at this stage (I assume the case is in trial, or almost ready to go to trial) it is in the hands of the prosecutors, the defense, and the judge and jury, and anything you could do right now other than support your wife, tell the truth as you know it and trust in the system to work as it should, is likely to be counterproductive. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Injury at an open-house sales event
On Apr 2, 7:28 am, two0...@yahoo.com wrote:
> I live in Illinois
iI DON'T KNOW ILLINOIS LAW. tHIS IS JUST FOR GENERAL DISCUSSION. IF IN DOUBT, CONSULT A LOCAL LAWYER.
> and my real estate agent just conducted an open
> house for me today.
If this was a seller's agent, as most of them are, you as principal would be vicariously responsible for anything he did wrong while he was acting as your representative. Principals are liable in tort for the negligence of their agents committed in the course and scope of the agent's employment. But you haven't told us yet whether the agent in fact did anything wrong. He's only negligent if he did something a reasonable person should not do, or failed to do something any reasonable person should have done, under all the circumstances. That's probably a jury question, so yes, it is possible someone could make a claim against the agent and/or against you, for an injury occurring during an open house.
> A prospective buyer was looking at the house,
> slipped on the stairs and fell down.
What caused her to fall? A successful premises liability claim depends on the victim being able to prove that negligence (of _someone_) caused her injury; you're not liable just because someone falls on your property. You haven't told us anything yet about the cause. If this visitor just tripped over her own feet, and that's what the jury finds, then nobody will be liable. If the jury finds that something the agent did, or something _you_ did or neglected to do (such as failing to fix stairs that were broken or worn or were excessively slippery or had loose carpeting) contributed to causing the fall, then they will assign _that_ as the legal cause and find liability. The jury may also find both sides (the victim, and the owner and/or agent) negligent to some degree and assign a comparative percentage of fault to each, which would be applied by the court to reduce whatever damages and injuries the jury found, by the percentage of the victim's own fault in causing them.
> She was taken to the hospital by
> ambulance and I am uncertain of the injuries.
Don't worry about that now. Just notify your homeowner's insurance company. You _do_ have insurance, right? That's what it's for. Let _them_ worry about it and take care of it.
> My agent does not know
> who is liable
Nobody does, until the jury comes back with a verdict. That's what trials are for. But I can tell you that you are ALL _potentially_ liable, so all of you better put your insurance companies on notice and let them handle it.
> but is checking with her broker. Can anyone advise me
> who is liable in this situation? Thanks.
You're putting the cart before the horse. Even the best educated guess about who is liable is just that, a guess, unless the persons doing the guessing (a jury) are empowered by law to have their word on the subject _be_ law. Whatever the jury says it is, is what it legally is, regardless of what anyone else might think. Because you don't know yet who might be found liable, the only sensible thing to do is to notify all applicable insurance companies that provide liability coverage for all possible defendants, and let them work it out. Then you can relax unless and until something else happens since there's nothing else you can do about it anyway (exdcept, maybe, fix those stairs _now_, if there is anything wrong with them).
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I live in Illinois
iI DON'T KNOW ILLINOIS LAW. tHIS IS JUST FOR GENERAL DISCUSSION. IF IN DOUBT, CONSULT A LOCAL LAWYER.
> and my real estate agent just conducted an open
> house for me today.
If this was a seller's agent, as most of them are, you as principal would be vicariously responsible for anything he did wrong while he was acting as your representative. Principals are liable in tort for the negligence of their agents committed in the course and scope of the agent's employment. But you haven't told us yet whether the agent in fact did anything wrong. He's only negligent if he did something a reasonable person should not do, or failed to do something any reasonable person should have done, under all the circumstances. That's probably a jury question, so yes, it is possible someone could make a claim against the agent and/or against you, for an injury occurring during an open house.
> A prospective buyer was looking at the house,
> slipped on the stairs and fell down.
What caused her to fall? A successful premises liability claim depends on the victim being able to prove that negligence (of _someone_) caused her injury; you're not liable just because someone falls on your property. You haven't told us anything yet about the cause. If this visitor just tripped over her own feet, and that's what the jury finds, then nobody will be liable. If the jury finds that something the agent did, or something _you_ did or neglected to do (such as failing to fix stairs that were broken or worn or were excessively slippery or had loose carpeting) contributed to causing the fall, then they will assign _that_ as the legal cause and find liability. The jury may also find both sides (the victim, and the owner and/or agent) negligent to some degree and assign a comparative percentage of fault to each, which would be applied by the court to reduce whatever damages and injuries the jury found, by the percentage of the victim's own fault in causing them.
> She was taken to the hospital by
> ambulance and I am uncertain of the injuries.
Don't worry about that now. Just notify your homeowner's insurance company. You _do_ have insurance, right? That's what it's for. Let _them_ worry about it and take care of it.
> My agent does not know
> who is liable
Nobody does, until the jury comes back with a verdict. That's what trials are for. But I can tell you that you are ALL _potentially_ liable, so all of you better put your insurance companies on notice and let them handle it.
> but is checking with her broker. Can anyone advise me
> who is liable in this situation? Thanks.
You're putting the cart before the horse. Even the best educated guess about who is liable is just that, a guess, unless the persons doing the guessing (a jury) are empowered by law to have their word on the subject _be_ law. Whatever the jury says it is, is what it legally is, regardless of what anyone else might think. Because you don't know yet who might be found liable, the only sensible thing to do is to notify all applicable insurance companies that provide liability coverage for all possible defendants, and let them work it out. Then you can relax unless and until something else happens since there's nothing else you can do about it anyway (exdcept, maybe, fix those stairs _now_, if there is anything wrong with them).
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Negotiate, or get an attorney, for my injury case?
On Mar 31, 7:52 am, b...@nyx.net (Barry Gold) wrote:
> Giuditta <jnotma...@giudiittaspeedworks.com> wrote:
>
> [OP's friend's baby ate some pesticide that was left by a pest control co.]
