Top 10 Reasons You Need A Will NOW

When you talk about estate planning, many people incorrectly think it is only for the ultra wealthy. At bare minimum, everyone should have a will. Below are the top 10 reasons you need a will NOW.

1. Decide who gets your assets.
2. Decide who will be guardian to your minor children.
3. Choose your executor that will wind down your estate.
4. Reduce legal costs at probate by spelling out how to administer your estate.
5. Allows for charitable donations.
6. Gives peace of mind to loved ones by making your wishes clear.
7. Specific instructions as to sentimental or valuable personal property.
8. Make sure an unmarried partner is taken care of.
9. Provide for pets.
10. Set funeral wishes.

What is a Living Will?

A living will is a planning decide that can give you peace of mind. It is a written device that explains what types of medical treatment that a person would want at the end of life if they are unable to speak for themselves. This legally binding document that will let medical professionals know as to decisions including whether to be on mechanical ventilation, or to allow for a feeding tube, among many others. Quality of life and cost to family are some of the considerations people think about when making these critical decisions.

Importantly, a living will often override a power of attorney or a health care surrogate’s decisions if done properly. This is one of the reasons why it is so important to hire a professional to create these documents. An attorney can advise you on how these documents interact with each other and ensure these documents do what you want them to. Usually the online forms are not worth the paper they are printed on, due to not being created by attorneys or executed incorrectly. If you have any questions about how to plan your medical decisions, call us today.

Why Contract Law Requires Cosby Walk Free

Even if comedian Bill Cosby is convicted there is a strong chance his conviction will be overturned on appeal. While this author has no opinion as to whether Mr. Cosby did what he is accused of doing, the trial judge made a likely fatal legal error in this case, requiring the charges to be dismissed.

Bill Cosby testified in a civil deposition back in 2006, waiving his constitutional right to remain silent. Why did he do this? Former District Attorney Bruce Castor entered into a permanent non-prosecution agreement with Cosby in 2005 in order to try to help the accuser recover financially. Mr. Castor testified under oath pre-trial that such an agreement existed and was in fact permanent.

Despite this, the judge sided with the government’s argument that there was no agreement in writing and that only a judge can grant prosecution under state statute. However, with few exceptions, a contract does not have to be in writing to be enforceable. This is basic contract law. This law firm recently assisted on a trial where there was a contract dispute despite no written contract. Both the jury and the judge correctly found there was a valid enforceable agreement.

Furthermore state law cannot trump due process considerations. Back in 1972, in Santobello V. New York, the United States Supreme Court reasoned that when a criminal defendant waives constitutional rights in order to come to an agreement with the government, that agreement is enforceable as any other contract would be. They called it the “Constitutional Law of Contracts.” In Santobello, the government reneged on a sentencing promise after the defendant waived his right to a trial and entered a plea. The court reasoned that the same remedies for a broken contract apply.

In Santobello, the defendant was merely allowed to withdraw his plea. However for Cosby it is impossible to turn back the clock and pretend that testimony never occurred since for Cosby the cat is out of the bag and also he already settled that civil case. The only just remedy for a broken contract in this case is specific performance, which means forcing the parties to hold up their side of the bargain– ie enforcing the non-prosecution agreement.

If the Jury comes back not guilty, all of these legal issues will never be fleshed out. Regardless of what the jury decides, contract law requires Mr. Cosby’s case to be dismissed.

Why Your LLC Needs an Operating Agreement

Lots of small businesses decide to become LLCs. When that business has more than one owner, an operating agreement is crucial. Handshake agreements and free forms cannot replace careful planning. Often disagreements can arise between business partners when it is too late to work through them. Here are some issues that can be solved with an operating agreement for an LLC:

  • What percentage of the LLC does each member own?
  • Who will manage the day to day affairs of the LLC?
  • How will profits be distributed?
  • In what proportion will profits be distributed?
  • How can members sell their portion of the LLC?
  • What are the voting rights?
  • Can members compete with the company?

Think about a two person LLC. John and Greg agree to a 50-50 split on everything. They’ve been working together for years. They started the LLC together. Two years later, with the business booming, John decides to sell their share to someone completely unknown to Greg. Without an operating agreement, Greg is powerless to stop John’s sale. Now John is partners with someone he knows nothing about.