>
> >Should she seek an attorney or just take getting the medical bills paid
> That's a no-brainer. *Of course* she should see an attorney. Even if
> the attorney says to just take the offer, she won't be out any money
> (although going to see the atty will take some time.)
I agree it's a no-brainer. The time it will take to have a 1/2 hour consult with a PI atty with offices close to her home (I doubt there is anywhere in USA big enough to have pest control service that _doesn't_ have an experienced PI atty within a 15 minute drive) is minimal compared to the potential downside if she just takes the initial TINY offer and sells her baby short. As parent, she is responsible to make decisions in the best interests of the child, and how can she do that if she doesn't have all the facts, and know what the law requires? The atty can help her find those facts, inform her of the relevant legal framework, and give her the tools to make that decision.
> One caution: Swernowsky's first and second laws apply:
>
> 1. You won't get what you want unless you ask for it.
> 2. You won't get what you want if you don't know what you want.
Absolutely. Knowledge, of both the _complete_ facts (including expert opinon about what is likely to happen in the future) and the applicable law, is the key to being able to make a rational decision between reasonable choices. If the mom does anything else it is simply shooting in the dark and while she _may_ hit the mark of fair compensation, she is far more likely to be _way_ off.
> She should figure out, in advance, what she really wants out of this.
Now, I think Barry and I may have a divergence of opinion on this. How can she figure out what she really wants if she doesn't even know yet what the reasonably available options _are_? I agree she should have some preliminary thoughts in mind before consulting an atty, but IMO it would be not only a waste of time but even counterproductive to have her sit down and calculate in detail "what she wants" at this stage. However, it would be a good idea for her to at least bring along copies of all the pest-company documents, all the medical bills, and medical reports too if she has them, to show the atty when they first meet, and perhaps to have prepared a summary sheet listing the med bills (by date and provider) as well as her hours missed from work and adding them up... that will be a helpful first step for her meeting with the atty.
> Just the baby's medical bills? How about compensation for the time
> off work? Is there danger of the baby being permanently damaged? If
> so, what would it take to compensate for that? (Extra child care,
> special private schooling, a trust fund for the child?)
She should certainly consider the possibility of all the above, and more -- we're not just talking about a child needing extra care until adulthood, but a future adult who may have functional deficits and/or a reduced wage-earning capacity (due to limited aptitudes) over what that child _would_ have been able to accomplish if she had not been poisoned. As an example, a Baltimore City Circuit Court jury this week awarded a verdict over 2 million dollars to a middle school child who had been poisoned as a toddler by ingesting flakes of lead paint in her rental apt., even though the child was an active and successful student council member, etc. and had a 110 I.Q., because her brother and sister (who were a few years older when they lived in that apt., and did _not_ have lead poisoning) both had an I.Q. 20-30 points higher and had successful careers. I am _not_ suggesting that OP's friend's baby necessarily has a case worth that amount, but merely to suggest that things are not always as they appear at first glance to the untrained eye and that OP's friend needs to know a lot more (with the help of her atty) before she can even begin to make a fair decision about settlement.
But I can almost certainly tell you that the company's first offer (of the child's initial medical expenses) is their knee-jerk attempt to get off the hook quickly for a tiny fraction of the possible damage award the child might be able to win from a fair jury. That doesn't mean OP's friend and her child would necessarily have to go to trial to get it, but it does mean they would need to negotiate from a position of knowledge and strength through an experienced PI atty who the insurance adjuster would know he could not pull the wool over his eyes with a ridiculously low offer.
> She should start out with some idea, consult the baby's doctor on the
> likelyhood of permanent damage, then talk to an attorney.
I would recommend talking to the atty FIRST, then following his advice, before doing her own initial investigation. What if her family doctor doesn't believe in, or hasn't heard of, the latest scientific data about long-term effects of pesticide ingestion? Her atty can help find the true facts by retaining and consulting experts in the field who can better predict the long-term costs and deficits the child might face. And if there is a negative opinion in the file from the family doc, which the doc really didn't know anything about and wouldn't have said anything about except for mom trying to play investigator, that could wind up shooting herself in the foot and badly hurting baby's chances of a fair financial recovery.
> Contrary to what big-name PI lawyers think, the object isn't to get
> the most money you can.
I have to disagree with Barry there in 2 ways. As one of those PI lawyers, although not (yet) a household name like the ones that advertise on TV, my goal is to get _fair_ compensation for my client, for _all_ of her (and/or her child's) compensable injuries. Not only is it statistically true that the vast majority of claims that are handled by an atty settle before trial, generally for a compromise amount that is less than the maximum that could have been gained from a jury verdict, but also the system would not be able to function if it were any other way. The insurers as well as victim's lawyers would be spending far too much of their time trying cases that really didn't need to be tried instead of negotiating cases amicably, and the courts would be overwhelmed by the volume of additional demands on their time and personnel.
And every PI lawyer knows that a fair settlement is always a good result for the client and is preferable to the risk of going to trial: "a bird in the hand" and all that. Plus, just in case you might think the attys' own interests would conflict with that goal and mandate them recommending trial instead of settlement to maximize recovery, keep in mind that it is far more productive for the lead atty to spend a few hours total (plus many more hours invested by his associates and paralegal staff rooting out the facts, preparing pleadings, and arguing pre-trial motions) negotiating a fair settlement at perhaps 1/2 to 2/3 of the full estimated potential value of the case than to spend a week, or a month, trying the case and getting perhaps 50% or so more (with a risk of getting less, or even getting nothing if the jury says the defense wins on the liability question). Thus, we certainly don't insist on trying every case to reach for the maximum recovery every time, and in fact the "big name" PI lawyers (the TV advertisers, with their extremely high overhead as well as high volume generated by their advertising) are far LESS likely to recommend to a client that their case is worth enough more than the insurer's offer to risk taking it to trial. The really high-volume "plaintiff mills" try cases rarely or never; if the client won't agree to their recommendation to accept a lowball settlement offer, they may just "fire" the client (reject the case), leaving the client on her own to find a new atty. I get quite a lot of new cases that way, thanks to insurer's tendency to make ridiculously lowball offers and the "big-name" guys' tendency to suggest taking them. In all cases, though, I only hope to be able to provide the client with the factual and legal understanding it takes to make the settle-or-go-to-trial choice with her eyes open rather than blindly and foolishly accept a lowball offer.
> The object is to get what _you_ think will be
> fair compensation (after talking to the atty) with the minimum of
> hassle.
Now we're back in agreement. The final decision on accepting a settlement always belongs to the client, and the atty must follow the client's instructions, even if he thinks she is selling her claim short. But a wise client would also follow her atty's advice as long as she trusts him to be acting in her (and her child's) best interests. If she no longer does, it may be time to get a new atty.
> If you can get that compensation by negotiation without going
> to court, you are ahead of the game. [Believe me. Unless you really
> enjoy litigation, you aren't going to want to go through a full civil
> trial if you can help it.]
Very true. In fact the _worst_ kind of clients to have are the ones who seem to enjoy litigation for its own sake, or who "want to teach a lesson" or "uphold a principle" and say "it isn't about the money." While that may be great if you are a pro bono civil liberties litigant, it's just plain wrong in a personal injury case. The only thing the legal system can do to right a wrong for a negligently injured person is to enter a judgment ordering the defendant to pay the plaintiff victim money as compensation for the harm done. While it is difficult and for many, distasteful to parse things like pain and suffering and mental anguish into dollars and cents, that is the only thing the law can do, so if you don't feel that money is a fair thing to ask for, you shouldn't be bringing a civil personal injury claim in the first place.
Unfortunately, insurance company propaganda has made many people feel that somehow it is _not_ fair to ask for compensation for intangible wrongs, like pain and suffering, and that claimants should be limited to recovering their medical bills and lost wages. This isn't the thread to argue that issue, but obviously, I disagree. The law lists the elements of damages that are legally compensable for a personal injury, and it _is_ possible for ordinary people to rationally and fairly evaluate non-economic damages and reach a verdict awarding them.
As my final word, I would suggest the second-worst kind of clients are the ones who have a pie-in-the-sky inflated concept of what their case is worth, based on reading about multimillion dollar verdicts in the paper or on the net, and thinking, if that other person could get that much, why can't I?? No 2 cases are exactly alike, and no 2 juries are alike, that's why, but sometimes it's just impossible to get such a client to see reason and accept what may be a very good offer based on _her_ actual situation. I hope the OP's friend does _not_ take my mention of the recent $2m Baltimore case to mean that _her_ case is definitely worth that much: she should consult an atty and follow his advice.
<snipped Barry's good suggestions about how to find an atty>
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Giuditta <jnotma...@giudiittaspeedworks.com> wrote:
>
> [OP's friend's baby ate some pesticide that was left by a pest control co.]
>
> >Should she seek an attorney or just take getting the medical bills paid
> That's a no-brainer. *Of course* she should see an attorney. Even if
> the attorney says to just take the offer, she won't be out any money
> (although going to see the atty will take some time.)
I agree it's a no-brainer. The time it will take to have a 1/2 hour consult with a PI atty with offices close to her home (I doubt there is anywhere in USA big enough to have pest control service that _doesn't_ have an experienced PI atty within a 15 minute drive) is minimal compared to the potential downside if she just takes the initial TINY offer and sells her baby short. As parent, she is responsible to make decisions in the best interests of the child, and how can she do that if she doesn't have all the facts, and know what the law requires? The atty can help her find those facts, inform her of the relevant legal framework, and give her the tools to make that decision.
> One caution: Swernowsky's first and second laws apply:
>
> 1. You won't get what you want unless you ask for it.
> 2. You won't get what you want if you don't know what you want.
Absolutely. Knowledge, of both the _complete_ facts (including expert opinon about what is likely to happen in the future) and the applicable law, is the key to being able to make a rational decision between reasonable choices. If the mom does anything else it is simply shooting in the dark and while she _may_ hit the mark of fair compensation, she is far more likely to be _way_ off.
> She should figure out, in advance, what she really wants out of this.
Now, I think Barry and I may have a divergence of opinion on this. How can she figure out what she really wants if she doesn't even know yet what the reasonably available options _are_? I agree she should have some preliminary thoughts in mind before consulting an atty, but IMO it would be not only a waste of time but even counterproductive to have her sit down and calculate in detail "what she wants" at this stage. However, it would be a good idea for her to at least bring along copies of all the pest-company documents, all the medical bills, and medical reports too if she has them, to show the atty when they first meet, and perhaps to have prepared a summary sheet listing the med bills (by date and provider) as well as her hours missed from work and adding them up... that will be a helpful first step for her meeting with the atty.
> Just the baby's medical bills? How about compensation for the time
> off work? Is there danger of the baby being permanently damaged? If
> so, what would it take to compensate for that? (Extra child care,
> special private schooling, a trust fund for the child?)
She should certainly consider the possibility of all the above, and more -- we're not just talking about a child needing extra care until adulthood, but a future adult who may have functional deficits and/or a reduced wage-earning capacity (due to limited aptitudes) over what that child _would_ have been able to accomplish if she had not been poisoned. As an example, a Baltimore City Circuit Court jury this week awarded a verdict over 2 million dollars to a middle school child who had been poisoned as a toddler by ingesting flakes of lead paint in her rental apt., even though the child was an active and successful student council member, etc. and had a 110 I.Q., because her brother and sister (who were a few years older when they lived in that apt., and did _not_ have lead poisoning) both had an I.Q. 20-30 points higher and had successful careers. I am _not_ suggesting that OP's friend's baby necessarily has a case worth that amount, but merely to suggest that things are not always as they appear at first glance to the untrained eye and that OP's friend needs to know a lot more (with the help of her atty) before she can even begin to make a fair decision about settlement.