While hiring a lawyer may not be on the top on the list for a small business, it really should be. These issues are much more difficult and more expensive to deal with once they become issues. It is like ignoring going to the doctor to treat a small issue and finally going when you need major surgery. Figuring out and planning out these issues are crucial for any small business. That is why your LLC needs an operating agreement.

Despite RXs, Tiger Woods May be Convicted of DUI

One of the things I often hear from clients charged with a DUI is that “I had a prescription for that medication.” In the State of Florida, that is not a legal defense for a DUI as we will likely see from the recent arrest of Tiger Woods in Palm Beach County, Florida.

Tiger Woods was arrested this weekend on suspicion of DUI. He took a breathalyzer test and blew a .000, meaning there was zero alcohol in his blood. This does not mean that he will be able to walk away without a conviction though. He stated to police that he takes several medications, and this morning he gave a statement that this was caused by an “unexpected reaction to prescription medications.” Although the fact that it was a prescription medication can be used as mitigation in order to possibly negotiate with the State Attorney to knock the case down to a lower charge, the law does not make an exception for whether the medication is prescribed or not.

To be convicted of a DUI in Florida one must:

  1. Be driving or in actual physical control of a vehicle;
  2. Be under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893; AND
  3. That person must be affected to the extent that the person’s normal faculties are impaired

There is one final caveat. As you can see above in 2, the substance must either be alcohol or a substance set forth in those above two statutes. While medicines like Ambien and Promethazine can certainty impair ones normal faculties, they are not listed in the above statutes, and one cannot be convicted of a DUI based upon taking medicines like these. Obviously one should not drive under any substance that can cause impairment.

Last month, Tiger had his fourth back surgery, a spinal fusion. I am speculating that at least one of the medicines he was prescribed was a controlled substance under chapter 893. Also, according to the probable cause affidavit, Tiger agreed to a urine sample. Soon we will see exactly what type of medication he was on. Ultimately, whether he has a prescription to these medications will not be a legal defense.

States Cannot Keep Fines from Exonerated

The Supreme Court recently held that those who have had a criminal conviction overturned, but had paid restitution while awaiting the outcome of their appeal, must be refunded that money. Some may be left scratching their head that this made it all the way to the supreme court, but it was not a unanimous decision. Despite the fact that their convictions were overturned, the state of Colorado insisted on keeping the restitution. This case, titled Nelson v. Colorado, was a 7-1 decision, with newly appointed Justice Gorsuch sitting this one out.

Colorado had adopted an exoneration act that allows “an innocent person who was wrongly convicted” to file a civil suit to seek refunds but only if they could prove their innocence. This would flip the presumption of innocence on its head, according to the majority opinion written by Justice Ginsburg. She eloquently wrote “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary extractions.”

Justice Thomas was not convinced that those who had their cases overturned had “any substantive entitlement, under either state law or the constitution” to the previously paid money. He reasoned that since the defendants were not wrongly deprived of the money, the state did not have to provide a process for its return. UCLA law professor Stuart Banner and the UCLA Supreme Court Clinic appealed the case for Mr. Nelson and noted that Colorado was the only state that regularly refused to refund money from those whose convictions were overturned.

“Stand Your Ground” Set To Expand

The State of Florida has one of the strongest protections for those claiming self-defense in the entire country. Now, that protection is almost certainly going to get even stronger. A technical change to how these cases play out in the courtroom will make it easier than ever for someone to prevail on a self-defense claim.

If one is charged with using or threatening to use violence, they can raise self-defense in all 50 states. However, in Florida, one gets the ability to raise this defense before having to go to trial. In this sense, a defendant can get two bites at the apple. First a defendant can raise self defense in a pre-trial evidentiary hearing asking the Judge for immunity from prosecution. Then even if the defendant loses this hearing the case continues. They have not been convicted of any crime and they can still proceed with a self-defense claim at trial.

Previously at these pre-trial hearings, the defendant had the burden of proof, to prove that their actions constituted self defense. Now, once the defendant provides some competent evidence that his or her actions constituted self defense, the government must prove by clear and convincing evidence that the defendant’s actions were not self defense. This change is assuming, as widely expected, Governor Scott signs SB 128.

I have had many of these hearings, and they are usually very much toss-up, “he said-she said” situations. Now these “toss-ups” should be ruled in favor of the defendant much more frequently because the burden of proof will be on the Government. Thus Florida’s broad “Stand Your Ground” law is set to expand even more.