But I can almost certainly tell you that the company's first offer (of the child's initial medical expenses) is their knee-jerk attempt to get off the hook quickly for a tiny fraction of the possible damage award the child might be able to win from a fair jury. That doesn't mean OP's friend and her child would necessarily have to go to trial to get it, but it does mean they would need to negotiate from a position of knowledge and strength through an experienced PI atty who the insurance adjuster would know he could not pull the wool over his eyes with a ridiculously low offer.
> She should start out with some idea, consult the baby's doctor on the
> likelyhood of permanent damage, then talk to an attorney.
I would recommend talking to the atty FIRST, then following his advice, before doing her own initial investigation. What if her family doctor doesn't believe in, or hasn't heard of, the latest scientific data about long-term effects of pesticide ingestion? Her atty can help find the true facts by retaining and consulting experts in the field who can better predict the long-term costs and deficits the child might face. And if there is a negative opinion in the file from the family doc, which the doc really didn't know anything about and wouldn't have said anything about except for mom trying to play investigator, that could wind up shooting herself in the foot and badly hurting baby's chances of a fair financial recovery.
> Contrary to what big-name PI lawyers think, the object isn't to get
> the most money you can.
I have to disagree with Barry there in 2 ways. As one of those PI lawyers, although not (yet) a household name like the ones that advertise on TV, my goal is to get _fair_ compensation for my client, for _all_ of her (and/or her child's) compensable injuries. Not only is it statistically true that the vast majority of claims that are handled by an atty settle before trial, generally for a compromise amount that is less than the maximum that could have been gained from a jury verdict, but also the system would not be able to function if it were any other way. The insurers as well as victim's lawyers would be spending far too much of their time trying cases that really didn't need to be tried instead of negotiating cases amicably, and the courts would be overwhelmed by the volume of additional demands on their time and personnel.
And every PI lawyer knows that a fair settlement is always a good result for the client and is preferable to the risk of going to trial: "a bird in the hand" and all that. Plus, just in case you might think the attys' own interests would conflict with that goal and mandate them recommending trial instead of settlement to maximize recovery, keep in mind that it is far more productive for the lead atty to spend a few hours total (plus many more hours invested by his associates and paralegal staff rooting out the facts, preparing pleadings, and arguing pre-trial motions) negotiating a fair settlement at perhaps 1/2 to 2/3 of the full estimated potential value of the case than to spend a week, or a month, trying the case and getting perhaps 50% or so more (with a risk of getting less, or even getting nothing if the jury says the defense wins on the liability question). Thus, we certainly don't insist on trying every case to reach for the maximum recovery every time, and in fact the "big name" PI lawyers (the TV advertisers, with their extremely high overhead as well as high volume generated by their advertising) are far LESS likely to recommend to a client that their case is worth enough more than the insurer's offer to risk taking it to trial. The really high-volume "plaintiff mills" try cases rarely or never; if the client won't agree to their recommendation to accept a lowball settlement offer, they may just "fire" the client (reject the case), leaving the client on her own to find a new atty. I get quite a lot of new cases that way, thanks to insurer's tendency to make ridiculously lowball offers and the "big-name" guys' tendency to suggest taking them. In all cases, though, I only hope to be able to provide the client with the factual and legal understanding it takes to make the settle-or-go-to-trial choice with her eyes open rather than blindly and foolishly accept a lowball offer.
> The object is to get what _you_ think will be
> fair compensation (after talking to the atty) with the minimum of
> hassle.
Now we're back in agreement. The final decision on accepting a settlement always belongs to the client, and the atty must follow the client's instructions, even if he thinks she is selling her claim short. But a wise client would also follow her atty's advice as long as she trusts him to be acting in her (and her child's) best interests. If she no longer does, it may be time to get a new atty.
> If you can get that compensation by negotiation without going
> to court, you are ahead of the game. [Believe me. Unless you really
> enjoy litigation, you aren't going to want to go through a full civil
> trial if you can help it.]
Very true. In fact the _worst_ kind of clients to have are the ones who seem to enjoy litigation for its own sake, or who "want to teach a lesson" or "uphold a principle" and say "it isn't about the money." While that may be great if you are a pro bono civil liberties litigant, it's just plain wrong in a personal injury case. The only thing the legal system can do to right a wrong for a negligently injured person is to enter a judgment ordering the defendant to pay the plaintiff victim money as compensation for the harm done. While it is difficult and for many, distasteful to parse things like pain and suffering and mental anguish into dollars and cents, that is the only thing the law can do, so if you don't feel that money is a fair thing to ask for, you shouldn't be bringing a civil personal injury claim in the first place.
Unfortunately, insurance company propaganda has made many people feel that somehow it is _not_ fair to ask for compensation for intangible wrongs, like pain and suffering, and that claimants should be limited to recovering their medical bills and lost wages. This isn't the thread to argue that issue, but obviously, I disagree. The law lists the elements of damages that are legally compensable for a personal injury, and it _is_ possible for ordinary people to rationally and fairly evaluate non-economic damages and reach a verdict awarding them.
As my final word, I would suggest the second-worst kind of clients are the ones who have a pie-in-the-sky inflated concept of what their case is worth, based on reading about multimillion dollar verdicts in the paper or on the net, and thinking, if that other person could get that much, why can't I?? No 2 cases are exactly alike, and no 2 juries are alike, that's why, but sometimes it's just impossible to get such a client to see reason and accept what may be a very good offer based on _her_ actual situation. I hope the OP's friend does _not_ take my mention of the recent $2m Baltimore case to mean that _her_ case is definitely worth that much: she should consult an atty and follow his advice.
<snipped Barry's good suggestions about how to find an atty>
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Thursday, August 9, 2012
Selling deceased husband's house without a Will
On Mar 30, 6:38 am, "bratty" <skd0...@aol.com> wrote:
> My husband passed away, we never got around to getting a will.
Sorry to hear about your loss. How many years ago was this?
> obtained an attorney he started probate procedures, in the mist of
> almost having it completed he retired,
Did you know this? Did you get another attorney to finish the process? If not, do so now.
<irrelevant stuff snipped>
>I decided to sell the house. We found a buyer, it's
> suppose to close next week, the attorney that was obtained to the
> reading of the abstract said the probate was never completed.
You don't say what state you were in originally, but AFAIK all states permit the PR of an estate to buy and sell assets on behalf of the estate, to convert them into cash if you wish, before probate is closed. The attorney you retain to help you finish probate can advise you on this. If you begin by contacting an estates-and-trusts attorney near where you live now, he can if necessary associate himself with an attorney in your previous state, or can just refer the matter to that out-of-state attorney for you. In the meantime, you may want to see about getting your OWN will done, so your daughter doesn't wind up in this awful situation when YOU pass away, as all of us do sometime.
> have a buyer, and i'm faced with completeing the probate in a timely
> mannor, can this be done?
Ask your settlement lawyer, and/or your not-yet-retained probate lawyer. I don't see why you would need to FINISH probate process before you can sell the house; in fact I would presume that in many cases a PR can't finish probate UNTIL AFTER selling the house, because otherwise there wouldn't be a cash asset that can be used to pay creditors. So whatever state you were in, and even if your estate has no creditors, I bet there is a way to do this.
> I am the personal representative of the
> estate. we put the adds in the paper.. we had no creditors, and no
> heirs responded. under the estate guidlines, I don't owe any estate
> taxes.. can I sell the home as : "estate of - - - " or can I ask a
> judge to place an order into effect allowing me to sell the home?
Ask one or both of your lawyers. As PR, you can probably do the former and don't have to do the latter.
> I'M STUCK!
No you're not. Just start asking the right questions of the right people. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> My husband passed away, we never got around to getting a will.
Sorry to hear about your loss. How many years ago was this?
> obtained an attorney he started probate procedures, in the mist of
> almost having it completed he retired,
Did you know this? Did you get another attorney to finish the process? If not, do so now.
<irrelevant stuff snipped>
>I decided to sell the house. We found a buyer, it's
> suppose to close next week, the attorney that was obtained to the
> reading of the abstract said the probate was never completed.
You don't say what state you were in originally, but AFAIK all states permit the PR of an estate to buy and sell assets on behalf of the estate, to convert them into cash if you wish, before probate is closed. The attorney you retain to help you finish probate can advise you on this. If you begin by contacting an estates-and-trusts attorney near where you live now, he can if necessary associate himself with an attorney in your previous state, or can just refer the matter to that out-of-state attorney for you. In the meantime, you may want to see about getting your OWN will done, so your daughter doesn't wind up in this awful situation when YOU pass away, as all of us do sometime.
> have a buyer, and i'm faced with completeing the probate in a timely
> mannor, can this be done?
Ask your settlement lawyer, and/or your not-yet-retained probate lawyer. I don't see why you would need to FINISH probate process before you can sell the house; in fact I would presume that in many cases a PR can't finish probate UNTIL AFTER selling the house, because otherwise there wouldn't be a cash asset that can be used to pay creditors. So whatever state you were in, and even if your estate has no creditors, I bet there is a way to do this.
> I am the personal representative of the
> estate. we put the adds in the paper.. we had no creditors, and no
> heirs responded. under the estate guidlines, I don't owe any estate
> taxes.. can I sell the home as : "estate of - - - " or can I ask a
> judge to place an order into effect allowing me to sell the home?
Ask one or both of your lawyers. As PR, you can probably do the former and don't have to do the latter.
> I'M STUCK!
No you're not. Just start asking the right questions of the right people. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
First Amendment and religious exemptions
On Mar 30, 6:38 am, Wayne Mitchell <gwmitchell...@pobox.com> wrote:
> Stuart A. Bronstein <spamt...@lexregia.com> wrote:
> >>The First Amendment says, "Congress
> >>shall make no law respecting an establishment of religion, or
> >>prohibiting the free exercise thereof;..." If you can't prohibit the
> >>free exercise of religion, you have to respect religion. Where do
> >>you draw the line?
> s...@panix.com (Seth Breidbart) wrote:
> >You don't have to respect *any establishment of* religion. It's
> >generally taken to mean "any particular establishment of religion"
I disagree with Seth; SCOTUS has consistently held that the Establishment Clause means government can't favor religiousity over irreligiousness, not just that they can't favor one religion over another. Where Stu wrote "you have to respect religion" I think he was trying to paraphrase the Free Exercise clause, not the Establishment Clause. To that extent I agree with Stu, but interpret that (and the Free Exercise Clause) to mean "governent has to respect everyone's individual choices about religious belief, and can't make it illegal to hold any particular belief or to be an unbeliever in any religion." The government can, however, regulate or forbid certain _conduct_ that a defendant might claim was motivated by religious belief, so long as the regulation is based on a permissible secular purpose and not on an intent to restrict religion. For instance, human sacrifice is illegal, not because the government is allowed to disparage or discourage belief in religions that promote or require the practice, but because murder is illegal, -period, whether perpetrated for religious or other reasons.
> >that (e.g.) churches being tax-exempt isn't a violation, providing
> >that no religion gets special treatment.
>
> But as Stuart suggests, the mere act of drawing a line -- any line -- is
> a breach of the Establishment Clause.
I disagree. Seth is right that the courts are not allowed to draw any line that requires them to look into or rule upon doctrinal or liturgical issues at all, but they can and must rule upon the bona fides of a claim of exemption from some otherwise-general requirement or entitlement to some benefit even if that claim is based on religion, the same as they must in any other legal case when determining whether any other claim or defense is brought in good faith by the person asserting it. They cannot say "that belief doesn't make any sense", but they can look at whether the purported believer's conduct is consistent with his claimed belief. For instance, back when we had a military draft, the courts could and did ask persons claiming to be Conscientious Objectors whether they would kill someone else if their own family was being attacked, etc. Note that they did not inquire into whether the claimant's religion required them to forswear violence, they only asked whether the purported believer actually went along with that 100% Only those persons whose actions were consistent with their purported beliefs were granted CO status.