Most Estate Plans Ignore Digital Property

Many Estate Planning attorneys are not prepared for the modern era. At this point, very few attorneys are creating a plan for disposition of digital property. Digital property is not cell phones and tablets, but the information stored on them. This can include information stored on Facebook, Twitter, blogs, websites, and more.

Some may think they do not need to worry about these accounts because they have no value. This line of thinking is categorically incorrect. Much of this information holds immense sentimental value, including communications, pictures and videos. Other assets may have more economic value including business websites, frequent flier miles or even bitcoins. Still others have a large digital library of books, movies or songs. Even online accounts with stored credit card information should be properly disposed of, as identity theft, even for those who have passed, is becoming more and more rampant.

In 2016, Florida became the first state in the nation to pass legislation adopting the Uniform Fiduciary Access to Digital Assets Act (UFADAA). These rules require specific triggering language in a trust, power of attorney or will, otherwise this digital property will be inaccessible. Using generic catch all phrases or including digital assets in one’s “entire estate” will not be enough. A family member or loved one could even potentially be criminally prosecuted if they try to access digital property without the correct triggering language under the UFADAA. Please hire an estate planning attorney who is familiar with these recent legal changes. Call us today if you have any further questions.

Florida Legislature Cracks Down on “Totalitarian” Condo Boards

I represent a condo homeowners association and also many people who are unhappy with the way their condo is run, so I always stay up to date on the latest in Condo/HOA law. Previously, you either had to attempt a hostile takeover by getting the votes or suing civilly with an administrative state board. If Governor Scott signs the bill passed by the Florida Legislature, condo boards will have more regulations to follow and those unhappy with the way their condo is run can call the police if their board is violating the law.

If the law is changed, condo associations with 150 or more units will be required to publish password-protected financial reports, bylaws, and the articles of incorporation online. Directors will no longer be able to receive money from their associations for services like property management. Directors would also no longer be able to hire their relatives. There would also be term limits for board directors of 8 years unless the director receives a super-majority or there is a lack of candidates to fill the position, which in my experience is actually an incredibly common experience. A renter of a unit also would have the right to copy and inspect the association’s bylaws and rules.

Previously even if there was wrongdoing, police were very hesitant to arrest someone for a violation of condo association law because the statute made no explicit mention of criminal penalties. If the Governor signs this bill, that will change dramatically. Forgery of a ballot envelope or voting certificate used in an election is now a third degree felony, which is punishable by up to 5 years in prison. Refusing to allow inspection or copying of an official record of a condominium association within the time periods required by law in furtherance of a crime is now a felony, punishable by up to 5 years in prison. These are just two examples of a long list of illegal activity that will now be met with felony charges to combat what the author of this bill calls “totalitarian” condo boards.

What are your rights if you are involuntarily bumped from a flight?

Most airlines will regularly overbook flights. Often the airlines will ask for volunteers to be bumped, however as we have seen in recent news, there are often not enough volunteers. The Department of Transportation requires airlines to give each passenger who is bumped involuntarily a written statement that both describes their rights and that explains how the carrier decides who gets on an oversold flight and who doesn’t.

Compensation

  • If you are bumped involuntarily and the airline arranges substitute transportation that is scheduled to get you to your final destination within one hour of your original scheduled arrival time, you are not entitled any compensation.
  • If the airline arranges substitute transportation that is scheduled to arrive at your destination between 1-2 hours after your original arrival time (and between 1-4 hours on international flights), the airline must pay you an amount equal to 200% of your one-way fare to your final destination that day, with a $675 maximum.
  • If the substitute transportation is scheduled to get your to your destination more than two hours later (four hours internationally) or if the airline does not make any substitute travel arrangements for you, the compensation doubles to 400% of your one-way fare with a maximum of $1350.
  • If you paid for optional services (seat selection, checked baggage) and you did not receive those services on your substitute flight, or had to pay again, the airline that bumped you must refund those payments to you.

Remember, if you are bumped involuntarily you have the right to insist on a check. They cannot force credits or free flights upon you. The rules are a little more complicated than this, but these are the basics.

If you have any questions about the above information or about any legal matter, call Nathan Nevins Law at 954-249-3144.