> All agencies of federal, state
> and local government are expressly forbidden to treat any religious
> entity as more established or deserving of official recognition than any
> other religious entity.
I agree with Wayne on this.
> If tax-exemption is available to religious
> entities, then the mere claim of religious status must be sufficient to
> establish the right to tax-exemption.
No, that's where the IRS and the courts are permitted to inquire into the good faith of the claim. IMO it's important to note in this context that the tax exemption laws, which Seth uses as an example, apply to ANY legitimate non-profit charitable institution, not just to churches. Churches' claims are tested for legitimacy of their charitable purpose on the same, non-discriminatory secular basis as are claims for tax-exemption by other, non-religious charities. That is what obviates any potential conflict between the Establishment Clause and the Free Exercise Clause.
> Any further requirement thrusts
> some official into the forbidden territory of discriminating among
> religious claims.
Which they can do, only to the extent of determining whether a claim is made in good faith, or not, according to generally applied secular standards of the law applicable to all, whether religious or non-religious.
> I would go even further and assert that no claim of religious status is
> actually necessary to assert the right to tax-exemption.
That's where I think our beliefs diverge, Wayne, and your statement wanders dangerously close to the kind of arguments that courts have consistently rejected as being in far tax-loony territory.
> If my neighbor
> (or my neighboring church) is allowed to withhold payment of tax on his
> property because he is religious, then I may withhold payment of tax on
> my property, even though I claim no religious status.
Yes, you can, if you, like your neighboring church, are running a legitimate eleemosynary organization (for qualified charitible, educational, scientific, etc. purposes) that owns your property. Societies looking for cures for dread diseases, and private universities (whether sectarian or non-religious) don't pay taxes either.
> The state is
> still forbidden to discriminate against me on religious grounds.
Why do you think it would be religious discrimination to require you to prove that your claim of tax exemption is based on your having a legitimate, qualified tax-exempt purpose? Whether that claim is religious or non-religious has nothing to do with it.
> That I
> make no claim to religious status matters not at all, because religious
> status is something the state is not allowed to consider.
OK, I'm with you there, but they _are_ allowed to consider whether you are a legitimate charity, regardless of whether or not it has a religious basis.
> My reading of the Establishment Clause and consideration of its
> necessary corollaries persuades me to the view that the full and proper
> statement of its effect is, "As far as the state is concerned, anyone
> (individual or institution) may do for religious reasons all that, and
> only that, which his neighbor may do for non-religious reasons."
Assuming we agree with you there, why does that lead you to the conclusion that an ordinary, in-business-to-make-a-profit-for-himself individual or company should be entitled to a tax exemption as a charitable institution?
> The exemption of church properties from taxation is one of those things
> which survives despite being clearly illegal.
It's not illegal if they allow other, non-religiously-based charitable institutions to claim the same type of exemption upon proof that they are a bona fide charity.
> Differential treatment of
> prison inmates or public school students on religious grounds is
> similarly illegal.
I'll agree with you there, but what examples are you thinking of as revealing discriminatory treatment in such contexts? And what would you have the government do instead?
> Even Amerind claims for special consideration must
> be disallowed if the claim is based solely upon religion.
Um, what are you thinking about specifically? Peyote use? I'm not aware of the specific language and reasoning of court cases that may have dealt with the practice, and you are right that it is problematic for government to allow members of a certain group to perform acts that are forbidden to everybody else if the claim of exemption from a general prohibition is based solely on religion. If that's the case, why not permit polygamy, or human sacrifice, if a person's religion requires it?
My guess is, the courts that have addressed the issue have looked at the laws prohibiting peyote use as "malum prohibitum", something that is wrong just because the law says it is so as part of some regulatory scheme, rather than "malum in se", something any reasonable person would regard as wrong in itself whether or not the law says anything specific prohibiting it. For instance, there is nothing inherenty wrong with driving on the left side of a 2-way roadway, but as part of the overall scheme of traffic regulation, a legislative decision was made to prohibit it and require driving on the right. At the same time, murder, rape, etc. are common-law malum in se crimes whether or not the legislature has codified any written law in that area.
Hard as it may be to imagine in this 21st century where government demonizes such conduct, drug crimes (their actual possession and consumption, not the murder and stuff that is an inevitable consequence of their prohibition) are not malum in se, but were originally enacted as progressive public health regulatory measures around the turn of the previous century, before which the laws did not regulate who could obtain what pharmaceuticals from their friendly local chemist or soda fountain (Coke used to really have coke in it). The courts might therefore be more willing to carve an exemption from the law for continuation of a traditional aboriginal practice that is not malum in se, just as they have carved exemptions for Native Amerindians permitting continuation of other traditional practices that are forbidden to non-aboriginals, such as whale hunting. In that case it is the government's obligation (as guardians of the rights of native peoples) to permit continuation of traditional practices by the peoples who were on this continent first, regardless of whether those practices are religious or non-religious in origin, that led to the decision. The same distinction between malum prohibitum and malum in se would allow the courts to be logically and legally consistent in carving such exemptions from what are merely regulatory crimes, while continuing to forbid polygamy and human sacrifice as malum in se. So if you were thinking of re-starting an Aztec cult, it ain't gonna work.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Stuart A. Bronstein <spamt...@lexregia.com> wrote:
> >>The First Amendment says, "Congress
> >>shall make no law respecting an establishment of religion, or
> >>prohibiting the free exercise thereof;..." If you can't prohibit the
> >>free exercise of religion, you have to respect religion. Where do
> >>you draw the line?
> s...@panix.com (Seth Breidbart) wrote:
> >You don't have to respect *any establishment of* religion. It's
> >generally taken to mean "any particular establishment of religion"
I disagree with Seth; SCOTUS has consistently held that the Establishment Clause means government can't favor religiousity over irreligiousness, not just that they can't favor one religion over another. Where Stu wrote "you have to respect religion" I think he was trying to paraphrase the Free Exercise clause, not the Establishment Clause. To that extent I agree with Stu, but interpret that (and the Free Exercise Clause) to mean "governent has to respect everyone's individual choices about religious belief, and can't make it illegal to hold any particular belief or to be an unbeliever in any religion." The government can, however, regulate or forbid certain _conduct_ that a defendant might claim was motivated by religious belief, so long as the regulation is based on a permissible secular purpose and not on an intent to restrict religion. For instance, human sacrifice is illegal, not because the government is allowed to disparage or discourage belief in religions that promote or require the practice, but because murder is illegal, -period, whether perpetrated for religious or other reasons.
> >that (e.g.) churches being tax-exempt isn't a violation, providing
> >that no religion gets special treatment.
>
> But as Stuart suggests, the mere act of drawing a line -- any line -- is
> a breach of the Establishment Clause.
I disagree. Seth is right that the courts are not allowed to draw any line that requires them to look into or rule upon doctrinal or liturgical issues at all, but they can and must rule upon the bona fides of a claim of exemption from some otherwise-general requirement or entitlement to some benefit even if that claim is based on religion, the same as they must in any other legal case when determining whether any other claim or defense is brought in good faith by the person asserting it. They cannot say "that belief doesn't make any sense", but they can look at whether the purported believer's conduct is consistent with his claimed belief. For instance, back when we had a military draft, the courts could and did ask persons claiming to be Conscientious Objectors whether they would kill someone else if their own family was being attacked, etc. Note that they did not inquire into whether the claimant's religion required them to forswear violence, they only asked whether the purported believer actually went along with that 100% Only those persons whose actions were consistent with their purported beliefs were granted CO status.
> All agencies of federal, state
> and local government are expressly forbidden to treat any religious
> entity as more established or deserving of official recognition than any
> other religious entity.
I agree with Wayne on this.
> If tax-exemption is available to religious
> entities, then the mere claim of religious status must be sufficient to
> establish the right to tax-exemption.
No, that's where the IRS and the courts are permitted to inquire into the good faith of the claim. IMO it's important to note in this context that the tax exemption laws, which Seth uses as an example, apply to ANY legitimate non-profit charitable institution, not just to churches. Churches' claims are tested for legitimacy of their charitable purpose on the same, non-discriminatory secular basis as are claims for tax-exemption by other, non-religious charities. That is what obviates any potential conflict between the Establishment Clause and the Free Exercise Clause.
> Any further requirement thrusts
> some official into the forbidden territory of discriminating among
> religious claims.
Which they can do, only to the extent of determining whether a claim is made in good faith, or not, according to generally applied secular standards of the law applicable to all, whether religious or non-religious.
> I would go even further and assert that no claim of religious status is
> actually necessary to assert the right to tax-exemption.
That's where I think our beliefs diverge, Wayne, and your statement wanders dangerously close to the kind of arguments that courts have consistently rejected as being in far tax-loony territory.
> If my neighbor
> (or my neighboring church) is allowed to withhold payment of tax on his
> property because he is religious, then I may withhold payment of tax on
> my property, even though I claim no religious status.
Yes, you can, if you, like your neighboring church, are running a legitimate eleemosynary organization (for qualified charitible, educational, scientific, etc. purposes) that owns your property. Societies looking for cures for dread diseases, and private universities (whether sectarian or non-religious) don't pay taxes either.
> The state is
> still forbidden to discriminate against me on religious grounds.
Why do you think it would be religious discrimination to require you to prove that your claim of tax exemption is based on your having a legitimate, qualified tax-exempt purpose? Whether that claim is religious or non-religious has nothing to do with it.
> That I
> make no claim to religious status matters not at all, because religious
> status is something the state is not allowed to consider.
OK, I'm with you there, but they _are_ allowed to consider whether you are a legitimate charity, regardless of whether or not it has a religious basis.
> My reading of the Establishment Clause and consideration of its
> necessary corollaries persuades me to the view that the full and proper
> statement of its effect is, "As far as the state is concerned, anyone
> (individual or institution) may do for religious reasons all that, and
> only that, which his neighbor may do for non-religious reasons."
Assuming we agree with you there, why does that lead you to the conclusion that an ordinary, in-business-to-make-a-profit-for-himself individual or company should be entitled to a tax exemption as a charitable institution?
> The exemption of church properties from taxation is one of those things
> which survives despite being clearly illegal.
It's not illegal if they allow other, non-religiously-based charitable institutions to claim the same type of exemption upon proof that they are a bona fide charity.
> Differential treatment of
> prison inmates or public school students on religious grounds is
> similarly illegal.
I'll agree with you there, but what examples are you thinking of as revealing discriminatory treatment in such contexts? And what would you have the government do instead?
> Even Amerind claims for special consideration must
> be disallowed if the claim is based solely upon religion.
Um, what are you thinking about specifically? Peyote use? I'm not aware of the specific language and reasoning of court cases that may have dealt with the practice, and you are right that it is problematic for government to allow members of a certain group to perform acts that are forbidden to everybody else if the claim of exemption from a general prohibition is based solely on religion. If that's the case, why not permit polygamy, or human sacrifice, if a person's religion requires it?
My guess is, the courts that have addressed the issue have looked at the laws prohibiting peyote use as "malum prohibitum", something that is wrong just because the law says it is so as part of some regulatory scheme, rather than "malum in se", something any reasonable person would regard as wrong in itself whether or not the law says anything specific prohibiting it. For instance, there is nothing inherenty wrong with driving on the left side of a 2-way roadway, but as part of the overall scheme of traffic regulation, a legislative decision was made to prohibit it and require driving on the right. At the same time, murder, rape, etc. are common-law malum in se crimes whether or not the legislature has codified any written law in that area.
Hard as it may be to imagine in this 21st century where government demonizes such conduct, drug crimes (their actual possession and consumption, not the murder and stuff that is an inevitable consequence of their prohibition) are not malum in se, but were originally enacted as progressive public health regulatory measures around the turn of the previous century, before which the laws did not regulate who could obtain what pharmaceuticals from their friendly local chemist or soda fountain (Coke used to really have coke in it). The courts might therefore be more willing to carve an exemption from the law for continuation of a traditional aboriginal practice that is not malum in se, just as they have carved exemptions for Native Amerindians permitting continuation of other traditional practices that are forbidden to non-aboriginals, such as whale hunting. In that case it is the government's obligation (as guardians of the rights of native peoples) to permit continuation of traditional practices by the peoples who were on this continent first, regardless of whether those practices are religious or non-religious in origin, that led to the decision. The same distinction between malum prohibitum and malum in se would allow the courts to be logically and legally consistent in carving such exemptions from what are merely regulatory crimes, while continuing to forbid polygamy and human sacrifice as malum in se. So if you were thinking of re-starting an Aztec cult, it ain't gonna work.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
New York state - probate delay?
On Mar 30, 6:38 am, Rick <ricka...@rcn.com> wrote:
> your MIL is in
> a really tough position regarding her husband's estate and dealing with
> expenses. The only way to get access to the money - eventually - with no
> will in place is to probate the estate. * * * IIRC in our case
> the Probate Court was not willing to allow access to funds in the bank
> accounts for any reason until a certain time period had elapsed. The
> total process took a little over one year before my Father had access to
> accounts in my Mother's name. The Probate Court will want to see paper,
> the banks will want to see paper... Nothing happens fast.
I'm a bit surprised if NY is still all that Dickensian about accessing probate funds to support an otherwise impoverished immediate family of a deceased intestate. Maybe there were some unusual circumstances in Rich's case that made the court respond that way, such as family disagreements over who should be appointed PR or over which expenses were legitimately owed by the estate..
Here in MD, by contrast, even in a no-will situation, any person who, by statute, is authorized to act as PR can prepare a probate petition, walk into court and file it, and walk back out minutes later with Letters of Appointment in hand, which by MD law acknowledge and order any concerned person to recognize that the PR immediately acquired legal title to all assets of the deceased, for the benefit of the estate and its creditors and heirs of course, but allowing the PR to immediately access and make transactions on any accounts in the deceased's name and to access his safe deposit boxes, etc.
Of course the PR has to eventually account for every penny and receive court approval of all disbursements before porbate can be CLOSED, but there is no delay in accessing the funds to pay ongoing bills, funeral expenses, and to provide an interim disbursement of estate funds to one or more of the ultimate heirs who are in need, after OPENING the probate process by filing a petition, so long as the PR is careful to leave enough funds in the estate to pay all creditors (at the risk of being personally liable for same, and other penalties).
Wouldn't you think the state of NY would rather be able to have their widows and orphans being supported by a deceased breadwinner's own funds, instead of becoming welfare recipients or wards of the state? Any NY lawyers reading this? What's the deal there?
> I wish I had something better to offer. But not having a will only
> leaves a mess for the people who have to deal with the estate.
I certainly agree with you there, for the benefit of readers besides OP for whom it is not too late to plan ahead. Any family breadwinner with dependents of any age who has not made an estate plan covering all foreseeable contingencies is selling his family short, and should correct that immediately by consulting a knowledgeable local estates-and-trusts lawyer.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> your MIL is in
> a really tough position regarding her husband's estate and dealing with
> expenses. The only way to get access to the money - eventually - with no
> will in place is to probate the estate. * * * IIRC in our case
> the Probate Court was not willing to allow access to funds in the bank
> accounts for any reason until a certain time period had elapsed. The
> total process took a little over one year before my Father had access to
> accounts in my Mother's name. The Probate Court will want to see paper,
> the banks will want to see paper... Nothing happens fast.
I'm a bit surprised if NY is still all that Dickensian about accessing probate funds to support an otherwise impoverished immediate family of a deceased intestate. Maybe there were some unusual circumstances in Rich's case that made the court respond that way, such as family disagreements over who should be appointed PR or over which expenses were legitimately owed by the estate..
Here in MD, by contrast, even in a no-will situation, any person who, by statute, is authorized to act as PR can prepare a probate petition, walk into court and file it, and walk back out minutes later with Letters of Appointment in hand, which by MD law acknowledge and order any concerned person to recognize that the PR immediately acquired legal title to all assets of the deceased, for the benefit of the estate and its creditors and heirs of course, but allowing the PR to immediately access and make transactions on any accounts in the deceased's name and to access his safe deposit boxes, etc.
Of course the PR has to eventually account for every penny and receive court approval of all disbursements before porbate can be CLOSED, but there is no delay in accessing the funds to pay ongoing bills, funeral expenses, and to provide an interim disbursement of estate funds to one or more of the ultimate heirs who are in need, after OPENING the probate process by filing a petition, so long as the PR is careful to leave enough funds in the estate to pay all creditors (at the risk of being personally liable for same, and other penalties).
Wouldn't you think the state of NY would rather be able to have their widows and orphans being supported by a deceased breadwinner's own funds, instead of becoming welfare recipients or wards of the state? Any NY lawyers reading this? What's the deal there?
> I wish I had something better to offer. But not having a will only
> leaves a mess for the people who have to deal with the estate.
I certainly agree with you there, for the benefit of readers besides OP for whom it is not too late to plan ahead. Any family breadwinner with dependents of any age who has not made an estate plan covering all foreseeable contingencies is selling his family short, and should correct that immediately by consulting a knowledgeable local estates-and-trusts lawyer.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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